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Hilary Page brings a diverse legal background to her employment law practice. She started her career summering with a litigation boutique in downtown Toronto and then articled in-house at a municipality, where she developed an interest in workplace and human rights law.

manager exemption for overtime
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Last week we wrote about ways employers can manage overtime liabilities with Averaging Agreements and Time in Lieu. This week we will tackle a commonly litigated overtime issue – the manager exemption. 

The Manager Exemption 

Not every worker is entitled to overtime pay. Exemptions are set out in section 8 of Ontario Regulation 285.1 under the Employment Standards Act, 2000. Included in the list of the exempt is the manager or, to be exact, “a person whose work is supervisory or managerial in character and who may perform non-supervisory or non-managerial tasks on an irregular or exceptional basis.” Who exactly falls under this exemption can be unclear. 
Continue Reading Overtime Part 2: The Manager Exemption

questions about vaccines and employees
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With the vaccine becoming more widely available, questions about vaccine passports, time off to get the vaccine and whether employers can require employees to get the vaccine are becoming more relevant. 

Paid Vaccination Leave in Saskatchewan

Last week a new paid vaccine leave became law in Saskatchewan. This leave, which was made under Saskatchewan’s Occupational Health and Safety Regulations, 2020, allows workers to take PAID time off to get their vaccines. Saskatchewan is the first jurisdiction in Canada to implement this type of leave. 
Continue Reading Vaccinating the Workforce

Over the course of the past year, many people have had reductions in earnings and received some form of government income assistance - EI, CERB or Canada Recovery Benefit (CRB).  In some cases, employees who initially thought that their interruption or reduction in earnings was temporary have had their employment terminated.   In almost all termination situations an employee will be entitled to some form of termination payment from the employer. Employees who are also receiving government income assistance may wonder how their government payments will be impacted by their termination packages.   While not everything is crystal clear at this point, we have some thoughts!  Layoffs and the Deemed IDEL   As noted, in some circumstances, employees have been temporarily laid off. During 2020, these layoffs converted into Deemed Infectious Disease Emergency Leaves (IDEL). Unless an employee is terminated, these Deemed IDELs will continue during the COVID-19 Period, which is presently set to end July 3, 2021.   While an employee is not receiving income, or while they are receiving 50% or less of their pre-COVID income due to COVID-19 reasons, they will typically be eligible for EI or the CRB.   Employees who have not had their employment ended at the end of the COVID-19 Period can expect to either be recalled to work or be placed on a temporary layoff. A temporary layoff can continue for up to 35 weeks if the employer continues the employee benefits.  An employee can expect to continue to be eligible for CRB or EI after the COVID-19 period should they be continued on a layoff.   Terminations, EI, CERB and CRB  An employee who is terminated while on the Deemed IDEL should receive their termination entitlements up to the date of their termination. This means that for the purposes of calculating length of service the employee’s time on the Deemed IDEL should be included. This should also mean that the income replacement benefits that the employee received prior to their termination date should not be required to be paid back, for reasons of double-dipping. The termination package should cover a time period after the termination date and therefore not impact the benefits received prior to the termination date.    While it is not 100% clear how the CRA will treat an employee’s continued entitlement to income replacement benefits following the termination date after the employee receives a termination package there are a few general principles:   EI - Typically an employee will not be entitled to EI when they are receiving income from the employer, and EI will regard termination payments as income. However, the government’s EI FAQs state that “As a temporary measure most separation monies received when you are laid off will not affect the payment of your EI benefits for the claims established on or after September 27, 2020 for one year.” This suggests that EI payments with respect to COVID-19 may be treated differently.   CERB - While the period for which employees could receive CERB is over, the government CERB FAQs indicate that “A severance payment does not impact an individual’s eligibility for the Canada Emergency Response Benefit.” This suggests that receiving a termination package will not disentitle an employee from their CERB. In a recent decision the Ontario Superior Court agreed - see Iriotakis v. Peninsula Employment Services Limited, 2021 ONSC 998.  CRB - The CRB will likely be treated similarly to the CERB, and we expect that an employee will not have to repay the CRB if they also receive a termination package so long as they continue to maintain eligibility. An employee will be required to re-pay $0.50 of CRB for every dollar of net income earned above $38,000 in the calendar year.   Terminated employees who have been receiving income replacement benefits should get advice so that they can understand the impact of their termination packages on their entitlements to these benefits.Over the course of the past year, many people have had reductions in earnings and received some form of government income assistance – EI, CERB or Canada Recovery Benefit (CRB).

In some cases, employees who initially thought that their interruption or reduction in earnings was temporary have had their employment terminated. 

In almost all termination situations an employee will be entitled to some form of termination payment from the employer. Employees who are also receiving government income assistance may wonder how their government payments will be impacted by their termination packages. 

While not everything is crystal clear at this point, we have some thoughts!
Continue Reading Termination Payments and Repaying Government Benefits – EI, CERB and CRB

new tort of internet harassment
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In Caplan v. Atas, 2021 ONSC 670 the Ontario Superior Court has recognized a new tort of internet harassment or “harassment in internet communications” to be precise. Notably, there is no tort – meaning you cannot sue someone – for just plain old harassment. 

The facts of the Caplan case giving rise to this new tort involved some extreme, wide-reaching and long-lived behaviour on the part of the defendant, Ms. Atas. The case involved multiple plaintiffs, all of who had been victims of Ms. Atas’ online harassment campaigns. A family member of one plaintiff found “80,000 unique search results attributable to Atas, related to some 3,747 online posts, on 77 different web sites, directed against 150 different victims.” 
Continue Reading New Tort of Internet Harassment

honest contractual dealings
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A recent Supreme Court of Canada decision serves as a helpful reminder to workers and businesses about the importance of honesty in their contractual dealings. C.M. Callow Inc. v. Zollinger involved condo maintenance contracts. The plaintiff, C.M. Callow performed summer and winter maintenance for the defendant Zollinger, who managed maintenance contracts for several condos (referred to as Baycrest). 

The Deception

Baycrest and Callow entered into a two-year winter maintenance contract in 2012. In the Spring of 2013, Baycrest decided they wanted to end the winter contract. The contract allowed for early termination, for any reason, by way of 10 days notice. They did not provide that notice until September of 2013, allowing Callow to act on his impression that the winter contract would be renewed all through the summer of 2013. Through the summer of 2013 Callow performed the summer maintenance contract and also did additional work for free, in the hopes and under the impression that the winter contract would be renewed.  
Continue Reading Honesty – the Golden Rule for Contracts

impact of covid-19 on terminations
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The Covid-19 pandemic has changed our economy. In many industries, it has made it more difficult to find work and also more difficult for businesses to afford termination packages when letting employees go. The relevance of these facts to how courts will determine what terminated employees are entitled to has, so far, been unclear. 

Reasonable Notice

When an employment relationship is not governed by a written contract – with valid termination provisions – a terminated employee’s entitlements on termination without cause will be determined by the common law and what is called reasonable notice. 
Continue Reading The Impact of the Pandemic on Termination Packages