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Mississauga Employment Law Blog

Employee induced to leave his employment and terminated six months later awarded six months' pay

In Greenlees v. Starline Windows Ltd., [2018] B.C.J. No. 3074, the British Columbia Supreme Court awarded an employee six months' notice after working for only six months.

Prior to working for Starline Windows, Mr. Greenlees worked for Trevor Jarvis Contracting, earning roughly $100,000 per year as a sales representative. In January 2017, Mr. Greenlees received a cold-call from a sales manager at Starline Windows to discuss a job opportunity. Over the course of two meetings, Mr. Greenlees was offered a position working primarily in new residential projects with occasional work in renovation construction projects. The Starline representative estimated potential income in the range of $100,000 per year, including commissions, and that an income in excess of $100,000 per year was a realistic expectation. The employee was also promised that his commission rate would start at 3% and rise to 6% after three months. The employee accepted the position based on these representations made by Starline.

Escalating damage awards for employees at the HRTO

The Ontario Human Rights Code (the "Code") prohibits discrimination in five areas, including employment. An employee who successfully establishes a violation of the Code at the Human Rights Tribunal of Ontario ("HRTO") may be entitled to reinstatement and back pay, an award of general damages for "injury to dignity, feelings and self-esteem," or both.

Do continued earnings from a second or side job constitute mitigation income in the post-termination period?

The applicable jurisprudence on mitigation makes it clear that following a wrongful dismissal, if an employee declines a job, then the monies that would have been earned through performing the rejected job may well be deducted from any damages ultimately obtained by the plaintiff. But what about earnings from a second job or a side job? When an employee consults on the side or has a side job that is continued into the post-termination period, will this count as mitigation income? 

"Cowboy" employer ordered to pay aggravated damages for bad faith termination

In a recent case titled Lalonde v. Sena Solid Waste Holdings Inc. 2017 ABQB 374, the Alberta Court of Queen's Bench considered whether failing to hear an employee's side of the story before dismissing him for cause could increase an employer's liability.

The Plaintiff was a Journeyman Millwright. While employed he was called into a meeting by his manager where he was accused of serious safety violations, insubordination, and lying. The Plaintiff was given little opportunity to present his side of the story to the employer. The Plaintiff had been accused of stealing company property and was escorted off company property in plain view of his co-workers. The Plaintiff brought a claim for wrongful dismissal and aggravated damages on account of how he was treated before and during the termination.

A rollback on calculation of holiday pay for Ontario employees

As Ontario employers and employees know, the Employment Standards Act, 2000 (the "ESA") was recently amended by Bill 148 introducing a number of sweeping changes. Most of those changes have already come into effect, such as the increase of the minimum wage to $14 per hour effective January 1, 2018. Other changes are being introduced at a later date such as an employee having the right, without fear of reprisal, to request changes to their work schedule or location if they've been employed for 3 months.

One change has already been reversed and this will affect employees' take-home pay.

How should HR deal with accommodation requests?

In order for the duty to accommodate to be triggered, an employee must have a legitimate reason for making such an accommodation request. For instance, if a worker claims to have a disability, he/she must present medical evidence of this disability. Similarly, if the accommodation request is based on a religious requirement, the employee must truly be a practitioner of that faith - and the religious requirement must be real, not fabricated. The need must be compelling.
So, what are the steps for approving the duty to accommodate in regards to religion?

HRTO: Terminating Benefit Plans for Employees 65 and Over is Unconstitutional

In a very recent decision, the Ontario Human Rights Tribunal ("HRTO") ruled that it was unconstitutional for an employer to terminate the benefit plans of an employee who turned 65.

Talos v Grand Erie District School Board involved an employee whose extended health, dental and life insurance benefits were terminated by his employer, Grand Erie District School Board, when he turned age 65, although he continued to work on a full-time basis. After the termination of his benefit plans, Mr. Talos brought an application alleging discrimination on the basis of age. The issue was whether the exception contained in s. 25(2.1) of the Human Rights Code permitting the termination of employee benefits at age 65 violated Mr. Talos' equality rights under the Canadian Charter of Rights and Freedoms. The HRTO held that s. 25(2.1) of the Code violated the Charter and was unconstitutional.

What's new with the Fair Workplaces, Better Jobs Act, 2017?

The year 2018 will see new protections for employees under the recently passed Fair Workplaces, Better Jobs Act, 2017. The act was passed by the Ontario legislature on November 22, 2017 to create more opportunity and job security for workers in Ontario in a changing global economy.

On January 1, 2018 we saw the general minimum wage rise to $14 per hour, putting Ontario on par with the national minimum wage of Britain after adjusting for the exchange rate. The minimum wage in Ontario will go up by a further dollar on January 1, 2019 to $15 per hour and will thereafter be indexed to an annual inflation adjustment every October 1st beginning in 2019.

Record Human Rights Damage Award for Injury to Dignity, Feelings and Self-respect: AB v Joe Singer Shoes Limited

In AB v Joe Singer Shoes Limited, the Human Rights Tribunal of Ontario ("HRTO") awarded $200,000 to an employee for injury to dignity, feelings and self-respect resulting from repeated sexual assault and harassment. This is one of the HRTO's highest damage awards.

The employee immigrated to Canada from Thailand in 1979 and obtained her first job in Canada working for Joe Singer, since deceased, at Joe Singer Shoes Limited. Joe Singer was the father of Paul Singer, the alleged perpetrator of the sexual assault and harassment. Paul Singer became the employee's boss after the death of his father. Sometime after the employee and her husband separated in 1989, the employee moved into an apartment above the store where she worked. Her landlord was a company owned by Paul Singer.

Non-compete Agreements in Employment Contracts, are they enforceable?

Non-compete agreements and clauses are common in employment contracts. Employers use non-compete clauses to protect their business interests from competition from former employees. Often the non-compete will set out a geographic space and time within which a former employee is prevented from competing in a certain activity.


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