Latest Posts

Personal Emergency Leave and Bereavement Leave in the Automotive Manufacturing Sector

Under the Employment Standards Act, 2000, (the ESA), most employees whose employer regularly employs 50 or more employees are entitled to 10 days of unpaid personal emergency leave annually for any of the following reasons:

•  a personal illness, injury or medical emergency;

•  the death, illness, injury or medical emergency of a family member (as listed in the ESA); 

•  an urgent matter that concerns a close family member (as described in the Act).

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Guidance From the Ontario Court of Appeal on the Enforceability of Termination Provisions

In our overview of significant cases and trends in 2016, we reported on a series of decisions signalling a move away from the overly technical interpretation of termination clauses in employment contracts, and a return to a more employer-friendly, common sense approach focusing on the intentions of the parties.

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OHRC Issues Policy Position on Medical Documentation and Disability-Related Accommodation

When faced with a disability-related accommodation request, employers often have questions around the type and scope of medical information they can request from the employee in order to support the accommodation request and facilitate the accommodation process.

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Feb 9, 2017
How to Say What You Mean: The Importance of Contractual Bonus Language

In the last six months, Canadian appellate courts have considered employer’s bonus plans three times. Having discussed the implications of these decisions with many clients, the common reaction seems to be: But that isn’t what we meant when we drafted our plan! Rather than debate how language can be misinterpreted, the more constructive approach simply is to fix it. When these appellate decisions are considered carefully, the take-away message for employers is that incentive plan language will be carefully scrutinized and entitlement only excluded where the language clearly supports that result.  Accordingly, now is the time for employers to review their existing plans and policies and update them, where appropriate, to ensure that they will be interpreted as they intended.

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Supreme Court of Canada Refuses Leave to Appeal in Key Decision Upholding Termination Provision

In another good news development for employers, the Supreme Court of Canada has denied leave to appeal in Oudin v Le Centre Francophone de Toronto.

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Jan 17, 2017
Ontario Human Rights Commission Issues Updated Policy on Disability Discrimination

In late 2016 the Ontario Human Rights Commission (the OHRC) issued a new version of its policy on discrimination due to disability, which has been renamed the Policy on Ableism and Discrimination Based on Disability. In its press release announcing the update, the OHRC noted that since the policy was first launched in 2001, there had been significant developments in case law, research and international human rights standards which merited a review of the former policy. The new policy includes use of the term “ableism,” which the OHRC defines as “attitudes in society that devalue and limit the potential of people with disabilities.”

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Jan 3, 2017
Top 10 Employment & Labour Law Cases and Trends in 2016

2016 was a significant year for employment law with precedent-setting decisions on a variety of issues combined with new legislation that continues to alter the Canadian employment law landscape. While a number of these decisions suggest that a common sense approach to employment law issues may be underway, other decisions and legislative developments highlight the potential liabilities facing employers and the need to remain vigilant.

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Nov 30, 2016
TAGS: Wage Gap
Ontario to Target Wage Gap

The Ontario Ministry of Labour has announced that it is creating a new working group to provide the government with advice and feedback on how to address the gender wage gap in Ontario. The working group will be comprised of members of the business, labour and human resources communities, as well as representatives of women’s advocacy groups. The working groups are expected to focus on how the government can better leverage tools such as the Pay Equity Act and parental leaves to address gendered wage disparity in the workplace. The Ontario government estimates that Ontario’s gender wage gap ranges from 14% to 26%.

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Ministry of Labour Announces Results of Compliance Blitz

Late last week the Ontario Ministry of Labour posted the outcome of its recent blitz focused on temporary foreign workers and young workers. For the purpose of the blitz, workers under 25 were classified as “young workers.” Both categories of workers are considered to be vulnerable by the Ministry of Labour. 

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Ontario Minimum Wage Increase

Ontario is raising the general minimum wage from $11.25 to $11.40 on October 1, 2016.  This is the third consecutive year it has increased.
 

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Compliance Alert: Increase to Minimum Wage and Ministry of Labour Announces New Employment Standards Blitz

The Ministry of Labour has announced a targeted compliance blitz focused on “repeat violators” of the Employment Standards Act, 2000 (the ESA). The blitz will take place during both September and October 2016. Although the Ministry did not define “repeat violators,” it is safe to assume that it refers to employers who have been prior recipients of compliance orders or successful claims under the ESA.

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Court of Appeal Reverses Trial Judge, Finds Cause and Awards Costs to Employer

In the fall of 2014, Justice Lemon of the Ontario Superior Court of Justice decided that a private school had wrongfully dismissed a teacher who had committed academic fraud by submitting grades he knew to be inaccurate and then lied about it when confronted.  The decision seemed all the more egregious as, in addition to awarding the teacher 12 months’ salary and benefits, the Court also found the teacher became disabled following the termination of his employment and was entitled to disability benefits in addition to $130,000 of legal costs awarded on a substantial indemnity basis. 

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Ontario Court of Appeal Upholds Enforceability of Notice-Only Termination Provision

In a good news decision for employers, the Ontario Court of Appeal recently dismissed an appeal of the summary judgment decision of Justice Sean Dunphy which upheld a termination provision that permitted the employer to terminate the employee by providing the “minimum notice required under the Employment Standards Act”. Notably, the termination provision in question in Oudin v Le Centre Francophone de Toronto did not include any reference to severance pay or continuation of benefits, which employee counsel will typically argue renders a termination provision invalid. Copies of the Court of Appeal’s decision and the underlying decision of Justice Dunphy can be found here and here, respectively.

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Ontario Court of Appeal Weighs in on Terminating Fixed Term Contracts

In May of last year we gave our readers an update on a recent Ontario decision regarding early termination of a five year fixed contract, Howard v. Benson Group Inc.  Mr. Howard’s employment was terminated without cause after only 23 months of service.  He brought a claim for payment of the remaining 37 months of the term.  Justice MacKenzie of the Ontario Superior Court of Justice was asked to determine on a motion for summary judgment whether an early termination clause in a five year term agreement was enforceable and if not, what damages were owed to the plaintiff?  Was he entitled to payment for the remaining term of the agreement or would it suffice for the employer to give him reasonable notice of termination?  At a motion for summary judgment, MacKenzie J. found that the without cause termination clause was ambiguous and thus not sufficient to limit Mr. Howard to his Employment Standards Act, 2000 ( “ESA”) minimums.  He then went on to determine that the fixed term agreement did not have any other language that would displace the common law presumption of reasonable notice.  Thus, Mr. Howard was entitled to reasonable notice of termination and not to payment for the remaining term of the contract.  MacKenzie J. also held that Mr. Howard had a duty to mitigate his damages by seeking new employment.

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Jun 30, 2016
AODA Update: Changes to the Accessible Customer Service Standard for Ontario Employers

On July 1, 2016, a number of changes under the Accessibility for Ontarians with Disabilities Act, 2005 (AODA) will take effect. The changes will consolidate the following two regulations under the AODA:  (1) Ontario Regulation 429/07 – Accessibility Standards for Customer Service (the Customer Service Standard);  and (2) Ontario Regulation 191/11 – Integrated Accessibility Standards.

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Less Than Perfect Termination Clause Upheld

As employers have discovered in recent years, although termination clauses are a best practice, former employees will do whatever they can to set them aside following termination.  In many cases, courts have set termination clauses aside, despite the apparent intent of the parties, where they are not drafted perfectly.  A recent case, Wood v. Fred Deeley Imports Ltd., 2016 ONSC 1412 suggests that the very high standard imposed on employers may have lessened somewhat.  

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Ontario Court of Appeal Upholds Controversial Human Rights Decision Ordering Reinstatement of Former Employee

The Ontario Court of Appeal has upheld a surprising decision from the Ontario Human Rights Tribunal (“the Tribunal”) that ordered a terminated employee be reinstated to her position with full seniority almost a decade after she had left the workplace.

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Dos and Don’ts for a Successful Office Summer Party

Thinking of hosting a summer party for your employees? This can be a great way to build morale and team spirit. However, given the potential liability facing employers, care should be exercised. A few precautionary measures can go a long way towards limiting your risks.
 
With that in mind, here are a few dos and don’ts to help employers host a successful (and liability-free) summer party:

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Ontario Court Dismisses Claims for Constructive Dismissal and Bad Faith Damages Arising from Workplace Investigation

Claims of constructive dismissal and allegations of bad faith in the context of workplace investigations can be particularly challenging for employers. However, a recent decision of the Ontario Superior Court of Justice provides an example of when such claims will not be successful and includes some helpful findings for employers facing similar claims.

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Apr 11, 2016
TAGS: OHSA
Update on Bill 132: Sexual Violence and Harassment Action Plan Act

On March 8, 2016, Bill 132 received Royal Assent at the Legislative Assembly of Ontario. The Bill is part of the Ontario government’s strategy to support survivors of sexual violence and eliminate sexual harassment.  Bill 132 amends several existing laws that affect people experiencing sexual harassment and violence in the province. Of particular note to employers are the amendments to the Occupational Health and Safety Act(OHSA).

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