Common Employer & Termination Clause Updates: Rahman vs CannonDoes the employee’s level of contract knowledge make a contract more enforceable? Who is on the hook for termination pay if a company has subsidiary or parent companies? 

The Ontario Court of Appeal recently answered these questions in Rahman v. Cannon Design Architecture Inc. The bottom line of the decision is:

  • an employee’s level of sophistication has no bearing on whether a termination clause is enforceable
  • the language in with-cause termination provisions needs to be carefully worded and abide by requirements in the Employment Standards Act (“ESA”) 
  • subsidiary and parent companies of an employer can be considered “common employers” if there is a certain level of integration between the companies, making them jointly and severally liable to the employee. 


Continue Reading Rahman v Cannon: Common Employer & Termination Clause Updates

One of the greatest challenges an employer can face is being sued by a former (or current) employee. In this webinar, SpringLaw’s Jessyca Greenwood and Emily Siu will walk you through the litigation process, what to expect, and some steps you can take to avoid getting into this expensive and lengthy process in the first place.

Date: Wednesday, June 15th, 2022
Time: 10:30-11:00 am EST
Register today: Click here!

Continue Reading Free webinar: Going to Court – Employment Law Litigation Tips

Can Employees Record Work Meetings?
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With the rise of remote working in the past couple of years, virtual work meetings, whether over video or phone call, have become a common occurence. With that comes the issue of recording work calls. In this post, we address the possible risks involved when an employee records work meetings, either surreptitiously or with consent. 

Can an employee legally record a work call?

It is technically legal in Canada for an employee to record a conversation they are a part of, and the employee does not attract criminal liability if they do so surreptitiously, as long as they were a part of the call. However, Courts across Canada have found that surreptitious recording can justify termination for cause. 
Continue Reading Can Employees Record Work Meetings?

SpringLaw Turns 5 Years Old Today!  

In law firm years, that means we are past the start-up phase and into the expansion and enhancement of client experience stage. We continue to build out our behind-the-scenes automation and tech-driven services to bring efficiency to files, so that we can focus on 1:1 communications with our clients.  

5 Years of Virtual Counsel & Efficient Client-Centred Services 

Little did we know 5 years ago how much being entirely virtual, paperless and focusing on cloud-based, online collaborative communications would come in handy during a global pandemic. Over the last 2 years, it’s been fantastic to see so many law firms, clients, adjudicative bodies and our justice system generally dig in and figure out how to communicate virtually. 
Continue Reading SpringLaw is Turning 5 & Giving Back

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

Workplace Law Trends for 2022
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Welcome to 2020 Two! It’s hard to believe we’ve been living through a pandemic for nearly 2 years. Workplaces are beyond worn out, stress leaves and harassment complaints continue to increase, parents are juggling remote learning and limited activities for kids once again, and many workplaces struggle to find people to fill the roles. 

Yes, it’s all a bit of a mess, but out of crisis emerge new ways to approach issues and novel solutions to traditional problems. Here are our predictions for workplace law trends and changes in 2022.

#1 – Push for Hybrid and Remote Working

Studies over the last year are showing a deep disconnect between senior bosses and employees about preferred workplaces. Increasingly, employees want – and now expect – at least some remote work option, whereas senior levels of management are more likely to continue to see in-person work better for productivity, mentoring and focus.
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ONCA upholds employer for-cause termination for sexual harassment
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Overview

In Hucsko v. A.O. Smith Enterprises Limited, 2021 ONCA 728, the Ontario Court of Appeal (ONCA) overturned the lower Court’s decision that found an employee had been wrongfully dismissed in relation to sexual harassment allegations and was awarded 20 months’ notice. In its reversal, the ONCA held that the employee had failed to fulfill remedial steps required by his employer; that he did in fact sexually harass his coworker; and that his for-cause termination was justified.  

Background

A senior, 20-year employee made several comments to his younger, female coworker on several occasions, including the following:
Continue Reading ONCA upholds employer for-cause termination for sexual harassment

Arbitration Decisions on Mandatory Vaccination Policies
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This month has seen arbitral treatment of two mandatory vaccination policies in the context of unionized workplaces. In a grievance brought by the United Food and Commercial Workers Union, Canada, Local 333 against employer Paragon Protection Ltd., the arbitrator found that the employer’s vaccination policy was reasonable. In a grievance brought by the Power Workers’ Union (the “PWU”) against employer Electrical Safety Authority, the arbitrator found that it was not.

Paragon Protection’s Vaccination Policy

Paragon Protection Ltd. provides security services and employs 4,400 unionized security guards to hundreds of client sites across Ontario. Many of these client sites had vaccination requirements. Paragon gave its employees approximately two months notice that they would be requiring them to be fully vaccinated against COVID-19. Employees would report their vaccination status by way of a declaration. The policy allowed exemptions for human rights reasons on the basis of creed/religion and health. 
Continue Reading Arbitration Decisions on Mandatory Vaccination Policies

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

IDEL and Constructive Dismissal
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The Ontario Superior Court has ruled once again on the right of an employee to assert a constructive dismissal in light of the O. Reg. 228/20: Infectious Disease Emergency Leave (“the Regulation”) under the Employment Standards Act, 2000 (ESA). In the latest decision, the court ruled that the Regulation does not preclude an employee from asserting a common law constructive dismissal. 

As discussed in previous posts, under the Regulation neither a reduction in the employees hours of work or wages constitute a constructive dismissal under the ESA if they occur during the COVID-19 Period. The COVID-19 Period keeps changing on us, but it currently runs from March 1, 2020 to September 25, 2021.  There have been conflicting decisions about whether the Regulation also removes an employee’s right to assert a constructive dismissal under the common law. 
Continue Reading Another Ruling on the IDEL and the Employee’s Right to Pursue Common Law Constructive Dismissal