Thursday 2 September 2021

It's good to be home.

Hi.

On April 1, 2019, I published a post to this blog titled “Hi. I have some news.” In that post I announced that, “As of April 1, 2019, I am no longer practicing in private practice. I have joined Canopy Growth Corporation in the position of Director, Legal (Litigation and Employment).”

Given the date of April 1, many people assumed I was joking. Many assumed my post was an elaborate April Fools Day prank. Several commented there was “no way” I would ever leave private practice.

That announcement was not an April Fools Day prank. For the past nearly two and a half years I have been employed by one of the most dynamic and fast-moving corporations in Canada. It has been a whirlwind and I am grateful for the experience in ways best described in person.

But, those who believed there was no way I could leave private practice weren’t entirely wrong either.

And so it is with mixed emotion, at least one of which is excitement, that I am pleased to announce that effective Tuesday, September 7, 2021, I will be returning to private practice with Kelly Santini LLP in Ottawa.

My practice will continue to focus on employment law, including strategic advisor to employers, and litigation for all parties with an emphasis on wrongful dismissal, workplace harassment, and workplace accommodation issues. I am also expanding my offerings to include commercial litigation, workplace harassment investigations, and strategic employment law advice on mergers, acquisitions, and dispositions.

These past two and a half years have afforded me so many opportunities to see and experience things I never thought imaginable. I have been exposed to litigation and employment law issues literally the world over. So, while I am grateful to Canopy Growth for the opportunity, I look forward to sharing the knowledge obtained through those experiences with a larger client base.

It's good to be home.

Thursday 5 August 2021

Complainant in Sexual Assault Claim Compellable as Employer’s Representative on Examinations for Discovery in Wrongful Dismissal Claim

Is it “oppressive” to compel an unwilling complainant in a sexual assault and harassment matter to be examined for discovery when he is not a party to the underlying lawsuit and when his version of events has already been made available to the plaintiff in the form of his written complaint?

In Mohotoo v Humber River Hospital, 2021 ONSC 4894 (CanLII), Master Lisa La Horey of the Ontario Superior Court held that, on the basis of binding case law, the legal answer is that it is not “oppressive.”

Saturday 31 July 2021

Court Awards Moral Damages for Employer’s Failure to Guarantee Minimum Statutory Entitlements on Termination

Does an employer’s failure to confirm that an employee will unconditionally receive their minimum statutory entitlements on termination, if that employee rejects the employer’s “without prejudice” offer to settle their severance claim, warrant an award of moral damages?

In Russell v. The Brick Warehouse LP, 2021 ONSC 4822 (CanLII), Justice Susan Vella of the Ontario Superior Court held that it did.

Saturday 10 July 2021

Pointe Finale! Calculation of "Payroll" for Severance Purposes Not Limited to Just Ontario: Divisional Court

Section 64(1)(b) of the Ontario Employment Standards Act, 2000 requires an employer who severs an employment relationship with an employee to pay severance pay to the employee if: (a) the employee was employed by the employer for five years or more; and (b) the employer “has a payroll of $2.5 million or more.”

The question of how to calculate the employer’s payroll, specifically whether one is to consider the employer’s global payroll or only the employer’s Ontario-based payroll has (for some reason) continued to be a source of confusion.

In Hawkes v. Max Aicher (North America) Limited, 2021 ONSC 4290 (CanLII), the Ontario Divisional Court (Dambrot, Lederer and Favreau J.J.) has finally, hopefully, laid the question to rest.

Monday 7 June 2021

Infectious Disease Emergency Leave *Does* Oust Common Law Constructive Dismissal

Does Infectious Disease Emergency Leave under the Employment Standards Act, 2000, S.O. 2000, c.41 oust the common law of constructive dismissal or were employees ostensibly placed on leave actually terminated?

If that question sounds familiar, it is because that is the question answered by the case of Coutinho v. Ocular Health Centre Ltd., 2021 ONSC 3076 (CanLII), about which I blogged in my post Infectious Disease Emergency Leave Does Not Oust Common Law Constructive Dismissal.

Problem is, there is a new decision, Taylor v Hanley Hospitality Inc, 2021 ONSC 3135, which reaches the opposite conclusion.