Month: February 2024

“I Can Terminate You at Any Time ” Makes Termination Clause Void:

In  Dufault v. The Corporation of the Township of Ignace, 2024 ONSC 1029, Justice Pierce reviewed the following without cause termination clause :

“The Township may at its sole discretion and without cause, terminate this Agreement and the Employee’s employment thereunder at any time upon giving to the Employee written notice as follows: 


(i) the Township will continue to pay the Employee’s base salary for a period of two (2) weeks per full year of service to a maximum payment of four (4) months or the period required by the Employment Standards Act, 2000 whichever is greater. This payment in lieu of notice will be made from the date of termination, payable in bi-weekly installments on the normal payroll day or on a lump sum basis at the discretion of the Township, subject at all times to the provisions of the Employment Standards Act, 2000. “The judge found that this clause was illegal as it contravened the ESA in the following ways :

1. Base Salary is different from Regular Wages as required by the ESA which can include commissions, bonuses and the like.


2. Section 61(1) of the ESA requires that pay in lieu of notice be paid as a lump sum and not on an installment basis.

3. By giving the Employer the sole discretion to terminate at any time , this breaches both section 53 ( reinstatement after a protected leave ) as well as Section 74 ( reprisal for exercising a right under the ESA).My Comments :

This case now adds to the long list in the way which poorly drafted termination clauses can violate the ESA and render the entire termination provision unenforceable . Normally this leads to a determination of reasonable notice, however in this case because the Plaintiff was terminated partly into a fixed term contract ( another huge mistake in drafting ) she received compensation for the balance of the contract , which was 101 weeks or $157,071.

This case is under appeal.

If you like a copy of this case, email me at barry@barryfisher.ca

If you like to book a mediation or an arbitration, go to www.barryfisher.ca

If you like access to the Wrongful Dismissal Database, go to www.wddonline.ca

Barry B. Fisher LL.B.

Ontario Rules of Civil Procedure No Longer Presume that Mediations are in Person :

In Davies v Marks Supply ( no Canli listing yet ) Associate Justice Brown, in a case conference to determine whether a mediation would take place in person or on ZOOM, had this to say about the new provincial Guidelines To Determine Mode of Proceeding that came into force on February 1, 2024.

[6] Contrary to the defendants’ submission, the provincial Guidelines To Determine Mode of Proceeding in Civil Matters no longer provide that discoveries and mediation are presumptively in person. The Guidelines were revised effective February 1, 2024 to remove any presumption for out-of-court proceedings.

A.J. Brown then determined that because the Plaintiff resided in New Brunswick both the discoveries and the mediation would take place virtually.

My Comments:

The previous Guidelines made mediations presumptively to be in person and only a Court could order otherwise. This led to the situation where one party could effectively force the other party into an in person mediation because the delay and cost of going to Court to try to overcome the presumption was neither cost effective nor time effective.

Now that we have no such presumption, what happens when the parties cannot agree? It looks like the parties would have to convene a Case Conference before an Associate Justice to determine the matter.

In my opinion this is a waste of money, time and scarce judicial resources.

I have two suggestions :

1. Make virtual mediation the presumption. Over 95% of the mediations that I and other employment law mediators conduct are virtual. This is the overwhelming client preference.

OR

2. Empower the meditator to make the decision. Mediators already largely determine the manner in which a mediation is conducted so why not give them this power. Moreover, by using their mediation skills, I suspect in most cases they can work out a mediated solution to this issue.

If you would  like a copy of this case, email me at barry@barryfisher.ca

If you would like to book a mediation or an arbitration, go to www.barryfisher.ca

For access to the Wrongful Dismissal Database, go to www.wddonline.ca

Ethical Veganism is Not a Creed under the Ontario Human Rights Code:

In Knauff v. Ontario (Natural Resources and Forestry) 2023 HRTO 1729, Adjudicator Karen Dawson found that ethical veganism was not a protected ground under the Ontario Human Rights Code as it was not a Creed.

She adopted the OHRC definition of Creed as having the following definition

1.     Is sincerely, freely and deeply held

2.    Is integrally linked to a person’s identity, self-definition and fulfilment

3.    Addresses ultimate questions of human existence, including ideas about life, purpose, death, and the existence or non-existence of a Creator and/or a higher or different order of existence

4.   Is a particular and comprehensive, overarching system of belief that governs one’s conduct and practices

5.     Has some nexus or connection to an organization or community that professes a shared system of belief.

Having listened to expert witnesses, she found that although ethical veganism fulfilled criteria 1 and 2 it did not pass the third criteria . This what she said :

[18]      With respect to the third part, I find the evidence presented at the preliminary hearing demonstrated that ethical veganism addresses humans’ relationships with other animals and the natural environment, but failed to demonstrate that ethical veganism addresses ultimate questions of human existence beyond this, or the existence or non-existence of a higher or different order of existence and/or a Creator.

[19]      Moreover, while Dr. Joy testified that ethical veganism calls into question the meaning of life, our place in the world and the cosmos and how a compassionate universe can allow suffering, these are very general philosophical observations and do not demonstrate how ethical veganism addresses the existence or non-existence of another order of existence and/or a Creator.

{20]      In his legal submissions, the applicant characterized ethical veganism as a non-religious belief system. While I agree with the applicant that the Policy says creed may include religious and non-religious belief systems, a non-religious belief system must still address all five parts of the test.

[21]      The applicant’s counsel also submitted that an ethical vegan’s spirit, soul, and sense of morality cannot countenance participation in the killing and consumption of animals and that by eschewing such participation, ethical vegans achieve a deep sense of spiritual fulfillment. They submitted that this spiritual fulfillment satisfies the third part of the test. However, I am unable to identify any evidence presented by the applicant or the two expert witnesses that ethical vegans derive spiritual fulfillment from their practices and beliefs.

[22] I find that on the evidence presented, ethical veganism does not address the existence or non-existence of a Creator and/or a higher or different order of existence, as required by the third part of the test. Accordingly, I find that ethical veganism does not constitute a creed within the meaning of the Code. The applicant therefore has failed to establish that he possesses this enumerated ground and the allegations of discrimination on this basis are accordingly outside the jurisdiction of the Tribunal.

My Comments:

This case emphasizes the limitation of the Creed provision in the OHRC. Not every firmly held belief fits within this protected category. Anti vaxers have tried unsuccessfully to rely on this section. People often feel passionately about certain political opinions and seek to characterize those opinions as a Creed and thus protected in the workplace. I submit that this case shows that that position would likely not be upheld.

As an aside, it would appear that atheism is a protected creed, as the third factor speaks of the belief of the “non-existence of a Creator”.

What about agnosticism ? Can it be a sincere belief when you aren’t sure one way or the other ?

If you like a copy of this case, email me at barry@barryfisher.ca

If you would like to book a mediation or an arbitration, go to www.barryfisher.ca

For access to the Wrongful Dismissal Database, go to www.wddonline.ca

In Proving Sexual Harassment You Can’t Just Rely on an Investigation Report:

In Kozar v The Canadian National Railway  Company ( 2024 MBKB ) Justice Rempel heard a summary judgement motion regarding a 61 year old Senior Material Supervisor with 34 years service who was terminated for sexual harassment .

CNR relied completely on an investigation report done by a third party, who did not testify at the motion. CNR did not call any witness who actually made the termination decision. Moreover the Investigator made negative  findings about the Plaintiff’s credibility. CNR could not even show that the decision maker had even read the investigation report.

The judge found that the investigation report was hearsay evidence and the failure to call the decision maker meant that CNR had not proven just cause nor did they prove that alternative discipline measures short of dismissal  were even considered.

The plaintiff was awarded 24 months notice .

My Comments :

This case illustrates the misconception about investigations of this nature.

Investigators are hired by employers to interview witnesses, make findings of fact and sometimes to recommend action. This provides management with a firm factual basis upon  which to make its  decision .

However, the report is NOT evidence at a trial or an adjudication as to the truth of the findings.

It is NOT a substitute for calling actual witnesses to the relevant events .

It IS complete hearsay and frankly should not be admitted at all, except to show that management did its homework and did not make a rash decision .

But the job of a judge or an arbitrator is not to determine whether management made a reasonable decision, rather it is to determine what actually happened. Therefore the opinion of the investigator is completely and utterly irrelevant .

I had a case a few years back in which I was the arbitrator involving the discharge of a Correctional Officer for the use of excessive force.

The Employer had a done a thorough and impressive investigation, having interviewed  numerous witnesses, including a prisoner who was an eye witness. The Superintendent, in reliance on the report, dismissed the employee. Based on the information in the report, I would have done the same.

However, by the time of the arbitration , the Employer was unable to call many of those witnesses, including the eye witness. I therefore found, on the evidence before me, that the Employer had not proven just cause.

In that case, the Union did not allege that the Employer breached any due process  obligation nor did it allege any aggravated or punitive damages.

Investigations have an important place in the workplace, but they are not a substitute for proving every element of just cause at a trial or an arbitration with first party evidence.

If you like a copy of the this case, email me at barry@barryfisher.ca

If you would like to book a mediation or arbitration, go to www.barryfisher.ca