Focus Alerts

Our Focus Alerts provide up-to-the minute information about significant cases and other developments in labour and employment law.

The articles listed below are intended to provide readers with general information. They should not be regarded or relied upon as legal advice or opinion.

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Court of Appeal finds termination clause void for contravening ESA – employer required to pay salary for remainder of fixed term contract

April 21, 2017

The recent decision of the Ontario Court of Appeal in Covenoho v. Pendylum Ltd. (April, 2017) drives home two important lessons for employers. First, termination clauses in employment contracts must comply with the minimum requirements of the Employment Standards Act (“ESA”). Where they do not, the more generous common law notice period will apply. Second, when terminating a fixed term employment contract, in the absence of a valid contractual provision stipulating a notice period, the employer is required to pay an employee to the end of the term. The employee is not required to mitigate his or her damages. The…

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Ontario Court of Appeal confirms that disagreement over calculation of a bonus does not give rise to constructive dismissal

April 12, 2017

In a recent decision the Ontario Court of Appeal has confirmed a lower court decision which held that an employer’s calculation of a senior employee’s bonus entitlement (denying him $329,000 he thought he was entitled to) constituted a breach of his employment contract, but did not give rise to a constructive dismissal claim. In Chapman v. GPM Investment Management, the plaintiff was employed by GPM Investment Management, a company which provides real estate management services, as its Chief Executive Officer and President (as well as being a director of Integrated Asset Management Corp., a company which held an ownership interest…

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Federal adjudicator dismisses family status grievance – confirms that employer’s duty to accommodate is only engaged where a work rule interferes with an employee’s legal obligations

April 7, 2017

A recent adjudication decision suggests that the duty to accommodate an employee’s family status needs under the Canadian Human Rights Act, as recognized by the Federal Court of Appeal in Johnstone, is “quite narrow and limited”. In Guilbault v. Treasury Board (Department of National Defence) (January, 2017), a grievance referred to adjudication under the federal Public Service Labour Relations Act, the employee alleged that his employer discriminated against him on the basis of family status by refusing to accommodate his request for a shortened work day. The Board dismissed the grievance on the basis that the employee’s desire to arrive…

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Unjust dismissal under the Canada Labour Code – Adjudicator states “default remedy must be reinstatement”

March 28, 2017

In the recent decision of Maninderpal Randhawa and The Bank of Nova Scotia (February, 2017) under Part III of the Canada Labour Code (the “Code”), Adjudicator Slotnick determined that reinstatement was the proper remedy after finding that the employee’s dismissal was unjust. The decision follows the principles set out by the Supreme Court of Canada in Wilson v. Atomic Energy of Canada Ltd. (2016). Readers of Focus may recall the Wilson decision as the Supreme Court made it clear that the unjust dismissal provisions of Part III of the Code afford non-unionized non-management employees the same protection against without cause…

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Highlights of Budget 2017 from a Labour and Employment Perspective

March 24, 2017

The federal budget tabled in the House of Commons on March 22, 2017, contains a number of measures that will be of particular interest to employers, especially those in federally-regulated sectors. Here is a summary of the budget highlights from a labour and employment perspective:   Changes to the Employment Insurance Act Expanded EI caregiver benefit – the government proposes to create a new EI caregiving benefit of up to 15 weeks. The new benefit will cover a broader range of situations than are currently covered, including circumstances where individuals are providing care to an adult family member who requires…

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Protecting your right to impose temporary layoffs

March 23, 2017

When it comes to downsizing, restructuring, or otherwise cost-cutting, employers may consider temporary or permanent layoffs. While temporary layoffs can be an effective means of cost-saving, they can also be risky if employers have not protected their right to temporarily lay off employees in their employment contracts. The Ontario Employment Standards Act, 2000 (ESA) allows employers to temporarily lay off employees, so long as the layoff lasts for no more than 13 weeks in any consecutive 20-week period. However, if a layoff extends for more than 13 weeks in any consecutive 20-week period, but lasts less than 35 weeks in…

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Ontario Court of Appeal confirms when benefit entitlement claim will be arbitrable

March 14, 2017

In its recent decision (February 27, 2017) in Barber v. The Manufacturers Life Insurance Company (Manulife Financial), the Ontario Court of Appeal upheld the dismissal of an employee’s claim for long-term disability benefits (LTD), finding that the claim fell within the exclusive jurisdiction of a labour arbitrator. Adrian Barber was employed as a police constable in the town of Port Hope. The collective agreement between the Port Hope Police Services Board and the Port Hope Police Association, which governed Barber’s employment, required the Board to offer disability insurance coverage to the Association’s members. When Barber became disabled from her employment…

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Ambiguities in employment contracts continue to trip-up employers – Ontario Court of Appeal refuses to enforce termination clause and awards common law reasonable notice

March 10, 2017

A recent decision of the Ontario Court of Appeal drives home the importance of clear and unambiguous language in employment agreements. In Wood v. Fred Deeley Imports Ltd. (February, 2017), the Ontario Court of Appeal held that a termination clause in an employment contract was unenforceable because it failed to meet the minimum requirements under the Employment Standards Act, 2000 (the “ESA”). The Court came to this conclusion despite the employer having paid the employee more than would be required under the ESA at termination. The plaintiff was awarded damages based on common law reasonable notice equivalent to nine months’…

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Workplace Violence – Requirements and recent developments

December 19, 2016

Ontario’s Occupational Health and Safety Act (OHSA) was amended in June 2010, by Bill 168, to include new requirements for employers to address and prevent workplace violence. As a result, dealing with violence in the workplace has become a priority for employers. Although there are few decided OHSA prosecution cases to date dealing with the requirements relating to workplace violence, we are beginning to see some cases work their way through the system. Recent incidents of workplace violence have resulted in significant fines against employers who have failed to meet their statutory obligations. Those decisions assist in clarifying the statutory requirements and…

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Supreme Court of Canada upholds protection for solicitor-client privilege – statutory intrusions must be “clear and unambiguous”

December 15, 2016

In a surprising decision, a majority of the Supreme Court of Canada held that solicitor-client privilege may only be set-aside by statutory language that demonstrates a clear and unambiguous legislative intent to do so. In Alberta (Information and Privacy Commissioner) v. University of Calgary (November, 2016), the issue was whether the Alberta Information and Privacy Commissioner (the “Commissioner”) had the authority to order the production of records that were claimed to be solicitor-client privileged in order to determine whether the claim of privilege was properly asserted. The Commissioner argued that section 56(3) of the Alberta Freedom of Information Protection of…

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