Ontario Human Rights Damages to Dismissed Breast Cancer Employee Affirmed

One may recall the story of Elsa Torrejon, who in 2009 was fired from her employer, Weston Property Management, after disclosing that she had breast cancer. The Ontario Human Rights Tribunal ordered Weston to pay Ms. Torrejon $20,000 in general damages for injury to dignity, feelings and self respect and $2,640 in special damages for loss of employment income.

Now, if Weston’s behavior was not bad enough – terminating an employee simply because she discloses a diagnosis – Weston sought judicial review of the Tribunal’s decision from the Ontario Divisional Court. In reasons for decision released March 30, 2012, 1147335 Ontario Inc., o/a Weston Property Management v. Torrejon, 2012 ONSC 1978 (CanLII), Justices Jennings, Kent and Sanderson affirmed the Tribunal’s decision awarding a further $7,000 in costs.

How Much Time Do You Have to Start a Lawsuit for Wrongful Dismissal in Ontario?

How long do you have to start a claim for wrongful dismissal under Ontario law?

While the default (and safe) answer would be two years from the date of dismissal, a 2010 decision from the Ontario Superior Court demonstrates that that may not always be the case.

Social Media and the Rule against Solicitation

As someone who both practices employment law and blogs, tweets, whatever verb Facebook becomes, a question that is often put to me by persons contemplating moving to a new employer is whether that person is entitled to change the name of his or her employer on various social media sites.

The answer is more complicated than it would first appear; and, I would submit, also remains unanswered by Ontario courts. Nonetheless, below one will find the musings of this passive observer.

Careless but not Disentitled

Just cause for termination is a thorny issue. Employers often wish to advance it as a means of reducing (hopefully to nil) their obligations to an employee on termination. However, under Ontario employment law, one can be both dismissed for just cause and entitled to termination pay and severance. A fact, I would respectfully submit, lost on many including most judges unfamiliar with the nuances of Ontario employment law.

The 2011 case of Oosterbosch v. FAG Aerospace Inc., 2011 ONSC 1538 (CanLII) succinctly demonstrates the difference.

Doctors' Notes - Better Late than Never

Doctors are very busy people.  What doctors are primarily busy with are sick people.  Unfortunately, in addition to treating to the sick doctors are asked to complete a lot of paperwork confirming that those people are sick.  What happens, however, when a doctor is late in providing the necessary information to an employee’s employer or disability insurer?  Can the employer reasonably assume that because no medical note has been provided the employee has abandoned his position?

In a decision released June 26, 2012, Canadian Office and Professional Employees Union v. Yellow Pages Group Company, 2012 ONCA 448, the Court of Appeal for Ontario made two important rulings: (1) the contextual approach in McKinley remains the appropriate approach for unjust termination cases; and (2) concerns a labour arbitrator expresses about an employee’s lack of candour in the arbitration process are not relevant to the wrongful dismissal analysis as any dishonesty on the claimant’s part at that stage played no part in the employer’s decision to terminate his employment.

Protecting Employee Reputations

Reputations are fragile things.  They take forever to build, but very little time to destroy.  In the recent case of Tipple v. Canada (Attorney General), 2012 FCA 158, reasons for decision released May 29, 2012, the Federal Court of Appeal was asked to answer the question of whether an employer has a free-standing duty to protect an employee’s reputation at the time of termination.

The answer was a “no, but...”

Fixing the Duty to Mitigate

(c) istock/AndreyPopov

Is an employee, who is terminated without cause, required to mitigate his or her loss when entitled to a fixed term of notice or pay in lieu, and the contract of employment is silent with respect to mitigation?

In reasons for decision released June 21, 2012, Bowes v. Goss Power Products Ltd., 2012 ONCA 425, the Court of Appeal for Ontario answered that question in the negative.