October 2020

At common law, both employees and dependent contractors are entitled to reasonable notice of termination or payment in lieu thereof. In determining the length of the reasonable notice period in any particular case, courts will look at the Bardal factors, which include: character of employment, length of service, the plaintiff’s age, and the availability of alternative employment. Generally, “length of service” is given a significant amount of weight. Until recently, “length of service” was generally assumed to refer to time spent as an employee or dependent contractor. However, a recent decision by the Court of Appeal for Ontario has raised…

As some regular readers may know, an overwhelming majority of wrongful dismissal claims never end up proceeding to trial. Instead, they settle out of court without ever being adjudicated. When considering the vast resources, time, energy and stress involved with litigating a claim, settlement often makes the most sense. Were a matter to proceed to trial, it means that the dispute would end up on the public record. Very seldomly will a party wish for its dirty laundry to be aired out in the public forum, especially where claims of bad faith are made, or where the employee was fired…

In June 2007, a representative Plaintiff named Dara Fresco commenced a class action on behalf of some 31,000 customer service employees who had worked for CIBC between 1999 and 2009. The claim was titled Dara Fresco v. Canadian Imperial Bank of Commerce. It was eventually certified by the Court of Appeal for Ontario. Ms. Fresco’s central claim was that CIBC’s overtime policies and record-keeping systems contravened the Canada Labour Code (the “Code”) and, as a result, thousands of front-line bank employees were not compensated for the overtime hours they worked. Section 174 of the Code provides that when an employee…