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…
Publication Name: Case In Point
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…
Arbitrator Upholds Dismissal of Grievor for Posting Vicious Comments about Co-Worker on Facebook
In a recent labour arbitration award, Arbitrator Laura Trachuk upheld the dismissal of a three and one-half year employee for posting vicious, humiliating and threatening comments about a co-worker on Facebook. While the Arbitrator left many specifics out of her decision in order to protect the identities of those involved, this decision serves as an…
Supreme Court Affirms Broad Public Sector Decision-Making Privilege
Below is a post I wrote for All About Information regarding a significant decision rendered by the Supreme Court of Canada last Friday on the scope of the “advice and recommendations” exemption from disclosure found in the Freedom of Information and Protection of Privacy Act: “Yesterday the Supreme Court of Canada held that the “advice and recommendations” exemption…
Employer Permitted to Define “Spouse” under Benefit Plan to Exclude Married but Separated Spouses
In a recent decision of the Ontario Human Rights Tribunal (“Tribunal”) in VanderLinde v. Oshawa (City) (“VanderLinde”), the Tribunal found that it is not discriminatory for an employer to require that an employee’s legally married spouse be living with the employee as a condition of eligibility as a spouse under its group benefit plan. In…
No Jurisdiction to Determine Unjust Dismissal Complaint Where Employee Terminated Without Cause Pursuant to Employment Contract
In a recent adjudication under the Canada Labour Code (the “Code”), Adjudicator Rose relied on the Federal Court decision in Atomic Energy of Canada v. Wilson to grant an employer’s preliminary objection and dismiss an unjust dismissal complaint. In doing so, he found that in the case of without cause terminations an adjudicator lacks jurisdiction under the…
B.C. Court of Appeal Stays Decision Rendering Teachers’ Collective Bargaining Legislation Unconstitutional, Pending Appeal
In our blog post of February 18, 2014, “British Columbia Supreme Court Awards $2 Million in Damages for Freedom of Association Violation,” we reported that the B.C. Supreme Court declared Bill 22, legislation relating to teachers’ collective bargaining rights, unconstitutional. The Court concluded that this legislation was “essentially identical” to earlier legislation (Bill 28) that…
Privacy Rights vs. Union’s Duty to Represent its Membership: The Bernard Case Concludes
The Supreme Court of Canada dismissed the appeal in Bernard v. Canada (Attorney General), thus ending the “legal odyssey” of an employee who did not want her personal information disclosed to the unions which she declined to join during her years of employment with the federal government, but to which she was mandatorily obligated to…
British Columbia Supreme Court Awards $2 Million in Damages for Freedom of Association Violation
Last month, the British Columbia Supreme Court (“BCSC” or “Court”) released the latest in a series of cases dealing with collective bargaining and the right to freedom of association as guaranteed by section 2(d) of the Canadian Charter of Rights and Freedoms (“Charter“). This 683-paragraph decision follows a previous decision of the BCSC dated April…
OLRB comments on employer support and proper communications during raiding season
The Ontario Labour Relations Board (“OLRB” or “Board”) recently found that an employer did not collude with the Allied Construction Employees Local 1030, United Brotherhood of Carpenters and Joiners of America (“Carpenters”) to displace the rights of the Universal Workers’ Union, Labourers’ International Union of North America, Local 183 (“Labourers”). Central to the issue was…