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Author Archive - Andrew Taillon

Andrew Taillon was a lawyer in Cox & Palmer‘s Halifax office. He practiced mainly in labour, employment and litigation. Now he is a Barrister & Solicitor at Nova Scotia Department of Justice. Read more

Making your employee handbook enforceable

A regular issue for employers is whether the provisions in their employee handbook are enforceable in the same manner as an employment contract. Many employers are surprised to find that they are not…

 

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Constructive dismissal part 2: everything has its limits

Constructive dismissal, while still a source of concern for employers, is likely less of a threat than it is sometimes thought of. Employees placed in potential constructive dismissal suits must be very careful, or else they may find they have very limited recovery. However, an employer in British Columbia has attempted to push the weaknesses of constructive dismissal to the extreme. In fact it appears to have tried to push the concept farther than it can reasonably bear.

 

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The debate over moral damages continues

Since Honda v. Keays, employment law and human resources practitioners have been watching how the law regarding bad faith dismissals has developed, in particular, the assessment of moral damages. A recently published decision has added some clarity to the moral damages question. The case, Canada (Attorney General) v. Tipple (2011) dealt with the well known case of Douglas Tipple.

 

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Constructive dismissal: a tough call for employees

Constructive dismissals are something that most employers are aware of, but many may not be aware that constructive dismissals are in fact very difficult cases for employees to win. This is illustrated by a recent case out of Nova Scotia, Gillis v. Sobeys Group Incorporated 2011 NSSC 443.

 

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How to craft an enforceable non-solicitation clause

Generally speaking, a restrictive covenant acts to restrict the activities of a former employee after their employment has ended. They usually come in one of two forms: non-competition clauses and non-solicitation clauses. The law on restrictive covenants is that they are prima facie unenforceable as they are in restraint of trade and therefore against public policy. In order to be enforced, they must be proven by the party that seeks to enforce them to be a reasonable limit on trade.

 

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Practical advice regarding dismissed employees and mitigation

Most employers are aware that any dismissed employee has a duty to mitigate. Usually, this duty arises in the determination of an appropriate severance payment to an employee. Where an employee contests the severance, the duty to mitigate will undoubtedly apply as part of the matrix of calculations to be determined.

 

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New Brunswick court of appeal weighs in on alcohol testing

On July 7, 2011 the New Brunswick Court of Appeal handed down a decision regarding an employer’s alcohol testing policy. In Irving Pulp and Paper Limited v. Communications, Energy and Paperworkers Union of Canada Local 30, 2011 NBCA 58, the Court found that the random alcohol testing policy in the case was reasonable.

 

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Honda damages continue to be moving target

A recent case from the Alberta Court of Appeal suggests that Honda damages, previously known as Wallace damages, are becoming less of a threat for employers in wrongful dismissal suits.

 

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Moral damages: still an unsettled question

A recent case out of the Quebec Superior Court Lysecky v. United Parcel Service of Canada Limited 2010 QCCS 5098 is indicative how the question of “moral damages” is still unsettled law.

 

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Common law privacy rights: a shifting stance

The recent case of R. v. Cole 2011 ONCA 218, a decision of the Ontario Court of Appeal suggests that employees may have some expectations of privacy with regard to work based emails under the Charter.

 

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What’s an Anton Piller order? You’d better know before you face one

Picture the following situation: it’s a normal workday, when suddenly, a large group of people enter your premises. Many of them are wearing uniforms of the Sheriff’s Office. They are led by a lawyer who claims he has an order from the court that allows his party to search your premises and copy and remove any documents they wish. The order from the court he presents to you appears legitimate. What do you do?

 

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Dealing with the shareholder employee

It is not uncommon in smaller family run or closely held businesses to have a situation where a key employee is also a significant shareholder in the business. However, this can create significant issues if the relationship with the employee changes, particularly if the relationship deteriorates. This is because such employees are subject not only to employment laws, but also can take advantage of shareholder protections.

 

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Nova Scotia creation of the ‘Superboard’

As Christina Catenacci recently blogged, my home Province of Nova Scotia has taken steps to create a unified labour board. While the establishment of the Labour Board itself has not been the subject of much debate, the Bill that introduced it did create some controversy as it also introduced changes to our Trade Union Act.

 

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Increase in litigation by employers against former employees

In reviewing the cases that come along through the various reporting services, my subjective impression is that there appears to be an increase in litigation by employers against former employees.

 

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Drug and alcohol testing again

I recently had the pleasure of speaking at the 2010 National Construction Labour Relations Alliance Labour Relations Conference. I participated in a panel that provided an update on drug and alcohol policies.

 

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