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Author Archive - Barry B. Fisher LL.B.

Barry B. Fisher, LL.B., is a mediator and arbitrator of both employment and labour relations matters. He offers three forms of ADR based on clients’ needs: Mediation, Arbitration and Med/Arb. Barry is from the evaluative school of mediation and brings his over 30 years' experience as an employment lawyer and legal author to the dispute. In addition to his knowledge of the legal issues involved in these disputes, he also has a deep understanding of the psychological factors that motivate both employees and employers. By combining these two skills, Barry is able to achieve a settlement rate of over 80% of the disputes that he mediates.

Progressive discipline leads to termination for cause for poor performance

I sometimes hear lawyers tell the clients that upholding just cause for poor performance is almost impossible. Not so if the employer does it right.

 

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Excluding STD and LTD during notice period voids termination clause

In Cormier v 1772887 Ontario Limited c.o.b. as St Joseph’s Communications (2019 ONSC 587), Justice Perell had to determine the enforceability of the following ESA termination clause:

 

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OCA distinguishes employee rights v shareholder rights

In Mikelsteins v Morrison Herschfield Ltd. (2019 ONCA 515) the Court of Appeal revised a trial decision where an executive was given 26 months notice. The Plaintiff, in addition to his salary, was a shareholder in this private company and as such received dividends from time to time.

 

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Do all arbitration clauses in employment agreements violate the ESA?

In Rhinehart v Legend 3D Canada (2019 ONSC 3296) Justice Sanfilippo was faced with a motion by the defendants to stay the action as the employment contract had an arbitration clause that said as follows:

 

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Failure to repeat termination clause after multiple promotions voids clause

In McKercher v Stantec Architecture (2019 SKQB 100), Justice Elson had a situation where at the time of his hiring as a staff architect, the plaintiff signed an enforceable contract limiting his notice to a maximum of 3 months.

 

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Laying of criminal charges after dismissal does not delay limitations period

In Sosnowski v McEwan Petroleum ( 2019 ONSC 1860) Macleod-Beliveau J. had a situation where the following chronology applied:

 

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Mutual release set aside due to fraudulent misrepresentation

In Markicevic v York University (2018 ONCA 813), the Ontario Court of Appeal upheld the lower court’s decision to set aside a settlement with its ex-employee to whom they had paid 36 months severance pay only to find out later that he had actually ripped them off for a million dollars.

 

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Plaintiff wins $114,082 but pays costs to the defendant of $200,000

A plaintiff was awarded 12 months notice but because she had been on STD and LTD during this same period, her actual damages were only $14,082. She was also awarded Honda or moral damages of $100,000.

 

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OCA upholds ESA related termination clause

In Nemeth v Hatch (2018 ONCA 7), the Court was faced with the following termination clause:

 

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