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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
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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Manitoba Government Passes Law Giving Victims of Domestic Violence Paid Leave

The Manitoba Employment Standards Code was recently amended to give victims of domestic violence job-protected leave from work to deal with issues arising from their abuse.  The legislation provides that such individuals are eligible for two categories of annual leave: (i) 10 days, which may be taken intermittently or continuously, 5 of which are to be paid by the employer and (ii) up to 17 weeks of unpaid leave, which can only be taken continuously.   To be eligible for this leave the employee must have been employed for at least 90 days and must be a victim of domestic abuse within the meaning of the Manitoba Domestic Violence and Stalking Act, which defines the concept as follows:

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Ontario Human Rights Commission Issues Rare Clarification of New Policy on Creed

In late 2015, after four years of consultation and research, the Ontario Human Rights Commission (the “Commission”) published its Policy on Preventing Discrimination on the Basis of Creed.  The new policy replaced the prior version, which had been published in 1996.  Significantly, the new policy specifically affirmed that, in the Commission’s view, the term “creed” included non-religious belief systems that “substantially influence a person’s identity, worldview and way of life”.  Non-religious beliefs had been excluded from the protection of the Human Rights Code (the “Code”) by the 1996 policy. 

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Feb 18, 2016
Ontario is Proposing Legislation to Create a Presumption that PTSD in First Responders is Work-Related

Today, the Ontario Ministry of Labour announced that the Ontario government intends to introduce legislation creating a presumption that post-traumatic stress disorder (PTSD) diagnosed in first responders is work-related, with the aim being to streamline access to WSIB benefits and other treatments. The legislation would also require employers to implement PTSD prevention plans in the workplace.

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Court of Appeal approves 26 months' notice for contractors

Last week, Ontario’s highest appellate court dismissed an appeal by Canac Kitchens of a decision awarding two of its contractors each 26 months’ notice. Canac Kitchens has become a notorious litigant for having provided employees with only their minimum statutory entitlements on the closure of its business and having now lost over a dozen cases on what constitutes reasonable notice. 

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Jan 21, 2016
Employer Fails to Pay $328,000 Bonus, Employee Sues, Everyone Loses

What do you think one of your employees might say if you decided not to pay over $300,000 in owed compensation? Well, the Ontario Superior Court of Justice recently considered just that, and concluded that the employee did not reasonably respond in alleging constructive dismissal of employment. But, of course, it’s not so simple.

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Metron Project Manager Receives 3.5 Year Jail Sentence

On January 11, 2016, Justice Ian MacDonnell sentenced a Project Manager of Metron Construction to 3.5 years in prison as a result of his conviction on four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm. The charges arose from a tragic accident on December 24, 2009, in which a high-rise swing stage collapsed causing the deaths of four workers and injury to a fifth.

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The 2016 To Do List for Ontario HR

I am a lover of lists and a new year is definitely the time for lists and resolutions.  My love of lists and the satisfaction of deleting completed tasks has been reinforced by a neuroscience professor who recommends lists to get a more organized and calmer brain. (The short article and podcast link is: For Ontario HR Practitioners who are similarly inclined, here’s my To Do list for 2016.

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Dec 17, 2015
Top 10 Employment & Labour Law Cases & Trends in 2015

Issues arising from employment relationships continued to make the news in 2015, as both the Ontario legislature and our Courts weighed in on the changing economy and its impact on workplaces, human rights concerns and the rights and responsibilities of employees at work.

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Dec 10, 2015
Ontario Passes New Legislation Aimed to Protect Workers

As announced today by the Ontario Ministry of Labour, the Ontario government has passed the Employment and Labour Statute Amendment Act, 2015 (the "ELSA"), which amends each of the Workplace Safety and Insurance Act (the "WSIA"), the Fire Prevention and Protection Act and the Public Sector Labour Relations Act.

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How Discretionary is Your Discretion? Alberta Court Awards $440,000 for Lost "Discretionary" LTIP

The Court of Queen’s Bench of Alberta has recently issued a decision that challenges certain assumptions about how discretionary bonus plans, including Long Term Incentive Plans (“LTIP”), may be dealt with on termination of employment.  In Styles v. Alberta Investment Management Corporation 2015 ABQB 621 (CanLii), Justice D.A. Yungwirth found that Mr. Styles was inappropriately deprived of the chance to vest toward LTIP awards granted to him during his employment and awarded him significant damages to compensate him for this lost opportunity.  

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Ontario Government Introduces Bill 132: the Sexual Violence and Harassment Action Plan Act

On October 27, 2015, the Ontario Government introduced legislation designed to strengthen laws addressing sexual violence and harassment and to increase protections for complainants.

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