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Legal Options for Unionized Employees
Monthly Archives

August 2020

Legal Options for Unionized Employees

By Employment Law

Many unionized employees reach out to our office intent on suing their employer. Due to their unionized status, these employees have limited legal options and find themselves in a unique legal predicament, since they cannot sue their employer in court. Supreme Court decisions have held that individuals whose employment relationships are governed by a collective bargaining agreement are precluded from resolving their disputes through the courts. The Supreme Court’s landmark decision in Weber v. Ontario Hydro,[1] confirmed that arbitration clauses such as those contained in Ontario’s Labour Relations Act, 1995[2] give labour tribunals such as the Ontario Labour Relations Board…

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Preventing Discrimination Based on Genetic Information

By Employment Law

We live in a time of rapid technological advancements, and that includes the field of biotechnology. As services that provide commercial genetic screening become more widespread and affordable, peoples’ genetic information is becoming more accessible. This information includes genetic predispositions to physical characteristics, personality traits, and disorders, to name a few. Unfortunately, this opens up the possibility of people being assessed and responded to based on their genes. Federal and provincial governments are aware of this possibility. They have begun taking steps to protect people from discrimination based on their genetic characteristics. In Ontario, Bill 40, the Human Rights Code…

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Is Your Termination Clause Enforceable?

By Employment Law

At common law, employers are free to terminate employees without cause at any time. However, employers must provide employees with reasonable notice or pay in lieu of notice. Reasonable notice is advance notice intended to provide an employee with the opportunity to find alternate employment. One of the main reasons employers draft employment agreements is to limit the amount of reasonable notice owed to an employee upon their termination without cause. This is often the raison d’etre for these contracts, from a legal standpoint. Employers do this by including termination clauses in employment contracts that rebut the presumption of common…

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How our Legal System Encourages Settlement

By Uncategorized

If you are a party to a civil litigation matter like a wrongful dismissal suit, your case will most likely settle before it proceeds to trial. In Ontario, the majority of legal cases settle before trial. In fact, recent statistics show the proportion of cases that settle to be as high as 95%. Accordingly, as imperfect as our legal system is, one thing that it has going for it is that it is built to facilitate settlement of cases in various intelligent ways. Rules of Civil Procedure One of the biggest reasons so many civil cases settle is on account…

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Have Your Statutory Rights Been Violated? A Ministry of Labour Complaint Could be Your Most Effective Legal Avenue

By Employment Law

Ontario’s Employment Standards Act (“the Act” or “ESA”) regulates employment in the province of Ontario and covers minimum wage, maximum work hours, overtime, equal pay and leaves of absence. The Act sets out minimum employee entitlements as well as corresponding enforcement mechanisms. What many people may not know is that the Act empowers Ontario’s Ministry of Labour to investigate and adjudicate incidents in which an employee’s rights under the Act have allegedly been infringed. Specifically, the Ministry’s Provincial Claims Centre receives complaints of contraventions of the Act, which are investigated by employment standards officers. Employment standards officers are then tasked…

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Can Time Spent as an Independent Contractor Factor into Reasonable Notice of Termination Calculations?

By Employment Law

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…

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Can Poor Economic Conditions Increase Reasonable Notice Period?

By Employment Law

Whenever the economy takes a downturn, people are more likely to lose their jobs. But does the state of the economy affect the reasonable notice period and employee is entitled to? As it turns out, it does. The fact that poor economic conditions increase the reasonable notice period can be traced back to the landmark case, Bardal v Globe and Mail Ltd. (1960), 24 DLR (2d) 140 (ONSC). This case sets out the basis for determining the reasonable notice period. Bardal holds that one of the key factors that shape the reasonable notice period is “the availability of similar employment”….

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Different Legal Avenues for Different Legal Problems – A Guide for Navigating the Routes to Employee Justice

By Employment Law

Depending on the facts of their situation, aggrieved employees who’ve been treated unlawfully by their employers (or former employers) have different legal routes they can take. Generally, courts and tribunals disfavor the commencement of multiple legal proceedings stemming from the same legal issue. This helps provide efficiency and ensures that defendants to proceedings are not harassed repeatedly for the same legal problem. It also helps prevent claimants from relitigating their case if unsuccessful. The legal doctrine that encapsulates this is called “issue estoppel.” Further, some legal bodies specifically preclude making a claim for the same relief in multiple proceedings. For…

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Does Your Employer Owe You A Duty of Good Faith?

By Employment Law

Matthews v Ocean Nutrition Canada Ltd is a landmark employment law case that was heard by the Supreme Court of Canada in January 2020. David Matthews worked for Ocean Nutrition from 1997 to 2011. In June 2011, he sued Ocean Nutrition for wrongful dismissal damages, including the loss of a Long-Term Incentive Plan (the “Plan”), which had been paid to him by the company regularly throughout his employment. The Plan provided that, if the company was sold while Matthews was employed by it, he was entitled to receive a portion of the sale proceeds based on the formula contained in the…

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Choice of Forum and ESA Leave Reprisals

By Employment Law

One of the most important decisions an employment lawyer must make when they first assess a claim is deciding the appropriate forum in which to bring a potential claim. Generally, a legal issue stemming from a specific circumstance cannot be litigated in more than one forum. As an example, a worker who has been terminated from their employment shortly after they announced their pregnancy cannot commence an application before the Ontario Human Rights Tribunal (the “Tribunal) and a claim before the Ministry of Labour (the “Ministry”). ‘Double dipping’ in such a manner is considered an abuse of process, and where…

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