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.

Legal issues in the post corona era

April 1, 2020 Barry B. Fisher LL.B. Employee Relations, Employment/Labour Standards, Health and Safety, Human Resources, Notice, Damages and Settlements, Payroll, Pensions and Benefits, Recruiting and Hiring, Wages and Compensation, 1

Right now employment lawyers are talking, debating and especially ZOOMING about various employment issues that have arisen since this pandemic started.

Canadian Emergency Response Benefit (CERB), COVID-19, Employment Insurance, employment issues, employment law, layoffs, temporary layo, termination of employment

Wallace Damages has two components

March 23, 2020 Barry B. Fisher LL.B. Employee Relations, Human Resources, Notice, Damages and Settlements, Payroll, 0

Lawyers often seem to forget this important aspect of Wallace Damages as they tend to focus on the mental distress element of the case. This case shows that it may be much more profitable to focus how the manner of the dismissal adversely affected the plaintiff’s employability.

employment law, mental distress, unjust dismissal claim, Wallace damages

Doing zilch re mitigation reduces notice period from 14 to 12 months

February 24, 2020 Barry B. Fisher LL.B. Employment/Labour Standards, Human Resources, Notice, Damages and Settlements, Payroll, 0

In Seykors v Rural Municipality of Lake Lenore (2019 SKQB 225) Richmond J. reduced the notice period by 2 months where the Plaintiff’s mitigation efforts were minimal and he had not applied for even one job.

employment law, failed to mitigate his loss of employment, mitigation, notice period, termination

Release of previous employer has no effect on termination by subsequent employer

January 27, 2020 Barry B. Fisher LL.B. Employee Relations, Employment/Labour Standards, Human Resources, Notice, Damages and Settlements, Payroll, 0

In Manthadi v ASCO Manu (2019 ONSC 5572) Fowler Byrne J. had a situation where a 64 year old welder had over 36 years with Company A. Company A sold its business to the Defendant. Company A paid the plaintiff her 8 weeks under the ESA and she signed a release. The defendant immediately hired her on the closing date. She was terminated a few months later.

common law notice, continuous employment, employment agreement, employment law, termination

Handbook containing termination clause not binding

December 23, 2019 Barry B. Fisher LL.B. Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Recruiting and Hiring, 0

In Cheong v Grand Pacific Travel & Trade, (2016 BCSC 1321), Justice Warren held that an Employee Handbook containing an ESA only termination provision was unenforceable for the following reasons:

employee handbook, employee handbook vs employment contract, employment law, Termination clause, written employment contract

OCA denies $953,000 “commission” over notice period

November 25, 2019 Barry B. Fisher LL.B. Employee Relations, Employment/Labour Standards, Human Resources, Notice, Damages and Settlements, Payroll, Wages and Compensation, 0

In this case, as in other recent OCA cases, the Court is giving greater emphasis to the contractual language of the various bonus and commission plans as opposed to the principles of interpretation generally applied to employment contracts as set out in the seminal case of Wood v Fred Deeley.

bonus and commission, commission, compensation, constructive dismissal, contract of employment, employment law, good faith, notice period

Progressive discipline leads to termination for cause for poor performance

October 21, 2019 Barry B. Fisher LL.B. Employee Relations, Human Resources, Notice, Damages and Settlements, Payroll, Training and Development, 0

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.

employment law, just cause dismissal, poor performance, progressive discipline process, termination for poor performance, termination with cause

Excluding STD and LTD during notice period voids termination clause

September 23, 2019 Barry B. Fisher LL.B. Employee Relations, Employment/Labour Standards, Human Resources, Notice, Damages and Settlements, Payroll, 0

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:

employment law, long-term disability benefits, notice period, Severance pay, short–term disability benefits, Termination clause

OCA distinguishes employee rights v shareholder rights

August 26, 2019 Barry B. Fisher LL.B. Employee Relations, Employment/Labour Standards, Human Resources, Notice, Damages and Settlements, Payroll, 0

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.

employee shareholder, employee shares, employment law, shareholders’ agreement, termination

Do all arbitration clauses in employment agreements violate the ESA?

July 29, 2019 Barry B. Fisher LL.B. Employee Relations, Employment/Labour Standards, Human Resources, Notice, Damages and Settlements, Payroll, 0

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:

arbitration agreement, arbitration clause, Dismissal, employment agreement, employment contract

Failure to repeat termination clause after multiple promotions voids clause

June 28, 2019 Barry B. Fisher LL.B. Employee Relations, Employment/Labour Standards, Human Resources, Notice, Damages and Settlements, Payroll, 0

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.

Dismissal, employment contract, reasonable notice of termination, Termination clause, termination notice

Laying of criminal charges after dismissal does not delay limitations period

May 27, 2019 Barry B. Fisher LL.B. Employee Relations, Human Resources, Notice, Damages and Settlements, Payroll, 0

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

criminal charges, employment law, limitation period for wrongful dismissal, wrongful dismissal

Mutual release set aside due to fraudulent misrepresentation

April 29, 2019 Barry B. Fisher LL.B. Employee Relations, Human Resources, Notice, Damages and Settlements, Payroll, 0

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.

Dismissal, fraudulent misrepresentation, mutual release, wrongful dismissal

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

March 25, 2019 Barry B. Fisher LL.B. Employee Relations, Human Resources, Notice, Damages and Settlements, Payroll

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.

award of costs, constructive dismissal, employment law