A frequent question asked of this Ottawa employment lawyer is "how much does it cost to retain an employment lawyer?" While the true answer is "it depends," often an equally true answer is "a lot less than not retaining one."
Demonstrating that sometimes the adage 'you get what you pay for' is true is the story in the Toronto Star of two employees suing the Ontario Ministry of Labour ('the Labour Board') after receiving some free employment information about their rights following termination.
The employment contract between the appellant and the respondent was clear in providing for 15 days’ notice in order to terminate. The appellant was given pay in lieu of notice with accordance with the agreement, as found by Morgan J. We see no error in Morgan J.’s conclusions. The appeal is therefore dismissed with costs fixed at $3,500 inclusive of disbursements and HST.The above was the entirety of the Court of Appeal's decision. Such a short decision left this author wondering what more could be gleaned from the trial decision. A review of that decision left this author upset that the plaintiff employee had not sought (or followed) professional legal advice.
A few weeks ago this blog afforded an opportunity to an individual looking for work in employment law to write a guest blog post. Perhaps not surprisingly, following that post I was contacted by others in a similar situation looking to be afforded a similar opportunity.
This blog and, more to the point, Sean Bawden, are humbled by the success of this blog and by the request from others to write guest posts for it. Having given the issue some thought, the blog will continue to post articles by those looking for work in the employment law field in Ontario - provided that the posts meet certain quality standards. Whether those posts move to a separate page is an issue that will have to be considered; for now, they will appear on the main page.
What follows, then, is a post written by Paul Willetts on the subject of the duty to mitigate in today's economy. Commentary by this blog will follow and any comments by this blog are added in square brackets.
(c) istock/Bicho_raro
In a case sure to surprise some working parents, an Ontario Deputy Judge has ruled that the failure of a nanny to supervise a two-year-old child and a four-and-one-half year old child was not just cause for dismissal.
The case was argued in the Ontario Small Claims Court, with the threshold issue being whether the employer parents had just cause for dismissal. In finding that the parents did not have just cause, Deputy Judge Z. Jack C. Prattas held that there was conflicting evidence on the critical point of whether the children were being properly supervised. Deputy Judge Prattas's reasons for decision can be found on CanLII at: Pascua v Khul-Schachter, 2013 CanLII 47860.
There is no shortage of ways to structure a severance package. A common way for employers to attempt to terminate an employee's employment, while keeping cash flow in check, is to provide the dismissed employee with "salary continuance," i.e. payment of salary over a period of time, rather than paying the employee a lump sum. A question that I am often asked is, can the employer legally require the employee to accept salary continuance?
Like most of the answers in our series Answers to Common Questions, the answer is "it depends"
(c) istock/pixelheadphoto
If you get fired and your employer offers a severance package what happens if you think, or are told, that the package is not fair or reasonable? The short answer is that you should advise your employer that you are rejecting their offer and want to be paid more. But, as I am often asked, does that mean that the employee may end up getting nothing?
The answer to the question, "If an employee rejects a severance offer will he or she get nothing?", is almost certainly "no."
What is a "volunteer" under Ontario employment law? The question is more complicated than it might first appear. Most people know what a volunteer is: it is someone who freely gives of their time, usually towards some altruistic purpose. But what is the difference between a "volunteer" and a wrongfully unpaid worker?
Can an independent contractor receive Employment Insurance ("EI", formerly "UI") benefits when he is fired from his position?
While the answer should be no, the real answer -like everything in law- is "it depends."
As regular readers of this blog will know, this blog has long taken issue with the Court of Appeal for Ontario's decision in Piresferreira v. Ayotte, 2010 ONCA 384 (CanLII). The court's decision - that employees cannot sue for an employer's negligent infliction of mental suffering - has previously been considered in the post Tort Damages Place in Wrongful Dismissal Cases.
Although I have previously argued that the Piresferreira decision was legally wrong and, in fact, contrary to other appellate decisions including Sulz v. Canada, 2006 BCCA 582 and Queen v. Cognos, (the Supreme Court of Canada did not disturb or address the trial judge's award of $5,000 in damages for "emotional stress" in its decision in Queen v. Cognos Inc., [1993] 1 SCR 87,) this post will focus on a different issue: whether the decision highlights the differences to which claims of a hostile work environment can be put.
As I will argue below, it my thesis that contrary to Court of Appeal's position that it is "unnecessary and undesirable to expand the court’s involvement" into questions of a hostile work environment was wrong. While Ontario’s courts have been unwilling to accept claims of a hostile work environment when wielded as a “sword”, Ontario courts have shown that they are prepared to consider such claims when employees advance such arguments as a “shield.”
Does the existence of an employee/employer relationship disqualify an employee from patenting an invention discovered in the course of employment?
According to a 2000 decision from the Ontario Superior Court of Justice, Techform Products Ltd. v. Wolda, 2000 CanLII 22597; varied for reasons other than the issues considered in this post in 2001 CanLII 8604 (ON CA) the answer is "no."
