August 2021

employees duty to mitigate
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Employees who have been wrongfully dismissed from their employment have a legal duty to mitigate. In other words, these employees must look for new employment if they wish to seek a termination payment from their former employers. Regardless of whether an employee successfully secures new employment prior to the end of their notice period, the court will still look to see that the employee took reasonable steps to find alternative comparable employment. If the court is not satisfied that the employee has made proper efforts to do so, it may reduce or deny the termination pay the former employer would otherwise be ordered to pay to the employee. A recent decision, Lake v. La Presse (2018) Inc., 2021 ONSC 3506, underlines the repercussions an employee could face if they fail to take such reasonable steps to mitigate their damages.

The Case of Lake v. La Presse (2018) Inc.

In this 2021 Ontario Superior Court case, the Court reduced a former employee’s common law/reasonable notice period from eight to six months due to the employee’s failure to mitigate their damages. 
Continue Reading Failure to Mitigate and Reduction of the Notice Period

mandatory workplace vaccine policies
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Last week, the federal government announced that it will be making vaccinations mandatory for federal employees and also for those working in some federally regulated industries related to travel. You can read the news release here.

The government intends to require vaccinations for federal employees by the end of September. It projects that vaccinations will be required in the federally regulated transportation sector (airlines, rail, cruise ships) by the end of October. The requirement will also apply to travellers.

The Public Service Alliance of Canada — which is the union representing the majority of impacted workers —  is apparently on board with this move.
Continue Reading The Start of Mandatory Vaccinations in Canada?

reasonable termination notice
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How much notice should you give your employee on termination? A recent decision of the Ontario Superior Court in Herreros v Glencore Canada reiterates that when calculating the period of reasonable notice owed to a wrongfully dismissed employee, it is the circumstances at the time of termination that matter. 

The rule comes from a decision of the Ontario Court of Appeal in Holland v Hostopia.com. It states: “Notice is to be determined by the circumstances existing at the time of termination and not by the amount of time that it takes the employee to find employment”. We blogged about the rule here and here in our updates about employment litigation during the pandemic. 
Continue Reading Reasonable Notice: An Opportunity Not A Guarantee

Mandatory COVID-19 Testing
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To enter Canada, all travellers over the age of 5, including those who are fully vaccinated, are required to provide proof of a negative COVID-19 test. Samples to test for COVID-19 can be collected through a nose swab, throat swab, or saliva sample. Many employers are now mandating, or considering mandating, that employees get COVID-19 testing, either once, or at regular intervals, in order to enter the workplace, or in some cases, to continue working. What does the law have to say about policies addressing mandatory COVID-19 testing?

Can an Employer Legally Require Employees Undergo COVID-19 Testing?

To answer this question, it is critical to consider whether the intrusiveness of the COVID-19 test is reasonable when weighed against the objective of the policy requiring such a test. 
Continue Reading Legality of Mandatory COVID-19 Testing