Bill 132... Picking Up Where Bill 168 Left Off?

Will the recently proposed changes to the Ontario Occupational Health and Safety Act finally bring about the workplace violence and harassment protections that so many believed would be implemented as a result of “Bill 168?” It’s possible.

For years I have been critical of the actual effects of the changes to the law brought about by Bill 168. Heralded by many at the time as a necessary change to the law, the experience of the interpretation and implementation of those changes has been grossly underwhelming.

Now the Ontario government is proposing further changes to the law by way of Bill 132, the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015. The Bill passed first reading in the Legislative Assembly of Ontario on October 27, 2015.

A reading of the proposed amendments to the law leaves one with cautious optimism that perhaps change will finally come about.

There is More to Employment Law in Ontario than Just the Employment Standards Act

There is more to employment law in Ontario than just the Employment Standards Act, 2000. While this point should be obvious, a recent article in the Toronto Star, Ontario allowing employers to fire workers without cause begs for this point of clarification.

Requirement to Purchase Shares Signalled Employer’s Intention to Create Long-Term Employment Relationship: ONSC

How does requiring an executive to purchase shares in his employer’s company affect the employee’s reasonable notice period in the event that his employment is terminated without cause? According to the Honourable Mr. Justice G.E. Taylor of the Ontario Superior Court of Justice, the answer is that it tends to length the notice period.

In the case of Rodgers v. CEVA, 2014 ONSC 6583 (CanLII), Mr. Justice Taylor held that, “Based on the required investment in [the employer] I find there was at least an implied representation that the plaintiff was about to embark upon a long-term employment relationship with [his employer.]

Court Says Age Limit on Receipt of WSIB Loss of Earnings Benefits is Constitutional

Is the limit on the receipt of WSIB loss of earnings benefits unconstitutional because is discriminates on the basis of age? According to a decision of the Ontario Divisional Court, Gouthro v. Workplace Safety and Insurance Appeals Tribunal et al., 2014 ONSC 7289, the law is just fine.

Unpaid Articling Positions: Opportunity or Exploitation?

"Will litigate for food?" Earlier this month a community legal clinic in Oshawa drew fire after it advertised a 10-month unpaid articling position on Legal Aid Ontario’s official website. But can it do that? Shouldn’t lawyers know better?

Incredibly, the law concerning minimum wage does not apply to everyone. Some employees are expressly exempted from the protections of the minimum standards of the Employment Standards Act, 2000. Among those who are exempted are articling students.

The Scope of the Employer's Duty to Investigate Sexual Harassment Complaints

To what extent must an employer investigate allegations of sexual harassment? This question comes to the fore as a result of a recent episode of CBC’s The Fifth Estate, The Unmaking of Jian Ghomeshi, in which the Executive Director of Radio at CBC, Mr. Chris Boyce, defended his decision to limit his investigate of Ghomeshi’s behaviour by saying he is “not the police.”

But is that position really defensible? The Fifth Estate certainly made it appear that Mr. Boyce had been confronted with a number of allegations of serious concerns with Mr. Ghomeshi’s behaviour both inside and outside the workplace. Could Mr. Boyce, as a member of CBC management really turn a blind eye to the entire situation?

While there are several cases concerning this issue, the case of Menagh v. Hamilton (City), 2005 CanLII 36268 (ON SC) provides a paradigmatic example of poor employee behaviour and how the courts of Ontario will respond to such actions.

SCC Refuses to Hear Case from Unionized Employee who Sued for Breach of Confidence and Defamation

A recent decision from the Supreme Court of Canada, in which leave to appeal a decision from the Court of Appeal of Alberta, Beaulieu v University of Alberta, 2014 ABCA 137 (CanLII), was denied, further bolsters all predictions that Jian Ghomeshi’s case against the CBC is doomed to failure.

In its decision, the Court of Appeal of Alberta affirmed the legal principle that unionized employees must subject all disputes arising out of the employment situation to the mediation/arbitration process contained within the employee’s collective bargaining agreement – not the civil courts.

Is Prohibiting Smokers from Employment a Discriminatory Practice?

Is it be ‘illegal’ to ask someone in a job interview whether he or she smokes cigarettes?

While the answer remains unclear, there is a compelling argument that the answer may be yes, in some cases.

Former Employee's Wrongful Dismissal Case against US Embassy Continues

Sandra McDonald’s legal saga against the Embassy of the United States at Ottawa is a long and interesting story. On July 17, 2012, Ms. McDonald, a former employee of the embassy, obtained default judgment in the amount of approximately $250,000.00 against her ex-employer after it failed to defend her wrongful dismissal case.

The judgment received a fair amount of media attention at the time. Although, even then, at least one Ottawa employment lawyer was sceptical; telling the Toronto Star , “Good luck to her. The U.S. Treasury is already in debt to the tune of $13 trillion.”

Less well publicized is what has happened since. As expected, Ms. McDonald has not seen her money. However, rather than simply ignore the judgment, the US Embassy has, in fact, responded to the case.

Appeals Court Upholds Employee’s Reinstatement 9 Years After Termination

At the end of 2013, this blog proclaimed the decision of the Human Rights Tribunal of Ontario in Fair v. Hamilton-Wentworth District School Board, 2013 HRTO 440, as the number one case in Ontario employment law for that year. At the end of September 2014, the Tribunal’s decision was upheld by a three-judge bench of the Ontario Divisional Court: 2014 ONSC 2411.

While one has to assume that this case is still yet far from over, the purpose of this post is to consider the decision of the Divisional Court with respect to this matter.

The Not-So-Independent Contractor

From 2000-2006, there was a television program called “Malcolm in the Middle.” The show was called as much because the lead subject was the middle child of three: Malcolm. The theme song for the show ended with the line “life is unfair.” But is life truly unfair for those caught in the middle?

The purpose of this post is to consider the middle category of employment; those who are neither true employees but are not exactly independent contractors either: the intermediate position of “dependent contractor”.

As this post will hopefully demonstrate life is not always unfair to those who find themselves ‘in the middle.’

More is Required for a Human Rights Case than Simple Unfairness

Does being treated unfairly in employment and simply having a disability, being a member of a visible of invisible minority, or otherwise being protected by the provisions of Ontario’s Human Rights Code entitle one to bring an application before the Human Rights Tribunal of Ontario?

A recent appeal decision from Ontario’s Divisional Court, Hay v. Ontario (Human Rights Tribunal), 2014 ONSC 2858 (CanLII) affirmed that the answer is no.

Independent Contractors and Employees on Contract – Understanding the Semantics of Ontario Employment Law

The modern English language is a powerful tool. However, it also has its challenges; synonyms, homonyms, and inexplicable exceptions to rules. (For example, try explaining to someone why the plural of moose is moose, goose is geese, and mouse is mice.) In the employment law context, the word that is most often the source of confusion and consternation is “contract.”

The purpose of this post is to look at the differences between:

• A contractor and an independent contractor
• Working on contract and working under a contract

Those terms often get commingled in everyday conversation, leading to incorrect assumptions and the aforementioned confusion and frustration. Therefore, as best as one can, given the limitations of the written word, here is a summary of the ways in which the law uses “contract.”

Why the Human Rights Tribunal of Ontario may be the Wrong Place to Plead Your Wrongful Dismissal Case

Many people who get fired while pregnant, on maternity or disability leave assume that the Human Rights Tribunal of Ontario (“HRTO”) is the logical place to turn to grieve their case. However, several recent decisions from both the HRTO itself and the Ontario courts demonstrate that that assumption may be misplaced.

While this blog has previously looked at other cases on this topic (see e.g. Human Rights Tribunal Not The Place To Ask For Severance) this post will consider a decision of the HRTO concerning an employee fired while pregnant.

Resignation Does Not Relieve Employer of Statutory Obligations - Supreme Court of Canada

If an employee provides notice of his intention to resign on a future date, can his employer legally terminate his employment (i.e. fire him) before that date and not pay him? In a case concerning Quebec labour laws, Quebec (Commission des normes du travail) v. Asphalte Desjardins inc., 2014 SCC 51 (CanLII), the Supreme Court of Canada has said “non”.

Summary Judgment - Appropriate In Most But Not All Employment Law Cases

Summary judgment remains an effective and appropriate means for the resolution of wrongful dismissal cases. However, as the recently decided case of Beatty v. Best Theratronics Ltd., 2014 ONSC 3376 (CanLII) demonstrates, not all aspects of such cases are amenable to summary disposition.

Human Rights Tribunal Not The Place To Ask For Severance

Does the Human Rights Tribunal of Ontario (“HRTO”) have the legal ability (“jurisdiction”) to award severance pay? According to a recent decision from the Divisional Court (a branch of the Ontario Superior Court of Justice, and a type of court of appeal), Campbell v. Revera Retirement LP, 2014 ONSC 3233 (CanLII), the answer is that it is probably best to look elsewhere.

The case is an important reminder to potential plaintiffs to pick the proper venue for advancing one’s case.

Employee's Invasion of Customer's Privacy can be Employer's Responsibility

Can an employer be held legally responsible if one of its employees deliberately invades upon the privacy of the employer’s customers? That question was one of the key issues in the recently decided class action certification motion in Evans v. The Bank of Nova Scotia, 2014 ONSC 2135 (CanLII).

The case involves a class action proceeding against the Bank of Nova Scotia and one of its former employees for breaching the privacy of the Bank’s customers.

The case was filed in Ottawa and the certification motion was decided by the Honourable Mr. Justice Robert Smith of the Ontario Superior Court of Justice, sitting at Ottawa.

Sean Bawden, editor and primary author of this blog, formerly worked with plaintiff’s counsel and assisted in the formative stages of the case before transferring to Kelly Santini.

While the court did not expressly say that the answer to the question raised at the start of this post was “yes,” it did expressly refuse to say that the answer to the question is “no.”

Pardon my French: The Decision in Paquette c. Quadraspec Inc., 2014 ONCS 2431

The reasons for decision in the recently released case of Paquette c. Quadraspec Inc., 2014 ONCS 2431 (CanLII) are a necessary read for any Ontario employment lawyer.

In his reasons for decision, the Honourable Justice Paul Kane of the Ontario Superior Court of Justice sitting in Ottawa, challenges recent decisions from the Ontario courts on the issues of both contractual termination provisions and statutory severance.

The only catch? The decision is en français.

WSIAT Says Prohibition Against Mental Stress Claims is Unconstitutional

In a decision that is sure to be relied upon, scrutinized and judicially reviewed, the Ontario Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) has found that the prohibition against claims by workers for mental stress to be unconstitutional.

Accordingly, in the case considered below, the WSIAT declined to apply subsections 13(4) and 13(5) of the Workplace Safety and Insurance Act, 1997, the result of which being that an employee who made a claim to the WSIB for benefits following years of workplace harassment might actually receive WSIB benefits.