Saturday 11 March 2023

Employee’s Surreptitious Recording of Termination Meeting Leads to Award of Aggravated Damages

“You have the right to remain silent. Anything you say can and will be used against you in a court of law.” Almost everyone has heard the “Miranda” warning.

While those rights come out of the United States and are mostly intended to apply in the criminal context, as the case of Teljeur v. Aurora Hotel Group, 2023 ONSC 1324 (CanLII) demonstrates, such warning can also be sage in the employment law context.

Sunday 5 March 2023

“Changed Substratum” Doctrine voids Executive’s Contractual Entitlement to One Year’s Severance: ONCA

Can substantial increases to one’s job responsibilities void what would otherwise be a binding termination provision in an employment contract?

In Celestini v. Shoplogix Inc., 2023 ONCA 131, the Court of Appeal for Ontario upheld the use of the “changed substratum” doctrine to void an otherwise legal, and some might even argue generous, contractual termination provision.

Saturday 25 February 2023

Just Cause Not Yet a Lost Cause. Deliberate Destruction of Company Property Proper Basis for Summary Dismissal: ONSC

Is the intentional destruction of company property cause for termination of employment without notice? Does it meet the higher burden of statutory “wilful misconduct”?

In Park v. Costco Wholesale Canada Ltd., 2023 ONSC 1013 (CanLII), a decision of the Ontario Superior Court of Justice sitting at Ottawa, the Honourable Madam Justice Robyn M. Ryan Bell held that summary dismissal was warranted.

Sunday 11 December 2022

The Trumping of Hope. The Court of Appeal for Ontario’s Merciless Approach to Contract Interpretation in Employment Law

On September 16, 2021, I published a post titled “Hope for Ontario's Employer Bar: The ONSC's Decision in Rahman v. Cannon Design Architecture Inc.” The artwork I selected for that post was the iconic “HOPE” poster used in 2008 by the Obama campaign when the then-US Senator was running for President.

“Hope” was an appropriate word to describe the employer bar’s reaction to the Superior Court’s decision in Rahman. In that case, Justice Sean F. Dunphy of the Ontario Superior Court of Justice had held that an employee’s sophistication and the fact that she had retained independent legal advice were factors in the determination of whether a contractual termination provision ought to be enforced as written.

Justice Dunphy further held, following the approach more commonly employed in British Columbia (see my commentary in my post Employment Law Isn't Real) that, “Every contract – including this one – must be interpreted with a view to giving expression to the mutual intention of the parties as expressed in the words used by them.”

The employee in the Rahman case appealed Justice Dunphy’s decision to the Court of Appeal for Ontario.

And, just as “Hope” left Washington on January 20, 2017, hope for the employer’s bar was “trumped” when the Court of Appeal released its decision in Rahman v. Cannon Design Architecture Inc., 2022 ONCA 451 (CanLII).

Saturday 3 December 2022

“Discretionary” Bonuses Contain Implied Term that the Discretion Will be Exercised in a Fair and Reasonable Manner: ONCA

If a company describes an employee’s bonus payment as being “discretionary”, with the allocation of bonuses to employees being “purely subjective” and completely bereft of any calculations, does that mean that the company can do whatever it wants in respect of such bonus?

In Bowen v. JC Clark Ltd., 2022 ONCA 614 (CanLII), the Court of Appeal for Ontario (Feldman, George and Copeland JJ.A.) held that “Where an employment agreement provides for a discretionary bonus, there is an implied term that the discretion will be exercised in a fair and reasonable manner.”