(c) istock/Jummie
Can an employer breach a rather fundamental element of an employee’s employment contract (to the tune of over $300,000) without triggering a constructive dismissal?
In a decision released March 21, 2017, Chapman v. GPM Investment Management, 2017 ONCA 227, the Court of Appeal for Ontario said “yes.”
If being accused of breaking the law “takes a serious toll” on you, causing you “emotional upset”, can you successfully sue the person that caused that harm?
It is trite to observe that being accused of something that you did not do is likely to cause feelings of serious upset. In employment law, this scenario arises most frequently when an employer alleges “just cause” for the termination of an employee’s employment. But what do the courts have to say about this issue? Can someone sue for emotional upset?
In the case of 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656, the Court of Appeal for Ontario confirmed that a plaintiff’s testimony of emotional upset, being unsupported by medical evidence, was insufficient to ground the substantial award of non-pecuniary damages made by the trial judge, the Honourable Regional Senior Justice Helen M. Pierce. (See reasons for decision reported at 2014 ONSC 3517.)
When is a non-solicitation provision in an employment contract actually a non-competition agreement? The answer is, when it prevents the employee from “accepting business from” any former corporate accounts or customers.
In a short endorsement, Donaldson Travel Inc. v. Murphy, 2016 ONCA 649, the Court of Appeal for Ontario confirmed an earlier decision of the Honourable Justice David A. Broad of the Superior Court of Justice, dismissing the plaintiff employer’s claims for breach of contract, misappropriation of confidential information, inducing breach of contract and interference with contractual relations against its former employee travel agent and her new travel agency employer.
EA Sports, the makers of such videogame as NHL hockey and Madden NFL football, previously employed the motto, “If it's in the game, it's in the game”, meaning that if something happened in the real game, then it would appear in the videogame. More recently, the motto has been shorted to simply “It’s in the game.”
While it is highly unlikely we will see a member of Ontario’s judiciary on the cover on NHL 18, the court did just lay some serious body checks, figuratively speaking, on Ontario’s employers. Following two decisions from the Court of Appeal for Ontario Paquette v. TeraGo Networks Inc., 2016 ONCA 618 (CanLII) and Lin v. Ontario Teachers' Pension Plan, 2016 ONCA 619 (CanLII), both of which were released on August 9, 2016, Ontario’s employers would be prudent to heed this warning: “In determining damages for wrongful dismissal, Ontario’s court will typically include all of the compensation and benefits that the employee would have earned during the notice period.” Put another way, “If it’s in the game, it’s in the game.”
What is the penalty for embarking on a “campaign of abuse”, intentionally designed to force a disabled employee to quit her job? In a June 2016 decision from the Court of Appeal for Ontario, Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520, Ontario’s highest court awarded nearly a quarter million dollars plus costs following the wrongful dismissal of a long-term employee who has harassed and belittled by her employer after losing her hearing.
Must the termination provision in an employment contract expressly employ the words “benefits” in order to be legally binding? Before the Court of Appeal for Ontario’s decision in Oudin v. Centre Francophone de Toronto, 2016 ONCA 514 (released June 28, 2016), I would have said “yes.” In fact, I said so rather emphatically in my earlier blog post “Benefits”: The Most Important Word in Ontario Employment Law. I mean, I declared the word “benefits” as “the most important word in Ontario employment law.” Perhaps I was mistaken.
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.
What will be the court’s censure for an employer’s unwillingness to accommodate its employees’ childcare arrangements, except where legitimate, justifiable grounds exist for being unable to do so? According to the Honourable Justice Susan E. Healey of the Ontario Superior Court of Justice, no less than $20,000.
In her reasons for decision reported at Partridge v. Botony Dental Corporation, 2015 ONSC 343, affirmed on appeal 2015 ONCA 836, Justice Healey threw the proverbial book at an employer who not only falsely alleged just cause for dismissal, but also engaged in acts of reprisal and violated one of its employee’s human rights after the employee had taken maternity leave.
In another good hard look at the consequences of messing with an employee’s right to return to work following maternity leave, (see also the case of Bray v Canadian College of Massage and Hydrotherapy, 2015 CanLII 3452 (ON SCSM), a decision of the Ontario Small Claims Court, summarized by this blog in the post Ontario Small Claims Court Awards Human Rights and Punitive Damages after New Mom Constructively Dismissed,) Ontario’s judges continue to demonstrate that an employee’s right to take parental leave is pretty much sacrosanct.
Are an employer’s financial circumstances a relevant consideration in determining the period of reasonable notice to which a wrongfully dismissed employee is entitled?
That was the issue that the Court of Appeal for Ontario had to answer in the case of Michela v. St. Thomas of Villanova Catholic School, 2015 ONCA 801.
In answering the question “no”, the court could not have been any more succinct or clear: “An employer’s financial circumstances may well be the reason for terminating a contract of employment – the event that gives rise to the employee’s right to reasonable notice. But an employer’s financial circumstances are not relevant to the determination of reasonable notice in a particular case: they justify neither a reduction in the notice period in bad times nor an increase when times are good.”
What happens when a potential employee signs a letter of offer, which letter makes reference to an employment agreement “to follow”, the terms of which agreement differ substantially from what is contained in the offer letter? Will the court uphold the terms of the full contract?
Put another way, can an employer make a basic offer of employment to a candidate, advise the candidate that he will be required to sign a full employment agreement at some later time, and then impose new terms via that full contract?
I have repeatedly answered that question in the negative, see e.g. No Changes Without Consideration, published June 2, 2012. More recently, on November 10, 2015, (and with much more authority) the Court of Appeal for Ontario, in its reasons for decision in Holland v. Hostopia.com Inc., 2015 ONCA 762 (CanLII) said exactly the same thing and for essentially the same reason.
Do the statutory provisions in Ontario's Employment Standards Act, 2000 governing the ways by which an employer may temporarily lay-off an employee oust the application of the common-law doctrine of constructive dismissal during the temporary lay-off period?
According to a decision from the Court of Appeal for Ontario, Motion Industries (Canada) Inc. v. McCarthy, 2015 ONCA 224 (CanLII), the answer is “no.”
How are trial judges to calculate the amount of reasonable notice to which a suddenly unemployed employee is entitled? In yet another decision to reinforce the position that the analysis set out in Bardal v Globe and Mail remains the preeminent method by which to calculate the same, Arnone v. Best Theratronics Ltd., 2015 ONCA 63 (CanLII), the Court of Appeal for Ontario disapproved one judge’s approach of calculating the amount of time it would take to ‘bridge’ the employee to an unreduced pension.
Under what set of circumstances will an Ontario Superior Court judge say that it is “reasonable” for an employee to refuse to return to work for the employer that dismissed her as a means of mitigating her damages?
The law concerning the duty to mitigate is rather clear; employees who are dismissed by their employers have a duty to mitigate their damages and may be required to return to work for the employer that dismissed them in order to do so. However, as the Supreme Court of Canada observed in the case of Evans v. Teamsters Local Union No. 31, [2008] 1 SCR 661, 2008 SCC 20:
[30] The critical element is that an employee “not [be] obliged to mitigate by working in an atmosphere of hostility, embarrassment or humiliation” and it is that factor which must be at the forefront of the inquiry into what is reasonable. Thus, although an objective standard must be used to evaluate whether a reasonable person in the employee’s position would have accepted the employer’s offer, it is extremely important that the non-tangible elements of the situation — including work atmosphere, stigma and loss of dignity, as well as nature and conditions of employment, the tangible elements — be included in the evaluation.
But what exactly is “an atmosphere of hostility, embarrassment or humiliation”? In the case of Turner v. Inndirect Enterprises Inc. (2009), 2009 CarswellOnt 9666, [2009] O.J. No. 6345, 87 C.C.E.L. (3d) 306 (ON SC) affd 2011 ONCA 97 the Honourable Justice David Salmers said that a culmination of seemingly common factors created such an atmosphere. It is an interesting read.
"Don’t forget: you’re here forever." Those five words (seven if you are particular) are said to occupy the plaque above Homer Simpson’s workstation. As regular, and one has to admit older, fans of the iconic television show will remember, in the episode “And Maggie Makes Three”, which originally aired on January 22, 1995, Homer’s boss, Mr. Burns, affixed said plaque above Homer’s workstation after our hero was forced to crawl back to the Springfield Nuclear Power Plant in search of his old, and much despised, job. And while Homer makes the best of the situation, covering certain parts of the plaque with photos of his infant daughter Maggie such that the plaque reads “Do it for her”, the plot point raises an interesting question about employment law in Ontario: Is there such a thing as a job “forever”?
One of the most common misconceptions about employment law in Ontario is that so long as an employee continues to satisfactorily perform his or her job, that employee cannot be fired. As this blog has frequently stated, that simply is not the case and employers generally have the right to terminate an employee’s employment for any reason at all, including no reason. (There are, of course, exceptions, such as the fact that an employer cannot dismiss an employee for a reason prohibited by statute; but those exceptions are few.)
But what if the employee’s employment contract says that the employer “shall not” dismiss the employee? Certainly that would entitle the employee to a job for life. And if the employer did, in fact, dismiss the employee, then she would be entitled to the wages that she would have earned for the rest of her life, no?
A 2003 case from the Court of Appeal for Ontario, authored by the Honourable Justice Rosalie Abella, who now sits on the Supreme Court of Canada, Foreman v. 818329 Ontario Limited, 2003 CanLII 57401 (ON CA) held that the contract term “[The employer] shall not dismiss [the employee]” did not, in fact, entitle the employee to a job for life.
Where an employer’s restructuring serves a legitimate business interest and is not merely a pretext for terminating an employee, should that employee be obliged, as part of his duty to mitigate, to return to work for the same employer? According to a recent decision from the Court of Appeal for Ontario, Farwell v. Citair, Inc. (General Coach Canada), 2014 ONCA 177, the answer is unclear. What is clear, however, is that in order for an employer to avail itself of the argument that an employee has failed to mitigate his damages by returning to work for the dismissing employer, (see: Evans v. Teamsters Local Union No. 31, 2008 SCC 20 (CanLII), [2008] 1 SCR 661,) the employer must offer the alternate position to the dismissed employee after termination, not before.
The phrase caveat signator means "beware what you are signing." It is an appropriate warning when signing a Full and Final Release of liability.
If an employee signs a full and final release of all liability at the request of and in favour of his or her employer, can that release be used to disentitle the employee to the receipt of third-party disability benefits?
In the case of Zelsman v. Meridian Credit Union Limited, 2012 ONCA 358, upholding the earlier decision of the Honourable Justice Kendra Coats, reported at 2011 ONSC 1680, the Court of Appeal for Ontario answered that question with a “yes.”
Do employees have a reasonable expectation of privacy in employer-provided technology?
Although it was a criminal case, the case of R. v. Cole, 2011 ONCA 218, presented an interesting question: Whether a high-school teacher had a reasonable expectation of privacy in the contents of a work computer on which he was entitled to store personal information.
The decision is even more interesting because it was authored by Justice Karakatsanis, now of the Supreme Court of Canada.
