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.

Post Frequency: 1.2/day

Last Entry: March 31, 2011 at 20:36:49

Discrimination on the Basis of Family Status

Posted on November 01, 2010
I spoke a couple of weeks ago at the Human Resources Professional Association of Ontario HR Law Conference on the topic of discrimination on the basis of family status. The duty to accommodate is triggered when a complainant establishes a prima facie case of discrimination on a prohibited ground...

Where Are You? and What's Up?

Posted on October 30, 2010
Those are subject lines from two email I received recently. I looked back and could not believe that it's been over a month since I last posted which is a sign, not of lack of interest or topics to write about, but lack of time to write. The firm is....

Majority of the Divisional Court Denies Class Certification in Fresco

Posted on September 19, 2010
I have previously written about the Fresco v. CIBC overtime class action and how the Court declined to certify a class action. The basis for the motion judge's refusal to certify the action as a class action was because the action lacked the essential element of commonality...

Court of Appeal Weighs in on "Change of Control" Agreements

Posted on September 17, 2010
On September 17, 2020, the Ontario Court of Appeal overturned the decision of a applications judge who declined to award a "change of control" payment to an officer of a corporation terminated prior to the change on control. The agreement between the officer (CFO) and the corporation contained the following...

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Limitation Periods in Wrongful Dismissal Actions

Posted on September 03, 2010
The issue was considered in Webster v. Almore Trading (thanks to Ontario Rules of Civil Procedure blog). Almore terminated Webster?s employment on or about July 27, 2006. Webster commenced an action for wrongful dismissal against the defendants on August 6, 2008...

Judicial Mediation from "Across the Pond"

Posted on September 02, 2010
Thanks to Laurie Anstis an associate solicitor practicing employment law at UK firm Boyes Turner who wrote following my post Ontario?s chief justice discusses judicial mediation to say that a judicial mediation in employment cases pilot project was undertaken in three regions of England ? Newcastle, Central London and Birmingham...

Alberta Court of Appeal Overturns Huge Damages Award

Posted on September 01, 2010
The unanimous Alberta Court of Appeal recently overturned a trial judgment that awarded a terminated employee an additional $1.6 million in damages, beyond the 1 year reasonable notice awarded. The Court put the issue succinctly: In addition to damages for one year?s notice period, can a trial judge award significant...

Ontario?s chief justice discusses judicial mediation

Posted on August 31, 2010
The Lawyers Weekly reports that Ontario?s chief justice calls for judges to expand their role as mediators. Chief Justice Warren Winkler (who, while in practice, was, hands down, one of the top management side labour lawyers in the country) has proposed a "cultural-shift" that would see judges conduct more mediations...

Punitive Damages Alive and Well (in rare cases)

Posted on August 28, 2010
The New Brunswick Court of Queen's Bench (Trial Division) awarded $50,000 in punitive damages to a employee who was initially terminated without just cause but whose employer, after the fact, alleged that just cause was present. The case is Nuala MacDonald-RPublishoss v...

Verbal References "in accordance with" a Written Reference

Posted on August 26, 2010
Often when an employer and employee (or employer and trade union) resolve a termination case, the terms of settlement will be set out in Minutes of Settlement or some other document. One of the terms of settlement will often involve giving a written letter of reference and the manner in...

Update on Defamation in Employment Law Cases

Posted on August 18, 2010
I had posted some time ago about Defamation in Employment Cases and Qualified Privilege. I saw this morning that Greg Gowe has a post discussing the issue (Supervisor's defamatory appraisal of dismissed employee protected by qualified privilege) and the Dawydiuk case...

Delay in Filing an Application Under the Human Rights Code

Posted on August 12, 2010
Section 34 of the Ontario Human Rights Code provides that a person who believes that he or she has a complaint may apply to the Tribunal: (a) Within one year after the incident to which the application relates; or (b) If there was a series of incidents, within one year...

The Law of Insubordination

Posted on July 31, 2010
Conduct amounting to insubordination sufficient to establish cause for dismissal was described half a century ago by Lord Evershed in Laws v. London Chronicle: Since a contract of service is but an example of contracts in general, so that the general law of contract will be applicable, it follows that,...

Defamation in Employment Cases and Qualified Privilege

Posted on July 26, 2010
Every so often we see defamation claims crop up in wrongful dismissal actions. They come up in different contexts such as performance reviews, reference checks and post-termination documentation. The British Columbia Court of Appeal considered this matter in Dawydiuk v...

Who has to prove discrimination?

Posted on July 25, 2010
The recent Ontario Human Rights Tribunal case of MacNeil v. LOFT Community Services got me thinking about the shifting burden in discrimination cases. In this case, the Tribunal dismissed the complaint because the complainant had not met the onus that was upon him of establishing a prima facie case of...

Congratulations to Mike Fox of Jottings by an Employer's Lawyer

Posted on July 20, 2010
My friend Mike Fox, author of Jottings by an Employer's Lawyer celebrated his 8th blog anniversary (you read that correctly - 8!) When Mike started writing his blog there were a handful of legal blogs (forget about labour and employment blogs, there really weren't any)...

Suing your Employer While Still Employed

Posted on July 17, 2010
I can't imagine a more difficult decision for an employee than suing your employer while you're still employed. As you'd expect, it rarely happens. That said, it happens. What's the effect of launching the lawsuit on the employment relationship? Is it just cause for summary dismissal? The cases are mixed...

Production of Medical Documents at the Human Rights Tribunal

Posted on July 15, 2010
The recent Tribunal decision of Iley v. Sault Community Information and Career Centre provides a good review of the principles that will be applied when ordering production of documents at the Tribunal and, more specifically, when dealing with production medical information by the applicant...

Poll Suggests that Bullying is Pervasive at Work

Posted on July 14, 2010
In light of the coming into force of Ontario's Bill 168, violence and harassment in the workplace is (or should be) front of mind for employers in this province. It should be front of mind for employers even without legislation. As reported in HR Magazine Bullying remains rife in the...

Vale Workers Approve Collective Agreement

Posted on July 08, 2010
A few days ago I posted that Vale and Steelworkers Reach Tentative Deal and that this was subject to ratification. Well, the Globe and Mail reports that the Nickel workers approve contract with Vale thus ending one of the longest strikes in Canadian history.

Length of Examinations for Discovery

Posted on July 06, 2010
The Ontario Rules of Civil Procedure were recently amended (with effect on January 1, 2010) and significantly and substantively changed the manner in which civil litigation matters proceed in Ontario. The changes followed an exhaustive review by the Honourable Coulter A...

Vale and Steelworkers Reach Tentative Deal

Posted on July 05, 2010
It may well be that the long and sometimes bitter strike at Vale may be coming to an end. The strike that started on July 13, 2009 and resulted in a fair amount of litigation both at the Ontario Labour Relations Board before the Courts may (depending on the wishes...

Length of Service and Reasonable Notice of Termination

Posted on June 28, 2010
An Ontario Court today released a decision dealing, in part, with whether the periods of time during which an employee was employed on a fixed term contract basis or under a written contract of employment ought to be included in her length of service for the purposes of determining the...

Six Minute Employment Lawyer

Posted on June 16, 2010
I spoke yesterday at the Law Society of Upper Canada's Six Minute Employment Lawyer Conference on Discrimination Based on Family Status: The Prima Facie Debate. I'd like to thank my friends (and former colleagues from the distant past) Christine Thomlinson and Malcolm MacKillop for inviting me to speak at the...

Bill 168 in Force Today - Are you compliant?

Posted on June 15, 2010
Well, the six-month delay between Royal Assent and the coming into force of Bill 168 (An Act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace and other matters) is over with the legislation coming into force today (June 15, 2010)...

More on Piresferreira v. Ayotte

Posted on June 07, 2010
It seems that, as expected, Piresferreira v. Ayotte is headed for the Supreme Court of Canada (if leave is granted) according to an article (Employers can?t be sued for negligent infliction of mental distress, says Ontario's top court) in the Lawyers Weekly.

Congratulations to Patrick Lamb

Posted on June 03, 2010
I wanted to send along my sincere congratulations to Patrick Lamb of Valorem a legal rebel and now a published author of a new book on Alternative Fee Arrangements. I have been following Patrick's blog (In Search of Perfect Client Service) for many years and his thoughts and writings on...

Take Care When Drafting Discipline Letters

Posted on June 02, 2010
It pays to spend time drafting disciplinary letters. Failing to do so can have some serious consequences at least in the Unionized workplace. A recent case discusses the matter in helpful terms. In this case, the employer was able to dodge the Union's bullet...

Conducting Internet Searches on Employees (or Prospective Employees)

Posted on June 01, 2010
The Internet is, indeed, a rich source of information but conducting Internet searches on employees (or prospective employees) is not without risk for an employer and raises a whole bunch of complex issues. Google, MySpace, blogs, Facebook, Twitter can all be mined and turn up a host of information about...

Court of Appeal Releases a "Top 10 in 2010 Case"

Posted on May 31, 2010
The Court of Appeal released an important decision on May 28, 2010 Piresferreira v. Ayotte in which it considered, among other things, negligent infliction of mental suffering in the employment setting. This was an appeal of the judgment of Aitken, J...

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