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2014 Employment law round up – Top five cases/trends/stories

With 2015 just around the corner, it is useful to reflect on the year that has just past and is coming to a close. 2014 had a number of significant employment law developments and below we have highlighted the top-five.

Number 5. Developments in pensions and damages for wrongful dismissal:

The Supreme Court of Canada’s decision in IBM Canada Limited v. Waterman 2013 SCC 70 offered clarity on the fact that an employee’s pension entitlements should not be deducted from an award of damages for wrongful dismissal. In this case, IMB argued that Waterman’s pension benefits should be included in its calculation of his damages for wrongful dismissal. The Supreme Court held that pension benefits are a form of deferred compensation for the employee’s service and constitute a type of retirement savings. Pension benefits are not intended to compensate an employee for the loss of employment and therefore employees’ are entitled to both damages for wrongful dismissal and pension benefits.

Number 4. Federal Court of Appeal addresses the issues of “family status” for federally regulated employees:

The Federal Court of Appeal 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 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. The Federal Court of Appeal held that in order to make out a prima facie case where workplace discrimination on the prohibited ground of family status resulting from childcare obligations is alleged, the individual advancing the claim must show (i) that a child is under his or her care and supervision; (ii) that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice; (iii) that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible, and (iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.

Number 3. Ontario to make significant amendments to the Employment Standards Act:

Although the Stronger Workplaces for a Stronger Economy Act, 2014 (Bill 18) changes won’t come in to force starting February of 2015, the Provincial Governments decision to replace the 6 month statutory limitation period for filing a complaint with a 2 year limitation period and to remove the cap of $10,000 in damages will likely result in more employees filing complaints at the Ministry of Labour to seek their entitlements to Termination Pay and Severance Pay rather then commencing actions for wrongful dismissal at the courts. These amendments will assist employees whose have mitigated their common law damages but are experiencing difficulty in securing their statutory entitlement to Termination Pay and Severance Pay.

Number 2. Judicial examination of termination clauses:

2014 saw a number of cases continue to be argued before the courts on the enforceability of termination clauses. Once recent decision is Miller v. A.B.M. Canada Inc. [2014] ONSC 4062. In this case the termination clause provided that “Regular employees may be terminated at any time without cause upon being given the minimum period of notice prescribed by applicable legislation, or being paid salary in lieu of such notice or as may otherwise be required by applicable legislation”. The Defendant company paid the employee his 2 weeks of Termination Pay but not his car allowance or pension. The Plaintiff argued this clause violated section 61(1)(a) and (b) of the Ontario Employment Standards Act because it did not expressly provide for “car allowance” or “pension payments”. The Superior Court agreed and held that the Defendant’s use of the word “salary” in the termination clause did not refer to pension or car allowance and therefore the clause violated the Employment Standards Act and the common law applied. The lesson for companies is to review your termination clauses and ensure that all of an employees entitlements at the time of termination are covered.

And the number 1, case, trend and story of the year (drum roll please…),

Number 1. Jian Ghomeshi:

The former CBC radio personality significantly increased the discourse on a number of workplace issues in the latter part of 2014. Of particular significance was the fact that he put the spotlight on the need for employers to have sexual harassment policies in the workplace and the need for employers to properly investigate allegations when they are made. This case will no doubt continue to influence 2015 as well.

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Simon Heath, BA, MIR, LLB, Heath Law

Employment Lawyer and principal at Heath Law, Employment Lawyers
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
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