Supreme Court of Canada Provides Guidance on Summary Judgment: What it Means for the Suddenly Unemployed

After four years of waiting, the Supreme Court of Canada has weighed in on the proper interpretation and approach to Ontario’s Summary Judgment procedure. The decision is a game-changer for litigation.

In its unanimous decision in Hryniak v. Mauldin, 2014 SCC 7 (CanLII), authored by the Honourable Justice Karakatsanis, the Court has clearly said that the preferred route for disposition of lawsuits is not the trial as we know it.

For the reasons set out below, it is this author’s opinion that this decision will undoubtedly have a positive influence on the resolution of cases for the suddenly unemployed.

Can My Employer Reject My Doctor's Note?

(c) istock/BrianAJackson

Can your employer, a long-term disability insurer, or the Ontario Workplace Safety and Insurance Board (“WSIB”) legally reject your doctor’s note?

That is one of the most common questions asked by those employees who find themselves suddenly unemployed or without benefits. It is also a source of incredible anxiety and frustration. The answer is very complicated, and like everything in law, the correct answer is “it depends.”

Costs and the Human Rights Tribunal of Ontario

Should the Human Rights Tribunal of Ontario (“HRTO”) have the legal ability to award legal costs? Some people think so, including the Member of Provincial Parliament for Lanark--Frontenac--Lennox and Addington, the Hon. Randy Hillier.

On December 4, 2013, Bill 147 Human Rights Code Amendment Act (Awarding of Costs), 2013 passed first reading in the Ontario legislature. If passed, the amendment would grant the HRTO the discretionary ability to award legal costs of the proceeding.

Ontario Medical Association Comments on Doctors Notes

Earlier this week the Ontario Medical Association made an announcement saying that it would discourage employers from continuing to ask their employees to produce a doctor's note every time they were absent from work.

However, despite the Ontario Medical Association’s (OMA) recent statement that sick employees should not be required to provide employers with a notes from a doctor, this requirement remains at the sole discretion of each employer. So long as the sick note policy is not discriminatory in any way, (see this post from May 2013 on a Human Rights Tribunal of Ontario ruling) employers can continue to require that sick employees provide notes from doctors. Each company’s sick note policy must be specified in the company's employment policies. These policies should be explained to employees when joining the company and be easily accessible in print or electronic format.

The statement from the OMA is likely to cause some confusion amongst employees who may now feel that a sick note is no longer required. Employers who wish to continue their sick note policy should take steps to remind all employees of the policy requirements in order to avoid future disputes with staff.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.

Sean Bawden, publisher of the law blog for the suddenly unemployed, can be reached by email at sbawden@kellysantin i.com or by phone at 613.238.6321.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP, and part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice. He is a trustee of the County of Carleton Law Association.

Non-Competition Clause and Injunctions: Beware What You Sign

Will the Ontario courts enforce a non-competition agreement and grant an injunction if the employee signs an agreement without legal advice? In one of the first cases released in 2014, the Ontario Superior Court of Justice has said yes.

How Long Does an Employee Have to Sue for Unpaid Commission Payments?

How Long Does an Employee Have to Sue for Unpaid Commission Payments?

How long does an employee have to sue for unpaid commission payments in Ontario? Simple; two years. Two years from what date? That was the question that the Court of Appeal for Ontario was recently asked to resolve in the case of Ali v. O-Two Medical Technologies Inc., 2013 ONCA 733 (CanLII).

The High Price of Free Employment Law Advice

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.

Benefits for Sick Employees

There are few good reasons to find oneself suddenly unemployed. However, of all the reasons to find oneself suddenly unemployed, the worst must be because one is sick.

This post will look at how to replace (at least in part) the income stream lost when an employee must focus his or her efforts on, and devote his or her time to, getting better rather than working.

Wrongful Dismissal Damages Carry Punitive Elements: ONCA

Ask most Ontario employment lawyers what the purpose behind reasonable notice is and the answer that you are likely to receive is that it is intended to afford a dismissed employee the opportunity to go from one job to another. Indeed, the calculation of reasonable notice, at least as I always understood it, is the period of time it should take an employee to find new work following dismissal.

So with those comments in mind, I was somewhat shocked when I read the Court of Appeal for Ontario writing that wrongful dismissal damages have a "punitive element" to them.

The question for readers of this blog is: did the Court of Appeal get it right?

ONCA Upholds 15-Day Termination Provision - Important Lessons for the Suddenly Unemployed

In a decision that still leaves this employment lawyer scratching his head, the Ontario Court of Appeal upheld a decision of the Ontario Superior Court of Justice that a termination provision that permitted an employment agreement to be terminated on just 15 days' notice was valid and enforceable.

In its appeal book endorsement in Musoni v. Logitek Technology Ltd., 2013 ONCA 622, the Court of Appeal held:

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.

Judge Orders NFU-O Accredited as GFO

In a decision released October 16, 2013, the Ontario Superior Court of Justice, under the pen of the Honourable Mr. Justice Robert N. Beaudoin, ordered the Ontario Agriculture, Food and Rural Affairs Appeal Tribunal to accredit the National Farmers Union - Ontario as a 'general farm organization' pursuant to the provisions of the Farm Registration and Farm Organizations Funding Act, 1993, S.O. 1993 c. 21. The full text of the decision can be found here: National Farmers Union - Ontario v. Ontario (Agriculture, Food and Rural Affairs Appeal Tribunal), 2013 ONSC 6452.

For those wondering why an employment law blog would consider such a case, there are two reasons: First, yours truly represented the National Farmers Union - Ontario; and second, the court's decision was based on judicial review. Judicial review is commonly used as a check on the decisions made by administrative tribunals such as the Human Rights Tribunal of Ontario (HRTO), the Workplace Safety and Insurance Appeals Tribunal (WSIAT), and the Ontario Labour Relations Board (OLRB), amongst many others. Indeed some of the precedents relied upon by the court were labour and employment cases and the court's decision in this case could be equally applicable in future judicial reviews of labour and employment cases.

Hotel Employee Gets Early Check-out from Ontario Lawsuit

If an employee works in the United States for a multinational corporation with its corporate head office in Ontario, can that employee sue her former employer in the Ontario courts for wrongful dismissal and violations of the Ontario Human Rights Code when she gets fired?

While the typical law answer will always be "it depends," in a decision released earlier this year, Sullivan v. Four Seasons Hotels Limited (2013), 2013 ONSC 4622, 116 OR (3d) 365, the Honourable Justice Sandra Chapnik of the Ontario Superior Court of Justice held that at least one employee could not.

Caveat Venditor - Non-Competition Agreements in Asset Sales

Can a five-year non-competition agreement be legally enforceable? If it is attached to the sale of a part of your business it can be, says the Supreme Court of Canada.

In the most recent of decisions from the highest court concerning non-competition agreements and restrictive covenants, Payette v. Guay inc., 2013 SCC 45, released September 12, 2013, the Supreme Court of Canada affirmed that non-competition agreements negotiated in the context of a sale are different from non-competition agreements included in a simple employment agreement.

If A Worker Falls in the Forest and No One is Around to See It, Does He Still Get WSIB Benefits?

What happens when an Ontario worker, covered by Ontario's workers' compensation program, gets hurt at work, but no one is around to witness it? Unfortunately, this question is all to relevant as more and more Ontario workers are asked to work alone in potentially dangerous situations.

In a decision released July 2, 2013 by the Ontario Workplace Safety and Insurance Appeals Tribunal (the "WSIAT"), Decision 570/13, 2013 ONWSIAT 1423 (CanLII), the WSIAT affirmed the approach set-out in Decision 835/11 to deal with circumstantial evidence of proof of a workplace accident.

Ontario Superior Court Awards Human Rights Damages

After years of waiting, the first decision from an Ontario Superior Court judge to award damages pursuant to section 46.1 of the Ontario Human Rights Code was published to CanLII on September 12, 2013. Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799, a decision of the Honourable Mr. Justice A. Duncan Grace concerned a claim for wrongful dismissal damages plus a claim for damages pursuant to the Human Rights Code.

Opportunities Look A Lot Like Hard Work

On September 18, 2013, Andrew Coyne wrote a provocative opinion piece for the National Post on the issue of unpaid internships: "If unpaid internships are exploitation, why don’t the kids just stay home?" In his essay Mr. Coyne advances the thesis that unpaid internships "are the job equivalent of a small-cap growth stock — no dividends, but the promise of heady capital gains in future." Essentially, the argument advanced by Mr. Coyne is that the reason some people elect to take up an unpaid internship is for the opportunities that are opened by so doing and they should be free to do so without interference.

But, Mr. Coyne's position got me thinking: are these internships really an opportunity for career advancement or are they, as others, such as Toronto labour lawyer Andrew Langille, argue, exploitation? Incredibly, I found myself thinking about something actor Ashton Kutcher said at 2013 Teen Choice Awards.

Hard Times: Economic Downturn, Judicial Discretion and the Duty to Mitigate

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.

Co-op Student Owed Wages Despite Agreement

A short decision from the Ontario Labour Relations Board, Sandhu v Brar, 2013 CanLII 43024 (ON LRB) confirmed that even if an employer and employee agree that an unpaid intern will not be paid for his labour, if the work performed looks more like labour than training wages can still be owed to the employee.

Like a Boss: the Managerial Exception to Overtime Pay under the Ontario Employment Standards Act

A short while ago, someone who follows me on Twitter reached out to me looking to ask me questions about practising employment law in Ottawa. Having a rough idea of who this individual was, I agreed to meet him to discuss the market and opportunities that might exist. I was impressed not only by his initiative to reach out to me but by his accomplishments while articling. Accordingly, I advised him that if he took the further initiative to write a guest post for this blog I would post it. Mr. Daniel Pinsky upheld his end of the bargain, so, in upholding my end, below one will find his post, which he titled Like a Boss: the Managerial Exception to Overtime Pay under The Ontario Employment Standards Act.

Nanny's Failure to Supervise Children Not Just Cause for Termination of Employment

(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.