De Bousquet PC of De Bousquet PC

Absent exceptional circumstances, the maximum notice period is 24 months. It is widely recognized that a 24-month notice period represents the upper limit of an award for reasonable notice for long-term employees. While there is no absolute upper limit, the employee will need to present exceptional circumstances to support a notice period exceeding 24 months. In Dawe v. Equitable Life Insurance Company of Canada, the Ontario Court of Appeal considered an employee’s entitlement to notice and whether the trial Judge’s award of a 30-month notice period was appropriate in the circumstances. At the time of termination, the employee was 62-years-old…

In Bassanese v. German Canadian News Company Limited et al., the Superior Court of Justice considered an employee’s complaints of harassment in the workplace and the requirement that employers take steps to investigate such complaints. The Court not only awarded compensation in lieu of notice for wrongful termination but awarded the employee damages for assault and battery as well as aggravated damages. In total, the employee was awarded compensation totaling $194,433.17 and $10,000.00 in costs. This case provides an example of the consequences that employers face if they fail to take workplace harassment complaints seriously. It also serves as a…

In short: yes. In 2014, in a landmark decision called Bhasin v. Hrynew, the Supreme Court of Canada recognized that acting in good faith is an “organizing principle” underlying all contract law. Acting in good faith may take various forms depending on the context, and will be fact-specific. In the employment context, the Supreme Court of Canada stated that “acting in good faith in relation to contractual dealings means being honest, reasonable, candid and forthright.” Below details Jonasson v. Nexen, a 2018 case where the employer did the exact opposite and was required to pay damages for breaching its duty…

A fiduciary employee is an employee who has strong loyalties to their employer during and after their employment relationship and who may hold a high position of trust and responsibility in the company. An employee’s fiduciary duty may not flow directly from an employment contract. It can exist from the nature or the essence of the employee’s relationship with his or her employer. It is already established that a fiduciary’s duty to his or her employer does not cease following the end of the employment relationship. Soliciting business from former clients may be considered a breach of that duty depending...

The answer: it depends. Upon dismissal, employees have an ongoing obligation to mitigate their damages. In certain circumstances, such a duty requires employees to return to work. In Gent v. Strone Inc., the Superior Court of Justice determined that the employee failed to appropriately mitigate his damages as he had an obligation to return to work under the circumstances. The employee was a fifty-three-year-old Health and Safety Training Specialist who had worked for the company for more than 22 years. He was temporarily laid off due to a lower work volume. The employee was told he’d be recalled as soon…

In Katz et al. v. Clarke, the Ontario Divisional Court considered the issue of whether an employee’s desire to work prevents the employer from terminating them. Employers find themselves in a dilemma when their employee expresses a desire to return to work from disability leave while their doctor recommends otherwise. The Ontario Court of Appeal upheld the decision and confirmed a rule that assists employers in determining whether they can terminate a disabled employee. In Katz et al. v. Clarke, the employee had been on disability leave since 2008. The employee went on short-term leave which transformed into long-term leave….

Employers across Canada are well-versed in their duty to accommodate under human rights legislation. Outsourcing disability management to outside experts is one strategy employers are using to separate such duties from their main work functions, thereby increasing concentration on core business and maintaining confidentiality in the workplace. In Knight v. Surrey Place Centre, the Ontario Human Rights Tribunal considered employer human rights obligations and issues surrounding delegation of the duty to accommodate. The Tribunal held that while it is acceptable for employers to outsource disability management, such an arrangement does not change employers’ obligations to disabled employees: “If the employer…

As of January 1, 2018, claims for work-related chronic mental stress have been recognized in workplace compensation cases in Ontario. However, the vast majority of these chronic mental stress claims have been unsuccessful given the difficult criteria required to prove these claims. A worker is generally entitled to benefits for chronic mental stress “if an appropriately diagnosed mental stress injury is caused by a substantial work-related stressor.” In addition, the WSIB decision-maker must be able to identify what has happened to cause chronic mental stress, including through the gathering of information from co-workers and supervisory staff. This process represents a…