Thoughts from a Management Lawyer: Labor & Employment Law

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Labor & Employment Law

Thoughts from a Management Lawyer

Commentary and discussion of current and topical Canadian labour and employment law issues by a management-side labour and employment lawyer.

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Last Entry: May 09, 2013 at 21:16:37

Reprisals Under the Employment Standards Act, 2000

Posted on May 09, 2013
This is the second in a (broken) series of posts about reprisals. This time, reprisals under section 74 of the Employment Standards Act, 2000 which reads as follows: No employer or person acting on behalf of an employer shall intimidate, dismiss or otherwise penalize an employee or threaten to do...

A Milestone Blog Anniversary That, Not Surprisingly, I Missed

Posted on May 03, 2013
I just realized that I've been writing this blog for 10 years. While I honestly don't pay all that much attention to these sorts of things, I can't believe where the time has gone. I have tried to resist the temptation to take a walk down what has proven to...

Ministry of Labour Releases OHS Supervisor Workbook and Employer Guide

Posted on April 30, 2013
The Occupational Health and Safety Act is built upon the Internal Responsibility System. Put colloquially, health and safety in the workplace is everyone's business. Supervisor have a key role and responsibility under the legislation and the Ontario Ministry of Labour has just released the ?Supervisor Health and Safety Awareness in...

Reprisals under the Human Rights Code

Posted on April 29, 2013
The next two posts will deal with reprisals under statutes (specifically the Human Rights Code and the Employment Standards Act, 2000). The cases I will discuss are recent and were decided in favour of the complainant. They provide important lessons for employers...

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Should I Stay or Should I Go? The BCCA Weighs In

Posted on April 25, 2013
While easy to express, the test for determining whether a particular change in the terms of employment amounts to a constructive dismissal is practically complicated. Furthermore, under what circumstances is an employee required to remain at work under the altered employment terms in mitigation of his or her damages arising...

Wilful misconduct, disobedience or wilful neglect of duty under the ESA

Posted on March 26, 2013
The Employment Standards Act, 2000 provides that an employee who is terminated for wilful misconduct, disobedience or wilful neglect of duty is not entitled to be paid statutory termination pay and, if applicable, severance pay. The Ontario Labour Relations Board in Hallmark Housekeeping Services Inc...

Does the Court Have Jurisdiction? A Common Question in Labour Relations

Posted on March 21, 2013
Where do you go for a remedy? This is a question I get asked frequently by my students and clients. It is one that is sometimes difficult to answer, but with increased clarity, courts and administrative tribunals have carved out their turf and the rules that will be applied to...

Constructive Dismissal Pendulum Continues to Move the Way of the Employer

Posted on March 18, 2013
Constructive dismissal cases remain ?high risk? for employees as the most recent case on the issue, Meyers v. Chevron Canada Limited, 2013 BCSC 420 (CanLII), demonstrates. The employee (plaintiff) must establish, as a threshold matter, that he or she was constructively dismissed...

Limiting and Controlling Picketing During a Lawful Strike

Posted on March 15, 2013
The Ontario Superior Court in Sobeys Inc. v. United Food and Commercial Workers Canada, Local 175[2013] O.J. No. 803 provided written reasons in a motion for an interlocutory injunction to restrain picketing activities arising out of a lawful strike. The United Food and Commercial Workers Canada, Local 175 (the ?Union?)...

Who Is the Employer under the Labour Relations Act, 1995?

Posted on March 13, 2013
Although this may seem like a simple and straightforward question, the analysis can be complicated. How does the Ontario Labour Relations Board ("OLRB") go about deciding which of two (2) companies is the employer of certain employees who are subject to an application for certification? The most recent case to...

Ontario Government Introduces Family Care Leave Bill

Posted on March 11, 2013
The Ontario Government introduced a Bill on March 5, 2013 that, if passed, would amend the Employment Standards Act, 2000 to ?provide unpaid job-protected leave for employees while they care for sick or injured loved ones or cope with the illness or loss of a child"...

Is an employee entitled to be paid the wage of a higher-rated classification?

Posted on March 08, 2013
This is a common question in unionized workplace and the answer will depend, of course, not only on the particular wording of the collective agreement but on the underlying facts. The recent case Nova Scotia arbitration award in Canadian Union of Public Employers, Local 3698 v Colonial Community Services, (2013)...

Reasonable Prospect of Success and Removing Personal Respondents from Human Rights Applications

Posted on March 07, 2013
The Ontario Human Rights Tribunal in Klumpenhouwer v. Lowe?s Companies Canada, ULC, 2013 HRTO 330 (CanLII) recently considered whether to dismiss an Application under the Human Rights Code because there was no reasonable prospect that the Application or part of the Application will succeed...

Standard of Proof in Labour Arbitration

Posted on March 05, 2013
While it may seem somewhat academic, the applicable standard of proof to which the parties to a labour arbitration will be held is an important consideration and one that can have a significant impact on the outcome of the case. That said, since the Supreme Court of Canada decision in...

Intersection of Deemed Termination and ESA Emergency Leave

Posted on March 03, 2013
There are only a handful of cases that deal with the intersection between a ?deemed termination? clause and the emergency leave provisions found in Section 50 of the Employment Standards Act, 2000 (the ?ESA?). The most recent case is Revera Retirement LP, (2013) CanLII 9071 (ON LA)...

Horseplay Serious but did not Support Discharge of Long Service Employee

Posted on February 22, 2013
Horseplay can have dire consequences and for that reason, among others, most employers prohibit any sort of rough, boisterous, or rowdy play in the workplace. A recent case involving the termination of a long-service (35 year) employee considered whether, on the facts of that case, discharge was appropriate in a...

$100,000 in Punitive Damages Awarded

Posted on February 10, 2013
The Supreme Court of British Columbia in Kelly v. Norsemont Mining Inc., 2013 BCSC 147 (CanLII) considered a wrongful dismissal claim along with a claim for punitive damages arising out of the dismissal of an employee. He alleged that the dismissal was occasioned out of his insistence that the Company...

Employee or Independent Contractor under the Employment Standards Act, 2000

Posted on January 18, 2013
The Ontario Labour Relations Board considered whether a registered massage therapist was an employee, and covered by the Employment Standards Act, 2000 or and independent contractor and excluded. Deciding whether someone is an employee or independent contractor is determined by examining the substance of the relationship, not its form...

Terminate Before or After the Holidays?

Posted on December 13, 2012
Should you terminate before or after the holidays? Check out our firm blog to read more.

Ontario Government Releases Pinto Report

Posted on November 18, 2012
Check out my firms blog on the Ontario Governments recent release of the Pinto Report on Human Rights Review in Ontario.

Employment Agreements - Language is Key

Posted on October 18, 2012
Where carefully drafted and properly entered into, employment agreements are a tremendously valuable tool for employers to bring certainty and predictability to the employment relationship. Sometimes, however, employers are surprised by the manner in which courts interpret their agreements...

Confidential Capacity under the Ontario LRA

Posted on October 13, 2012
The Ontario Labour Relations Act, 1995 defines employees who can unionize and enjoy the protections afforded by the legislation. However certain persons are excluded from the definition of employee under the Act. Specifically: .... no person shall be deemed to be an employee, (a) who is a member of the...

Should I Stay or Should I Go?

Posted on June 23, 2012
Just wrote a post at my firm's blog called "Should I Stay or Should I Go?" about the difficult decision employees face when experiencing changes in the terms of their employment and whether to quit and sue for constructive dismissal or stay in mitigation of their alleged damages and sue...

Production of Inspectors Notes under OHSA

Posted on March 23, 2012
Just wrote about the Ontario Labour Relations Board's recent decision regarding the production of an Ministry of Labour inspectors notes, photgraphs and certain other documentation in the context of an OHSA appeal. Have a read.

Forum Selection Clauses in Contracts

Posted on March 20, 2012
When drafting an employment agreement it is important to include a forum selection clause where the parties agree to the appropriate jurisdiction for hearing any dispute between them. These provisions, while not critical in every case, can prove tremendously valuable where it is not clear which of two jurisdictions is...

Characterization of Settlement Monies - Get it Right

Posted on March 19, 2012
In a decision that will likely fly under the radar, the Federal Court of Appeal in Canada (Attorney General) v. Warren, 2012 FCA 74 (CanLII) considered the ?treatment? of monies paid to an employee in settlement of a grievance. This was an application for judicial review of the decision of...

After Acquired Just Cause - Timing is Important

Posted on March 12, 2012
Employers will sometimes discover things after an employee is terminated that gives them cause for concern. Whether this post-termination misconduct amounts to ?just cause? is a complex issue. The issue was recently considered in Gillespie v. 1200333 Alberta Ltd...

Length of Service - Sometimes Not an Easy Matter

Posted on March 10, 2012
In the absence of a legally enforceable contract dealing with entitlement on termination, it has been said that an employee employed for an indefinite term may only be terminated summarily for just cause or in the absence of just cause, upon reasonable advance notice or pay in lieu of such...

Duty to Accommodate Requires a Plan

Posted on March 07, 2012
The Ontario Human Rights Tribunal did an excellent job of succinctly explaining the duty to accommodate in Black v. Etobicoke Ironworks: The duty to accommodate has procedural and substantive components. Procedurally, the employer has an obligation to take the necessary steps to determine what kinds of modifications or accommodations might...

How to Determine the Period of Reasonable Notice and What's Mitigation?

Posted on March 06, 2012
Although, on occasion, we see cases that try to tweak the way in which the period of reasonable notice at common law should be determined, in the end, the tried and true Bardal test continues to win the day and there's really no reason to change. The most recent example...

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