On May 18, 2022, the Manitoba Court of Queen’s Bench ruled that the Manitoba government discriminated against First Nations children in Manitoba foster care by denying them the federal Children Special Allowance (“CSA”) to which they are entitled and which is meant to be used exclusively for the care, maintenance, advancement and education of children in care. 

In Manitoba, approximately 82% of children in the child welfare system are First Nations. From January 1, 2005 through March 31, 2019, Manitoba required Child and Family Service Agencies to remit all CSA benefits received for children in their care. When Agencies refused, the CSA amounts were clawed back from their Operational and Child Maintenance budgets.  In total, Manitoba recovered over $334 million during this period that would otherwise have directly benefited children in care.

In 2020, Manitoba passed legislation (section 231 of The Budget Implementation and Tax Statues Amendments Act, or “BITSA”), which attempted to retroactively authorize its taking of CSA funds. This legislation also sought to absolve Manitoba of all liability for doing so, including by preventing any lawsuits – including already filed and ongoing lawsuits – against Manitoba over its taking of CSA funds.

In 2021, the Assembly of Manitoba chiefs initiated an application against the Manitoba government over its attempt to legislatively prevent children in care from seeking recourse for the denial of the CSA funds. 

The Court’s decision found that the Manitoba government discriminated against children in care by taking the CSA funds from them, and that its attempt to absolve itself of liability for the holding back of over $334 million from children and youth in care was unlawful and constitutionally invalid. The Court found that Section 231 of BITSA “overwhelmingly impacts the Indigenous children and disabled children in care. The CSA policy prevented the claimant group from receiving equal benefit of the law resulting in economic and social consequences to Indigenous children in care The Court stated that “over 150 years of colonial policies which removed children from their families and nations is one example of the historical discrimination against [First Nations] children.” It acknowledged the significant disadvantages experienced by Indigenous children in care, which were perpetuated and exacerbated by Manitoba’s treatment of CSA funds.

The Court found that Manitoba discriminated against First Nations children on the basis of race, ethnic origin, disability, and family status contrary to section 15 of the Charter. In particular, the Court’s finding of discrimination on the basis of family status is notable and precedent-setting as the family status of a child in care had not previously been recognized by courts as a basis for grounding a claim of discrimination. This recognizes, as AMC argued before the Court, that the targeted discrimination of First Nations children in care by Manitoba could not be fully understood and remedied without recognizing family status as a ground of discrimination.

The Court concluded that it [was] a violation of s. 15(1) [of the Charter] by Manitoba to preclude children in care from receiving the CSA Benefits and then enacting s. 231 of BITSA to make the CSA Policy law in Manitoba.” The Court declared section 231 of BITSA to be invalid and of no force or effect. The Assembly of Manitoba Chiefs was represented by Byron Williams and Chris Klassen of the Public Interest Law Centre of Legal Aid Manitoba, with the support of many other lawyers and students at PILC, and Dayna Steinfeld of RavenLaw, with assistance from Anna Rotman.

Dayna Steinfeld is the 2022 recipient of The David Stockwood Memorial Prize. The prize is awarded to an advocacy-related written article, judged for its merit by a panel.

Dayna’s winning submission, “”Finding a Balance – Navigating the Advocacy Challenge for Union Side Labour Lawyers in Cases Involving Allegations of Member on Member Sexual Violence” examines the challenge for union-side lawyers of cross-examining a union member called as an employer witness in a case involving an allegation of sexual assault in the workplace. The article suggests that the union-side advocate can be guided by the legal principles of the law of consent to fulfil their role as an advocate for their client while balancing broader ethical obligations and being sensitive to the union’s equity-seeking goals and duties owed to all of its members.

Dayna’s article will be published in the Fall 2022 issue of The Advocates’ Journal.

In a recent decision, the Federal Court overturned a decision by a delegate of the Minister of Labour, which had refused to investigate the health and safety complaint of a Canada Border Service Agency employee.

The employee had filed a complaint with the Minister under the Canada Labour Code when CBSA had refused to appoint an impartial investigator to investigate his harassment concerns. CBSA had taken the position that it did not have to investigate the concerns because the employee was off-duty at the time of the alleged harassment, even though the incident took place within the workplace and the alleged harasser was the employee’s supervisor. When considering the employee’s Code complaint, the Minister of Labour’s Delegate refused to investigate the complaint, finding instead that the employee should file a human rights complaint because he was off-duty at the time of the incident.

In its decision, the Court found that the Minister’s Delegate did not have the option to refuse to investigate the employee’s complaint. Instead, the Court found that investigation was a mandatory obligation on the Delegate for this type of complaint, and the Delegate therefore committed an error by refusing to investigate.

In addition, the Court strongly questioned whether it was appropriate to deny the employee harassment protections under the Code because he was off-duty at the time of the incident. As the Court stated:

“While the Applicant was in fact off-duty when the incident occurred… it remains that the Applicant was still in his place of work and the agent of the alleged harassment and violence was the Applicant’s supervisor. Therefore, it becomes difficult to disregard the employee-employer connection in this incident, and the fact that the effects of the incident are evidently different for the Applicant than for a regular traveller who is not employed by the CBSA. Since the place, the tone, and the circumstances of the incident are indicative of the existence of a nexus between the incident of violence and the work place, the issue becomes whether or not the incident itself constitutes harassment and violence. The Respondent’s submissions seem to suggest that if an employee acts within the requirements of their job, as provided for by their work policy or statute, their actions against an off-duty employee while in the place of work cannot constitute harassment or work place violence. I agree with the Applicant that this could set a concerning precedent…”

Based on its analysis, the Court set aside the Minister’s Delegate’s decision and referred the matter back for a new decision.

The Applicant was represented by Morgan Rowe of RavenLaw.

[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.

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?

The Lunch ‘N’ Learn is free, but pre-registration is required. Please contact bkone@ravenlaw.com to register and request the Zoom link.