Resources: Employment
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A Crack in the Dam? Merrifield v. Attorney General (Ont.) and the Undead Tort of Harassment
October 2017
For many years, workplace law has generally proceeded on the assumption that remedies for harassing behaviour and civil “harassment” were, except in rare cases, outside the purview of the courts. Harassment, as a civil wrong, had developed within the administrative structure of human rights tribunals and grievance processes under collective agreements but there was no generally recognized common law “tort” of harassment.
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A Crack in the Dam? Merrifield v. Attorney General (Ont.) and the Undead Tort of Harassment -
BC Court of Appeal Restores Human Rights Tribunal Decision to Dismiss Complaint
October 2017
In Francescutti v. Vancouver (City), 2017 BCCA 242, the British Columbia Court of Appeal restored a human rights tribunal decision to dismiss a complaint brought by a former City of Vancouver employee. The decision provides useful support for the ability of a respondent to succeed on an application to dismiss a complaint, despite the presence of some conflicting facts raising issues of credibility.
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BC Court of Appeal Restores Human Rights Tribunal Decision to Dismiss Complaint -
The Significant (and Avoidable) Costs of a Poorly Run Workplace Investigation
October 2017
A recent decision of the Ontario Court of Appeal acts as a cautionary tale for all employers when it comes to conducting (or not conducting) workplace investigations.
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The Significant (and Avoidable) Costs of a Poorly Run Workplace Investigation -
B.C. Court Clarifies Limits on Departing Employee’s Use of Employer Information and Diversion of “Corporate Opportunity”
October 2017
In Sateri (Shanghai) Management Limited v. Vinall, 2017 BCSC 491, the B.C. Supreme Court summed up the law governing how far a departing employee can go in effectively assisting a new employer, including through sharing his or her current employer’s confidential information or in diverting a “corporate opportunity”. The case also confirms that substantial damages will only be awarded against an employee if the employer can show it has suffered a resulting financial loss.
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B.C. Court Clarifies Limits on Departing Employee’s Use of Employer Information and Diversion of “Corporate Opportunity” -
The Clause That Saved The Company $7 million: Is It Bionic or Just Good Drafting?
September 2017
Terminating the employment of a senior executive can be expensive business. In normal circumstances, a dismissed employee is entitled to be paid all the remuneration the employee would have received had he or she worked through the “reasonable notice period”. For some employees, this would mean payments on account of bonuses, stock plans and other performance metrics. However, these expenses can be managed if the employer puts proper employment contracts in place.
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The Clause That Saved The Company $7 million: Is It Bionic or Just Good Drafting? -
Timing is Everything: Ensuring your Employment Agreements are Enforceable
September 2017
Most employers know the value of having written employment agreements in place for their non-union or excluded employees, particularly when it comes to setting out obligations relating to termination. However, the timing of when a contract is signed can make all the difference to whether it is legally binding and you can rely on its terms, or whether common law principles apply instead.
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Timing is Everything: Ensuring your Employment Agreements are Enforceable -
Firing an employee? Be nice.
August 2017
Can bad faith employer conduct during the course of dismissal lead to both aggravated damages and a longer notice period? On July 7, 2017, the British Columbia Court of Appeal revisited those issues in Lau v. Royal Bank of Canada, 2017 BCCA 253.
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Firing an employee? Be nice. -
Employers Take Note: Costs of a Just Cause Misstep Could be Significant
July 2017
The Supreme Court of Canada recently denied leave to appeal of the Ontario Court of Appeal’s decision in Fernandes v. Peel Educational & Tutorial Services Ltd. c.o.b. Mississauga Private School, 2016 ONCA 468. This case is a timely reminder for employers in relation to two issues: (1) the standard of misconduct that qualifies as “just cause”; and (2) the potentially significant liability that an employer can incur when a wrongfully dismissed employee becomes disabled during his or her reasonable notice period.
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Employers Take Note: Costs of a Just Cause Misstep Could be Significant -
Complaints by Cisgendered Men Alleging Discrimination on Grounds of Gender Identity or Expression Dismissed by Ontario Human Rights Tribunal
July 2017
The B.C. Human Rights Code was amended in mid-2016 to include “gender identity or expression” as protected grounds. As of the date this article was written, the B.C. Human Rights Tribunal has not interpreted or applied the amendment in any of its decisions.
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Complaints by Cisgendered Men Alleging Discrimination on Grounds of Gender Identity or Expression Dismissed by Ontario Human Rights Tribunal -
The Consequences of an “Innocent” Covering E-mail
July 2017
New technology has undoubtedly impacted the employment relationship. The relationship is changing and, perhaps more importantly, the way in which the relationship is conducted is changing. While many employers would not think twice about the impact of a covering e-mail to an offer letter, the recent decision in Ballim v. Bausch & Lomb Canada Inc., 2016 ONSC 6307 confirms that an e-mail which attaches an agreement or offer can be used to determine the intention of the parties.
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The Consequences of an “Innocent” Covering E-mail