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?

It could be a blizzard, a hurricane or a torrential downpour. The fact of the matter is that Mother Nature can, and will, strike; and, no matter what form it comes in, severe weather imposes challenges upon businesses of all sizes. When faced with issues like slippery or flooded roads, it can be tough to balance the needs of a business with the safety of its employees.

We often get questions from employers who are staring into the face of the proverbial tornado and trying to understand their rights and obligations. This blog will address four of the most commonly asked questions.
Continue Reading Weather Permitting? Employer Rights When Faced With Severe Weather

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

On July 16, 2014, the Ontario Government introduced  Bill 18, Stronger Workplaces for a Stronger Economy Act, 2014.  The Bill proposes changes that would (among other things) remove existing limits on unpaid wage claims, make temporary help agencies and their clients jointly liable for unpaid wages, and impose automatic adjustments to minimum wage based on the Consumer Price Index.
Continue Reading Six Changes to Ontario Employment Legislation Proposed

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