Menu
Call Us Today
416-616-5628
Constructive Dismissal and Duty to Mitigate
Monthly Archives

June 2019

Constructive Dismissal and Duty to Mitigate

By Employment Law

In Brake v. PJ-M2R Restaurant Inc., the Court of Appeal for Ontario considered two frequent issues in wrongful dismissal actions: constructive dismissal and the duty of an employee to mitigate employment losses by finding alternative employment. The Court found that the trial judge was correct in finding that the employee had been constructively dismissed. Of greater note, the Court confirmed the trial judge’s decision that the employee’s income during the reasonable notice period would not be deducted from the award for damages. The employee was awarded a twenty month reasonable notice period after working for the employer for twenty years….

Read More

Employee or Independent Contractor re: Bill 148 vs Bill 47

By Employment Law

Classification of employees versus independent contractors is important for several notable reasons. Employees are entitled to statutory benefits and protections under the Employment Standards Act (ESA) such as minimum wage, notice of termination, severance pay and overtime pay. Independent contractors enjoy no such entitlements under the Employment Standards Act for these benefits and protections. In late-2017, the Ontario government amended several aspects of the ESA in the form of the Fair Workplaces, Better Jobs Act, also known as Bill 148. Particularly notable was Bill 148’s tightening of the law with respect to who should be classified as an employee. For…

Read More

Severability Clause – Termination Provisions

By Employment Law

In order for a termination clause in an employment contract to be considered valid, it must adhere to the minimum standards under the Ontario Employment Standards Act (“ESA”). Many employers include termination clauses to reflect their intention to limit entitlements owed to an employee based on these standards. In order for courts to consider the termination provisions in an employment contract valid, the clause must be drafted in a manner that clearly reflects the parties’ intentions to abide by the ESA’s statutory minimums. This includes addressing issues such as continued payment of employee benefits, severance, providing reasonable notice and payment…

Read More

Negligent Misrepresentation during the Interview Process

By Employment Law

When an employer deliberately misleads or lies to a prospective employee to induce him or her to accept an offer an employment, the employer can be held liable for their negligent misrepresentations. Courts have held that both employers and employees owe a duty of care to each other during the recruitment process. The British Columbia Court of Appeal decision in Feldstein v 364 Northern Development Corporation provided employers with a reminder that negligent misrepresentation during the hiring process can prove to be a costly mistake. In Feldstein, a prospective employee for an engineering position was misled about the eligibility requirements…

Read More

Future Proofing Employment Contracts

By Employment Law

Employers must exercise caution when drafting the terms of employment contracts. An improperly drafted provision in an employment contract can have unintended consequences, even if those provisions seem valid at the time the contract is executed. Contract provisions, at minimum, must fall within the minimum standards set out in provincial legislation, both in the present and as the contract endures into the future. The Ontario Employment Standards Act (ESA) provides the minimum standards for most employees in Ontario. The Act establishes rights and responsibilities for employees and employers, including the minimum standards surrounding reasonable notice or payments in lieu of…

Read More

Expectation of good faith for employers

By Employment Law

The duty of good faith imposed on employers is a well-established principle of Canadian employment law. Following the decision in Wallace v. United Grain Growers Ltd., bad faith conduct by an employer became yet another factor Courts will consider when determining the period of reasonable notice for an employee. Bad faith damages were typically referred to as Wallace damages and allowed Courts to extend the reasonable notice period where bad faith conduct by an employer was found. The Supreme Court of Canada changed the calculation for bad faith conduct in their decision in Honda Canada Inc. v. Keays. Now, damages…

Read More

Just Cause and Appropriate Notice Period

By Uncategorized

In Ruston v Keddco Mfg. (2011) Ltd., the Court of Appeal for Ontario considered the issues of just cause for employee termination and the appropriate notice period owed to the employee if the employer did not have cause to terminate? The Court found that the trial judge was correct in finding that the employer failed to prove just causation in terminating the employee. The Court also agrees with the trial judges award of a 19-month notice period. The trial judge applied the Bardal factors and emphasized important considerations, such as the appellants age (54), finding of close family ties to…

Read More

Making a WSIB Worker’s Compensation Claim for Chronic Mental Stress

By Uncategorized

As of January 1, 2018, claims for work-related chronic mental stress have been recognized in workplace compensation cases in Ontario. The vast majority of these chronic mental stress claims however 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 gathering information from co-workers and supervisory staff. This process represents a significant barrier…

Read More
Scroll To Top