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.

Requirement that Applicants be Legally Permitted to Work in Canada on “Permanent” Basis a Discriminatory Act

Is it a discriminatory act to ask someone applying for employment whether he or she is legally eligible to work in Canada on a permanent basis?

If the answer to that question is “yes”, then what is the effect of an applicant repeatedly lying about the answer.

In a series of decisions spanning a number of years from the Human Rights Tribunal of Ontario, the answers to those questions were “yes” and “not much.”

Accommodations of Disability Not Carved in Stone

Once an employee has been afforded accommodation for his disability, is the specific accommodation set in stone forever, or can an employer alter the specific accommodation, so long as it does not do so in a way that would result in discrimination?

In City of Toronto v. Canadian Union of Public Employees, Local 79, 2019 ONSC 4045 (CanLII), the Ontario Divisional Court rejected the argument that an employer cannot alter an accommodation.

"Failsafe" Language Fails to Save Termination Provision

If a contractual termination clause provides for “the greater of” ESA entitlements and a set amount, will the guarantee of “the greater of” act as a failsafe if the rest of the provision is contrary to the provisions of the ESA?

In Andros v. Colliers Macaulay Nicolls Inc., 2019 ONCA 679 (CanLII) , the Court of Appeal for Ontario said “no.”