Master and Servant In making this award, the Court considered many of the recent wrongful dismissal Ontario Court of Appeal decisions, including the previously discussed decision in Dawe v. The Equitable Life Insurance Company of Canada, 2019 ONCA 512 (CanLII), which re-established that absent “exceptional circumstances” there is generally a 24-month cap on reasonable notice periods.
Being brash, outspoken, opinionated and never afraid to offend is an outmoded communication style when it is not balanced by, and compliant with codes of conduct, anti-violence, anti-harassment and anti-discrimination policies or parties’ legal obligations. In the professional sports context, the fact that the employees or volunteers are providing the service of “entertainment” or “coaching” in a public facility such as a sports arena or stadium does not permanently place them in the pocket; they will be required to fully defend their comments and actions or be at risk of getting sacked.
All Ontario employers by now should be well aware of and familiar with The Accessibility for Ontarians with Disabilities Act, 2005 and its regulations (the “AODA”) as many of its requirements, or standards, should already be in place in your workplaces. The AODA’s purpose is to “develop, implement, and enforce standards for accessibility” related to employment (as well as goods, services, facilities, accommodation, and buildings) by 2025.
Yes! Certainty in the terms and conditions of an employee’s employment contract is an excellent way to avoid potential conflict and reduce potential liability and “costs” (i.e., lost opportunity costs; reduced productivity from decreased morale; increased absenteeism, turnover, recruitment and training costs; and litigation costs) now for the future. Consider it everyone’s playbook should conflict arise or the employment relationship breaks down.
On Oct. 23, 2019, Ontario’s Ministry of Attorney General announced significant changes to its “alternative” litigation procedures in order to make civil litigation more affordable and thus accessible by reducing costs and delays as well as increasing the efficient use of the parties’ and the court’s resources and time. The changes will be in effect as of Jan. 1, 2020 and should decrease the number of actions brought under the ordinary litigation procedure before our Divisional Court. Depending on the dollar value of a claim, some litigants will have the option to elect between these two alternative court procedures, which are not mutually exclusive.
With Thanksgiving behind us, we are turning our minds to the Christmas holidays and closing out the 2019 calendar year. As an employer, do you provide holiday or annual bonuses? If yes – the Ontario Court of Appeal released a further decision to its decision in Manastersky v. Royal Bank of Canada, 2019 ONCA 609 that I discussed in an earlier article. The most recent OCA decision on bonuses is Andros v. Colliers Macaulay Nicolls Inc., 2019 ONCA 679. Where the Manastersky decision taught us that a well-crafted bonus plan can insulate an employer from liability in respect of bonus plan payout to former employees, the Andros decision underscores what happens when your employment contracts are not well-crafted.
The contents of a job applicant’s resume are - and should always be – the starting point in your company’s recruitment process. Few applicants know or care that lying on a resume constitutes cause for the termination of their employment when it is discovered if it means they get the job. The “cause” arises from the fact that all employment relationships are built on trust. If employment is offered based on employee misrepresentations, the trust necessary for continued employment is breached and a serious character flaw is revealed that also undermines the necessary bonds of trust.
In the employment context bonuses can either be discretionary or non-discretionary. A discretionary bonus is completely unexpected. Unexpected as to timing, dollar value and kind of performance needed to receive one. They have no established formula, are not part of an employee’s contract, there is no expectation to receive one regularly and as such it does not constitute either a meaningful or expected part of an employee’s total compensation package.
Employees may have access to information that is confidential or personal about policies, decisions or other persons in or connected to their workplaces that are not intended for public consumption. In light of this access, proactive employers have confidentiality and other nondisclosure covenants in their employment contracts. But what if an employee breaches such a covenant and goes to the media or vents their employment frustrations on social media resulting in defamatory conduct against the employer, its employees or its customers?
While apparently not litigated in Dussault v. Imperial Oil Ltd., [2019] O.J. 2800, discussed in my last article, the Ontario Court of Appeal (OCA) in Dawe v. The Equitable Life Insurance Company of Canada, 2019 ONCA 512 (CanLII) has re-established that absent “exceptional circumstances” there is generally a 24-month cap on reasonable notice periods. In doing so the OCA overturned and reduced the trial judge’s award of 30 months of reasonable notice to 24 for a 62-year old senior executive with 37 years of service, a person whom under the recent line of cases the trial judge noted would have been awarded 36 months if he asked for it. The court also reversed the recent line of cases that broke through the general 24-month cap that had been in place for decades – and which some touted as demonstrating that the law had evolved to eliminate this general cap.