Howard Levitt: Lessons from the top cases that defined driving at work in 2021

It wouldn’t be the end of December without my overview of the most important developments of the year in labor law. Here are the main cases that defined driving at work in 2021.

1. Mandatory vaccinations

Despite the plethora of lawsuits against employers for dismissal for cause or unpaid leave for non-vaccination, the courts have yet to rule.

But we have had several arbitration decisions, and while they are not unanimous, they have generally supported the rights of employers, as they have done throughout the pandemic whenever health and safety is concerned. stakes.

As the federal government announced earlier this month its intention to require mandatory vaccinations in all federally regulated workplaces, support from chief medical officers across the country and the legislative imperative to protect health and workplace safety, there is no doubt that the courts will support such mandatory policies. Employees suing for such a discharge should not invest in such lawsuits until the courts have rendered their decisions, possibly at the level of the Court of Appeal.

Another related issue is lawsuits against employers for negligence because employees or others contracted COVID-19 at their workplace and became ill, died and / or transmitted it to others.

Such lawsuits will be successful if the employer cannot establish that he took all reasonable precautions. Since mandatory vaccinations are the gold standard of care according to science and chief medical officers, the safest approach for employers to avoid such potential liability is a mandatory vaccination policy.

2. Rahman vs. Cannon Design Architecture, Campbell-Givons vs. Humber River Hospital and many more

There have been a series of rulings in Ontario invalidating employment contracts on the basis of an element thereof offering less protection than the equivalent provision of the Employment Standards Act.

They arose out of the Waksdale decision of the Ontario Court of Appeal of 2020, a decision which awarded no compensation in the event of a “cause” invalidated the entire termination provision.

The decision in the case of Farah Rahman, who agreed to a contract paying her $ 185,000 a year, plus benefits and bonuses, the courts ruled differently because the complainant was sophisticated and obtained legal advice, but other cases have criticized it since. The decision on Rahman is unlikely to be followed. There are few employment contracts in Ontario entered into before 2020 that are enforceable today.

3. McCallum v Rand, Manitoba Court of Appeal

There is no obligation to investigate before terminating for cause. I always recommend that companies investigate to make sure they don’t make mistakes, to uncover flaws in your system or the guilt of others, and to pin down employees to a story before they “do.” attorney “. But such investigations are almost always best conducted quickly, in a day or two, by in-house trained human resources staff. If the investigation involves someone like the CEO, then hire an outside investigator, but use a retired judge who has a lot more credibility than, say, a lawyer, and he’s unlikely to be seen as a simple “gun” providing the advice paid by the company.

4. Callow v Zollinger, Supreme Court of Canada

Even if a contract provides for an unlimited right, employers must always exercise it in good faith and cannot mislead. If you have decided to fire an employee, you cannot make her believe her job is secure, and even silence can be considered a breach. If you know that an employee has a false impression, you have a duty to correct it.

5. Wastech v Greater Vancouver Sewage and Drainage, Supreme Court of Canada

Employers must use their discretion, even if the contract provides that it is absolute, in good faith, and is used in a manner that advances the objectives of the contract. This will apply, for example, to bonuses that are “discretionary”.

6. Perretta v Rand Technology, Ontario Superior Court

If you have a termination clause in an employment contract but refuse to pay it in full unless the employee signs a waiver, you can no longer rely on that termination clause and the court will award you damages- interest for unjustified dismissal.

7. Caplan v Atlas, Ontario Superior Court

In that decision, the court created an internet harassment tort and granted an injunction against other posts and transferred ownership of the posts to the party that was harassed so that they could have the posts removed.

8. Coutinho v Ocular Health, Taylor v Hanley et al., Ontario Superior Court

That case revolved around whether a layoff is wrongful dismissal or whether emergency infectious disease leave (IDEL) legislation allows it. My best opinion is that a layoff is still constructive dismissal, but if the employee nods without protest and a few months go by, that is not the case. Otherwise, millions of Canadians would have viable lawsuits.

9. Northern Regional Health Authority v Horrocks, Supreme Court of Canada

Unionized employees cannot go to human rights courts (or any other statutory tribunal) for redress, just as they cannot sue in civil matters, since the arbitration regime provides for exclusive redress, unless the law particular human rights policy does not allow for both.

10. Hawkes v Max Aicher, Superior Court of Ontario

If the global payroll, and not just Ontario’s payroll, for a company exceeds $ 2.5 million, severance pay applies under the Employment Standards Act of the Ontario.

11. O’Reilly v ClearMRI Solutions, Court of Appeal for Ontario

Even if a second company is the parent company or related to the employer, it will not be liable as a common employer, unless the intention was for this company to create a working relationship with that employee. Such an intention is not subjective but can be verified from an employment contract or whether that company has effective control over the employee.

12. Eynon v Simplicity Air, Court of Appeal for Ontario

If a manager is given responsibility for part of the workplace, the employer will generally be liable for his conduct, even to the point of being held liable for punitive damages.

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