Cases dealing with expert evidence have recently been considered by appellate courts. We have discussed two of those cases in our FTR Nows, Court of Appeal Holds that Counsel May Review Draft Expert Witness Reports and SCC Clarifies Test for Qualifying as an Expert Witness. In Westerhof v Gee Estate, the Court of Appeal for…
Practice Area: Litigation
Courts Differ on Termination Provisions and Need for Future Compliance with ESA
Over the last few years, courts have been reluctant to enforce different “ESA only” termination provisions due to ambiguity. However, not all judges have taken the same position with respect to what constitutes an ambiguous termination provision. The following two cases offer differing views on termination provisions in employment contracts and future compliance with the…
(Yet Another) Ambiguous “ESA-only” Termination Provision Unenforceable
Another “ESA-only” termination provision in an employment contract has been found unenforceable by the Ontario Superior Court. In Howard v Benson Group, the Court decided that the termination provision providing only Employment Standards Act, 2000 (“ESA”) minimum entitlements was ambiguous; therefore, the common law applied and the plaintiff was entitled to reasonable notice of termination….
Claim Against Employer Arising out of Social Event Allowed to Proceed
The decision of K.L. v. 1163957799 Quebec Inc. raises a caution for employers when planning social events. The employer hosted an unstructured evening social event at a water park where employees had unrestricted access to alcohol. The plaintiff brought an action against the employer and a supervisor as a result of an alleged sexual assault…
SCC Clarifies Test for Qualifying as an Expert Witness
Expert evidence has been a hot topic in Canadian law recently. Following this trend, in White Burgess Langille Inman v. Abbott and Haliburton Co., the Supreme Court of Canada considered the duty owed by an expert witness to the court to be independent, impartial and unbiased. The Court clarified that where an expert is “unable”…
Termination Clause in Federal Employment Agreement Enforceable
The recent decision in Luney v. Day & Ross Inc. is good news for employers. The Plaintiff worked for an interprovincial trucking company subject to the Canada Labour Code (“Code”). The Defendant terminated the Plaintiff’s employment without cause and offered the Plaintiff a severance package that it asserted was consistent with the termination clause in…
Federal Court: Unjust Dismissal Complaint for Without Cause Termination Requires Evidentiary Hearing
In a recent decision, Sigloy v. DHL Express (Canada) Ltd., the Federal Court overturned the decision of an adjudicator which had granted an employer’s preliminary objection and dismissed a complaint of unjust dismissal for lack of jurisdiction because the complainant had been dismissed without cause. At the adjudication, the employer objected to the unjust dismissal…
Indefinite Suspensions with Pay: The SCC Clarifies the Test for Constructive Dismissal
The Supreme Court of Canada recently considered the common law doctrine of constructive dismissal in Potter v. New Brunswick Legal Aid Services, where a majority of the Court (with two justices concurring in the result) concluded that placing an employee on an indefinite administrative suspension with pay constituted constructive dismissal. It found that even where…
Supreme Court of Canada On Pregnancy and Parental Leave Top-Ups
The Supreme Court of Canada recently upheld a decision of a British Columbia arbitrator which had found that denying birth mothers entitlement to parental supplemental employment (“SEB” or “top-up”) benefits where they had received pregnancy SEB plan benefits was discriminatory. The issue before the arbitrator turned on an interpretation of the collective agreement in place…
Solicitor-Client Privilege Does Not Necessarily Arise Where Lawyer Copied on Internal HR Email
Is an email sent by a human resources employee and copied to the employer’s lawyer covered by solicitor-client privilege? The Ontario Superior Court of Justice recently answered this question in Jacobson v. Atlas Copco Canada Inc. This action involved a plaintiff’s claim for wrongful dismissal. His employment had been terminated for allegedly participating in a…