Unrelated Employers Do Not Create Continuous Employment

Taking on the employees of another business can create unexpected financial obligations for employers. For example, this blog has previously looked at cases of employers being found responsible for an employee's past year of service when that employer takes over or otherwise acquires a business, see Two Employers Under One Umbrella Both Get Soaked by Judge.

Those cases beg the question: When will an employer not be deemed responsible for ‎an employee's past years of service with another company? While the answer to that question is simple - when the two companies are wholly unrelated to one another - as the case of Paul Amaral v Verona Floors Inc., 2016 ONSC 5763 (CanLII) demonstrates, sometimes knowing when two companies are unrelated is a complicated question.

Ottawa Judge Awards $50,000 in Punitive Damages after Employer Fails to Provide Statutory Minimums and ROE

Is asserting just cause for termination where it is not warranted, failing to provide an employee with his Record of Employment (ROE), and/or his statutory minimums, all in an attempt to negotiate a lower severance amount, “reprehensible” conduct warranting the imposition of punitive damages? It is according to a decision of the Honourable Justice Pierre Roger of the Ontario Superior Court of Justice sitting at Ottawa: Morison v Ergo-Industrial Seating Systems Inc., 2016 ONSC 6725.

In a wrongful dismissal case in which the court was unable to award aggravated damages for bad faith on account of a dearth of medical evidence, Justice Roger nonetheless awarded $50,000 in punitive damages for “bad faith.”

Things may have just gotten easier for plaintiffs.

Div Court Finds No Frustration of Contract after 29-Month Disability Leave; Upholds Awards of Human Rights Damages and “Punitive” Costs

(c) istock/Hailshadow

Some decisions are just textbooks on employment law. They are ‘must read’ decisions for anyone looking to practice in this area. Boucher v Black & McDonald Ltd., 2016 ONSC 7220 is a key example of how to approach the following subjects: long-term absence; frustration of contract; human rights damages; and off-set of benefits for the receipt of long-term disability benefits.

The facts of the case are easy to understand and the statement of law is first-principles stuff. For anyone wondering what to do with an employee who has been absent from employment for a considerable period of time, here is a lesson in what not to do.

“An employer can only dismiss a probationary employee for just cause” – Why that statement may have been correct, but it doesn’t mean what you think.

(c) istock/ilyast

Does an employer require “just cause” to terminate the employment of an employee “on probation”? For the reasons that will follow, I would submit that, in Ontario, provided that the employer is provincially regulated, they do not.

I agree that my position would appear to stand at odds with the following statement made by the Honourable Justice Epstein in Mison v. Bank of Nova Scotia, 1994 CanLII 7383 (ON SC):

[43] … an employer can only dismiss a probationary employee for just cause.

Stay with me, this is about to get complicated.

Refusal to Hire Foreigners in Order to Keep the “White Man Working” both Morally Repugnant and Illegally Racist

(c) istock/numismarty

Is it “illegal” to refuse to hire an immigrant simply because he is a “foreigner”? Of course it is. That question should be an absurd way to start a post on a blog about Ontario employment law. And yet, here I am.

Since the election of Donald Trump as the president-elect of the United States, there has at least been a perception of an increase, if not an actual increase, in the number of hateful acts being perpetuated on both sides of the border. Many point to Trump’s election as a form of license to engage in such shameful, ignorant behaviour.

Typically, racism in the employment world has been more subtle. Systemic preferences have yielded predictable but less overt results.

Sometimes, however, racist motivations are patent and obvious. The case of Bouraoui v. Ottawa Valley Cleaning and Restoration, 2014 HRTO 1303 is the quintessential archetype of overt, unabashed racism in employment. I highlight this case at this time for three reasons:

1. I feel it important that Canadians stop lauding themselves as somehow above racist tendencies and address the systemic barriers in our own employment practices;
2. I feel it important to remind Canadians that the election of Donald Trump did not suddenly create racism; and
3. I feel it important to remind those who believe that they may now be permitted to engage in such ignorant behaviour that Ontario’s laws will not condone such actions. Period.