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Employment - On the Docket
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After a three-week trial, the Ontario Superior Court has held that the Royal Bank of Canada had after-acquired cause to terminate a senior banker, Aidan Mittra, and dismissed Mittra’s $10‑million lawsuit.
Lynne McArdle provides a summary of our Cases to Watch from Q4 2023. On the Docket: Cases to Watch features a collection of cases, identified by our Research team, that move the law forward in some meaningful way. The cases in this edition are diverse in that they arise in different areas of the law: fraudulent conveyances, securities law, class actions, employment law, discovery, and Crown law.
On November 10, 2023, when the Supreme Court of Canada (“SCC”) released their decision in R v Greater Sudbury (City), the internet responded with widespread panic because, for the first time, the Court has confirmed that a project owner is an employer under Ontario’s Occupational Health and Safety Act (“OHSA” or the “Act”).
Employment law misclassification class actions are becoming increasingly common. In those cases, the plaintiff says that employees have been misclassified by their employer in such a way as to render them ineligible for certain benefits under applicable provincial employment standards legislation which the employee claims that they should have been eligible for. The two most common categories of alleged misclassification are employees being allegedly misclassified as independent contractors, and ordinary employees being misclassified as managers. While some misclassification cases have been certified, courts have refused to certify many others due to a lack of sufficient commonality. The recent decision of the Ontario Superior Court of Justice in Le Feuvre v Enterprise Rent-A-Car Canada Company is an example of a case that falls into the latter category and was not certified.
Are terminated employees entitled to the payout of bonuses during their reasonable notice period? And should this assessment be informed or affected by an employer’s bad faith or dishonest conduct that led to an employee’s termination or constructive dismissal? These were some of the questions before the Supreme Court of Canada in the eagerly anticipated decision in Matthews v Ocean Nutrition Canada Ltd. The case offered a unique opportunity for the Court to comment on the contractual duty of good faith outlined in Bhasin v Hrynew and its potential effects on employment relationships and exclusion clauses.
An individual’s genetic composition is arguably one of the most personal and private types of information out there. As science and technology continue to develop, the collection, use, and disclosure of genetic information has increased exponentially. Medical genetic testing has become a key tool in helping to diagnose and treat complicated illnesses and commercial genetic testing kits, such as 23andMe, have expanded in popularity. All of this has resulted in an exponential increase in the amount personal data being collected in our everyday lives.
Is an employer obligated to pay overtime if they don’t specifically direct an employee to work overtime? And can an employer’s requirement that employees obtain pre-approval for any overtime they work shield them from the obligation to pay overtime if pre-approval isn’t obtained? These are important issues for any employer.
A frequently litigated issue in Canadian class actions is the extent to which parties can agree in advance to opt out of class actions in favour of private arbitration. In the context of consumer protection claims, provincial legislatures have generally eliminated the ability of defendants to defeat class actions through arbitrations by declaring clauses requiring the parties to submit such disputes to private arbitrations to be void. However, it has remained an open question as to whether and when courts would enforce arbitration clauses in other contexts, where the effect of such enforcement would be to defeat a proposed class proceeding.
An invalid termination clause is a former employee’s golden ticket for employment litigation, increasing a notice period from the statutory minimum to what is reasonable at common law. The monetary difference can be substantial. Given the financial implications, there is a large and growing body of case law on when a termination clause will be deemed unenforceable.
Employers sometimes rely on severability clauses—which provide that any clauses that are found to be illegal or unenforceable are severed from the agreement and that the agreement otherwise remains in effect—to hedge against the risk that clauses in employment contracts could be found to run afoul of the Employment Standards Act and be unenforceable as a whole. However, in its recent decision in North v Metaswitch Networks Corporation, the Court of Appeal for Ontario signalled that these clauses have limited effect when parties include terms in agreements that contract out of minimum employment standards.
