Articles 2019

While we generally refer to mediation as a confidential and without prejudice process, the truth is that there are three potential situations in which what happens at mediation can be referenced and relied upon. It is important that counsel are aware of these exceptions, and advisable that they ensure that mediations they participate in are governed by an agreement which rebuts them to the extent possible. My standard mediation agreement does so, but not all of them do.

In addition to the COVID-19 pandemic’s heavy influence on employment law, 2021 also saw the introduction of new law dealing with employees’ “right to disconnect” and the near-banning of non-competition clauses and agreements. Additionally, a series of prominent and influential decisions emerged from Ontario’s Human Rights Tribunal, Superior Court and Court of Appeal relating largely to workplace culture issues. We discuss this and more in our look back at 2021, and what’s to come in 2022.

As the COVID-19 pandemic has evolved, so too have workplace dynamics, rules, and consequences. The availability of COVID-19 vaccines has added a new layer of complexity for workplace parties to navigate. This article explores how workplace mandatory vaccination policies are being reviewed by courts, labour boards and tribunals.

This article discusses noteworthy labour law decisions of 2021. While the topic of mandatory vaccination policies has garnered significant attention from employers and lawmakers in the past year, there were several judicial developments independent of vaccination policies that employers and human resources practitioners should keep in mind.

Sometimes parties travel a great distance to bridge the gap in their positions, only to find that the final step toward settlement is the biggest hurdle of all. "Splitting the difference" is not usually a viable strategy, so don't simply engage in offers and counter-offers without proper forethought. Working strategically with your mediator and considering creative approaches such as a Mediator's Proposal, Final Offer Selection, or mediation-arbitration (med-arb) will help get the deal done.

In a recent decision, the Ontario Superior Court rejected a Plaintiff’s argument that the entire termination scheme in an employment agreement was unenforceable because the agreement contained a “just cause” provision. Relying on contract law principles, the Court distinguished Waksdale v. Swegon North America Inc. and reminded employment lawyers that every case should be considered on its own facts.

In Morningstar v WSIAT, the Ontario Divisional Court partially quashed a WSIAT decision and held that constructive dismissal claims for chronic mental stress arising from workplace harassment are not statute-barred by the WSIA unless they are improper attempts to skirt the limitations of that Act. This article summarizes this recent decision and discusses the implications it may have for employers and employees in regards to these types of claims.

In this article, mediator and employment lawyer Stuart Rudner provides advice for how counsel should approach allegations of just cause at mediation.

This article addresses the recent jurisprudence from the Human Rights Tribunal of Ontario regarding mandatory masking rules.

Class actions in the realm of employment law are a relatively new but growing field. They are an ideal way for workers to have access to justice. Not only do they allow employees to maintain anonymity and prevent reprisals from their employer, but they also allow recovery of small amounts for employees, for claims that would not be financially viable for individuals to bring on their own. This article explores a few changes and trends being seen in employment law class actions.