Duties more important than titles when determining eligibility for overtime

August 03, 2014 - by: Marc Ouellet 0 COMMENTS

by Marc Ouellet

The issue of overtime has become a major concern for employers in the wake of class actions on the subject in Canada. The Québec Act Respecting Labour Standards (ALS) provides exemptions from the right to overtime including for employees in managerial positions. In Skiba v. Playground, L.P., the Court of Appeal of Québec recently clarified which employees may be exempt as “managers” in Quebec. While the applicable statutes vary across Canada, the fundamental principles applied are similar. Thus this decision may have persuasive value outside of Quebec. read more…

Minimum wage debate alive in Canada, too

April 06, 2014 - by: Bonny Mak Waterfall 0 COMMENTS

By Bonny Mak Waterfall

Minimum wage increases may not be quite as controversial in Canada as they appear to be in the United States, but the issue is certainly alive. Four Canadian provinces and one territory have announced increases to their minimum wage rates for 2014: read more…

Overtime class actions on the increase in Canada

March 30, 2014 - by: Hannah Roskey 0 COMMENTS

By Hannah Roskey

Overtime class actions are alive and well in Canada. This was confirmed by a recent Ontario court decision. In Rosen v. BMO Nesbitt Burns Inc., a Superior Court judge allowed such a class action, brought on behalf of a group of investment advisers, to proceed. read more…

Until death do us part: Attempts to reduce retiree benefits fail—for now

September 01, 2013 - by: Northern Exposure 0 COMMENTS

By Ralph Nero, Ross Gascho, and Keri Bennett

As in the United States, some Canadian employers have attempted to eliminate or reduce post-retirement benefits in order to address escalating costs. In two recent cases, Canadian employers were found to be not entitled to reduce post-retirement health and life insurance benefits. Courts in both Ontario and British Columbia have recently ruled that, under the respective plans before them, the employer’s “reservation of rights” (ROR) to make such changes was not sufficiently clear and unambiguous. read more…

Indefinite protection for federal employee disabled by work-related injury

November 11, 2012 - by: Nicola Sutton 0 COMMENTS

by Nicola Sutton

When the employment relationship becomes impossible to perform because of a factor outside the control of a Canadian employer or employee, the employee’s employment can be terminated by virtue of frustration of contract. When an employee won’t be able to return to work because of injury or illness, the same applies. But not so for federally regulated employers such as banks, airlines, inter-provincial trucking companies, etc.

According to the recent decision of Kingsway Transport v. Teamsters, Local Union 91, the frustration argument is no longer available for those employers when the employee’s inability to return to work is because of a work-related injury or illness. read more…

Breaching duties and cashing checks: An employee’s entitlement to bonuses after termination

October 14, 2012 - by: Northern Exposure 0 COMMENTS

by Marisa Victor and Christopher Copeland

Can a Canadian employee who is fired for cause sue for outstanding bonuses? What about if those bonuses relate to the period of the employee’s wrongdoing? This was the issue in Mady Development Corp. v. Rossetto, when a terminated executive sought to claim his bonuses for a period when he was found to be misappropriating company resources.

Facts

Leonard Rossetto was employed as an executive with a group of corporations (Mady). In fall 2007, he diverted labor, materials, and funds from Mady to renovate his house. He was fired on December 12, 2008, when Mady discovered his wrongdoing. Mady then sued him to recover the misappropriated corporate funds and resources. Rossetto counterclaimed for his bonuses for 2007 and 2008. Pursuant to his employment contract, he was entitled to an annual bonus equal to 30 percent of Mady’s profits after overhead. The parties ultimately submitted their dispute to arbitration. read more…

More mysteries of mitigation

September 02, 2012 - by: Northern Exposure 0 COMMENTS

by Karen Sargeant and Clayton Jones

Last week, we reported on the Ontario Court of Appeal’s decision in Bowes v. Goss Power Products Ltd., which found that an employee does not have a duty to mitigate where an employment contract contains a fixed severance entitlement but no express requirement to mitigate.

The Court of Appeal relied on a number of factors in coming to this conclusion, which should provide a clear warning to employers across the country. This article sets out those factors and suggests ways in which employers can make their employment agreements or offer letters more bullet-proof. read more…

When do employees have a duty to mitigate termination claim?

August 26, 2012 - by: Keri Bennett 0 COMMENTS

by Keri Bennett

It has been a fundamental principle of employment law that terminated employees generally have an obligation to seek alternate employment to minimize or mitigate their resulting losses. Their right to get from the terminating employer the pay they would have received during a period of reasonable notice is usually net of any other earnings during that period. But does this same rule apply where a contract specifies the employee’s severance entitlement?

In an important recent decision, Bowes v. Goss Power Products Ltd., the Ontario Court of Appeal concluded that the duty to mitigate does not, in fact, apply where employment contracts contain specific termination payments and the employment relationship is terminated without cause. This is important because Canadian law on this point has been mixed. read more…

When does post-termination conduct amount to cause?

July 29, 2012 - by: Jennifer Shepherd 0 COMMENTS

by Jennifer Shepherd

Can a Canadian employer justify an employee’s dismissal for acts committed after he or she has been fired? The answer is: sometimes. In Gillespie v. 1200333 Alberta Ltd., an Alberta court overturned a lower court ruling that permitted an employer to retroactively justify an employee’s termination because the employee removed confidential documents from the office upon her termination. The question on appeal was whether the employee’s post-termination conduct was sufficient to limit the employer’s obligation to provide reasonable notice or pay in lieu of such notice.

The dismissal

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Charity Runs Afoul of Canada Revenue Agency

April 22, 2012 - by: Northern Exposure 0 COMMENTS

By Gulu Punia and Jennifer Shepherd

Deciding to retain a contractor rather than an employee can be the right decision depending on the needs of a business. But there are risks. If a court determines that the relationship is in fact an employment relationship, the employer can be liable.

read more…

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