Category: Employment Law

Mandatory Retirement for Partners in Ontario may be Illegal

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.

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Employment Law Considerations When Selling Your Business

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

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!

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All Employers Required to Train Staff Under New Health & Safety Act

By , May 13, 2014 9:02 am

The new legislation states that ALL employees must receive the minimum required training, including white collar and clerical staff.

Being July 1st, 2014, every employer in the province of Ontario will need to comply with the Ministry of Labour’s new Occupational Health and Safety Training Regulation.  This new legislation may catch many employers off-guard. Past training requirements under the Occupational Health and Safety Act have resulted in employers focusing on employees involved in physical work and the resulting risk of injury. The new legislation states that ALL employees must receive the minimum required training, including white collar and clerical staff whom employers might not have associated with having a risk of injury in the workplace.  In addition, all staff supervisors must also complete a separate health and safety training curriculum.  Corporations failing to comply with the new requirements can face a maximum fine of $500,000 if successfully prosecuted.

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Not All Employees are Entitled to Severance

By , March 18, 2014 9:56 am

A common misconception among both employers and employees is that anyone who is fired from his or her job in Ontario is entitled to severance; that simply is not the case. However, saying that a dismissed employee is not entitled to “severance” does not mean that the employee is not entitled to anything. What employees are entitled to varies.

As is explained in more detailed on my Labour Pains blog,  (see: What is Wrongful Dismissal) when people think of “severance” what they are actually thinking of is “notice.” “Notice” and “severance” are legal terms with defined meanings. Continue reading 'Not All Employees are Entitled to Severance'»

Income Replacement Options for Ill Employees

By , January 14, 2014 9:15 am

There are few good reasons to find oneself suddenly unemployed. However, of all the reasons to find oneself suddenly unemployed, the worst must be because one is sick.

This article will look at how to replace (at least in part) the income stream lost when an employee must focus his or her efforts on, and devote his or her time to, getting better rather than working.

There are a number of ways an employee who is unable to work for medical reasons can maintain an income stream. This three most common options are:

  1. Long-term disability benefits;
  2. Employment agreements; and
  3. EI Sickness Benefits.

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Employers Still Decide If Sick Notes From Doctors Are Required

By , January 9, 2014 10:50 am

Requiring a sick note from a doctor is at the sole discretion of employers.

Despite the Ontario Medical Association’s (OMA) recent statement that sick employees should not be required to provide employers with a notes from a doctor, this requirement remains at the sole discretion of each employer.  So long as the sick note policy is not discriminatory in any way, (see this post from May 2013 on a Human Rights Tribunal of Ontario ruling) employers can continue to require that sick employees provide notes from doctors. Each company’s sick note policy must be specified in the companies employment policies.  These policies should be explained to employees when joining the company and be easily accessible in print or electronic format.

The statement from the OMA is likely to cause some confusion amongst employees who may now feel that a sick note is no longer required.  Employers who wish to continue their sick note policy should take steps to remind all employees of the policy requirements in order to avoid future disputes with staff.

Caveat Venditor – Non-Competition Agreements in Asset Sales

By , November 20, 2013 10:57 am

Can a five-year non-competition agreement be legally enforceable? If it is attached to the sale of a part of your business it can be, says the Supreme Court of Canada.

In the most recent of decisions from the highest court concerning non-competition agreements and restrictive covenants, Payette v. Guay inc., 2013 SCC 45, released September 12, 2013, the Supreme Court of Canada affirmed that non-competition agreements negotiated in the context of a sale are different from non-competition agreements included in a simple employment agreement.

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Ambiguous Term May Invalidate Non-Competition Agreements

By , August 19, 2013 10:25 am

Is the term “United States of America” ambiguous? In a decision with serious potential ramifications for employment law, the Honourable Justice Ellen MacDonald has held that it is.

Like other cases considered by this blog, TD General Insurance Co. v. Baughan, 2013 ONSC 333, is not strictly speaking an employment law case. The case concerned an Application brought by an automobile insurer, TD, for the court’s declaration that the United States Virgin Islands is not part of the “United States of America.” In reply, the insured, Baughan, argued that the term “United States of America” is ambiguous.

The case is of relevance for those in the employment law world because it is not uncommon for a non-competition clause to enumerate the “United States of America” as a geographic area in which a former employee is prohibited from working. If the term is ambiguous, then arguably the term is unenforceable. Continue reading 'Ambiguous Term May Invalidate Non-Competition Agreements'»

Whose Invention Is It Anyway?

By , June 5, 2013 4:24 pm

Does the existence of an employee/employer relationship disqualify an employee from patenting an invention discovered in the course of employment?  According to a 2000 decision from the Ontario Superior Court of Justice, Techform Products Ltd. v. Wolda, 2000 CanLII 22597; 5 BLR (3d) 111; 1 CCEL (3d) 118; 5 CPR (4th) 25 (ON SC) varied for reasons other than the issues considered in this post in 2001 CanLII 8604 (ON CA) the answer is “no.”

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