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Archive for ‘Practice of Law: Practice Management’

Saving Clauses Do Not Permit Employers to Contract Out of the ESA

Written by Lewis Waring, Paralegal, Editor, First Reference Inc.

In Groves v UTS Consultants Inc, 2019 ONSC 5605 (“Groves”), the Ontario Superior Court of Justice (“SCJ”) held that an employer cannot contract out of its obligations under the Employment Standards Act, 2000 (“ESA”) by including a “saving clause” in its employment contract. Moreover, a contract that attempts to make an employer exempt from its obligations under the ESA is unenforceable, and, in Groves, the SCJ merely applied this uncontroversial principle to what is known as a saving clause. . . . [more]

Posted in: Case Comment, Practice of Law, Practice of Law: Practice Management, Substantive Law, Substantive Law: Judicial Decisions, Substantive Law: Legislation

Injured at Work: Tribunal Clarifies the Limits

Written by Daniel Standing LL.B., Editor at First Reference Inc.

In a recent “right to sue application,” Decision No. 550/19, the Ontario Workplace Safety and Insurance Appeals Tribunal considered whether a truck driver who sustained an injury at the workplace a short time after his work assignment ended was entitled to sue the employer. In reaching its conclusion that the right to sue was taken away by legislation, the Tribunal made key findings on the issues of whether the truck driver was a worker or an independent contractor and whether the injury was sustained in the course of the . . . [more]

Posted in: Case Comment, Practice of Law, Practice of Law: Practice Management, Substantive Law, Substantive Law: Judicial Decisions

Flexibility to Start or Leave Work Does Not Impact Original Employment Contract

A recent Ontario appellate decision confirms that employer flexibility in granting occasional requests, such as the time to start and end work, does not always modify the original employment contract.

Quick facts

The employee in this case worked as a scheduler from 8:30 a.m. to 4:30 p.m., with earlier morning work on occasion. The employee claimed that she had a verbal agreement with the employer that she was allowed to arrive any time before 10:00 a.m. to allow her to manage her childcare obligations. However, the employer claimed that he had discussed her irregular arrival times with her and told . . . [more]

Posted in: Case Comment, Practice of Law, Practice of Law: Practice Management, Substantive Law, Substantive Law: Judicial Decisions

Can a Relationship With a Subordinate Be Cause for Dismissal?

The New Brunswick Court of Queen’s Bench recently considered if and when a workplace romance could lead to just cause for dismissal.

Quick facts

The employee was a regional manager for New Brunswick and had been employed by the employer since at least 2002. He was dismissed in May 2017 when the employer became aware that the employee was involved in a sexual relationship with another employee whom he supervised and had failed to report the relationship, as required by policy.

Prior to the dismissal, the employer conducted an investigation which confirmed the existence of the relationship. But it also . . . [more]

Posted in: Case Comment, Practice of Law, Practice of Law: Practice Management, Substantive Law, Substantive Law: Judicial Decisions

Refusing Dangerous Work Is Not Only in the Eye of the Beholder

Written by Daniel Standing LL.B., Editor, First Reference Inc.

Hassan v City of Ottawa (OC Transpo), 2019 OHSTC 8 confirms the principle that an employee’s belief in a work-related threat that is purely subjective and hypothetical will not allow the employee to invoke the exceptional remedy under the Canada Labour Code to refuse to work.

To legitimately refuse to work on this basis, the employee’s perception of danger must also be objectively reasonable. In this case, the employee’s refusal failed to meet that threshold.

Key facts

The employee was a bus driver working for the City of Ottawa (OC . . . [more]

Posted in: Case Comment, Practice of Law: Practice Management, Substantive Law, Substantive Law: Judicial Decisions

Discriminatory Hiring Practices a Blind Spot in the Legal Industry

Written by Lewis Waring, Paralegal, Editor at First Reference

In Moore v Ferro (Estate), 2019 HRTO 526 (CanLII) (“Moore”), a British-trained lawyer licensed to practice in Ontario applied for a position at a law firm and was denied. The applicant responded to his denial by claiming that the law firm had discriminated against him in violation of the Ontario Human Rights Code.

The nature of that discrimination, the applicant claimed, was based upon his race and age and was demonstrated by the firm’s interview procedure, refusal to hire him and the language used in their correspondence with him. . . . [more]

Posted in: Case Comment, Practice of Law, Practice of Law: Practice Management, Substantive Law, Substantive Law: Judicial Decisions

Lack of Clarity on Discretionary Payments Benefited Terminated Employee

Written by Daniel Standing LL.B., Editor, First Reference

In Thoma v Schaefer Elevator Components Inc., 2019 BCSC 100 (CanLII), the British Columbia Supreme Court re-affirms the need for employers to establish and communicate clear and explicit rules when discretionary bonuses form part of an organization’s compensation scheme. These rules should regulate an employee’s entitlement to bonus payments (both during employment and during a notice period), as well as the eligibility criteria and how and when payments are to be made. This case shows how a lack of clarity in this respect can expose an employer to significant financial liability, . . . [more]

Posted in: Case Comment, Practice of Law: Practice Management, Substantive Law, Substantive Law: Judicial Decisions

Time to Review Your Accessibility Plans and Prepare to File a Report in 2020

1. Review your multi-year accessibility plans by January 1, 2020

On January 1, 2014, section 4(1) of the Integrated Accessibility Standards, Ontario Regulation 191/11 under the Accessibility for Ontarians with Disabilities Act (AODA) required the Government of Ontario, Legislative Assembly, designated public sector organizations and large organizations (50 plus employees) to have multi-year accessibility plans in place and posted on their websites (if any), and to provide the plan in an accessible format upon request.

The multi-year accessibility plan must inform and outline the organization’s strategy for preventing and removing barriers faced by persons with disabilities and also for meeting . . . [more]

Posted in: Legal Information, Legal Information: Information Management, Legal Information: Libraries & Research, Legal Information: Publishing, Miscellaneous, Practice of Law, Practice of Law: Marketing, Practice of Law: Practice Management, Substantive Law, Substantive Law: Legislation, Technology, Technology: Internet, Technology: Office Technology

CyberSecure Canada Standards for SMEs

The Canadian government has released a Cyber security controls standards document meant for small and medium sized business (499 employees or less), along with a certification program called CyberSecure Canada.

Cyber risks seem to be getting worse. Dangers include external hackers, phishing and social engineering attempts, and intentional and unintentional internal leaks. Responsibility is now considered to be at the board level, and does not stop at the CIO.

Cyber security can be a daunting task for small business. As the standard says, normal security standards “… are expensive to implement, beyond the financial and/or human resources means of most . . . [more]

Posted in: Legal Information, Practice of Law: Practice Management, Technology

Dispute Resolution Under the Canada Labour Code Transferred to Canada Industrial Relations Board

On July 29, 2019, certain provisions of the Budget Implementation Act 2017, No.1 (introduced as Bill C-44) came into force. The new law streamlines the dispute resolution process under the Canada Labour Code in federally regulated workplaces by transferring adjudicative functions under the Employment and Social Development Canada – Labour Program to the Canada Industrial Relations Board (CIRB).

This transfer impacts: . . . [more]

Posted in: Practice of Law, Practice of Law: Practice Management, Substantive Law, Substantive Law: Judicial Decisions, Substantive Law: Legislation

Supreme Court of Canada Refuses to Hear an Appeal on Campbell River Family Status Test

A previous Slaw article (which you can read here) discussed the recent British Columbia Court of Appeal decision that confirmed that the stringent test set out in Health Sciences Assoc of BC v Campbell River and North Island Transition Society (Campbell River) to determine if there was a duty to accommodate based on family status and if there is a prima facie case of discrimination based on family status, continues to be the applicable test in British Columbia.

Since this decision, the employee was seeking leave to appeal to the Supreme Court of Canada to address the inconsistency in . . . [more]

Posted in: Case Comment, Practice of Law, Practice of Law: Practice Management, Substantive Law, Substantive Law: Judicial Decisions

Employee Entitled to Rescind Retirement Notice

The Ontario Court of Appeal has ruled that an employee had the right to unilaterally revoke her notice of resignation due to changing circumstances, and was wrongfully dismissed when her employer would not allow her to do so.

Quick facts

December 31, 2016, a 64-year-old employee resigned after her employer said it would be implementing a new computer system, citing her concern with learning a new system. The employee’s supervisor offered the employee an opportunity to reconsider and told the employee she could revoke the notice if she changed her mind.

On October 11, 2016, the employer announced it wouldn’t . . . [more]

Posted in: Case Comment, Practice of Law, Practice of Law: Practice Management, Substantive Law, Substantive Law: Judicial Decisions