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More Changes to Ontario’s Employment Legislation
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More Changes to Ontario’s Employment Legislation

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Bill 66, Restoring Ontario’s Competitiveness Act received Royal Assent in the Ontario legislature on April 3, 2019, putting into effect several changes to Ontario’s employment laws. These added to the amendments that the Ontario government had made to the Employment Standards Act (the “ESA”) only months earlier through the passing of Bill 47, Making Ontario Open for Business Act. Both bills have resulted in changes to Ontario’s employment legislation that reflect the current government’s employer-friendly inclination. Although the Restoring Ontario’s Competitiveness Act impacted various pieces of legislation, the changes most relevant to the average non-unionized employee will likely be those…

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Should Reasonable Notice of Termination Depend on What Season It Is?

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When someone is terminated, they are generally entitled to reasonable notice at common law or pay in lieu thereof. In Canada, courts determine what the reasonable notice period is in any given case based on 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 also come into play.  In Fraser v Canerector Inc, 2015 ONSC 2138, the Ontario Superior Court of Justice included an additional factor in its decision – the time of year. Mr. Fraser had…

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The End of Bill Peters’ Time as Head Coach of the Calgary Flames: What it Can Teach You About Employment Law

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On November 29, 2019, Bill Peters resigned as head coach of the NHL’s Calgary Flames. This came four days after Nigerian-born Akim Aliu alleged that Peters used racial slurs towards him 10 years ago when Peters coached him on the AHL’s Rockford IceHogs. Subsequently, allegations of physical abuse were made by other players formerly coached by Peters. Given that NHL head coaches are often terminated suddenly when their teams underperform, many wondered why it took four days for his tenure with the Flames to come to an end. The likely answers to many peoples’ questions offer a good review of…

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What are the Consequences of a Termination Clause that Breaches the ESA?

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Most employment contracts contain a termination clause that defines an employee’s rights to notice, severance, or termination pay in lieu of notice. Termination clauses are almost always drafted in favor of the employer by limiting notice periods to statutory minimums contained in the Employment Standards Act (“ESA”). In the absence of such a clause, or where the clause is present yet unenforceable, the employee is owed more generous common law notice, which is approximately one month for every year of service. Accordingly, the validity of a termination clause can have significant financial ramifications on both the employer and the employee.  Enforceability of termination clauses can…

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What Happens When Your Employer Rehires the Person Who Sexually Harassed You?

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In the #MeToo era, more people are speaking up about workplace sexual harassment, and employers are feeling pressure to develop better methods of addressing it. However, the problem has far from disappeared, partly because there are limited forms of recourse available to victims. Those available generally involve holding employers responsible for how they address instances of sexual harassment. This strategy is limited in its effectiveness and fails to adequately address the harm to the victim. A recent Ontario Court of Appeal decision is an example of how the law gives leeway to employers that generally benefits sexual harassers. Further, it…

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What is a Sufficient Amount of Time for Obtaining Independent Legal Advice?

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Most contracts are written in dated legalese that even the most seasoned lawyer can struggle to comprehend. Where one party to an agreement is less sophisticated and holds less power, and the other party (that likely drafted the contract) yields more power, courts will look to confirm that the less sophisticated party understood the agreement they were signing off on.  Courts are especially vigilant to circumstances where the lesser party bore an amount of risk that was significantly higher than the benefit they gained. A good example is a loan guarantee. A guarantor may not understand the document, and may…

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Will the Supreme Court of Canada Clarify What Language Is Required to Exclude Bonus and Incentive Plan Entitlements from Termination Pay?

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When an employee is terminated without cause, he or she is generally entitled to reasonable notice or pay in lieu thereof. The employer is required to pay the employee all of the regular compensation that he or she would have received during the notice period. Regular compensation means more than base salary – it includes benefits such as non-discretionary bonuses and stock option plan entitlements. Many employers attempt to limit entitlements to such benefits by including clauses in incentive and bonus agreements that require “active employment” for the agreement to remain in effect, or that extinguish benefits upon an employee’s…

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Whose Burden Is It? The Yo-Yoing Responsibility of Proving Whether Someone Is an Employee or an Independent Contractor

By Uncategorized

Whether you are classified as an employee versus an independent contractor is important for several reasons. For one, 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 entitlement to ESA benefits and protections. In late 2017, the Ontario government amended several aspects of the ESA through the Fair Workplaces, Better Jobs Act, also known as Bill 148. Particularly notable was Bill 148’s tightening of the law with respect to classifying people as independent contractors. For employers who classified…

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Is a Prospective Employer Allowed to Lie or Mislead You During the Interview Process?

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When an employer deliberately misleads or lies to a prospective employee to induce him or her to accept an offer of employment, the employer can be held liable for negligent misrepresentation. 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 for…

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When Is Post-Termination Income Deducted from Damages for Wrongful Dismissal?

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In Brake v. PJ-M2R Restaurant Inc., the Ontario Court of Appeal considered what type of income earned during the reasonable notice period should be deducted from damages for wrongful dismissal. After upholding the trial judge’s decision that the employee had been constructively dismissed, the Court in Brake confirmed that the trial judge was also correct in holding that the employee’s income during the reasonable notice period should 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. The employee was a 62-year-old long-serving manager of…

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