"Don't Forget: You're Here Forever" - Or Are You?

"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.

Comments on Facebook "Just Cause" for Dismissal

Can posts to one’s Facebook profile about a co-worker be grounds for “just cause” for dismissal? In yet another case from the labour world to consider this subject, United Steelworkers of America, Local 9548 v Tenaris Algoma Tubes Inc, 2014 CanLII 26445 (ON LA), Arbitrator Laura Trachuk has said “yes”.

Stated Intention to Retire May Reduce Wrongful Dismissal Damages

Can publicly announcing one’s intention to retire from employment serve to reduce an employee’s entitlement to wrongful dismissal damages if the employee is later terminated without cause?

According to a decision from the Ontario Superior Court of Justice, Kimball v Windsor Raceway Inc, 2014 ONSC 3286, an employee’s stated intention to retire and therefore not look for new employment following termination "may well be relevant in assessing what constitutes reasonable notice.”

Federal Court says Terminations Without Cause are Not Intrinsically "Unjust"

Did the Federal Court’s decision in Atomic Energy of Canada Limited v Wilson, 2013 FC 733 put an end to federally regulated employees’ complaints of unjust dismissal?

For the reasons that follow, I argue that it did not – although the decision did certainly curtail the opportunity for employees to complain of having been unjustly dismissed.

Judge says 30-Day Notice Provision is Okay

For years this blog has taken the position that if a termination provision in an employment contract does not technically violate the provisions of the Ontario Employment Standards Act, 2000 at the time of termination, but has the potential to do so at other times, it is legally unenforceable at all times. Period. For my earlier commentary on this subject see Poorly Drafted Employment Agreement Proves Costly.

The position and statement of law is premised upon a decision made by the Honourable Justice Wailan Low of the Ontario Superior Court of Justice: Wright v. The Young and Rubicam Group of Companies (Wunderman), 2011 ONSC 4720 (CanLII).

A more recent decision from the same court, this time authored by the Honourable Justice David Price, Ford v. Keegan, 2014 ONSC 4989 (released August 28, 2014) specifically rejects Justice Low’s decision on this point.

Lying About Credentials on Résumé is Not Just Cause

Is overstating one’s credentials as a salesperson and then failing to complete a single sale of the employer’s wares within 40 days of commencing employment “just cause” to terminate an employee’s employment? As infuriating as it may sound to some employers, according to a decision from the Provincial Court of British Columbia, Lura v. Jazz Forest Products (2004) Ltd., 2014 BCPC 247 (CanLII), the answer is “no, it is not just cause.”

Dispute about Availability of Similar Employment Grounds to Dismiss Plaintiff’s Summary Judgment Motion

Will summary judgment be appropriate in a wrongful dismissal action if the issue of the plaintiff’s mitigation efforts are hotly contested? According to a 2013, pre-Hryniak decision, the answer can sometimes be “no.”

In a case where the primary concern was that of availability of similar employment, the Ontario Superior Court of Justice refused to grant summary judgment in an otherwise straightforward wrongful dismissal matter.

Ontario Court Awards Four Months Notice to Employee Fired while “On Probation”

Are employees whose employment is terminated while “on probation” entitled to common-law reasonable notice? A Small Claims Court decision from 2012, Cao v. SBLR LLP (2012), 217 A.C.W.S. (3d) 871, 26 D.E.L.D. 172 (ON SCSM), serves as an important reminder that the answer from Ontario’s courts can sometimes be a resounding yes.

More is Required for a Human Rights Case than Simple Unfairness

Does being treated unfairly in employment and simply having a disability, being a member of a visible of invisible minority, or otherwise being protected by the provisions of Ontario’s Human Rights Code entitle one to bring an application before the Human Rights Tribunal of Ontario?

A recent appeal decision from Ontario’s Divisional Court, Hay v. Ontario (Human Rights Tribunal), 2014 ONSC 2858 (CanLII) affirmed that the answer is no.

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.

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.

Ontario Court Says When it Comes to Severance Packages 'A Deal is a Deal'

Can an employer refuse to pay out a severance package after it offers it to an employee and the employee agrees to accept it? That was essentially the question that the Ontario Superior Court of Justice was asked to resolve in the case of Dennis v. Ontario Lottery and Gaming Corporation, 2014 ONSC 3882 (CanLII).

According to the Honourable Justice Brian P. O’Marra, a deal is a deal.

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.

Answering the Question "Can my employer..."

“Can my employer…” those three little words are the most common start to any question asked of an employment lawyer by a worker. “Can we” is the most common start to questions asked of an employment lawyer by management. The purpose of this post is to address the issue of what employers can do and what am employee’s rights and response can be.

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.

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.

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.

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)

SCC: Pension Benefits Cannot be Deducted from Wrongful Dismissal Damages

Are defined benefit pension benefits deductible from wrongful dismissal damages? According to a majority of the Supreme Court of Canada, the answer is no, they are not.

In its decision in IBM Canada Limited v. Waterman, 2013 SCC 70 (CanLII) seven of this county’s nine Supreme Court Justices (LeBel, Fish, Abella, Cromwell, Moldaver, Karakatsanis and Wagner JJ.) agreed that pension benefits are not properly deductible from wrongful dismissal damages. Justice Rothstein and Chief Justice McLachlin disagreed.