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Is Your Employer Taking Your Complaints Seriously?

By Uncategorized

In Bassanese v. German Canadian News Company Limited et al., the Superior Court of Justice considered an employee’s complaints of harassment in the workplace and the requirement that employers take steps to investigate such complaints. The Court not only awarded compensation in lieu of notice for wrongful termination but awarded the employee damages for assault and battery as well as aggravated damages. In total, the employee was awarded compensation totaling $194,433.17 and $10,000.00 in costs. This case provides an example of the consequences that employers face if they fail to take workplace harassment complaints seriously. It also serves as a…

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Does your Employer Owe you a Duty of Good Faith?

By Uncategorized

In short: yes. In 2014, in a landmark decision called Bhasin v. Hrynew, the Supreme Court of Canada recognized that acting in good faith is an “organizing principle” underlying all contract law. Acting in good faith may take various forms depending on the context, and will be fact-specific. In the employment context, the Supreme Court of Canada stated that “acting in good faith in relation to contractual dealings means being honest, reasonable, candid and forthright.” Below details Jonasson v. Nexen, a 2018 case where the employer did the exact opposite and was required to pay damages for breaching its duty…

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Do You Have an Obligation to Return to Work if You Have Been Constructively Dismissed?

By Uncategorized

The answer: it depends. Upon dismissal, employees have an ongoing obligation to mitigate their damages. In certain circumstances, such a duty requires employees to return to work. In Gent v. Strone Inc., the Superior Court of Justice determined that the employee failed to appropriately mitigate his damages as he had an obligation to return to work under the circumstances. The employee was a fifty-three-year-old Health and Safety Training Specialist who had worked for the company for more than 22 years. He was temporarily laid off due to a lower work volume. The employee was told he’d be recalled as soon…

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Can an Employee’s Permanent Disability Lead to a Lawful Termination?

By Uncategorized

In Katz et al. v. Clarke, the Ontario Divisional Court considered the issue of whether an employee’s desire to work prevents the employer from terminating them. Employers find themselves in a dilemma when their employee expresses a desire to return to work from disability leave while their doctor recommends otherwise. The Ontario Court of Appeal upheld the decision and confirmed a rule that assists employers in determining whether they can terminate a disabled employee. In Katz et al. v. Clarke, the employee had been on disability leave since 2008. The employee went on short-term leave which transformed into long-term leave….

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An Employer’s Continuing Obligations When Outsourcing Disability Management to Third Party

By Uncategorized

Employers across Canada are well-versed in their duty to accommodate under human rights legislation. Outsourcing disability management to outside experts is one strategy employers are using to separate such duties from their main work functions, thereby increasing concentration on core business and maintaining confidentiality in the workplace. In Knight v. Surrey Place Centre, the Ontario Human Rights Tribunal considered employer human rights obligations and issues surrounding delegation of the duty to accommodate. The Tribunal held that while it is acceptable for employers to outsource disability management, such an arrangement does not change employers’ obligations to disabled employees: “If the employer…

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Worker’s Compensation Claims for Chronic Mental Stress May Be Recognized, but Are They Actually Provable?

By Uncategorized

As of January 1, 2018, claims for work-related chronic mental stress have been recognized in workplace compensation cases in Ontario. However, the vast majority of these chronic mental stress claims have been unsuccessful given the difficult criteria required to prove these claims. A worker is generally entitled to benefits for chronic mental stress “if an appropriately diagnosed mental stress injury is caused by a substantial work-related stressor.” In addition, the WSIB decision-maker must be able to identify what has happened to cause chronic mental stress, including through the gathering of information from co-workers and supervisory staff. This process represents a…

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Constructive Dismissal and Duty to Mitigate

By Employment Law

In Brake v. PJ-M2R Restaurant Inc., the Court of Appeal for Ontario considered two frequent issues in wrongful dismissal actions: constructive dismissal and the duty of an employee to mitigate employment losses by finding alternative employment. The Court found that the trial judge was correct in finding that the employee had been constructively dismissed. Of greater note, the Court confirmed the trial judge’s decision that the employee’s income during the reasonable notice period would 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…

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Employee or Independent Contractor re: Bill 148 vs Bill 47

By Employment Law

Classification of employees versus independent contractors is important for several notable reasons. 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 entitlements under the Employment Standards Act for these benefits and protections. In late-2017, the Ontario government amended several aspects of the ESA in the form of the Fair Workplaces, Better Jobs Act, also known as Bill 148. Particularly notable was Bill 148’s tightening of the law with respect to who should be classified as an employee. For…

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Severability Clause – Termination Provisions

By Employment Law

In order for a termination clause in an employment contract to be considered valid, it must adhere to the minimum standards under the Ontario Employment Standards Act (“ESA”). Many employers include termination clauses to reflect their intention to limit entitlements owed to an employee based on these standards. In order for courts to consider the termination provisions in an employment contract valid, the clause must be drafted in a manner that clearly reflects the parties’ intentions to abide by the ESA’s statutory minimums. This includes addressing issues such as continued payment of employee benefits, severance, providing reasonable notice and payment…

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