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Supreme Court of Canada rules on employee suspensions
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Supreme Court of Canada rules on employee suspensions

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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…

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After work conduct resulting in criminal charges not grounds for just cause dismissal, Ontario Superior Court of Justice rules

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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…

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Court speaks on the compliance of termination clauses with the Employment Standards Act

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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…

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“Suitability” the standard for dismissal during probationary periods rules Ontario Divisional Court

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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…

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Recent Supreme Court of Canada Decision May Signal a Stronger Duty of Good Faith for Employers

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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…

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Quebec Court holds that Good Business Reasons for terminating an Employee are not the same as “Serious Reasons” at Law

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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…

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Court of Appeal for Ontario Says Employer’s Financial Hardship Cannot Affect Reasonable Notice for Dismissal

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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…

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Employers must provide fresh consideration for new employment contracts entered during the employment period

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In the recent case of Holland v. Hostopia.com Inc. the Court of Appeal for Ontario ruled that fresh consideration will be needed in order to enforce employment contracts signed mid-employment that introduce new material terms. Such situations often arise in cases like the one of Mr. Holland who, after several months of working with Hostopia, was presented with a new employment agreement that contained a new termination clause. This clause was not present in the initial agreement he signed when offered the position with the company. Several years later the employer relied on this clause to terminate Mr. Holland’s employment on a…

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Ontario Court gives plaintiffs a novel means of enforcing their privacy rights

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The advent of the Internet and social media, has introduced a myriad of new problems for privacy law, which has become an increasingly inadequate means of protecting people’s privacy rights. Fortunately, in the recent case of Doe 464533 v N.D. the court recognized this issue and decided to better align current privacy law with the modern state of technology, and as such give plaintiffs a novel means of punishing the breach of their privacy rights. In this case, a young woman decided to share a sexually explicit video of herself with her ex-boyfriend, who later posted the video on a…

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Vegans argue that they deserve the protection of Ontario Human Rights Law

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Both the legal community and the public are used to understanding Human Rights Law as protecting cultural, ethnic and religious affiliation, but vegan rights groups such as Animal Justice, are fighting to expand this definition and make veganism another protected human right’s ground. The current version of the policy on preventing discrimination based on creed of the Ontario Human Rights Commission reads: “Creed may also include non-religious belief systems, that like religion, substantially influence a person’s identity, worldview and way of life”. The vegan groups argue that the recent changes in the definition of the word “creed” suggest, that ethical…

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Victim of Racial Profiling by Police obtains a $10,000 award of damages at the Human Rights Tribunal

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The recent case of Joseph Briggs, a child and youth care student arbitrarily detained by the Durham police, in what the Human Rights Tribunal of Ontario has called a case of racial profiling, showcases the violations of human rights faced by minority individuals in the GTA, as well as the urgent need for reform of the policing culture in Ontario. Mr. Briggs, was detained after deciding to have a quick meal at his local Subway restaurant following a long study session when police officers decided to check the plates of his car with the police database and mistakenly believed that…

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