As we reported in our earlier post, in Merrifield v The Attorney General, 2017 ONSC 1333, the Ontario Superior Court allowed an employee’s claim against his employer and two superiors for the “tort of harassment” and awarded significant damages against the defendants as a consequence. In its decision released today, the Ontario Court of Appeal (“ONCA”) held that there is currently no independent tort of harassment in Ontario, overturning the lower court’s decision. However, the ONCA did not rule out “the development of a properly conceived tort of harassment” that may apply in appropriate contexts. Continue Reading The Verdict is In: Ontario Court of Appeal Finds No Tort of Harassment (Yet)

This is part two in our series on recent Ontario Superior Court decisions that employers should be aware of before finalizing future employment agreements. See here for our first part, on the recent trend of lengthy notice period awards for long service employees of advanced age.

As most employers know, unenforceable termination clauses often give rise to costly wrongful dismissal claims. Yet the case law in this area is constantly evolving, and it is increasingly challenging to stay abreast of what a court will consider to be enforceable. Continue Reading Defining “Cause” in a Termination Provision: Mind Your Language!

The #MeToo and Times Up movements have led to significant cultural shifts and a collective call to action to end sexual harassment and related forms of exploitation. Since many of the high profile allegations involved abuse of power and quid pro quo demands in the context of employment relationships, the impact on employers has been profound. Continue Reading Not Just South of the Border: Canadian Employers Should Expect More Gender-Based Disputes

To mark International Women’s Day, we’re pleased to share an article from our US colleagues on recent efforts to close the gender pay gap, including salary history bans in the US and global efforts toward transparency reporting. The article, authored by Todd BoyerCaroline Burnett and Elizabeth Ebersole, can be accessed here.

This is the first of our two-part series on recent Ontario Superior Court of Justice decisions that employers need to be aware of before finalizing their next employment agreement. The decisions highlight the risk of failing to include an enforceable termination provision in the employment agreement. Absent such a provision, an employee dismissed without cause will be entitled to “reasonable notice” of termination at common law.

In this first part, we examine two recent decisions of the Court that suggest that the Court now favours longer notice periods for long service employees of advanced age: Dawe v Equitable Life Insurance Company, 2018 ONSC 3130 (Dawe) and Saikaly v Akman Construction Ltd., 2019 ONSC 799 (Saikaly). Until recently, 24 months was generally considered as the upper limit of notice entitlement that courts would award absent exceptional circumstances. Continue Reading Dismissing a Long Service Employee of Advanced Age May Prove to be More Costly

Following our DPA roundtable in June 2018 and the recent focus on DPAs in the media related to the SNC-Lavalin corporate criminal prosecution, Peter MacKay and Christopher Burkett will be pleased to answer your questions via teleconference on March 5, 2019 at 12:30 PM (EST). Please register here and dial-in to gain important insights on:

  • How the Canadian DPA system will work in practice and how it impacts the Integrity Regime;
  • How the current debate around DPAs and alleged political interference may impact the regime going forward;
  • The critical lessons learned from negotiating DPAs in other jurisdictions;
  • Strategies for self-disclosure and dealing with parallel multinational investigations, multiple enforcement agencies, and global settlement negotiations; and
  • Designing compliance programs and conducting effective internal investigations to ensure your company qualifies for a DPA.

In addition, we’ll discuss best practices for implementing effective corporate compliance programs.

For questions about registering for the teleconference, please contact Kylie Aramini, at kylie.aramini@bakermckenzie.com.

Overtime class actions are in the headlines again. On February 22, 2019, a class action claim seeking damages of over $100 million was filed against Flight Centre, an Australia-based travel services provider with stores in Canada and internationally. The claim alleges that Flight Centre systematically failed to pay overtime to its retail sales employees, referred to as “travel consultants”, requiring them to consistently work more than their scheduled hours, and implemented policies that fail to comply with the overtime entitlements under employment standards legislation. Continue Reading Back in Class: Overtime Pay Class Action Brought Against Global Travel Retailer

The world is facing another year of unprecedented change making uncertainty the new normal for global employers. We are watching geopolitical crises play out on the global stage with a global economic slowdown waiting in the wings. Global employers must navigate a course through this highly charged, shifting competitive landscape which is compounded by the challenges presented by increasing regulation, disruptive technologies and an intergenerational workforce which is transforming the world of work.

In this year’s edition of the Global Employer Magazine, we review the key themes and trends that dominated the employment law landscape in 2018 and provide guidance on what to watch out for in 2019.

KERPs (Key Employee Retention Plans) and KEIPs (Key Employee Incentive Plans), otherwise referred to as “pay to stay” compensation plans, are commonly offered by employers to incent key employees to remain with the company during an insolvency restructuring proceeding when so-called “key employees” may be tempted to find more stable employment elsewhere. However, courts will carefully scrutinize these plans because there are multiple competing interests as well as the overall policy objective of maximizing recoveries from the restructuring which can be diluted through overly generous incentive plans. Employers who are contemplating restructuring under the Companies’ Creditors Arrangement Act  (CCAA) should be aware of the framework for assessing KERPs or KEIPs recently established by the Ontario Superior Court of Justice. Continue Reading Restructuring? Proceed Carefully with Your KERPs and KEIPs!

Although brevity is almost always better than wordiness, it would have been better if the legislature had used a few more words in the severance pay provisions of Ontario’s Employment Standards Act, 2000. Under the ESA, employers with a payroll of at least $2.5 million are required to provide statutory severance pay when dismissing an employee with 5 or more years of service. Unfortunately the provision is silent as to whether payroll within Ontario or, rather, global payroll is determinative. It would have been helpful if the drafters had indicated where, exactly, to draw the line.

The pendulum has swung back and forth on this issue. Most recently, the Ontario Labour Relations Board (“OLRB”) held that Ontario-only payroll is determinative, diverging from the direction previously taken by the Ontario Superior Court of Justice. We outline the key cases to date below. Continue Reading Statutory Severance Pay: Ontario Labour Relations Board Decides $2.5M Threshold Does NOT Include Payroll Outside Ontario