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Jennifer’s litigation practice includes representing employers in arbitrations, tribunals and courts, including in relation to civil fraud matters, fiduciary duties, disclosure of confidential information, employee theft, and other misconduct. Jennifer also conducts internal compliance investigations and advises on issues relating to international labour and human rights standards.

A recent decision of the Alberta Court of Appeal adds further confusion to the issue of the enforceability of termination clauses. In Holm v AGAT Laboratories Ltd, 2018 ABCA 23 (“Holm“), the Alberta Court of Appeal (“Court”) held that explicit language must be included in a termination clause to oust an employee’s common law rights.
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The Ontario Court of Appeal just released another decision on the interpretation and enforceability of termination clauses – the latest chapter in a less-than-clear set of guidelines. Generally speaking, a properly drafted termination clause can be used to limit an employee’s entitlements on dismissal.
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In its recent decision in North v. Metaswitch Networks Corporation, the Ontario Court of Appeal concluded that a severability clause could not be used to “rewrite” or “read down” a termination provision to make it comply with the Employment Standards Act (the “ESA”). Instead, the Court of Appeal held, where any part of a termination clause is void, the entire provision must be struck and the severability clause becomes inoperative. This case is a reminder to employers that there are no shortcuts when it comes to drafting your employment agreements—termination provisions must be carefully drafted to limit termination liability without breaching local employment standards.
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In the recent decision of Humber River Regional Hospital and Ontario Nurses Association (“ONA”) (Cherubino Grievance), an Ontario arbitrator dismissed the union’s grievance alleging harassment by a supervisor and found that neither management duties nor the employer’s internal investigation process should be held to a standard of perfection.
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On July 27, 2016, an Ontario court certified a class action against Just Energy, a natural gas and electricity retailer, in which 7,000 of its sales agents claimed they were misclassified as independent contractors.

The case, Omarali v. Just Energy, is the first of its kind to be certified in Canada. If the sales agents are successful, the company could face large liabilities relating to unpaid wages (including overtime, vacation and public holiday pay) and unremitted income taxes and other required deductions.
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Starting June 10, 2016, Ontario employees have increased protection regarding the tips and gratuities left by customers. As we discussed in a previous post, Bill 12 amends the Employment Standards Act, 2000 (“ESA”) to prohibit employers from withholding, making deductions from, or collecting tips or other gratuities from employees, unless authorized to do so under the ESA.
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In the recent decision of Hamilton-Wentworth District School Board v. Fair, 2016 ONCA 421, the Ontario Court of Appeal (“ONCA”) upheld the Human Rights Tribunal of Ontario’s 2013 decision to reinstate an employee, more than 10 years after her employment was terminated. By the time of the ONCA’s decision, almost 15 years had passed since the original termination.

The ONCA’s decision may encourage other decision-makers to order reinstatement as a remedy in discrimination cases. The decision also highlights the importance of considering all possible positions, vacant or not, in order to meet the duty to accommodate employees with disabilities.


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