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Author Archive - Simon Heath, BA, MIR, LLB, Heath Law

Simon Heath, BA, MIR, LLB, is the Principal of Heath Law, Employment Lawyers in Mississauga, Ontario. Simon represents both public and private-sector employers and employees (unionized and non-unionized) at all stages of the employment relationship with a focus in the areas of employment law, labour law and human rights law; these representations are made at all levels of courts and all administrative tribunals. Read more

Arbitrator rules profanity during telephone call with manager insufficient to constitute ‘just cause’ for dismissal

Vice-Chair Ian Anderson of the Ontario Labour Relations Board recently ruled in Canadian Union of Skilled Workers v. Hydro One Inc., 2014 CanLII 15069, a construction industry grievance that the employee’s use of profanity during a telephone call with his manager did not constitute conduct sufficient to justify a dismissal for cause.


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Federal Court of Appeal outlines test for discrimination on the basis of child care responsibilities

The Federal Court of Appeal has released two companion decisions in Attorney General of Canada v Fiona Johnston and the Canadian Human Rights Commission 2014 FCA 110 (“Johnston”) and Canadian National Railway v. Denise Seeley and the Canadian Human Rights Commission 2014 FCA 111 (“Seeley”) that confirm that discrimination on the prohibited ground of “family status” includes child care obligations and in elaborating on the appropriate test to be used in order to determine when an employee can establish a prima facie case of discrimination on the basis of family status contrary to the Canadian Human Rights Act.


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Ontario Ministry of Labour announces 2014-15 employment standards inspection blitzes

On April 3, 2014, the Ontario Ministry of Labour announced the focus of its 2014-15 Employment Standards Act (ESA) inspection blitzes. A “blitz” occurs when the Ministry of Labour (MOL) decides to have its employment standards officers target industries that have a history of employment standards violations or industries that employ vulnerable workers in order to ensure compliance with the ESA.


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Ontario Human Rights Tribunal rules company discriminated against employee with developmental disability by paying her wages of $1.25 per hour

In Garrie v. Janus Joan Inc., the Ontario Human Rights Tribunal severely criticized an employer that was paying an employee with a developmental disability $1.25 an hour and it ordered a significant loss of wages and damage award against it.


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OHRT rules the “flu” is not a “disability” attracting the protection of the Human Rights Code

Rule of law

As an employment law practitioner, it is refreshing to see any court and/or administrative tribunal release a decision that makes “common sense” (as well as legal sense). Recently, the Ontario Human Rights Tribunal had to determine if the common flu and strep throat constituted disabilities under the Human Rights Code .


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Supreme Court of Canada confirms pension benefits should not be deducted from damages for wrongful dismissal

In the recent decision of IBM Canada Limited v. Waterman 2013 SCC 70 (CanLII), the Supreme Court of Canada confirmed that an employee’s pension benefits should not be deducted from his/her common law entitlement to pay in lieu of notice arising from a wrongful dismissal.


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OLRB upholds MOL finding that a vehicle is a “workplace” for the purposes of the OHSA

In a recent decision Hydro One Networks Inc. v. Thisdelle 2013 CanLii 67867, the Ontario Labour Relations Board (“OLRB”) has upheld the decision of a Ministry of Labour Inspector (“MOL Inspector”) to issue a ticket against a Hydro One transportation and utility vehicle on the basis that the vehicle in and of itself constituted a “workplace” and therefore fell within the jurisdiction of the Occupational Health and Safety Act (“OHSA”). This decision gives a broad definition to “workplace” and no doubt means that other vehicles will fall within the jurisdiction of the OHSA.


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Arbitrator orders highest damage award in history against the Ontario Government for discrimination

Arbitrator Deborah Leighton has made history in her recent decision on remedy in OPSEU (Ranger) v. Ontario (Ministry of Corrections) 2013 CanLii 50479, which was released this past July 2013 by awarding more than $100,000 in damages for breach of the Ontario Human Rights Code and the applicable collective agreement for discrimination, harassment and poisoned work environment.


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Ontario Court of Appeal rules on distracted driving and handheld devices

The Ontario Court of Appeal has recently ruled on the issue of distracted driving caused by “holding” handheld devices in two companion decisions: R. v. Kazemi 2013 ONCA 585 and R. v. Pizzurro, 2013 ONCA 584. In both cases, the Court of Appeal has strictly interpreted the Ontario Highway Traffic Act (“HTA”) to mean that holding a handheld device while driving constitutes a breach of the statute because it results in distracted driving that should be avoided at all costs.


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Working notice: A refresher

Most of the time when employers look to terminate an employee they opt for pay in lieu of notice. Yet pay in lieu of notice can be costly, it can discourage mitigation and it may hurt productivity (if a suitable replacement has yet to be found). An often overlooked approach is providing working notice that satisfies both statutory and common law obligations.


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OHRT orders $70,000 in damages against employer for reprisal termination even though complaints of discrimination lacked merit

The Ontario Human Rights Tribunal (“OHRT”) recently examined the law of “reprisal terminations” in the decision of Morgan v. Herman Miller Canada Inc. In this case, the employee made a number of allegations of discrimination based on race and said that the employer terminated his employment rather than properly investigate his concerns. Although the OHRT dismissed most of the allegations of discrimination on the basis of race, it did find that the employer should have conducted an investigation prior to the employee’s termination.


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Ontario Human Rights Commission releases policy on removing the “Canadian experience” barrier

Canadian Work Experience

On July 15, 2013, the Ontario Human Rights Commission (“OHRC”) released its Policy on Removing the “Canadian Experience” Barrier (the “Policy”) barrier. The purpose of the Policy is to address the fact that new immigrants, with university educations and/or work experience, are denied opportunities for jobs or career advancement because they lack “Canadian Experience” (i.e. Canadian based work experience) and their foreign educational qualification or work experience are not recognized.


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Can employers in Canada refuse to hire smokers?

Recently, an Ottawa-based tech company called Momentous Corp. has attracted national attention because it implemented a blanket policy against hiring smokers and advertises that it will hire non-smokers only. In order to reduce its health costs, Momentous prohibits the hiring of or allowing any smoking on its property during working hours…


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How can employers make legitimate deductions from an employees pay under the Ontario Employment Standards Act?

A situation that arises all the time is whether an employer can deduct the full amount of a loan, an overpayment, the cost of faulty work, cash shortages or stolen goods or the costs of their uniforms. The issue of employer deductions is governed by section 13 of the Ontario Employment Standards Act (ESA) and a clear understanding of the rules will avoid disputes and potential claims by the employee to the Ministry of Labour, Employment Standards Branch.


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Employer failed in duty to accommodate by not considering employment beyond pre-injury position

In the recent decision Fair and Hamilton-Wentworth District School Board, the Ontario Human Rights Tribunal provides a useful guide for employers to follow in determining how to return an employee to the workplace after an extended absence.


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