Recent arbitration decisions confirm that conduct amounting to harassment or bullying will not be tolerated in unionized workplaces and that an appropriate investigation needs to be carried out in response to a complaint. The approach is consistent with decisions concerning harassment in non-union workplaces, increased legislative protections for workers and a changed social climate brought on by the #MeToo movement. Continue Reading Harassment or Blue Collar Culture? A New Standard for Shop Floor Conduct
In 2016, the Ontario Court of Appeal confirmed that dependent contractors are entitled to reasonable notice of termination. In a recent decision, Cormier v 1772887 Ontario Limited cob as St. Joseph Communications, (“Cormier“) the Ontario Superior Court of Justice extended this principle – commenting that service as an independent contractor should be considered in calculating the reasonable notice period in certain circumstances. Continue Reading Independent Contractors Entitled to Reasonable Notice on Dismissal?
In a recent decision, Modern Cleaning Concept Inc. v. Comité paritaire de l’entretien d’édifices publics de la région de Québec, the majority of the Supreme Court of Canada (“SCC”) held that a cleaner who had a franchise agreement with a cleaning company was actually an employee, not an independent contractor. This “employee” determination, however, was in the context of a very particular legislative regime, which applied to the specific franchise relationship. Since the cleaner offered his cleaning services in public buildings, he was covered by a collective agreement, the Decree respecting building service employees in the Quebec region (“Decree”), which sets out minimum standards in the workplace (wages, hours of work, overtime, etc.) and is governed by the Act respecting collective agreement decrees (“Act”). With the scope of its provisions being “public order”, the Decree can apply to any contract where an individual is in a relationship determined to be that of “employee” within the meaning of the Act. Continue Reading Highest Court Rules Quebec Franchisee Was Employee, Not Independent Contractor, Under Provincial Statute
We’re pleased to share a timely client alert from our colleagues in Mexico on a significant labour reform approved earlier this week by the Mexican Senate. The reform adds new legislative provisions to secure the rights of freedom of organization, freedom of association and collective bargaining, as well as introducing a new labour justice system to expedite all procedures under the Federal Labor Law of Mexico. As such, the reform is likely to have a profound effect on employers in Mexico.
For further background, see our previous client alert and the SHRM article, Mexican Congress Seeks to Reform Employer-Friendly White Unions.
On April 3, 2019, Restoring Ontario’s Competitiveness Act, 2019 (Bill 66) received Royal Assent. Bill 66 amends several pieces of legislation in Ontario. The government has stated that the changes are intended to “lower business costs to make Ontario more competitive” and to “harmonize regulatory requirements with other jurisdictions, end duplication and reduce barriers to investment.” Continue Reading Hot Off the Press: Bill 66 Ushers in More Changes for Ontario Employers
The Supreme Court of Canada will decide if an employee is entitled to payments owed in the event of a corporate acquisition despite the fact that the employee resigned over a year before the triggering event. On January 31, 2019, the SCC granted leave to appeal in Matthews v. Ocean Nutrition Canada Limited. The employee asserts that he is entitled to over $1 million in profits following the acquisition of his former employer – even though he had resigned 13 months before the transaction. If the SCC decides in the employee’s favour, employers may face more challenges (and increased litigation) when seeking to enforce limiting clauses in employment agreements. Continue Reading Supreme Court to Decide if Bad Faith Employer Conduct Nullifies Limit on Incentive Compensation
The range of potential sanctions under Ontario’s Occupational Health and Safety Act are vast and, on its surface, potentially ominous for even the most minor of OHSA infractions. Companies in non-compliance with a health or safety requirement are seemingly at the mercy of the Ministry as to whether they prosecute (in addition to orders and penalties) and, if so, whether they pursue fines or even (gulp) incarceration.
Whereas the range of fines for various types of breaches and resulting harms are somewhat predictable, the circumstances where a Court will take the extraordinary step of ordering jail time has been somewhat of a black box. The recent decision from the Ontario Court of Appeal, Ontario (Labour) v. New Mex Canada Inc., may have changed this. Continue Reading Only Willful OHSA Breaches Warrant Jail Time?
After-acquired cause, by definition, arises when an employer discovers just cause for termination after the employee has been dismissed on a without cause basis. This begs the question: Can an employer assert after-acquired cause when it has reason to suspect just cause prior to the termination, but proceeds on a without cause basis due to the employee’s representations of innocence? The Ontario Court of Appeal has answered affirmatively. Continue Reading After-Acquired Cause: Employer’s Due Diligence Pays Off
Surprisingly, evidently not. Briefly the facts in Plate v. Atlas Copco Canada Inc., 2019 ONCA 196: an Executive in the role of Vice President Global Strategic Customers was terminated for just cause grounded in a decades-long defrauding of the company and its benefits provider in conspiracy with the latter’s consultant, to the extent of over $20,000,000, over a million of which resulted to the Executive personally. His argument that he was a bystander incidentally enriched to the knowledge of the employer failed, conviction entered, no appeal pursued.
In the course of the criminal process the Court readily found that the Executive was a “fiduciary”, a formidable position of trust: the duty of replete fidelity, selfless devotion to the “beneficiary” (here the employer), compelling so-called “righteousness” behaviour. Continue Reading Tangled Weeds: Fiduciary Status in a Criminal Fraud Not Determinative in Employment Litigation?
Faith-based, as in “good faith”, that is.
Not that long ago the Supreme Court installed “good faith” as core to the fabric of contractual relations in Canada whether commercial or employment, whether ostensibly arms-length as “independent contractor” or employment per se. Implying a duty to act fairly in contract is not foreign to other jurisdictions— it is foundational to EU legal principals and long-since present in the Restatements of US law.
Here, not so much. In the 60s Ontario Justice Goodman enthused about incorporation of “good faith” as a distinct implied term of contract; alas conservative sentiment rendered that distillation jurisprudential ‘moonshine’. Some 50 years on Bhasin v. Hrynew (2014) refined that elixir into single malt: the SCC aspirationally confirmed that we all gotta have ‘faith’.
While it remains difficult to be ‘sort-of pregnant’, good faith became operational but not as an independent “cause of action”. But as an influencer of import in contractual relations, it has certainly come of age: Mohamed v. Information Systems Architects Inc., 2018 ONCA 428. Continue Reading Faith-based Conscientious Contracting: Pratfalls of Fixed Term Employment-Like Contractual Relations