Monday, 7 June 2021

Infectious Disease Emergency Leave *Does* Oust Common Law Constructive Dismissal

Does Infectious Disease Emergency Leave under the Employment Standards Act, 2000, S.O. 2000, c.41 oust the common law of constructive dismissal or were employees ostensibly placed on leave actually terminated?

If that question sounds familiar, it is because that is the question answered by the case of Coutinho v. Ocular Health Centre Ltd., 2021 ONSC 3076 (CanLII), about which I blogged in my post Infectious Disease Emergency Leave Does Not Oust Common Law Constructive Dismissal.

Problem is, there is a new decision, Taylor v Hanley Hospitality Inc, 2021 ONSC 3135, which reaches the opposite conclusion.

CERB Proper Deduction against Wrongful Dismissal Damages: BCSC

Are amounts received under the Canada Emergency Response Benefit (“CERB”) a setoff against wrongful dismissal damages?

It would appear that the answer to the question still depends on which judge you ask.

In Hogan v 1187938 B.C. Ltd., 2021 BCSC 1021 (CanLII), the Honourable Madam Justice Gerow of the British Columbia Supreme Court held such amount was a proper deduction.

Sunday, 30 May 2021

COVID-19 and Reasonable Notice Calculations – The State of Affairs at the End of May 2021

It is the end of May 2021. The COVID-19 pandemic has been a reality for approximately 15 months in Ontario. The legal system has changed in ways seemingly unimaginable at the end of 2019: Appearances for scheduling matters by video rather than in-person attendance? Remote commissioning of affidavits? Full blown hearings by video conference? Service of documents by email rather than the beloved fax?! The procedural elements of the legal landscape of 2021 are practically unrecognizable from what it was a year and a half ago.

So what of the substantive law of wrongful dismissal and the calculation of reasonable notice?

Since the pandemic was declared, plaintiffs’ counsel has advanced the position that the disruption associated with same means an automatic extension of the reasonable notice period due to dismissed employees. But has the judiciary agreed?

Saturday, 29 May 2021

Employee’s Refusal to Work Not Wrongful Dismissal

If an employee leaves work and refuses to return until certain demands have been met, and if the employer is unwilling to meet those demands, has the employee been fired, has she quit, or what happened?

In Anderson v. Total Instant Lawns Ltd., 2021 ONSC 2933 (CanLII), Madam Justice Julianne Parfett of the Ontario Superior Court held that the employee had not been fired; her own actions had repudiated the contract.

Saturday, 22 May 2021

The Judicial Consideration of Porky Pig

I appreciate that I have not blogged very much in 2021. To say this year has been “busy” in the employment bar might be a touch of an understatement. However, it would appear that notwithstanding the paucity of new posts, some of you are still using this blog as a resource.

In Lamontagne v. J.L. Richards & Associates Limited, 2021 ONSC 2133 (CanLII), the Honourable Justice Pierre E. Roger of the Ontario Superior Court sitting at Ottawa referenced me and one of my oft-used phrases to resolve a perennial favourite question of the employment-law bar – “is the termination provision legal?”

So with reference to the meme above this is a post about a decision which referenced this blog.