Edmonton Employment Law

A little over a year ago, in Dufault v. Ignace , Justice Pierce of the Ontario Superior Court of Justice accepted an argument that a termination clause entitling the employer to dismiss on a not-for-cause basis "at any time" was in conflict with employment standards legislation, thus voiding the entire termination clause. The Court of Appeal dismissed the employer's appeal , finding that the Waksdale  problem in the contract was fatal, and declined to address the merits of the "at any time" issue. Subsequently, in Baker v. Van Dolder's , Justice Sproat - found that he was bound to follow Justice Pierce's decision (as well as the Perretta  approach I recently commented on ). It's an interesting case because, while Justice Sproat is himself a well-regarded employment law jurist, he didn't engage much with the underlying principles, instead looking to the doctrine of stare decisis  ("it stands decided") as recently expanded upon by the SCC...

There's a highly dubious line of case law coming out of Ontario dealing with termination language in employment contracts. Ontario lawyers who read that line will initially wonder "which one?" There are a lot of evolving doctrines in Ontario right now that make it difficult to enforce termination language. The reality is that I agree with most of those, on their principles. But not this one: Courts are finding, increasingly, that employers who do not comply with their termination obligations under written contracts of employment are not able to later rely on the termination clause. I understand the motivation to take this approach, but it's completely irreconcilable with first principles of employment law. Background A brief primer: By default, every employment contract is presumed to contain an implied term that neither side will terminate it without 'reasonable notice' to the other. This concept is most often applied when employees are dismissed without caus...

Earlier this month, the Saskatchewan Court of Appeal decided the case of Saskatchewan Indian Gaming Authority Inc. v. Pasap , where the plaintiff was awarded over $1.25 million in a wrongful dismissal action. The Court mostly upheld the award, aside from correcting an arithmetical issue that, in the scheme of the claim, works out to be basically a rounding error. This eye-popping award is an example of the risks associated with termination of disability benefits. Which is complicated, because most disability policies don't allow continuation after dismissal. And while it's fairly normal for the 'usual suspects' to write about this type of case - like Barry Fisher , Cassels , or...well, me - this is a big enough outcome to garner attention from mainstream media outlets like CBC . Background Mr. Pasap worked as Facilities Manager of Bear Claw Casino, where he had worked continuously for almost 5 years, until his employment came to an end under contentious circumstances in...

There's an increasing phenomenon in administrative law frameworks: Rather than allowing judicial review to a trial-level court, legislatures create statutory appeals to higher courts - but only with permission (or 'leave') of the court. The higher courts then create a test to determine whether to grant leave, which often includes a factor such as 'public interest' - whether the question being appealed has significance beyond the interests of the affected parties. These tests for leave aren't unheard of in other contexts: The Supreme Court of Canada applies a similar test to nearly all cases brought before it. Some appeals from lower courts to Provincial appellate courts, on specific types of questions, have similar features. In Ontario administrative law, your initial application for judicial review goes to the Divisional Court, and you can't appeal from there to the Ontario Court of Appeal without leave. So this isn't unheard of. But when the test for l...

 In a recent KB decision, Badger Infrastructure v. Parent-Walker , the Court took an odd perspective in relation to the burden of a plaintiff seeking an injunction against a former employee and their new organizations.  The injunction application was ultimately dismissed, and probably rightly so, but there are reasons to doubt the analysis the court used to achieve its outcome.  The employee ("Walker") was dismissed on allegations of just cause; a separate action is ongoing in Ontario small claims court for wrongful dismissal. Walker went on to work for a competitor, and the former employer ("Badger") brought this action arguing that Walker was misusing confidential information and breaching non-solicitation and fiduciary obligations.  Walker took the position that Badger had waived any restrictive covenants. The context for this waiver dealt with the wrongful dismissal action: a wrongfully dismissed employee generally has an obligation to take reasonable s...

 The Financial Post recently ran a Howard Levitt column listing " the 10 biggest mistakes employees make ". Well, not so much. Here's my take.  1. "Thinking HR is your friend, or at least a neutral interlocutor" Okay, so Howard isn't entirely wrong here. In theory, HR is supposed to be a neutral liaison between management and the workforce. In practice, it doesn't always work out that way, particularly in individual matters. When it comes to policy development or other types of organizational reform, general inputs like employee morale will hold more weight. But when it comes to performance management, accommodations, and dismissals, HR is generally going to be the face of management. That doesn't necessarily mean they're going to act in bad faith - sometimes management wants to accommodate, or correct performance deficiencies, in good faith. But it does mean that the employee's interests are secondary to the employer's. Where I disagree...