Companies are facing critical business challenges in regard to their most important asset – their people. While workforce transformation is not a new concept for global organizations, the pandemic has forced us to rapidly adapt our standard ways of working and how we engage with employees to ensure the long-term viability of the business. We
Canadian Employer Update | Year in Review (January 13 & 20, 2021) – Webinar
2020 has posed unprecedented challenges for Canadian Employers. We know that in addition to keeping your employees safe and maintaining business continuity, it’s a challenge to keep track of all the changes to the employment law landscape in Canada.
These two, 60 minute virtual sessions are designed to help you stay abreast of what changed
Ignorance of Fraud is No Defence: Employer Vicariously Liable for Rogue Employee
We thank Glenn Gibson, John Pirie & Michael Nowina for this post.
In an unreported judgment Pallotta v. Cengarle, Court file CV-16-56337 released on February 27, 2020, Faieta J. found real estate lawyer Licio Cengarle vicariously liable for his clerk’s mortgage fraud scheme as well as for breach of trust. This case is a cautionary tale for professionals and employers about the need for internal controls.
Continue Reading Ignorance of Fraud is No Defence: Employer Vicariously Liable for Rogue Employee
SCC Reminds Employers of the Costly Implications of Imprecise Language in Incentive Compensation Plans
At common law, employers have a right to terminate an employment relationship, subject to reasonable notice of termination. When an employer breaches this implied duty, employees are entitled damages for wrongful dismissal, which presumptively include damages for lost incentive compensation unless an employer unequivocally ousts that right in an employment agreement or incentive plan. In Matthews v. Ocean Nutrition Canada Limited, the Supreme Court of Canada confirmed that absent “absolutely clear and unambiguous” language in the employment agreement or the incentive plan restricting such entitlement, incentive compensation is considered part of the damages owed in lieu of common law reasonable notice.
Continue Reading SCC Reminds Employers of the Costly Implications of Imprecise Language in Incentive Compensation Plans
Supreme Court of Canada Invalidates Uber Arbitration Clause in $400-Million Class Action
On June 26, 2020, the Supreme Court of Canada released its decision in the highly publicized case of Heller v Uber Technologies Inc. The case arises from a Toronto-based UberEATS driver’s effort to bring a $400-million class action against Uber, on behalf of Uber and UberEATS drivers in Ontario. Mr. Heller alleged that Uber violated the Employment Standards Act, 2000 by treating Uber and UberEATS drivers as independent contractors and failing to provide them with employment-related entitlements like minimum wage, vacation, and overtime pay.
The issue before the Court was the validity of an arbitration clause in a standard form service agreement. The agreement was governed by the law of the Netherlands and required drivers to litigate their disputes with Uber in the Netherlands. Uber required all of its prospective drivers to enter into this agreement by having them accept the terms through their app. The Court ruled in favor of the drivers, finding that the arbitration clause was unconscionable because its terms effectively made it effectively impossible for the drivers to arbitrate their claims.
As a result of the decision, the class action can proceed to a certification motion.
Key Takeaways
Employers with arbitration clauses in their employment contracts or independent contractor agreements must revisit their agreements to determine whether they continue to be valid in Canada. Based on the Court’s decision, employers should not have arbitration clauses that require employees to pay substantial upfront fees to initiate the process. Employers should also consider whether they should pay the administration fees required for private arbitration, subject to the company’s right to a refund of those fees if it is successful in arbitration. If employers choose to keep arbitration clauses, they should ensure that in-person hearings remain local.
Another Termination Clause Bites the Dust
There is a presumption that an employee is entitled to common law reasonable notice upon termination of employment without cause. Employers may rebut this presumption through an enforceable termination clause that, at the very least, provides Employment Standards Act, 2000 (“ESA”) minimums, and displaces an employee’s right to common law reasonable notice.
In the past year, the Ontario Court of Appeal made it clear that it will find as unenforceable a termination clause where even the slightest imprecision could result in an unlawful contract. This trend started in Andros v. Colliers Macaulay Nicolls Inc., where the Court narrowly interpreted a failsafe clause as applying only to the first part of a termination clause but not the second. In Rossman v. Canadian Solar Inc., the same Court concluded that savings provisions, such as a failsafe provision, cannot save employers who attempt to contract out of the minimum standards prescribed by employment standards legislation. And most recently, in Waksdale v. Swegon North America Inc., the Court struck down a valid “without cause” termination sub-clause because the “for cause” termination sub-clause was unenforceable. In short, the Court concluded that where one of the sub-clauses is unenforceable, the entire termination clause must fall and it will not be saved by a severability clause.
The Canadian Employers’ Reopening Playbook (Part 4)
As COVID-related restrictions begin to be lifted, employers are properly focused on ensuring that their workplaces and workforces are prepared for reopening. However, there is some suggestion that full or partial reclosings, followed by subsequent reopenings, may need to occur until a vaccine is developed, mass immunity exists, or sufficient treatment methods are implemented. As
The Canadian Employers’ Reopening Playbook (Part 3)
Our last installment focused on preparing physical workplaces for reopening, having regard to public health and occupational health and safety requirements. At this point, employers following along are alive to critical legal considerations that are unique to physical workplaces. In this installment of The Canadian Employers’ Reopening Playbook we discuss complex legal and practical considerations to return workforces to “COVID-prepared” workplaces.
Continue Reading The Canadian Employers’ Reopening Playbook (Part 3)
The Canadian Employers’ Reopening Playbook (Part 2)
Planning the Return to Work Process
With the pandemic situation continuously evolving, it can be difficult to think about anything besides the immediate response. The early days of the pandemic required employers to act fast and make quick decisions to protect workers, safeguard client/customer relationships, and stabilize operations. But, as restrictions are gradually lifted, and we move beyond the immediate crisis phase, employers across Canada need to carefully plan how to reopen workplaces, resume operations, and get people back to work. A carefully planned and deliberate approach to reopening is required to protect workers in the short-term and remain resilient in the long-term.
This installment of The Canadian Employers’ Reopening Playbook will address key issues employers should consider when planning to reopen physical workspaces.
Continue Reading The Canadian Employers’ Reopening Playbook (Part 2)
The Canadian Employers’ Reopening Playbook (Part 1)
Why Have a Playbook?
As provincial governments move towards reopening their economies and taking steps to return to normal, employers must balance a range of important – and, at times, conflicting – considerations.
Some of the key questions may seem obvious:
- Are we allowed to reopen and if so, when, and with what restrictions?
- What steps are required to keep employees and all other individuals who come into or onto our premises safe?
- How do we get our employees back to work, and what if they don’t want to return at this time?
- How will reopening impact the availability of government support programs for us and our employees?
Over the coming days, through a series of client alerts, we will explore these questions and more, providing detailed and practical guidance that employers can draw upon and adapt for their specific workplaces. The Canadian Employers’ Reopening Playbook will break down common employment-related issues employers should consider when:
- Planning the return to work process;
- Implementing the return to work process; and
- Operating in a changed environment.
Continue Reading The Canadian Employers’ Reopening Playbook (Part 1)