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Stay or Leave: If you employer reduces your pay significantly?
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De Bousquet PC of De Bousquet PC

Stay or Leave: If you employer reduces your pay significantly?

By Employment Law

When your employer unilaterally announced a significant reduction in your pay due to financial difficulties or any other reasons during your employment, should you stay and keep working at the reduced rates, or leave and treat the reduction in pay as constructive dismissal? The answer is LEAVE NOW and consult with a lawyer as soon as possible. Stay and keep working can be considered a silent acceptance of the changes in your employment relationship with your employer, which may disentitle you from a constructive dismissal claim. However, even you explicitly objected the changes, namely the significant reduction in pay in…

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Are you Entitled to “Extraordinary” Damages?

By Employment Law

One of the most salient considerations in actions for wrongful dismissal is whether the plaintiff claims extraordinary damages against his or her former employer. In a wrongful dismissal claim, “ordinary damages” are typically defined as the amount of pay in lieu of reasonable notice that an employee was presumptively owed at common law, but for which the employer never paid them upon termination. These damages are almost always claimed in such matters as they essentially form the main “cause of action.” They arise from the contractual breach of the implied term of reasonable notice that employers are bound by at…

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An Introduction to the Oppression Remedy

By Employment Law

The oppression remedy is a valuable legal tool that allows for redress when corporate conduct is oppressive or unfairly prejudicial to, or unfairly disregards the interests of, shareholders, creditors, directors or officers of a corporation. At common law, courts are quite hesitant to intervene in a corporation’s affairs due to an often-cited rule called the ‘business judgment rule.’ The judiciary has humbly recognized that not only does it lack the material expertise with respect to running a corporation, but that businesses operate in incredibly complex systems. Therefore, a presumption is granted to business directors and executives that in making a…

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Allocating Payments in a Wrongful Dismissal Action

By Employment Law

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…

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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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