On June 8, 2022, in Rahman v. Cannon Design Architecture Inc., the Court of Appeal reiterated that Waksdale is supreme in Ontario. The Decision Below In September 2021, a judge of the Superior Court determined on the facts of the case before him that a contractual provision in an employment agreement which denied entitlements upon…
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Appellate Court Finds Non-Competition Clause in Employment Agreement to be Unenforceable
In M & P Drug Mart Inc. v Norton, the Ontario Court of Appeal upheld the decision of an application judge which had found a non-competition clause in an employment agreement to be ambiguous and overly broad, and therefore unenforceable. Background In 2014, Mr. Norton, with the assistance of legal counsel, entered into an employment…
IDEL Regulation and Constructive Dismissal at Common Law: Appellate Court Finds Analytical Errors “Tainted” Lower Court Decision, Does Not Rule on Substantive Issue
On May 12, 2022, the Ontario Court of Appeal rendered its highly anticipated decision in the appeal of Taylor v Hanley Hospitality Inc. The lower court had considered the interaction between the Infectious Disease Emergency Leave Regulation(O. Reg. 228/20 or IDEL Regulation) made under the Employment Standards Act, 2000 (ESA) and a claim for constructive…
Ontario Court Requires “Robust” Notice to Allow Class Members to Choose Whether to Opt-Out of Employment Class Action
Justice Perell, writing for the Ontario Superior Court of Justice in the ongoing Heller v. Uber class action, required a robust Notice Plan and Notice of Certification to be provided that clearly sets out sufficient information to allow class members to make an informed decision about whether or not to exercise their right to opt-out…
Arbitrator Upholds Mandatory Vaccination Policy—Reduced Public Health Measures of No Consequence
In a “bottom line” decision in Extendicare Lynde Creek Retirement Home and United Food & Commercial Workers Canada, Local 175, Arbitrator Raymond upheld the mandatory COVID-19 Immunization Policy (Policy) of a retirement home, finding that the Policy is a reasonable workplace rule and consistent with the collective agreement, the Occupational Health and Safety Act, the…
HRTO Finds Availability of Different Remedies under a Different Proceeding not Determinative of Whether Substance of HRTO Application had been Appropriately Dealt With
In Green v National Steel Car Ltd., the Human Rights Tribunal Ontario (HRTO) found that the Workplace Safety and Insurance Appeals Tribunal (WSIAT) has the direct authority to apply the Human Rights Code (Code) and to determine the appropriate accommodation of medical restrictions. The application before the HRTO on the same issue, therefore, had been…
Arbitrator Upholds TDSB Mandatory Vaccination Policy
On March 22, 2022, Arbitrator William Kaplan issued The Toronto District School Board and CUPE, Local 4400 (Re COVID-19 Vaccine Procedure), an award in which he upheld the mandatory vaccination policy (Policy) of the Toronto District School Board (TDSB). He found that the Policy did not infringe section 7 (life, liberty and security of person)…
Appellate Court Confirms 26 Month Reasonable Notice Period in Case with Exceptional Circumstances
On March 14, 2022, in Currie v. Nylene Canada Inc., the Ontario Court of Appeal upheld the decision of a trial judge to award a 26-month reasonable notice period to an employee following her without cause dismissal by the employer. The employer had appealed the trial judge decision to the Ontario Court of Appeal on…
Arbitrator Finds Mandatory Vaccination Policy Implemented by Energy Sector Employer to be Reasonable
In Power Workers’ Union v Elexicon Energy Inc., Arbitrator Michael Mitchell recently held that a mandatory vaccination policy implemented by Elexicon Energy Inc. (Employer) was reasonable for all employees, except for those who had been working exclusively from home and had no expectation or requirement of returning to the workplace in the near future, and…
Court Finds ESA Prohibition on Non-Compete Agreements Does Not Apply to Agreements Entered into before October 25, 2021
The Ontario Superior Court of Justice has held that the recently enacted provision in the Employment Standards Act, 2000 (ESA) which prohibits non-compete agreements in employment contracts or other agreements does not apply prior to October 25, 2021. By way of background, Ontario’s Working for Workers Act, 2021 (Act) received Royal Assent on December 2,…