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Enforceability of Employment Contracts – Ontario Court of Appeal – Failure to Meet Statutory Requirements is Fatal

The termination clause permitted Deeley to avoid continuing employee benefits and was unenforceable. The fact that Deeley in fact paid benefits immaterial to interpretation. As well, the termination clause required Deeley to give Wood “two weeks’ notice of termination or pay in lieu thereof for each year or partial year of employment”. These payments and notice were “inclusive of [Wood’s] entitlements to notice, pay in lieu of notice and severance pay”. Drafted in this way, the clause does not satisfy Deeley’s statutory obligation to pay severance pay. Deeley could fulfil its obligations under the clause in ways that would deprive Wood of her statutory severance pay. The termination clause is thus unenforceable, and Wood is entitled to common law reasonable notice.

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Think Before You Act – Alleging Cause Without Basis = Punitive Damages

The Court: I find the facts of this case particularly troubling. Not only did the defendant assert cause when there was no reasonable basis for such an assertion, the defendant delayed in providing the plaintiff his record of employment, and significantly delayed in paying amounts owing under the Employment Standards Act, 2000, until June 15, 2015. This had a significant financial impact on the plaintiff and the employer had knowledge of the plaintiff’s financial circumstances. Moreover, the allegations of cause, made with no reasonable basis, were made for tactical and financial gain considerations.”

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BONUS ENTITLEMENT DURING NOTICE PERIOD + GOOD FAITH IN CONTRACTUAL RELATIONS

The first step is the consideration of of the employee’s common law damages, comprised of the compensation and benefits to which he would have been entitled but for the wrongful termination of his employment.

The second step is to consider whether the bonus plan specifically limited or restricted the employee’s common law rights. “The question is not whether the contract or plan is ambiguous, but whether the wording of the plan unambiguously alters or removes the [employee’s] common law rights.” In the case at hand, a term that requires active employment when the bonus is paid, without more, is not sufficient to deprive an employee terminated without reasonable notice of a claim for the bonus the employee would have received during the notice period.

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“That’s My F….. Bagel” – Useful Lessons for All: Employment Contracts and Proportionality

First, the employer’s response to the “bagel fight” was out of proportion. The “wrist grabbing,” while not trivial was not serious enough and did not constitute “work place violence.” Second, based on the wording of the suspension letter provided to the plaintiff following the bagel incident, the suspension represented its discipline for the incident and that to subsequently dismiss her from employment constituted double jeopardy. The Divisional Court agreed with that as well. Relying on arbitral jurisprudence, the Court stated ” An employee can only be disciplined only once for the same offence.”

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Damages Reduced Where Employee Chose Part-Time Employment

The defendant’s obligation to pay notice to the plaintiff ended on June 13, 2016, when the plaintiff commenced employment with Douglas College. That was the date the plaintiff had the opportunity to work full-time and mitigate all of her damages after that date. She was entitled to choose not to take full-time employment but the cost of that choice does not lie with the defendant. I note the defendant has only paid the plaintiff up to June 1, 2016.

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When You Get Fired – You Got To Look For Work

With respect to mitigation, the Court found: “They have not acted reasonably. Instead of continually and assiduously applying themselves to find employment, [the plaintiffs] .… their efforts to look for work began only recently, …. and even so, those efforts have been so minimal that they cannot be said to meet their duty.”

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Trinity Western v. Law Society – TWO NIL – Religion and Human Rights

It was argued that the approval by the Law Society would constitute an “approval” of TWU’s religious principles. This might be “hurtful” to the LGBTQ community. The Court noted that “there is no Charter or other legal right to be free from views that offend and contradict an individual’s strongly held beliefs, absent the kind of “hate speech” described in Whatcott that could incite harm against others (see paras. 82, 89-90 and 111). Disagreement and discomfort with the views of others is unavoidable in a free and democratic society.”

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Evidence in Labour Arbitrations – “purple haze”

112 … that the Mandatory Election approach, in Ontario, New Brunswick and Newfoundland, is the preferred approach, both under the B.C. Labour Relations Code. R.S.B.C. 1996 c.244, and under the Canada Labour Code; that is, a party moving a no evidence motion should be required to elect whether or not they will be calling evidence, prior to bringing such a motion. ….. If the party elects not to call evidence, then their case is closed, and the parties will argue the no evidence motion based upon the whole of the evidence. I conclude that this particular approach is more consistent with the arbitration process under both the British Columbia Labour Relations Code and the Canada Labour Code. The arbitration process is meant to be an efficient means of solving workplace disputes. The Discretionary Approach involves delay, a lack of fairness, and a duplication of the arbitral analysis of the evidence.

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The UK Government Guide to help Employers recruit and retain transgender employees (Equality Act 2010). Useful for Employees as well.

“The Equality Act 2010 requires that public bodies have due regard to eliminate discrimination, harassment, victimisation and any other conduct prohibited under the Act (including discrimination by association or perception), to advance equality of opportunity between persons who share a protected characteristic and those who do not, and to foster good relations between persons who share a protected characteristic and those who do not.”

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BC Court of Appeal Upholds Human Rights Tribunal’s $75,000 award for Injury to Dignity

With respect to injury to dignity, the judicial review judge found that the $75,000 award was more than double of what had been awarded in previous cases. The Court of Appeal found his reasoning wanting, referring to Gichuru. The Court noted that there is no cap on injury to dignity awards and that such awards had been steadily increasing. “Judicial review is not to be treated as though it were a quantum appeal in a personal injury case. In a quantum appeal, the question is whether the award was a wholly erroneous estimate of the loss by comparison to the range established by the cases. Ranges established by previous cases play a more diminished role in the Tribunal’s determination of an award for injury to dignity.” Thus while previous awards are of some value, they are not determinative and must be decided on the particular facts of each case. The Tribunal’s $75,000 award was not patently unreasonable.

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