Employees Cannot Waive Right to Compensation for Workplace Injury

Can a worker waive his right to compensation for a workplace injury?

In Fleming v. Massey, 2016 ONCA 70, the Court of Appeal for Ontario held that based on the wording of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A, the purpose for which workers compensation laws were created, and public policy considerations, workers cannot waive or release their employers from liability for damages caused by a workplace accident.

Conscionability of Release Not Appropriate for Resolution by Summary Judgment

Is the issue of the “conscionability” of a full and final release, signed as part of a severance negotiation and purporting to release claims to long-term disability benefits, the kind of issue appropriate for resolution by way of summary judgment?

Notwithstanding the agreement of the parties that it was, in Swampillai v. Royal & Sun Alliance Insurance Company of Canada, 2019 ONCA 201, the Court of Appeal for Ontario held that, in the circumstances of this case, the issue of whether the release was unconscionable and therefore unenforceable was a genuine issue requiring a trial.

Employer Entitled to Return of Severance Payment After Discovering Misappropriation of Funds

If an employer dismisses an employee without cause, pays the employee a considerable amount for severance, and the parties sign a full and final mutual release absolving each other from any further claims, can the employer, upon discovering the fact that the employee had lied about his actions while employed, successfully sue the employee for the recovery of the severance funds?

Yes, says the Court of Appeal for Ontario in the case of York University v. Markicevic, 2018 ONCA 893 (CanLII).

Slate Not Wiped Clean by Release in Context of Share Sale

Can an employee extinguish his statutory right to severance pay by way of a full and final release signed in the context of a share sale?

According to a 2018 decision of the Court of Appeal for Ontario, Kerzner v. American Iron & Metal Company Inc., 2018 ONCA 989 (CanLII), the answer to that question is a resounding “no.”

The case has real implications for those who practice employment law in the context of the sale of a business.

Employee Allowed to Sue for Sexual Harassment Five Years After Signing Full and Final Release

Can an employee sue her former supervisor for sexual harassment if she has signed a Full and Final Release in favour of her former employer?

In the case of Watson v. The Governing Council of the Salvation Army of Canada, 2018 ONSC 1066 (CanLII), the Ontario Superior Court of Justice ruled that she might not be precluded by the release.

Workplace Harassment “Arises From” but does not “Relate To” Employment

Does workplace harassment simply “arise from and in the course of” an employee’s employment, or does it actually “relate to” that employment?

That question, as incredibly pedantic as it may appear, was of material consequence to a decision of the Ontario Grievance Settlement Board issued January 23, 2018: OPSEU and Ontario (Ministry of Community Safety and Correctional Services) (Rosati), Re, 2018 CarswellOnt 1017.

In short, the answer to that question drove the analysis as to whether a claim for workplace harassment was compensable pursuant to the newly revised provisions of the Workplace Safety and Insurance Act, 1997.

Do You Have to Sign a Release to Get a Severance Package?

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Do you have to sign a release to get a severance package in Ontario? For most employees who find themselves suddenly unemployed, a severance package is often accompanied by a "Full and Final Release Agreement." The employee is often told that, in order to receive the severance package he or she will have to sign the Full and Final Release.

Releases often contain language that essentially says that in consideration of the receipt of the amount offered the employee agrees to waive all claims for wrongful dismissal damages, Human Rights damages, claims for vacation pay and other statutory entitlements, and, less frequently, claims to the Workplace Safety and Insurance Board.

Is an employee legally obligated to sign such a document in order to receive his or her severance package? The answer is "no, but."

Getting Time to Think

A common question asked by people in high-stress situations is “Can I have a moment to think?”  A recent decision from the Ontario Superior Court would appear to affirm that one can.

In the case of Rubin v. Home Depot Canada Inc., 2012 ONSC 3053 the Honourable Justice Thomas R. Lederer held that notwithstanding that an employee had signed a “release” in favour his employer with respect to his entitlements on dismissal, given the way in which the release was put to the employee and signed, the release would not bind the employee.

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.”