Articles 2019

Employers sometimes rely on severability clauses to hedge against the risk that clauses in employment contracts could be found to run afoul of the Employment Standards Act and be unenforceable as a whole. However, in a recent decision, the Ontario Court of Appeal signalled that these clauses have limited effect when parties include terms in agreements that contract out of minimum employment standards.

The most significant changes to the ESA in more than fifteen years were recently implemented pursuant to Bill 148. This article has provided an overview of the construction-specific standards and exemptions introduced by Bill 148 and the newly amended Regulations to the ESA.

This article discusses the decision of the Ontario Superior Court of Justice in Fisher v. Hirtz, which ruled on the issue of ‘employee versus independent contractors’ and highlighted the common law principles for differentiating employees from independent contractors and dependent contractors.

Recent amendments to the Workplace Safety and Insurance Act, 1997 will expand the scope of benefit entitlement for mental stress to include chronic mental stress. The Workplace Safety and Insurance Board has just issued the final version of its operational policy in support of this new entitlement. This expanded entitlement will have significant consequences for employers.

Employees who have been terminated without reasonable notice have a duty to mitigate their damages by searching for and, where possible, accepting alternate employment during the notice period. However, in a recent decision the Ontario Court of Appeal indicated that not all income earned during the notice period will be deducted from a damages award.

If an employer dismisses an employee without cause, and then later discovers that they had been stealing from the company for years, can they now allege just cause for dismissal? What if the employee was initially dismissed for just cause; can the employer rely upon after-acquired cause to bolster the grounds relied upon by them to support summary dismissal? This article articulates the principles that allow employers to rely on after-acquired cause as a justification for dismissal.

In the recent decision Wood v. CTS of Canada Co., the Ontario Superior Court provided useful guidance to employers, unions and employees caught up in a mass termination. The Court emphasized the importance of providing proper early notice to the Ministry of Labour and securing adjustment services for affected employees.

In most cases, an employer’s liability will be based on the circumstances existing at (and at times, leading up to) the date of dismissal. Occasionally, however, an employer’s liability may be exacerbated by poor decision-making after the employee has left the building. Over the past twelve months, the Ontario Superior Court of Justice has released several decisions that provide a useful outline of how this can happen.

The law concerning restrictive covenants in Canada has been a subject of substantial judicial scrutiny as whether or not a court would consider such covenants to be enforceable will depend on the facts of each case. When drafting restrictive covenants for inclusion in an employment contract, employers should consider various guidelines/limitations provided by the courts over time such as reasonableness, territorial and time limitations etc.

An employee’s mitigation efforts remain one of the most contested, and unpredictable, issues in wrongful dismissal matters. In a helpful decision from the Ontario Superior Court, the concept of when retraining is appropriate was considered.