In a helpful decision for employers, Pourasadi v. Bentley Leathers, the Human Rights Tribunal of Ontario (“HRTO”) found that an employer’s duty to accommodate did not extend to altering the essential duties of a position. In this case, the Applicant, a retail store manager, requested a workplace accommodation for a wrist injury which prevented her…
Publication Name: Case In Point
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…
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…
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…
HRTO Decision Granting Significant Remedies Upheld on Appeal
The Divisional Court has upheld a decision of the Human Rights Tribunal of Ontario in which the Tribunal ordered significant damages against the Hamilton-Wentworth District School Board and also ordered reinstatement of an employee after an almost decade-long absence from the workplace. The Court agreed with the applicant’s submission that “the goal of the remedial provisions of the Code ought not to…
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…