Thursday 6 January 2022

Advocacy for Better Advocacy: The Right to Reply Factums in Civil Cases

Should parties on civil appeals be permitted to file “Reply Factums” without seeking leave of the court?

In Prism Resources Inc. v. Detour Gold Corporation, 2022 ONCA 4, Justice David Brown of the Court of Appeal for Ontario expressed his strong preference that they should.

Tuesday 28 December 2021

Divisional Court Finds Ottawa City Council Displayed Reasonable Apprehension of Bias Against Councillor Rick Chiarelli with Respect to Complaints to Integrity Commissioner

In the period September to November 2019, six complaints were filed against Ottawa City Councillor Richard Chiarelli with the Integrity Commissioner for the City of Ottawa. The Commissioner investigated and then prepared one report in respect to three of the complaints, which were similar. The Commissioner filed the Report with Ottawa City Council on July 9, 2020. City Council considered the Report on July 15, 2020, accepted its conclusions that Councillor Chiarelli had engaged in acts of misconduct in respect to the three complaints, and imposed the maximum available penalty: suspending Councillor Chiarelli’s salary for 270 days in the aggregate. City Council also adopted a resolution calling upon Councillor Chiarelli to resign from City Council.

Councillor Chiarelli applied to the Ontario Divisional Court for judicial review of the proceedings below. He argued that the Commissioner lacked jurisdiction to investigate the complaints, showed bias against him, and denied the Councillor procedural fairness. He argued that City Council exhibited bias against him. He sought various remedies, including orders quashing the findings and sanctions against him and orders prohibiting the respondents from taking further steps against him respecting the complaints.

In its decision released December 22, 2021, Chiarelli v. Ottawa (City of), 2021 ONSC 8256 (CanLII), the Divisional Court (Morawetz C.J.O.S.C.J., D.L. Corbett and Ryan Bell JJ.):

  1. Dismissed the application as against the Commissioner, with costs payable by Councillor Chiarelli to the Commissioner fixed on a partial indemnity basis at $40,000, inclusive, payable within thirty days;
  2. Granted the application as against the City of Ottawa;
  3. Quashed the sanction decision of City Council, with costs payable by the City of Ottawa to Councillor Chiarelli fixed at 50% of partial indemnity costs, in the amount of $20,000, inclusive, payable within ten days of the date on which Councillor Chiarelli pays the $40,000 in costs he owes to the Commissioner; and
  4. Imposed a sanction on Councillor Chiarelli of suspension of salary for 270 days in the aggregate.

Sunday 12 December 2021

Top Five Cases of Importance to Ontario Employment Law - 2021 Edition

2021. Or 2020 version 2? I don’t know. 2021 was an interesting year with the pandemic absolutely a constant factor in everything we did, but also some return to normalcy.

In reviewing the decisions released this year, I was struck by how many of them actually had absolutely nothing to do with COVID. A fact that is somewhat hard to believe given its ubiquitous nature.

But, the point of this blog post 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:

Here we go…

Saturday 30 October 2021

Court Declines to Issue Injunction Preventing Terminations for Failure to Adhere to Covid Vaccination Policy – But Employers Beware

What is the court’s power to prevent an employer from terminating an employee’s employment if that worker refuses to adhere to the employer’s mandatory COVID-19 vaccination policy?

In Blake v. University Health Network, 2021 ONSC 7139 (CanLII), Justice Sean F. Dunphy said, essentially, “none.”

Friday 22 October 2021

Ontario’s Employers Have Just Cause to be Frustrated

This is an opinion piece and, yes, a bit of a rant.

Since the Ontario Court of Appeal’s decision in Waksdale v. Swegon North America Inc., 2020 ONCA 391, about which I blogged in my post Employment Law Isn’t Real, the Ontario Superior Court of Justice has taken an interest in ensuring drafters of employment contracts appreciate that there is fundamental difference between “just cause” at common law and “wilful misconduct” in Ontario Regulation 288/01, made pursuant to Ontario’s Employment Standards Act, 2000.

For example, in the recent decision in Steve Livshin, 2021 ONSC 6796 (CanLII), (released October 14, 2021,) Justice William Black writes,

“Just cause” is … as held in various cases, ... understood as a common law notion connoting a basis, from an employee’s performance or conduct, justifying termination of the employee’s employment without the need for advance notice.

As set out in various cases, “just cause” can be contrasted with the requirements of the ESA. Pursuant to O. Reg. 288/01, s. 2(1), para. 3, an employer can only withhold termination pay, severance pay and the continuation of relevant benefits in response to workplace conduct that amounts to “wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer”.

Justice is Black is absolutely correct, “just cause” is the phrase understood as a common law notion connoting a basis justifying termination of the employee’s employment without the need for advance notice. And the reason that understanding exists is because that is exactly how the court almost invariably uses the phrase. In fact, I would submit, the court has only recently started parsing the wording between “just cause” and “wilful misconduct” for the purpose of striking down employment agreements; not to provide employees who might have otherwise been entitled to statutory termination pay a greater benefit.

And that is really my problem. In its reasons for decision, the court almost invariably uses the phrase “just cause” or “cause” to define a situation in which the employer is excused from providing a dismissed employee with notice of termination of employment or payment in lieu. It almost never uses (until recently) the phrase “wilful misconduct.”

If the court is going to be particular about how parties draft their employment agreements, it could at least use the language expected in its own writing.