June 25, 2015

Employees terminated without cause have a duty to mitigate their damages by taking reasonable steps to secure alternate employment. In Steinbach v. Clean Energy Compression Corp, the court found that the employee’s efforts to find new work, particularly by electing to undertake training for a new career in an unrelated field, did not meet that duty and consequently ordered a lower notice period than it otherwise would have:

A good reminder to employers to stick to the truth when it comes to any statements they make about former employees. The British Columbia Supreme Court recently awarded damages to a plaintiff against his former employer for defamation. The former employer had made statements to others in the industry that the plaintiff was incompetent, breached professional obligations, and was terminated for his unscrupulous practices. The employer failed to retract those statements and refused to apologize. Each of the defendants were ordered to pay the plaintiff $15,000:

Frustration of contract occurs when an unanticipated event renders the contract impossible to perform. In a recent case out of Ontario, the court found that an employment contract involving a terminally ill employee who eventually passed away was frustrated by the employee’s illness:

An example of a successful due diligence defence in an occupational health and safety prosecution where the employee undertook work that he was clearly not authorized or directed to conduct:

Ontario recently introduced Bill 113 the Police Record Checks Reform Act aimed to provide clear, consistent and comprehensive standards for how police checks are requested, conducted and disclosed. The Bill will affect employers that routinely request police record checks as part of the hiring process:

A complainant in an Ontario Human Rights Tribunal matter withdrew her complaint on the “proverbial steps” to the court house. The respondent employer argued that this was  case that demanded costs be awarded against the complainant. The respondent also argued that the applicant should be declared a vexatious litigant. The Tribunal issued a stern rebuke but found that it could not award costs as it did not have jurisdiction to do so. The complainant was, however, prohibited from making any further applications against the respondent:

The provincial court in Nova Scotia recently agreed to a “creative sentencing” option against  a defendant company involved in an occupational health and safety prosecution following the electrocution death of an employee. In addition to a $35,000 fine to the company, the court also ordered that the company to make a series of presentations about the facts of the case and the workplace issues involved totaling 150 hours over 18 months:

Several amendments were made recently to PIPEDA, the federal private sector privacy legislation in Canada. A summary of some of the changes as noted on Slaw:

The business contact exception from the definition of personal information has been broadened.

Provisions have been added to allow the transfer of personal information to an acquiring business for both diligence and closing purposes. Most have been approaching this in a similar way, but vendors/purchasers, and their counsel should make sure they comply with the exact requirements.

A new section says consent is only valid if the individual would understand what they are consenting to. This speaks to the clarity of the explanation, and is particularly important when dealing with children.

Several new exceptions to the collection, use and disclosure of personal information without consent have been added. Such as witness statements, communication to next of kin of ill or deceased persons, and fraud prevention.

The Commissioner now has a compliance agreement remedy.

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June 17, 2015

According to a recent case out of Ontario, terminating an employee in June could lead to larger damage awards:

In light of recent news concerning airline employees suffering from mental illness, should employees be required to disclose known disabilities?

Normally, when an employee on a fixed-term employment contract is terminated early, the employee is entitled to damages for the income he or she would have received for the balance of the contract had it not been terminated early. According to this decision out of Ontario, that may not be the case. When the court found a termination provision to be unenforceable, the employer successfully argued that the employee should be entitled only to reasonable notice of termination instead of the balance of the five year contract. Why? Because the parties included an early termination provision, it was clear that something less than the balance of the contract should be awarded if the agreement was terminated early. It was not the parties’ intentions to award damages for the balance of the contract:

Sean Bawden with another interesting post about reconciling the duty to mitigate with summary judgment in wrongful dismissal cases:




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May 27, 2015

Stringer LLP writes about another example of the court striking down a termination provision in an employment agreement resulting in a lengthy common law notice period. Here, the clause did not properly account for fringe benefits during the statutory notice period and therefore violated the Employment Standards Act, 2000:

Stewart McKelvey writes about the Ogden v. CIBC case from earlier this year and the concept of cumulative cause:

The British Columbia Supreme Court found an employee’s maternity leave was not a good reason to reduce her bonus. The employee had exceeded her targets early in the year but the employer still deducted from her bonus because she missed four months of the year on maternity leave:

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May 13, 2015

A Human Rights Tribunal in Quebec has sided with a man who was fired for his job after he was charged with marijuana possession and the charges were later dropped. The man was an employee of a flooring company sent on contract to perform work at a prison for inmates who committed sexual crimes.  The prison, which was closed for renovations at the time, thought the man a security risk and did not permit him on site. He was fired by his employer and lodged a human rights complaint shortly thereafter. The Tribunal held that even if he had been convicted of the possession charges, there was no rational link between that offence and the perceived security risk:

The Ontario Court of Appeal recently upheld a common and related employer decision. At the court below, several related corporate defendants were found jointly and severally liable for reasonable notice of termination and pension benefits despite the fact that the plaintiff had not been technically employed by some of the defendants:

Termination of a unionized probationary employee can have consequences.

The Canadian Payroll Consulting blog advocates for the reform of “province of employment” rules:

Much has been written on social media and elsewhere about the #FHRITP story which came to a head here in Canada over the past few days. A history of the meme can be found here (which actually began as a series of fake news blooper clips) along with video of CityTV News reporter  Shauna Hunt now famously confronting the heckler. Word came out yesterday that one of the men in the video was about to be fired and a second man was under investigation by his employer. Once again, off-duty misconduct is shown to have very real consequences in the workplace:

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May 1, 2015

Canada’s Privacy Commissioner released some materials this week dealing with Canada’s anti-spam legislation (CASL), including a guide for businesses doing e-marketing:

The Ontario Court of Appeal upholds a decision in which the trial judge found it would not be reasonable for a long-term employee to continue working in a less important position with his former employer following constructive dismissal on the basis that the employee viewed the environment as “unfriendly”:

Stuart Rudner writes about why it makes sense to provide a reference letter to employees dismissed without cause (hint: helping the employee mitigate his or her damages is good for the employer):

  •  http://rudnermacdonald.com/dismissals/providing-employment-references-just-makes-sense/

Michael FItzgibbon in his “Thoughts from a Management Lawyer Blog” discusses how far an employer must go to assist a departing employee to mitigate his or her damages:

The BC Court of Appeal overturns an earlier trial judgment and sends the case back for a new trial in Ogden v. Canadian Imperial Bank of Commerce. The plaintiff bank employee had been terminated for cause after a wire transfer incident involving a client. The BCCA found the trial judge misapprehended the defendant’s arguments and the evidence before it relating to the incident and others that preceded it which may constitute cause for termination:

The Ontario Superior Court of Justice concluded that two workers were in fact dependent contractors and entitled to 26 months’ notice of termination:

An arbitrator upheld a three day suspension for a large employee after he made hostile and intimidating comments to a smaller co-worker in the company washroom:

Evan Campbell from Miller Thomson’s Guelph office on the dos and don’ts for employers during union drives:

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April 22, 2015

Doug MacLeod provides an update on recent employment law decisions that were heard as summary judgment motions in Ontario:

The Canadian Payroll Consulting blog with some tips on vacation time and pay best practices:

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March 18, 2015

On employer rights and obligations when faced with severe weather:

HRM Canada on the problem with paid suspensions in the wake of last week’s SCC decision in Potter:

Avoiding employer liability when terminating short service employees:

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