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Emily is in her fourth year of lawyering and comes from a litigation background to help grow and support our employment litigation practice.

Employer Liability Post #MeTooPost #MeToo we have more and more dialogue about sexual harassment and sexual assault. There has been significant discussion in the areas of what constitutes consent and the power imbalances that exist in the workplace. For those reasons, some employers prohibit intimate contact between employees. Employers take this stance, because they know they could be liable for the sexual misconduct of an employee, whether the misconduct was perpetrated against another employee, a client, or otherwise. 

Sexual assault is often discussed as a criminal offence however, frequently we see these allegations arise in the workplace as sexual harassment. Employees can report the conduct in the workplace and/or to the police and pursue a civil lawsuit against the alleged perpetrator and their employer. This can lead to investigations, police involvement, and defending a civil lawsuit. It is best to speak to counsel early in the process, involve your insurer if you have employer insurance or litigation insurance, and educate yourself about the process. Burying your head in the sand will not be effective when dealing with these types of serious allegations. 
Continue Reading Employer Liability Post #MeToo

Employers may want to reassess how they terminate their employees and the timeframe and manner through which they provide their employees with their termination-related entitlements. Pohl v Hudson’s Bay Company, 2022 ONSC 5230, a recent Ontario decision, demonstrates, amongst other things, what a court may award an employee whose dismissal was conducted by an employer in an unfair manner.  

What Happened?

A 28-year full-time Hudson’s Bay Company Sales Manager in his 50s was terminated on a without-cause basis and immediately walked out the door. He earned an annual salary of $61,254 plus pension contributions and other benefits.
Continue Reading The Importance of Being Honest and Sensitive: The $50k+ Moral and Punitive Damage Award

Paid IDEL Updated July 21, 2022COVID-19 rules continue to change quickly. In a previous blog, we indicated that the paid Infectious Disease Emergency Leave (IDEL) would come to an end on July 31, 2022, the deemed IDEL would end on July 30, 2022, and the voluntary IDEL would continue so long as the circumstances leading to an employee’s leave continue and COVID-19 is designated as an infectious disease. Though the end date of the deemed IDEL remains the same and the voluntary IDEL continues to have no set end date, the Ontario government has once again extended the paid IDEL to March 31, 2023. Specifically, on July 21, 2022, the Ontario government filed O. Reg. 464/22: Infectious Disease Emergency Leave, which amends O. Reg. 228/20: Infectious Disease Emergency Leave, by extending Ontario’s paid IDEL days until March 31, 2023.
Continue Reading Infectious Disease Emergency Leave (IDEL): Another Update

Probationary Periods: What You Need to KnowIt takes a lot to hire and onboard new employees. As much as you intend to keep each and every one of your new hires, there may be a new employee you hired not too long ago that just isn’t working out. What do you need to know before you let them go?

What is a Probationary Period?

At common law, a clear meaning has generally been attached to the term “probationary employee”. Unbeknownst to many employers, however, the terms “probation” or “probationary period” do not actually appear in the minimum standards legislation of many Canadian jurisdictions. Nonetheless, many of these pieces of legislation do exclude employers from having to give employees a specified amount of notice of termination if the employee has not accumulated a specified amount of service with the employer (typically around 3 to 6 months). For convenience, we will be referring to this amount of service as probation or the probationary period. 
Continue Reading All About Probationary Periods

IDEL update: What's Changed & What Do Employers Need to Do? With the welcome easing of COVID-19 restrictions in Ontario – from masking requirements to vaccine mandates – it’s been a while since many employers have had to turn their minds to the Infectious Disease Emergency Leave (IDEL). When the IDEL was first introduced, we were faced with an array of questions from employers. Since then, the IDEL has been through several updates and expansions. This blog discusses the most recent update to the IDEL.

Paid IDEL

What’s Changed?

Paid IDEL has now been extended to July 31, 2022. The Ontario COVID‑19 Worker Income Benefit (“Benefit”), which came into effect April 29, 2021, amended the Employment Standards Act, 2000 (“ESA”) and required employers to provide paid IDEL to eligible employees. It was previously set to end on December 31, 2021. 
Continue Reading Update: Infectious Disease Emergency Leave (IDEL)

As employment lawyers, we know that our employer clients can sometimes feel overwhelmed with the volume of documentation they have to prepare and review to sustain a healthy workplace and minimize potential employment-related liabilities. Employment contracts and workplace policies are two of the most common employment-related documents that employers of all sizes often have to deal with in the course of an employment relationship. Many employers, especially newer and smaller ones, often wonder what the differences are between the two, what types of content go into each, and whether they hold the same weight. In this blog, we attempt to provide some insight into this topic.

What Goes in What?

The legal rights and entitlements of an employee, such as the employee’s entitlements to notice on termination or vacation entitlements, should be included in an employment contract. An employer will want to avoid including language about employees’ legal entitlements within the workplace policy; having the policy be found to be unenforceable later on could create problems for the employer. Though an employer may have a general right to make some types of amendments to their policies, altering significant components of a policy may demonstrate the employer’s intention not to be bound by the original agreement.
Continue Reading Employment Contracts vs. Workplace Policies

The End of COVID-19 Regulations
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Throughout the course of this COVID-19 pandemic, we have undergone several cycles of announcements, implementations, and revocations of COVID-19-related regulations. On April 14, 2022, Ontario filed yet another regulation – O. Reg. 346/22: Revoking Various Regulations (this “Regulation”) under Reopening Ontario (A Flexible Response to COVID-19) Act, 2020. In the nutshell, this Regulation revokes every single remaining COVID-19-related regulation in the province.

What Are Some Examples of Rules and Restrictions Being Lifted?

A major regulation being revoked is Regulation 364/20: Rules For Areas at Step 3 and at the Roadmap Exit Step, which requires that businesses must operate in accordance with any advice and instructions issued by the Office of the Chief Medical Officer of Health, including with respect to physical distancing, cleaning or disinfecting; establishing, implementing and ensuring compliance with a COVID-19 vaccination policy; and setting out the precautions and procedures that businesses must include in their COVID-19 vaccination policies. In addition, masks and face coverings are no longer required on public transit services, in hospitals, in long-term care homes, laboratories and specimen collection centers, homeless shelters, and congregate care supportive housing residences, among others.
Continue Reading The End of COVID-19 Regulations

26-Month Notice Period Upheld by Ontario Court of Appeal
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In the world of workplace law we often say that, absent exceptional circumstances, the greatest notice period that any wrongfully dismissed employee could be awarded by an adjudicator is 24 months. But what are those exceptional circumstances? Years ago, we blogged about Dawe v. The Equitable Life Insurance Company of Canada, a case in which the Ontario Court of Appeal overturned the trial judge’s award of 30 months of reasonable notice for a terminated employee, reducing the final notice period to 24 months. Recently, the Ontario Court of Appeal released a decision, Currie v. Nylene Canada Inc. (“Currie”), affirming the trial judge’s assessment of damages in the amount of 26 months of reasonable notice for the wrongfully dismissed employee, Ms. Currie (“Ms. Currie”). Below we will look at the factors the Court considered in rendering this judgment.
Continue Reading Ontario Court of Appeal Upholds 26-Month Notice Period

pregnancy or parental leave top-up
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As companies struggle to retain their talent in the midst of so many economic and health changes, many are finding new ways to attract and keep employees. A growing number of companies, for instance, are providing their employees with or extending existing pregnancy or parental leave top-up payments to assist families with caregiving responsibilities (present and/or future). 

Pregnancy vs. Parental Leave Basics

First of all, it’s important to distinguish between two commonly confused leaves: pregnancy and parental leave. In Ontario, pregnancy leave is taken by the birthing parent and typically starts before the birth of the child. Parental leave, on the other hand, can be taken by either or both new parents after the birth of the child or when a child comes into the employee’s custody, care and control. Parental leave can also be used by parents who are adopting a child. The birthing parent will typically take a combination of pregnancy and parental leave. These leaves are protected leaves under the Employment Standards Act, 2000 (“ESA”). The ESA sets out the requirements for the leaves, for example, how long an employee must be employed with the employer before they can take the leave, and the employee’s entitlements both during the leave and upon return from the leave. 
Continue Reading Parental Leave, EI and Top-Up Basics

Non-Compete Clause Update
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In a recent post, we talked about Ontario’s then-proposed and now law ban on non-compete agreements in employment contracts under Bill 27, Working for Workers Act, 2021 (“Bill 27”). The ban was effective as of October 25, 2021. Initially, there was some confusion about the enforceability of non-compete agreements or clauses entered into prior to the introduction of Bill 27. The Superior Court of Justice has recently released its decision for Parekh et al. v. Schecter et al., which clarifies that enforceable non-compete clauses entered into before October 25, 2021 will not be impacted by the ban and can be upheld. 
Continue Reading Non-Compete Clause Update