August 25, 2015

When Must an Employee Mitigate With the Same Employer?

The British Columbia considered this question in Fredrickson v. Newtech Dental Laboratory Inc., 2015 BCCA 357 (CanLII).  The trial judge found that the plaintiff failed to mitigate her damages because she did not accept an offer of re-employment from her employer.  She appealed and the Court of Appeal allowed her appeal and in so doing clarified [...]

March 25, 2015

Michael Fitzgibbon quoted in Law Times Article

Watershed LLP’s Michael Fitzgibbon was quoted in the March 2, 2015 edition of Law Times in an article entitled “Pan Am Games to include extensive background checks on applicants“.  The article reviews the extent and scope of background checks generally.   There is a reference to a a 2012 report from the Canadian Civil Liberties Association entitled [...]

March 24, 2015

Mitigating Factors Enough to Reinstate in a Case of Serious Misconduct

Back in February I wrote about a case where Mitigating Circumstances Not Enough to Reinstate in a Theft Case. I recently came across a case where the Ontario Labour Relations Board in a grievance referral under section 133 of the Ontario Labour Relations Act, 1995 reinstated an employee who was terminated for driving a company vehicle while under [...]

February 17, 2015

The Ontario Government Announces Public Consultations on Labour Laws

The Ontario Government today announced that it would follow through on its “commitment made in the 2014 Throne Speech” and launch public consultations on the changing nature of the modern workplace to commence.  According to the News Release: The public consultations will focus how the Labour Relations Act, 1995 and Employment Standards Act, 2000 could be [...]

February 17, 2015

Exceptional Circumstances Needed to Exceed 24 Months Reasonable Notice

The Ontario Court of Appeal in Kotecha v. Affinia Canada ULC, 2014 ONCA 411 (CanLII) considered an appeal of a reasonable notice award of 24.5 months given to a 70 year old machine operator earning an annual salary of $37,918.40 having 20 years service with an auto parts manufacturer. Background Mr. Kotecha brought a motion for [...]

February 17, 2015

Assessing Credibility is not a Science

Arriving at the truth is the aim of any adjudication.  But that’s easier said than done.  Decision makers (judges, arbitrators, statutory bodies such as the human rights tribunal or labour relations board) have to assess the credibility of witnesses when weighing accounts of disputed facts   Employers also must assess credibility in cases where a conflict about [...]

February 5, 2015

When is a Resignation a Resignation with Teeth?

The Nova Scotia Court of Appeal considered this in Kerr v. Valley Volkswagen, 2015 NSCA 7.  It upheld the trial judgement where the court held that the employee had resigned his employment.  Essentially, he gave the employer an ultimatum, – give him a raise or he quits.  After letting the matter sit for a few weeks, [...]

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? [...]