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. 

1. What is 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. 

2. Can an employer force you to take time off instead of paying you overtime?

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.

3. When does time off in lieu of overtime expire?

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.]

What is wrongful dismissal?

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. 

How much compensation can I receive for a wrongful dismissal?

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 Employment Standards Act (ESA)
• The employment contract and the common law

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: 

• Age;
• Length of service;
• Character of employment; and
• Availability of similar employment

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.

My contract says I am limited to ESA minimums. Is that all I can get?

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.

Am I entitled to benefits during my notice period?em

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.

Do I need to look for work after a wrongful dismissal?

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.

Do I need to sign a release to obtain a severance package?

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.

What should I do if I’ve been wrongfully dismissed?

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. 

Our Experience with Wrongful Dismissal

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. 

[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.]

What is constructive dismissal?

Constructive dismissal is when your employer has not formally terminated your employment, but has seriously changed or breached the terms of your employment contract, to the point that you can reasonably conclude you have been dismissed. 

To qualify as a constructive dismissal, the employer’s breach of the employment contract must be sufficiently serious. Examples of conduct that constitutes constructive dismissal include:

1. The employer unilaterally reduces an employee’s salary, benefits package, or bonus entitlement.
2. The employer unilaterally changes an employee’s hours of work. 
3. The employer unilaterally modifies an employee’s employment status (e.g., from full-time to part-time; from employee to independent contractor).
4. The employer unilaterally relocates an employee’s place of employment, if relocation was not part of the job. 
5. The employer makes significant changes to an employee’s duties, job description, title, rank, or responsibilities. 
6. The employer creates a toxic environment in the workplace.

What do I do if my employer has breached my employment contract?

If you believe your employer has breached your employment contract, you should consult with an employment lawyer to assess whether you have been constructively dismissed. It is very important to consult a lawyer before resigning your employment, to fully understand your rights and the consequences of that action. 

Importantly, if you fail to challenge the employer’s breach or change to your employment in a reasonably timely manner, you may be found to have accepted the employer’s changes to your employment contract, which may jeopardize your claim of constructive dismissal. 

If you do resign, it is important that you make it clear to the employer that you are resigning as a result of the employer’s breach of your employment contract and that you consider yourself to have been constructively dismissed. 

How Much Compensation Can I Receive for a Constructive Dismissal?

The amount of notice an employee is owed on termination, and thus an amount they may claim in an action for constructive dismissal, is based on the two primary sources of law that govern an employment relationship: 

• The Employment Standards Act (ESA)
• The employment contract and the common law

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: 

• Age;
• Length of service;
• Character of employment; and
• Availability of similar employment

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 constructive dismissal, including damages for bad faith in the manner of dismissal or punitive damages.

Do I need to look for work after a constructive dismissal?

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. 

How can I sue for constructive dismissal?

For assistance with the filing of your constructive dismissal claim, you may contact our experienced employment lawyers at RavenLaw LLP. Our lawyers can help you prepare an action in court, and assess whether to proceed by way of a trial or a motion for summary judgment, depending on the circumstances of your case.

Our Experience with Constructive Dismissal

The employment lawyers at RavenLaw LLP have advised and represented countless workers in claims for constructive dismissal throughout Ontario. If you believe that you have been constructively dismissed or believe that your employer has demonstrated the intention to do so, feel free to contact our employment lawyers at RavenLaw LLP to assess the viability of your constructive 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. 

By Amanda Montague-Reinholdt

If your employment has been terminated without cause, one of the first questions an employment lawyer will ask you is whether you have a written employment contract. If you do, the employment lawyer will review it to determine if the contract sets out your entitlements when your employment is terminated without cause. Many employment contracts state that employees will only receive the minimum notice and severance entitlements under the Employment Standards Act (ESA). If that clause is properly drafted, it may deprive an employee of their right to a longer notice period under the common law. 

In a judgment rendered last year, the Ontario Superior Court identified a different basis for employees to argue that this type of contract provision cannot be applied to limit their entitlements. The Court held that an employer’s bad faith conduct can amount to a repudiation of the employment contract and invalidate the contract’s termination clause. If this judgment is followed in future cases, a termination clause that, on its face, complies with the law could still be invalidated, based on the employer’s conduct.

In Humphrey v Mene, the plaintiff had helped to create a new start-up company and was subsequently appointed as its Chief Operating Officer. She later signed an employment agreement that contained a termination clause limiting her rights to the minimum entitlements under the ESA. As a relatively short service employee, she was only entitled to two weeks’ notice under the ESA. However, the Court ruled that Mene could not rely on the termination clause in Ms. Humphrey’s employment contract.

First, the Court held that the employment agreement was void because Mene gave Ms. Humphrey no additional consideration for signing it. She was, under the law, already an employee before signing the contract, and received no additional compensation or benefit under the agreement. Therefore, the terms in that agreement were not valid or enforceable.

The Court went on to hold that, even if the employment agreement was valid, the termination clause still did not apply. The Court noted, in passing, that the termination clause did not expressly apply to the circumstances in which Ms. Humphrey was terminated (a constructive dismissal based on a toxic workplace). However, the main basis for the Court’s conclusion was that the employer’s overall conduct amounted to a repudiation of the employment agreement and therefore the employer could not rely on the provision limiting Ms. Humphrey’s entitlement when terminated without cause.

To justify this conclusion, the Court’s judgment recounts numerous examples of the employer’s reprehensible conduct, including:

• After Ms. Humphrey requested a review of her salary, her employer immediately suspended her from her position, and informed her she would either be terminated or demoted.
• The employer sent a company-wide message to employees strongly implying Ms. Humphrey had engaged in some form of wrongdoing.
• The employer knowingly made a false claim of just cause to terminate Ms. Humphrey’s employment, and only withdrew the claim for just cause late in the litigation process.
• Ms. Humphrey’s boss created a toxic working environment by continually swearing at, humiliating, and belittling her.

Ms. Humphrey was awarded significant damages as a result of the employer’s breach of her contract, including a notice period of 11 months, as well as aggravated and punitive damages.

This judgment has potential significance for many employees who are badly mistreated by their employers. The standard to be met to invalidate an employment contract is clearly very high; however, in cases where the employer engages in serious bad faith conduct, employees can avoid the application of a contract provision that harshly limits their entitlements on termination without cause. It remains to be seen whether other judges endorse this approach in future cases.

If you have experienced bad faith conduct, harassment, or mistreatment by your employer, and wish to review your employment contract and the circumstances of your employment, contact one of our experienced employment lawyers here.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

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.

RavenLaw supports liveable wages for all employees, including articling students. As employees, articling students are entitled to compensation for the valuable work they perform in law firms, organizations, and public employers across Ontario. We have written to the LSO Benchers to express our firm’s position that articling students should be provided with a liveable wage for their work and, in the alternative, no less than the bare minimum pay outlined in the Employment Standards Act. A copy of our firm’s letter is available here.

We also endorse the positions of many others calling for the protection of minimum wage for articling students by the Law Society of Ontario (“LSO”) from the following organizations and firms:

• CUPE Local 1281
• Canadian Association of Labour Lawyers
• Goldblatt Partners
• The Canadian Association for Legal Ethics
• Durant Barristers (supported by 57 signatory firms)
• Peter Wardle of Singleton Urquhard Reynolds Vogel LLP
• Alexander Overton
• Law Students’ Society of Ontario
• Federation of Ontario Law Associations

We recognize the precarious and vulnerable position of articling students. As such, regardless of the outcome of the LSO’s consultations on the issue of minimum compensation, RavenLaw LLP will be supporting articling students seeking to organize their workplace, pro bono. We invite articling students interested in unionizing to contact us at info@ravenlaw.com

On March 22, 2022, Raphaëlle Laframboise-Carignan will present as part of a speakers’ night series being held by Mood Disorders Ottawa. Raphaëlle will be discussing workplace accommodations, long-term disability (LTD) benefits, and other disability benefits available when a person cannot work due to injury or illness.

For more information on this upcoming presentation, please visit the event website.

During the week of March 14, 2022, RavenLaw represented the firm at the 2022 uOttawa Career Connections event, held virtually.

Morgan Rowe, Zachary Rodgers, Claire Michela, and Simcha Walfish participated in panels, roundtables, and meet and greet events with law students and particularly spoke about their work representing unions and employees. Thank you to the organizers for putting on this great event, and thank you to the uOttawa students for your engagement and enthusiasm!

If you’re a student looking for more information about the summer or articling experience at RavenLaw, please contact us at studentrecruitment@ravenlaw.com.