November 24, 2014

Common Employer Doctrine is Alive and Well

An Ontario judge in de Kever v. Nemato Corp. 2014 ONSC 6576 (CanLII) recently reviewed the law applicable to the so called common employer doctrine.  Ms. de Kever sued for a declaration that all the Defendants were her common employer and she sues for damages for wrongful dismissal. The leading case in the area is [...]

September 25, 2014

Michael Fitzgibbon Interviewed in HRPA “Back to Basics”

Mike Fitzgibbon was interviewed in the recent HRPA article Back to Basics where he briefly discussed the trend in case law relating to the interpretation of employment contracts. On October 22, 2014 Mike will be speaking at the 2014 HR Law Conference about developments in employment contracts.

September 2, 2014

The Duty to Mitigate and its Impact on Damages

In most wrongful dismissal cases, the court is required to address the trifecta of issues: What is the applicable period of reasonable notice of termination to which the terminated employee is entitled following an application of the usual factors set out in the seminal case of Bardal v. Globe and Mail and those that have followed it? [...]

August 29, 2014

Entitlement to Bonus Payments on Termination

Employers will sometimes include language such as the employee will only receive a bonus if he or she is employed on the date the bonus is paid out. Courts have shown some reluctance to enforce such arrangements. The issue was recently considered in Jivraj v Strategic Maintenance Ltd, 2014 ABQB 463. The issues were: What is [...]

August 11, 2014

Dangers of Fixed Term Contracts

Fixed term contracts can be valuable tools for managing short term or temporary assignments, but can be dangerous and costly to employers.  There are many ways that these types of employment arrangements can go sideways with significant implications on the employer.  As one example, the renewing fixed term contract over many years (see Ceccol v. Ontario [...]

July 18, 2014

When is a Resignation a Voluntary Resignation?

Answering this question is, sometimes, not easy.  The issue was most recently discussed by the Court of Queen’s Bench of Alberta in Geddes v Silvestri Holdings Inc, 2014 ABQB 416 (CanLII), a case in which the court was required to consider whether an employee resigned or was constructively dismissed. The employee and her business partner had [...]

July 4, 2014

Unsolicited Disclosure Obligation and the Duty to Bargain in Good Faith

The Alberta Labour Relations Board considered the extent of the duty to bargain in good faith and, specifically, the requirement to disclose information in the course of collective bargaining.  Specifically, a decision to layoff all of the employer’s full-time firefighters prior to an award being issued by a Compulsory Arbitration Board. The case is International [...]

July 2, 2014

What is Wilful Misconduct under the Ontario Employment Standards Act?

An employee with about 13 years of service was terminated without notice or pay in lieu of notice.  The employee filed a complaint under the Employment Standards Act, 2000 (“ESA”) and the employer defended on the basis that the employee had been terminated for “willful misconduct, disobedience or neglect of duty that was not trivial and was [...]

June 23, 2014

Prima Facie Motions at the Ontario Labour Relations Board

The Ontario Labour Relations Board (the “Board”) considered a preliminary motion by the respondent to dismiss an application under section 69 (sale of a business) and 1(4) (related employer) under the Labour Relations Act, 1995 (the “Act”) because the applicant (union) failed to show a prima facie case of a breach of the Act.  The case is Molson Coors Canada [...]

June 20, 2014

Damages at the Human Rights Tribunal – A Helpful Case on the Limits

On June 17, 2014 the Ontario Divisional Court released a judgment in Campbell v. Revera Retirement LP, 2014 ONSC 3233 (CanLII) in which it clarified the principles to be taken into account when awarding damages under the Human Rights Code. This was an application for judicial review of a decision of the Ontario Human Rights [...]