Termination clause as a ticking time bomb: Are courts in Ontario changing approach?

November 16, 2014 - by: Marc Rodrigue 0 COMMENTS

by Marc Rodrigue

To the chagrin of many employers in Canada, the courts have made the drafting and enforcement of termination provisions in an employment contract challenging. In recent years, case law in Ontario has been particularly harsh in striking down termination provisions that may be contrary to the statutory provisions of the Ontario Employment Standards Act, 2000 (ESA) in some circumstances but not others (e.g., entitlements meet the requirements for the first five years of employment but not thereafter).

A recent case in the Ontario Superior Court of Justice, Ford v. Keegan, 2014 ONSC 4989, provides some indication that the court in Ontario has not fully settled on when striking a termination clause is appropriate. As opposed to the treatment of termination clauses in other cases, the court in this case indicated that a termination clause, so long as it meets the ESA minimums at the time an employee is dismissed, should be enforced. read more…

Adverse-effect discrimination and probationary employees

September 28, 2014 - by: Kyla Stott-Jess 0 COMMENTS

by Kyla Stott-Jess

In Canada, it is well-established that employers cannot simply terminate employees whose work performance is negatively impacted by disability. Rather, an employer must attempt to accommodate the employee to the point of undue hardship. But what happens when the employee fails to notify the employer of his disability? Further, what accommodation does an employer need to provide to an employee who is still within a three-month probation period? read more…

May the enforceability of your release be with you

August 10, 2014 - by: Hannah Roskey 0 COMMENTS

by Hannah Roskey

We have all been faced with employees’ buyer’s remorse. They accept a severance package, sign a release, cash the severance check, and then claim that the release is unenforceable. Recently the Alberta Human Rights Commission considered this very issue in Marquardt v. Strathcona County. read more…

Court upholds just-cause termination based on misconduct discovered post-termination

July 27, 2014 - by: Hannah Roskey 0 COMMENTS

by Hannah Roskey

In a recent decision, a Canadian appellate-level court confirmed that employee misconduct discovered after a without-cause termination may be relied upon by an employer in support of a later argument of just cause for termination. read more…

‘But it was due to my addiction’—when is last-minute confession too late?

June 01, 2014 - by: Kyla Stott-Jess 0 COMMENTS

By Kyla Stott-Jess

It is not uncommon for an employee to disclose an addiction only when being terminated for misconduct that may be related to the employee’s substance abuse. The employee then tries to trigger human rights protections due to his or her “disability.” A recent Alberta court decision, Bish v. Elk Valley Coal Corporation, provides a good example of when such a claim may simply be too little, too late, even under Canada’s protective human rights laws. read more…

Bonuses may be part of equation when calculating pay in lieu of notice

May 25, 2014 - by: Myriam Robichaud 0 COMMENTS

By Myriam Robichaud

Most employers in Canada understand that when terminating an employee, reasonable notice of termination or pay in lieu of notice must be provided. While this principle appears simple, determining which elements of compensation must be included in pay in lieu of notice can be complicated. read more…

Will the abolishment of mandatory retirement result in longer notice periods?

May 11, 2014 - by: Northern Exposure 3 COMMENTS

By Ralph N. Nero and Nicole R. Singh

You’re about to terminate an employee’s employment without cause. He’s been with you for 30 years, earns $100,000, has a middle management position, and is 69 years old. He could retire with a full pension. Surely you don’t have to provide him with a severance package? Absolutely, say Canadian courts. read more…

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

March 09, 2014 - by: Marc Rodrigue 1 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…

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