Edmonton Employment Law

In Chapter Three , I suggested that actually changing the employment contract required an employer to either unambiguously terminate it, or obtain unambiguous employee consent. Professor David Doorey rightly called me out on this: The latter threshold is too low, missing the requirement for 'consideration'. I'd suggest that a proper understanding of how an employment contract gets changed in the 21st century also means recognizing that the change has to be made in good faith (which is relatively new), and conscionably (which isn't new but until recently was a pretty narrow issue). The concept of consideration is one of the fundamentals of contract law. A contract requires mutual promises to be enforceable at law. If you offer to mow my lawn all summer for free, and I say "Sure", I probably can't hold you that.  But if you offer to mow my lawn all summer for a nickel, and I say "Sure", then I suddenly owe you a nickel, and you're required to m...

Hat tip to Devan Marr (Twitter: @CoffeeShopNomad) for this one: An Ontario summary judgment motion on a wrongful dismissal action where an employer was hit with significant aggravated and punitive damages . It covers a lot of ground, and in my view the analysis is mostly good, though it has some obiter  that raises concerns for me. The issues this case include: Toxic work environments Demotions and suspensions Abandoned allegations of just cause Fresh consideration Contractual repudiation Impact of Character of Employment Mitigation I would suggest, first and foremost, that it stands as a firm reminder of the employer's duty to treat employees with respect , and secondly as a caution against trumped up allegations of just cause . Background Humphrey met her boss, Mr. Sebag, while working with a prior employer. She started working for Sebag's organization in 2016, and helped develop a subsidiary, which would become her employer (Mene). Initially, she was retained through her cor...

In a post a few months ago , I parenthetically mused a bit about the notwithstanding clause being troubling, and yet possibly having virtues in the sense of providing a pressure valve - putting the choice to respect or not respect fundamental freedoms into the hands of elected officials, making the voter the ultimate steward of fundamental freedoms, legal rights, and equality rights - and freeing the judiciary to make objective assessments without being (fairly) accused of legislating policy. We may see that put to the test. Yesterday, Justice Ed Morgan of Ontario's Superior Court released a decision in a Charter case dealing with third party election spending . It struck down legislation as unconstitutional, and the Ontario government has announced that it intends to invoke the notwithstanding clause. Background Third party spending is a perennial challenge: Contribution limits, and spending limits on politicians and political parties create a level playing field without 'big ...

A recent decision from Ontario's Superior Court has found that their COVID regulations, which extended temporary layoffs and characterized them as "Infectious Disease Emergency Leave", effectively gave employers the contractual right to temporarily lay employees off during the pandemic. This would be unusual. Outside of union contexts and very specific industrial contexts, it's very rare to see an employment contract where the employer is entitled to impose temporary layoffs. The default implied term is the opposite - so doing so constitutes a constructive dismissal. It also runs directly contrary to a prior Ontario decision in Coutinho . Even though most employment standards regimes include some regulation of temporary layoffs, the prevailing jurisprudential wisdom is that they don't create a contractual entitlement to lay off, and therefore employers can still be liable in contract (constructive dismissal) even if they've complied with the statutory requirem...

In Chapter One , we discussed the Duty to Make a Timely Election, and how - properly analyzed - that's really just a distinction between accepting a repudiation versus affirming the original  contract, and that neither option has the effect of adopting the changes as new contractual terms. And yet, the case law is littered with decisions about employees who, having worked under the amended terms and conditions for x period of time, have tacitly accepted the changes into the contract itself. And there are cases where this has weight.  Imagine a case where I'm entitled to six months' pay in lieu of notice, and the employer unilaterally reduces my compensation without notice. Under my earlier proposed analysis, if I say nothing and continue showing up for work, I am ostensibly electing to 'affirm' the contract, which means that my employer's reduction in my wages is a breach of that contract for which I am entitled to damages, at least  for the six month notice per...