In Bartholomew v. Coco Paving Inc. et al, the Ontario Superior Court recently rendered a helpful decision in dismissing a motion for certification of a proposed class action. The Court re-affirmed the evidentiary burden which must be met by a plaintiff in satisfying the four tests under sections 5(1)(b) through 5(1)(e) of the Class Proceedings…
Practice Area: Litigation
Is It Discriminatory to Include a Disability-Related Absence in an Attendance Management Policy? Appellate Court Weighs In
In Canada (Attorney General) v. Bodnar, the employer sought judicial review of a decision of the Public Service Labour Relations and Employment Board (Board) in which the Board held that the inclusion of disability-related absences and absences taken for the purposes of family caregiver leave in an attendance management policy was discriminatory. On judicial review,…
Appellate Court Rules that Severability Clause Can’t Save a Partly Flawed ESA-Only Termination Clause
It is critical for all employers to ensure that they have a well-drafted and unambiguous termination clause which fully complies with the Employment Standards Act, 2000 (ESA), in order to survive judicial scrutiny. The Ontario Court of Appeal has once again weighed in on termination provisions in employment agreements, this time noting that if any…
Raising the Bar – Fifteenth Edition
In this issue, we bring you some of our favorite and most practical recent court decisions and share with you a list of key considerations in approaching and negotiating settlements. Chances are that you are working on, or negotiating, a settlement right now, so we encourage you to study our list and feel free to reach out with any questions!
Appellate Court Issues Favourable Decision for Suncor on its Random Drug and Alcohol Policy
The legal saga on the issue of random drug and alcohol testing of employees continues. In Suncor Energy Inc v Unifor Local 707A, the Alberta Court of Appeal sent the issue of whether Suncor’s random drug and alcohol testing policy violated the privacy rights of its unionized workers back to a new arbitration hearing before…
IMEs and the Scope of an Employer’s Communications with IME Examiners
The Ontario Court of Appeal has denied leave to appeal a judicial review of a Human Rights Tribunal of Ontario (Tribunal) decision that found an employer’s request for an Independent Medical Examination (IME) as part of the accommodation process reasonable in the circumstances. This case further provides helpful guidance with respect to the scope of…
Union Need Not be Involved in Every Accommodation Request, Appeal Court Rules (and the Supreme Court Agrees)
Earlier this year, the British Columbia Court of Appeal issued a helpful decision for employers dealing with accommodation issues in a unionized context. On September 7, 2017, the Supreme Court of Canada denied the union’s request for leave to appeal from the B.C. Court of Appeal decision. The B.C. Court of Appeal decision considered the…
Ontario Court Declines to Consider Wrongful Dismissal Action Where Ontario Resident Worked in Michigan
In its recent decision in Koutros v Persico USA Inc., the Ontario Superior Court of Justice set aside the service of a Statement of Claim and stayed an action on the basis that Michigan (not Ontario) was the appropriate jurisdiction in which to dispute the termination of an employment contract. The plaintiff lived near Windsor…
Ontario Court of Appeal Confirms Harassment by Town Resident Outside Scope of Workplace Harassment Policy
In a recent decision, Rainy River (Town) v. Olsen, the Ontario Court of Appeal upheld the decision of an application judge which refused to grant a declaration that a resident of the Town of Rainy River had violated the Town’s workplace harassment policy when he harassed and defamed the mayor, council members and staff. The…
Court Orders Condo Resident to Cease and Desist her Uncivil Conduct Toward the Condo Corporation’s Staff
In a brief decision, York Condominium Corp No 163 v Robinson, the Ontario Superior Court of Justice recently ordered a resident/owner of a condominium unit (Resident) to cease and desist from “uncivil or illegal conduct” that violated the rules of the condominium corporation (Condo) and the Occupational Health and Safety Act (OHSA). The dispute in…