Choice of Law Provisions: Application of the Ontario Employment Standards Act to International Employees

Can an employer and employee agree by contract that the laws of Ontario, Canada will apply to terms of their employment relationship, even if: (a) the employee works and is physically situated in in Los Angeles, California; and (b) the company is a New Jersey company with its head office in the State of Connecticut?

If the answer to that question is “yes”, do / can the employment standards set out in the Ontario Employment Standards Act, 2000 apply to such an employee?

Those were some of the questions put to the Honourable Justice James F. Diamond of the Ontario Superior Court of Justice in the case of McMichael v The New Zealand & Australian Lamb Company, 2018 ONSC 5422 (CanLII).

Today’s Tip for Making a Termination Clause Legally Binding: KISS

Stop me if you’ve heard this one before: An employer attempts to limit, by employing a contractual termination clause, its obligation to provide notice of termination to no more than the statutory minimum amount prescribed by the provisions of the Employment Standards Act, 2000 and the employee alleges that such clause is void ab initio because it violates the strictures of such statute. In Burton v. Aronovitch McCauley Rollo LLP, 2018 ONSC 3018 (CanLII) the Ontario Superior Court of Justice once again had reason to examine such arguments.

In this case, however, the court considered all of the earlier decisions in Roden, Wood, and Nemeth.

Changing One’s Mind about Retirement

May an employee who has resigned her position of employment by way of a notice of retirement later rescind her written notice of retirement? If so, under what conditions may she do so?

Those were the questions answered by the Honourable Justice Mark L. Edwards of the Ontario Superior Court of Justice in English v. Manulife Financial Corporation, 2018 ONSC 5135 (CanLII)

Assessment of Damages in Sexual Assault Cases

What is a reasonable assessment of damages in a civil case of sexual assault? Is the fact that a perpetrator of sexual assault has not been criminally punished a relevant factor in the decision to award punitive damages?

In Zando v. Ali, 2018 ONCA 680 (CanLII), Ontario’s top court adopted the framework for determining damages in a civil sexual battery or assault cases described in Nova Scotia (Attorney General) v. B.M.G., 2007 NSCA 120 (CanLII), 260 N.S.R. (2d) 257, per Cromwell J.A. (as he then was), and affirmed a lower court’s award of $200,000, made up of general damages of $175,000 and punitive damages of $25,000.

Receipt of LTD Evidence of Frustration

Is the continued receipt of long-term disability (“LTD”) benefits evidence that one’s contract of employment has become legally “frustrated”? In the case of Roskaft v. RONA Inc., 2018 ONSC 2934 (CanLII) the Honourable Justice Andra Pollak said yes.

The Right to Purreavement Leave in Ontario

Should employees be allowed to use their Personal Emergency Leave (Employment Standards Act, 2000, section 50) to be absent from work in order to mourn the loss of a family pet? That is to say, should workers in Ontario be entitled to take so called “purreavement leave”?

For some the question will be ridiculous. To others, the answer “no” would be equally outrageous.

The question is not completely hypothetical either. According to a CBC news’ report, Quebec labour tribunal sides with employer in cat-bereavement spat, “A Quebec labour tribunal has sided with an employer who refused a woman's request to work from home on the day her cat died.”

That story got me thinking: Can workers in Ontario use their Personal Emergency Leave to mourn the loss of a family pet? If not, should they?

Family Caregiver Leave in Ontario

How much time off is an employee entitled to in order to look after a sick family member?

However, both employers and employees must be mindful of the fact that while Personal Emergency Leave was expanded as a result of Bill 148, and then removed as a result of Bill 47, there are several other forms of protected leave including:

• Pregnancy Leave [sections 46 – 47 of the ESA]
• Parental Leave [sections 48 - 49]
• Family Medical Leave [section 49.1]
• Organ Donor Leave [section 49.2]
• Family Caregiver Leave [section 49.3]
• Critical Illness Leave [section 49.4]
• Child Death Leave [section 49.5]
• Crime-Related Child Disappearance Leave [section 49.6]
• Domestic or Sexual Violence Leave [section 49.7]
• Emergency Leave, Declared Emergencies [section 50.1]
• Reservist Leave [section 50.2]