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

March 26, 2012 Andrew Taillon Employee Relations, Employment/Labour Standards, Human Resources

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…

consideration, employee handbook, employment contracts, employment law, enforceable, invalid contract, Job abandonment, layoff, McLean vs. The Raywal Limited Partnership, policy manual, promotion, sufficiency on consideration, termination, terminations, wrongfully dismissed

Constructive dismissal part 2: everything has its limits

February 23, 2012 Andrew Taillon Employee Relations, Employment/Labour Standards, Human Resources, Payroll, Pensions and Benefits, Wages and Compensation

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.

Allen v. Ainsworth Lumber Company, common-law notice period, constructive dismissal, contractual notice period, employment contracts, employment law, mitigation, termination, termination notice, working notice

The debate over moral damages continues

January 20, 2012 Andrew Taillon Employee Relations, Employment/Labour Standards, Human Resources

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.

bad faith, bad faith dismissals, bad faith termination, Canada (Attorney General) v. Tipple (2011), Douglas Tipple, employment law, grievance, Honda damages, Honda v. Keays, mental health effects, misleading and unduly insensitive, moral damages, psychological injury, reprisal, termination, workplace investigations

Constructive dismissal: a tough call for employees

December 21, 2011 Andrew Taillon Employee Relations, Employment/Labour Standards, Human Resources, Payroll, Wages and Compensation

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.

breach of contract, canadian employment law, constructive dismissal, Constructive dismissals, Dismissal, employment contract, employment law, essential term, Farber v. Royal Trust Company, Gillis v. Sobeys Group Incorporated, notice period, Nova Scotia, substantial change, wrongful dismissal

How to craft an enforceable non-solicitation clause

November 23, 2011 Andrew Taillon Employee Relations, Human Resources

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.

British Columbia, Edward Jones v. Mirminachi, employment law, ensure agreement is enforceable, non compete, non-competition, non-solicitation, restrictive covenants

Practical advice regarding dismissed employees and mitigation

October 19, 2011 Andrew Taillon Employment/Labour Standards, Human Resources, Payroll, Wages and Compensation

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.

duty to mitigate, employment contract, employment law, lump sum severance, ontario, predetermined severance, salary continuance, severance, severance period, termination

New Brunswick court of appeal weighs in on alcohol testing

July 28, 2011 Andrew Taillon Human Resources, Human Rights

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.

alcohol testing, breathalyser, Court of Appeal, dangerous workplace, employee handbook, employer’s alcohol testing policy, employer’s work environment, employment law, incidents in the workplace, Mining operations, New Brunswick, policy manual, random alcohol testing, random testing, safety sensitive positions, workplace

Honda damages continue to be moving target

June 15, 2011 Andrew Taillon Employment/Labour Standards, Human Resources

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.

Alberta Court of Appeal, award of aggravated damages, bad faith behaviour, bad faith dismissal, Elgert v. Home Hardware Stores, employment law, extension of the notice period, Hadley v. Baxendale, Honda damages, Honda v. Keays, manner in which the termination was carried out, misconduct, moral damages, notice period, risk of damages, Supreme Court of Canada, terminations, Wallace damanges, Wallace v. United Grain Growers, wrongful dismissal

Moral damages: still an unsettled question

May 18, 2011 Andrew Taillon Employment/Labour Standards, Human Resources

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.

bad faith during the termination, Civil law, common law, employment law, extension of the notice period, Fox v. Silver Sage Housing Corporation, Honda v. Keays, Lysecky v. United Parcel Service of Canada Limited, manner of dismissal, mental distress, moral damages, notice period, Quebec, Quebec Superior Court, Supreme Court of Canada, terminations, Wallace damages, Wallace v. United Grain Growers, wrongful dismissal

Common law privacy rights: a shifting stance

April 20, 2011 Andrew Taillon Human Resources, Privacy and Security

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.

Charter, common law, Common law privacy rights, Employee privacy, employment law, expectations of privacy, PIPEDA, possession of child pornography, privacy rights, R. v. Cole, reasonable expectation of privacy, unauthorized use of a computer, work based emails, Wrongful dismissal suits

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

March 23, 2011 Andrew Taillon Human Resources, Privacy and Security

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?

Anton Piller order, civil search warrant, confidential information, court order, destruction of evidence, employment law, evidence, evidence preservation order, search warrant, Supreme Court of Canada

Dealing with the shareholder employee

February 16, 2011 Andrew Taillon Human Resources

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.

employment contract, employment law, employment relationship, family run business, oppression remedy, shareholder protections, wrongful dismissal

Nova Scotia creation of the ‘Superboard’

December 15, 2010 Andrew Taillon Employment/Labour Standards, Human Resources

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.

canadian employment law, employment law, employment related dispute, Labour-Management Review Committee, Nova Scotia, Superboard, Trade Union Act, Union relations

Increase in litigation by employers against former employees

November 17, 2010 Andrew Taillon Employment/Labour Standards, Human Resources

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.

Breach of duty, canadian employment law, confidential information, contract of employment, duty of loyalty and fidelity, employee’s duty of loyalty and fidelity, employment law, employment relationship, fiduciary duties, lititgation, term of employment, terminations

Drug and alcohol testing again

October 20, 2010 Andrew Taillon Health and Safety, Human Resources, Human Rights

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.

alcohol and drug policy, breathalyser, canadian employment law, drug and alcohol testing, employment law, impairment at the worksite