The Ontario Government amended a previous regulation to extend deemed infectious disease emergency leave (“IDEL”) under the Employment Standards Act, 2000 (the “ESA”) until January 2, 2021.

This is an update to our previous blog post, Ontario Files New ESA Regulation Affecting COVID-19-Related Leaves, Temporary Layoffs & Constructive Dismissals, where, on May 29, 2020, the Ontario Government filed a new regulation changing the rules regarding employee eligibility for IDEL, temporary layoffs and constructive dismissals under the ESA. The regulation retroactively “deems” non-union employees who were not performing their duties, working reduced hours, or receiving reduced wages (at the employer’s behest) to be on IDEL.

Previously, the regulation dealt with the time period beginning March 1, 2020 and ending “six weeks after the declared emergency ends.” The Government has called this the “COVID-19 Period.” However, the Ontario Government has now extended this “COVID-19 Period” to January 2, 2021.


Continue Reading Ontario Amends ESA Regulation Affecting COVID-19-Related Leaves, Temporary Layoffs & Constructive Dismissals by Extending COVID-19 Period

We are happy to share with you the BNN Bloomberg article, “How employers can avoid backlash from COVID-19 layoffs.” Kevin Coon was interviewed for this article providing dos and don’ts for employers to follow.

Click here to view the article

This article was originally posted in BNN Bloomberg.

Courts usually treat incentive compensation as part of the compensatory damages owed in lieu of common law reasonable notice of dismissal. However, if the employment contract and/or the incentive plan unambiguously extinguish entitlement to incentive compensation upon notice of dismissal, the agreement(s) will generally prevail over the common law entitlement. In O’Reilly v. IMAX Corporation, the Ontario Court of Appeal once again stressed the importance of using precise language in bonus or stock option plans to deny, or otherwise limit, employee entitlement to incentive compensation during the reasonable notice period.
Continue Reading Avoiding the Cost of Imprecise Language in Incentive Compensation Plans

Last week, the Ontario Court of Appeal released yet another decision on the interpretation and enforceability of termination clauses: Amberber v. IBM Canada Ltd., 2018 ONCA 571. Recent appellate decisions on this issue have been inconsistent and/or provided less than clear guidelines, see here, here, here and here. In contrast, Amberber is a bright spot for employers. The Court not only reaffirmed the principle that termination clauses must be interpreted as a whole, but also held that courts should not strain to create an ambiguity where none exists.
Continue Reading ONCA Upholds Termination Clause and Signals to Courts to Not Create Ambiguity Where None Exists

Employers who include discretionary bonuses as part of their employees’ compensation packages should be aware of the Ontario Court of Appeal’s latest guidance on (i) bonus entitlement for the period up to dismissal and (ii) compensation for the loss of a bonus during the reasonable notice period. This guidance came in the Court’s decision, issued last week, in Singer v. Nordstrong Equipment Limited, 2018 ONCA 364. Our analysis of the lower court’s decision in this case can be found here
Continue Reading Is Your Dismissed Employee Entitled to a Bonus?

Many employers rely on the discretionary nature of their bonus plans to deny bonuses to employees they’ve dismissed. However, in last month’s decision in Singer v Nordstrong Equipment Limited, 2017 ONSC 5906, the Court held that stipulating that a bonus is discretionary in the policy doesn’t necessarily give the employer complete freedom to withhold the bonus. Rather, discretionary bonuses must be awarded through a “fair, identifiable process.”
Continue Reading Is a Discretionary Bonus Really Discretionary?

The Supreme Court of Canada (“SCC”) recently ruled that a unilateral contract renewal clause was valid, despite its potential to bind one party perpetually: Uniprix inc. v. Gestion Gosselin et Bérubé inc. The clause afforded sole discretion to the respondents to renew or terminate their contract with Uniprix. The wording of the clause, the nature of the contract and the relationship between the parties were determinative in the majority’s ruling, which upheld the decisions of the Court of Appeal and the Superior Court of Quebec. The SCC’s decision and our key takeaways are outlined below.
Continue Reading SCC Decision Reminds Employers to Draft Termination Clauses with Care

In the recent decision of Covenoho v. Pendylum Ltd., 2017 ONCA 284, the Ontario Court of Appeal put an end to any debate about the enforceability of termination provisions in employment agreements that may violate minimum employment standards legislation in the future. The takeaway for employers from the case is as simple as it is noteworthy: a termination provision that breaches minimum employment standards legislation in the future – even if compliant at the time of the employee’s termination from employment – is void and therefore will not be enforced.
Continue Reading Into the Void: Potential Future Violations of ESA Sufficient to Set Aside Employment Contract

On July 14, 2016, the Supreme Court of Canada confirmed that most federally-regulated, non-union employees can only be dismissed for “just cause” after 12 consecutive months of service (Wilson v. Atomic Energy, 2016 SCC 29). As a result of this decision, it is now clear that employees who are regulated under Part III of the Canada Labour Code cannot, following their first year of employment, simply be provided with termination notice or pay in lieu, absent a compelling reason for terminating the employment relationship.
Continue Reading Supreme Court of Canada: A Dismissal “Without Cause” is an “Unjust Dismissal” (Part III of the Canada Labour Code)