“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.

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

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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

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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

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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

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Nasty Fighting Between Relatives Who Work Together Not a Reprisal Under the OHRC

In Leason v ADAMANDA In o/a Dairy Queen and Grill Huntsville,  2023 HRTO 1652 ( Adjudicator Daud ) the applicant raised a reprisal complaint against her employer.

The manager of the store was the applicant’s first cousin.

The problem seemed to have arisen when the manager’s sister ( not an employee at the time but also the applicants’ cousin) uninvited the applicant to her birthday party, which greatly upset  the applicant.

Thereafter the three cousins ( including the applicant and her manager) engaged in some heated emails and verbal exchanges about this apparently grave injustice done to the applicant.

Query: If you are disinvited to a birthday, do you still have to give a gift?

In denying the reprisal complaint, this is what the adjudicator said :

[66] Michelle Turner also testified that any foul language used between her, and the applicant was only because they were cousins and friendly with each other. The testimony at the hearing confirmed that these three persons (applicant and her two cousins) were not communicating as fellow employees but rather as cousins. The frankness and feud in these communications can only be labelled as bickering among family members and cannot be considered as a poisoned work environment due to the fact that the text messages were not related to work, they and were exchanged outside of work, and the primary reason for this exchange of messages was because the applicant’s cousin was unable to attend the party and the applicant was uninvited from her cousin’s birthday party.

Comment:

This case illustrates another good reason why not to work with family in a business.

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

For mediation dates, go to www.barryfisher.ca

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

 

 

 

Court Reminds Us AGAIN that IDEL Layoff = Dismissal :

In  Webb v. SDT North America, 2023 ONSC 7170 the Superior Court told us again that putting someone on IDEL ( Infectious Disease Emergency Leave ) is allowed under the ESA but not under the common law. Nor does silence about the layoff constitute acceptance.

Therefore a 55 year old Shipper Receiver with 13 years service got a 15 month notice period .

In calculating damages the Court did two things which I thought were odd .

1. The Court said that the Plaintiff was entitled to 6% of his gross salary as vacation pay.

Normally one does not receive vacation pay over the common law notice period unless it was the practice of the employer to add the vacation pay to each pay check. The reason for this is because if I am employed for 52 weeks at $52,000 per annum but am entitled to 3 weeks vacation, at the end of the year my T4 shows $52,000 but I only had to work 49 weeks. If however I am entitled to 12 months pay in lieu of notice I should end up with the same $52,000 not $52,00 plus 6% ( $3120 ).

2. The employee earned $3700 during the notice period which the Court deducted from the award. This would seem to go against the Court of Appeal case in Brake v PJ-M2R Restaurant where it was held that minor amounts like this do not count as mitigation income.

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

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Federal Court of Appeal Confirms that an Adjudicator under the Unjust Dismissal Section of the CLC can Award Substantial Indemnity Costs ;

In Amer v. Shaw Communications Canada Inc., 2023 FCA 237, Justice Gleason upheld the Adjudicator’s award of substantial indemnity costs even where there was no finding of circumstances where there was reprehensible, scandalous or outrageous conduct on the part of the employer.

The Court upheld the more modern view that to not award such costs to an innocent employee is to punish them for pursuing their legal rights .

This is what they said:

[100] In the case at bar, the appellant was of limited means, earning just under $40,000.00 per year when employed by the respondent. In addition, she was a single parent. Given the amount of damages awarded in the instant case, which were limited to out-of-pocket losses for a relatively short period and a modest amount of severance pay, it is entirely possible that the fees charged by the appellant’s counsel might have been close to or perhaps even exceeded the amount of damages awarded. Were this the case, the appellant would have been worse off for pursuing the complaint than she would have been had she not filed a complaint. Such a result would be the antithesis of a remedial order and defeat the purpose of the unjust dismissal provisions in the Code.

[101] On the other side of the ledger, the appellant was faced with a large respondent, with substantial resources and the ability to pay experienced labour counsel, who mounted a lengthy case over several days of hearing and through lengthy written submissions.

My Comments ;

This is an important win for dismissed employees who utilize the unjust provisions of the CLC. As managers are statutorily excluded from the unjust dismissal provisions, the average claimant is of modest means. In fact, many of these claimants are self represented, resulting in rough justice at best.

By making sure that winning claimants can afford lawyers, the quality of the adjudications would also rise.

Unlike the civil justice system where a losing plaintiff can face a substantial adverse costs award, under the CLC the Adjudicator cannot award costs against a losing claimant .

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

Court Upholds Leave of Absence as OK for Dealing with Anti Vaxer:

In Van Hee v Glenmore Inn Holdings Ltd., 2023 ABCJ 244 (CanLII) Justice Burt found that a policy requiring the Covid Vaccine for a restaurant server to be reasonable.

The Plaintiff ( who refused to get vaccinated ) was put on a leave of absence without pay until she either got vaccinated or until the Defendant lifted the vaccine requirement.

The Plaintiff claimed that she had been constructively dismissed. The Court found that she had resigned as soon as she claimed that she had been constructively dismissed.

This is what the Court said :

[68]           In sum, imposing the Policy, including an unpaid leave of absence as a consequence of the Plaintiff choosing not to be vaccinated, did not amount to constructive dismissal nor a breach of the Contract on the part of the Defendant. The evidence as a whole has established the Defendant acted reasonably, lawfully and with justification in enacting the Policy that allowed the Plaintiff to make a choice as to whether she would be vaccinated.

[79]           The law, applied to the facts of this case, supports the conclusion that the Policy was a reasonable, justified and lawful response by the Defendant to the extraordinary circumstances of the Pandemic in 2021. Placing the Plaintiff on unpaid leave balanced the Defendant’s business interests, statutory and contractual obligations, the rights of its employees to a safe work environment, and the safety concerns of its customers, while ensuring that individuals like the Plaintiff could refuse to get vaccinated without termination of employment and instead, choose an unpaid leave of absence.  

My Comments ;

Many cases have already upheld these mandatory vaccine policies.

What is interesting about this case is that it seems to endorse an unpaid LOA, but it may not uphold a termination for just cause.

The highlighted comment about balancing the two interests seems to suggest that had the Plaintiff been terminated instead of being put on a LOA that the outcome may have been different .

However, this begs the question as to how long does an employer have to wait to decide if the person on the LOA needs to be replaced ? It may well be easy to temporarily replace a server, like this Plaintiff, but what if the employee held  a critical position within the company, like the Comptroller? It would be near impossible for an employer to hire a temporary Comptroller that would be subject to termination on a days notice if the Comptroller on  LOA changed their mind and got vaccinated. What is the temporary replacement cost more per diem than the person on layoff? What if the refusing employee declared that they will NEVER get vaccinated ?

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One Year Fixed Term Contract Means What it Says :

n Elder v. Max Wright Real Estate 2023 ONSC 5661 , Justice Koehnen had a situation where a real estate agent had a one year fixed term contract will an automatic renewal clause .

It also had the following clauses :

Q. TERMINATION OF AGREEMENT
1. In the event the Contractor violates this Agreement or otherwise fails to conduct his/her business in accordance with the terms of this Agreement, the Company may terminate this Agreement immediately and without notice.

2. Either party may terminate this Agreement, without cause, at any time with written notice to the other party.

The Defendant argued that , in reliance on section 2 above, that they could terminate the contract without cause without any notice, reasonable or otherwise, notwithstanding the one year fixed term .

This is what the judge said :

I nevertheless conclude that the concept of notice even in clause Q 2 must refer to the period of advance warning. If it were otherwise, it would render the inclusion of a one-year renewable term in clauses A 1 and A 3 superfluous and would in fact negate the concept of a renewing one-year term. The concept of a one-year renewing term would be meaningless if either party could terminate the contract at will, at any time, without any advance warning. It is a well accepted canon of contractual interpretation that contracts should be read as a whole and should be read harmoniously so as to avoid conflict between terms and so as to avoid rendering any terms superfluous. The easy way of doing that here is to interpret the concept of “notice” in accordance with the well-established concept of common-law notice of termination in the sense of advance warning.

[22] In clause Q 2 the actual amount of notice is not referred to because it is not necessary to do so. The amount of notice required is the period of time remaining in the one-year term.

My Comment :

This decision is so obviously correct.

According to the Defendants’ interpretation, the whole contract was at will . Why then have a fixed term? Why then have a with cause clause?

It is great to see that sometimes common sense prevails, even in law.

The judge found that because the plaintiff was not an employee but a contractor , the plaintiff  had a duty to mitigate and and such his damages were reduced by the income he earned from new employment during the balance of the 11 months in the fixed term contract.

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CIRB Rules That to be a Dependant Contractor under the CLC the Person Must Derive at Least 50% of their Income From the One Source:

In Gee v Corus Entertainment ( 2023 CIRB 1090) Adjudicator Rogers ruled that an regular guest on air contributor who appeared twice a week was not an employee and thus not covered by the Unjust Dismissal section of the Canada Labour Code.

The CLC also covers Dependant Contractors, however this is what the Adjudicator said on this point :

[22] Turning to the question of whether the complainant meets the test for a dependent contractor, the Board finds that the undisputed facts establish that she was not economically dependent on Corus. Rather, the uncontested facts are that she worked for various other media outlets throughout her tenure with the employer and that only 25 per cent of her income was from Corus.

This is well below the near-exclusivity threshold of at least 50 per cent as contemplated in the above-noted cases.

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