Category: Employment Law

In a recent employment case, an Ontario court addressed the issue of whether employees can be charged a training fee for training they receive in the course of their employment.

Help Agency Provides Training to All Employees

This case involved a “temporary help agency” (the “agency”) that employs persons for the purpose of assigning them to perform work on a temporary basis for its clients. It describes itself as “a training institution and consulting services firm”. The agency’s employees were generally hired to perform work relating to information technology services. It offers each employee more than 450 hours of training.

As part of its contractual requirements, the agency requires each employee to sign a “placement employment agreement”. Each employee had to agree to work for the agency for a period of two years. In addition, the agreement contained a provision that stated, in part:

“4.4   To the greatest extent permitted at law, immediately upon termination of employment under the provisions as specified in this Agreement or otherwise, the Employee shall pay to the Company as liquidated damages and not as a penalty the amount of the full cost of the Training Fee, regardless of the amount of time completed within the Commitment period, to compensate the Company for the cost of training and the additional damages and lost revenue it will sustain due to the Employee’s failure to complete the Commitment period.” 

In essence, if an employee left the agency before the two years were up, they had to re-pay the cost of their training.

The agency valued the training at “more than $30,000” (calculated at a rate of $75.00 per hour of training).

Former Employees Challenge Agency’s Training Fee

Four former employees filed claims alleging that the agency had asked them to pay training “fees” in violation of s. 74.8(1) the Employment Standards Act (the “ESA”).

Section 74.8(1) reads, in part: 

Prohibitions

74.8 (1) A temporary help agency is prohibited from doing any of the following:

1.  Charging a fee to an assignment employee in connection with him or her becoming an assignment employee of the agency.

2.  Charging a fee to an assignment employee in connection with the agency assigning or attempting to assign him or her to perform work on a temporary basis for clients or potential clients of the agency.

3.  Charging a fee to an assignment employee of the agency in connection with assisting or instructing him or her on preparing resumes or preparing for job interviews. […]

The two Employment Standards Officers (“ESOs”) originally assigned to the employees’ cases refused to issue compliance orders.

The employees therefore made application for review of the ESOs’ refusals to the Labour Relations Board (the “Board”). 

Parties Make Their Arguments

The employees submitted that the agency’s demand that they pay $30,000 for ending their employment before the expiry of their two-year commitment period violated s. 74.8(1) of the ESA. 

In response, the agency claimed that it had not contravened s. 74.8(1) of the ESA because it did not charge a “fee”. It insisted that the monies it sought from the former employees were in respect of “damages” it had suffered as a result of the employees breaching their contracts of employment, and related to the costs of training incurred by the agency and other damages arising out of the breaches. It further asserted without those damages, the agency would not have the opportunity to recover its training costs when employees breached their commitment.

Board Rules That Agency Cannot Demand Training Fee

After reviewing the relevant legal principles and case law, the court ultimately found that the agency was in contravention of the ESA by charging training fees to employees who left their employment prior to the two-year commitment. It concluded:

“[The agency] is charging a fee to assignment employees in connection with them becoming assignment employees, and charging a fee to assignment employees in connection with them being assigned to perform work for clients of [the agency]. It does not matter that the fee is “not sought or payable” upon the occurrence of these events. The Agreements have the effect of charging the fee in connection with those events. 

The Board therefore finds that the provisions of [the agency]’s Trainee Employment Agreement and Placement Employment Agreement that establish the fee and provide for its repayment violate paragraphs 1 and 2 of subsection 74.8(1) of the ESA. Those provisions are void pursuant to subsection 74.9 of the Act.”

In the result, the Board therefore ordered the agency to remove from its employment agreements the provisions establishing and compelling payment of the prohibited fee.

Get Help

Many employees are not aware of their rights in the workplace and the protections that are available to them under the law. They are worried about the consequences of standing up for themselves or fighting for what they deserve. However, it is important to know that if you are experiencing an ongoing problem at work, if you have been bullied, discriminated against, or if you have been terminated, there is someone on your side.

At Bader Law, our Mississauga employment lawyers have considerable experience representing non-unionized employees in workplace disputes. We know that such disputes can be very stressful and can get emotional quickly. We seek to simplify the law so that you understand your options and make informed decisions. We leverage our extensive experience advising employers to provide insightful guidance to employees who are facing challenging circumstances at work. We work hard to protect you.

At Bader Law, our knowledgeable employment lawyers can counsel you on your rights, advise you on your options, and help you create a plan for moving forward. We represent employees in Mississauga and areas west of Toronto. Contact us online or at (289) 652-9092 to learn how we can help.

In a recent employment case, an Ontario court highlighted the different employment standards that apply to employers with payrolls over $2.5 million and ruled that an employer’s international payroll must be used in the associated calculation.

Payroll Considerations under the Employment Standards Act

The Employment Standards Act (“ESA”) sets out a different set of rules relating to employers’ severance obligations in s. 64, which reads in part:

“Entitlement to severance pay

64 (1) An employer who severs an employment relationship with an employee shall pay severance pay to the employee if the employee was employed by the employer for five years or more and,

(a) the severance occurred because of a permanent discontinuance of all or part of the employer’s business at an establishment and the employee is one of 50 or more employees who have their employment relationship severed within a six-month period as a result; or

(b) the employer has a payroll of $2.5 million or more.  

Payroll

(2) For the purposes of subsection (1), an employer shall be considered to have a payroll of $2.5 million or more if,

(a) the total wages earned by all of the employer’s employees in the four weeks that ended with the last day of the last pay period completed prior to the severance of an employee’s employment, when multiplied by 13, was $2.5 million or more; or

(b) the total wages earned by all of the employer’s employees in the last or second-last fiscal year of the employer prior to the severance of an employee’s employment was $2.5 million or more.” 

This means that an employer who severs an employment relationship with an employee must pay severance pay to the employee if the employee was employed by the employer for five years or more and the employer has a payroll of $2.5 million or more.

Terminated Employee Denied Severance by Employment Standards Officer

In the case under review, the employee was terminated in 2015 and had worked for the employer for more than five years. The employer is a wholly owned subsidiary of a company headquartered in Germany (the “parent company”).

Following his termination, the employee filed a complaint with the Ministry of Labour alleging that he was entitled to termination, vacation, and severance pay. In 2017, an employment standards officer (“ESO”) determined that the employee was entitled to termination and vacation pay, but not to severance pay. The ESO concluded that the employee did not meet the requirements for severance pay set out under s. 64 of the ESA because the employer did not have a payroll of $2.5 million or more. In reaching this conclusion, the ESO found that only salaries under Ontario jurisdiction factored into the calculation of the payroll threshold. 

Employee Challenges Decision to Ontario Labour Relations Board

Subsequently, the employee applied to have the decision reviewed by the Ontario Labour Relations Board (the “Board”), challenging the ESO’s determination as it related to the employer’s payroll. 

The employee claimed that he was entitled to severance under s. 64 because it was the payroll of the parent company that mattered, which exceeded the $2.5 million threshold, and not the employer’s payroll in Ontario. He cited previous case law which held that an employer’s national payroll must be considered and submitted that the same reasoning applied to a global payroll. Finally, he contended nothing in s. 64 placed a geographical limit on the payroll consideration and that the section did not specify an “Ontario payroll”.

In response, the employer conceded that s. 64 does not explicitly reference payroll “in Ontario”, but that the geographical limit was implicit under s. 3(1) of the ESA, which specifies that the Act applies to employers and employees in Ontario. 

Board Refuses to Factor Employer’s International Payroll

In 2018, the Board rejected the employee’s claim, finding that the employer’s parent company’s international payroll was excluded from the s. 64 calculation. In its reasons, the Board noted that s. 64 was generally interpreted with regard to the limits imposed by s. 3(1), stating:

“In this case, the [employee] was employed in Ontario by a company operating in Ontario. In my view, having regard to the Act as a whole, while an employer may have operations and payrolls outside Ontario, it is only Ontario-based employment and operations that is captured by section 3 and therefore section 64 of the Act. The absence of the words “in Ontario” in section 64 does not mean that the provisions are unrestricted. The words “in Ontario” are found in section 3 and their effect is to apply to employers whose employees perform work in Ontario (or whose work is a continuation of work performed in Ontario). It does not make sense to presume that provincial legislation could affect employment or operations anywhere but in Ontario.”

Employee Seeks Judicial Review of Board’s Decision on International Payroll

The employee applied for judicial review of the Board’s decision with the Ontario Superior Court of Justice. The sole issue was whether the calculation of payroll under s. 64 of the ESA was restricted to Ontario employment, or whether employment outside of Ontario should be included.

Court Rules That International Payroll Must Be Considered Under s. 64 of the ESA

The court reviewed the Board’s decision on the standard of reasonableness. It found several errors in the board’s reasoning, stating in part:

“[The Board] treats the inclusion of the words “in Ontario” in s. 3 in relation to work and their exclusion in s. 64 in reference to payroll as meaningless. In addition, the Board’s view that it does not make sense to presume that provincial legislation would define payroll to include wages outside Ontario is itself illogical. On the contrary, it makes perfect sense for the legislature to limit the right to severance pay to employees who perform work in Ontario, while exempting small employers from paying severance on the basis of their overall payroll, in and outside Ontario. It is hard to imagine how Ontario could, or why Ontario would, legislate entitlement to severance with respect to work performed outside Ontario; but it is easy to understand why Ontario would base the requirement to pay severance on the size of the payroll of an employer both within and outside the province.

Furthermore, the suggestion in the Board’s reasons that Ontario has no authority to legislate concerning payrolls outside Ontario is simply wrong. There is no jurisdictional impediment to Ontario legislating that an assessment of an employer’s ability to pay severance should take into account the size of the employer outside Ontario.”

As a result, the court allowed the employee’s application and set aside the Board’s decision, directing that the calculation of payroll for the purpose of s. 64 of the ESA is not limited to either Ontario payroll or Canadian payroll.

Get Help

If you have been terminated, you may be tempted to simply sign the severance package you have been provided with so that you can sever ties with your former employer and begin to move forward. While this may seem enticing, it is not the best course of action. Most employees do not realize how much they are entitled to upon termination and, without obtaining knowledgeable advice, often end up accepting significantly less than they should receive.

If you have been fired, one of the first phone calls you should make is to a wrongful dismissal lawyer. The highly experienced Mississauga employment lawyers at Bader Law have been advising employees on termination, severance packages, and wrongful dismissal for several years. We can review any termination letter or package you have been provided with, negotiate with your employer on your behalf, and file a wrongful dismissal claim where necessary. With our lawyers on your side, you can ensure you are getting the maximum amount that you are entitled to.

Contact a knowledgeable employment lawyer as soon as possible. At Bader Law, our lawyers will counsel you on your rights, advise you on your options, help you create a plan for moving forward, and secure fair compensation for the wrongful termination of your employment. Contact us online or at (289) 652-9092 to learn how we can help.

In a recent Ontario case, the Court of Appeal addressed and clarified the “common employer” doctrine as it applied to an employment case.

The case also addressed the liability of corporate directors, but we are focussing on the common employer doctrine in this discussion.

Employer Corporate Structure

The appeal involved three separate entities. 

Corporation 1, a medical company, stood at the top of a corporate group. It was the majority shareholder of Corporation 2, which itself had a wholly owned subsidiary, the Subsidiary.

Dismissed Employee Seeks Compensation from Corporations

The employee had worked as CEO of Corporation 2 and the subsidiary. 

His written employment agreement was with the Subsidiary, but he reported to, and his performance goals were set by, the board of directors of Corporation 2.

When his employment ended, the employee was owed substantial sums for salary and other entitlements. He brought an action seeking recovery of all outstanding amounts from Corporation 2 and the subsidiary as well Corporation 1. 

While the employee did not have a formal position or written agreement with Corporation 1, he alleged that it, along with Corporation 2 and the subsidiary, were his common employers. 

Lower Court Finds in Favour of Employee

The employee first obtained default judgment against Corporation 2 and the Subsidiary. He then moved for summary judgment against Corporation 1, which was granted.

Ultimately, the motion judge concluded that Corporation 1 was a common employer of the employee. 

Corporation 1 appealed the judgment against it, arguing that the motion judge’s finding that it was liable to the employee as a common employer was flawed. It argued that the motion judge misconstrued the common employer doctrine, effectively finding it liable only because of its corporate affiliation to the employee’s contractual employer.

What is the Common Employer Doctrine? 

The Ontario Court of Appeal explained the common employer doctrine as follows:

“One avenue exists under the doctrine of common employer liability. This common law doctrine recognizes that an employee may simultaneously have more than one employer. If an employer is a member of an interrelated corporate group, one or more other corporations in the group may also have liability for the employment obligations. However, and importantly, they will only have liability if, on the evidence assessed objectively, there was an intention to create an employer/employee relationship between the employee and those related corporations….

The common employer doctrine does not involve piercing the corporate veil or ignoring the separate legal personality of each corporation. It imposes liability on companies within a corporate group only if, and to the extent that, each can be said to have entered into a contract of employment with the employee…

Thus, consistent with the doctrine of corporate separateness, a corporation is not held to be a common employer simply because it owned, controlled, or was affiliated with another corporation that had a direct employment relationship with the employee. Rather, a corporation related to the nominal employer will be found to be a common employer only where it is shown, on the evidence, that there was an intention to create an employer/employee relationship between the individual and the related corporation.”

Court of Appeal Allows Appeal

At the outset, the court held that the motion judge had not applied the correct factors in her determination and had failed to ask the seminal question relevant to determining whether a common employer relationship existed. It stated that the most important factor in such a determination is whether there was an intention to create an employer/employee relationship between the individual and the related corporation.

After reviewing the evidence, the court held thatthere was insufficient evidence to support a finding that Corporation 1 intended to create an employer/employee relationship between itself and the employee. 

As a result, the court allowed the appeal by setting aside the summary judgment against Corporation 1, and substituted an order dismissing the motion for summary judgment against it.

Get Help

At Bader Law, we are proud of the relationships we build with the clients we help. Our goal is to demystify the law, provide clarity about what you can expect, and always be available to answer questions as the matter moves forward.

We seek to resolve disputes between employees and their employers quickly, efficiently, and without the need to resort to lengthy litigation. We will negotiate with your employer and attempt a resolution outside of court or another adjudicative body.

However, where needed, we do successfully represent clients in litigation at all levels of court and before various tribunals, including the Human Rights Tribunal of Ontario, the Canadian Human Rights Tribunal, and the Workplace Safety and Insurance Appeals Tribunal.

At Bader Law, our knowledgeable employment lawyers can counsel you on your rights, advise you on your options, and help you create a plan for moving forward. We represent employees in Mississauga and areas west of Toronto. Contact us online or at (289) 652-9092 to learn how we can help.

In a recent Ontario case, the court awarded an employee 26 months notice, finding that the employee had demonstrated the existence of exceptional circumstances.

It should be noted that in a 2019 Ontario Court of Appeal decision, the court had affirmed previous case law establishing that, while there is no “cap”, generally only exceptional circumstances support a base notice period in excess of 24 months.

Employee Terminated After 40 Years of Service

The employee began her employment with the employer in 1979 at the age of 18. She had not obtained a high school degree, having up to grade 11. 

She was promoted over time and, as of 2004, was a chief operator. It was her intention to work for the employer until retirement.

She was terminated in December 2018 at the age of 58 without cause. Despite her efforts, she had since been unable to secure alternative employment.

Court Awards 26 Months Reasonable Notice

The court began by noting the 2019 Ontario Court of Appeal decision in which it had held that exceptional circumstances are required in order to support a notice period that exceeds 24 months. 

The court concluded that when combining and applying all the factors to the employee’s unique situation, taken as a whole, exceptional circumstances existed in this case. The court set out these factors as follows:

• The employee had left high school to work for the employer and had spent her entire life dedicated to her job. The court observed: “She has known nothing else.”
• At the time of termination, the employee was 58 years old. The court opined: “She was in her twilight working years, closing in on the end of her career.”
• While the employee had worked and developed skills in the highly specialized field of fiber production operation, finding similar employment had not been easy, despite the employee’s diligent efforts to mitigate and attempt to gain computer skills. The court stated: “That said, I am not convinced that she will succeed in securing alternative employment, by no fault of her own.” The court further observed that her specialized job would make it very difficult to transfer her skills to a new employer.

Finally, the court concluded: 

“Given [the employee]’s age, limited education and skills set, the termination was equivalent to a forced retirement. She must compete with people that are much younger than her and that have a different set of skills that may be required such as advanced computer knowledge. She is not well equipped to effectively compete in today’s market or secure comparable employment.”

As such, the court concluded that the employee presented a unique situation and had demonstrated the existence of exceptional circumstances. The court therefore awarded the employee 26 months notice, which amounted to $138,962.

Get Help

If you have been terminated, you may be tempted to simply sign the severance package you have been provided with so that you can sever ties with your former employer and begin to move forward. While this may seem enticing, it is not the best course of action. Most employees do not realize how much they are entitled to upon termination and, without obtaining knowledgeable advice, often end up accepting significantly less than they should receive.

If you have been fired, one of the first phone calls you should make is to a wrongful dismissal lawyer. The highly experienced Mississauga employment lawyers at Bader Law have been advising employees on termination, severance packages, and wrongful dismissal for several years. We can review any termination letter or package you have been provided with, negotiate with your employer on your behalf, and file a wrongful dismissal claim where necessary. With our lawyers on your side, you can ensure you are getting the maximum amount that you are entitled to.

Contact a knowledgeable employment lawyer as soon as possible. At Bader Law, our lawyers will counsel you on your rights, advise you on your options, help you create a plan for moving forward, and secure fair compensation for the wrongful termination of your employment. Contact us online or at (289) 652-9092 to learn how we can help.

In a recent Ontario case, the owners of a company sought an injunction against a former employee after she accused them of racism in social media posts.

Employee Alleges Racism in Social Media Posts

The employee began working for the employer company on August 1, 2019. The employer and its two owners specialize in shoe and handbag restoration.

On June 11, 2020, and in the context of Black Lives Matter (“BLM”) protests in the United States and around the world, the owners decided to post a statement to the company’s website in support of BLM.

The employee expressed concern about the statement because it contained spelling errors and appeared “tone deaf”. She expressed her concerns to the owners and she offered to help re-write the statement.

According to the employee, the owners were not pleased with her speaking up and commenting on the initial statement in support of BLM.  Additionally, the employee claimed that after she spoke up about the BLM statement, she was targeted and harassed at work. She alleged that she was increasingly micro-managed by the owners and they began examining her work, which they had never done before.

On June 30, 2020, following an incident surrounding the quality of the employee’s work, one of the owners decided to speak to the employee. According to the owner, the employee’s attitude during the meeting was extremely hostile and angry. He claimed that her behaviour during the conversation was so shocking and disproportionate that he felt it was necessary to terminate her employment.  

Following her termination, the employee made a series of social media posts on Twitter and Instagram alleging that she had been terminated for supporting the BLM movement; that the two owners were racists and had used racist epithets; that the company did not care about Black people and only wanted to profit off of Black culture; and that the employer treated its employees poorly.

The owners commenced an action seeking damages from the employee alleging defamation based on the statements posted by her on social media.

The owners also sought an interim injunction requiring the employee to remove the social media postings and to refrain from republishing the postings pending the trial of the main action. They claimed that they had lost employees and business as a result of her postings and allegations of racism.

Court Refuses to Order Injunction Against Employee

The court set out to determine whether the owners had met the test for an interim injunction in the context of a defamation action.

The court explained that the test for injunctive relief in defamation actions is as follows: 

1. The publication complained of must be clearly defamatory;
2. If the defendant states an intention to justify or to rely on fair comment, the injunction must be refused unless it is clear that any such defence will inevitably fail; and
3. The plaintiff must establish irreparable harm if the injunction is refused.

The court explained that the test is a very high one that recognizes the importance of protecting free speech, particularly in matters of public interest. It observed that granting interim injunctive relief in defamation cases is rare and should only be ordered in the clearest of cases.

After the court reviewed allthe evidence, which it found to be contradictory, the court concluded: 

“Calling an individual or corporation a racist has been found to be defamatory [in previous cases]…. However, on a motion for an interlocutory injunction, a finding that the words are defamatory is not sufficient to grant the injunction where the defendant raises the defence of justification or fair comment. When those defences are raised, the injunction will only be granted where the plaintiff has satisfied the court that it is clear that the defences will inevitably fail. This is a stringent test that is much higher than showing a prima facie case that the defences will not succeed. If the plaintiffs only had to establish that there was a prima facie case that the defences will not succeed, they might have met that onus. In my view, however, they have not met the onus of demonstrating that the defences will inevitably fail.”

As a result, the court refused to issue an injunction and dismissed the motion.

Get Help

At Bader Law, we are proud of the relationships we build with the clients we help. Our goal is to demystify the law, provide clarity about what you can expect, and to always be available to answer questions as the matter moves forward.

We seek to resolve disputes between employees and their employers quickly, efficiently, and without the need to resort to lengthy litigation. We will negotiate with your employer and attempt a resolution outside of court or another adjudicative body.

However, where needed, we do successfully represent clients in litigation at all levels of court and before various tribunals, including the Human Rights Tribunal of Ontario, the Canadian Human Rights Tribunal, and the Workplace Safety and Insurance Appeals Tribunal.

At Bader Law, our knowledgeable employment lawyers can counsel you on your rights, advise you on your options, and help you create a plan for moving forward. We represent employees in Mississauga and areas west of Toronto. Contact us online or at (289) 652-9092 to learn how we can help.

We had previously written about a case in which an employee who was constructively dismissed under a fixed-term agreement was awarded over a million dollars in damages.

Recently, the Ontario Court of Appeal upheld that decision.

Employee Claims Constructive Dismissal

The employee owned of a funeral home when, in 2012, he agreed to sell his shares to the employer corporation, a company controlled by two brothers. 

Under the share purchase agreement, the employee entered into a transitional consulting services agreement (the “agreement”) by which he would continue in the employ of the funeral home for a fixed-term of ten years. 

The agreement provided that the employee would work as general manager of the funeral home and be paid $100,000 per year, as well as sales commissions.

However, disagreements between the brothers and the employee ensued and, within 11 months, the employee went on medical leave and never returned to work. 

The employee claimed he had been constructively dismissed and sought damages for breach of the agreement, intentional infliction of mental suffering and discrimination prohibited by the Ontario Human Rights Code. 

Lower Court Finds in Favour of Employee

After reviewing the behaviour of both parties, the court concluded that neither the brothers nor the employee were blameless for the falling out that occurred. 

However, the court found that over the course of several months before the employee’s leave, one of the brothers:

• Improperly terminated the employee’s use of the company vehicle; 
• Without notice to the employee, recruited an employee who was subordinate to him to track his time at the funeral home; 
• Did not pay the employee commissions to which he was rightfully entitled; 
• Removed the employee’s photograph from the funeral home; and 
• Without notice to the employee and without seeking any explanation from him, changed the locks to the funeral home. 

The trial judge concluded that the brothers had therefore engaged in a course of conduct that would lead a reasonable person in the employee’s position to conclude that they no longer considered themselves bound by the terms of the agreement, and that the employee accepted this repudiation and was constructively dismissed. 

In total, the employee was awarded $1,274,173 in damages, a figure that reflected the nine-year term remaining on the employee’s fixed term contract, along with commissions, benefits, and expenses.

The brothers appealed the decision, arguing that the employee had condoned their conduct and, as a result, he was not entitled to claim constructive dismissal. They claimed that the employee did not treat their actions, either individually or collectively, as a repudiation of the employment agreement. In addition, the brothers argued that the trial judge erred in calculating the damages.

Court of Appeal Dismisses Appeal

The Court of Appeal began by explaining that constructive dismissal can be established by either: 

• the employer’s breach of an essential term of the employment contract; or 
• a course of conduct by the employer that establishes that it no longer intends to be bound by the employment contract.

However, where an employee condones such conduct, the employee cannot claim to have been constructively dismissed. The court explained that a claim that the employee has condoned a breach or course of conduct is a defence to a claim of constructive dismissal and the burden is on the employer to establish it. The court then stated:

“In the usual case, a finding of condonation occurs where an employee has continued to work or resumed work despite the employer’s actions. But continuing or resuming work is not determinative of condonation; employees must have a reasonable period of time to attempt to resolve workplace problems short of litigation […]. Care must be taken before concluding that an employee has given up his or her right to sue for constructive dismissal, and employees’ unique personal circumstances must be taken into account.”

The court stated that in this case, the main problems was the fact that there appeared to have been a delay because the employee did not purport to accept the brothers repudiation of the contract until two years later, when he issued his statement of claim. However, the court stated:

“By any standard, the period of time taken by the [employee] to make his election was lengthy. But while it may be reasonable to find that an employer’s burden to establish condonation is discharged where the employee has continued to work for a lengthy period of time despite the employer’s impugned conduct, it is more difficult to conclude that condonation has been established where the employee has been unable to work because of the very conduct that establishes the constructive dismissal.”

The court then examined the circumstances surrounding the employee’s delay in making his election. Ultimately, the court upheld the trial judge’s findings that the employee did not return to work, could not return to work, and did not condone the brothers actions. 

As a result, the court upheld the finding of constructive dismissal. It further dismissed the brothers’ arguments relating to damages.

The appeal was dismissed.

Get Help

If you have been terminated, you may be tempted to simply sign the severance package you have been provided with so that you can sever ties with your former employer and begin to move forward. While this may seem enticing, it is not the best course of action. Most employees do not realize how much they are entitled to upon termination and, without obtaining knowledgeable advice, often end up accepting significantly less than they should receive.

If you have been fired, one of the first phone calls you should make is to a wrongful dismissal lawyer. The highly experienced Mississauga employment lawyers at Bader Law have been advising employees on termination, severance packages, and wrongful dismissal for several years. 

We can review any termination letter or package you have been provided with, negotiate with your employer on your behalf, and file a wrongful dismissal claim where necessary. With our lawyers on your side, you can ensure you are getting the maximum amount that you are entitled to.

Contact a knowledgeable employment lawyer as soon as possible. At Bader Law, our lawyers will counsel you on your rights, advise you on your options, help you create a plan for moving forward, and secure fair compensation for the wrongful termination of your employment. Contact us online or at (289) 652-9092 to learn how we can help.

In a recent Ontario case, an employee argued that he should be entitled to the maximum allowable notice period, in part based on the difficulties he faced in finding new employment due to the COVID-19 pandemic.

Employee Terminated After 11 Years of Employment

The employee began working for the employer on February 11, 2008 and was terminated on August 28, 2019. At the time of termination, the employee was 62 years old.

The employee’s base salary was $162,353. Among other benefits, he was also entitled to an Annual Incentive Plan or bonus based on the company sales and objectives. Under the plan, the employee had received a bonus of $23,537 in 2018. His potential payout in 2019 had been $28,411.

Upon termination, the employee was paid 11 months of salary and benefits.  The employer also provided three months relocation-counselling.  The total value of the amounts paid by the employer upon termination was $159,907.

The employee filed a claim against the employer seeking 18 months of reasonable notice. He also sought payment for the bonus he would have received for 2019 and benefits, as well as claiming bad faith, moral and/or punitive damages.

COVID-19 Arguments

In the employee’s claim, a notable argument was raised relating to the COVID-19 pandemic.

At the court hearing held in December 2020, the employee argued that the court should take into account the recent COVID pandemic and the resulting significant increased difficulty he had experienced in obtaining comparable employment. At the time of the hearing, the employee had submitted approximately 90 employment applications seeking a new job, but had not yet found one. The employee’s argument was that the court should therefore use this evidence as a basis for awarding a notice period at the highest possible end of the appropriate range.  

In support of the employee’s position, he submitted an extract of a previous case in which the judge had stated: “Economic factors such as a downturn in the economy or in a particular industry or sector of the economy that indicate that an employee may have difficulty finding another position may justify a longer notice period”. 

In response, the employer claimed that the large number of job applications sent out by the employee for comparable positions should be held as evidence that employment was in fact available despite the pandemic.

Court Rules in Favour of Employee

While the court recognized the employee’s argument regarding the consideration of economic factors in coming to a determination, it also cited an Ontario Court of Appeal decision in which the Court stated: “Notice is to be determined by the circumstances existing at the time of termination and not by the amount of time that it takes the employee to find employment”. 

Ultimately, the court concluded:

“It seems clear terminations which occurred before the COVID pandemic and its effect on employment opportunities should not attract the same consideration as termination after the beginning of the COVID pandemic and its negative effect on finding comparable employment.”

Taking into consideration the entire factual matrix of the employee’s circumstance, including the pandemic, the court held that the employee was entitled to 16 months reasonable notice.

The court further held that, pursuant to the principles set out in the recent Supreme Court of Canada decision Matthews v. Ocean Nutrition Canada, the employee was entitled to the bonus he would have received for 2019. Following the same principle, the employee was awarded his group benefits and pension contributions. Finally, the court rejected the employee’s claim for bad faith, moral and/or punitive damages, finding that the employer’s conduct fell short of what is required for such an award.

In the result, the employee was awarded $255,576, from which the $159,907 already paid out would be deducted, plus pre-judgment interest. 

Get Help

If you have been terminated, you may be tempted to simply sign the severance package you have been provided with so that you can sever ties with your former employer and begin to move forward. While this may seem enticing, it is not the best course of action. Most employees do not realize how much they are entitled to upon termination and, without obtaining knowledgeable advice, often end up accepting significantly less than they should receive.

If you have been fired, one of the first phone calls you should make is to a wrongful dismissal lawyer. The highly experienced Mississauga employment lawyers at Bader Law have been advising employees on termination, severance packages, and wrongful dismissal for several years. We can review any termination letter or package you have been provided with, negotiate with your employer on your behalf, and file a wrongful dismissal claim where necessary. With our lawyers on your side, you can ensure you are getting the maximum amount that you are entitled to.

Contact a knowledgeable employment lawyer as soon as possible. At Bader Law, our lawyers will counsel you on your rights, advise you on your options, help you create a plan for moving forward, and secure fair compensation for the wrongful termination of your employment. Contact us online or at (289) 652-9092 to learn how we can help.