When can Canadian employment contracts be terminated for ‘frustration’?

March 09, 2014 - by: Marc Rodrigue 0 COMMENTS

By Marc Rodrigue

Like any contract, an employment contract can be legally “frustrated” and come to an end. Basically, this may happen when it becomes impossible for one of the parties to perform his or her end of the bargain. For example an employment contract can be frustrated when, because of an illness or injury, it becomes clear that an employee is no longer able to work. But it is not easy to define when that will become clear. read more…

Human rights damages awarded by Ontario court

January 19, 2014 - by: Eowynne Noble 0 COMMENTS

By Eowynne Noble

In 2008, Ontario’s Human Rights Code was revised to specifically permit Ontario courts to award damages for breaches of the Code. Before this, it was only the Human Rights Tribunal that had jurisdiction to award damages for human rights violations in Ontario.

Since then, Ontario plaintiffs have made many attempts to obtain human rights damages in wrongful dismissal and other employment-related lawsuits, but none have succeeded until now. For the first time, the Ontario Superior Court has awarded damages for a breach of the Code in Wilson v. Solis Mexican Foods, 2013 ONSC 5799. read more…

Terminating employees for cause: lessons from the Canadian healthcare sector

January 05, 2014 - by: Ian Campbell 0 COMMENTS

By Ian Campbell

It seems to be increasingly difficult to justify terminations for cause—even when an employee is found to have engaged in serious misconduct. read more…

Objective medical proof not necessary for accommodation duties to arise

November 10, 2013 - by: Marc Rodrigue 1 COMMENTS

By Marc Rodrigue

Under human rights legislation across the country, Canadian employers have a general duty to accommodate employees who are unable to perform their work for a period of time because of illness or disability to the point of undue hardship.

This may require an employer to grant an employee a leave of absence from the workplace. But what if the employee doesn’t provide medical documentation to justify such an absence; surely you could deny the leave? Not necessarily, according to an Ontario arbitrator in TRW Canada Ltd. and TPEA (Lockhart). read more…

Phoning it in: Termination appropriate for employee who called in ‘sick’

October 13, 2013 - by: Hannah Roskey 0 COMMENTS

By Hannah Roskey

Determining the legitimacy of an employee’s illness is a tricky situation for employers across Canada. The Alberta Court of Queen’s Bench recently took a firm stance on the abuse of sick leave and found in favor of the employer in Telus Communications Inc. v. Telecommunications Workers’ Union. Telus was correct in firing an employee who said he was too sick to go to work but well enough to play in a softball tournament. The court even declined to take the usual step of sending the matter back for a new arbitration hearing. read more…

Silence as acceptance when company sold

August 11, 2013 - by: Keri Bennett 0 COMMENTS

By Keri Bennett

Canadian employees may believe that a change in ownership of a company results in a change in the terms of employment and requirement for a new employment contract. Not so. In Whittemore v. Open Text Corporation, the Ontario Superior Court made it clear that the original terms of employment remained valid after a share purchase. The court also made it clear that employees are required to advise their employer if they do not accept a change to their terms of employment. read more…

U.S. employment agreement ruled inapplicable after transfer to British Columbia

May 26, 2013 - by: Katherine Pollock 0 COMMENTS

By Katherine Pollock

A recent decision of the British Columbia Court of Appeal, Stanley v. Advertising Directory Solutions, considered the rights of an employee of a U.S. company who was working for a Canadian subsidiary when terminated. The court found she was entitled to notice or pay in lieu of notice upon termination according to Canadian law. This despite a written agreement with the U.S. parent that said she was employed at will.

The court ruled that an agreement with a U.S. parent company won’t permit a Canadian company, which is also the person’s employer, to avoid its obligation to provide reasonable notice or pay in lieu of notice of termination. read more…

Mood problem or mental disorder? When can employers discipline?

May 12, 2013 - by: Kyla Stott-Jess 0 COMMENTS

By Kyla Stott-Jess

Employers in Canada can’t discriminate against employees based on mental disabilities. But the broad interpretation that courts and arbitration boards frequently apply to human rights laws often makes it difficult to know where the boundaries of “mental disability” lie.

In a recent arbitration decision in Ontario, Windsor (City) and WPFFA (Elliot), the arbitrator found that an employee’s mood problems and stress issues weren’t classifiable as mental disorders. He didn’t qualify as having a mental health disability requiring accommodation. read more…

When time is the very essence of your job, best not be late …

April 28, 2013 - by: Michel Bellemare 0 COMMENTS

By Michel Bellemare

Every job has its own peculiarities. What might be a minor shortcoming in one type of employment could be catastrophic in another. This is especially true when the breach touches on the very heart of the duties assigned to an employee. This, at least, is what an employee learned in a recent Quebec case: Mardik v. Nova Bus. (2013 QCCS 1152; decision available in French only). read more…

Punitive damages awards increasing in Canadian employment cases

March 31, 2013 - by: David McDonald 0 COMMENTS

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…

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