Income and Support for Salaried Employees

Income and Support for Salaried Employees

Part 1:  Salaried employees

In order to calculate the amount of child support payable, we need to consider many factors.

Let’s talk about income for salaried employees.

The Child Support Guidelines require us to use the line 150 income on your tax return to determine child support.  The Guidelines give a specific figure payable as child support based on that income and on the number of children.

There is a difference, though, between line 150 income and your salary.  Even in situations when the payor parent is on salary, his or her line 150 income may be more than the income shown on her or his T4.

An essential step when determining child support, and it is a step you are required to take every year, is to provide each other with your Notice of Assessment and your complete tax return, including attachments.  It is only by reviewing both documents that we can properly assess the amount of child support that ought to be paid.

For example, is part of the line 150 income generated by cashing in an RRSP? By dividends? By interest on investments?  Are any of these income sources likely to be recurring?

Can any expense be legitimately deducted from the line 150 income before calculating the child support owing?  For example, you are entitled to deduct union dues from your line 150 income before calculating child support. You are not, however, necessarily allowed to apply deductions that are permitted under the Income Tax Act.

Separating, or divorced, parties are often reluctant to give the other party copies of tax returns and Notices of Assessment but doing so is not only a legislated requirement when children are involved, it may sometimes result in a different (and more accurate) income being used to calculate the child support amount.

Written by Simonetta Lanzi

Can I Change My Mind After I Quit?

Can I Change My Mind After I Quit?

Last year, I wrote about an Ontario Superior Court of Justice decision that dealt with the issue as to whether or not an employee can rescind a resignation. A link to that decision can be found here. The Court of Appeal recently reversed that lower court decision in English v. Manulife Financial Corporation. The following are the facts of this case.

On September 22, 2016, the employee, Ms. English, tendered her written resignation, expressing her intention to retire effective December 31, 2016.  Her decision to retire followed Manulife’s decision to convert to a new computer system that she did not want to retrain for. After giving Ms. English time to reflect on whether or not she wanted to retire, her supervisor later accepted the resignation.

When Manulife later opted not to proceed with the conversion to the new computer system, Ms. English decided against retiring and verbally informed her supervisor that she withdrew her resignation. Manulife refused to accept Ms. English’s withdrawal of her resignation and advised that her December 31, 2016 retirement date would be honoured instead.

Ms. English sued for wrongful dismissal, a claim that was ultimately dismissed on the basis that the evidence established that Ms. English’s offer of a notice of resignation and an acceptance of that offer by Manulife constituted a binding contract that could not be resiled from. As I previously wrote, the court concluded that although the employer had the option to allow the employee to resile from or withdraw her resignation, the employer was not legally obligated to do so.  The employer was entitled to rely on the resignation and to plan for the future accordingly.

On appeal, the Court of Appeal held that lower court erred in concluding that Ms. English had truly resigned on September 22, 2016. The basis for her resignation was the contemplated computer conversion. At the time of her resignation, her supervisor advised her that she could change her mind. Once the cancellation of the conversion was announced, the basis for Ms. English’s resignation no longer existed and Manulife was bound by the supervisor’s promise that Ms. English could change her mind, which she did. In turn, Manulife’s refusal to continue Ms. English’s employment amounted to a wrongful dismissal.

In my previous article, I wrote that a resignation is not to be taken lightly, because an employer is not obliged to continue employment after the employee changes his or her mind about quitting. While this remains true, this case shows that an employee has not truly quit unless the resignation is clear and unequivocal, without any conditions attached.

This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.

Will Your Termination Clause Hold Up?

Will Your Termination Clause Hold Up?

One of the hot button topics in employment law for the last several years is the enforceability of termination clauses or notice provisions in employment agreements. Such clauses attempt to limit an employee’s entitlements upon dismissal, often to the minimum standards set out in the Employment Standards Act, 2000. In recent years, the case law surrounding this topic continues to develop, particularly at the Court of Appeal.

The Court of Appeal continued to clarify the law on this topic with the addition of its decision in Rossman v. Canadian Solar Inc. In this case, the employee, Mr. Rossman, began working for Canadian Solar in May 2010 as a Regional Sales Manager after signing an employment agreement that included a termination clause. In August 2012, he accepted a project management role with the company and signed a new employment agreement with a termination clause using the same language as before.

The termination clause in both agreements stated the following:

9. Termination of Employment

9.01 The parties understand and agree that employment pursuant to this agreement may be terminated in the following manner in the specified circumstances:

(c) by the Employer, after the probation period, in its absolute discretion and for any reason on giving the Employee written notice for a period which is the greater of:

(i) 2 weeks, or
(ii) In accordance with the provisions of the Employment Standards Act (Ontario) or other applicable legislation,

or on paying to the Employee the equivalent termination pay in lieu of such period of notice. The payments contemplated in this paragraph include all entitlement to either notice of pay in lieu of notice and severance pay under the Employment Standards Act Ontario. In the event the minimum statutory requirements as at the date of termination provide for any greater right or benefit than that provided in this agreement, such statutory requirements will replace the notice or payments in lieu of notice contemplated under this agreement. The Employee agrees to accept the notice or pay in lieu of notice as set out in this paragraph as full and final settlement of all amounts owing by the Employer on termination, including any payment in lieu of notice of termination, entitlement of the Employee under any applicable statute and any rights which the Employee may have at common law, and the Employee thereby waives any claim to any other payment or benefits from the Employer. Benefits shall cease 4 weeks from the written notice. [Emphasis added.]

When Mr. Rossman was dismissed without cause in February 2014, he started a wrongful dismissal action against Canadian Solar and later brought a motion for summary judgment. The judge hearing the motion concluded that Mr. Rossman was indeed wrongfully dismissed and that the termination clause was not enforceable because it attempted to contract out of the minimum standards of the Employment Standards Act, 2000 by limiting Mr. Rossman’s benefits coverage to four weeks.

Canadian Solar appealed the decision on the basis that Mr. Rossman was employed for less than four years and therefore the termination clause provided him with a greater entitlement to benefits than what the legislation prescribed (i.e., three weeks of benefits coverage). The Court of Appeal disagreed.

In doing so, the Court of Appeal highlighted the following principles:

It is presumed that an employer cannot terminate employment without reasonable notice;
To rebut this presumption, employers and employees are free to agree to any notice period, as long as the agreement meets the minimum standards set out in the Employment Standards Act, 2000;
Otherwise, the presumption is not rebutted and the employee is entitled to reasonable notice of termination;
In that case, the employee is entitled to pay in lieu of notice for the reasonable notice period under common law.
The Court of Appeal also emphasized that if any part of the termination clause conflicts with the minimum standards set out in the legislation, then it is not just the offending part that is struck out, but the entire termination clause as well.

In rejecting Canadian Solar’s argument, the Court of Appeal held that the termination clause must be read as a whole and in the context of the circumstances as they existed when the agreement was created. In other words, it is irrelevant that the termination clause accorded with the minimum standards in certain circumstances – in this case, at the time of termination. It must accord with the minimum standards whatever the circumstances.

In addition, the Court of Appeal concluded that the termination clause was also ambiguous and therefore applied an interpretation favourable to Mr. Rossman in accordance with the contra proferentem rule.

In dismissing Canadian Solar’s appeal, the Court of Appeal upheld the motion judge’s award of 5 months of pay in lieu of notice.

The takeaway from this case, particularly for employers, is that a termination clause that attempts to limit an employee’s entitlements upon dismissal without cause to the minimum standards set out in the Employment Standards Act, 2000 must be drafted with great care to ensure that no part of an employee’s remuneration package is overlooked. The risk is that the termination clause may be deemed unenforceable and the employee may be entitled to common law notice regardless. Since remuneration packages vary from employer to employer and employee to employee, a precedent termination clause is not necessarily going to be fit for its intended purpose.

This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.

What is the Tort of Harassment?

What is the Tort of Harassment?

I am often contacted by individuals who tell me that they have been subjected to harassment. In some cases, the individual did not really have much of a case because the conduct complained of was not severe or harsh enough to cause actual emotional distress. It may seem insensitive, but unfortunately, the law will not compensate an individual because he perceived someone being mean to him.

Until a few years ago, a claim for harassment had to be framed as a claim for infliction of mental distress in order to be successful. However, earlier this year, the decision of the Ontario Superior Court of Justice in Merrifield v. Canada (Attorney General) formally recognized the tort of harassment as a separate and distinct cause of action in Ontario.

Tracing the development of the case law since 2011, the court reiterated the following requirements for a claim of harassment at paragraph 719:

  1. Was the conduct of the defendant towards the plaintiff outrageous? In other words, the acts of harassment must be flagrant, wanton, extreme and insensitive.
  2. Did the defendant intend to cause emotional stress or did they have a reckless disregard for causing the plaintiff to suffer emotional harm? The impact of the conduct must be known by the plaintiff to be substantially certain to follow.
  3. Did the plaintiff suffer severe or extreme emotional distress? This does not require proof of a visible and provable illness, but rather emotional distress of such substantial quantity or enduring quality that no reasonable person in a civilized society should be expected to endure it.
  4. Was the outrageous conduct of the defendant the actual and proximate cause of the emotional distress?

Interestingly, at paragraph 697, the court stated that to prove severe emotional distress, the plaintiff is not required to provide medical evidence. Although a clinical report setting out a DSM-V diagnosis of a disorder can be persuasive and powerful, it is not necessarily required to prove a claim of harassment.

The damages that may be awarded for this kind of claim can be substantial.  In this case, the court awarded general damages for mental distress in the amount of $100,000.00 – despite the paucity of medical evidence.  This is consistent with the damages awarded in Boucher v. Wal-mart Canada Corp., a case that I wrote about here a few years ago.

As I mentioned above, the law will not compensate an individual because he perceived someone being mean to him. However, this case serves as a cautionary tale for those who feel that they can do or say whatever they want, without regard for those to whom direct such acts.

This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further

Written by Jeffrey Robles and originally published on the blog at http://jeffreyrobles.com. Jeffrey represents clients in the areas of employment law and personal injury in the Ontario Superior Court of Justice.  

Wrongfully Dismissed? Where Should You Sue Your Employer?

Wrongfully Dismissed? Where Should You Sue Your Employer?

It is not at all unusual for an employee to reside in one country, but work in another. In fact, it is not unusual for an employee to regularly work in more than one country. It is also common for the employer to maintain its head offices in a different country than the one where the employee resides.

Situations like these can give rise to conflict of laws questions such as:

“Which law should apply – the law of the country where the employee is situated, or the law of the country where the employer is located?”

“Should the court where the employer’s head offices are located have jurisdiction over the case, or the court where the employee resides?”

Generally speaking, these questions are often determined by the jurisdiction where the employment agreement was made or entered into. Sometimes, the employment contract itself specifies which country’s laws will govern. Other times, however, the answer is not always clear. A recent decision of the Divisional Court, found here, provides a good illustration of this.

In this case, the employee signed the employment contract in Ontario. However, the employee also worked in the state of New York. When the employee was dismissed for a cause, a wrongful dismissal action was started in Ontario.

In response, the employer brought a motion to stay the court proceedings on the basis that the court in New York was the proper forum for the proceedings since that was where the employee worked. The Master in Ontario hearing the motion had to determine whether the balance of convenience favoured conducting the litigation in Ontario or in New York.

The Divisional Court upheld the Master’s decision to dismiss the employer’s motion and  agreed with the Master’s analysis that there was an advantage that the courts in Ontario had over the courts in New York in properly determining the issues in this case. Specifically, since Ontario law applied to the employment relationship, it would be necessary to consider the principles of wrongful dismissal and the entitlement to reasonable notice. These are concepts that New York judges, who are more accustomed to “at will” dismissals, would not be as well acquainted with compared to Ontario judges.

The point to be taken away from this case is that these kinds of problems can be avoided with a carefully-worded employment agreement, underscoring the importance of obtaining legal advice before entering into an employment relationship. This type of risk management can save both employers and employees significant time and money down the road.

This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.

Written by Jeffrey Robles and originally published on the blog at http://jeffreyrobles.com. Jeffrey represents clients in the areas of employment law and personal injury in the Ontario Superior Court of Justice.  
Video – What medical information can an employer request?

Video – What medical information can an employer request?


For most employers, it is a common practice or policy to require medical documentation when an employee is off from work for an extended period of time due to illness or injury. There is, however, a delicate balance that an employer must strike between obtaining information needed to accommodate the employee’s disability and respecting the privacy of the employee’s health records. So the question is, “what medical information should an employer be allowed to obtain from an employee who is sick or injured?”

Recently, the Ontario Human Rights Commission released its policy position on the scope of medical documentation that an employer ought to be able to request from an employee when a disability-related accommodation is requested. A link to the policy position can be found here.

According to the Commission, too little information can prevent appropriate accommodations from being meaningfully implemented.  On the other hand, overly broad requests for medical information can undermine the dignity and privacy of people with disabilities.

In its policy position, the Commission provides guidance to employers and employees on the type and scope of medical information that can reasonably be sought to support an accommodation request.  The documentation should set out 5 things:

  1. That the employee has a disability;
  2. That there are certain limitations or needs related to the disability;
  3. Whether the employee can perform the essential duties or requirements of the job, with or without accommodation;
  4. The type of accommodation that may be needed to allow the employee to fulfill those essential duties or requirements of the job; and
  5. Regular updates about when the employee can be expected to come back to work if the employee is on sick leave.

As stated by the Commission, the key to this process is that the information requested must be the least intrusive to the employee’s privacy while still giving the employer enough information to make informed decisions about the accommodation sought.  To quote the Commission, “the focus should always be on the functional limitations associated with the disability, rather than a person’s diagnosis.”

An employer does not have a right to the employee’s confidential medical information.  This includes the cause of the disability, its symptoms or its treatment, unless the complexity of the the employee’s disability necessitates more information in order to develop and implement an accommodation.

This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.

Written by Jeffrey Robles and originally published on the blog at http://jeffreyrobles.com. Jeffrey represents clients in the areas of employment law and personal injury in the Ontario Superior Court of Justice.  
How Long Can I Wait To Sue My Employer?

How Long Can I Wait To Sue My Employer?

This is a question that I am often asked by clients.

The Limitations Act, 2002, S.O. 2002, c. 24 provides that a person generally has 2 years from the day when that person knew or ought to have known that an injury, loss or damage had occurred. There are circumstances where the limitation period is extended beyond 2 years. There are other instances when the limitation period can be deferred. However, they usually do not apply to employment law cases.

In Bailey v. Milo-Food & Agricultural Infrastructure & Services Inc.the Ontario Superior Court of Justice dealt with a motion to dismiss a wrongful dismissal action on the basis that the 2 year limitation period had expired. The employer argued that the employee’s claim was statute-barred because the Statement of Claim was filed on December 21, 2015, more than 2 years after the notice of termination was given to the employee on March 18, 2013. On the other hand, the employee asserted that his claim was brought well within the 2 year limitation period because his employment did not actually end until March 22, 2015.

The motions judge reviewed the leading authorities on this issue, the principles from which can be summarized as follows:

  1. A limitation period commences when the cause of action arises. In a breach of contract, the cause of action arises when the contract was breached.  For the purposes of a wrongful dismissal action, the employment contract is breached when the employer dismisses the employee without reasonable notice.
  2. A cause of action accrues and a limitation period starts to run when all of the elements of a wrong exist. Once a plaintiff and a defendant have been identified and a breach of contract has occurred, time will start to run.

Applying these principles, the motions judge concluded that the employment contract in this case was breached when the employee received the notice of termination on March 18, 2013. It was at that point in time that the employee could have determined that the amount of notice was insufficient and could have sued for wrongful dismissal. Instead, the employee refrained from doing so and waited more than 2 years before starting his lawsuit. In other words, time had run out.  As a result, the employee’s claim was statute-barred and could not be allowed to continue.

In the end, the motions judge decided this issue in favour of the employer and dismissed the employee’s wrongful dismissal claim.

There are times when it makes sense to wait and hold off on starting a wrongful dismissal action. Perhaps there is an opportunity to negotiate a settlement and avoid the cost of litigation. Perhaps the employee has a good chance of finding a new job, which can guide the course of action to be taken. For employers and employees alike, obtaining legal advice from knowledgeable counsel can be a key component in developing the right strategy to deploy.

Written by Jeffrey Robles and originally published on the blog at http://jeffreyrobles.com. Jeffrey represents clients in the areas of employment law and personal injury in the Ontario Superior Court of Justice.  

This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.

Weak Economy? You Could Be Entitled to More Pay in Lieu of Notice

Weak Economy? You Could Be Entitled to More Pay in Lieu of Notice

downturnIn a previous case comment, I wrote about how an employer’s declining financial health can reduce a court’s assessment of the reasonable notice period that an employee may be entitled to in a wrongful dismissal case.

By contrast, in a recent case, Zoldowski v. Strongco Corporation, 2015 ONSC 5485, the Ontario Superior Court of Justice considered how an economic downturn can increase a court’s assessment of reasonable notice.

Facts of the Case

The plaintiff, Ms. Zoldowski, was 39 years old when she was let go from her job as a Parts Administrator after 22 years of employment.  The defendant employer, Strongco Corporation, did not assert cause for terminating Ms. Zoldowski’s employment, but paid her only the minimum statutory entitlements under the Employment Standards Act, 2000.  

Not surprisingly, Ms. Zoldowski was not satisfied with what she received and sued her employer.

Issue Before the Court

The main issue that the court had to determine was how much notice, or more specifically pay in lieu of notice, Ms. Zoldowski should have received.

Ms. Zoldowski’s lawyer argued that 15 months of pay in lieu of notice was appropriate based on the facts.  The employer’s counsel argued for 10 months only.  Interestingly, the case does not mention if the employer paid the difference between 10 months of pay in lieu of notice (that it ostensibly acknowledged owing) and the minimum statutory entitlements.

The court concluded that damages equivalent to 14 months of pay in lieu of notice were appropriate in light of the general economic downturn in the Greater Toronto Area and Southern Ontario for the first half of 2015.  In doing so, the court stated, “As part of this determination the court may consider the economic climate the employee is put into when terminated.  If there is an economic downturn, then that may make it more difficult to find a job and may justify a longer notice period…”

Practical Considerations

In my view, this case underscores the fact that the list of considerations that may go into an assessment of a reasonable notice period is not finite.  As the court stated, “This list is non-exhaustive, and each case will depend upon its own particular circumstances.”

In addition, employers would be well-advised to simply pay what they believe employees are entitled to upon termination and not just the minimum statutory entitlements.  Doing so can deter a wrongful dismissal action because it may no longer make sense for an employee to incur substantial legal fees when the best possible result is now a fraction of what it was when only the minimum statutory entitlement was paid.

This article is intended only to provide general information and does not constitute legal advice.  Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.

Written by Jeffrey Robles and originally published on the blog at http://jeffreyrobles.com. Jeffrey represents clients in the areas of employment law and personal injury in the Ontario Superior Court of Justice.  
Fired or Laid Off? Know Your Rights

Fired or Laid Off? Know Your Rights

getting_firedIf you have been fired or laid off with no notice, or no pay, your employer may be breaking the law.

Find out about your rights under the Ontario Employment Standards Act (ESA).

Not all jobs are covered by the ESA, and in some cases only parts of the ESA apply.

Some employers claim that their workers are self-employed or independent contractors and the ESA does not apply to them. If this is your situation, it is a good idea to get legal advice. Even if you signed something that says you are an “independent contractor” or in business for yourself, the rights in the ESA might still apply to you.

Some industries are regulated by the federal government, including banks, airlines, trucking, and broadcasting. Workers in these industries are covered by the Canada Labour Code.

Your employer does not have to tell you why you are being fired or laid off.

In most cases, if you are fired or laid off for more than 13 weeks, your employer must give written notice.  If you are fired without proper notice, your employer must give you termination pay – your normal wages for the weeks you should have been given notice. The amount of notice or termination pay you get depends on how long you have worked for your employer.  The ESA sets out minimum notice periods ranging from 1 week for people who have worked at least 3 months, to 8 weeks for people who have worked for 8 years or more.  If an employer fires 50 or more workers within a 4-week period, the minimum notice periods might be different and you should seek legal advice.

A notice  ordered by the Court: A court can decide that more notice was required in a particular case because the court is not limited to the minimum notice periods in the ESA. The amount of notice a court will order depends on all the circumstances, such as the type of job, the availability of similar employment, and the age of the worker – not just length of employment. A court can also order an employer to pay you for damages such as  discrimination, harassment.

 

You can be laid off without notice if you are laid off temporarily. In most cases, the law says you are laid off temporarily if you are laid off for 13 weeks or less. The rules about temporary lay-off are complicated. If you are laid off, get legal advice about whether your lay-off is temporary or permanent.

In some cases, being forced out of a job is the same as being fired. For example, if you leave because your employer refuses to pay you, or because your employer is discriminating against you, you may have the same rights as if you were fired. You should get legal help right away.

In some situations you can be fired or laid off without notice; if you have not worked continuously for at least 3 months, or if you are fired because of your own misconduct However, what your employer says is misconduct might not be misconduct under the law so you should seek legal advice.

If you are protected by a union, check your collective agreement to find out about your rights at work, or talk to your shop steward. You will have to use the grievance procedure in the collective agreement to enforce your rights.

Severance pay is another payment that some people get when they lose their jobs under specific circumstances. To qualify you must have worked at least 5 years for your employer and your employer pays out wages of at least $2.5 million a year in Ontario, or at least 50 people will be losing their jobs within a 6-month period because the business is being cut back. Under ESA severance pay equals one week’s pay for each year of employment, up to a maximum of 26 weeks.one week’s pay for each year of employment, up to a maximum of 26 weeks.

Your employer must pay your wages and vacation pay and any money owing to you as a result of your termination no later than 7 days after your employment ends, or your next regular pay day if it comes more than 7 days after your employment ends. Severance pay can be paid in instalments up to 3 years if you agree in writing or if the Director of Employment Standards approves. In this case if your employer misses a scheduled payment, the balance of the severance pay becomes due immediately.

Your employer must prepare a Record of Employment (ROE) and give it to you within 6 days after your last day of work. Or your employer can send it to the government electronically within 16 days after your last day of work.

f you are unemployed and looking for work, you may be able to get Employment Insurance(EI) benefits. If you do not qualify for EI or you are waiting for EI, you might be able to get social assistance benefits from Ontario Works (OW). If you quit or got fired, you might still qualify for benefits depending on the circumstances.

In most cases, you cannot get your job back if you are fired. But, if you think you were fired because you tried to exercise your legal rights under the ESA, you should get legal help. The Ministry of Labour can order your employer to compensate you and give you back your job. Examples of exercising your legal rights under the ESA are:

  • taking the pregnancy or parental leave you are entitled to, and returning to your job at the end of your leave,
  • asking about your rights or asking your employer to obey the law,
  • refusing to sign an agreement affecting your rights (for example, an agreement about how you will be compensated for overtime),
  • making a claim against your employer, or
  • giving information to an Employment Standards Officer who is investigating your employer.

You should also get legal help if you think you were fired:

  • because of your race, sex, age, disability, or other reasons that violate your human rights,
  • because you raised a health or safety issue in the workplace, or
  • because you raised a concern about your employer not obeying environmental protection laws.

You may be able to enforce your rights as a worker by making a claim against your employer. The Ministry of Labour can order your employer to pay you money that you are owed.

In some cases, you may be able to bring a court action against your employer. If you do, you cannot file a claim for the same violation of your rights with the Ministry of Labour.

In general, a claim for unpaid wages must be filed with the Ministry of Labour within 6 months of the date the wages were owing. The claim can include unpaid wages for the last 12 months, as long as it is filed within 6 months of one of the dates when unpaid wages were due. A claim for vacation pay can be filed up to 12 months after it became due.

In certain cases, you have up to 2 years to file if your claim does not involve any unpaid wages. For example, you have up to 2 years to file a claim against your employer for penalizing you, or threatening to penalize you, because you exercised your legal rights.

If your employer has gone bankrupt, you may be able to get wages, vacation pay, severance pay, and termination pay owing to you by applying to the federal Wage Earner Protection Program (WEPP).

Update on Recent Appeal Decisions

Update on Recent Appeal Decisions

mediationA number of interesting cases have been handed down by the Court of Appeal and the Supreme Court of Canada in the last few months.  The following is a summary of these cases to bring you up to  speed.

Moore v. Getahun, 2015 ONCA 55 – Reviewing Expert Reports

When this case was decided at trial, litigators all over Ontario were at a loss.  The long-standing practice of assisting expert witnesses in framing their reports during the drafting process was held to be no longer acceptable.  Fortunately, the Court of Appeal set things right and litigators across the province breathed a collective sigh of relief.

In the reasons for the decision, the Court of Appeal stated, “Just as lawyers and judges need the input of experts, so too do expert witnesses need the assistance of lawyers in framing their reports in a way that is comprehensible and responsive to the pertinent legal issues in a case… Reviewing a draft report enables counsel to ensure that the report (i) complies with the Rules of Civil Procedure and the rules of evidence, (ii) addresses and is restricted to the relevant issues and (iii) is written in a manner and style that is accessible and comprehensible.”

Imagine proceeding to trial, needing an expert witness’ opinion, but your lawyer is unable to provide guidance on how the witness’ expert report should be presented.  Luckily, the Court of Appeal has made certain that this is not a concern for litigants.

Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4 – Right to Strike

Preventing essential services from taking strike action is a hot-button topic.  At the end of January, the Supreme Court of Canada dealt with the issue of the constitutionality of a collective bargaining unit’s right to strike.

In December 2007, the Government of Saskatchewan enacted legislation to limit the ability of public sector employees in essential services from participating in strike action. However, section 2(d) of the Canadian Charter of Rights and Freedoms provides for the fundamental freedom of association.  The Supreme Court of Canada found that a prohibition on designated employees participating in strike action was a substantial interference with a meaningful process of collective bargaining and therefore a violation of the freedom of association.

The Supreme Court of Canada also concluded that this violation of section 2(d) was not a reasonable limit allowable under section 1 of the Canadian Charter of Rights and Freedoms.  Although the maintenance of essential public services is a pressing and substantial obligation, the legislation went beyond what is reasonably required to ensure the uninterrupted delivery of essential services and failed to provide a meaningful alternative mechanism for resolving bargaining impasses, like arbitration.

Union members should not take this case to mean that the right to strike is absolute.  Rather, the right to strike of employees in essential services may be restricted, provided that the limit is reasonable and allows for other ways to resolve deadlocks in negotiating collective agreements.

Arnone v. Best Theratronics Ltd., 2015 ONCA 63 – Bridging Until Retirement

I wrote about the trial decision in October 2014.  In this case, the plaintiff, Mr. Arnone, was 53 years old with 31 years of service when his employment as a manager ended. At that time, he was 16.8 months away from retiring with an unreduced pension.  The trial judge emphasized this in assessing the appropriate notice period to be 16.8 months.

In his reasons, the trial judge stated, “Objectively assessed, it seems to me that the most reasonable view of the situation prevailing at the time of termination would be to recognize the reality of the approaching entitlement to an unreduced pension and to factor this into a termination arrangement that included the other benefits available to the plaintiff upon retirement.” From this, it appeared as if the court was stating that the assessment of a notice period could include factors outside of those cited in Bardal v. Globe & Mail Ltd., namely “the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.”

I was somewhat surprised by this decision.  As I wrote last year, it seemed that “This decision underscores that there is no complete set of factors that go into an assessment of reasonable notice.  An impending retirement may be just as important as the employee’s age, duration of service or position.”

Thankfully, the Court of Appeal clarified that “The Bardal analysis remains the approach courts must apply to determine what constitutes reasonable notice of termination, an approach which has not included a consideration of the time between the date of dismissal and the point at which the employee would be eligible for a full pension.”

This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.

Written by Jeffrey Robles and originally published on the blog at http://jeffreyrobles.com. Jeffrey represents clients in the areas of employment law and personal injury in the Ontario Superior Court of Justice.  
Bhasin V. Hrynew: Good Faith In Contractual Performance

Bhasin V. Hrynew: Good Faith In Contractual Performance

Employment LawUntil last month, there was no one conclusive decision in Canadian case law as to whether or not there was a common law duty of good faith in the performance of contractual obligations.  The Supreme Court of Canada’s decision in Bhasin v. Hrynew, 2014 SCC 71 last month changed that.  This case stands for the proposition that the common law does indeed impose a duty on parties to perform contractual obligations honestly based on a general organizing principle of good faith contractual performance.

The following is a summary of some of the highlights from this decision:

  1. At paragraph 33 of the decision, the Supreme Court of Canada concluded that it was time to take two incremental steps in order to make the common law less unsettled and piecemeal, more coherent and more just:
    • The first step is to acknowledge that good faith contractual performance is a general organizing principle of the common law of contract which underpins and informs the various rules in which the common law, in various situations and types of relationships, recognizes obligations of good faith contractual performance.
    • The second step is to recognize, as a further manifestation of this organizing principle of good faith, that there is a common law duty of honesty which applies to all contracts to act honestly in the performance of contractual obligations.
  2. According to Mr. Justice Cromwell, writing for the majority, these two steps “will put in place a duty that is just, that accords with the reasonable expectations of commercial parties and that is sufficiently precise that it will enhance rather than detract from commercial certainty.”
  3. The organizing principle of good faith exemplifies the notion that, in carrying out his or her own performance of the contract, a contracting party should have appropriate regard to the legitimate contractual interests of the contracting partner.
  4. At paragraph 60, Mr. Justice Cromwell states, “Commercial parties reasonably expect a basic level of honesty and good faith in contractual dealings.  While they remain at arm’s length and are not subject to the duties of a fiduciary, a basic level of honest conduct is necessary to the proper functioning of commerce.  The growth of longer term, relational contracts that depend on an element of trust and cooperation clearly call for a basic element of honesty in performance, but even in transactional exchanges, misleading or deceitful conduct will fly in the face of the expectations of the parties.”
  5. Since the duty of honesty in contractual performance is a general doctrine of contract law that applies to all contracts, parties are not free to exclude it.

One of the questions raised by this decision is, “How does this affect employment law?”  The simple answer is that it does not.  As noted by Mr. Justice Cromwell at paragraph 54, the above-noted principles are entirely consistent with the Supreme Court of Canada’s earlier decisions in Honda Canada Inc. v. Keays, 2008 SCC 39 and Wallace v. United Grain Growers, 1997 CanLII 332 that all employment contracts have an implied term of good faith in the manner of dismissal.  This decision merely serves to reinforce what we already knew about the employer’s duty of good faith and fair dealing – which is one of the things that the Supreme Court of Canada was looking to achieve with this decision.

This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.

Written by Jeffrey Robles and originally published on the blog at http://jeffreyrobles.com. Jeffrey represents clients in the areas of employment law and personal injury in the Ontario Superior Court of Justice.  
“WHAT ABOUT MY PENSION?!” – TERMINATION WHEN RETIREMENT IS IN SIGHT

“WHAT ABOUT MY PENSION?!” – TERMINATION WHEN RETIREMENT IS IN SIGHT

pension“I can’t wait for the day when I reach the Magic Number!” This thought often runs through the minds of employees with 20 or more years of service, and fortunate enough to be vested in a pension. With each passing year, these employees give more and more thought to the sum of their age plus years of service – that Magic Number which many pension plans require for participating employees to retire and begin receiving benefits.

For example, the terms of a pension plan may require a Magic Number of 90 in order to retire with an unreduced pension. A 63 year old employee with 27 years of service meets that requirement. However, a 62 year old employee with the same years of service does not. While the former employee can look forward to retirement, the latter employee may be in a precarious position until his next birthday or his next completed year of  service. Until that point in time, the latter employee has to worry about the possibility of termination and the potential loss of that unreduced pension.

The recent decision of the Ontario Superior Court of Justice in Arnone v. Best Theratronics Limited, 2014 ONSC 4216 highlights this concern.

Facts of the Case

The plaintiff, Mr. Arnone, was a 53 year old sales and customer support manager with 31 years of service. At the date of his dismissal, he was 16.8 months away from being able to retire with an unreduced pension.

In his Claim, Mr. Arnone sought damages based on a notice period of 24 months. He also sought damages of $65,000 which represented the actuarial calculation of the amount needed to compensate for the loss of the unreduced pension.

Although Justice James disagreed that Mr. Arnone was entitled to a notice period of 24 months, the judge noted that “the fact that the plaintiff was less than two years away from being entitled to an unreduced pension should not be ignored in the factual matrix surrounding his termination. Objectively assessed, it seems to me that the most reasonable view of the situation prevailing at the time of termination would be to recognize the reality of the approaching entitlement to an unreduced pension and to factor this into a termination arrangement that included the other benefits available to the plaintiff upon retirement.” In other words, Mr. Arnone’s impending retirement was a factor to consider in assessing the appropriate notice period.

Justice James concluded that, absent the fact that Mr. Arnone’s retirement was on the horizon, the appropriate notice period was 22 months. Nevertheless, the judge limited damages for pay in lieu of notice to the equivalent of the 16.8 months Mr. Arnone would have needed to retire with an unreduced pension. To account for the fact that Mr. Arnone would no longer receive pension benefits, Justice James also awarded damages of $65,000 to compensate for that loss.

Interestingly, Justice James did not deduct the income earned by Mr. Arnone after dismissal. In support of this, the judge held, “An arrangement to bridge an employee to the point he or she would receive an unreduced pension in circumstances where this period of time is less than the appropriate common law notice period would reasonably include a concession on the part of the employer not to require mitigation efforts.”

Practical Considerations

The take-aways from this case include the following:

  1. A pension is often an employee’s most significant asset.  In cases where the termination of employment is without cause and  retirement with an unreduced pension is on the horizon, it is important for the employer to consider the interplay between the range of reasonable notice the employee’s Magic Number.
  2. This decision underscores that fact that there is no complete set of factors that go into an assessment of reasonable notice.  An impending retirement may be just as important as the employee’s age, duration of service or position.
  3. Where the loss of pension benefits is claimed, an actuarial calculation based on correct assumptions is essential.

This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.