Category Archives: Resources

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.

Raphaelle Laframboise-Carignan Presents on COVID-19 Employment Law and Policies

On December 21, 2021, Raphaëlle Laframboise-Carignan presented to l’Association des juristes d’expression française de l’Ontario (AJEFO) on employment laws and policies related to COVID-19. Raphaëlle discussed the effects of these types of policies on the workplace, accommodation issues, exemption requests, and the potential consequences where employees do not comply with COVID-19 policies.

Will new pay transparency rules help to eliminate the wage gap?

[RavenLaw gratefully acknowledges the contribution of this post by articling student Kundera Provost-Yombo]

In January 2021, the Government of Canada implemented amendments to the Employment Equity Regulations that imposed disclosure obligations to on federally regulated private sector workplaces. These new measures will make salaries publicly available, and help to identify wage gaps experienced by women, indigenous people, members of visible minorities, and people with disabilities. The key question is – will this increase in pay transparency lead to any meaningful change in the wage gap?

What is the Wage Gap?

There is overwhelming evidence that women, indigenous people, members of visible minorities, and people with disabilities earn less income than workers who don’t fall into these four categories. For instance, a study conducted by Statistics Canada found that in 2018, female workers aged 25 to 54 earned on average13.3% less per hour than their male counterparts, or $0.87 for every dollar earned by men.

This wage gap generally materializes in one of three ways:

Women, indigenous people, members of visible minorities, and people with disabilities may be paid less than others for performing the exact same job.
Women, indigenous people, members of visible minorities, and people with disabilities may be paid less for work of ‘equal value’—that is, work that requires substantially the same level of skills, effort, and responsibilities than work performed by others.
Job classes traditionally dominated by women, indigenous people, members of visible minorities, and people with disabilities may be paid less than other job classes. For example, certain types of jobs traditionally performed by women (e.g. childcare) are systemically underpaid.

What do the Employment Equity Regulations do about the wage gap?

The amendments to the Employment Equity Regulations that are now in force impose pay transparency in federally regulated private sector workplaces. Employee salaries will be publicly available, with added emphasis on the existing wage gaps experienced by women, indigenous people, members of visible minorities, and people with disabilities.

Before these amendments, federal private sector employers were already required to prepare employment equity reports each year, reporting information on representation data, employee occupational groups, employee salary ranges, and the number of employees hired, promoted, and terminated.

This data was reported to the Minister of Labour, but now, under the new amendments, will also be made available to the public. The data will be published through aggregate statistics, based on occupational group and employment status. Through this aggregate data, wage gaps will be identified, for example, through the average difference in hourly wages between men and women working in an occupational group. No information that can identify individual employees will be included in the public data.

Employers of federally regulated private sector workplaces will have to meet the disclosure obligations and include aggregated wage gap statistics in their annual employment equity reports by June 2022. The first production of aggregated wage gap data is expected to be published in winter 2023, through an online application currently being developed.

Which employers must comply with the new Regulations?

The new pay transparency measures apply to employers of federally regulated private-sector workplaces. Federally regulated private-sector workplaces are defined in parts I, II, III, and IV of the Canada Labour Code, and include industries such as banks, transportation, telecommunications, postal services, and most federal Crown corporations.

What do these new rules mean for employees?

The new amendments will allow workers in the federal private sector to better understand whether they are currently experiencing wage discrimination. The wage gap is perpetuated in part because it is hidden. As a result, the pay transparency measures adopted by the Government of Canada will raise awareness about the wage gaps in federal private sector workplaces.

Using this information, workers can better advocate to eliminate the wage gap. It is difficult for workers to compel their employers to close wage gaps if they are not aware that they are being underpaid. Pay transparency will enable workers and their advocates to access more detailed data to advance the fight towards pay equity.

In theory, greater pay transparency may also encourage employers to proactively work towards pay equity in their workforces. Publicizing wage disparities may create public pressure and incentivize employers to address wage gaps within their workplaces.

Unfortunately, pay transparency alone does not necessarily lead to pay equity. It is unclear whether these new measures will meaningfully change existing wage gaps in federal private sector workplaces. It is, however, undoubtedly a step in the right direction, and will allow workers and their advocates to at least understand the scope of the problem.

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

Is My Termination Clause Invalid? Conflicting Case Law In The Ontario Courts

Is My Termination Clause Invalid Conflicting Case Law In The Ontario Courts

Recent decisions in the Ontario courts have created uncertainty for Ontario workers
as to whether the termination clauses in their contracts are valid or not. Many
employment contracts contain a sentence that reads something like this:

c) Termination by the Company for Just Cause – The Company has the
right, at any time and without notice, to terminate your employment under
this Agreement for just cause.

Under this provision, if the employer has “just cause” to terminate the employee,
they can be terminated immediately, without any right to notice or pay in lieu of
notice.

This type of provision has been found void because it violates the Employment
Standards Act (ESA). The problem arises from the different standards for
terminating someone’s employment for cause under the common law and under the
ESA. Under the common law, employers may terminate without notice if they have
“just cause”, a concept which is broader than just wilful misconduct, and can
include things like prolonged incompetence. The ESA, on the other hand, only
permits termination without notice for wilful misconduct, sometimes described as
“being bad on purpose.”

So, the problem with the termination provision above is that it allows the employer
to terminate an employee, without any notice (even the limited right to notice
under the ESA), for conduct that wouldn’t rise to the level of wilful misconduct, and
therefore violates the ESA. For this reason, Courts have found this type of clause to
be void.

The Court of Appeal went even further in Waksdale, a decision released last
summer, ruling that, if the termination for cause provision is invalid, the whole
termination provision is invalid. (To learn more about that decision, read our blog
about it here). What this means is that, even if an employee is terminated without
cause, the fact that their “just cause” provision was invalid means the whole
termination clause is invalid. This then entitles the terminated employee to receive
pay–in–lieu of common law notice, which is generally higher than notice under the
ESA.

While Ontario workers may have hoped Waksdale settled this area of the law, more
disagreements have arisen among Ontario judges about whether this analysis
applies in the same way to all employees, or if it is only meant to protect more
vulnerable parties. In a case released in September, the Court rejected the idea
that a “just cause” provision should always be interpreted as violating the ESA.
Justice Dunphy reasoned that, in this case, the plaintiff was a sophisticated party,
being hired to perform a senior role, with a high salary. She received legal advice

and the parties specifically negotiated the termination clause. He concluded that her

contract provided her a greater benefit than the ESA. Because there was no
disparity in bargaining power, there was no reason why the provision should be
invalid.

But in a case released in October, the Court reached the opposite conclusion. The
contract of employment was negotiated together with a business deal. The
employee was a sophisticated party and was represented by a lawyer when
negotiating the contract.

Despite the fact that there was no significant imbalance of power, the Court found
“no compelling reason” why the employer should be able to rely on a termination
provision that did not comply with the ESA. Justice Black recognized the broader
impact of ensuring that contracts comply with the ESA:

Further, in my view the goal that employers be encouraged to draft clauses
that comply with the ESA trumps the suggestion that Livshin may have been
better able than many or most employees to recognize the potential peril.
These two conflicting decisions on a similar question, released one month apart,
have introduced greater uncertainty into the interpretation of employment contracts
in Ontario.
If you have questions or concerns about the how this case law may apply to the
termination clause in your employment contract, we are here to help. Please call
613–567–2901 or email info@ravenlaw.com to consult one of our experienced
employment lawyers.

Ontario Announces Legislation for More Workplace Policies

Wassim Garzouzi speaks to Ottawa Morning with Robyn Bresnahan on the Ontario Government’s proposed amendments to the Employment Standards Act, specifically as they relate to the right to disconnect.

Ontario Government Proposes to Ban Noncompete Clauses

Wassim Garzouzi was interviewed by the Toronto Star on the Ontario Government’s proposed ban on noncompete clauses in employment contracts. Check out what he said here!

Courts differ on whether to deduct CERB benefits from wrongful dismissal damages

Courts differ on whether to deduct CERB benefits from wrongful dismissal damages

By Raven Law
[The firm gratefully recognizes the contribution of this post by articling student
Anna Rotman]

The Canada Emergency Response Benefit (CERB) was introduced in part to support
individuals who lost their jobs due to the pandemic. Millions of workers across
Canada who were out of work at some point during the pandemic have received
CERB payments. Some of those workers may have made claims of wrongful
dismissal against their employers and are seeking damages either through a
settlement or a court action. The question for those employees is: Will the CERB
payments be deducted from their damages for wrongful dismissal?

It was unclear when the CERB was introduced whether it would be treated like
income received during an employee’s notice period, and therefore deducted from a
damages award, or if it would be treated like Employment Insurance (EI) benefits,
which are not considered mitigation income.

There are now a handful of court judgments across Canada considering this
question, and, unfortunately, they have not all come to the same conclusion.

Judgments refusing to deduct CERB payments from damages awards

The Ontario Superior Court rendered one decision refusing to deduct CERB
payments from a damages award, but the reasoning in that judgment was very
fact–specific. In Iriotakis v Peninsula Employment Services Limited, Mr. Iriotakis
had been working as a salesperson and received most of his income through
commission. Due to a clause in the employment contract, the employer was not
obligated to pay him his commission during the reasonable notice period, leaving
him entitled only to his base salary. The judge stated that, based on these facts, it
would be inequitable to deduct the benefits he earned through CERB from his
damages. The Court was careful to note that this decision was based on the specific
facts of Mr. Iriotakis’s termination.

The Supreme Court of Nova Scotia has also refused to deduct CERB payments from
a damages award, on the basis that doing so would only benefit the employer and
could potentially harm the employee. By that time, the federal government had
made it clear that certain people would have to pay CERB back. In Slater v Halifax
Herald Limited, the Court was strongly influenced by the possibility that the
employee would be asked to pay the CERB back and would be put in a difficult
position. Furthermore, given the fact that CERB payments were meant to be income
replacement and could be subject to repayment, the Court found them to be
“analogous to EI benefits” and as such should not be considered in the calculation
of damages.

Judgments deducting CERB payments from damages awards

The British Columbia Supreme Court deducted CERB payments from damages for
wrongful dismissal in Hogan v 1187938 B.C. Ltd. Mr. Hogan had received $14,000
in CERB benefits in 2020 and the Court found that, if they were not deducted from
his wrongful damages, then he would be in a better financial position than he would
have been had the employer not fired him. The Court considered Iriotakis and
found that, unlike Mr. Iriotakis, Mr. Hogan’s employment contract did not limit his
damages and there was no equitable reason not to deduct CERB.

Furthermore, the Court distinguished CERB from employment insurance (EI) and
private insurance, neither of which are usually deducted from damages. First, the
employer and employee had not contributed to CERB and it was therefore not an
earned benefit. Second, the Court wrote, unlike EI, there was no obligation to pay
CERB back (this judgment was rendered before it became clear that CERB may
need to be repaid in some cases). It is thus unclear how the Court may have
decided had it been aware of the possibility that employees must repay CERB
benefits.

The Provincial Court of Saskatchewan also deducted CERB from wrongful dismissal
damages in Abdon v Brandt Industries Canada Ltd. Interestingly, it held that it
could not follow Iriotakis because the Ontario Superior Court seemed to have
reached its decision on an equitable basis and the Provincial Court of
Saskatchewan, being a statutory court, did not have equitable jurisdiction. This
decision potentially leaves it open for the Saskatchewan Court of Queen’s Bench to
follow Iriotakis since it does have jurisdiction to base decisions on equitable
principles.

Conclusion

The judgments so far considering whether to deduct CERB benefits from wrongful
dismissal damages have left a great deal of uncertainty for individuals. The unique
nature of these benefits seems to have left courts ill–equipped to account for those
benefits when determining an award of damages for wrongful dismissal.
We will be following closely as courts continue to grapple with this question. Consult
one of our experienced employment lawyers at Raven, Cameron, Ballantyne and
Yazbeck LLP if you collected CERB after termination and are concerned about the
damages you are owed for wrongful dismissal.

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

Federal Court Rejects Anti-Abortion Challenge to Government Funding Restrictions

On October 22, 2021, the Federal Court dismissed an application by the Right to Life Association of Toronto and Area (TRTL), which sought to challenge the Federal Government’s decision to deny it funding for the 2018 Canada Summer Jobs program because its president refused to sign an attestation that the job and the organization’s mandate respected human rights, including reproductive rights. Continue reading →

Jessica Greenwood to Co-Chair Public Sector Bargaining Conference