Edmonton Employment Law

Back in June, I wrote about a summary dismissal from Ontario, Taylor v. Hanley Hospitality , where Ontario's Infectious Disease Emergency Leave provisions were interpreted as displacing the common law of constructive dismissal: An employee put on a temporary layoff from March to September 2020 (then recalled, and she in fact went back to work) sued in constructive dismissal, and the court found that the effect of Ontario's IDEL regulation was that she was deemed on a 'leave', not a layoff that would breach her contract. This decision was exactly the opposite of what another Ontario Superior Court judge in an earlier decision, Coutinho . This has attracted a lot of attention. In addition to my earlier post, Sean Bawden wrote about it and argued that it was wrong on its face ; Brian Langille and Saambavi Mano argued that Justice Ferguson misapprehended the interplay between the common law of contracts and the statutory regime ; and Stuart Rudner said that the conflicting ...

Given all this talk of human rights and unfairness in the context of anti-restriction protests, let's clear up some myths. For clarity, when I talk about "human rights" in Canada, I'm talking very specifically about rights under the human rights statutes that exist in every jurisdiction in Canada - NOT about the Charter of Rights and Freedoms, which is different. (The Charter limits only  what government can do. These statutes create obligations for other people and organizations.) We're talking about laws like the (Federal) Canadian Human Rights Act , the Alberta Human Rights Act , and the Ontario Human Rights Code . The Basics: What These Laws Do The core goal of these laws is to stop discrimination on certain 'prohibited grounds' (like age, sex, race, religion, disability, and various others) in specified 'social areas' (like employment, services, etc.). The specific grounds and social areas vary. Each law has different sets of lists, and even t...

Over the last decade or two, a weird movement has popped up in Canada (and other countries) of people calling themselves 'freemen on the land', who think they can say a few magic words and have laws and government authority no longer apply to them. (Spoiler alert: They're wrong. This is a hoax that has landed more than a few people behind steel bars.) It's an anti-government group that relies on what we've come to call an "Organized Pseudolegal Commercial Argument" (OPCA). It has a few cousins - like the detaxer movement that challenges the government's authority to collect taxes, or the primarily American "Sovereign Citizen" movement. I'll give some background on what it is and why it's a scam, first, but ultimately I'll come to a very disturbing point about its principles being invoked to create a quasi-militia within the Ottawa occupation. The Myth The underpinning of freeman theory is a belief that all statutes are contractual...

By default, most employees dismissed on a not-for-cause basis are entitled to 'reasonable notice', by virtue of an 'implied' term of the contract. There's a common law doctrine for figuring out how much that is, but in many cases it can be substantial. So many employers try to limit those employee entitlements by expressly contracting to something different (and usually significantly less) instead. That's allowed. It works. If done properly. (Some management counsel will gripe about how shifting goalposts make it nigh-impossible...which has a grain of truth, but there are ways of dealing with that, too.) However, employment standards legislation sets out guaranteed minimum termination entitlements, and contracting to less than that is not allowed. Across the country, all the employment standards statutes I've reviewed have similar provisions voiding such contractual clauses. (That's also why you can't agree to a wage lower than minimum wage; you can...

With the polarizing protests of the last several days, and some reports of transport companies who have fired truckers who participated in the convoy, it seems a good time to talk about what your employer can do if photos of you show up on social media waving a Confederate flag: Specifically, can you be fired if your employer doesn't like what it sees you doing? Not-For-Cause Termination Let's start with the basics: In most non-union contexts, an employee can be dismissed for almost any reason (or no reason at all), though there's usually a requirement for some amount of 'notice' - typically meaning that your employer might dismiss you immediately but you then have a claim to some amount of money. (The amount can be significant, or not, depending on a number of circumstances.) There are a few improper  reasons to dismiss, as established by statute. For example, it's generally illegal to dismiss someone - on notice or otherwise - because  they became pregnant. Bu...

There's another interprovincial schism that's emerged in the law on employment successorship issues. This time, Ontario is the outlier, but I think Ontario gets this one right. The question is how to address successor employers in a wrongful dismissal action: Length of service being an important factor, under what circumstances should I get 'credit' for my service with a predecessor employer? On a superficial level, many lawyers - even employment lawyers - will tell you that the issue is one of continuity of the relationship. If your employment with the successor employer is the same legal relationship as your employment with the predecessor employer, it's one uninterrupted period of service. On any doctrinal approach, that superficial analysis is wrong. No matter which side of the schism you come down on, a true 'successor employer' scenario precludes most arguments of a singular employment relationship that bridges multiple employers. (Occasionally, you...