Edmonton Employment Law

Recently, we surveyed some of the problems in the analysis of employee condonation of employer breaches of contract . Next, let's talk about mitigation - about the expectation that constructively dismissed employees will stay in their jobs, because the 'reasonable person' wouldn't just dump a perfectly good job without a fallback plan. Let's start with mitigation generally . The concept isn't unique to employment law, but is an extension of the general law of damages: Innocent parties are entitled to damages to put them into the position they would have occupied but for the breach, but  they cannot recover for avoidable or avoided losses. If you agree to buy 100,000 widgets from me at $10 each, and then you renege...I can't just dump the widgets in the garbage and sue you for a cool million; I have to still try to sell the widgets at the best price I can get for them, and sue you for any shortfall.  So if I can only get $8.50 per widget from others, I sue yo...

I have a bunch  of draft constructive dismissal posts on the go, which I'm basically aborting because, the more I think about the subject, the more my thinking evolves. Constructive dismissal law is in need of a reinvention, especially in the wake of COVID-19. So let's start a conversation about this. Consider this the first installment of a series on Redefining Constructive Dismissal. Back To Basics A constructive dismissal occurs where an employee makes a unilateral and fundamental change to the terms and conditions of the employment contract. In practice, there are basically three or four kinds of constructive dismissal, though there's overlap between them: Significant reduction in compensation. Significant modification to the working conditions, duties, or expectations. Temporary layoff/unpaid suspensions. Permitting a toxic work environment to be created. The last category, while factually complex, is legally less convoluted than other areas. A lot of the weird and arc...

Since governments aren't likely to actually mandate the vaccine (more commentary on that issue forthcoming), the next question is whether or not someone might be required  to get the vaccine in order to go to work. As a preliminary note, I'm not talking about unionized workplaces; different considerations will apply there. This discussion centers on non-unionized workplaces. There are a range of considerations to look at - the impact of various statutory regimes, context-dependent factors, etc. - but the biggest and most difficult question here will be the 'general' case: In a workplace with no exceptional or extraordinary relevant considerations, is it within the employer's contractual rights to require employees to vaccinate?  I'll come to that last. The Easier Question: What If I Can't Vaccinate? There are already cases of people experiencing allergic reactions to the Pfizer vaccine, and so the emerging recommendation is that people with histories of drug...

The confirmation hearing of Judge Coney-Barrett has triggered a firestorm of discussion on my Twitter feed about the meaning of the term 'originalism'. My own Twitter feed is more of a counter-narrative - people responding to claims that Canada doesn't subscribe to the American originalist doctrine, essentially arguing that Canada's "living tree" principle is not in opposition to an originalist approach.  (Naming names, I've seen posts to more-or-less this effect by Emmett Macfarlane , Leonid Sirota , Asher Honickman , and Mark Mancini - with some variation between their positions. I've linked relevant Tweets, and I'm genuinely trying to be fair to everyone's position, but if anyone feels I'm misrepresenting your positions or using any straw man arguments here, I invite clarification.) These folks largely have stronger constitutional law credentials than I do, and I don't take issue with the core point being made (particularly by Honic...

A year and a day ago, the Supreme Court of Canada heard the appeal in Matthews v. Ocean Nutrition , where Mr. Matthews sought his entitlements under an LTIP, which would have come due during a notional reasonable notice period, notwithstanding that it was a term of the LTIP that he would only receive the benefit if he was actively employed when it vested (the 'forfeiture clause'). The Nova Scotia Court of Appeal, following an Alberta precedent, Styles , had declined to award Mr. Matthews that benefit. In a striking coincidence, a couple weeks before the Supreme Court granted leave to appeal (January 2019), I submitted a paper to the Alberta Law Review setting out a first principles analysis of that very question. My paper leaned heavily on certain interprovincial inconsistencies in the law and a lack of clarity from the Supreme Court on the nature of wrongful dismissal damages, and my initial draft included a footnoted prediction that the Supreme Court likely would and should ...

With schools reopening, there are already lots of kids being isolated on a 'close contact' basis - leaving parents and others, and their employers, in a situation of wondering whether the contacts of those children should also be isolating. But the financial concerns of self-isolation, for both employers and employees, are serious and legitimate. Employees don't want to stay home from work if it means that they don't get paid; employers are legitimately reluctant to pay employees who are unable to perform work. Before we get into the nuts and bolts here, a few preliminary notes: There's no case law on any of this. I can extrapolate reasonable conclusions based on existing principles, but COVID may well change how these principles are interpreted and applied, so it's hard to say anything with confidence. The below assumes that no sick benefits or short-term disability benefits are engaged. There may be scenarios where that changes the analysis, but there's go...

This pound of flesh which I demand of him is dearly bought; 'tis mine and I will have it. If you deny me, fie upon your law: There is no force in the decrees of Venice. -Merchant of Venice, Act IV, Scene 1. Employers, concerned about having to provide potentially prohibitive 'pay in lieu of reasonable notice' when dismissing employees, often require employees to sign contracts limiting their entitlements on termination. There are plenty of ways that employees can challenge these clauses following termination: A new employment contract for an existing relationship might be said to lack 'fresh consideration'; an old employment contract for an evolved relationship might be said to have lost its 'substratum'; a clause may be void for a conflict with the applicable employment standards legislation; etc. In the case of Waksdale v. Swegon North America Inc. , Ontario's Court of Appeal recently dramatically expanded the category of contracts void for con...