REPRESENTING EMPLOYERS AND EMPLOYEES IN OTTAWA, CANADA
2200 Prince of Wales Drive,Suite 401
Ottawa,ON K2E 6Z9
Tel: (613) 225-4400 Fax: (613) 319-0536

New Location:

1116 Wellington Street West, Ottawa, Ontario    K1Y 2Y7

Duty of Fair Play and Honesty in Contractual Performance

Parties to a contract owe an obligation of honesty towards each other (Bhasin v. Hrynew, 2014 SCC 71).  They must not act capriciously or arbitrarily.  In the simplest of terms – parties must be honest during performance of a contract and not mislead each another.

Video Recordings and the Ontario Labour Relations Board

As the pandemic lingered and the state of emergency closed the Ontario courts and administrative systems we were forced to change the way trials and hearings proceeded.  This was a careful balancing act between the right to a hearing and the need to minimize the infection rate of COVID-19.

Changes to the Employment Standards Act of Ontario

Ontario has made significant and controversial changes to workplace legislation.  The bulk of these alterations came into effect January 2018.  Below is a summary of the changes to the Employment Standards Act as a consequence of the Fair Workplaces, Better Jobs Act,

Letters of Reference

Job references – how do you find work without one?  Employers know the best way to predict performance is past conduct.  References are fundamental to the hiring process.  

The Myth of the Probationary Period

The letter of offer or employment contract must set out the purpose of a probationary period including how performance will be evaluated; what happens if the Employee is unsuccessful;  and what will be paid on termination of employment?

Chantelle Crete v. Aqua-Drain Sewer Services Inc.


[1] This Application alleges discrimination with respect to employment because of sex and sexual solicitation or advances contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant did not name as respondents to this Application any of the individuals alleged to have subjected her to inappropriate and unwelcome comments and conduct of a sexual nature. Rather, the applicant alleges that the respondent failed to investigate and to respond to her complaints of sexual harassment and that she was subjected to a poisoned work environment. Finally, the applicant alleges that her termination was discriminatory and a reprisal for her complaints of sexual harassment.

When are Punitive Damages Appropriate?

Punitive damages are imposed only if there is highhanded, arbitrary or highly reprehensible conduct that departs to a marked degree from the ordinary standards of decent behaviour.

Mitigation Damages: Not every dollar earned reduces damages

Esther Brake may be the hardest working person in Ottawa.  She was sixty-two years old and Managed a Kanata McDonald’s while simultaneously holding down a part-time position as cashier at Sobey’s.  Ms. Brake was constructively dismissed when her Employer demanded she accept a demotion to First Assistant or leave.  After refusing the demoted position because it would be embarrassing and humiliating her  employment was terminated.

Rectification

Bad or poorly worded termination clauses will only be rectified under exceptional circumstances.  Rectification is a discretionary remedy applied where there is clear and unambiguous evidence demonstrating the parties to an agreement made a mutual mistake when drafting the contract. 

Unjust Dismissal

An employer cannot contract out of subsection 240(2) “the unjust dismissal” clause of the Canada Labour Code.  On the contrary, the Canada Labour Code states that the legislation sets minimum requirements which cannot be diminished by custom, contract, or arrangement (see subsection 168(1) of the Canada Labour Code).

Illness and the Workplace

The obligation to accommodate an employees’ legitimate absence from work because of illness is legislated in the Ontario Human Rights Code. While Employer’s have an obligation to accommodate illness a worker has a similar obligation to participate in their return to work plan.

Contracts Uncovered

Limiting an employees’ entitlement to notice on termination of employment requires a carefully worded contract. Some general rules exist. If an employer wants to limit an employees’ entitlement to reasonable notice under the common law – the contract must clearly specify what the notice period is. The contract must comply with the Employment Standards Act. If the termination clause does not meet or exceed the minimum requirements of the employment standards legislation it is unenforceable.

Six Minutes Employment Lawyer 2013

Law Society of Upper Canada

34th Civil Litigation Updated Conference

County of Carleton Law Association

North American Relocation Law

Contributor to the Employment Chapter

When Big Brother Goes Too Far: An Employees’ Right to Privacy

Intrusion on seclusion protects the individual right to privacy protected without the requirement to establish “damages” from disclosure of the information. In order to establish an invasion of privacy one must prove, The conduct was intentional or reckless; Private affairs were unlawfully invaded; and A reasonable person would regard the invasion as highly offensive which could cause distress or humiliation.

The Pitfalls of Facebook

Employees are entitled to an opinion about their colleagues and the employer they work for. However, where thoughts resurrect into statements they may be reason for termination of employment.

No Benefit Continuation? No Contract!

The Employment Standards Act, 2000 of Ontario details entitlements to notice pay, severance pay, and benefits on termination of employment. While employers can minimize their financial responsibility to a dismissed employee through a well-drafted employment contract it is important that the agreement comply with the minimum requirements.

The Canada Labour Code Uncovered

Section 240 of the Canada Labour Code (“Code”) provides protection to non-unionized, non-management, federal employees against termination of employment. Under the legislation employees cannot be terminated “unjustly”. Similar to unionized workers, under the Code a federally regulated employee has job protection and can only be terminated because of lack of work, discontinuance of a function, or cause.

Undefined Time Limits are Fatal to Restrictive Covenant

Despite their frequent use restrictive covenants are difficult to enforce. The Canadian economy benefits from open competition free from encumbrances. Recently, the Court of Appeal demonstrated its distaste for these types of clauses by refusing to enforce overly broad restrictive covenants indicating they were unreasonable (see Martin v. ConCreate USL Limited Partnership, 2013 ONCA 72).