De Bousquet PC of De Bousquet PC

If your fixed-term employment contract contains a renewal clause and you continue working past the contract’s expiration, the contract’s essential conditions will likely be held to be renewed for an indeterminate term. In a first-time recent decision, the Superior Court of Quebec however, declared that confidentiality and non-solicitation clauses are not essential conditions, and so do not automatically become renewed when an employee continues to work beyond the contract’s expiration date. In Traffic Tech Inc. v. Kennell, the employee was first hired pursuant to a three-year fixed-term employment contract with a renewal clause requiring the employer to provide the employee…

In the recent case of Miraka v. A.C.D. Wholesale Meats Ltd. the Human Rights Tribunal of Ontario (HRTO) established that employers may have a duty to accommodate their employee’s last-minute childcare needs and obligations, even if given no advance notice, despite the negative impact on the employer’s operations. Further, employees may not be required to seek alternate solutions for their childcare needs in order for this duty to be triggered. As such, this decision demonstrates the HRTO’s recognition of the importance of child-caring obligations and providing for a family-friendly workplace. In this case, an employee was terminated because he missed 3 consecutive…

Childcare-related familial obligations might trigger the duty to accommodate an employee under current Ontario Human Rights Legislation. However, absent a medical condition that requires breastfeeding, the duty to accommodate an employee’s breastfeeding schedule will not normally be required, a recent court case says. In Flatt v. Treasury Board (Department of Industry), an employee of Industry Canada alleged discrimination based on sex and family status after her employer refused to allow her to work full-time from home, in order to breastfeed her child. [2] The employer had a work-from-home policy that allowed the employees to work from home part of the time, but was not…

The recent case of Fernandes v. Goveas signals a protective attitude of the court towards employees entitled to overtime but who did not bring their case to court within the statutory two-year limitation period. Together with other case law, this suggests that employees may be able to recover some entitlements, even if they did not manage to start their suit before the two-year deadline, as is normally required. Ms. Fernandes immigrated to Canada from India to serve as a live-in housekeeper for her sister and her husband and worked for them for nine years. Although the family admitted to underpaying Ms. Fernandes,…

The recent Supreme Court of Canada (SCC) case Potter v. New Brunswick sets an important precedent for the protection of employee rights across Canada. After Potter, an employer’s ability to suspend its employees has been limited to a set of clearly-defined circumstances, and the abuse of the suspension power will culminate in liability for constructive dismissal of the employee. David Potter, the Executive Director for the New Brunswick Legal Aid Services Commission, was suspended for an indefinite time while on sick leave. No details were provided to Mr. Potter regarding the reasons for the suspension, or its possible length. After over two months of…

After work conduct resulting in criminal charges not grounds for just cause dismissal, Ontario Superior Court of Justice rules Employers have the right to dismiss their employees for just cause, but off-duty conduct involving criminal charges by itself will not constitute such just cause, the court in Merritt v Tigercat Industries recently held. In order to adequately protect employees’ rights and privacy, employers are required to undertake an investigation into the supposed conduct and are only allowed to dismiss employees on this basis in a limited set of circumstances. In Merritt the employee, who was a general laborer at a…

Employees are entitled to reasonable notice at common law, unless their employment contract states otherwise. Notice provisions must, however, comply with the minimum requirements, as set out by the Employment Standards Act (ESA), regarding the minimum notice period and full benefit continuation, and they will otherwise be held as void and unenforceable. In Oudin v Le Centre Francophone de Toronto the court recently weighed in on the question of the standard of compliance with the ESA minimums. In this case, the employee was hired as a magazine production manager and subsequently dismissed without cause when the sales of the magazine…

In a recent case, the Ontario Divisional Court clarified the standard required for dismissal of employees during probationary periods. Employers are reminded that probationary periods are to serve as a time for determining the “suitability” of the employee for employment, but employers must be fair in their assessment. In Nagribianko v Select Wine Merchants Ltd., an employee started employment with Select Wine Merchants on a six-month probationary period and was dismissed just before the end of the trial period. The employee filed a wrongful dismissal suit. The Ontario Divisional Court held that the standard of dismissal for probationary employees is…

In the recent case of Bhasin v. Hrynew the Supreme Court of Canada established a new duty of good faith that applies to all contracts, including employment contracts. This duty requires the parties to be honest with each other in regards to the performance of their contractual obligations. The court held that, while performing the contract, each party should have an “appropriate regard” to the legitimate interests of the other party. Further, the parties may not act in a manner which is arbitrary or capricious. This duty of good-faith dealing has been subsequently applied to the employment-dismissal context in Styles v. Alberta Investment…

In a series of cases the Court of Quebec looked at the question of an employer’s justification of termination for “serious reasons’ and held that an employer’s legitimate business reasons are not the same as “serious reasons” at law. The two cases Corporatek Inc. v. Khouzham and Premier Tech Ltée v. Dollo stand for the principle that, in non-disciplinary cases, prior to terminating employment for a “serious reason,” an employer must first notify the employee of the risk of termination, explain the reasons for the decision, and allow the employee to address their shortcomings. This applies even if the employee…

The recent decision of Michela v. St. Thomas of Villanova Catholic School reaffirms that employers have an obligation to provide reasonable notice to employees, regardless of the employer’s financial circumstances. This obligation is not reduced when the employer faces financial hardship and, as such, economic hardship is not relevant to calculating the length of the reasonable notice period. The case was brought by a number of long-tenured teachers, who were notified of their termination at the end of a school year, due to apparent financial difficulties that the school was facing. The court affirmed that the length of a reasonable…