common law notice

Slate not wiped clean by release in context of share sale

January 3, 2019 Sean Bawden Employee Relations, Employment/Labour Standards, Human Resources, Notice, Damages and Settlements, Payroll, 0

Can an employee extinguish his statutory right to severance pay by way of a full and final release signed in the context of a share sale?

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Employer unsuccessful in voiding unfavourable termination clause

May 12, 2017 Vey Willetts LLP Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Pensions and Benefits, Source Deductions and Reporting, Wages and Compensation

A recent decision from the Ontario Court of Appeal dealt with the unusual situation of a defendant employer arguing that its own contractual termination provision was unenforceable and thus the plaintiff employee was entitled to common law reasonable notice. Employees frequently challenge the enforceability of a termination provision to seek common law notice, however, it is rare that an employer would do the same.

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Refusing a 50 km commute not a failure to mitigate

October 17, 2016 Simon Heath, BA, MIR, LLB, Heath Law Employment/Labour Standards, Human Resources, Notice, Damages and Settlements, Payroll, Union Relations

In wrongful dismissal litigation, one of the key issues is always the dismissed employee’s duty to mitigate. When an employee is terminated or constructively dismissed, he or she has a positive obligation to minimize his or her damages by seeking out comparable, alternate employment. Anything the employee earns in the common law notice period is subtracted from what the company owes. An issue that often arises is whether or not it was reasonable for an employee to refuse exploring a potential new job because of the length of the commute.

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Motion for summary judgement raises questions about efficiency of pre-trial resolution

June 9, 2016 Simon Heath, BA, MIR, LLB, Heath Law Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Wages and Compensation

Employment lawyers will advise you that a motion for summary judgement can be expensive to lose. Not only does the company have to pay the judgement, the company will have to pay the costs of its own counsel and part of the costs of the employee’s counsel. Therefore, there is pressure on the company to offer a suitable severance package to negotiate a settlement rather than leave it to a court to decide with the cost consequences that follow.

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Ontario divisional court addresses enforceability of termination clause in federal jurisdiction

November 20, 2015 Simon Heath, BA, MIR, LLB, Heath Law Employee Relations, Employment/Labour Standards, Human Resources, Notice, Damages and Settlements, Payroll, Wages and Compensation

In the past three years there have been a number of cases arising from the Ontario courts considering whether or not termination clauses which purport to rebut the implied presumption of common law notice and limit an employee’s entitlements upon termination are enforceable. The enforceability of such clauses can have significant consequences on the quantum of an individual’s damages because an employee’s common law entitlements typically exceed his/her minimum entitlements under the applicable minimum standards legislation. The Ontario Division Court recently considered the enforceability of a termination clause in the federal sector in Luney v. Day Ross Inc., 2015 ONSC 1440.

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Court finds extraordinary circumstances justify 30 months’ notice

October 20, 2015 Alison J. Bird Employee Relations, Employment/Labour Standards, Human Resources, Notice, Damages and Settlements, Payroll, Wages and Compensation

The dismissal of a long-term employee who is entitled to common law reasonable notice can result in significant liability for an employer. As the determination of the appropriate notice period is contextual, it can be difficult for an employer to accurately assess their potential liability.

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Avoiding liability pitfalls when dismissing short service employees

March 16, 2015 Vey Willetts LLP Employee Relations, Employment/Labour Standards, Health and Safety, HR Policies and Procedures, Human Resources, Human Rights, Notice, Damages and Settlements, Payroll, Pensions and Benefits, Wages and Compensation

All too often short service employees are overlooked in terms of an employer’s potential liability. After all, such workers can often be dismissed with minimal severance and without great fear of litigation. However…

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Beware of the one month per year of service “rule”, part 3

January 12, 2015 Alison J. Bird Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Union Relations, Wages and Compensation

I’ve written a number of times regarding cases that significantly depart from the so-called one month per year of service rule. Yet another case has illustrated the risk an employer runs in assuming their liability will be capped at one month per year of service.

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Three popular articles this week on HRinfodesk

December 11, 2014 Yosie Saint-Cyr, LL.B. Managing Editor Employee Relations, Employment/Labour Standards, Health and Safety, HR Policies and Procedures, Human Resources, Human Rights, Notice, Damages and Settlements, Payroll, Source Deductions and Reporting, Union Relations, Wages and Compensation

Three popular articles this week on HRinfodesk deal with the 2015 TD1 Ontario Personal Tax Credits Return; a case dealing with a physical altercation between employees; and when an ESA decision just isn’t enough.

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Punitive damages: Court of Appeal of Quebec reduces damages payable by an employer following a constructive dismissal

September 24, 2014 Occasional Contributors Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Human Rights, Notice, Damages and Settlements, Payroll, Pensions and Benefits, Wages and Compensation

On July 7, 2014, the majority of the Quebec Court of Appeal allowed an appeal from a judgment of the Superior Court that had ordered the employer to pay an amount of $1,086,767 due to a constructive dismissal, to reduce the amount of the damages awarded to $709,488.

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Beyond bardal: The presence of a non-competition clause as a reasonable notice factor

September 8, 2014 Alison J. Bird Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Recruiting and Hiring, Wages and Compensation

While many employers may be aware of the difficulties in enforcing non-competition clauses, they may not be aware of another risk associated with such clauses: their potential to increase the reasonable notice period.

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Three popular articles this week on HRinfodesk

June 26, 2014 Yosie Saint-Cyr, LL.B. Managing Editor Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Wages and Compensation

Three popular articles this week on HRinfodesk deal with reasonable notice of termination and the definition of salary or wages under the Income Tax Act.

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Beware of the one month per year of service rule: Part 2

May 12, 2014 Alison J. Bird Employee Relations, Employment/Labour Standards, Human Resources, Notice, Damages and Settlements, Payroll, Wages and Compensation

Last October, I wrote a post cautioning employers to beware of using the one month per year of service “rule of thumb”. A recent case from the Ontario Superior Court of Justice has again affirmed that, depending on the circumstances, courts are willing to award short service employees significantly more than one month per year of service.

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Contracting out of the Ontario Employment Standards Act

April 16, 2014 Earl Altman Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Wages and Compensation

The Employment Standards Act in Ontario is legislation designed to protect the rights of all workers in the province. Under section 3, the Act specifies that it applied to any employee in the Province of Ontario, or any employee who is performing work outside of Ontario that is “…continuance of work performed in Ontario.” The Act contains numerous protections for Ontario employees, such as limiting the maximum hours of work in a week, providing an entitlement to overtime pay, and creating entitlements such as parental leave, vacation and personal leave. The Act also provides for the employee’s rights in the event of a termination of employment. Many employers have perceived these entitlements as onerous in some circumstances. In order to attempt to avoid such payments, or other obligations under the Act, employers have sought to have employees sign contracts containing provisions which purport to surrender the employee’s rights under the Act. This is generally referred to as “contracting out”.

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New human rights decision provides guidance on frustration of contract

March 4, 2014 Employer Advisor, McCarthy Tétrault LLP Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Human Rights, Notice, Damages and Settlements, Payroll, Union Relations

We are often asked by our clients how long one of their employees has to be off work before it can justifiably take the position that an employment relationship has been “frustrated”. Employers often wonder this because when an employment relationship is frustrated, the employee is not entitled to common law notice or pay in lieu of such notice [1]. So, how long does it take? 1 year? 18 months? 2 years? 5 years?

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