2017 has been an incredibly busy year for Ontario employment law practitioners. In addition to the changes to the common law brought about by the decisions considered in this post, one would be foolish to omit any reference to the sweeping changes recently ushered in by the Wynne government as a result of the Fair Workplaces, Better Jobs Act, 2017, S.O. 2017 C.22 (“Bill 148”). Readers wishing more information about those legislative changes should consider this post: Bill 148 and Changes to the Employment Standards Act, 2000.
The point of this blog post, however, is to consider what I consider to be the “Top Five Cases of Importance to Ontario Employment Law”. I have produced such a list since 2012:
And so, with another year coming to a close, it is once again time for this Ontario employment lawyer to provide his picks for the (trumpets, please)… Top Five Cases of Importance to Ontario Employment Law.
What it takes to make it to the top five
In 2014, I established some criteria for crafting a top five list. Those criteria are as follows:
First, the decision must have a considerable impact on Ontario law. Accordingly, even if the case is from the Supreme Court of Canada, if the decision primarily concerns the interpretation of extra-provincial legislation, then it does not make the list. (Mercifully this means I don’t need to consider the Supreme Court’s very recent decision in British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62.)
Second, the decision must have a considerable impact on labour or employment law. As of this year, I am removing the word “labour.” Employment law decisions only.
Finally, the decision should either do something new, or affirm first principles in a dramatic way.
Those that didn’t make the cut
As mentioned at the outset of this post, 2017 has been an incredibly busy year. Surprisingly, December has been a very active month.
On December 7, 2017, Justice Michael G. Emery released his reasons for decision in the blockbuster case of Galea v. Wal-Mart Canada Corp., 2017 ONSC 245.
And it was just yesterday (December 15, 2017), on which the Supreme Court delivered its decision in British Columbia Human Rights Tribunal v. Schrenk.
I omit the Wal-Mart decision for two reasons: (1) it’s a trial-level decision that is almost certain to be appealed; and (2) I have some issues with Justice Emery’s decision, about which I will comment at a later time.
I omit the Schrenk decision because: (a) I haven’t fully read it yet, and (b) it appears to primarily consider the BC Human Rights Code. Factor (a) weighs much more heavily than factor (b).
And now, the list.
Number five – Krishnamoorthy v. Olympus Canada Inc., 2017 ONCA 873
Why It Makes the List: Krishnamoorthy is not the most earth-shattering decision from an employment law perspective; at least, not in my opinion. However, it really caught the attention of my business-law colleagues when it was released.
The decision highlights the ability of purchasers in an asset transaction to make fundamental changes to the terms of the vendor’s employees’ contracts of employment as a condition of continued employment. While such an option is infrequently employed, we may see more of it as a result of the Krishnamoorthy decision.
Number four – Brake v. PJ-M2R Restaurant Inc., 2017 ONCA 402
Why It Makes the List: Brake is new law. Essentially, the case stands for the proposition that not all mitigatory earnings need to be deducted from an award of common law pay in lieu of notice. While I appreciate that the previous sentence contains a lot of legal jargon, this is good news for employees.
The duty to mitigate one’s damages following termination is a complicated legal principle. It provides that a defendant cannot be made to pay damages which a plaintiff had the reasonable opportunity to avoid, which explanation still probably doesn’t help. This post tries to fully explain the issue: Explaining One’s Duty to Mitigate.
What Brake says is, sometimes earnings appreciated during the notice period need not be deducted from the damages award if such earnings are modest and are essentially earned in desperation. The extent to which Brake will be applied by the trial courts is still yet to be fully seen, but it remains an important precedent-setting case.
Number Three – Bottiglia v Ottawa Catholic School Board, 2017 ONSC 2517
Why It Makes the List: Bottiglia is one of the most important Human Rights decisions of the year. In short, the decision of the Divisional Court affirmed a decision of the Human Rights Tribunal of Ontario, which provided that, in certain circumstances, an employer would be entitled to insist that an employee attend an independent medical examination as part of the accommodation process. Leave to appeal the decision to the Court of Appeal for Ontario was subsequently denied.
I have written extensively about the Bottiglia decision. In addition to my post about the Divisional Court’s decision, I authored a further post when leave to appeal was denied; see: Ontario’s Top Court Confirms that Employees May Sometimes be Required to Attend Medical Examination by Doctor of Employer’s Choosing. Readers wanting more information about the actual decision, can find more information in my earlier posts.
Number two – Amalgamated Transit Union, Local 113 v Toronto Transit Commission, 2017 ONSC 2078
Why It Makes the List: Random drug testing is going to be a hot topic in 2018. With the impending legalization of cannabis on the smoke-filled horizon, many employers are considering their own policies about drug testing.
While many employment lawyers are likely to point to the Supreme Court of Canada’s decision in Stewart v. Elk Valley Coal Corp., 2017 SCC 30 (CanLII), about which I blogged in my post Supreme Court Upholds Termination for Violation of Anti-Drug Policy as a possible “Top Ten” contender, for my money, TTC is the more important case. Elk Valley was about the violation of an established policy and whether the same could be used to uphold termination; TTC is about the policy itself and that is what employers and employees want to know about. Moreover, Elk Valley comes out of Alberta, so it does not meet my criteria.
Number one – Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158
Why It Makes the List: Because this is the biggest thing to happen to Ontario employment law since Machtinger.
On February 23rd, I tweeted, “I think we have our number one case of importance to Ontario Employment Law for 2017.”
— Sean Bawden (@SeanBawden) February 23, 2017
In response fellow Ottawa employment lawyer Erin Durant tweeted:
Sean, it is only February! I will remember this tweet when you write your annual “Top 5” cases. https://t.co/NtIdMuBtw0
— Erin Durant (@ErinDurant42) February 23, 2017
Well, here we are at the end of the year, and Erin, it’s still number one.
Wood’s importance to the Ontario employment law landscape was underlined in a further decision of Ontario’s top court, North v. Metaswitch Networks Corporation, 2017 ONCA 790 (CanLII), about which I blogged in my post Scissors Beat Paper; Statutes Beat Scissors: Severability Clauses Can’t Fix Illegal Termination Provisions.
The reason there is so much hype around the Wood decision is that it finally brings to a close much of the debate surrounding what it takes for a termination provision to be legally dispositive of one’s notice entitlement. Given that a lot of what employment law litigators do is review employment contracts and opine on notice periods, the importance of Wood cannot be understated.
Looking back to last year’s list
In my “looking ahead” section of last year’s post, I wrote the following:
In the employment world I return to what I said a year ago about an increase in cause cases for off-duty conduct. People in Ontario are going to get fired for engaging in vitriolic rhetoric online. Some of them will challenge that decision. How we choose to respond will set the tone as we move forward.
Yikes! While I was correct in people getting terminated for off-duty conduct, I somewhat missed the mark as to reason. While engaging in vitriolic rhetoric will remain a hot topic as a reason for termination, one cannot overlook the impact of the #MeToo movement currently shaping the employment landscape. More and more people are losing their jobs for what they say and do both within and outside the workplace.
When, in last year’s post, I asked for “accountability and leadership” I could hardly have predicted either the extent of accountability or the source of the leadership. While celebrities are the ones currently filling the headlines and gracing the covers of magazines, the reality is that a lot of people, whose names we’ll never know, are shaping the way workplaces will operate in the future.
Looking ahead to 2018
Three things are going to dominate 2018: the legalization of cannabis; the continuation of the #MeToo Movement; and the US mid-term elections, which will serve as an ersatz referendum on both.
On the Ontario legal landscape, expect a lot of discussion around the legalization of cannabis. Cases such as TTC are going to be common among large employers, and discussions about the decisions in such cases are going to be common among smaller employers.
Someone in Ontario, whose name we all know, is going to lose his job over sexual harassment allegations – and its going to make headlines.
And behind the scenes, a lot of us are going to be spending a lot of time working our way through the legislative changes introduced via Bill 148.
May your 2018 be free from Labour Pains!
By Sean Bawden, Kelly Santini LLP
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