Entries by BirdRichard

McDonald’s Franchisee Loses on Appeal

In our summer 2016 issue, we discussed an appeal underway in Brake v PJ-M2R Restaurant Inc. The central issues were whether the Employer, a McDonald’s franchise, had cause to dismiss the Plaintiff, Ms. Brake, and whether her mitigation income ought to have been offset against her damages award. On May 23, 2017, the Court of […]

Court Kicks Employee’s Dismissal Suit for Failure to Reasonably Mitigate Damages

In a wrongful dismissal action, employers will not be held liable for damages during the notice period if they can establish that an employee failed to reasonably mitigate her damages. To succeed, the employer must prove i) that the employee did not take any steps (or at least reasonable steps) to search for comparable employment […]

Court of Appeal Clarifies issue of Benefit Provisions in Termination Clauses

In its long awaited decision in Wood v Fred Deeley Imports Ltd., 2017 ONCA 158, the Court of Appeal for Ontario struck down the following termination clause, finding that it constituted an attempt to “contract out” of the Employment Standards Act, 2000: [The Company] is entitled to terminate your employment at any time without cause […]

Supreme Court of Canada will not hear the Appeal of the ‘Curative’ Clause

In our summer 2016 edition of EMPLAWYERS’ Update, we reported on Oudin v Centre Francophone de Toronto, in which the Ontario Court of Appeal upheld a termination clause, despite finding that some of its provisions violated the Employment Standards Act, 2000 (“ESA”). On February 2, 2017, the Supreme Court of Canada dismissed the employee’s Application […]

Divisional Court sets aside an Award of Aggravated Damages

In Walker v Hulse, Playfair and McGarry, 2017 ONSC 358, the Ontario Divisional Court set aside an award of aggravated damages stemming from a wrongful dismissal lawsuit brought in the Small Claims Court. In December 23, 2013, the Plaintiff was suspended with pay while the employer, a local funeral home, conducted an investigation into inappropriate […]

Supreme Court to revisit the Meaning of “Employment” in Human Rights Code

In 2014, the Supreme Court of Canada considered whether a partnership agreement constituted protected “employment” pursuant to the British Columbia Human Rights Code in McCormick v Fasken Martineau DuMoulin LLP. The Supreme Court ruled that a partnership was not “employment” and dismissed the case. On March 28, 2017, the Supreme Court will once again have […]

Conduct Aimed at Forcing a Resignation – Court Awards Damages against the Employer

In Bovin et al v Over the Rainbow Packaging Services Inc., 2017 ONSC 1143, the Superior Court of Justice sent a clear warning to employers who employ bad faith tactics aimed at forcing employees to quit. Ms. Bovin and Ms. Sidhu began their employment with the Defendant, a packaging company, in 1997. Ms. Bovin was […]

Termination was Discriminatory as “Ultimate Reason” of Employee’s Dismissal

In Ben Saad v 1544982 Ontario Inc., the Human Rights Tribunal of Ontario determined the termination of Ben Saad, the employee, was discriminatory on the basis of his disability.   Mr. Saad and three Tunisian friends came to Canada in June of 2014 on a work permit to work as welders for Windsor Management, the […]

Employers to Pay the Price: Extended Parental Leave Policies

The Federal Budget, released on March 22, 2017, proposes to change the current Employment Insurance (EI) parental benefits regime to allow parents to choose between: an extended period of EI parental benefits of up to 18 months at a lower benefit rate of 33 per cent of average weekly earnings; or to remain at the […]

Duty to Accommodate does not include a “duty to allow an employee not to work”, Court holds

In Ontario Public Service Employees Union v. Ontario (Children and Youth Services), the Divisional Court upheld the decision of the Ontario Grievance Board. The Board held that the employer had not breached its duty to accommodate the employee’s disability when it terminated his employment on the ground of innocent absenteeism. Mr. Bartolotta, who worked as […]