Undertaking to Comply with the ESA does Not Displace Common Law Presumption of Reasonable Notice

Does an employer’s undertaking to “comply with its obligations under the employment standards legislation” displace the common law presumption of termination only upon the provision of reasonable notice?

In a decision released October 20, 2017, Nogueira v Second Cup, 2017 ONSC 6315 (CanLII), the Honourable Justice Edward M. Morgan of the Ontario Superior Court of Justice ruled that it did not.

Such decision is yet another in the long series of decisions to consider what it takes to contract out of such entitlement and, for the reasons that follow, it leaves this employment lawyer saying: ¯\_(ツ)_/¯

Scissors Beat Paper; Statutes Beat Scissors: Severability Clauses Can't Fix Illegal Termination Provisions

Everyone knows that in the classic children's game, Rock, Paper, Scissors, scissors beat paper. But can scissors beat statutes?

To the point, can a trial judge use a severability clause to excise the offending portion of a termination provision, keeping the remainder of such provision enforceable? While that question might seem highly academic, it is one of critical importance to anyone employed pursuant to the terms of a written employment contract.

In North v. Metaswitch Networks Corporation, 2017 ONCA 790 (CanLII), the Court of Appeal for Ontario finally laid to rest both this issue and its earlier decision in the much-maligned case of Oudin v. Centre Francophone de Toronto, Inc., 2016 ONCA 514.

Judge Gives KISS Off to Gene Simmons Discrimination Claim

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Can you sue someone in Ontario civil court exclusively for discrimination under the Ontario Human Rights Code? Definitely not, according to a decision of the Ontario Superior Court of Justice sitting at Ottawa involving Gene Simmons and a KISS concert: Lee v Simmons et al., 2017 ONSC 4980.

Inconvenience Damages Awarded after Company’s Failure to File Record of Employment on Time

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What is the penalty if a company fails or refuses to file a Record of Employment on time?

While cases involving government sanction for failing to properly file an ROE appear to be few, in the civil case of Ellis v Artsmarketing Services Inc., 2017 CanLII 51563 (ON SCSM), an Ontario Small Claims Court Deputy Judge awarded money damages for such inconvenience.

Supreme Court Upholds Termination for Violation of Anti-Drug Policy

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Can an employee be fired for violating his company’s drugs and alcohol policy, if the reason he violated such a policy was because he was addicted to an illegal drug?

For many years, most Ontario employment and human rights lawyers would have hesitantly answered that question with a “probably not”. Those who practice management-side would have sighed in frustration while they provided such advice, while those who act for employees would have adamantly pointed to human rights’ legislation prohibiting discrimination on the basis of such a recognized disability.

In June of 2017, the Supreme Court of Canada released its decision in the case of Stewart v. Elk Valley Coal Corp., 2017 SCC 30 (CanLII). In that case, Canada’s top court upheld a termination of employment on the basis that the employee had breached the company’s anti-alcohol and drugs policy.