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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Ontario proposes major changes to employment and labour laws

May 31, 2017

Further to our Focus Alert from last week, on May 30, 2017, the government of Ontario announced its intention to introduce proposed legislation entitled the Fair Workplaces, Better Jobs Act, 2017. The government has indicated that the legislation will be introduced over the next few days and, if passed, will result in significant amendments to both the Ontario Employment Standards Act (“ESA”) and the Ontario Labour Relations Act (“LRA”).   Proposed changes to the ESA In a news conference held on May 30, 2017, the government of Ontario highlighted the following five changes: Proposed Increases to Ontario’s Minimum Wage If…

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Divisional Court holds that employers may require an Independent Medical Examination in “certain circumstances”

May 30, 2017

Readers of Focus are familiar with the procedural and substantive components of an employer’s duty to accommodate an employee’s disability-related needs. The procedural component requires the employer to assess the employee’s needs, and to investigate possible accommodation measures for that employee. The substantive component requires the employer to provide the necessary accommodations to the point of undue hardship. But to what degree must an employer accept the medical evidence presented on behalf of an employee? And under what circumstances will an employer be entitled to seek further medical information? The Divisional Court recently addressed these questions in Bottiglia v. Ottawa…

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The Release of Ontario’s Changing Workplace Review

May 25, 2017

As our readers will recall, Ontario’s Minister of Labour appointed C. Michael Mitchell and former Justice John C. Murray as Special Advisors to lead the Changing Workplace Review, seeking recommendations to modernize Ontario’s Employment Standards Act and Labour Relations Act. In July, 2016, the Special Advisors released an Interim Report detailing various options to overhaul employment and labour laws in Ontario. Emond Harnden issued a Focus Alert detailing some of the proposed recommendations in the Interim Report (see Ontario considers options to amend the Employment Standards Act and the Labour Relations Act). Emond Harnden also made submissions in response to…

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Ontario government releases Construction Health and Safety Action Plan

May 18, 2017

On May 11, 2017, the Government of Ontario released its Construction Health and Safety Action Plan (CHSAP or Action Plan). The Action Plan, which includes 16 specific recommendations, was created with input from construction employers, workers and other industry stakeholders. The Province’s goal in adopting the Action Plan is to prevent workplace injuries, illnesses and fatalities for workers on construction sites across the province. In March 2015, the Minister of Labour established an advisory group to assist the government in the development and implementation of a Construction Health and Safety Action Plan. The advisory group, which included an equal number…

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Worried about legal liability for providing a bad reference? Truth is the best defence

May 17, 2017

In the increasingly litigious world of employment law, employers may often be hesitant to provide a negative reference for a former employee. This hesitation often stems from concerns that the former employee may bring an action claiming damages for defamation or fraudulent misrepresentation. Although these concerns are not without justification, the recent decision of the Ontario Superior Court of Justice in Papp v. Stokes et al (April, 2017) may help to put them in the proper perspective. By way of background, Mr. Papp was employed as a staff economist with Stokes Economic Consulting Inc. The employment was terminated after just…

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Clock on limitation period for wrongful dismissal claim starts on day of notice – not last day worked

May 5, 2017

A recent decision of the Ontario Superior Court of Justice confirms that the limitation period in respect of a wrongful dismissal claim commences on the day that the employee is provided notice of the termination, not on the last day the employee works. In Bailey v. Milo-Food & Agricultural Infrastructure & Services Inc. (April, 2017), the defendant employer was successful on a motion to have the employee’s claim of wrongful dismissal struck. The judge agreed with the employer that the wrongful dismissal claim was commenced more than six months after the expiration of the limitation period and was therefore statute-barred….

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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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