The Court of Appeal for Ontario has clarified the law in deciding that it is appropriate for counsel to review and discuss draft reports of expert witnesses. In so doing, the Court rejected the reasoning in an earlier trial court decision. In Moore v. Getahun, the Court of Appeal concluded that the practice of counsel…
Practice Area: Litigation
Court Upholds Two-Year Limit on LOE Benefits for Workers Age 63 or Older
The Ontario Divisional Court’s recent decision upholding the two-year limitation on loss of earnings (“LOE”) benefits for workers age 63 and older should reassure employers that Ontario courts take notice that LOE benefits are not meant to be paid for life. Section 43(1)(c) of the Workplace Safety and Insurance Act (“WSIA”) limits LOE entitlement for…
Divisional Court Finds Arbitrator’s Approach to Pre-Access Drug and Alcohol Testing Reasonable
The Divisional Court has dismissed a judicial review application of an arbitration decision that held that pre-access drug and alcohol testing was contrary to the parties’ collective agreement and the Ontario Human Rights Code. While the Court declined to comment on the Code, it upheld Arbitrator Surdykowski’s finding that the applicant had violated the collective…
Raising the Bar – Eighth Edition
Dear Readers, With the first big snowfall and the coming of the holiday season, we’re thrilled to bring you the Winter 2014 edition of Raising the Bar. This time, we’re doing something a little different. Rather than our usual format, we’re devoting this entire issue to a topic that clients have been increasingly asking us…
The Duty of Good Faith and Honesty: An Important Foundational Decision by The Supreme Court Of Canada
The Supreme Court of Canada has issued a significant decision on the duty of good faith in the law of commercial contracts. In Bhasin v. Hrynew, the Court recognized good faith contractual performance as a general organizing principle of contract law and recognized a new “duty of honest performance” in the fulfillment of contractual obligations….
Divisional Court Upholds Jan Wong’s Obligation to Repay Settlement Funds for Breach of Confidentiality
The Ontario Divisional Court has unanimously upheld Arbitrator Louisa Davie’s decision that Jan Wong breached her confidentiality obligations under a settlement with her former employer, The Globe and Mail (the “Globe”) and is bound by the repayment obligation she agreed to as part of the settlement. The Court held that Ms Wong lacked standing to…
Ontario Court Voids Termination Provision for Non-Compliance with the Employment Standards Act
In Miller v. A.B.M. Canada Inc., the Ontario Superior Court again nullified a termination provision in an employment contract because it did not strictly comply with the requirements of the Employment Standards Act, 2000 (“ESA”). The plaintiff worked for the defendant for 17 months in a middle management position at an annual salary of $135,000.The…
Another Reminder to Employers: Draft Termination Notice Provisions with Care
The Ontario Superior Court has reaffirmed that if a termination provision in an employment contract does not strictly comply with the requirements of the Employment Standards Act, 2000 (“ESA”), it will be considered null and void. In Miller v. A.B.M. Canada Inc., the plaintiff, Mr. Miller, was a management accountant. He was hired into the position…
Common Law Notice – Can Employers Deduct STD and LTD Payments?
As demonstrated by the Ontario Superior Court’s recent decision in Diamantopoulos v. KPMG LLP (“KPMG“), the answer to this question is still “it depends.” In determining the issue, courts will look at a number of contextual factors to determine “the intention of the parties” when they entered the employment agreement. In KPMG, the plaintiff commenced a…
Court of Appeal Reduces 24.5 Months’ Notice Granted to 70 Year Old Employee
In 2013, the decision of Kotecha v. Affinia garnered some attention among employment lawyers and human resources professionals. The motion judge’s award of 24.5 months’ notice (22 months’ notice, in addition to the 11 weeks of working notice already provided) to a 70 year old employee was seen by some as a potential indicator marking…