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

Thinking of Jumping Ship?

Posted on May 28, 2010
A recent decision from the Ontario Court of Justice clarifies the rules when a fiduciary jumps ship. The case, Aquafor Beech Ltd. v. Whyte was decided on May 14, 2010 and involved a claim by a company against a number of professional engineers who resigned...

Procedural Protection in Comtempt Proceedings

Posted on May 28, 2010
One would hope that civil contempt proceedings are rare (which they are). The suggestion that someone is in contempt of a court order is, to say the least, a serious allegation and one that requires considerable care before launching. An Ontario Court recently considered the procedural protections to be afforded...

Toxic Bosses and Workplace Bullying

Posted on May 27, 2010
We put on a seminar for clients (and others) last Thursday on Bill 168. It was really well attended so thanks to all those who came out and I hope you found it of value in getting everything buttoned down for June 15, 2010. I read a really interesting article...

Overview of proposed PIPEDA amendments

Posted on May 26, 2010
Have a read of David Fraser's post on his always excellent Canadian Privacy Law Blog. For employers falling under PIPEDA, have a read of David's comments under "Employee Personal Information" and the "breach notification" proposals. Thanks David.

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Disability and Perceived Disability Under the Code

Posted on May 24, 2010
It is not only taking action against an employee because of an actual disability that can get an employer in hot water under the Human Rights Code. Where the employer takes action because of a perceived disability, trouble can also follow. Such was the case in McLean v...

Religious, Philanthropic, Educational (etc) Exception under the Code

Posted on May 23, 2010
The Ontario Divisional Court, on May 14, 2010 released its decision in Ontario Human Rights Commission v. Christian Horizons in which it considered whether a limited exception from discrimination found in section 24(1)(a) of the Ontario Human Rights Code applied...

Not Happy with Your Severance Deal.... Pick Your Forum Carefully

Posted on May 19, 2010
Many plant closures came out of the economic crisis. In a unionized environment, the union and company will typically negotiate a closure agreement that will set out the manner in which the windup will be effected including, in some cases, severance. Sometimes the employees want "more" and are not happy...

Ontario Proposes the Open For Business Act

Posted on May 18, 2010
On May 17, the Open for Business Act was introduced in the Legislature. Through this broad and all-encompassing Bill, the Ministry of Labour is proposing amendments to, among other things, the Employment Standards Act, 2000 that would: Allow the Director of Employment Standards to require claimants to provide specific information...

Another Blog Anniversary Comes and Goes

Posted on May 15, 2010
I guess I missed the anniversary of the blog (what's the saying, the older you get, the more you try to forget the birthdays?). Seven years is a long time. A lot has happened in 7 years. More recently, lots of truly amazing professional changes. Back in 2003 there were...

Safety Blitz Finds Issues

Posted on May 15, 2010
A 90-day inspection campaign of more than 3,900 Ontario construction sites found fall hazards at 63 per cent of the sites (see the OHS Canada post Safety blitz finds fall hazards at majority of Ontario construction sites. The Ontario Federation of Labour has called for fines and criminal charges under...

"What happened next?"

Posted on May 14, 2010
When part of your practice involves hearing or advocacy work, you?re always on the lookout for ways to improve (or at least I am). I came across a post on Winning Trial Advocacy Tips that discusses one of the worst direct examination questions you can ask - ?what happened next??...

Are Mediator's Protected by "judicial immunity"?

Posted on May 12, 2010
"Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser -- in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man...

Continued Gains in Employment in Canada

Posted on May 08, 2010
Stas Can has released the April 2010 Labour Force Survey and employment increased by 109,000 in April, the largest monthly gain in percentage terms since August 2002. The unemployment rate edged down to 8.1%. According to the Labour Force Survey "Employment growth in April was in both part-time (+65,000) and...

Amateur Sports and Human Rights

Posted on April 30, 2010
Believe me, I'll jump at any opportunity (no matter how tenuous) to write a post that mixes sports with employment law. Lisa Stam, who write a super blog called Employment & Human Rights Law in Canada beat me to it. Check out Lisa's post Discrimination & Gender in Amateur Sport.

"Kill a Worker Go to Jail" Campaign

Posted on April 28, 2010
In anticipation of the National Day of Mourning on April 28, the Ontario Federation of Labour has implored greater use of Bill C-45 in addressing workplace fatalities.

Personal Respondents in Human Rights Cases

Posted on April 27, 2010
Being named personally in any legal proceeding is no one's idea of fun. Being named personally in a human rights case alleging that you are somehow liable (personally) for harassing or discriminatory conduct escalates the anxiety. The Ontario Human Rights Tribunal has developed a body of cases that establish principles...

National Day of Mourning - April 28

Posted on April 26, 2010
As I was watching the coverage of the memorial service for the 29 coal miners killed in West Virginia, I thought it fitting to mention that April 28 is the National Day of Mourning commemorating workers whose lives have been lost or injured in the workplace...

Striking over daily beer ration?

Posted on April 12, 2010
I can't make that headline up: Employees at a Carlsberg warehouse on the outskirts of Copenhagen returned to work on Monday, ending a five-day strike over a decision to cut their daily ration of free beer, their union said. Read more at Carlsberg employee end strike over daily beer ration.

Surveillance Evidence Admitted Even if Improperly Obtained

Posted on April 08, 2010
I'm a little behind on my blog reading, but I did want to thank Dan Michaluk for bringing a helpful case called McKesson Canada Corp. (Birch Grievance) to my attention through his post. Arbitrator Hood notes in the McKesson case: "Video evidence, even if improperly obtained, is admissible...

Summary Judgment in Employment Disputes

Posted on April 05, 2010
The Court considered whether to allow partial summary judgment in Cockshutt v. Computer Facility Services. In this case, the plaintiff sought summary judgment for one aspect of his claim, being damages in lieu of notice, including benefits to which he would be entitled during the period of notice...

An Expansive view of Dismissing Cases for "Abuse of Process"

Posted on April 04, 2010
There's an interesting case out of the Ontario Human Rights Tribunal that anyone responding to a human rights complaint ought to read. It is one in a long line of cases, but it does highlight an important concept when seeking to have applications dismissed in a unionized environment...

Delay is a Problem When Reviewing Labour Board Decisions

Posted on April 03, 2010
The Ontario Divisional Court considered, in part, the impact that delay would have on an application for judicial review of a decision of the Ontario Labour Relations Board ("OLRB"). The case involved an application to review two decisions of the OLRB dated February 6, 2008 and April 28, 2008...

Increase in Minimum Wage in Ontario

Posted on April 02, 2010
On March 31, 2010, the general minimum wage in Ontario increased from $9.50 per hour to $10.25 per hour. More information can be found in the Ministry of Labour's publication on Minimum Wage. This wage increase will impact many sectors, including hospitality and food services among others...

Happy St. Patrick's Day

Posted on March 17, 2010

Changing Canadian Workplace

Posted on March 17, 2010
A recent report by TD Bank Financial Group entitled The Changing Canadian Workplace starts off: The landscape of the Canadian workplace has changed dramatically over the past few decades. Regardless of whether or not we, as a nation, are ready for it, macroeconomic and demographic trends and new workplace standards...

Abuse of Process Under the Ontario Human Rights Code

Posted on March 15, 2010
I have previously written about the circumstances in which the Human Rights Tribunal will dismiss a complaint (application) filed after an employee has signed a full and final release. The issue continues to be litigated, but one question I have had is what interpretive value, if any a Guide to...

Enforceability of Non-Solicitation Provisions

Posted on February 25, 2010
Enforcing restrictive covenants such as non-solicitation and non-competition provisions in employment contracts or other stand-alone agreements is becoming increasingly difficult. That said, it is possible in the appropriate case. The question is how one defines "the appropriate case"? Greg Gowe has a post on the recent BC Supreme Court case...

Certification of Overtime Class Action

Posted on February 21, 2010
An Ontario Court has certified an overtime class action against Scotiabank. This comes on the heels of a decision that refused to certify a class proceeding against CIBC (this ruling is under appeal). One would assume that Scotiabank will also appeal...

Record of Offences under the Ontario Human Rights Code

Posted on February 20, 2010
Under the Ontario Human Rights Code, it is not discriminatory for an employer to take action against an employee who has been found guilty of a criminal offence for which a pardon has not been granted. Case law has concluded that it would not be discriminatory within the meaning of...

Removing Personal Respondents From Human Rights Complaints

Posted on February 19, 2010
There are few things more unsettling for clients than having individuals within the organization named, personally, in any legal proceeding. It's sort of expected that the company (employer) will get named, but when you see your name listed as a defendant or respondent, it causes some sleepless nights...

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