I have listed my “Top Five Cases of Importance to Ontario Employment Law” every year since 2012 (see: 2012, 2013, 2014.) So, with another year coming to a close it is once again time for this Ontario employment lawyer to provide his picks for the Top Five Cases of Importance to Ontario Employment Law.
What is the most important and expensive word in Ontario employment law? “Benefits.” That one single word has cost more employers more money, and created more headaches and confusion for Ontario employment lawyers over the past four-to-five years, than any other.
Why is the word “benefits” so important, expensive, and frustrating? Because there is a debate in Ontario jurisprudence as to whether the failure to specifically say “benefits” in a contractual termination provision renders the contract “void ab initio”, that is void from the start.
A decision of the Ontario Superior Court of Justice, released October 29, 2015, Oudin v Le Centre Francophone de Toronto, 2015 ONSC 6494 (CanLII), only serves to add to the confusion.
Are an employer’s financial circumstances a relevant consideration in determining the period of reasonable notice to which a wrongfully dismissed employee is entitled?
That was the issue that the Court of Appeal for Ontario had to answer in the case of Michela v. St. Thomas of Villanova Catholic School, 2015 ONCA 801.
In answering the question “no”, the court could not have been any more succinct or clear: “An employer’s financial circumstances may well be the reason for terminating a contract of employment – the event that gives rise to the employee’s right to reasonable notice. But an employer’s financial circumstances are not relevant to the determination of reasonable notice in a particular case: they justify neither a reduction in the notice period in bad times nor an increase when times are good.”
What happens when a potential employee signs a letter of offer, which letter makes reference to an employment agreement “to follow”, the terms of which agreement differ substantially from what is contained in the offer letter? Will the court uphold the terms of the full contract?
Put another way, can an employer make a basic offer of employment to a candidate, advise the candidate that he will be required to sign a full employment agreement at some later time, and then impose new terms via that full contract?
I have repeatedly answered that question in the negative, see e.g. No Changes Without Consideration, published June 2, 2012. More recently, on November 10, 2015, (and with much more authority) the Court of Appeal for Ontario, in its reasons for decision in Holland v. Hostopia.com Inc., 2015 ONCA 762 (CanLII) said exactly the same thing and for essentially the same reason.
Will the recently proposed changes to the Ontario Occupational Health and Safety Act finally bring about the workplace violence and harassment protections that so many believed would be implemented as a result of “Bill 168?” It’s possible.
For years I have been critical of the actual effects of the changes to the law brought about by Bill 168. Heralded by many at the time as a necessary change to the law, the experience of the interpretation and implementation of those changes has been grossly underwhelming.
Now the Ontario government is proposing further changes to the law by way of Bill 132, the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015. The Bill passed first reading in the Legislative Assembly of Ontario on October 27, 2015.
A reading of the proposed amendments to the law leaves one with cautious optimism that perhaps change will finally come about.
There is a cliché that crime does not pay. In the world of employment law, the most heinous crime that an employer can commit is to allege just cause for dismissal where none in warranted.
In the case of Gordon v Altus, 2015 ONSC 5663 (CanLII), the Honourable Justice Bruce A. Glass threw the proverbial book at an employer – awarding the dismissed employee $100,000 in punitive damages in addition to $168,845.00 in wrongful dismissal damages – after the employer elected to get, as Justice Glass put it, “mean and cheap” by conjuring up a cause for firing in order to save money.
Sometimes being under an umbrella is a good idea; like when it is raining. Other times, however being under the same umbrella as someone else is not such a good thing.
In employment law, the issue of whether two companies are a “common employer” or ‘stand under the same umbrella’ can be important when calculating a dismissed employee’s length of service; the same being one of the critical factors for calculating a dismissed employee’s entitlement to reasonable notice of termination.
In the case of Dear v Glamour Designs Ltd., 2015 ONSC 5094 (CanLII), the Honourable Justice S.A.Q. Akhtar held that there were simply too many interconnecting factors between two related companies to say that the two were anything but a common employer. The employers were found to be one and the same for the purposes of calculating the employee’s length of service.
