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summary judgment

Putting on the brakes: The limits of the common employer doctrine

One of the more deceptively complex questions in some cases can be: Who is the employer?

 

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Severance limiting clauses CAN work especially in employment agreements

A recent Ontario Superior Court decision reinforces some basic principles previously discussed on this Blog (and unfortunately often missed or forgotten by employers). In Asgari v 975866 Ontario Ltd, a motion for summary judgment was decided in the Plaintiff’s favour. One issue was whether a clause, purporting to limit the Plaintiff’s pay in lieu of notice entitlements to the statutory minimum, was enforceable.

 

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Terminated: (Summary) judgment day

When the T-1000 came from the future to destroy John Connor, Arnie made sure he was stopped in his tracks. While employers who have to date relied upon prohibitive time and costs to deter ex-employee claims might not face the wrath that Skynet did, given the recent decision of Cloutier v. Q Residential LP Corp (Cloutier), 2015 ONSC 4431 (CanLII), a rethinking of such approaches may be required.

 

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Employers must “trust” employees to account for mitigation earnings during notice period

A typical wrongful dismissal case (where cause is not an issue) generally involves two legal issues. First, how much reasonable notice of termination (or pay in lieu) should the employee have received based on the employee’s age, length of service, position, compensation and the availability of comparable employment. Second, did the employee mitigate his/her damages by finding alternative employment or failing to make reasonable efforts to do so during the notice period? Notably, a judge can decrease the notice period based on the employee’s unreasonable mitigation efforts.

 

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Alleged breach of settlement agreement

It happens every now and then: the parties to a wrongful dismissal dispute agree to resolve their differences, typically with the employer agreeing to pay the employee a certain amount of compensation, and the employer subsequently learns that the employee is working for a competitor. Typically, they will react out of anger, immediately stopping all payments pursuant to the settlement. Can they do so?

 

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The top 10 employment law stories of 2014

Here is a list of 10 cases that changed the employment law landscape in 2014.

 

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Summary judgment motion may help circumvent the litigation process in some cases

Wrongful dismissal claims are the bread and butter of employment lawyers. We deal with a wide variety of issues, from complex litigation involving harassment and discrimination to proactive work like drafting contracts and policy manuals. However, many clients come to us because they need to pursue or defend a claim that, at its core, is focussed on the amount of notice or dismissal, or pay in lieu thereof, that the former employee is entitled to.

 

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Wrongful dismissal law: Summary judgment motions – the way of the future

Since the Supreme Court of Canada’s decision earlier this year in Hryniak v. Mauldin 2014 SCC 7 (CanLII) more and more employees are bringing summary judgment motions to resolve their wrongful dismissal cases.

 

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Contracting out of the Ontario Employment Standards Act

The Employment Standards Act in Ontario is legislation designed to protect the rights of all workers in the province. Under section 3, the Act specifies that it applied to any employee in the Province of Ontario, or any employee who is performing work outside of Ontario that is “…continuance of work performed in Ontario.” The Act contains numerous protections for Ontario employees, such as limiting the maximum hours of work in a week, providing an entitlement to overtime pay, and creating entitlements such as parental leave, vacation and personal leave. The Act also provides for the employee’s rights in the event of a termination of employment. Many employers have perceived these entitlements as onerous in some circumstances. In order to attempt to avoid such payments, or other obligations under the Act, employers have sought to have employees sign contracts containing provisions which purport to surrender the employee’s rights under the Act. This is generally referred to as “contracting out”.

 

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Supreme Court of Canada overturns test regarding summary judgments – Takeaway for employers

On January 23, 2014 the Supreme Court of Canada released its decision in Hryniak v. Mauldin, overturning the Ontario Court of Appeal’s test for the appropriateness of summary judgments (Rule 20 of the Ontario Rules of Civil Procedure, and replacing it with a broader test aimed at increasing access to justice throughout Canada. More specifically, the court confirmed that summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims. What does this mean for employment law?

 

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Another reason why an employment contract should contain a termination clause

Just like pre-nuptial agreements, employers should contemplate termination when their employment contracts are drafted. A recent case illustrates why it is important to include a legally enforceable termination clause in an employment contract for all employees.

 

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