Header graphic for print
Ontario Employer Advisor Keeping Employers Advised on Developments in Labour and Employment Law

Category Archives: Litigation

Subscribe to Litigation RSS Feed

Employers Must “Trust” Employees to Account for Mitigation Earnings During Notice Period

Posted in Damages, Employee Obligations, Litigation, Termination, Wrongful Dismissal

A typical wrongful dismissal case (where cause is not an issue) generally involves two legal issues.  First, how much reasonable notice of termination (or pay in lieu) should the employee have received based on the employee’s age, length of service, position, compensation and the availability of comparable employment.  Second, did the employee mitigate his/her damages by finding alternative employment or failing to make reasonable efforts to do so during the notice period?  Notably, a judge can decrease the notice period based on the employee’s unreasonable mitigation efforts.

Often times by the time the trial rolls around, the notice period has … Continue Reading

Family Status and Childcare Obligations – The Federal Court of Appeal Weighs In

Posted in Discrimination, Employee Obligations, Family Status, Human Rights, Litigation

On May 2, 2014, the Federal Court of Appeal (FCA) rendered its decision in Canada (Attorney General) v. Johnstone (Johnstone), along with its decision of an appeal in a similar case called Canadian National Railway v. Seeley (Seeley). A full e-alert with our discussion of these cases and the implications for employers can be found here.

Both Johnstone and Seeley involved mothers of young children who requested relief from a workplace schedule or assignment which would have left them without adequate childcare. In Johnstone, the employee worked a rotating shift and requested a … Continue Reading

Following an OHSA Order is not a Mitigating Factor in Sentencing

Posted in Litigation, Occupational Health and Safety, Policies

A recent decision from the Ontario Court of Appeal stands for the principle that with respect to sentencing under the Occupational Health and Safety Act (OHSA), you will not receive any credit for doing something you were ordered to do.

In Ontario (Labour) v. Flex-N-Gate Canada Company, 2014 ONCA 53, the employer was convicted of two offences under the OHSA for failing to properly transport metal sheets with a forklift, which resulted in the injury to a worker’s foot. Following the accident, the Ministry of Labour issued two orders involving the movement of material, which the … Continue Reading

Customer Contacts on LinkedIn = Property of the Employer

Posted in Employee Obligations, Litigation, Policies, Social Media

Ever since the days that employment law was referred to as “master and servant” law, employees have owed various common-law duties and, for some employees, fiduciary obligations to their employer. These obligations take many forms, but key is that an employee cannot misappropriate an employer’s confidential or proprietary information. In the days before social media, this was fairly easy to describe. Generally speaking, an employee could not print or email to himself a copy of the employer’s customer list, and then use that list to compete against the employer. But what if that customer list is not a document, but … Continue Reading

Overtime Exempt or Non-Exempt? Issue May Be Certified as a Class Action

Posted in Employment Standards, Litigation, Wage and Hours

In a very important decision, the Ontario Superior Court of Justice in Rosen v. BMO Nesbitt Burns Inc. has certified a class action launched by investment advisers (IAs) at BMO Nesbitt Burns (BMO) for overtime pay. While this is not the first overtime class action to be certified in Ontario, it is noteworthy given that the issue involves the alleged misclassification of the IAs as managers or as otherwise exempt from overtime under the Employment Standards Act, 2000 (ESA).… Continue Reading

Employee Notice Period Greater than Length of Service!

Posted in Damages, Employment Standards, Just Cause, Litigation, Termination, Wrongful Dismissal

Like many management side labour lawyers, I often advise employers and their human resources professionals on the appropriate amount of notice or termination/severance pay an employee should receive upon dismissal without cause. I often remark that there is no “rule of thumb” or formulaic approach. Instead, in determining an employee’s notice period at common-law, the Courts have listed a number of factors to consider, including an employee’s age, length of service, position, compensation and the availability of comparable employment. While the application of these factors provides some guidance (e.g. junior/younger employees are generally entitled to less notice than more tenured/older … Continue Reading

Public Sector Unions Continue the Struggle to Remain Relevant

Posted in Labour Relations, Litigation, Unions

The Saskatchewan Court of Appeal has confirmed that the restrictions on the right to strike in the Public Service Essential Services Act do not violate the freedom of association found in the Canadian Charter of Rights and Freedoms. In relying upon the 1987 decisions of the Supreme Court of Canada, the Court of Appeal confirmed that “the freedom of association does not comprehend the right to strike.”… Continue Reading

Ontario Court of Appeal Rules “Sometimes a Swimming Pool Is Just a Swimming Pool”

Posted in Litigation, Occupational Health and Safety

The Ontario Court of Appeal recently released its decision in Blue Mountain Resorts Limited v. Ontario (Labour), 2013 ONCA 75, overturning a Divisional Court decision (2011 ONSC 3057) on the duties of employers and contractors under the Occupational Health and Safety Act (OHSA) to report a death or a “critical injury” to the Ministry of Labour (Ministry). Our previous piece on the onerous requirements on employers resulting from the Divisional Court decision can be found here.

Brief Overview

In this case, a guest of Blue Mountain Resorts drowned in the resort swimming pool. The Divisional

Continue Reading