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Ontario Employer Advisor Keeping Employers Advised on Developments in Labour and Employment Law

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A Brave New World? – Probably Not But Employers Sometimes Have To Deal With 26 Months’ Notice and “Dependant Contractors”

Posted in Contractors, Employee Obligations, Employment, Employment Standards, Pay, Termination

The Ontario Court of Appeal has further shattered the “24 month maximum” myth.  In Keenan v. Canac Kitchens Ltd., the Court of Appeal upheld a Trial Judge’s finding that two long service workers were “dependent contractors” and therefore entitled to 26 months’ reasonable notice on termination.

We do not think that this appeal decision is particularly ground-breaking. While unusual, it is not the first time that a Court has awarded more than 24 months’ notice (we are aware of at least one case where a court awarded 30 months).  Also, dependant contractors have long been a recognized category of … Continue Reading

Comply With the AODA or Pay the Piper

Posted in Accommodation, Discipline, Policies

The Accessibility for Ontarians with Disabilities Act, 2005 (the “AODA”) is an Ontario law whose purpose is to develop, implement and enforce accessibility standards in order to achieve accessibility for Ontarians with disabilities by 2021. Since January 1, 2012 Ontario employers with 20 or more employees were required to be compliant with the AODA’s Customer Service Standard.   Compliance includes filing an Accessibility Report.

Likewise, since January 1, 2014, Ontario private sector employers with 50 or more employees have been required to comply with requirements under the AODA’s Integrated Accessibility Standard.  This includes filing another Accessibility Report on or before December … Continue Reading

New Rule of Thumb: 6 Months’ Pay Per Year of Service?

Posted in Termination, Wrongful Dismissal

So much for the rule of thumb that an employee should receive one month of notice for every year of service. The Toronto Star has reported on a recent wrongful dismissal decision that Ontario employers should consider, especially when hiring senior managers or executives. Except for the 12 month notice period that was awarded, the facts of the case seem unremarkable. The company terminated, without cause, the employment of a 52 year old executive, who had 19 months of service.

The interesting part of the decision is that the executive, who had still not found work after 14 months, was … Continue Reading

Ontario Human Rights Commission Releases New Policy on Mental Health Disabilities and Addictions

Posted in Discrimination, Human Rights

On April 16th, we reported on a new policy published by the Ontario Human Rights Commission (the Commission) entitled Policy on Preventing Discrimination Because of Gender Identity and Gender Expression. Last week, the Commission published a new policy entitled the Policy on preventing discrimination based on mental health disabilities and addictions.

This new policy was created out of recognition that persons with mental health and disabilities “have faced considerable and longstanding discrimination, stigmatization and social exclusion in Canada and across the world”.   For Ontario employers, this is an important policy as the Ontario Human Continue Reading

Ontario Human Rights Commission Releases New Policy on Gender Identity and Gender Expression

Posted in Accommodation, Discrimination, Human Rights, Policies

On April 15, the Ontario Human Rights Commission (the Commission) published a new comprehensive policy entitled Policy on preventing discrimination because of Gender Identity and Gender Expression. According to the Commission, the policy

is a complete revision and update of the Ontario Human Rights Commission’s (OHRC’s) original Policy on discrimination and harassment because of gender identity first published in 2000.

Its stated purpose is to discuss and promote understanding and awareness about trans people and their rights under the Ontario Human Rights Code (the Code) and to help employers recognize and meet their legal obligations under the Code not … Continue Reading

Daughter’s Facebook Post Causes Father to Lose $80,000 Settlement From Age Discrimination Lawsuit

Posted in Age, Discrimination, Human Rights

A recent decision from the Florida Third District Court of Appeal provides some valuable guidance for Canadian employers wishing to keep settlement agreements strictly confidential. Patrick Snay (Snay) had settled an age discrimination lawsuit with his former employer Gulliver Preparatory School (the School). The School agreed to pay him $80,000, but the settlement agreement contained the following confidentiality clause:

Confidentiality…[T]he plaintiff shall not either directly or indirectly, disclose, discuss or communicate to any entity or person, except his attorneys or other professional advisors or spouse any information whatsoever regarding the existence or terms of this Agreement…A breach…will result in

Continue Reading

New Human Rights Decision Provides Guidance on Frustration of Contract

When is an employment agreement frustrated?

Posted in Benefits, Compensation, Pensions, Human Rights, Occupational Health and Safety, Termination

We are often asked by our clients how long one of their employees has to be off work before it can justifiably take the position that an employment relationship has been “frustrated”.  Employers often wonder this because when an employment relationship is frustrated, the employee is not entitled to common law notice or pay in lieu of such notice [1]. So, how long does it take? 1 year? 18 months? 2 years? 5 years?

A recent Human Rights Tribunal decision, Gahagan v. James Campbell Inc., 2014 HRTO 14, appears to provide some guidance on this issue.… Continue Reading

Beauty Pageant Case Provides Example of Welcomed Use of Summary Hearings by the Human Rights Tribunal

Posted in Discrimination, Human Rights

Back in April 2013, we reported on a Human Rights Tribunal (the Tribunal) decision where a summary hearing was granted and an application was dismissed as having no reasonable prospect of success. A newly released decision involving a beauty pageant demonstrates the Tribunal’s increasing and welcomed use of the summary hearing mechanism.… Continue Reading

Male Customer’s Challenge to “Ladies Night” as Discriminatory Found to Have No Reasonable Prospect of Success

Posted in Discrimination, Human Rights

With the help of some interesting facts, a recent decision of the Human Rights Tribunal of Ontario (HRTO), demonstrates the type of case for which a summary hearing will be granted. In Maclean v. The Barking Frog, 2013 HRTO 630, the applicant, Kyle Maclean, filed a complaint after he and some friends attended a local bar and he was told that the cover charge was $20 for men and only $10 for women. The applicant was affronted, unwilling to pay the cover, and did not enter the bar. The question at hand was whether that amounted to discrimination … Continue Reading

Ontario Government Introduces Leaves for Caregivers

Posted in Accommodation, Family Status, Human Rights

On March 5, 2013, new Ontario Labour Minister Yasir Naqvi introduced Bill 21, the Employment Standards Amendment Act (Leaves to Help Families), 2013 (Bill 21). If passed, Bill 21 would create three new unpaid leaves of absence under the Employment Standards Act, 2000 (ESA): Family Caregiver Leave, Critically Ill Child Care Leave and Crime-Related Child Death and Disappearance Leave. As previously reported, the Government introduced similar amendments to those proposed in the Family Caregiver Leave section in the former Bill 30. Bill 30 died on the order paper with the prorogation of the Ontario legislature in October 2012.… Continue Reading

Ontario Human Rights Tribunal Awards Reinstatement and Substantial Back Pay for Failure to Accommodate

Posted in Benefits, Compensation, Pensions, Human Rights, Termination, Wage and Hours, Wrongful Dismissal

A recent decision of the Ontario Human Rights Tribunal (HRTO) in Fair v. Hamilton-Wentworth District School Board, 2013 HRTO 440 illustrates the potentially serious consequences for employers who fail to accommodate employees.

In its initial and long-delayed decision on liability, the HRTO found the Hamilton Wentworth District School Board liable for discriminating against former employee Sharon Fair by failing to accommodate her post-traumatic stress disorder (PTSD) and terminating her employment.… Continue Reading

Alberta Human Rights Tribunal Orders Reinstatement and Back Pay in Age Discrimination Case

Posted in Age, Discrimination, Human Rights

As larger numbers of employees continue to work past the age of retirement given the elimination of mandatory retirement in most jurisdictions, employers must remain cognizant of their continuing obligations under human rights legislation. In the recent decision of the Alberta Human Rights Tribunal in Cowling v. Alberta (Employment and Immigration), 2012 AHRC 12, the complainant, Joan Cowling, filed a complaint of discrimination on the basis of age. Ms. Cowling worked as a Labour Relations Officer for the Province of Alberta for eight years on fixed term contracts. In 2007, Ms. Cowling reapplied for a position at the … Continue Reading