Friday 8 April 2016

Fixed Term Employment Agreements Just got More Expensive and Dangerous for Employers in Ontario

Is an employee who is employed under a fixed term employment contract, which does not provide for early termination without cause, entitled to payment of the unexpired portion of the contract on early termination of the contract? Is that employee required to mitigate his damages following termination? Those were the question answered by the Court of Appeal for Ontario on April 8, 2016, in the case of Howard v. Benson Group Inc. (The Benson Group Inc.), 2016 ONCA 256.

Writing for a unanimous bench, the Honourable Justice Bradley Miller held that fixed term employment agreements that do not contain a legally enforceable termination provision cannot be terminated by employers simply upon the provision of reasonable notice; the employee is entitled to payment of the unexpired portion of the contract on early termination of the contract. Perhaps of greater consequence was the court’s decision that employees employed pursuant to fixed term employment contracts are not required to mitigate their damages following termination. This is going to cost employers some serious money.

Friday 1 April 2016

Employers Cannot Contract Out of Liability for Workplace Accidents

Can an employee contractually waive his right to sue his employer if he gets injured as a result of a workplace accident? That is to say, will a waiver signed by an employee actually prevent an employee from suing his employer in negligence?

In a decision released January 26, 2016, by the Court of Appeal for Ontario, Fleming v. Massey, (2016), 128 O.R. (3d) 401, 2016 ONCA 70, the answer was “No, an employee cannot contract out of the right to sue his employer in negligence.”

Sunday 21 February 2016

The Curious Case of Damages without Liability

I will start this post by saying that the content of this post will be different from what I usually write. Typically, my posts start with a question, which is then answered by the content. However, this time it is content that leaves me with a question.

On February 5, 2016, the Honourable Justice Timothy D. Ray released his reasons for decision in the case of Muntean v Enablence Canada Inc., 2016 ONSC 923 (CanLII). The “catchwords” for the decision are “lay-off notice — constructive dismissal — treat the lay-off — temporary lay-off — voicemail”. “Cool,” I thought, “a recent, local decision in my practice area. I’ll read this.” So I did.

With much respect to Justice Ray, after reading the decision and discussing it with others I simply cannot make sense of it. I like to fancy myself someone who knows a thing or two about Ontario employment law, but in this case I am simply at a loss.

If someone can explain to me why damages were awarded in this case and for what, I would be most appreciative.

Sunday 7 February 2016

Want to Wrongfully Dismiss an Employee? There’s an App for That!

Can I interest you in an app that will almost invariably get you sued? I doubt it.

It has been my experience as a litigator that few people want to be involved in a lawsuit. It has also been my experience that most people do not want to break the law. Most employers are not interested in either wrongfully dismissing one of their employees or dealing with the fallout once they do. So why would anyone be interested in an app that almost invariably ensures both a wrongful dismissal and a letter from someone like me?

The unfortunate and frustratingly ironic reason that so many employers use an app almost guaranteed to get them sued is that the app is ostensibly designed to do the opposite.

So what app am I talking about? The “Severance Pay Calculator” put out by, of all people, the Ontario Ministry of Labour.

Saturday 30 January 2016

Is Twenty-Six the new Twenty-Four? Taking the 'Cap' off the Limit on Reasonable Notice

Notwithstanding the popularity of the Netflix series by the same name, it remains debatable whether orange really is the new black. Also subject to debate is whether twenty-four months remains the unofficial ‘cap’ on reasonable notice.

Ever since the Court of Appeal for Ontario’s pronouncement in Lowndes v. Summit Ford Sales Ltd., 2006 CanLII 14 (ON CA) that, “Although it is true that reasonable notice of employment termination must be determined on a case-specific basis and there is no absolute upper limit or ‘cap’ on what constitutes reasonable notice, generally only exceptional circumstances will support a base notice period in excess of 24 months”, employment lawyers have debated what those “exceptional circumstances” might be.

A more recent decision from the Court of Appeal, Keenan v. Canac Kitchens Ltd., 2016 ONCA 79 affirmed an award of 26 months to a “dependant contractor.” (For more on the issue of “dependant contractors” see The Not-So-Independent Contractor.)

Is 26 the new 24? I don’t know, what I do know is that whoever said orange was the new pink was seriously disturbed.

Sunday 24 January 2016

Workplace Accommodation is a Two-Way Street... on which Employees can get Run Over

Employees who become injured either at work or as a result of their workplace are especially vulnerable to losing their employment. This fact is recognized in Ontario law by the express inclusion of “injuries or disabilities for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997" in the definition of “disability” set out in the Ontario Human Rights Code. (Section 5 of that law provides that, “Every person has a right to equal treatment with respect to employment without discrimination because of… disability.”)

Notwithstanding this ostensible legal protection, injured workers continue to suffer workplace discrimination, often losing their employment as a result.

The case of Nason v Thunder Bay Orthopaedic Inc., 2015 ONSC 8097 (CanLII) provides a paradigmatic example of what can go wrong after an employee gets injured.

In this post, I will look at a single issue considered by the court in this case: Must a disabled employee who wants to return to work communicate the physical ability, not just the desire, to return to work?

Sunday 10 January 2016

Why Even if You Couldn’t Pay Me to Cheer for the Buffalo Bills, the Buffalo Bills’ Cheerleaders Deserve to be Paid as Employees.

"You could not pay me to cheer for the Buffalo Bills." The same is a reasonable position taken by a number of football falls. But what about the Buffalo Bills cheerleaders, the “Buffalo Jills” (seriously, that’s what they are called), should they be paid for cheering at Buffalo Bills home games?

In a continuing class action lawsuit brought by a number of former “Jills” against the team, (and others including the NFL), the plaintiffs allege that they were subject to incredibly stringent, if not downright ridiculous conditions of employment, such that the team’s position that the Jills were “independent contractors” was wrong. The Jills claim wage theft.

In an opinion released January 5, 2016, and available online at Ferrari v Mateczun et al., Index No. 804125-2014, the Honorable Timothy J. Drury, Erie County, New York, Supreme Court Judge held that the case could proceed as a class action. Express in the same is that the judge had found that the Jills were, in fact, employees and not independent contractors.

At last it would appear that the Buffalo Jills have something to cheer about.