Toronto Employment Law Blog

Changes to Civil Justice System - Will they provide access to justice?

2010-01-05T08:02:05-05:00

On January 1, 2010, the Ontario civil justice system underwent a major overhaul.

Some of the major changes include:

a. Raising the Limits on General Damages - The limit for a claim in the Small Claims Court will be raised from $10,000 to $25,000.

b. Raising the Simplified Procedure Limit on Damages - Currently, the limit to have claims tried under the Rules of Simplified Procedure is $50,000. This limit will be increased to $100,000.

c. Limiting Examinations to One Day -

d. Litigation Management - The parties involved will have a greater responsibility for moving the matter forward in a timely fashion. The new rule however, will not apply to claims made in Toronto, Ottawa, and Windsor.

e. Greater Proportionality in Fees - The new changes will encourage judges to award costs for legal fees on a basis relative to the claim.

f. Modified Cost Rules for Summary Judgments - Judges will have greater discretion when awarding costs stemming from the same type of motion which will rely more on the appropriateness for summary judgment instead of the outcome.

A useful article in the Law Times, examines the issue and concludes that since the Province doesn't plan on spending more money in the small claims system, the delays will become increasingly prohibitive.

In redesigning the rules, the government may have simply traded one set of problems for another. Ironically, many of the new rules may actually end up costing litigants more money and taking their cases longer to resolve. Here are some of those problems for workplace legal disputes: http://www.metronews.ca/toronto/comment/article/332966--new-rules-may-not-be-as-employee-friendly-as-planned

An e-copy of the new rules is available on the Government website e-laws.

Daniel A. Lublin is an employment lawyer with the law firm Whitten & Lublin LLP, focusing on the law of dismissal. Daniel can be reached at dan@toronto-employmentlawyer.com.

CIBC loses discrimination case

2009-12-30T08:53:15-05:00

Recently announced by England's Employment Tribunal, CIBC has been deemed to have acted in a discriminatory manner towards Mr. Achim Beck, a 40-something former head of marketing.

Mr. Beck was successful in asserting his claim that the bank had discriminated him on the bases of age. His case would likely not have gathered steam had he not seen his ex-employer's job posting while trying to mitigate his loses. The posting cited the company was "seeking younger, entrepreneurial profile (not a headline profile rainmaker)". In May 2008, when Beck was terminated by the bank, he was 42 years old.

For more information, please see the latest Globe & Mail and Financial Times articles on same.

Brian Norris is the Office Manager at Whitten & Lublin LLP, and employment law office providing counsel to both employees and employers on a wide range of workplace law matters.

Ex OLG exec gets $750,000 wrongful dismissal settlement

2009-12-26T10:01:17-05:00

Kelly McDougald, the ex CEO of the Ontario Lottery and Gaming Corp has reportedly settled her wrongful dismissal case against the Ontario Government for approximately $750,000.00, according to a Toronto Star article on Saturday.

The deal is being criticized by opposition parties first, because the details were released over the holidays in an effort to downplay the payout and second, because it's approximately $400,000 more than what the Star reported McDougald would have taken in a settlement when she was first fired.

McDougald was fired during the OLG expense scandal earlier this year and argued that she was made a scapegoat by the Ontario Government. The Government alleged it had "cause" for McDougald's termination, which if correct, would mean that she wouldn't be entitled to any severance pay at all.

Cause for dismissal is typically very difficult for an employer to demonstrate. It must show that the conduct it complains of can actually be proven and that a lesser of form of punishment was not appropriate or available.

It appears that McDougald may have had a severance clause in her contract which would have required the Government to pay her a year's salary if dismissed without cause. Therefore, the additional damages (almost $400,000) could be made up from her claims that the OLG's treatment and publicity following her termination would effectively prevent her from obtaining other work quickly or at all.

Daniel Lublin is an employment lawyer at the law firm Whitten & Lublin LLP, which focusses on the law of dismissal. Daniel can be reached at dan@toronto-employmentlawyer.com or through his website www.toronto-employmentlawyer.com.

The pen is mightier than the sword

2009-12-16T09:17:54-05:00

There is no right to refuse reasonable directions from a manager.

However, when those directions amount to a "new job" altogether, the employee may be able to claim constructive dismissal. This question was put to an Ontario judge in the recent case of Gary Gordon v. Tubs Ultimate Bath Store.

Employees cannot always be forced to take on additional duties. If those new responsibilities can be viewed as a creating a new position, the employee may be able to reject them and insist on compliance with their original job. That decision, however, must be reasonable.

In this case, the judge ruled that Gordon's decision to refuse directions from his boss was unreasonable and did not amount to a constructive dismissal because those directions were part and parcel of his usual working conditions.

To read the full synopsis of this case visit my Metro News Columnists' page here.

Daniel A. Lublin is an employment lawyer focussing on the law of dismissal. He can be reached at Dan@toronto-employmentlawyer.com or through www.canadaemploymentlawyer.com

US Supreme Court to hear "email privacy case" - could have implications in Canada

2009-12-15T08:44:19-05:00

The U.S. Supreme Court said on Monday it would decide whether privacy rights covered a worker's personal text message on employer-owned equipment, hearing a case about a police officer who sent sexually explicit messages from his department-issued pager.

The justices agreed to review a ruling by a federal appeals court in California that reading the text messages sent on devices provided by the employer violated the worker's privacy rights and amounted to an "unreasonable search" barred by the U.S. Constitution.

As computers, cell phones and text messages devices have becoming standard equipment in the workplace, most employers have told their workers their use of the devices can be monitored. The Supreme Court could decide how much privacy workers have when using such devices.

The decision could have implications in Canada as Canadian courts are increasingly being asked to review employers' decisions to monitor the use of employee email and web use while at work or even away from work, when using employers equipment.

Generally, Canadian employees do not have a right to privacy when sending emails from company issued BlackBerry's or over the servers. This means that employers maintain the right to review emails and other electronic messages sent over their servers and, if warranted, impose discipline where employees comments and conduct crosses the line.

Daniel A. Lublin is a partner with the law firm Whitten & Lublin LLP which provides employers and employees with human resources advice and advocacy. Daniel can be reached at dan@canadaemploymentlawyer.com or through the firm's website www.canadaemploymentlawyer.com

Insurance Company to applicant; According to your Facebook photos, you don't look too depressed to work.

2009-11-24T10:07:56-05:00

By Brian Norris

After being notified that her long-term sick leave benefits were being discontinued, Nathalie Blanchard might be reconsidering her use of the networking site, Facebook. In a recent CBC news piece, Ms. Blanchard claimed her insurer asserted she was "available to work, because of Facebook".

Issues arose when Blanchard, off work after being diagnosed with depression, published photos on her Facebook page showing her having a good time at several events including a Chippendales bar show, her birthday party, and vacationing on a sunny beach.

As always, employees need to take notice of this example and previous ones and reconsider the what they publish on the social networking sites.

Brian Norris is the office manager at Whitten & Lublin LLP, an employment law office providing counsel to both employers and employees on a wide range of workplace law matters.

More on the "dumb blond" case

2009-11-18T16:27:40-05:00

The story of Jordan Wimmer, which we initially reported last week, continues. In Today's Toronto Star story, Millionaire hedge fund boss, Mark Lowe, responds to Wimmer's allegations as "gross distortions" and "hugely offensive."

But under examination by Wimmer's lawyer, Lowe was forced to explain a series of "joke" emails that he forwarded around the office to employees, including Wimmer.

One email, entitled "Who is your real friend?" read: "Put your dog and your girlfriend in the boot (trunk) of your car for an hour and then see who is happy to see you."

Lowe admitted to the tribunal he had openly called Wimmer a "dumb blond" and referred to her as "decorative."

But he insisted: "It was said entirely as a joke. It was never intended as an insult."

In Canada, employees would make a complaint to a human rights tribunal or a claim of constructive dismissal through the courts.

Damages for cases such as this would be assessed based on how long it would or should have taken Wimmer to find reasonably comparable work and whether she suffered any compensable mental distress.

The Supreme Court of Canada recently rules on mental distress cases in the workplace in the Keays case, finding that the amount of damages should be consistent with an employees actual losses. An example would be where the employee has taken longer to find other work that she normally would have.

Daniel A. Lublin is a partner with the employment law firm Whitten & Lublin LLP, which provides employees and employers with human resources advise and wrongful dismissal advocacy. Reach Daniel at dan@toronto-employmentlawyer.com

Escorts in the workplace may lead to employment claims

2009-11-12T15:54:12-05:00

A canadian woman working as a top executive at a London, England company is suing her boss for 8 million dollars in a UK Employment Tribunal for allegations that he brought prostitutes to meetings and repeatedly called her a "stupid blonde" before she was fired, as reported in a National Post article here.

In Canada it is an implied term in every employment relationship that employees be treated with decency and civility, the breach of which can lead to damages for termination, commonly known as a "constructive dismissal." An example of a constructive dismissal case can be read here.

In addition, Canadian legislation prohibits discrimination or harassment based on grounds such as gender or race.

Daniel Lublin is a lawyer with Whitten & Lublin which is an employment law firm in Toronto, Ontario assisting employees and employers with workplace legal matters.

Toronto Star looks at Contracting - 100 jobs may be eliminated

2009-11-04T22:14:24-05:00

In an article published in today's National Post, it was reported that the Toronto Star has asked 100 union and non union employees to consider voluntary severance packages as the newspaper explores contracting out what could amount to more than 100 jobs.

Voluntary severance packages are essentially an agreement that the employee will agree to his or her termination "without cause" in exchange for an offer of severance, which has usually been made to the employee in advance. Employees who are interested in the voluntary packages will usually then "apply" for acceptance for the package and if eligible (with eligibility set by the employer) the employee will be made a formal offer of severance.

The difference between voluntary and non voluntary severance packages are that the employees who are offered voluntary packages are not required to accept the offer. That is, they can reject the offer and continue to work as before.

In the current economy many employers have turned to cost cutting measures such as voluntary severance, temporary layoffs, reduced work weeks or hours, temporary pay cuts or large scale restructuring.

Daniel A. Lublin is a partner with Whitten & Lublin LLP, which provides employees and employers with human resources advocacy and representation.

Tribunal Awards $35,000 to fired pregnant employee

2009-11-02T09:07:14-05:00

The Human Rights Tribunal of Ontario recently reported the decision in Maciel v. Fashion Coiffures, siding with the applicant who was terminated immediately following the announcement of her pregnancy.

The press release by the Human Rights Legal Support Centre indicates that Vice Chair Naomi Overend noted Ms. Maciel's vulnerability in her decision by outlining that "She was young, just out of school, and coping with an unplanned pregnancy. This was to be her first full-time job, which she testified she was very excited about, making the experience that followed that much more distressing."

Follow this link to the Globe & Mail article on Ms. Maciel's ordeal.

A copy of the decision can be found by clicking on the link below.

Download Maciel v Fashion Coiffures doc

Whitten & Lublin is an employment law firm providing counsel to both employers and employees on a wide range of employment law issues.