Articles 2019

Recently, the Ontario Divisional Court confirmed that incidents of harassment have to be investigated even in circumstances where there was no complaint, the harassing conduct was undertaken after working hours and away from the workplace, and the victim of the conduct did not wish to file a complaint.

While many employers are already considering, or are in the process of, taking steps to address the growing adoption and use of generative AI among their employees, important legal regulatory frameworks are also in development at both the Provincial and Federal levels. For lawyers advising employer clients grappling with generative AI in the workplace, it is increasingly important to keep an eye on the regulatory developments ahead.

Procedural fairness is critical to conducting appropriate workplace investigations and is a central component of ensuring objectivity and propriety in the investigation process. As illustrated in this recent Federal Court decision, a failure to ensure the procedural fairness of an investigation can be fatal to its ultimate findings – or invalidate the investigation entirely.

In a significant decision for unionized workers in Ontario, the Divisional Court confirmed that the Human Rights Tribunal of Ontario and labour arbitrators share concurrent jurisdiction to determine employment-based human rights claims arising in unionized workplaces.

My key message is simple: counsel should consider mediation or arbitration as early as reasonable in the process, bearing in mind the specific nature of the dispute.

A recent case underscoring the importance of ensuring termination clauses adhere to ESA minimum requirements and the need for employers to carefully consider whether to use fixed-terms when hiring employees.

The BC Court of Appeal affirms that an employee's surreptitious recordings of meetings and conversations with other employees, which were discovered post-termination in the course of litigation, constituted after-acquired just cause for dismissal.

Court backlogs worsened in 2023 thereby significantly delaying wrongful dismissal actions. While ADR processes help to reduce backlogs, Ontario does not have province-wide mandatory mediation, and most arbitration is a result of contractual termination clauses that can be challenged. One way to encourage voluntary mediation is for courts to penalize parties for failure to participate. So, how did our Courts fare in 2023 in promoting mediation and arbitration in wrongful dismissal matters?

Tips from a technology-savvy mediator on harnessing all the available tools to improve written advocacy at mediation and litigate more effectively.