The Judicial Consideration of Porky Pig

I appreciate that I have not blogged very much in 2021. To say this year has been “busy” in the employment bar might be a touch of an understatement. However, it would appear that notwithstanding the paucity of new posts, some of you are still using this blog as a resource.

In Lamontagne v. J.L. Richards & Associates Limited, 2021 ONSC 2133 (CanLII), the Honourable Justice Pierre E. Roger of the Ontario Superior Court sitting at Ottawa referenced me and one of my oft-used phrases to resolve a perennial favourite question of the employment-law bar – “is this termination provision legal?”

So with reference to the meme above this is a post about a decision which referenced this blog.

Quit While You're Ahead and Leave the Numbers Out of It

Quit while you’re ahead and leave the numbers out of it. Those are the fundamental lessons from the decision of the Court of Appeal for Ontario in Rossman v. Canadian Solar Inc., 2019 ONCA 992 (CanLII).

In yet another case concerning a contractual termination clause, the Court of Appeal for Ontario held that adding the words “Benefits shall cease 4 weeks from the written notice” after language guaranteeing that the employer would comply with the ESA not only violated the terms of the ESA on its face but created ambiguity as to the employer’s true intentions.

Commentary

The case is a useful primer on the fundamental principles governing contractual termination clauses. In his reasons for decision, MacPherson J.A. sets out what he calls the “leading ‘umbrella’ cases in employment law” (see paragraphs 16-24 of the court’s reasons for decision), which is worth a read for anyone new to this issue.

As I read the Court of Appeal’s decision, the reason the termination clause failed is because of the placement of the ‘ESA guarantee.’ I get the sense that, had the employer’s guarantee to provide minimum statutory entitlements followed the ‘four-week’ clause, then perhaps the court would have upheld the provision. It’s tough to say though.

The lesson that I think one can glean from this decision is that if an employer wants to put a limit on something, then they would be prudent to refrain from using actual numbers.

Court of Appeal Finally Brings Much Needed Clarity to Issue of Benefits in Contractual Termination Provisions

(c) istock/Choreograph

It’s here. On February 23, 2017, the Court of Appeal for Ontario released its much anticipated decision in Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158 (CanLII).

After an initial reading of the case I tweeted, “I think we have our number one case of importance to Ontario Employment Law for 2017.” To which one observer responded, “Sean, it is only February! I will remember this tweet when you write your annual "Top 5" cases.” While I stand to be corrected in ten months, I was aware of the date when I authored that tweet.

While Wood is not quite everything that I had hoped it would be, it’s still a lot of things. It could well be the most important decision to Ontario employment law this year.

Supreme Court of Canada Denies Leave to Appeal in Oudin: But Does That Really Mean Anything?

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On February 2, 2017, the Supreme Court of Canada denied the application for leave to appeal from the judgment of the Court of Appeal for Ontario in Oudin v. Centre Francophone de Toronto, 2016 ONCA 514, dated June 28, 2016. As is customary of the Supreme Court, no reasons for the decision to deny leave were provided.

I previously blogged about the Oudin decision in the post The ONCA’s Decision in Oudin v. CFT Leaves One 'Wundering' – Is Wunderman Dead?, which was actually cited to the Supreme Court by the Applicant as one reason leave should be granted.

So what does the fact that the Supreme Court of Canada denied leave really mean for Ontario employment law?

Will Wood Finally Answer the Question of Benefits? There’s Hope.

This post will break from tradition. Rather than be a post about something that has happened, it will be an anticipatory post about something that is expected to happen.

On September 6, 2016, the Court of Appeal for Ontario heard the appeal of the decision reached by Mr. Justice Grant Dow of the Ontario Superior Court of Justice in Wood v Fred Deeley Imports Ltd., 2016 ONSC 1412 (CanLII). Should the court choose to answer all of the questions put to it by the appellant, then I have no doubt that the decision will fundamentally alter the landscape of Ontario employment law.

UPDATE: On February 23, 2017, the Court of Appeal for Ontario released its much anticipated decision in Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158 (CanLII). For analysis of that decision, see my post: Court of Appeal Finally Brings Much Needed Clarity to Issue of Benefits in Contractual Termination Provisions.

“Benefits”: The Most Important Word in Ontario Employment Law

What is the most important and expensive word in Ontario employment law? “Benefits.” That one single word has cost more employers more money, and created more headaches and confusion for Ontario employment lawyers over the past four-to-five years, than any other.

Why is the word “benefits” so important, expensive, and frustrating? Because there is a debate in Ontario jurisprudence as to whether the failure to specifically say “benefits” in a contractual termination provision renders the contract “void ab initio”, that is void from the start.

A decision of the Ontario Superior Court of Justice, released October 29, 2015, Oudin v Le Centre Francophone de Toronto, 2015 ONSC 6494 (CanLII), only serves to add to the confusion.

Termination from Employment While on Disability Leave

There is never a good time to be fired from one’s job. However, some times are worse than others. A particularly bad time to be fired is while absent from work on disability leave.

While there are few definitive answers when it comes to the law, this post will take a look at some of the most common questions concerning termination from employment during disability leave.

Court Finds the Phrase “Any Amounts Paid” to be Fatally Ambiguous

In the perhaps never-ending battle between employers and employees with respect to the issue of the enforceability of employment contracts, score another victory for employees and their position that employment contracts must be crystal clear before the courts will uphold them.

In the case of Howard v Benson Group, 2015 ONSC 2638 (CanLII) the Honourable Justice A. Donald K. MacKenzie found the following contractual provision to be null and void and therefore legally unenforceable:

[8.1] Employment may be terminated at any time by the Employer and any amounts paid to the Employee shall be in accordance with the Employment Standards Act of Ontario. [sic]

Employer Unable to Rely on Company Policy Not Incorporated into Employment Agreement

To what extent can employers rely on internal policies, not incorporated into an employment agreement, for determining employee rights and benefits? According to one decision from the British Columbia Supreme Court, very little.

Termination Provisions in Contract Unenforceable Without Continuation of Benefits

In a decision released in October 2011, Stevens v. Sifton Properties Ltd., 2012 ONSC 5508 (CanLII), the Honourable Justice Ian F. Leach held that where an employment contract failed to provide for the continuation of benefits throughout the applicable notice period - even though the employer actually maintained the benefits throughout the notice period - the contractual provision was of no force or effect.

Poorly Drafted Employment Agreement Proves Costly

If a termination provision in an employment agreement does not technically violate the provisions of the Employment Standards Act at the time of termination, but has the potential to do so at other times, is it still enforceable? “No” says the Ontario Superior Court of Justice.

The Requirement to Maintain Disability Benefits on Dismissal

As regular readers of this blog may know, I have a certain affinity for the decision of the late Justice Echlin in Brito v. Canac Kitchens, 2011 ONSC 1011 (CanLII), affirmed by the Court of Appeal for Ontario, 2012 ONCA 61.

The reason why the decision in Brito is so important is that Justice Echlin ordered an employer who had provided to its employees a group insurance plan to essentially stand in the disability insurer’s shoes when the employee was dismissed and the employer made no arrangements for the dismissed employee to maintain that insurance coverage beyond the statutory notice period; a decision that cost the employer nearly $200,000 in what was otherwise a modest wrongful dismissal case.

E-mail Entitles Employee

A lesson to Human Resources personnel: beware what you e-mail.  In a decision released May 18, 2012, Bennett v. Sears Canada Inc., 2012 ONCA 344, the Court of Appeal for Ontario affirmed a decision in which a long-service employee was awarded full post-retirement health and welfare benefits, notwithstanding the fact that she did not meet the strict wording of the employment policy.

Dismissed Employees Still Entitled to Bonus

Is an employee dismissed just before the employer declares a “discretionary bonus” still entitled to that bonus?  “Yes” says a recent decision from the Quebec Superior Court.

Release Reaches Farther than Expected

The phrase caveat signator means "beware what you are signing." It is an appropriate warning when signing a Full and Final Release of liability.

If an employee signs a full and final release of all liability at the request of and in favour of his or her employer, can that release be used to disentitle the employee to the receipt of third-party disability benefits?

In the case of Zelsman v. Meridian Credit Union Limited, 2012 ONCA 358, upholding the earlier decision of the Honourable Justice Kendra Coats, reported at 2011 ONSC 1680, the Court of Appeal for Ontario answered that question with a “yes.”

Employer Cannot Dismiss CLC Employees Absent Due to Workplace Injury

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In an earlier post, I commented on the effect of O.Reg 288/01 on the doctrine of "frustration" with respect to employment contracts governed by the Ontario law. However, not all employees who work in Ontario are governed by the Ontario Employment Standards Act, 2000. However, some people working in Ontario are governed by the Canada Labour Code (the "CLC").

In an Ontario Labour Arbitration Award, Kingsway Transport v Teamsters, Local Union 91 (John Sears Grievance), 2012 CanLII 20111, Arbitrator Lorne Slotnick held that section 239.1 of the CLC forbade an employer from terminating the employment of an employee who had been on disability for 21 years.

The Benefit of Benefits

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An area too often overlooked in wrongful dismissal cases is that of disability benefits. Often, dismissed employees, who previously participated in group benefit plans, are informed at the time of dismissal that their short and long-term disability benefits will terminate at the end of the “statutory notice period,” typically eight weeks for long-term Ontario employees.

Employees are typically informed that this period of time is as long as the group disability insurer will permit the employee to remain on the plan. But, is that the end of the argument? “No” says Ontario law.