Moral Damages for Manner of Dismissal - Meeting the Evidentiary Burden

How much medical evidence must a party seeking damages for mental stress caused by the manner of his or her dismissal from employment, i.e. moral damages or “Wallace” damages, lead at trial in order to receive an award of the same? As with most answers in law, it would appear that the answer is “it depends.” In a recent ruling from the Ontario Superior Court of Justice sitting at Ottawa, El-Hawary v. 1202827 Ontario Inc, 2014 ONSC 5265 (CanLII), the Honourable Justice Timothy Ray held that moral damages were not appropriate without medical evidence as to the cause of the plaintiff’s suffering.

Independent Contractors and Employees on Contract – Understanding the Semantics of Ontario Employment Law

The modern English language is a powerful tool. However, it also has its challenges; synonyms, homonyms, and inexplicable exceptions to rules. (For example, try explaining to someone why the plural of moose is moose, goose is geese, and mouse is mice.) In the employment law context, the word that is most often the source of confusion and consternation is “contract.”

The purpose of this post is to look at the differences between:

• A contractor and an independent contractor
• Working on contract and working under a contract

Those terms often get commingled in everyday conversation, leading to incorrect assumptions and the aforementioned confusion and frustration. Therefore, as best as one can, given the limitations of the written word, here is a summary of the ways in which the law uses “contract.”

Why the Human Rights Tribunal of Ontario may be the Wrong Place to Plead Your Wrongful Dismissal Case

Many people who get fired while pregnant, on maternity or disability leave assume that the Human Rights Tribunal of Ontario (“HRTO”) is the logical place to turn to grieve their case. However, several recent decisions from both the HRTO itself and the Ontario courts demonstrate that that assumption may be misplaced.

While this blog has previously looked at other cases on this topic (see e.g. Human Rights Tribunal Not The Place To Ask For Severance) this post will consider a decision of the HRTO concerning an employee fired while pregnant.

How Employers Can Make Fundamental Changes to Terms of Employment

How can an employer make fundamental changes to an employee’s employment? Sometimes an employer will need to make a fundamental change to the terms of an employee’s employment, this may include changing the number of hours that an employee works, the times during which an employee will work, the position that the employee will hold, or the amount of money that the employee may receive.

While the easiest way to change the terms of an employee’s employment is to get the employee to agree, not all employees will be willing to do so. In those cases, employers will need to ensure that they follow the law concerning unilateral fundamental changes.

Resignation Does Not Relieve Employer of Statutory Obligations - Supreme Court of Canada

If an employee provides notice of his intention to resign on a future date, can his employer legally terminate his employment (i.e. fire him) before that date and not pay him? In a case concerning Quebec labour laws, Quebec (Commission des normes du travail) v. Asphalte Desjardins inc., 2014 SCC 51 (CanLII), the Supreme Court of Canada has said “non”.

Summary Judgment - Appropriate In Most But Not All Employment Law Cases

Summary judgment remains an effective and appropriate means for the resolution of wrongful dismissal cases. However, as the recently decided case of Beatty v. Best Theratronics Ltd., 2014 ONSC 3376 (CanLII) demonstrates, not all aspects of such cases are amenable to summary disposition.

Employee's Invasion of Customer's Privacy can be Employer's Responsibility

Can an employer be held legally responsible if one of its employees deliberately invades upon the privacy of the employer’s customers? That question was one of the key issues in the recently decided class action certification motion in Evans v. The Bank of Nova Scotia, 2014 ONSC 2135 (CanLII).

The case involves a class action proceeding against the Bank of Nova Scotia and one of its former employees for breaching the privacy of the Bank’s customers.

The case was filed in Ottawa and the certification motion was decided by the Honourable Mr. Justice Robert Smith of the Ontario Superior Court of Justice, sitting at Ottawa.

Sean Bawden, editor and primary author of this blog, formerly worked with plaintiff’s counsel and assisted in the formative stages of the case before transferring to Kelly Santini.

While the court did not expressly say that the answer to the question raised at the start of this post was “yes,” it did expressly refuse to say that the answer to the question is “no.”

Pardon my French: The Decision in Paquette c. Quadraspec Inc., 2014 ONCS 2431

The reasons for decision in the recently released case of Paquette c. Quadraspec Inc., 2014 ONCS 2431 (CanLII) are a necessary read for any Ontario employment lawyer.

In his reasons for decision, the Honourable Justice Paul Kane of the Ontario Superior Court of Justice sitting in Ottawa, challenges recent decisions from the Ontario courts on the issues of both contractual termination provisions and statutory severance.

The only catch? The decision is en français.

WSIAT Says Prohibition Against Mental Stress Claims is Unconstitutional

In a decision that is sure to be relied upon, scrutinized and judicially reviewed, the Ontario Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) has found that the prohibition against claims by workers for mental stress to be unconstitutional.

Accordingly, in the case considered below, the WSIAT declined to apply subsections 13(4) and 13(5) of the Workplace Safety and Insurance Act, 1997, the result of which being that an employee who made a claim to the WSIB for benefits following years of workplace harassment might actually receive WSIB benefits.

Wrongful Dismissal First Principles Affirmed by ONCA

How much weight are judges to give other wrongful dismissal decisions? According to a recent decision from the Court of Appeal for Ontario, while other decisions from the same level of court can be persuasive, they are not binding. The principle of stare decisis requires that courts render decisions that are consistent with the previous decisions of higher courts.

Time Limit to Sue for LTD Benefits

How long do you have to sue an insurance company after they deny you long-term disability (“LTD”) benefits? According to a now-reversed decision from the Ontario Superior Court of Justice, if the benefits are provided as part of a group benefits plan, as most employee benefits are, it can be as little time as the insurance company says.

In a decision released in March of 2014, Kassburg v. Sun Life Assurance Company of Canada, 2014 ONSC 1523 (CanLII), the Honourable Justice M. Gregory Ellies of the Ontario Superior Court of Justice held that a group policy of insurance, issued by an insurance company to an employer, was a “business agreement” under the law and accordingly the usual limitation period governing such policies of insurance did might not apply.

However, on December 29, 2014, the Court of Appeal for Ontario reversed Justice Ellies' decision, finding that such policies of insurance are not "business agreements" and that the time limit applicable to such claims is two years from the date such claims are "discovered." For a summary of the Court of Appeal's decision see: Court of Appeal says Group LTD Policies not "Business Agreements".

Wal-Mart Rolls Back Award of Punitive Damages

In a decision released earlier this week, the Court of Appeal for Ontario reduced an award of punitive damages against a Wal-Mart manager from $150,000 to $10,000, and against Wal-Mart itself from $1,000,000 to $100,000. In the same decision, however, the court upheld the award of $100,000 in damages for intentional infliction of mental suffering against the manager, and the award of $200,000 in aggravated damages against Wal-Mart.

Human Rights Legislation does Not Apply to Partners

In a decision released today, the Supreme Court of Canada has held that British Columbia’s Human Rights Code, RSBC 1996, c. 210 does not apply to equity partners in law firms.

Employers required to train staff under the new Occupational Health and Safety Awareness and Training Regulation

Being July 1st, 2014, every employer in the province of Ontario will need to comply with the Ministry of Labour’s new Occupational Health and Safety Awareness and Training Regulation (O. Reg. 297/13) under the Occupational Health and Safety Act (OHSA).

As first mentioned by fellow Kelly Santini LLP employment lawyer Shawn O’Connor on the firm’s business law blog Start Up. Build Up. Sell Up. in the post All Employers Required to Train Staff Under New Health & Safety Act, this new legislation may catch many employers off-guard. Past training requirements under the Occupational Health and Safety Act (OHSA) have resulted in employers focusing on employees involved in physical work and the resulting risk of injury. The new legislation states that all employees must receive the minimum required training, including white collar and clerical staff, whom employers might not have associated with having a risk of injury in the workplace.

ONSC: Employee who Lives in Ontario but Worked in Alberta Cannot Sue in Ontario

If you live in Ontario, but move to Alberta for work, can you sue for wrongful dismissal in Ontario if you get fired and then move back? That, essentially, was the question posed in the case of Christmas v. Fort McKay, 2014 ONSC 373 (CanLII).

BCCA: Refusing to Allow Employee to Work during "Working Notice" is Termination

Has an employee who is ‘walked to the door’ by his employer been fired or has he simply been subjected to a fundamental change in employment?

What if the employee was provided with “working notice” before being escorted to the door? Can someone be both: (a) escorted out of the building, told not to return, and announced as having “left the company”; and (b) an employee of that company at the same time? Or are those two positions mutually exclusive? Those were the question the Court of Appeal for British Columbia was asked to answer in the case of Allen v. Ainsworth Lumber Co. Ltd., 2013 BCCA 271 (CanLII).

Not All Employees are Entitled to Severance Pay

A common misconception among both employers and employees is that anyone who is fired from his or her job in Ontario is entitled to severance pay; that simply is not the case. However, saying that a dismissed employee is not necessarily entitled to “severance” pay does not mean that the employee is not entitled to anything. What employees are entitled to varies.

Can I get EI if I get Fired After Maternity Leave?

Can someone who gets fired shortly after returning from maternity leave receive Employment Insurance (EI) benefits?

The short answer is currently “no.” Although the answer depends on how long after returning to work the employee finds herself suddenly unemployed. (While it is legally permissible for men to take parental leave and while it is possible for those men to lose their job shortly after doing so, the reality is that this situation is far more common for women than it is for men. While the law is gender neutral and men can be effected by this law in the same way that women are, this post will be written from the perspective of new mothers.)

The Flu is Not a Disability: HRTO

Is having the flu a “disability” under the Ontario Human Rights Code? According to a decision from the Human Rights Tribunal of Ontario, the body responsible for enforcing Ontario’s Human Rights Code, the answer is no.

Proving Wrongful Dismissal Damages

In order to receive an award of wrongful dismissal damages, a dismissed employee must prove that he or she suffered damages as a result of his or her dismissal from employment. While that statement of law may seem simple and straightforward, it was the primary reason the Ontario Divisional Court set aside a $21,475 Small Claims judgment in a recent decision: Garcia v. 1162540 Ontario Inc., 2013 ONSC 6574 (CanLII)