Can an employee extinguish his statutory right to severance pay by way of a full and final release signed in the context of a share sale?
According to a 2018 decision of the Court of Appeal for Ontario, Kerzner v. American Iron & Metal Company Inc., 2018 ONCA 989 (CanLII), the answer to that question is a resounding “no.”
The case has real implications for those who practice employment law in the context of the sale of a business.
Is the sole requirement to rebut the common law presumption of termination only upon reasonable notice that the contractual termination clause comply with the ESA, or is something else required?
In a decision released December 6, 2018, Movati Athletic (Group) Inc. v. Bergeron, 2018 ONSC 7258 (CanLII), the Ontario Divisional Court (Swinton, Thorburn, and Copeland JJ.) upheld an earlier decision of the Honourable Justice O’Bonsawin, 2018 ONSC 885, about which I blogged in my post Lack of Clear Warning Voids Termination Provision, which held something more is required.
In addition to upholding Justice O’Bonsawin’s decision, the Divisional Court provided some very clear, point-by-point analysis on what it takes for a contractual termination clause to sufficiently, and legally, rebut that common law presumption.
On November 22, 2017, the Ontario Government, then headed by Liberal premier Kathleen Wynne, passed Bill 148, the Fair Workplaces, Better Jobs Act, 2017, S.O. 2017 C.22. For my summary of the changes to Ontario employment law brought into effect by Bill 148 see my post Bill 148 and Changes to the Employment Standards Act, 2000.
Nearly one year later to the day, November 21, 2018, the Ontario Government, now under a Conservative government, passed Bill 47, the Making Ontario Open for Business Act, 2018, S.O. 2018, C.14. The Bill received Royal Assent the same day. Unless otherwise stated, the changes to the ESA are effective as of January 1, 2019.
A major effect of Bill 47 was to undo much, but not all of what had been introduced by Bill 148.
So what changes as of January 1, 2019?
2018 has been, compared to some other years, relatively quiet with respect to employment law jurisprudence. Sometimes that can be a good thing.
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:
And 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 appropriate notice period for a 62 year-old, 37 years tenured Senior Vice President, who is terminated without cause and left without any comparable employment opportunities?
According to the decision of the Honourable Mr. Justice D.J. Gordon of the Ontario Superior Court of Justice in Dawe v. Equitable Life Insurance Company, 2018 ONSC 3130, a minimum of 36 months.
Can an employee sue her former supervisor for sexual harassment if she has signed a Full and Final Release in favour of her former employer?
In the case of Watson v. The Governing Council of the Salvation Army of Canada, 2018 ONSC 1066 (CanLII), the Ontario Superior Court of Justice ruled that she might not be precluded by the release.
Can an employee sue her employer if she is sexually assaulted at work by a co-worker? In a decision by the Ontario Workplace Safety and Insurance Appeals Tribunal (the “WSIAT”), Decision No. 3096/17, 2018 ONWSIAT 1563 (CanLII), the answer was once again, “not if the employee is entitled to WSIB benefits.”
