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Can You File a Human Rights Application Against Your Former Employer If You Have Already Signed a Release?
Monthly Archives

July 2020

Can You File a Human Rights Application Against Your Former Employer If You Have Already Signed a Release?

By Employment Law

Being terminated from your employment can be a very stressful experience. Unfortunately, this can result in poor in-the-moment decision making that you may later regret. Many people that find themselves in such a situation are too quick to agree to a settlement with their employers. They sign release documents only to later realize that they may have been entitled to more than they agreed to and wish that they could bring a claim against their former employer. Release documents in such situations generally prevent a former employee from bringing any claims against his or her former employer, often including human…

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When Will Inducement Factor into an Employee’s Entitlements to Reasonable Notice of Termination?

By Employment Law

Employees are generally entitled to reasonable notice of the termination of their employment or pay in lieu thereof at common law. Courts usually determine what length of notice is “reasonable” in any given case by considering the factors set out in Bardal v. Globe & Mail Ltd., [1960] OJ No 149 (SC), which include: the character of the employment, the length of the employee’s service, the employee’s age, and the availability of alternative employment given the employee’s training, qualifications and reasonable prospects of finding suitable employment. However, Canadian courts have recognized additional factors that may be relevant to the appropriate…

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What Happens If Your Personal Circumstances Prevent You from Mitigating Damages from Your Wrongful Dismissal?

By Employment Law

Employees who are wrongfully dismissed are generally expected to make reasonable efforts to mitigate the damages arising from their termination. Typically, this involves attempting to find new, comparable employment. If an employer can show that the former employee (1) did not make reasonable efforts to find replacement work, and (2) would likely have obtained work had those efforts been made, courts will usually reduce any wrongful dismissal damages awarded to the employee. In court, employees usually try to avoid such an outcome by providing evidence of their mitigation efforts in the form of a log of jobs that they have…

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Can an Employer’s Financial Circumstances Impact the Reasonable Notice Period?

By Employment Law

When an employee is terminated without just cause, he or she is generally entitled to common law reasonable notice or pay in lieu thereof. In Ontario, courts determine the amount of notice that is “reasonable” in a given case by considering the Bardal factors, which include character of employment, length of service, age, and availability of similar employment having regard to the experience, training and qualifications of the employee. However, other considerations may be taken into account in some circumstances. Case Law On several occasions, employers have tried to argue that one such consideration should be the financial circumstances of…

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Workplace Discrimination and Unionized Employees – Is a Grievance Your Only Option?

By Employment Law

There are substantial limitations on unionized employees’ abilities to seek recourse for their employer’s misconduct outside of arbitration and the procedures set out in their collective agreements. However, unionized employees often have another option when the issue is related to human rights, as they are allowed to file complaints about workplace discrimination with the Human Rights Tribunal of Ontario (the “Tribunal”). This post will briefly outline when this option is available to unionized employees, and some of the factors that may be relevant to deciding on which route to pursue when seeking a remedy for workplace discrimination. The Human Rights…

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Electronic Documents – What Happens if an Opposing Party Has Omitted or Altered an Electronic Document?

By Employment Law

The extent to which technology is ingrained in our everyday lives means that evidence in most civil proceedings is primarily made up of electronic documents. This applies to employment law cases, which often involve email exchanges and company documents that are stored electronically. This creates some challenges when it comes to Discovery – the process by which parties exchange evidence in civil cases prior to trial – as electronic documents can be edited, deleted, stored in a variety of different places and accessed through different means. Not only that, but electronic devices store a wide range of information and data,…

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Restrictive Covenants in Employment Contracts: What Are They and When Are They Enforceable?

By Employment Law

Employers frequently include restrictive covenants in their employment contracts. Generally, these are clauses that seek to prevent a party to the contract from taking a specific action. In the employment context, they generally take the forms of non-competition and non-solicitation clauses, which employers add to employment agreements with a view to protecting their business interests, customer bases, employee bases and/or supplier relationships. These two types of restrictive covenants serve different purposes and have different likelihoods of enforceability. Non-Competition Clause Defined Simply put, non-competition clauses seek to limit a former employee’s ability to work in the same market as their previous…

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Mitigation Following a Constructive Dismissal – Are You Required To Accept Work From Your Former Employer?

By Employment Law

Terminated employees are generally entitled to notice or pay in lieu thereof at common law. Failure to provide such notice or pay constitutes a wrongful dismissal, and the employee can sue the employer for the amounts owed. However, a wrongful dismissal does not entitle an employee to take an extended vacation while awaiting the outcome of litigation. Rather, a wrongfully terminated employee must make reasonable efforts to mitigate the resulting damages. This usually takes the form of trying to find suitable alternative employment, and failure to do so will result in a reduction in notice entitlements. However, in some circumstances,…

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What Happens If You Sign an Employment Agreement After You Have Already Started Working?

By Employment Law

Often, new employees do not sign their employment agreements until after they have already commenced their new employment. This can be for any number of reasons. Generally, neither of the parties involved is too concerned about it, and in most cases, they have no reason to be. However, under some circumstances, executing an employment agreement after the employee begins providing their services can have significant implications on the terms of their employment. Specifically, the signed employment agreement may be rendered void. Basic Principles In Holland v Hostopia Inc., 2015 ONCA 762, the Court of Appeal for Ontario had to consider…

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What Happens When You Are Terminated from a Job that You Were Recruited For?

By Employment Law

Getting fired is generally not an enjoyable experience. However, it can be particularly frustrating when you are terminated from a position that you were initially recruited for. This is especially true for people who left long term employment elsewhere based on promises about the nature and term of a new position, only to have their employment cut short.   Canadian courts agree that such situations are distinct from other instances of termination. This distinction is most clearly reflected in two lines of jurisprudence. First, employees who were induced to leave previous employment may be entitled to a longer common law…

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