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Can Poor Economic Conditions Increase Reasonable Notice Period?

By Employment Law

Whenever the economy takes a downturn, people are more likely to lose their jobs. But does the state of the economy affect the reasonable notice period and employee is entitled to? As it turns out, it does. The fact that poor economic conditions increase the reasonable notice period can be traced back to the landmark case, Bardal v Globe and Mail Ltd. (1960), 24 DLR (2d) 140 (ONSC). This case sets out the basis for determining the reasonable notice period. Bardal holds that one of the key factors that shape the reasonable notice period is “the availability of similar employment”….

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Different Legal Avenues for Different Legal Problems – A Guide for Navigating the Routes to Employee Justice

By Employment Law

Depending on the facts of their situation, aggrieved employees who’ve been treated unlawfully by their employers (or former employers) have different legal routes they can take. Generally, courts and tribunals disfavor the commencement of multiple legal proceedings stemming from the same legal issue. This helps provide efficiency and ensures that defendants to proceedings are not harassed repeatedly for the same legal problem. It also helps prevent claimants from relitigating their case if unsuccessful. The legal doctrine that encapsulates this is called “issue estoppel.” Further, some legal bodies specifically preclude making a claim for the same relief in multiple proceedings. For…

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Does Your Employer Owe You A Duty of Good Faith?

By Employment Law

Matthews v Ocean Nutrition Canada Ltd is a landmark employment law case that was heard by the Supreme Court of Canada in January 2020. David Matthews worked for Ocean Nutrition from 1997 to 2011. In June 2011, he sued Ocean Nutrition for wrongful dismissal damages, including the loss of a Long-Term Incentive Plan (the “Plan”), which had been paid to him by the company regularly throughout his employment. The Plan provided that, if the company was sold while Matthews was employed by it, he was entitled to receive a portion of the sale proceeds based on the formula contained in the…

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Choice of Forum and ESA Leave Reprisals

By Employment Law

One of the most important decisions an employment lawyer must make when they first assess a claim is deciding the appropriate forum in which to bring a potential claim. Generally, a legal issue stemming from a specific circumstance cannot be litigated in more than one forum. As an example, a worker who has been terminated from their employment shortly after they announced their pregnancy cannot commence an application before the Ontario Human Rights Tribunal (the “Tribunal) and a claim before the Ministry of Labour (the “Ministry”). ‘Double dipping’ in such a manner is considered an abuse of process, and where…

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Stay or Leave: If you employer reduces your pay significantly?

By Employment Law

When your employer unilaterally announced a significant reduction in your pay due to financial difficulties or any other reasons during your employment, should you stay and keep working at the reduced rates, or leave and treat the reduction in pay as constructive dismissal? The answer is LEAVE NOW and consult with a lawyer as soon as possible. Stay and keep working can be considered a silent acceptance of the changes in your employment relationship with your employer, which may disentitle you from a constructive dismissal claim. However, even you explicitly objected the changes, namely the significant reduction in pay in…

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Are you Entitled to “Extraordinary” Damages?

By Employment Law

One of the most salient considerations in actions for wrongful dismissal is whether the plaintiff claims extraordinary damages against his or her former employer. In a wrongful dismissal claim, “ordinary damages” are typically defined as the amount of pay in lieu of reasonable notice that an employee was presumptively owed at common law, but for which the employer never paid them upon termination. These damages are almost always claimed in such matters as they essentially form the main “cause of action.” They arise from the contractual breach of the implied term of reasonable notice that employers are bound by at…

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An Introduction to the Oppression Remedy

By Employment Law

The oppression remedy is a valuable legal tool that allows for redress when corporate conduct is oppressive or unfairly prejudicial to, or unfairly disregards the interests of, shareholders, creditors, directors or officers of a corporation. At common law, courts are quite hesitant to intervene in a corporation’s affairs due to an often-cited rule called the ‘business judgment rule.’ The judiciary has humbly recognized that not only does it lack the material expertise with respect to running a corporation, but that businesses operate in incredibly complex systems. Therefore, a presumption is granted to business directors and executives that in making a…

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Allocating Payments in a Wrongful Dismissal Action

By Employment Law

As some regular readers may know, an overwhelming majority of wrongful dismissal claims never end up proceeding to trial. Instead, they settle out of court without ever being adjudicated. When considering the vast resources, time, energy and stress involved with litigating a claim, settlement often makes the most sense. Were a matter to proceed to trial, it means that the dispute would end up on the public record. Very seldomly will a party wish for its dirty laundry to be aired out in the public forum, especially where claims of bad faith are made, or where the employee was fired…

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Can You File a Human Rights Application Against Your Former Employer If You Have Already Signed a Release?

By Employment Law

Being terminated from your employment can be a very stressful experience. Unfortunately, this can result in poor in-the-moment decision making that you may later regret. Many people that find themselves in such a situation are too quick to agree to a settlement with their employers. They sign release documents only to later realize that they may have been entitled to more than they agreed to and wish that they could bring a claim against their former employer. Release documents in such situations generally prevent a former employee from bringing any claims against his or her former employer, often including human…

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When Will Inducement Factor into an Employee’s Entitlements to Reasonable Notice of Termination?

By Employment Law

Employees are generally entitled to reasonable notice of the termination of their employment or pay in lieu thereof at common law. Courts usually determine what length of notice is “reasonable” in any given case by considering the factors set out in Bardal v. Globe & Mail Ltd., [1960] OJ No 149 (SC), which include: the character of the employment, the length of the employee’s service, the employee’s age, and the availability of alternative employment given the employee’s training, qualifications and reasonable prospects of finding suitable employment. However, Canadian courts have recognized additional factors that may be relevant to the appropriate…

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