Employment Law

Question 1

What are some factors considered when determining if a person is an employee or an independent contractor?

Answer 1

• the employer’s level of control over the worker’s activities
• whether the worker provides their own equipment
• whether the worker hires their own employees
• the worker’s degree of financial risk
• the worker’s degree of responsibility for investment and management; and
• the worker’s opportunity for profit

Question 2

What is the distinction between director and employee?

Answer 2

Common law rules w respect to employment relationships do not apply to directors. In some cases the courts have recognized that an individual’s status as director is or has become an integral term of the employment relatipnship, giving rise to a right of reasonable notice of termination

Question 3

Since a partnership does not have a separate legal personality from its partners, the conventional view is that

Answer 3

a partner cannot be in an employment relatipnship with the partnership. With the exception of cases where sufficient control is exercised by the partnership and dependency on the partner, allowing for an employment relatipnship for the purposes of human rights legislation

Question 4

In cases of a successor employer, can employees be transferred?

Answer 4

Not without new contracts being established under new employer. Provisions in the ESA protect past service as an implied term unless explicit provisions provide otherwise. To protect employee’s right to continuity for benefits and pension reasons

Question 5

An employee’s fundamental implied obligations also include the duty of

Answer 5

good faith and fidelity. Require that the employee:
- maintain confidentiality of the employer’s trade secrets and confidential information
- act honestly and faithfully, putting the employer’s interests first and avoiding any conflicting or competing personal interests
- not take any secret profits or commissions from the relationship

Question 6

What is a fiduciary employee?

Answer 6

Certain employees, usually key employees or very senior level managers with significant responsibility for directing the employer’s business. Fiduciary employees must:
- avoid all conflicts of interest
- act only in the employer’s best interests
- not profit as a result of their position

Question 7

What are the factors in determining a fiduciary employee?

Answer 7

• the employee is an integral and indispensable part of the management team that is responsible for guiding the employer’s business affairs
• is necessarily involved in the decision making process
• has broad access to confidential information that if disclosed would significantly impair the employer’s competitive advantages

Question 8

Post employment, fiduciary employees generally cannot

Answer 8

• usurp or divert themselves any “maturing” or “ripe” business opportunities available to the former employer
• solicit or entice the former employer’s customers to do business with them
• solicit or entice the former employer’s employees to quit and join them

Question 9

As of October 25, 2021, employers are prohibited from including

Answer 9

non-compete clauses in agreements unless
- the employee concerned is an executive or
- the non compete is part of the sale of a business and the seller becomes an employee of the purchaser immediately following the transaction

Question 10

In balancing the interests of the public’s interest in discouraging retraint of trade and the parties’ right to contract freely, courts have held that restraint of trade convenants are only enforceable if

Answer 10

it is reasonable between the parties and with reference to the public interest (Elsley v JG Collins Insurance Agencies Ltd)

Question 11

To assess the reasonableness of a restrictive covenant, the courts generally consider three factors:

Answer 11

• does the employer have a proprietary interest entitled to protection?
• are the temporal or spatial features of the clause too broad?
• is the covenant unenforceable as being against competition generally and not limited to proscribing solicitation of the former employer’s clients?

Question 12

effective December 2, 2021, employers with 25+ employees must have a written policy on employees

Answer 12

disconnecting from work

Question 13

effective april 11, 2022, employers with 25+ employees must have a written policy on

Answer 13

the electronic monitoring of employees

Question 14

what type of employees are excluded from the ESA?

Answer 14

Effective January 1, 2023, business consultants and information technology consultants are excluded, as well as people holding positions that are political, judicial, religious, or elected trade union offices

Question 15

What categories of employees does the ESA exclude from eligibility of notice, termination pay, and/or severance provisions?

Answer 15

• employees hired on fixed term contracts
• construction employees
• employees on temporary layoff
• employees terminated for wilfull misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer

Question 16

who does the ESA not apply to?

Answer 16

• employers and employees under federal jurisdiction. They are governed by Part III of the Canada Labour Code

Question 17

Can people contract out of the ESA?

Answer 17

Only to provide a greater or more favourable benefit to the employee

Question 18

The ESA has been characterized as

Answer 18

benefits-conferring legislation, and must therefore be interpretedin a broad and generous manner such that any doubt arising from difficulties of languages should be resolved in favour of the claimant

Question 19

What is WPID?

Answer 19

the expansion of leave of absence provisions in the ESA due to COVID-19 quarantine requirements. the Worker Income Protection Benefit ended March 31, 2023

Question 20

What is OHSA?

Answer 20

Ontario Health and Safety Act, addresses the prevention of injury and disease in the workplace

Question 21

OHSA mandates a healthy and safety representative where

Answer 21

the number of worker exceeds 5. The rep must be selected from the workers who are not exercising managerial functions. Reps must identify hazards and make recommendations to the employer and workers, and investigate work refusals and serious injuries.

Question 22

OHSA mandates a joint health and safety committee where

Answer 22

the number of workers exceeds 20. Members of the committee must identify hazards and make recommendations to the employer and workers, and investigate work refusals and serious injuries.

Question 23

In federal jurisdiction, where there are 300 + employees,

Answer 23

Employers must establish a policy health and safety committe, to develop policies and programs, dispose of matters expiditiously, develop and monitor the program, monitor data on injuries and reports, and participate in inquiries, investigations, studies and inspections

Question 24

What section os OHSA protects the right to refuse unsafe work?

Answer 24

Section 43(3)

Question 25

For whom is the protection of Section 43(3) suspended?

Answer 25

Police, firefighters, and where circumstances giving rise to the refusal are inherent in the worker’s work or are a normal condition of the worker’s employment

Question 26

When did the Ontario government introduce provisions to prevent workplace harassment?

Answer 26

2010 and 2016 (aimed at sexual assault)

Question 27

How often do workplace harassment policies need to be reviewed?

Answer 27

At least annually in workplaces with 6 or more employees

Question 28

According to the Integrated Accessibility Standards (IAS), OReg 191/11, all employers in Ontario are now required to

Answer 28

comply with accessibility standards aimed at identifying and removing barriers in the workplace for persons with disabilities:
- providing individualized workplace emergency response information to employees with disabilities
- informing employees of supports available to employees with disabilities
- providing accesible formats and communication supports for information needed to perform the employee’s job
- training, and considering the employee’s disability when reviewing performance

Question 29

Both employee and employer have the right to terminace employment at any time without cause by

Answer 29

giving notice of termination, or payment in lieu of notice

Question 30

When is notice not required?

Answer 30

When the employer or employee has just cause for termination

Question 31

What is payment in lieu?

Answer 31

The employer might pay the employee the value of pay and benefits they would have received had they worked during the required notice period.

Question 32

Some basic factors considered by courts in determining whether notice is reasonable are (Bardal v Globe and Mail LTD)

Answer 32

• the character of the employment
• the length of service
• the age of the servant
• availability of similar employment, having regard to the experience, training, and qualifications of the servant

Question 33

What are the other judicially recognized factors used when determining whether notice is reasonable?

Answer 33

• the employee was enticed to leave with promises of career advancement, additional compensation, etc
• the employer had a particular policy or practice with respect to notice
• there was an industry custom with respect to notice
• the employee had some forewarning of the dismissal

Question 34

Who is entitled to notice/ severance?

Answer 34

employees who have been continuously employed for three months or more are entitled to
- at least one week of notice of termination if the period of employment is less than 1 year
- two weeks if the period of employment is one year or more and fewer than three years
- an additional week of notice for each additional year of employment up to a max of 8 weeks

Question 35

What is severance?

Answer 35

Pay meant to compensate longer term employees for the investment they made in the company

Question 36

Employers who terminate 50 or more employees in a four week period are

Answer 36

subject to different notice provisions, increasing the notice period depending on the number of employees affected:
- 50-199 ppl = 8 weeks
- 200-499 ppl = 12 weeks
- 500 + ppl = 16 weeks

government authorities must also be notified

Question 37

When is severance pay required?

Answer 37

Per s64(1) of the ESA, when an employer severs the employment of an employee with 5 + years of service and:
- the severance occured because of a permanent discontinuance of some or all of the employers business and the employee is one of 50+ ppl who have had their employment relationship severed in the last 6 months
- the employer has a payroll of $2.5 million or more

Question 38

If the parties have expressly agreed to notice terms in the contract, the courts will enforce those terms provided they:

Answer 38

• Meet the minimum standards in employment standards legislation and
• are not otherwise contrary to contract law principles under doctrines such as duress, undue influence, and unconscionability.

Question 39

to justify the dismissal of a probationaryemployee,anemployer must show that

Answer 39

the employee was given a fair and reasonable opportunity to demonstrate suitability for the job and the employer made a good faith determination that the employee is unsuitable

Question 40

if a employer terminates a fixed term contract prior to the end of the term, theymust

Answer 40

pay compensation equivalent to the income the employee would have earned during the contract unlessthe contract expressly states the sumpayable ontermination, or the employer has cause for termination

Question 41

thefactual inquiry in determiningjust cause for dismissal in the context of each case involved:

Answer 41

• the nature and extent of misconduct
• the circumstances of the employee and the employer
• whether the misconduct is reconcilable with sustaining the employment relationship

Question 42

Where the employer alleges cause based on incompetencec or substandard performance,they must show:

Answer 42

• it established reasonable, objective standards of performance
• the employee failed to meet those standards
• the employee was warned of the failure and that the employee’s position would be in jeaporady if the failure continued
• reasonable time was afforded to correct the situation

Question 43

What is the definition of just cause?

Answer 43

The grounds for an employer or employee to terminate the relationship without notice. The grounds for summary dismissal have tradntionally included:
- serious misconduct
- habitual neglect of duty
- incompetence
- conduct incompatible with the employee’s duties
- wilful disobedience

May arise from a single incident or a series of incidents

Question 44

The test for just cause is (McKinley v BC Tel)

Answer 44

whether the misconduct has given rise to a breakdown in the employment relationship, whether it violates an essential condition of the employment contract, breaches the faith inherent to the work relationship, or is fundamentally or directly inconcistent with the employee’s obligations to their employer

Question 45

What is the three step factual inquiry test for determining whether the employment contract relationship has broken down?

Answer 45

• the nature and extent of the misconduct
• the circumstances of the employee and the employer
• whether the misconduct is reconcilable with sustaining the employment relationship

Question 46

What is the duty to warn?

Answer 46

A fairly recent development, courts have determined that in certain cases of dismissal for neglect of duty or incompetence, an employer must warn the employee first that their job is in jeopardy and give the employee a reasonable opportunity to correct the misconduct or performance before termination.

Question 47

When is the duty to warn not required?

Answer 47

When the conduct is serious:
- theft
- fraud
- serious sexual harassment
- wilful disobedience on a matter of substance

Question 48

What is condonation?

Answer 48

when an employer is aware of an employee’s misconduct sufficient to justify dismissal but chooses to overlook it and continue the employment relationship, the emplyoer is said to have condoned the misconduct and may not afterwards dismiss the employee for it.

Question 49

What must an employer show to justify dismissal without notice or severance?

Answer 49

That the employee has been dismissed for misconduct that is both serious and intentional

Question 50

What is constructive dismissal?

Answer 50

When an employer:
- unilaterally makes a change to an express or implied term of the employment contract that a reasonable person in the shoes of the employee would view as substantially altering an essential term of the contract or

• otherwise acts in a manner that would lead a reasonable person to conclude that the employer no longer intends to be bound by the contract, the employer commits repudiation of contract, which entitles the employee to consider themselves constructively dismissed and to claim damages in lieu of reasonable notice.

Question 51

proof that an employee resigned must be

Answer 51

clear and unequivocal, proven by the employer

Question 52

If an employer dismisses an indefinite term employee with no or insufficient notice, or if the employer constructively dismisses the employee, the employee has the right of

Answer 52

civil action against the employer for wrongful dismissal

Question 53

What is a suit of wrongful dismissal based on?

Answer 53

Either a breach of the implied obligation to provide reasonable notice or breach of explicit notice terms, if any

Question 54

What is the remedy sought in a wrongful dismissal suit?

Answer 54

award of damages equal to earnings and other contractual entitlements that the employee would have received during the appropriate notice period, subject to deductions like mitigation earnings

Question 55

Employers may be held accountable for:

Answer 55

• mental distress damages caused by bad faith conduct in the manner of dismissal provided the employer suffers actual psychological harm and
• damages caused by dishonest conduct towards the employee during the employment relationship.

Question 56

When are punitive damages awarded in wrongful/constructive dismissal?

Answer 56

in exceptional cases where the employer’s conduct constitutes a marked departure from ordinary standards of decency, the conduct is ‘independently actionable’ and compensatory damages are insufficient to express society’s repugnance at the conduct (Boucher v Walmart Canada Corp)

Question 57

How can federal non-union employees bring a complaint for unjust dismissal?

Answer 57

Under Division XIV of Part III of the CLC. They must have completed 12 months of continuous employment and complaints must be made within 90 days of dismissal

Question 58

Federal non-unionized employers may not

Answer 58

dismiss an employee without cause simply by providing the required notice and severance

Question 59

What can employees do if they are not covered by the ESA and are not represented by a union?

Answer 59

They can generally file a complaint with the Ministry of Labour if they feel their employer has contravened the ESA

Question 60

Who conducts investigations for the Ministry of Labour?

Answer 60

Ministry appointed employment standards officers (ESOs)

Question 61

An ESO’s remedial powers include:

Answer 61

• orders to pay wages owed to an employee (including termination and severance pay
• compliance orders
• notices of contravention
• orders to reinstate or compensate an employee in resp of the contravention

Question 62

The ESA generally precludes employees filing complaints if they have already

Answer 62

commenced a civil action proceedings in the matter, and vice versa

Question 63

Employees represented by the union must generally pursue ESA remedies through

Answer 63

the grievance process

Question 64

What is the benefit of bringing ESA proceedings rather than a court action?

Answer 64

• there is no cost for the employee to file and prosecute an ESA complaint
• unpaid wages claims of up to 6 months can be enforced against the employer’s directors personally

Question 65

In what circumstance may a court action be better suited than an ESA proceeding?

Answer 65

if the claim involves substantial common law damages unavailable in ESA proceedings

Question 66

An employee’s right to damages for the employer’s failure to provude proper notice of termination is subject to the qualification that:

Answer 66

the employer is not responsible for the losses that the employee might reasonably have mitigated by finding an alternative source of income during the period of notice (Evans v Teamsters Local Union No 31)

Question 67

The employer bears the burden of proving failure to mitigate damages by showing that:

Answer 67

• the employee failed to make reasonable efforts to find replacement work AND
• suitable replacement work could have been found had the employee made reasonable efforts

Question 68

The reasonableness of an employee’s efforts to mitigate is measured in relation to:

Answer 68

The employee’s position and circumstances, not the employers. Courts have held that employees are entitled to some recovery time after being dismissed, and can be reasonably expected to look for positios of equal pay or status, rather than looking at and accepting any job

Question 69

All income earned by a wrongfully dismissed employee is during the notice period is

Answer 69

generally deducted from the damages awarded for the failure to provide proper notice. Statutory entitlements such as ESA termination pay are not deducted

Question 70

Where the employment contract expressly provides for a stipulated sum upon termination without cause and is silent as to the duty to mitigate,

Answer 70

the employee is not required to mitigate, per Bowes v Goss Power Products Ltd

Question 71

Just cause at common law does not necessarily exempt the employer from

Answer 71

giving ESA notice of termination or termination and severance pay

Question 72

In less serious instances where summary dismissal may not be warranted, the employer may impose

Answer 72

disciplinary sanctions short of dismissal provided they are:
- reasonable
- proportionate to the misconduct

most courts have held that employers may not impose disciplinary sanctions without pay unless the employment contract clearly allows the employer to do so

Question 73

where a fiduciary employee breaches their obligations, courts hve allowed the employer to elect between

Answer 73

• an assessment of damages based on the restitutionary approach and
• one based on the employer’s losses from the breach

Question 74

What are the the four options for an employer who’s employee has breached the employment contract?

Answer 74

• summary dismissal
• disciplinary sanctions
• civil action for damages
• injunctive relief