How Long Can I Wait To Look For A New Job?

How Long Can I Wait To Look For A New Job?

Every employee suing for wrongful or constructive dismissal is required to mitigate his or her losses by taking reasonable steps to search for new work. This duty to mitigate is a topic that I have written about on several occasions.  You can find links to these articles here and here.

A question that I am asked from time to time by clients is how long can one wait before beginning the search for new employment.  Ideally, the search should begin right away, not long after the employment relationship has been terminated by the employer.  However, the courts will allow some latitude, affording an employee some time to gather himself or herself before beginning the search for another job.  This was addressed in the decision in Samuel v. Benson Kearley IFG.

In this wrongful dismissal action, the employee waited four months before beginning the search for a new job.  According to the employee, the shock and distress of losing her job prevented her from looking for another position, although she did not seek medical attention during that period of time.  The employer, on the other hand, found 38 comparable positions that were available over that four-month period that the employee could have applied for.

In his decision, Justice Charney concluded that the employee failed to take reasonable steps to mitigate by looking for new work over the course of that timeframe.  In reaching this decision, he wrote, “While I understand that the shock of losing one’s job might result in some delay before a job search begins, in the absence of some medical evidence to corroborate her claim, I am unable to accept her assertion that the “shock and distress” of losing her job prevented her from actively searching for a job for as long as four months.”

In the result, Justice Charney reduced the employee’s damages for pay in lieu of notice by one-third, from six months to four months.

The takeaway for employees is that unless one is suffering from mental distress that is beyond the usual upset that comes with the loss of employment and is medically supported, it is generally not a viable excuse for commencing the job search.  The takeaway for employers is that, in the face of a wrongful or constructive dismissal claim, it is generally a good idea to keep track of similar positions that are available in the job market.

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.

Publicly Placing A Person In False Light

Publicly Placing A Person In False Light

 

The COVID-19 pandemic forced millions across the province to work or study from home.  In order to use videoconferencing or virtual classrooms, a stable internet connection is needed.  While the internet has become an indispensable tool for most Ontarians, we are all well-aware of how it can also be used to harm others.

The law has recognized and addressed this, not only in the area of criminal law, but also in the area of tort law.  Several years ago, I wrote about the tort of intrusion upon seclusion, or invasion of privacy.  A link to that article can be found here.

Late last year, the Superior Court of Justice released a decision that further clarified how the tort of intrusion upon seclusion is but one part of a four-tort catalogue that makes up invasion of privacy.  These four torts include:

  1. Intrusion upon seclusion or solitude into another’s private affairs;
  2. Public disclosure of embarrassing private facts of another;
  3. Publicity which places another in a false light in the public eye; and
  4. Appropriation, for one’s advantage, of another’s name or likeness.

In this decision, Yenovkian v. Gulian, another tragic family law case, the father was found to have made serious allegations online about the mother and her family over an extended period of time.  Such allegations included that the mother was a kidnapper who abused and drugged the children, who forged documents and defrauded the government.  The court found each of these allegations to be false and held the father to be liable for the tort of publicly placing another in a false light.

As stated in paragraph 170 of the decision, the requirements to satisfy this tort are as follows:

  1. The false light in which the other was placed would be highly offensive to a reasonable person; and
  2. The actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

This tort also has a lower evidentiary burden than a claim for defamation of character.  In support of this, the trial judge wrote, “while the publicity giving rise to this cause of action will often be defamatory, defamation is not required. It is enough for the plaintiff to show that a reasonable person would find it highly offensive to be publicly misrepresented as they have been. The wrong is in publicly representing someone, not as worse than they are, but as other than they are. The value at stake is respect for a person’s privacy right to control the way they present themselves to the world.” (Emphasis added)

As a result of the father’s wrongdoing, the mother suffered mental distress that manifested itself in a visible and provable illness.  In assessing the mother’s damages, the  trial judge considered the following factors:

  • The nature of the false publicity and the circumstances in which it was made;
  • The nature and position of the victim of the false publicity;
  • The possible effects of the false publicity statement upon the life of the plaintiff; and
  • The actions and motivations of the defendant.

In the result, the trial judge awarded the mother damages for mental distress in the amount of $50,000.00, plus damages for invasion of privacy in the amount of $150,000.00 as well as punitive damages in the amount of $150,000.00.

Not surprisingly, the trial judge also awarded the mother sole custody of the two children and a restraining order against the father.  The father was entitled to supervised access on a graduated basis only.

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.

 

What Am I Entitled To In A Wrongful Dismissal Claim?

What Am I Entitled To In A Wrongful Dismissal Claim?

Most of the time, when a client comes to see me about a wrongful dismissal, the client tells me, “I only want what I am entitled to.”  However, most of the time, the client does not really know what he or she is entitled to in damages or compensation.  The Court of Appeal’s decision in O’Reilly v. IMAX Corporation provides a useful summary of what a wrongfully dismissed employee can expect.

The issue in this appeal concerned the employee’s entitlement to exercise stock options, receive bonuses and take advantage of other aspects of his remuneration package during the period of reasonable notice following a termination without cause.  This is an issue that is not as clear as one might expect.  In a footnote to this decision, the Court of Appeal indicated that it heard appeals dealing with this issue four times in 2019.

To clarify the analysis of this issue, the Court of Appeal summarized the following principles at paragraph 32 of the decision:

  1. A wrongfully dismissed employee is entitled to damages for the loss of wages, salary and other benefits, that would have been earned during the reasonable notice period.
  2. This principle applies to bonuses, stock options, or incentives that are an integral part of the employee’s compensation, as well as pension benefits that would have accrued or been earned during the reasonable notice period.
  3. In considering whether the loss of such benefits is recoverable, the court undertakes a two-step analysis.
  4. The first step requires a determination of the employee’s common law right to damages for breach of contract, bearing in mind that the measure of damages is the amount to which the employee would have been entitled had the employer performed the contract.
  5. The second step requires the court to determine whether the terms of the relevant contract or plan unambiguously alter or remove the employee’s common law rights, having regard to the presumption that the parties intended to apply the law, in the absence of clear language to the contrary.

This last principle operates in a similar fashion to a notice provision or termination clause in an employment contract.  More information on this topic can be found here.

In short, the language in the document must be clear and unambiguous in taking away the employee’s common law entitlements.  Otherwise, the employee is entitled to receive compensation for the value of every aspect of his or her remuneration package over the course of the period of reasonable notice.

In dismissing the employer’s appeal, the Court of Appeal concluded that the language used in the employee’s remuneration plan did not unambiguously remove his right to damages for the loss of his stock option that would have vested during the reasonable notice period.

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.
Update on Termination Clauses from the Court of Appeal

Update on Termination Clauses from the Court of Appeal

Termination clauses or notice provisions in employment agreements are an area of employment law that continues to develop at a rapid pace.  These provisions attempt to limit the amount of notice, or pay in lieu thereof, that an employee might be entitled to upon dismissal.  My previous article on this topic can be found here.  Recently, the Court of Appeal expanded the case law on the enforceability of such provisions in Waksdale v. Swegon North America Inc.

In this decision, the employer conceded that the “with cause” termination clause in the employment contract in question violated the Employment Standards Act, 2000.  Conversely, the employee agreed that the “without cause” termination clause did not violate the Employment Standards Act, 2000.  This was particularly unusual because it is normally the “without cause” termination clause that is under attack by the employee on the basis that the clause is an illegal attempt to contract out of the minimum entitlements under the legislation, something specifically prohibited under section 5 of the Act.

However, in this case, the employee argued that despite the legality of the “without cause” provision, the illegality of the “with cause” provision rendered all of the termination provisions unenforceable.  As a consequence, the employee was entitled to not just the minimum standards under the legislation, but also damages for reasonable notice at common law.

The Court of Appeal agreed with the employee and stated at paragraph 10:

An employment agreement must be interpreted as a whole and not on a piecemeal basis. The correct analytical approach is to determine whether the termination provisions in an employment agreement read as a whole violate the ESA….

While courts will permit an employer to enforce a rights-restricting contract, they will not enforce termination provisions that are in whole or in part illegal….

Here the motion judge erred because he failed to read the termination provisions as a whole and instead applied a piecemeal approach without regard to their combined effect.

The Court of Appeal also rejected the employer’s argument that the illegal “with cause” provision could be severed, leaving the rest of the termination clause enforceable.  In its reasons, the Court of Appeal stated at paragraph 14 that a clause purporting to sever an illegal clause “cannot have any effect on clauses of a contract that have been made void by statute.”

In the result, the Court of Appeal ordered that the matter return to the lower court for an assessment of damages.

As I mentioned in my previous article, the takeaway, particularly for employers, is that a termination clause that attempts to limit an employee’s entitlements to the minimum standards set out in the legislation must be drafted with great care to ensure that no part of the clause is an attempt to contract out of the legislation under any and all circumstances. The risk is that the termination clause may be deemed unenforceable and the employee may be entitled to common law notice regardless.

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.

COVID-19: Legislative Changes for Employees and Employers

COVID-19: Legislative Changes for Employees and Employers

 

We have heard it repeatedly from the media and our political leaders.  These are unprecedented times.

Since the government-ordered shutdown of all businesses and services that were deemed to be non-essential, the financial well-being of millions of Canadian employees – as well as the companies they work for – have been severely impacted.   In an effort to address these challenges, governments at the federal and provincial levels have swiftly enacted a variety of legislation directed at employees and employers.  The following is a summary of some of these legislative changes.

Closure of Non-Essential Businesses

Ontario Regulation 82/20 is an Order in Council made under section 7.0.1 of the Emergency Management and Civil Protection Act that requires the temporary closure of all non-essential businesses and establishes the list of essential businesses that can remain open.  That list, set out in Schedule 2 of this Regulation, may be found here.

The list includes sectors such as supply chains, financial services, telecommunications, transportation services, agriculture, energy, health care and social services.  It was last updated and shortened effective April 5, 2020.

For the sake of clarity, subsection 1(3) of the Regulation does not preclude non-essential businesses from operating remotely, providing goods by delivery or pick-up, or providing services online or by phone or other remote means.

Emergency Leave

Employees who are not affected by the closure of non-essential businesses may be entitled to take an emergency leave from work.

The province’s Employment Standards Act, 2000, was amended to add section 50.1 which now provides for an unpaid leave of absence as a result of a declared emergency under the Emergency Management and Civil Protection Act or an infectious disease like COVID-19.  This kind of leave is available to employees who are under medical investigation or treatment for COVID-19 or are looking after a family member as a result of the state of emergency, among other reasons.  A link to the legislation may be found here.

This leave is retroactive to January 25, 2020 when the first presumptive case of COVID-19 was discovered.  Although the employer may ask for reasonable evidence of the need for the leave, the employee is not required to obtain a medical certificate.  It should be noted that there is no fixed duration for such a leave such that it may continue for as long as the state of emergency continues.

Canada Emergency Response Benefit (CERB)

The federal government’s legislative response to the pandemic was the COVID-19 Emergency Response Act.  A link to this legislation may be found here.

Part 2 of this Act is the Canada Emergency Response Benefit Act which provides a benefit that we have now come to know as the CERB.  This taxable benefit provides $2,000.00 every 4 weeks for up to 16 weeks for workers who have lost income due to COVID-19.

It is available to Canadian-resident workers 15 years old and above who are earning less than $1,000.00 per month and have earned at least $5,000.00 in the last year.  The benefit is not available to those who have lost income due to a resignation from employment.

The worker’s circumstances determines how the application for this benefit is submitted. For those who are self-employed, the application for this benefit may be submitted through the Canada Revenue Agency via the link found here.  Employees, on the other hand, may apply through Service Canada via the link found here.

Canada Employment Wage Subsidy (CEWS)

For those employers who are able to continue operating, whether at full capacity as an essential business or partially as a non-essential one, their single largest expense is often the wages of their employees.  During this pandemic, the federal government has implemented the Canada Employment Wage Subsidy or CEWS to assist employers in managing this expense.

This program is administered by the Canada Revenue Agency under the authority of the Income Tax Act and provides a 75% wage subsidy to employers who are not public bodies such as municipal corporations, universities and colleges, and hospitals.

Covering a period between March 15 and June 6, the CEWS subsidizes the greater of:

  1. 75% of an employee’s remuneration up to $847.00 per week; and
  2. the lesser of an employee’s renumeration up to $847.00 per week and 75% of the employee’s average weekly remuneration between January 1 and March 15 (the pre-crisis period).

For example, if an employee’s weekly remuneration is $1,000.00, the CEWS would cover $750.00 which is the lesser of the maximum of $847.00 per week and 75% of $1,000.00 per week (as per paragraph 2 above).  By contrast, if an employee’s weekly remuneration is $1,200.00, the CEWS would cover $900.00 being the greater of $847.00 per week and 75% of $1,000.00 per week (as per paragraph 1 above).

Employers benefiting from the CEWS are expected where possible to maintain or top-up to the employee’s pre-crisis remuneration.

In order to be eligible, an employer must have suffered a year-over-year drop in revenue of at least 15% in March and 30% in subsequent months.  As an alternative to the corresponding month in 2019, employers may use an average of January and February 2020.

More information about the CEWS program may be found here.

Canada Emergency Business Account (CEBA)

In addition to the CEWS, the federal government introduced the Canada Emergency Business Account or CEBA.  This program is implemented by certain financial institutions in cooperation with Export Development Canada (EDC), a corporation wholly-owned by the Government of Canada and authorized by the Export Development Act.

Under the CEBA program, small businesses may apply to their current financial institution for interest-free loans up to $40,000.00 to help cover operating costs.  The program is available to Canadian businesses with a federal tax registration and a 2019 payroll between $20,000.00 and $1,500,000.00.

A noteworthy feature of the program is that it also provides for loan forgiveness of 25%, to a maximum of $10,000.00, where repayment is made before the end of 2022.

Details on the CEBA program may be found here.

Again, this is only a summary of legislative changes.  As we know, these changes occur rapidly as new programs are announced and rolled out, but I will endeavour to update this article with each significant measure taken by the federal and provincial governments, such as the recently-announced Canada Emergency Commercial Rent Assistance program or CECRA.

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.

COVID-19: Legislative Changes to Constructive Dismissal

COVID-19: Legislative Changes to Constructive Dismissal

As of May 29, 2020, the Ontario government has altered the law on constructive dismissal.

In Farber v. Royal Trust Co., the Supreme Court of Canada describes a constructive dismissal as “a fundamental or substantial change to an employee’s contract of employment.” In its subsequent decision in Potter v. New Brunswick Legal Aid Services, the Supreme Court further explains that a constructive dismissal occurs “when an employer’s conduct evinces an intention no longer to be bound by the employment contract”.

By contrast, Ontario’s Employment Standards Act, 2000 and its regulations do not provide a similar description or explanation, let alone a precise definition, of constructive dismissal.  In a now-archived webpage, the Ontario government states here that a constructive dismissal “may occur when an employer makes a significant change to a fundamental term or condition of an employee’s employment without the employee’s actual or implied consent.”  Not surprisingly, the webpage further indicates that constructive dismissal “is a complex and difficult subject” and suggests that a person seeking more information about this area of law contact the Employment Standards Information Centre.

Generally, a reduction in remuneration or a lay-off (even a temporary one) would constitute a constructive dismissal – until now.

Prior to May 29, 2020, if an employee’s wages or hours were temporarily reduced or eliminated by the employer as a result of COVID-19, the employee could file a complaint with the Ministry of Labour’s Employment Standards branch, or commence a constructive dismissal action in the Superior Court of Justice.  However, on that date, the Ontario government enacted Regulation 228/20: Infectious Disease Emergency Leave which can be found here.

Section 7 of this regulation states:

7. (1) The following does not constitute constructive dismissal if it occurred during the COVID-19 period

1. A temporary reduction or elimination of an employee’s hours of work by the employer for reasons related to the designated infectious disease.

2. A temporary reduction in an employee’s wages by the employer for reasons related to the designated infectious disease.

(2) Subsection (1) does not apply to an employee whose employment was terminated under clause 56 (1) (b) of the Act or severed under clause 63 (1) (b) of the Act before May 29, 2020.

Section 8 of the regulation goes on to preclude a complaint to the Ministry of Labour because of a temporary reduction of wages or hours due to COVID-19.

Effectively, this means that a temporary reduction of wages or hours of work as a result of COVID-19 by the employer on or after May 29, 2020 would not be a constructive dismissal.  What is interesting about this change is that the legislation does not qualify or limit the meaning of “constructive dismissal” for the purposes of the Employment Standards Act, 2000 and its regulations only.

In other words, it appears that this regulation may also preclude a constructive dismissal action in the Superior Court of Justice based on a temporary reduction of wages or hours.  There are arguments both for and against this position, and there is no legal authority to provide guidance on this yet.

Constructive dismissal litigation can be risky.  These legislative changes make it more so. Any attempt to pursue such a claim during the COVID-19 period – which is defined to last until 6 weeks after the end of the state of emergency – should be made with caution.

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.

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.