When working notice just doesn’t work

August 20, 2017 0 COMMENTS

Fasken Martineau snip 2by Jacqueline Gant

For employers shutting down operations, providing working notice is often the best way to reduce severance amounts owed. Except when it’s not. In McLeod v. 1274458 Ontario Inc., an Ontario court confirmed that working notice is appropriate only for employees capable of working during the notice period.

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‘I quit … oh wait, I didn’t mean it!’

March 19, 2017 0 COMMENTS

by Stefan Kimpton

Employers don’t often enough think about the consequences of a heat-of-the-moment resignation. It is generally assumed that when an employee says “I quit” or storms out of the workplace, the employment relationship has come to an end and the employer owes no further obligations to the employee.

Think again. As a recent decision of the Ontario Superior Court of Justice – Johal v Simmons da Silva LLP, 2016 ONSC 7835 – reminds us, employers ought to exercise caution before accepting a resignation from an employee who quits suddenly following an emotional outburst at work. For the resignation to be valid, it must be clear and unequivocal. Most importantly, it must reflect the employee’s intention to resign.

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Ontario court awards 3 types of damages in sexual harassment case

March 12, 2017 0 COMMENTS

by Hannah Roskey

An employee who was repeatedly sexually harassed by her coworker sued her employer after being terminated. In addition to normal damages for wrongful dismissal she was awarded $60,000 for “moral damages” by the trial judge, plus damages for the employer’s violation of human rights laws.

In Doyle v. Zochem Inc., 2017 ONCA 130, the Ontario Court of Appeal recently upheld this award and dismissed the employer’s appeal. This decision is a stark reminder of the importance of properly investigating employee complaints. It also confirms that moral damages and damages under human rights laws may both be awarded to an employee, without being characterized as “double dipping.”

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When are criminal charges none of your business?

December 25, 2016 0 COMMENTS

by Hannah Roskey

Off-duty misconduct could lead to an employee’s dismissal. But a recent court decision in Ontario suggests that the circumstances where that will amount to just cause for termination are quite limited. The court found that an employee who had been fired after being criminally charged with sexual assault was wrongfully dismissed. The employee was awarded damages.

Background
Merritt was a 67-year-old laborer with Tigercat Industries. The company produces forestry and industrial machines. It has several production facilities in Ontario. Merritt was hired in 1998. He was fired in February 2015. The company said it had just cause.

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Extraordinary damages not automatic in ‘cause’ cases

November 27, 2016 0 COMMENTS

by Keri Bennett

In Canada, courts can award two extraordinary forms of damages in a wrongful dismissal action: aggravated damages or punitive damages. In a wrongful dismissal action, employees who are terminated for cause often claim that they should be awarded aggravated and/or punitive damages in addition to reasonable notice damages.

In a recent decision of interest to employers in Canada, Smith v. Pacific Coast Terminals Co. Ltd., 2016 BCSC 1876, the British Columbia Supreme Court ruled that these types of damages will not be awarded simply because an employer continues to assert it has cause for termination at trial.

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‘You must be actively employed to receive bonus’—or not, says Ontario court

October 02, 2016 0 COMMENTS

by Shane Todd

In an attempt to their limit severance exposure, employers often require that an employee be “actively employed” on the bonus payment date in order to be eligible to earn a bonus. The idea being that the severance payable to a dismissed employee would not have to take into account an employee’s bonus earnings as the employee would not be able to satisfy the “active employment” requirement contained in the applicable bonus plan. However, as the Court of Appeal for Ontario recently confirmed in Paquette v. TeraGo Networks Inc., 2016 ONCA 618, “active employment” requirements are insufficient to remove or limit a dismissed employee’s rights.

What happened

Trevor Paquette was employed by TeraGo Networks for 14 years. He earned a base salary and was eligible for an annual bonus. The bonus plan required Paquette to be “actively employed” at the time the bonus was paid in order to receive it. In November 2014, Paquette was terminated without cause. The parties could not agree on a severance package and so Paquette sued TeraGo for wrongful dismissal. read more…

Damages for wrongful dismissal: Who must prove what?

June 05, 2016 0 COMMENTS

by Keri Bennett

As noted in past articles here, Canadian employees can sue for lack of adequate notice of termination. Fired employees seeking damages for inadequate notice have a corresponding duty to mitigate or minimize any resulting losses. If other work is available, their losses may be minimal. Employees frequently claim a lack of available work. But who must prove what?

In a recent decision, the British Columbia Court of Appeal ruled that where lack of work is claimed, the employee must prove it. It is not up to the employer to prove the opposite. read more…

Disability benefits claimant abandoned job

January 03, 2016 0 COMMENTS

by Shane Todd

Disability claims management is never easy. It is particularly difficult when employees refuse to provide enough medical information to substantiate their absence and entitlement to benefits, while also refusing to return to work. The decision in Betts v. IBM Canada Ltd., 2015 ONSC 5298, provides guidance to employers dealing with such cases. It confirms that failing to comply with the terms of a disability plan or to return to work may constitute job abandonment. read more…

How ‘come back to work’ doesn’t always work: offers of re-employment to former employees

October 18, 2015 0 COMMENTS

by David McDonald

In Canada, the Court of Appeal for British Columbia recently issued a decision narrowing the possibility for employers to use re-employment offers to support an argument that an estranged employee has failed to mitigate damages by refusing to come back to work. read more…

Transferred employee’s wrongful dismissal suit lands in New York court

April 19, 2015 0 COMMENTS

by Bonny Mak Waterfall and Rachel Younan

When a Canadian employer transfers its employee to a non-Canadian entity, is it still on the hook for wrongful dismissal damages? Recently, an Ontario court declined to hear a civil action claiming wrongful dismissal damages from an employee who was transferred to a United States subsidiary of a Canadian company. However, the judgment left open the possibility that different facts may lead to a different result. read more…

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