Category: Employment Law

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.

Continue reading 'Income Replacement Options for Ill Employees'»

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.

Continue reading 'Caveat Venditor – Non-Competition Agreements in Asset Sales'»

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.”

Continue reading 'Whose Invention Is It Anyway?'»

The Duty to Accommodate: A Do’s and Don’ts Guide for Returning Injured & Disabled Employees to Work

By , May 30, 2013 2:54 pm

Accommodating a disabled employee can be one of the most frustrating experiences for an employer and employee. The parties are often suspicious of each other and generally do not understand their respective rights and obligations. To make matters worse, the stakes are high: Typically, the employee is in a vulnerable position financially, physically and/or psychologically, as he or she is attempting to return to work after a period of unemployment. Accordingly, the consequences of a failure to reinstate can be devastating. Conversely, the chances of an employer unintentionally violating the Human Rights Code are high and the potential liability can be significant, as was most recently evident to an employer that was ordered to pay an employee, among other things, approximately 9 years or $500,000 in lost wages and $30,000 in general damages for failing to accommodate her return from a disability leave: Fair v. Hamilton-Wentworth District School Board 2013 HRTO 440.

In this joint article, employment lawyer J.P. Zubec of Kelly Santini LLP and Christine McCool of TRAC Group Inc., a leading employee/employer disability management company, provide a helpful guide to employers  dealing with injured or disabled employees.  Part I of the article provides a detailed review of an employer’s legal rights and restrictions when dealing with injured or disabled employees.  Part II looks at the proactive steps that employers can take to facilitate a faster, smoother and more cost-efficient return to work by the employee.

Continue reading 'The Duty to Accommodate: A Do’s and Don’ts Guide for Returning Injured & Disabled Employees to Work'»

Pregnant Employees are Entitled to Greater Notice of Dismissal

By , April 6, 2013 1:07 pm

Is a pregnant woman entitled to a great amount of notice of her dismissal than other employees? Does firing an employee while she is pregnant merit an award of punitive damages?

The answer from at least one Ontario Superior Court judge, to both questions, is yes.


My employment law blog has previously looked at the issue of termination of employment following maternity leave in the post Fired After Maternity Leave, which is, by far, the blog’s most popular post.

As is explained in that post, if an employer takes the decision to terminate an employee off on maternity leave for reasons other than those related to the fact that she took maternity leave (which is a question of fact), then, while the decision and action itself may not be wrongful, the amount of notice to be provided to that dismissed employee may not be sufficient. (Again, for an explanation of what makes a dismissal, “wrongful” see What is Wrongful Dismissal?)

Continue reading 'Pregnant Employees are Entitled to Greater Notice of Dismissal'»

How to Tell if an Ontario Worker is a Construction Employee

By , March 18, 2013 9:32 am
Not all workers in Ontario are covered by all aspects of Ontario’s labour and employment laws. Some workers’ rights, for example bank employees and those who work for the federal government, are governed by the Canada Labour Code. In other cases, even those who are generally covered by the Ontario Employment Standards Act, 2000 are not covered for all aspects.
One such exemption is with respect to “construction employees.” However, sometimes determining whether a worker is a “construction employee” is more complicated than it may initially appear.

Lack of Concrete Time Limit in Non-Competition Clause Unreasonable

By , February 15, 2013 2:22 pm
The Court of Appeal for Ontario has ruled that a non-competition and non-solicitation agreement used by a construction company was unenforceable because the applicable time limit was notconcrete. In Martin v. ConCreate USL Limited Partnership, 2013 ONCA 72 (CanLII), released February 5, 2013 the Court of Appeal reversed an earlier Application decision, 2012 ONSC 1840, of the Honourable Justice Paul Perell, who had found the agreements enforceable.

Facts of the Case

The facts of the case are rather complex and involve a complicated transaction in which the employee, Derek Martin, sold his interest in a concrete company to his eventual employer, ConCreate USL. An oversimplification of the material facts is as follows:When Mr. Martin sold his interest in his company to ConCreate and joined them as an employee he signed an employment agreement containing, amongst other things, a non-completion agreement and a non-solicitation agreement.

The agreement provided that Mr. Martin’s covenants not to compete with ConCreate or solicit its customers or staff would run for a period ending twenty-four months after his disposition of his direct or indirect ownership interest in the company.

The agreement further provided that third parties, including lenders, had to provide consent to Mr. Martin’s disposition of his interest in the company.

The latter two points were the points fatal to the agreement. Continue reading 'Lack of Concrete Time Limit in Non-Competition Clause Unreasonable'»

© Kelly Santini LLP 2012.