Employment Standards

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Employment contracts can be frustrating, but they can also be frustrated.  The former is a simple fact of life, while the latter is a key principle of contract law.

“Frustration” occurs where an unanticipated event destroys the heart of the contract to the point where it can no longer be fulfilled. When a contract becomes frustrated, the parties are relieved of any obligation they were contractually bound to perform.  The legal concept, while simple in theory, has been difficult for employers to apply, particularly in the case of absences due to the critical illness or injury of an employee.

In the recent case of The Estate of Christian Drimba v Dick Engineering Inc., 2015 ONSC 2843 (“Drimba”), an Ontario court examined the concept of frustration in the case of the terminal illness of an employee who subsequently passed away.  The case provides guidance to employers about the factors a court or tribunal may look at when making such a determination.
Continue Reading A Frustrating Employment Contract: When Does it End in the Case of Terminal Illness?

Many in the employer community were surprised by three recent cases (here, here and here) in which the Ontario courts struck down termination clauses in employment contracts for the failure to specifically reference the continuation of benefits through the statutory notice period under the Employment Standards Act, 2000 (the “ESA“).  The termination clauses in the employment contracts at issue in these cases appeared, on their face, to be valid and enforceable in light of the prevailing legal principles and existing case law.
Continue Reading Is Freedom of Contract Dead in Canadian Employment Law? Termination Clauses and Benefits Continuation Through the Notice Period

Our regular readers will recall our previous posts (here and here) on upcoming changes to the Employment Standards Act.  On February 20, 2015, some of these changes will be coming into effect:

  • There will no longer be a limit on the amount that can be ordered for unpaid wages due to an

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(Canadian businesses with U.S. & international operations should consider this webinar.)

2014 has been yet another active year for employers, with significant labor and employment developments in the U.S. Now is the time for employers to update their employment handbooks, policies, and internal company practices to reflect both Federal and state developments from this past year, and for U.S. multinational companies to sharpen their employment-related business strategies for 2015.Continue Reading Navigating U.S. and International Employment Laws (Webinar)

One of the questions we are commonly asked by non-unionized employers is whether they should use written employment agreements with their employees. While written employment agreements are not a replacement for sound human resources planning or judgment, a well-written agreement, tailored to the specifics of the employment relationship, can be an invaluable component of successfully managing employees throughout the life-cycle of the employment relationship, beginning to end.
Continue Reading Early New Year’s Resolutions: Are You Using Written Employment Agreements With Your Canadian Employees?

Since 2007 there have been five significant overtime class action cases in Canada.  Two of these cases have been labelled “off-the-clock” cases — cases in which employees allege they were expected to work overtime without being paid for it.  Both off-the-clock class actions were eventually certified.  One of those cases has now settled.

The remaining three overtime class actions are “misclassification” cases in which employees allege that their employer misclassified them as exempt from statutory overtime entitlements.  Courts have been more reluctant to certify the misclassification cases because, in a majority of those cases, the proposed plaintiff class has not been sufficiently similar to justify a class action proceeding.

The Ontario Court of Appeal’s recent decision in Brown v. Canadian Imperial Bank of Commerce confirms the prevailing view that employers are most vulnerable to issues that arise when their employees’ hours are not properly monitored, recorded, enforced or compensated.  Employers continue to be liable to individual employees for misclassifying them as “overtime exempt”, but it is less likely that such misclassifications will give rise to the added liability that is associated with a class action.
Continue Reading Ontario Court of Appeal Refuses to Certify Another “Misclassification” Overtime Class Action

The Ontario Legislature has proposed changes (Bills 159 and 146) to the statutory obligations of both temporary help agencies (“Agencies”) and their clients (“Employers”).  These changes would increase protection for temporary employees, including an “agency cut maximum” and a cap on the percentage of temporary employees that can be used by an Employer.  In particular:

  • Agencies would be required to pay their temporary employees at least 80% of the amount they charge clients for services performed by a given temporary employee.
  • Employers would have to ensure that the total hours worked by temporary employees in a work week do not exceed 25% of the total hours worked by all employees.

Continue Reading Ontario Proposes Changes to Employment Standards for Temporary Help Agency Employees