By David McDonald

In wrongful dismissal cases in Canada, punitive damages awards are available only in exceptional situations. That’s what the Supreme Court of Canada said in 2008 in Honda Canada v. Keays. The employer’s conduct in the course of termination must be proven to be harsh, vindictive, reprehensible, and malicious. Despite this high threshold, a number of recent trial decisions show how Canadian courts are becoming more open to providing employees with punitive damages awards. read more…

By Marie-Julie Lanctôt

Under their management rights, employers may establish fair, accurate, and achievable performance standards. A recent decision from the Labour Relations Board of Quebec, Piché et Impérial Tobacco Compagnie ltée, 2012 QCCRT 0600 (decision available in French only), serves to illustrate how Canadian employers may properly dismiss employees for poor work performance despite the fact that Canada doesn’t have at-will employment. read more…

By Ralph N. Nero and Keri L. Bennett

When is a layoff not a layoff? When it is a constructive dismissal, according to an Ontario judge. McLean v. The Rawyal Limited Partnership reaffirms the principle that unless incorporated as an express or implied term of the employment contract, a layoff may be treated as constructive dismissal–meaning the employee can sue for pay in lieu of reasonable notice.

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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…

by Keri Bennett

As we reported previously, the Canadian federal government is about to join most of the provinces in making mandatory retirement, for the most part, unlawful. That deadline is fast approaching – December 15, 2012. What can employers do until then? According to the Canadian Human Rights Commission, very little.

Human Rights Commission news release

Earlier this year, the Canadian Human Rights Commission issued a news release cautioning employers against using the time leading up to December 15 to force employees to retire before they are ready to. In the release, Acting Chief Commissioner David Langtry said that “[t]he transition period should not be viewed as a license to force aging workers out the door. Forcing someone to retire because of their age clearly contradicts Parliament’s intent, even if a defence in the law still appears to be available.” read more…

by Kyla Stott-Jess

Is a Canadian employer justified in terminating an employee for cause when that employee has disobeyed company policy? What if the consequences of the employee’s failure to follow policy put other employees at serious risk of harm? Not necessarily, said the Ontario Supreme Court recently in Barton v. Rona Ontario Inc.

Rather, the potential severity of any misconduct must be balanced against the employee’s attitude and past history when evaluating whether termination for cause is warranted.

Background

Kerry Barton was a longtime employee of Rona until the company fired him for cause in 2009. At the time of termination, Barton was the assistant store manager in Barrie, Ontario, and was responsible for managing about 140 employees. He had received good performance appraisals and had no disciplinary record. read more…

by Sara Parchello

While the summer has come and gone, employees’ photos of their summer activities may not be. If employees post those photos on Facebook or similar sites, employers may be confronted with just what employees did with their time over the summer. And what if, on a day an employee called in sick, you see photos of that same employee enjoying herself at a cottage, sunbathing on a dock with a cocktail in her hand?

Worse yet, what if the site allowed you to see the actual time that the employee posted the picture, being right in the middle of regular working hours? A recent arbitration case out of Alberta, Canada Post v. Canadian Union of Postal Workers, confirms that Canadian employers can rely on such evidence of inappropriate behavior. read more…

by Emilie Paquin-Holmested

Generally when employees decide to leave their jobs, they are considered to have quit. But in Canada, if they leave their jobs because the employer substantially changed essential terms of their employment, they are considered to have been constructively dismissed.

The line separating these two notions is often unclear. It’s especially so when terms of employment are changed after a corporate merger or integration. In a recent decision (St-Hilaire c. Nexxlink inc.), the Court of Appeal of Quebec reviewed the principles of constructive dismissal in this very context. read more…

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…

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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