Articles 2019

The line between resignation and constructive dismissal has become increasingly blurred and is a common issue of contention in employment litigation. In the recent case of Persaud v Telus Corporation, the Ontario Court of Appeal provides useful guidance regarding the effect of conduct in determining whether a resignation is actually a constructive dismissal.

In this edition of our newsletter, Njeri Damali Campbell, Technology Liaison for the Labour and Employment Section of the OBA speaks with Hermie Abraham of Advocation Law about the use of technology in her labour and employment practice.

Bill 177, once passed, will amend the Employment Standards Act, 2000 and the Occupational Health and Safety Act to introduce a new leave of absence for employees who are or have experienced domestic or sexual violence, or whose children are or have experienced domestic or sexual violence.

The Hryniak decision called for a culture shift, and this shift has been strongly felt by employment lawyers, specifically with a recent increase in the scope of what summary judgment motions have been resolved, or partially resolved, by the Courts.

In Oudin v. Centre Francophone de Toronto, plaintiffs were reminded that the interpretation of employment contracts is not merely an exercise in searching for a reason to set aside a termination provision. The recent decision in Cook v. Hatch Ltd. suggests courts may be skeptical of arguments that aim to do just that.

A recent arbitral decision has endorsed an alternative framework for arbitrators considering misconduct that is connected to a disability. Previously, the consensus in Ontario was that arbitrators ought to simultaneously apply a disciplinary or just cause analysis to the culpable aspects of the misconduct and a human rights analysis to the non-culpable aspect. This single stage inquiry has now been supplanted in favour of a two-stage analysis.

The courts view just cause for dismissal as the capital punishment of employment law. Consequently, employers face a significant burden when trying to prove just cause at law. Arguing just cause for dismissal may be difficult; however, it is not impossible, especially in circumstances involving dishonesty or lack of trust. This article summarizes two recent decisions where employers were found to be justified in terminating employees with just cause based on forgery.

Since the Supreme Court’s ruling in Hryniak v. Mauldin, 2014 SCC 7 (“Hryniak”), summary judgment has become one of the primary tools used by employment lawyers. Recent Ontario court decisions have expanded upon Hryniak and now provide a framework for the circumstances in which to seek summary judgment in the context of a wrongful dismissal. These decisions, however, also serve as a reminder of the limitation of summary judgment and how parties should properly engage with it.