On May 9, 2022, Dayna Steinfeld will be presenting on a panel hosted by the Manitoba Bar Association’s Alternative Dispute Resolution, Labour & Employment Law, and Legal Research sections. Dayna will discuss legal research and practice tips for mediations and informal proceedings in labour and employment law.
For more information or to register for this lunch-hour session, please visit the MBA website.
On June 2, 2022, Alison McEwen will present as a speaker during the Law Society of Ontario’s Eight-Minute Employment Lawyer. Alison will be discussing the use of hybrid work arrangements since COVID, particularly in situations involving the duty to accommodate.
For more information on this upcoming presentation or to register, please visit the event website.
Join Wassim Garzouzi, Jessica Greenwood, and Dayna Steinfeld on June 20, 2022 from 12:00 – 1:00 EDT for a virtual discussion on the Supreme Court’s decision in Northern Regional Health Authority v Horrocks.
Wassim, Jessica, and Dayna will review the decision, the potential patchwork results of the decision across the country, and will answer audience questions about how the decision will impact union representatives. Topics will include: What is the expected impact of this decision across Canada? What do unions need to know about the decision for their representation of members in health care sectors and beyond? What practical implications does Horrocks have for unions, given the Supreme Court’s conclusion that labour arbitrators have exclusive jurisdiction over issues arising under the collective agreement, including human rights complaints, unless there is clear legislative intent to the contrary? Can union members pursue individual human rights complaints and, if not, what does the duty of fair representation require from unions?
RavenLaw is pleased to welcome Michael Fisher, Raphaëlle Laframboise-Carignan, Amanda Montague-Reinholdt, and Morgan Rowe into the partnership, effective January 1, 2022.
Michael, Raphaëlle, Amanda and Morgan have worked with RavenLaw for many years and have made significant contributions to the firm. We thank them for their important work in advancing union and worker rights, and congratulate them on becoming partners.
In a significant victory, the Ontario Divisional Court recently set aside a Workplace Safety Insurance Appeals Tribunal (“WSIAT”) decision and directed the WSIAT to grant benefits to the injured worker.
The Worker was injured on the job and, as a result, was no longer able to work. However, he was denied benefits by the Workplace Safety Insurance Board (“WSIB”) and the WSIAT because he waited several weeks after the accident before seeking medical care. The WSIAT found that the Worker had not proven that the workplace accident significantly contributed to his injury.
At the Divisional Court, the Worker argued that it was unreasonable for the WSIAT to discount uncontradicted medical evidence and to rely so heavily on his delay in seeking treatment. The Court agreed, finding that the WSIAT’s decision suffered “from serious logical flaws” which resulted in an “outcome [that was] unreasonable, based on the record.” It therefore set the WSIAT’s decision aside.
The Court then went one step further and held that the delay in resolving the Worker’s claim was a serious concern. The accident occurred in 2005, which meant that the Worker had been waiting over 15 years for benefits. Given the amount of time that had elapsed since the injury and the clear evidentiary record, the Court did not send the file back to the WSIAT for reconsideration. Instead, it found that the Worker was entitled to benefits for the injury. It referred the matter back to the WSIAT to assess his claim.
This is an important win for workers who are faced with unreasonable decisions from statutory tribunals such as the WSIAT. It affirms that the Divisional Court has the option, in certain cases, to direct the outcome instead of sending the issue back to the tribunal for reconsideration.
The Worker was represented by Julia Williams, Wassim Garzouzi, and Anna Rotman.
An increasing number of employers resort to providing employees with time off for the hours they work overtime, instead of paying them overtime pay. Employees may have questions about when they may receive this benefit and the rules associated with it. Here are three things you need to know regarding time off in lieu of overtime.
The Employment Standards Act provides that an employee may be compensated for the hours they work overtime by receiving one and one-half hours of paid time off work for each hour they work overtime, instead of being paid overtime pay. For most employees, this means that they can receive one and one-half hours of paid time off for each hour they work in excess of 44 hours in the work week. Some jobs have an overtime threshold that exceeds 44 hours in a work week, or do not provide for the right to overtime pay, as reported in the Guide to employment standards special rules and exemptions. This applies to every employee working in Ontario, except for employees under federal jurisdiction such as employees working for banks, telecommunication companies, transportation companies, postal services, and most federal Crown corporations.
No. Subsection 22(7)(a) of the Employment Standards Act expressly provides that time off in lieu of overtime is only allowed if both the employee and the employer agree to it. This means that an employer cannot refuse to pay overtime pay and impose time off in lieu of overtime if the employee does not agree to it.
However, this is also means that an employee cannot decide on their own to work hours in excess of the overtime threshold in hopes of receiving additional time off work. For an employee to be compensated with time off for the hours they work in excess of the overtime threshold, both the employer and the employee must agree to it.
By default, when an employee and an employer agree that an employee will be compensated with time off work for the hours they work in excess of the overtime threshold, the paid time off work must be taken within three months of the work week in which the overtime was earned. There is one exception. The paid time off work can be taken within 12 months of the work week in which the overtime was earned if the employer agrees to it.
If the employee’s job ends before they were able to take the paid time off in lieu of overtime, the employer is required to pay overtime pay to the employee for their unused banked time off. The employer must do so no later than seven days of the date on which the employee’s job ended, or on the day that would have been the employee’s next pay day.
We are here to help. If you have questions about your right to overtime pay or time off in lieu of overtime, or any other term in your employment contract, consult our experienced employment lawyers at RavenLaw LLP. Please call 613–567–2901 or email info@ravenlaw.com to consult one of our experienced employment lawyers.
[This article is for informational purposes only and is not legal advice, which cannot get given without consideration of your individual circumstances.]
[The information on this page applies only to non-unionized employees in Ontario, working in provincially regulated industries. It is for informational purposes only and is not legal advice, which cannot be given without consideration of your individual circumstances.]
Many employees may believe that wrongful dismissal is when an employer dismisses them for the wrong reasons. However, generally, an employer can terminate an employee for any reason or no reason, provided that that reason does not contravene legislation such as the Human Rights Code.
However, employees cannot usually be terminated without notice or pay in lieu of notice, unless that employee has engaged in serious misconduct. So, a wrongful dismissal is one that does not respect an employee’s legal rights upon termination, such as the right to notice of termination.
The amount of notice an employee is owed on termination, and thus an amount they may claim in an action for wrongful dismissal, is based on the two primary sources of law that govern an employment relationship:
The ESA is the law that sets employments standards in Ontario. Under that law, employees who have been continuously employed for at least three months are entitled to notice in the amount of one week per year or partial year of service, up to a maximum of 8 weeks’ pay. If you have worked for your employer for at least five years, and your employer meets other requirements, you may also be entitled to severance pay under the ESA in the amount of one week per year of service up to 26 weeks of severance pay.
This is the minimum termination pay to which an employee is entitled. However, many employees may be entitled to greater amounts either under their employment contract or the common law.
The employee’s contract might spell out how much notice is owed. Where it does not, courts will consider several factors, such as:
Applying these factors, courts determine an employee’s entitlement to “reasonable notice” that approximates the amount of time an employee would need to find new employment. This amount is generally capped at 24 months, though in exceptional circumstances, courts will go higher. An employment lawyer can help determine what your reasonable notice period may be.
Depending on the circumstances of your termination, you may be entitled to other compensation for a wrongful dismissal, including damages for bad faith in the manner of dismissal or punitive damages.
Possibly. The answer to this question depends on the specific words in your contract. If the termination clause in your contract is valid and limits your entitlements to ESA minimums, that may be all your employer is required to give you. However, many employment contracts contain invalid termination clauses.
For example, some employment contracts state that an employee can be dismissed for “just cause” without the obligation to give notice. Courts have ruled that these clauses are invalid because they would deprive employees of notice under the ESA for “just cause”, even though the ESA requires a higher standard to terminate an employee without notice. In those situations, the whole termination clause is deemed invalid, even if an employee is terminated without cause. An employment lawyer can help interpret your contract and determine if you have a valid termination clause.
Under the ESA, benefits must be continued during the notice period. During the common law notice period, benefits must also be continued, unless the contract clearly states otherwise.
Yes. While your entitlements under the ESA are not dependent on you looking for work, any entitlements under your contract or the common law are subject to your duty to mitigate, which means you have to look for work and, if you find work, your damages will be reduced. However, if you negotiate a lump sum severance package, you may not have to worry about mitigation.
If your employment is terminated and the employer only offers the minimum entitlements under the ESA, you are not required to sign a release. Employers cannot withhold statutory termination pay until you sign a release. However, if an employer is offering you more than what the ESA requires, they will often ask you to sign a release, committing that you won’t take any legal action against them. Employees are encouraged to review a severance package with a lawyer before signing, to make sure that the compensation is in line with what they are entitled to and to make sure the package is not depriving them of any legal rights.
If your rights under the ESA have been violated, you can enforce them through an online complaint to the Ministry of Labour. This can help you get termination pay, severance pay, and any unpaid wages. However, the Ministry of Labour cannot enforce any other rights an employee may have, including reasonable notice under the common law, human rights damages, or damages for bad faith in the manner of dismissal.
An employment lawyer can help you assess the compensation you may be owed and negotiate a termination package with your employer. If a settlement cannot be reached, a lawyer can help you file a lawsuit to enforce your rights in court.
The employment lawyers at RavenLaw LLP have advised and represented countless workers in claims for wrongful dismissal throughout Ontario. If you believe that you have been wrongfully dismissed, feel free to contact our employment lawyers at RavenLaw LLP to assess the viability of your wrongful dismissal claim, and to navigate the options towards the resolution you are seeking.
We are here to help. Please call 613–567–2901 or email info@ravenlaw.com to consult one of our experienced employment lawyers.
On February 7, 2022, Dayna Steinfeld presented a lecture on “Labour Lawyering in Manitoba” to the University of Manitoba’s Robson Hall law school upper-year labour law class. Dayna discussed common issues under the Manitoba Labour Relations Act that labour lawyers in the province encounter in their practice, from the perspective of a union-side labour lawyer.
On March 4, 2022, James Cameron, Kim Patenaude, and Raphaelle Laframboise-Carignan hosted a virtual conference on “Mental Health in the Time of COVID: Fostering Wellness for Yourself and Your Clients.”The conference started off with an interactive webinar by the Mental Health Commission of Canada. Our lawyers then discussed the unique details of making and dealing with disability accommodation requests and long-term disability benefits applications during COVID-19 pandemic.