Category: Employment Law

Ontario Small Claims Court Awards Human Rights and Punitive Damages after New Mom Constructively Dismissed

comments Comments Off
By , March 26, 2015 1:33 pm
There is a saying in law that bad facts make bad law. Of course, the opposite is also true; good facts make good law. In a clear demonstration of the latter, the case of Bray v Canadian College of Massage and Hydrotherapy, 2015 CanLII 3452 (ON SCSM) demonstrates what happens when experienced counsel appears before an experienced trial judge with some pretty decent facts.

While Bray looked at a number of issues of importance to Ontario employment law, the four most interesting features are:

  1. The judge’s finding that an indefinite layoff is a constructive dismissal;
  2. The judge’s finding that he had no power to award damages for an act of reprisal following a complaint to the Ontario Ministry of Labour;
  3. The judge’s award of human rights damages in an Ontario Small Claims decision; and
  4. The judge’s award of punitive damages for a breach of the duty of honest created by the Supreme Court of Canada in Bhasin v. Hrynew, [2014] S.C.C. 71.

Continue reading 'Ontario Small Claims Court Awards Human Rights and Punitive Damages after New Mom Constructively Dismissed'»

Preparing Your Business for Sale – Guide

comments Comments Off
By , November 13, 2014 10:20 am

New guides looks at the legal steps you can take ahead of time to help ensure
a smooth process and a profitable sale.


Time to sellAs a business owner, you’ve spent years establishing your company. You’ve managed it through challenges and built it into the successful operation it is today. Selling can be a tough decision, and if you are considering a sale, now is the time to arm yourself with the facts to ensure it’s as smooth, equitable, and profitable as possible.It can take years to get your business ready to put on the market. It will take time, but it’s time well spent. And that’s where this guide comes in. It will help you prepare your business to withstand the rigorous due diligence process needed to achieve a sale price worthy of your years’ of effort and hard work. In this guide you will find information on:

  • Getting your company records ready
  • Formalizing your external relationships with contracts
  • Updating your employee contracts
  • IP considerations when selling your business
  • Preparing for family business succession
  • Ensuring your shareholders’ agreement is up to date
  • Understanding the nuances of selling your franchise
  • Restructuring your business for tax efficiency
  • Selecting a business broker

The business law lawyers at Kelly Santini LLP can assist you with each of the pre-sale actions and the ultimate sale of your business.


Three New Statutory Leaves of Absence Coming Into Force in Ontario

comments Comments Off
By , November 11, 2014 12:23 pm

Leave of absenceOn April 29, 2014, Bill 21, also known as the Employment Standards Amendment Act (Leaves to Help Families), 2013, was passed by the Ontario Legislature and received Royal Assent. Effective October 29, 2014, Bill 21 creates the following three new classes of statutory leaves of absence offered to employees under Ontario’s Employment Standards Act, 2000 (the “Act”): 1) family caregiver leave, 2) critically ill child care leave, and 3) crime-related child death or disappearance leave.

These three new leaves are in addition to existing statutory leaves of absence under the Act and can be used in conjunction with such leaves, notably the “family medical leave” as well as “personal emergency leave.” Below is a summary of each new statutory, job-protected leave of absence. Continue reading 'Three New Statutory Leaves of Absence Coming Into Force in Ontario'»

IP Considerations When Buying/Selling a Business

comments Comments Off
By , October 16, 2014 3:23 pm

Whether you are a business owner looking to prepare your business for an eventual sale, or a buyer looking to acquire a business, there are a number of relevant Intellectual property diagramintellectual property law issues to consider before and during the sale/purchase process. Three of the most important are outlined below:

1. Ownership
There can be substantial value in a company’s intellectual property, but only if the succeeding company owns, or has valid licenses for, all intellectual property that is used in the company’s business. Ownership needs to be properly confirmed by: (i) reviewing all agreements (such as assignments, license agreements and prior sale and purchase documents) with third parties pursuant to which the selling company is granted ownership or the right to use such third parties’ intellectual property; and (ii) by confirming that all of the selling company’s employees and contractors (who have or will create some or all of the relevant intellectual property) have executed proper written employment agreements and/or agreements assigning ownership of all intellectual property and technology developed by those persons to the selling company. In the absence of proper agreements, ownership of inventions (whether or not patentable) may initially belong to the inventor and not the company.
Continue reading 'IP Considerations When Buying/Selling a Business'»

The Not-So-Independent Contractor

comments Comments Off
By , October 4, 2014 8:52 am

From 2000-2006, there was a television program called “Malcolm in the Middle.” The show was called as much because the lead subject was the middle child of three: Malcolm. The theme song for the show ended with the line “life is unfair.” But is life truly unfair for those caught in the middle?

The purpose of this post is to consider the middle category of employment; those who are neither true employees but are not exactly independent contractors either: the intermediate position of “dependent contractor”.

As this post will hopefully demonstrate life is not always unfair to those who find themselves ‘in the middle.’

Continue reading 'The Not-So-Independent Contractor'»

Location, Location, Location! What a Demographic Shift Might mean for Employers

comments Comments Off
By , September 8, 2014 11:00 am

Location, location, location. It is the number one rule in real estate. Simply put, the mantra of real estate agents everywhere means that identical properties sited in different places will demand different prices depending upon the desirability of the neighbourhood. But what does this have to do with employment?

In promoting a compelling opinion piece in the Toronto Star on September 6, 2014, “In complete communities, pedestrians take precedence,” Chief Planner for the City of Toronto, Jennifer Keesmaat tweeted “employers want to be near echo boomers; to attract emplmt across the city.”

Within the body of the editorial, Ms. Keesmaat noted that Large employers like Coke and Google are moving to the core as they clamour to be near this future workforce. Asked for evidence of the same, Ms. Keesmaat delivered.

Continue reading 'Location, Location, Location! What a Demographic Shift Might mean for Employers'»

Continuity of Employment Following the Sale of a Business

comments Comments Off
By , August 26, 2014 10:03 am

What are we doing about the employees? That is the all-too-familiar question asked in the purchase and sale of a business. Are all the employees fired on closing? What happens if they continue working for the purchaser? Who is responsible for paying them severance?

In fact, there are a lot of questions concerning employees in the context of a purchase and sale of a business; presuming that the business has employees.

The purpose of this post is to look at some of the issues and legal implications involved in selling or buying a business, which is also an employer.

Continue reading 'Continuity of Employment Following the Sale of a Business'»

Mandatory Retirement for Partners in Ontario may be Illegal

comments Comments Off
By , July 7, 2014 8:31 am

Earlier this year, the Supreme Court of Canada unanimously held that the Human Rights Tribunal of British Columbia lacked jurisdiction over a complaint filed by an equity partner of a national law firm: McCormick v. Fasken Martineau Dumoulin LLP, 2014 SCC39 (“McCormick”). Through his complaint, the equity partner (Mitch McCormick), challenged a mandatory retirement provision in that firm’s partnership agreement as being discriminatory. While the Court’s decision was unanimous, it unfortunately does not resolve the issue for partnerships in Ontario.

One of the reasons is Mr. McCormick filed his complaint under a section of the Human Rights Code (British Columbia) that only applies to employees. British Columbia’s Human Rights Code does not have a provision that expressly protects the right to contract without discrimination. Ontario’s Human Rights Code, however, is much broader in scope. In Ontario, every person having legal capacity has a right to contract on equal terms without discrimination because of, among other things, age. This provision has been applied to a wide variety of contracts, including independent contractor agreements. In my opinion, there is no doubt that this provision applies to partnership agreements in Ontario and the decision of the Supreme Court of Canada in McCormick may have been different if Mr. McCormick had this protection.

Continue reading 'Mandatory Retirement for Partners in Ontario may be Illegal'»

Employment Law Considerations When Selling Your Business

comments Comments Off
By , June 17, 2014 12:16 pm

For many, the prospect of retirement is a welcome thought. Perhaps you will finally have more time to spend with your spouse, children, or grandchildren. For others, retirement is an opportunity to catch up on golf, travelling, or just plain doing nothing.

For many business owners, including professionals such as doctors, lawyers, and accountants, the means by which to finance such a retirement have often come by way of a sale of oneís business or practice. A book of business can have incredible value to a willing purchaser and certainly our firm has helped several professionals successfully sell their business.

While my colleagues in Kelly Santini LLP’s business law group would be more than happy to be of service to you with respects to the legalities of such a sale, the purpose of this post is to consider the employment law considerations of selling a business; because, in addition to being a successful business owner and professional, most such individuals are also employers.

Something that most business owners fail to appreciate is that, while, for all the years that oneís loyal staff has been an asset, for potential purchasers, long-service employees can be an costly liability.

This post will look at:

  1. What business owners / employers need to know about the right to end employment;
  2. What business owners / employers need to know about written employment contracts; and
  3. What business owners / employers need to know about human rights legislation in the employment context.

Continue reading 'Employment Law Considerations When Selling Your Business'»

The Requirement to Pay Severance in Ontario Just Got a Lot More Complicated

comments Comments Off
By , June 16, 2014 8:56 am

In a decision that will be sure to have ripple effects beyond Ontario’s borders, an Ontario Superior Court judge has ruled that for the purposes of calculating an employer’s payroll, in order to determine whether an employee is entitled to statutory severance pursuant to section 64 of the Ontario Employment Standards Act, 2000, one looks at the employer’s entire payroll, not just that of its employees in Ontario.

The case is important because under a previous line of cases, the most recent of which being Altman v. Steve’s Music, 2011 ONSC 1480 (CanLII), the court had held that it was only the employer’s payroll in Ontario that was to be considered.

For employers with operations both inside and outside of Ontario, what the case means is that even if your operations in Ontario are modest, if the company’s total payroll exceeds the statutory limits of $2.5 million dollars, employees working in Ontario may now be entitled to statutory severance pay. This decision has the potential to increase an employer’s contingent liability with respect to severance obligations by a factor of more than three!

Continue reading 'The Requirement to Pay Severance in Ontario Just Got a Lot More Complicated'»

© Kelly Santini LLP 2012.