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The Gig-Economy, Inter jurisdictional Working Arrangements, and the Choice of Law
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Employment Law

The Gig-Economy, Inter jurisdictional Working Arrangements, and the Choice of Law

By Employment Law

One of the emerging trends in Canadian workplaces is the increasing number of flexible working arrangements. The rise of online services, and gig-economy apps like Uber and Doordash, has afforded many Canadians the ability to set their own hours. These work arrangements occur through independent contracting agreements that are either national or international in scope. For example, an Ontario corporation could enter into an exclusive distributor agreement with a British Columbia resident while an Alberta resident could enter into a service agreement with a California tech company. These inter-provincial and international arrangements create their own unique legal challenges, especially since…

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What Happens When Just Cause for Termination Is Discovered After an Employee Has Already Been Dismissed?

By Employment Law

Whether someone is terminated with or without just cause can have significant financial implications. Where an employer correctly terminates an employee for just cause, it is not required to provide the employee with any notice of termination or payment in lieu thereof, unlike where the dismissal is without cause. However, the employer does not necessarily have to get it right at the time that the dismissal is communicated to the employee. After-acquired cause refers to just cause for termination that is discovered after an employee has already been dismissed. Although it gives employers some room for error at the time…

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“Consideration” and Employment Law – How Archaic Legal Principles are Still Relevant to Very Modern Legal Problems

By Employment Law

An employment contract is the central document that binds both parties, by setting out their legal obligations and responsibilities. When a dispute arises, a judge analyzes the contract to try and determine what the parties agreed to. A contract of employment can exist between parties, even if it has not been reduced to writing. After-all, if the employee is performing work, and the employer is paying for the work, there is an agreement between the parties. Employment relationships that are not reduced to writing are often more favourable to the employee, especially because in most cases, a written contract serves…

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Is Your Employer Allowed to Lay You Off?

By Employment Law

Employers lay off their employees for a variety of reasons. Whether it be due to lack of work, financial issues, or some other reason, the impact is still the same for employees – loss of work. However, many people do not know whether they can do anything in response to being laid off. This post will outline some of the basic principles relating to layoffs and how employees can respond. What Is a Layoff? Many people believe that a layoff is the same thing as a termination. This is not the case – a layoff refers to an employer reducing…

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Are Terminated Employees Entitled to Unvested Stock Options That Would Have Vested During the Notice Period?

By Employment Law

The answer: Yes. How did we get here? The answer lies in the Court of Appeal for Ontario’s evolving approach to this issue in recent years. A terminated employee’s right to exercise stock options during the reasonable notice period has been an increasingly litigated issue that has been rife with uncertainty. Employers often take the position that the language used in these employee incentive agreements results in their cancellation on the date of termination. Unsurprisingly, employees assert entitlement to all non-discretionary remuneration that was a fundamental part of their compensation. In 2004, the Court of Appeal for Ontario released 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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Negligent Misrepresentation during the Interview Process

By Employment Law

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 their negligent misrepresentations. 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…

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Future Proofing Employment Contracts

By Employment Law

Employers must exercise caution when drafting the terms of employment contracts. An improperly drafted provision in an employment contract can have unintended consequences, even if those provisions seem valid at the time the contract is executed. Contract provisions, at minimum, must fall within the minimum standards set out in provincial legislation, both in the present and as the contract endures into the future. The Ontario Employment Standards Act (ESA) provides the minimum standards for most employees in Ontario. The Act establishes rights and responsibilities for employees and employers, including the minimum standards surrounding reasonable notice or payments in lieu of…

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