Author Archive - Devry Smith Frank LLP

Devry Smith Frank LLP (DSF) is the largest full service law firm in Toronto outside of the downtown core. They offer a broad range of legal services to individual, business and corporate clients in most areas of corporate and personal law. Their firm’s employment law group covers a broad spectrum of HR law, including employment and labour law, occupational health & safety, human rights, workers’ compensation and much more. Lawyers at Devry Smith Frank LLP lead by Marty Rabinovitch B.A.H., LL.B. will be covering issues surrounding employment and labour law and human rights on First Reference Talks. They also provide training, seminars and conferences on the above topics. Read more .

Employers: A shining example of how not to treat your employees

August 19, 2016 Devry Smith Frank LLP Employee Relations, Employment/Labour Standards, Human Resources, Human Rights, Notice, Damages and Settlements, Payroll, Penalties and Fines

Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly. A prime example of employer misconduct for failing to accommodate and providing reasonable notice is the case of Strudwick v Applied Consumer & Clinical Evaluations Inc. This case highlights a number of important lessons for employers.

deaf employee, Employment Insurance, employment law, hostile work environment, human rights code, human rights violation, infliction of mental distress, punitive damages, reasonable notice, record of employment, Strudwick v Applied Consumer & Clinical Evaluations Inc., termination, workplace accommodation, wrongful dismissal damages

Sending a signal to harassment perpetrators and employers alike

July 28, 2016 Devry Smith Frank LLP Employee Relations, Employment/Labour Standards, Health and Safety, HR Policies and Procedures, Human Resources, Human Rights, Penalties and Fines, Recruiting and Hiring, Training and Development, Union Relations

Ontario courts are rightly increasing their protection of employees from harassment and assault in the workplace. This case serves as a strong deterrent to employers and employees who do not comprehend or acknowledge the severe implications of their actions.

aggravated damages, assault in the workplace, employee protection, employment law, Employment termination, Family Law Act, general damages, human rights code, Occupiers’ Liability Act, punitive damages, racial harassment, sexual assault, sexual harassment, workplace harassment, wrongful dismissal

Human Rights Tribunal finds miscarriage constitutes disability

April 27, 2016 Devry Smith Frank LLP Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Human Rights, Notice, Damages and Settlements, Payroll, Pensions and Benefits, Union Relations, Wages and Compensation

A recent interim decision of the Ontario Human Rights Tribunal addressed whether a miscarriage could constitute a disability for the purposes of human rights legislation.

Disability, duty to accommodate, emotional distress, employment law, human rights code, human rights legislation, human rights protections, medical condition, miscarriage, miscarriage was a disability, Ontario Human Rights Tribunal, pregnancy and maternity, sex, slip and fall accident

Giving your ‘two weeks’: Jesso and what constitutes reasonable notice for resignation

March 24, 2016 Devry Smith Frank LLP Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Wages and Compensation

The question of ‘what constitutes reasonable notice’ is one of the most frequently litigated issues in employment law. There are numerous decisions from every level of court in Ontario which discuss the obligations of an employer to provide a reasonable period of notice to dismissed employees. However, it is a relatively rare occurrence that the Court deals with the inverse – the reasonable period of notice due to an employer by an employee who resigns. While most of us are familiar with the old adage of giving your ‘two weeks’ notice, the recent decision in Gagnon may call into question the sufficiency of such short notice.

damages, departing employee, duty of good faith, Employee resignation, employment contract, employment law, reasonable notice for resignation, verbal agreement

Court finds that employer telling employee to “get out” constitutes dismissal

March 3, 2016 Devry Smith Frank LLP Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Union Relations, Wages and Compensation

Termination of an employment relationship can come in many forms; some apparent and some not so. In the latter case, it often falls to a court to determine whether an employer’s actions constitute dismissal or constructive dismissal. This was the issue faced by Justice Lack in the recent decision of Sweeting v Mok.

aggravated damages, constructive dismissal, Dismissal, employment law, medical evidence, period of reasonable notice, punitive damages, termination, wrongful dismissal claim

Legislative changes in Ontario to protect foreign workers

January 22, 2016 Devry Smith Frank LLP Corporate Immigration, Employee Relations, Employment/Labour Standards, Human Resources, Payroll, Recruiting and Hiring, Union Relations, Wages and Compensation

As of November 20, 2015, changes to Ontario’s employment laws came into effect with the aim of better protecting precarious and foreign workers.

employment law, Employment Protection for Foreign Nationals Act, employment standards act, Foreign workers, Stronger Workplaces for a Stronger Economy Act

Harsh or “draconian” terms in employment contract not enough for unenforceability

December 11, 2015 Devry Smith Frank LLP Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Human Rights, Notice, Damages and Settlements, Payroll, Pensions and Benefits, Recruiting and Hiring, Wages and Compensation

In Kielb v. National Money Mart Company, a dismissed employee sought to have the termination and limitation clauses in his employment agreement found unenforceable. His goal was to recover his bonus for the year during which he was terminated, as well as his contractual pay in lieu of notice, which he waived, in accordance with his employment contract, when he refused to provide Money Mart with a full and final release after his termination.

employment contract, employment law, full and final release, pay in lieu of notice, recover his bonus for the year, resignation, termination and limitation clauses, termination provision

Ban on blue jeans and shorts in the workplace: Unreasonable in the circumstances

November 13, 2015 Devry Smith Frank LLP Employee Relations, HR Policies and Procedures, Human Resources, Union Relations

In Canadian Union of Public Employees, Local 1716 v. British Columbia Assessment Authority, the union filed a policy grievance after a new management policy was put in place in the Kelowna office of the British Columbia Assessment Authority. The new policy banned the wearing of blue jeans or shorts in the office by all employees on days that they were not in the field in settings where jeans were appropriate, for example on farm locations.

collective agreement, discipline, dress code, employee dress and appearance, employer’s legitimate business interest, employment law, management policy, policy grievance

Employee whose contract is frustrated by terminal cancer entitled to termination and severance pay

October 26, 2015 Devry Smith Frank LLP Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll

It is clear from the relevant statutory and regulatory provisions under the Employment Standards Act, 2000 that an employee whose contract is frustrated on account of illness or injury is entitled to both termination pay and severance pay.

2000, contract is frustrated on account of illness or injury, critical illness, employment contract, employment law, employment standards act, Frustration in employment law, frustration of contract, HR Law, Long-term disability, Return to work, Severance pay, Terminating employment based on frustration of contract, termination pay

Defendants’ apologies found not admissible in civil proceedings or pleadings

October 19, 2015 Devry Smith Frank LLP Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll

The Apology Act is lesser-known piece of Ontario legislation which came into force in 2009. The Act allows defendants in a civil proceeding to communicate sorrow or regret to the other party, without their apology being used against them later in court.

administrative proceeding, admission of fault, admission of wrongdoing, Apology Act, arbitration, civil matters, civil proceeding, claims of wrongful dismissal, Employee dismissal, employment law, evidence of fault or liability, Insurance coverage, legal liability, Provincial Offences Act

Lawyer receives $1,000 for four minute wait constituting human rights breach

October 9, 2015 Devry Smith Frank LLP Accessibility Standards, Employee Relations, HR Policies and Procedures, Human Resources, Human Rights, Notice, Damages and Settlements, Payroll, Standard for Customer Service, Uncategorized

The Human Rights Tribunal of Ontario recently awarded an Ontario lawyer, $1,000 for injury to dignity, feelings and self-respect, as a result of his being stopped from entering the Riocan Empress Walk mall with his service dog.

accessibility, Accessibility for Ontarians with Disabilities Act, AODA, employment law, human rights breach, Human Rights Tribunal of Ontario, physical distress, Riocan Empress Walk mall, service dog, services animal

Dismissal without just cause: not necessarily “unjust dismissal” under the Canada Labour Code

September 25, 2015 Devry Smith Frank LLP Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Union Relations, Wages and Compensation

In Wilson v. Atomic Energy of Canada Limited, the Federal Court of Appeal has clarified the impact of the Canada Labour Code on an employer’s ability to dismiss employees without cause.

Canada labour Code, common law, Dismissal without just cause, employment law, legal context, pay in lieu of notice, Severance pay, termination, unjust dismissal

Differentiated discipline in the workplace

June 9, 2015 Devry Smith Frank LLP Employee Relations, Health and Safety, HR Policies and Procedures, Human Resources, Union Relations

In a recent decision in an Ontario labour arbitration, at issue was a fight that broke out amongst a few employees. The employer terminated all of those employees that were involved in the fight citing that they had violated the company policy by participating in such aggressive behaviour.

Blanket punishment, company policy, Corrective measures, Disciplinary measures, discipline, employment law, Labour Law, let the punishment fit the crime, Ontario labour arbitration, workplace policies, workplace violence

Breaching confidentiality provisions of a settlement agreement can cost you!

February 18, 2015 Devry Smith Frank LLP Employee Relations, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Union Relations, Wages and Compensation

To discourage the disclosure of details of settlements to third parties, confidentiality provisions are often included in settlement agreements between an employer and a former employee.

confidentiality clause, confidentiality provision, disclosing the terms of the settlement, employee breached the confidentiality provision of a settlement agreement, employment law, negotiation process, restrictive covenant, settlement agreements

Doctor’s note not always a ticket to a successful human rights claim

January 21, 2015 Devry Smith Frank LLP Employee Relations, HR Policies and Procedures, Human Resources, Human Rights, Union Relations

When I was in high school and university, it was not uncommon for a few of my classmates to fall ill during exams or just prior to a major test. When explaining to the teacher the next day why they were not present to write the test, one of the more common responses from the teacher would be, “Bring a doctor’s note.”

accommodation process, discrimination based on disability, doctor's note, duty to accommodate, employee leave of absence, employment law, health difficulties, human rights claim, Human Rights Tribunal of Ontario, illness, medical information, medical leave, undue hardship