Top Five Cases of Importance to Ontario Employment Law - 2019 Edition

2019. What a year. In thinking about this post, I was hopeful that the title of this annual post was Top Five Decisions of Importance to Ontario Employment Law. Had the word been “decisions” and not “cases”, I might have mused about the various decisions some of us have made over the past year and how those decisions have impacted the Ontario employment law landscape. Oh well.

The point of this blog post, however, is to consider what I consider to be the “Top Five Cases of Importance to Ontario Employment Law”. I have produced such a list since 2012:

• 2012
• 2013
• 2014
• 2015
• 2016
• 2017
• 2018

As it is clearly evident that no one is getting any younger, here is this year’s list.

Time Spent as Independent Contractor Relevant Factor in Calculating Reasonable Notice

Is the amount of time spent as an “independent contractor” an appropriate fact for the court to consider when calculating the reasonable notice period if the worker later becomes either a true employee or dependant contractor?

In Cormier v. 1772887 Ontario Limited c.o.b. as St. Joseph Communications, 2019 ONSC 587 (CanLII), affirmed by the Court of Appeal for Ontario in Cormier v. 1772887 Ontario Limited (St. Joseph Communications), 2019 ONCA 965 (CanLII), Justice Paul Perell held that, it would be wrong in principle to ignore those years of the relationship in determining the reasonable notice period.

The case is an important read for those who may elect to start their relationship one way, but then change it over time.

Employees Cannot Sue for Constructive Dismissal Caused by Chronic Mental Stress: WSIAT

Can an employee in Ontario sue for constructive dismissal, if the reason the employee was forced to leave employment was because of chronic mental stress, caused by workplace bullying or harassment?

According to a 2019 “right to sue” decision from the Ontario Workplace Safety And Insurance Appeals Tribunal, Morningstar v. Hospitality Fallsview Holdings Inc. (Decision No. 1227/19), 2019 ONWSIAT 2324 (CanLII), the answer is “no.”

Hearing Racial Slur in Song Lyrics Not Prohibited Discrimination: BCHRT

Is hearing music that contains a racial slur, playing in a retail establishment, sufficient to establish discrimination under section 8 of the British Columbia Human Rights Code.

In a 2018 decision of the BC Human Rights Tribunal, Redmond v. Hollywood Boutique, 2018 BCHRT 121, the answer was “no”.

Non-Consensual Sharing of Intimate Images Grounds for Summary Dismissal

Can sharing intimate photos of one your coworkers with your friends result in the summary termination of your employment for cause?

In an unreported decision from the Ontario Ministry of Labour, the answer was a resounding “yes.”

When Worlds Collide – The Evolution of Employment Law Principles in the Termination of Independent Contractor Relationships

It is remarkable how much the law can change in as little as 14 years. In 2005, Justice Kathryn N. Feldman authored reasons for decision on behalf of the Court of Appeal for Ontario in the case of 1193430 Ontario Inc. v. Boa-Franc Inc., 2005 CanLII 39862 (ON CA). The essential holding of that case is that, “Employment law concepts such as just cause should not be imported into commercial law context to govern distributorship agreements.”

14 years later, in the case of Barresi v. Jones Lang Lasalle Real Estate Services Inc., 2019 ONCA 884 (CanLII), the two worlds could not be more intertwined.

Discretion to Depart from R.49 Costs Presumption Not Unfettered: ONCA

Does a trial judge have absolute, unfettered discretion in awarding the costs of a proceeding? To what extent does the fact that one of the parties made an offer to settle play a role in fettering the trial judge’s discretion?

In Barresi v. Jones Lang Lasalle Real Estate Services Inc., 2019 ONCA 884, the Court of Appeal for Ontario (Feldman, Fairburn and Jamal JJ.A.) held that, “The discretion to depart from the presumption as to costs in r. 49.10(1) is not unfettered and must be exercised in accordance with the purpose of the rule.” The case thus stands as an important reminder of the import of that rule.