The Ontario Court of Appeal was busy the last two months providing important direction to the employment bar about the enforceability of non-competition agreements in the staffing environment (see S. I. Systems Partnership v. Geng https://www.canlii.org/en/on/onsc/doc/2020/2020onsc8086/2020onsc8086.html) and insight on notice and break of service (see Currie v. Nylene Canada Inc., 2021 ONSC 1922 (CanLII), <https://canlii.ca/t/jdqzq ). Both Trial Decisions were upheld..
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.
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.
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,
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 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?
 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.
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.
Where there is no error in law or improper consideration notice periods are not limited to 24 months. On the contrary, a consideration of the unique circumstances of the wrongfully dismissed worker may justify additional 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.
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.
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).
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.