Introducing the Totally Not Fake Dictionary of Ontario Employment Law

  • September 20, 2024
  • Mitchell Rose

As the incoming Newsletter Editor for the OBA’s Labour & Employment Law Section, it is fitting that I submit an article of my own to kick off the 2024-25 term. This way, future contributors will have a standard by which to judge their own work before making me read it.

I am excited to use this space to provide excerpts from my latest tome, The Totally Not Fake Dictionary of Ontario Employment Law.

I am especially proud of this work, which aims to “tell it like it is." You will note that most entries contain multiple definitions drawn from real life. Pick the definition that you prefer depending on who your client is presently, and your deeply held biases.

The Dictionary will also be the indispensable guidebook for newer members of the employment law bar, while more mature readers will wish that it existed back in their day.

Author’s Note:  the excerpt below is in alphabetical order, the arrangement of which took me far longer than the actual writing of the definitions. Enjoy!

Bardal Factors

Ever expanding list of factors for determining common law notice of termination. New additions to the list this year include:

  1. employee popularity,
  2. what the head of HR had for breakfast, and
  3. the availability of alternate places to watch videos on TikTok for 2.7 hours per day.

Commissions

  1. Wages.
  2. A type of discretionary bonus that is not due and owing and never was.
  3. A form of compensation with a policy that is way too hard to understand.

Employee

  1. Loyal and high performing worker. The average employee is, by definition, an indispensable member of the senior management team with at least twenty direct reports (except if the employee is claiming overtime pay). Employees are entitled to at least 36 months’ notice of termination, without exception, since the circumstances of every termination are exceptional.
  2. See Independent Contractor (specifically, definition # 2.).

Employer

  1. Made of money.
  2. Not made of money.
  3. Not your family, despite their assertions to the contrary.

ESA

Short for Employment Standards Act, 2000, S.O. 2000, c. 41, as amended, together with its regulations. The only two things you need to know about the ESA are that it is:

  1. remedial legislation, and
  2. in the eyes of U.S. employers, proof that Canada, and Ontario in particular, is some kind of worker’s paradise. However, this is before they learn about something called common law.

General Damages

  1. A class of wrongful dismissal damages to be claimed in every case (see Throwing Spaghetti at the Wall).
  2. An efficient settlement tool, with some inherent risk, when used appropriately and in a case where it is justified.
  3. Pure evil.

Independent Contractor

  1. An employee in disguise, or, at the very least, a dependent contractor.
  2. Every worker because that is what they agreed to in writing when they clicked on the box in question.

Just Cause

A wise man once called it the “capital punishment” of employment law.

The problem lies with the fact that one side is happy that capital punishment ended in this country, while the other side is busy lobbying for its return.

Labour Law

If you are like many employment lawyers, you don’t know what you don’t know about this area of law. So, let’s just move on, shall we?

Mediator

  1. The person who is 100% responsible for getting you the great settlement that you never thought would happen when you started at 10:00 that morning.
  2. The person you yell at when the other side doesn’t conform to your expectations about your “100% slam dunk” case…..I mean, what are we even doing here?!!?...Why did they want to mediate?!!?...Do they think that we aren’t serious?!!?.....

Motion for Summary Judgment

A form of disposition without trial. Popular and appropriate if yours is a Straight Notice Case (see definition below). The court hears summary judgment motions as early as two weeks from now, or two years from now. It all depends on whom you ask, and the day you ask it.

Probationary Period

Something you should not bother putting in an employment contract anymore because you are just going to mess it up. See ESA and Waksdale.

RSUs

Nothing to see here. Go away -- preferably all the way to the State of Delaware!

Straight Notice Case

Your case is not this. See Amendment of Pleadings.

Termination Clause  

The section of an employment contract that is void by the time the employee signs off on it. See Waksdale.

Toxic Work Environment

  1. “Lumon Industries” from the show Severance.
  2. Your employee client’s former workplace.

Waksdale

  1. The most enlightened court decision of our time.
  2. Proof that the universe is absurd and indifferent to our suffering.

Working Notice

The “heads up” that all terminated employees claim to want, but only if their former employer did not provide it.

Finally, I intended this article as satire. If you took it seriously until now, then please pre-order the Dictionary by e-transferring me $99.99, but please do not tell anyone.

ABOUT THE AUTHOR

Mitchell Rose is a Toronto-area mediator and arbitrator of employment law disputes. He is the former Chair of the OBA’s Alternative Dispute Resolution section, and he is the (actual) current Newsletter Editor for the Labour & Employment Law section. He welcomes your submissions and comments at mitch@mitchellrose.ca, especially if they are serious.

Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.