On September 23, 2021, James Cameron presented as part of the County of Carleton Law Association’s second virtual Six-Minute Employment Lawyer update. James presented on the interconnections between Long-Term Disability claims, the duty to accommodate disabilities in the workplace, and wrongful dismissal cases.
In a significant win for workers in Ontario, the Divisional Court held that the obligation to provide severance pay under the Employment Standards Act (ESA) applies to all employers with a global payroll of $2.5 million, even if their payroll in Ontario is below that threshold. The landmark decision in Hawkes v. Max Aicher (North America) Limited means that multinational companies with small Ontario payrolls cannot use the small Ontario payroll to avoid providing severance pay upon termination to workers with a long service record.
Section 64 of the ESA states that employers must provide severance to dismissed employees with five years of service “if the employer has a payroll of $2.5 million or more.” Previous decisions have been divided on the question of how to calculate the employer’s payroll under this provision — namely, whether a company’s global payroll or only its Ontario payroll is used to determine if the threshold of $2.5 million is met.
In a 2014 decision, Paquette, the Ontario Divisional Court considered this issue with respect to a corporation with a total payroll in Quebec and Ontario exceeding $2.5 million, but an Ontario payroll below $2.5 million. The court held that the ESA should be interpreted to provide protection to as many workers as possible, and that severance should be provided to all Ontario employees who work for companies with $2.5 million or more in total payroll.
In October of 2017, Doug Hawkes was terminated from his employment with Max Aicher (North America) Limited, a subsidiary of Max Aicher GmbH & Co KG, a steel company located in Bavaria, Germany. After being terminated, Mr. Hawkes filed a complaint to the Ministry of Labour for his severance pay under section 64, as he had worked for the company for over five years. However, the Ministry denied Mr. Hawkes’ claim because Max Aicher (North America) Limited’s payroll in Ontario was below $2.5 million. The German parent company, on the other hand, had a payroll far exceeding $2.5 million.
Mr. Hawkes filed an application with the Ontario Labour Relations Board (OLRB) to review the Ministry’s decision. Unfortunately, the OLRB declined to follow Paquette, relying instead on a line of prior cases that interpreted section 64 as including only Ontario payroll. The OLRB found that Paquette was distinguishable in that it only extended payroll to another province rather than another country.
The Divisional Court disagreed with the OLRB and, following Paquette, held that it was clear that “payroll” under section 64 of the ESA was not limited to a company’s provincial payroll. Writing for a unanimous court, Justice Dambrot affirmed the broad, worker-friendly interpretation of the ESA’s severance pay provisions:
“It is apparent that the underlying policy of the 1987 amendment to the severance pay provisions, and specifically to the calculation of payroll, was to better recognize the dignity and value of the people who work in this province by extending the protection of severance pay to as many employees as possible.”
Hawkes is an important victory for workers across Ontario. Severance pay under the ESA is intended to recognize the long service that an employee has provided to the employer and, as confirmed by the Court, should be extended to as many long service employees as possible. The exception to this obligation based on payroll was always intended to provide relief to small employers — if the payroll were calculated solely based on a company’s Ontario workforce, many large multinational companies would be able to avoid this obligation. The Court’s decision prevents big corporations from evading their obligations to long-time employees.
For further details and/or assistance regarding employment law, it is in your best interests to discuss such matters with an experienced and reputable legal professional. Our team at RavenLaw is happy to address your concerns in these and other areas of law. Contact us today to request an initial consultation.
Andrew Astritis and Amanda Montague-Reinholdt were co-counsel representing Mr. Hawkes before the Divisional Court.
Losing your job is an incredibly stressful event, even more so if you are pregnant. A recent decision of the Ontario Superior Court offers some comfort to pregnant employees who are terminated, by ruling that pregnancy can be a factor in assessing the appropriate length of a reasonable notice owed to a terminated employee.
Employees are entitled to reasonable notice of termination (either working notice, where you continue to work during the period, or pay in lieu of notice, where you receive a lump sum payment) when their employer terminates their employment without cause. The amount of reasonable notice is meant to reflect the amount of time an employee will need to find a new, comparable job. The reasonable notice period is usually calculated based on a list of factors, called the Bardal factors: age, length of service, character of employment, and availability of similar employment. Courts frequently state that these are not the only factors that can be considered, but few decisions have identified other factors when determining the reasonable notice period.
In Nahum v Honeycomb Hospitality, Ms. Nahum, a 28-year-old employee with four and a half months of employment at Honeycomb, argued that her pregnancy should be considered as a factor in determining the length of the reasonable notice period. Given that she was five months pregnant at the time she was terminated from Honeycomb, Ms. Nahum argued that she would not be able to find new employment in a short period of time.
The employer’s position was that Ms. Nahum would not need more than two months to find a new job. The employer argued that the court should not find that pregnancy could increase the length of a notice period because that would require the court to assume that her potential new employers would discriminate in their hiring practices by refusing to hire Ms. Nahum because she was pregnant.
The court disagreed with the employer. Ms. Nahum was awarded a five-month notice period, above what might have been expected based on previous court decisions. In making that determination, the trial judge noted:
At the time of her dismissal, Ms. Nahum was five months pregnant. In my view, it is unreasonable to expect she would be able to obtain new employment in the two-month period proposed by Honeycomb, given the point in her pregnancy at which she was terminated and the competitive job market in which she was seeking work.
The trial judge relied on a few other cases that accepted that pregnant employees are likely to have difficulty finding comparable employment after termination. In addition, the plaintiff brought evidence demonstrating that she, in fact, had faced difficulty finding a comparable mid-management position.
The court’s decision provides a rare expansion of the Bardal factors, allowing courts to consider pregnancy as a factor when determining the length of a reasonable notice period. Importantly, the court emphasized that pregnancy does not automatically extend the notice period; rather, it will depend on the particular circumstances of the case, as with all the Bardal factors. Pregnant employees who are terminated should consult an employment lawyer to determine their rights and the appropriate action to take to secure those rights.
We are here to help: Consult one of our experienced employment lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you have been terminated and believe that you have not received reasonable notice.
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]
On October 1, 2021, Zachary Rodgers was called to the Bar in the province of Manitoba. He will assist the firm’s Manitoba clients with all matters related to labour, employment and administrative law. He joins Dayna Steinfeld, RavenLaw’s lead lawyer in Winnipeg, in providing legal services to workers in Manitoba.
On September 27, 2021, Morgan Rowe spoke to the University of Ottawa – Faculty of Common Law’s “Human Rights” class, as part of the class on emerging topics in human rights. Her presentation focused on topics related to sexual orientation, asexuality, and the regulation of personal relationships.
On February 24, 2021, Morgan Rowe presented as part of a panel on pay equity issues in Canada, hosted by the University of Ottawa Association of Women and the Law and Employment Law Student’s Society. The panel discussed the ongoing work needed to address the gender pay gap, as well as the impacts of the recent federal Pay Equity Act and the Supreme Court of Canada’s 2018 decision striking down portions of Quebec’s pay equity legislation.
Andrew Raven, Andrew Astritis and Morgan had appeared before the Supreme Court on behalf for the intervener, the Public Service Alliance of Canada, to argue in support of a Charter challenge during the Quebec pay equity case.
On March 17, 2021, David Yazbeck will be moderating a webinar on “The Expansion of Whistleblower Rewards in Canada, the US and Globally”. The webinar, presented by the Whistleblowing Canada Research Society, will focus particularly on the Ontario Securities Commission Whistleblower Program, as well as other similar programs.
David will be joined by host Paloma Raggo, assistant professor at Carleton University and the Director of Whistleblowers Canada; Mary Inman, a partner at Constantine Cannon LLP and head of the firm’s international whistleblower practice; and Shaifali Joshi-Clark, a senior forensic accountant in the Office of the Whistleblower of the Ontario Securities Commission.
More details about the webinar can be found here. Attendance at the webinar is free.
David Yazbeck was recently invited to speak about whistleblower laws on the @Risk Podcast, with host Jodi Butts. David spoke about the risks inherent in whistleblowing and the proper response – or lack of response – from legislatures or other bodies. As part of the same episode, Ms. Butts interviewed Dr. John O’Connor, who is the first recipient of the Centre for Free Expression Whistleblower Initiative’s Peter Bryce Prize for whistleblowing.
David is a leading practitioner in the area of whistleblower law. He is also a member of the Centre for Free Expression Whistleblower Initiative’s Steering Committee, along with a number of high-profile whistleblower advocates.
The @Risk episode featuring David and Dr. O’Connor can be found here, as well as on Apple and Google podcasts.
April 28, 2021 marks the 30th National Day of Mourning in Canada. Community members are asked on this day to take some time to remember workers who have been killed, injured, or suffered illness due to workplace related hazards and occupational exposures.
In the era of the Covid-19 pandemic, it has become especially apparent that some workers face greater risks when providing front line and essential services to the community. Many times, the workers who are placed in the most precarious positions are those that already face systemic barriers to equality. Many are not able to work in the protection of their home, or access unpaid sick leave when providing care, food, transportation, and other vital services. Frontline and essential workers have become ill, and some have even lost their lives due to work related exposures to the virus and other health hazards.
All Canadians should enjoy an equal right to workplaces that are safe, healthy, and respectful of every individual’s dignity. We encourage you to take some time today to reflect on the many sacrifices Canadian workers make when providing goods and services, and how you can demonstrate your support and commitment to the promotion of safe workplaces.