What happens to an employee’s rights under a shareholders’ agreement if the employee is wrongfully dismissed?
According to the Court of Appeal for Ontario in Mikelsteins v. Morrison Hershfield Limited, 2019 ONCA 515, the fact that an employee was “wrongfully dismissed” may be irrelevant.
Does resigning from your job interrupt continuous service for statutory notice purposes – even if you never actually leave? “Yes” says Ontario’s top court in the case of Theberge-Lindsay v. 3395022 Canada Inc. (Kutcher Dentistry Professional Corporation), 2019 ONCA 469
Is being 62 years young, 37 years tenured, a Senior Vice President, terminated without cause, and left without any comparable employment opportunities “exceptional circumstances” warranting an award of pay in lieu of notice greater than 24 months? According to the Court of Appeal for Ontario (Pepall, Trotter and Harvison Young JJ.A.) in its decision in Dawe v. The Equitable Life Insurance Company of Canada, 2019 ONCA 512 (CanLII), the answer is "no".
What happens when ambiguous facts get resolved via summary judgment and then appealed? One gets decisions like Ariss v. NORR Limited Architects & Engineers, 2019 ONCA 449, which unfortunately add more confusion to the law of termination than clarity.
Does the tort of “harassment” exist at Ontario law? And, if not, is it time for Ontario’s court to recognize the existence of such tort? The answer to both of those questions, as provided by the Court of Appeal for Ontario in Merrifield v. Canada (Attorney General), 2019 ONCA 205, is “no.”
If an employer dismisses an employee without cause, pays the employee a considerable amount for severance, and the parties sign a full and final mutual release absolving each other from any further claims, can the employer, upon discovering the fact that the employee had lied about his actions while employed, successfully sue the employee for the recovery of the severance funds?
Yes, says the Court of Appeal for Ontario in the case of York University v. Markicevic, 2018 ONCA 893 (CanLII).
“A fiduciary who knows about wrongdoing committed against the beneficiary has a duty to tell the beneficiary.” That important lesson was the key takeaway from a decision of the Court of Appeal for Ontario upholding a termination of employment for just cause: Dunsmuir v. Royal Group, Inc., 2018 ONCA 773 (CanLII)
Will an arbitration clause in independent contractor agreement always be found to be illegal, if, notwithstanding that to which the parties ostensibly agreed, the worker can later allege that he is, in fact, an “employee”?
A cursory reading of the Court of Appeal for Ontario’s decision in Heller v. Uber Technologies Inc., 2019 ONCA 1 might lead those who do not practice in the area of employment law to conclude that the answer is “yes.”
I might not be so sure.
Can a company, which ostensibly deems all of its workers to be “independent contractors”, require those workers to arbitrate their issues, including the issue of whether or not they are, in fact, “employees”? Or, is such an agreement an attempt to contract out of the protections afforded to employees by virtue of the Employment Standards Act, 2000? In addition to, or in the alternative to, such a question, is such a clause “unconscionable”?
In the fist decision issued by the Court of Appeal for Ontario in 2019, Heller v. Uber Technologies Inc., 2019 ONCA 1, Ontario’s top court found that: (a) Uber’s arbitration clause amounts to an illegal contracting out of an employment standard; and (b) such clause is also unconscionable at common law.
Why does one think this ride isn’t over yet?
Can an employee extinguish his statutory right to severance pay by way of a full and final release signed in the context of a share sale?
According to a 2018 decision of the Court of Appeal for Ontario, Kerzner v. American Iron & Metal Company Inc., 2018 ONCA 989 (CanLII), the answer to that question is a resounding “no.”
The case has real implications for those who practice employment law in the context of the sale of a business.
It is a well-known fact that employers must provide their employees with “reasonable notice” of the termination of their employment. But, is there a qualitative component as to what is “reasonable”, in addition to a quantitative component?
In the case of Wood v. CTS of Canada Co., 2017 ONSC 5695, the Honourable Justice John R. Sproat, ruled that there was. Later, and for reasons reported as Wood v. CTS of Canada Co., 2018 ONCA 758, the Court of Appeal for Ontario agreed that not all notice periods are created equal.
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.
You know what’s fun? Trying to make sense of whether the court is going to give effect to a contractual termination clause. And, in the case of Amberber v. IBM Canada Ltd., 2018 ONCA 571, the Court of Appeal for Ontario was once again asked to do just that.
As set out by Justice Douglas K. Gray, sitting ad hoc, put it in the court’s introductory words to its reasons for decision:
The issue in this case is the enforceability of a termination clause in a written contract of employment. On a motion for summary judgment brought by the employer, Justice Hebner [Justice Pamela L. Hebner of the Superior Court of Justice] held that the termination clause was ambiguous, and did not clearly set out an intention to deprive the respondent of his entitlement to damages at common law. She held the clause to be unenforceable and dismissed the motion.
The employer, IBM, was successful on appeal.
“Is a taxi company liable for a sexual assault allegedly committed by one of its drivers, absent any fault on its part?” That was the question that the Court of Appeal for Ontario answered in the case of Ivic v. Lakovic, 2017 ONCA 446.
The court’s answer, which affirmed an answer from the Ontario Superior Court, was “no”.
Consider this scenario: An employee is covered for long-term disability (LTD) benefits under his employer’s group policy of insurance. He sustains a head injury, but does not immediately appreciate the seriousness of the same. Three years later he quits the job that provided LTD coverage. Two years after that, he makes application for LTD benefits under his former employer’s policy. Is he still covered?
If you said “of course not”, you would be wrong. In the case of MacIvor v. Pitney Bowes, 2018 ONCA 381, Ontario’s top court ruled that the employee was not only eligible to make application for such benefits, the insurance company was required to respond and pay.
In the 1997 movie “Wag the Dog” the spin doctors hired to get the President re-elected release an ad campaign with the slogan “Never change horses in mid-stream.” That idiom serves as a powerful and important reminder for employers that might seek to change the terms of an employee’s employment during a period of so-called “working notice.”
In a short decision released by the Court of Appeal for Ontario, Nufrio v. Allstate Insurance Company of Canada, 2017 ONCA 948 (CanLII), Ontario’s top court reinforced this principle.
Silence is golden. According to that proverbial saying it is sometimes better to say nothing than to speak.
So what does this ancient saying, and 1964 The Four Seasons’ B-side, have to do with employment law? In short, in Nemeth v. Hatch Ltd., 2018 ONCA 7 (CanLII), the the Court of Appeal for Ontario essentially said as much when it comes to termination clauses.
Everyone knows that in the classic children's game, Rock, Paper, Scissors, scissors beat paper. But can scissors beat statutes?
To the point, can a trial judge use a severability clause to excise the offending portion of a termination provision, keeping the remainder of such provision enforceable? While that question might seem highly academic, it is one of critical importance to anyone employed pursuant to the terms of a written employment contract.
In North v. Metaswitch Networks Corporation, 2017 ONCA 790 (CanLII), the Court of Appeal for Ontario finally laid to rest both this issue and its earlier decision in the much-maligned case of Oudin v. Centre Francophone de Toronto, Inc., 2016 ONCA 514.
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“The motion for leave to appeal is dismissed with costs fixed at $1,000.” With those thirteen simple words, Ontario’s top court has confirmed that employees in Ontario may sometimes be required to submit to an invasive medical examination - by a doctor of their employer’s choosing - as part of the duty to accommodate and return to work process.
On August 25, 2017, the Court of Appeal for Ontario released its endorsement on a motion for leave [read: “permission”] to appeal the decision of the Ontario Divisional Court in Bottiglia v Ottawa Catholic School Board, 2017 ONSC 2517 (CanLII).
This is a big deal for Ontario employment and human rights law.
(c) istock/AtnoYdur
“If a [termination] provision’s application potentially violates the ESA at any date after hiring, it is void.”
In a very short endorsement released by the Court of Appeal for Ontario on April 5, 2017, Covenoho v. Pendylum Ltd., 2017 ONCA 284, Ontario’s top court confirmed what many of Ontario’s employment lawyers having been saying for years now: a poorly drafted employment agreement is going to prove costly.
