Employment, Civil Litigation & Immigration Law Articles

Solicitor-client privilege is best understood as a quasi-constitutional right to communicate in confidence with one’s lawyer. As an evidentiary concept, it applies only to confidential communication between clients and lawyers. It is sometimes confused, especially in the discovery context, with litigation privilege, which applies to...

The determination of whether an order is "final" or "interlocutory" is a legal minefield for both novice and experienced counsel. The distinction between the orders is of crucial importance, because it confers substantively different procedural rights. This article deals with the ambitious task of tackling...

Employment contracts are contracts of personal services. They cannot be transferred from one employer to another without the parties’ consent. If an employer sells its business and a purchaser hires its employees there is a risk that the employees’ periods of employment with the vendor...

The issue of enforceability of a termination provision is one of the most frequently litigated areas of employment law. The enforceability of such provisions turns on their wording, the purpose and language of the Employment Standards Act, 2000 (ESA), and jurisprudence on interpreting employment agreements,...

The fundamental principle applicable to quantifying damages in wrongful dismissal cases is that the damages award should place an employee in the same economic position that they would have been in, had they not been wrongfully dismissed. In determining damages, the court will typically include...

Immigration detentions of non-citizens must only be for an immigration-related purpose. Undoubtedly, a detention is never pleasant. However, it is not the detention itself, or even its length, that is objectionable, but its unlawfulness. Often non-citizens are being detained on a faulty factual premise, inadvertent...

There is a remarkable range of differences in employers’ conduct that has been found to amount to constructive dismissal. In most constructive dismissals, the operative question is whether the unilateral change introduced by the employer to a significant term of the employment contract amounted to...

Employees’ right to choose their employer is a main difference between a servant and a serf. Because employment contracts are contracts of personal services, they cannot be transferred from one employer to another without the parties’ consent. In Krishnamoorthy v. Olympus Canada Inc., 2017 ONCA...

Conditional sentences are sentences of imprisonment that are served in the community. They are meant as an alternative to incarceration for less serious offences and non-dangerous offenders. In Tran v. Canada (Minister of Public Safety and Emergency Preparedness) 2017 SCC 50, the Supreme Court of...

In general, courts interpret employment contracts differently from commercial contracts, mainly because of unequal bargaining power between employers and employees and the importance of employment in a person’s life. Some employment contracts include severability clauses, which are designed to reform an illegal...

Twitter is a public social media platform that allows people to create content and share it at a prodigious rate. Its users’ comments, known as tweets, are particularly effective in spreading their sentiments. Increasingly, companies mine Twitter for information about their services and products. Employers...

The law of evidence controls the presentation of facts before courts and tribunals. It is made up of common law concepts, statutory provisions and constitutional principles. Admissibility of “fresh” documentary evidence on appeal before the Refugee Appeal Division of the Immigration and Refugee Board (RAD)...

Modifications to contracts have traditionally encountered problems of enforceability, because of the requirement that enforceable promises must be given for consideration. Consequently, dismissed employees often challenge the enforceability of their employment contracts, a trend that shows no signs of abating. A case in point is...

While we often see employment contracts that contain termination provisions that purport to limit employees’ entitlements upon dismissal to the statutory minimums mandated by the Employment Standards Act, the language used to achieve that objective is often susceptible to legal interpretation. A case in point is...

One vexing question that has been the subject of further judicial scrutiny is whether to allow the payment of disability income to wrongfully dismissed employees at the same time that they’re receiving their full salary for the reasonable notice period. In a recent decision, Fernandes v....

National security is one of the key objectives of the Canadian immigration legislation. This objective is given effect by preventing the entry of applicants with criminal records, as well removing individuals from Canada for deportable offences. Immigration law has become adjunct to criminal law and...

In the context of employment, inducement occurs whenever a rival or its agent embarks on a campaign of luring the targeted employee away from his secure employment to join the competitor’s firm. A promise of long-term security, greater remuneration, more valued responsibilities, and career advancement...

Employment disputes are frequently resolved through litigation, where litigants seek a slew of damages ranging from statutory to common law to human rights. Until recently, an award of human rights damages in the context of a wrongful dismissal action has been perceived to be a...

Labour and employment cases are a regular testing ground for confidentiality provisions in binding settlement agreements, with the goal typically to foster an environment for negotiation conducive to reaching a settlement or to create a broader protection against disclosure. The Divisional Court’s judgment in Wong...

Among the factors for assessing the quantum of damages in wrongful dismissals is the impact of non-competition clauses in employment contracts on the employee’s ability to find comparable employment. In Ostrow v. Abacus Management Corp. Mergers and Acquisitions, the Supreme Court of British Columbia had...

An anticipatory breach occurs when a party declares an intention to repudiate their contractual obligations before they fall due. Such declaration only becomes a wrongful act if the innocent party elects to treat it as such. Until that party accepts the repudiation, the contract continues...

A constructive dismissal occurs when an employer unilaterally makes a substantial change to the essential term of an employment contract, thereby giving an employee a right to treat the contract as being at an end and resign. In constructive dismissal actions, employees may not be...

Pension is a negotiated benefit that forms an integral part of an employee’s total compensation package and in this regard there’s a close relationship and dialectical tension between salaries, pensions, and damages. The recent case of IBM Canada Ltd v. Waterman starkly exemplifies this tension. In...

Unlike other torts, economic torts have as their primary function the protection of a plaintiff ’s economic interests. They include, among others, the torts of inducing breach of contract and intentional interference with economic relations. In Heydary Hamilton PC v. Muhammad [2013] O.J. No. 3601,...

Restrictive covenants relating to employment and competition have been an integral part of our law for many years, typically taking the form of non-competition and non-solicitation clauses. While restrictive covenants can be found in commercial and employment contracts, their interpretation requires the application of different...

Lawyers representing dismissed employees typically include a claim for prejudgment interest in a wrongful dismissal lawsuit. However, there appears to be no controlling authority governing a method for calculating prejudgment interest and circumstances when the court should deny it. This void renders the rules regarding...

In Aristotle’s view, “we are what we repeatedly do.” The validity of this proposition cannot be taken for granted in the context of employment relations. If a manager repeatedly performs non-managerial tasks, does it destroy the essential character of his managerial position so as to...

The issue of whether compensation for lost vacation pay accruing after dismissal and during the period of reasonable notice should be a component of damages for wrongful dismissal continues to vex employers, judges, and the bar. There are conflicting authorities in Ontario concerning the recovery...

Words are the voice of contracts. That voice guides a court during interpretation of a termination provision in an employment contract. A lesson from a recent case, Stevens v. Sifton Properties Ltd., suggests if the termination clause contains no explicit reference to continuation of benefits...

The concept of reasonable notice is like a living tree capable of growth and expansion within its natural limits. The expansion begins with necessity and is customarily informed by a series of prudential and pragmatic considerations designed to test those natural limits. It’s common knowledge...

Many experienced employment lawyers and HR professionals recognize the importance of written employment contracts. Their purpose is to clearly define the terms and conditions that represent the actual intentions of the contracting parties at the time of its execution. However, written words, taken in isolation, have...

In Titus Andronicus, Shakespeare offered an apt recommendation for the social media age: “I tell my sorrows to the stones.” Modern society turns to social networking sites to tell people’s sorrows. As a result, misguided use of social media increasingly clogs the courts’ dockets. Employees’...

Generally speaking, there are two types of injunctions: mandatory and prohibitory. Like the two-headed god Janus, these injunctions are looking in different directions. The former is looking to the past for a remedy in the sense that it requires a defendant to undo some wrong...

When an employer operates in multiple provinces or countries, it can be subject to varying laws of different jurisdictions. Things can also get tricky if its operations in different locations overlap and employees in one jurisdiction are overseen by an office in another jurisdiction. If...

Frustration of an employment contract occurs whenever the law recognizes that, without the fault of either party, a contractual obligation cannot be fulfilled. Physical disability, commercial impossibility, or changes in legislation are frustrating events, which may excuse a non-performance of contractual duties without liability. In...

Wrongful dismissals come in many forms, including temporary layoffs. In Elsegood v. Cambridge Spring Service (2001) Ltd., the Ontario Court of Appeal examined a novel legal issue of whether common law wrongful dismissal damages are available to employees whose dismissal was triggered by the operation...

As with their secular counterparts, disputes aren’t uncommon in religious organizations and may take different forms. There may be factional disagreements between members or even wrongful dismissal claims, as exemplified by the Ontario Court of Appeal decision in Hart v. Roman Catholic Episcopal Corp. of...

Determination of an appropriate notice period is a crux of virtually every wrongful dismissal lawsuit. However, there is no formula for what will constitute proper notice in circumstances surrounding termination. In the pursuit of determining a proper notice period, judges are guided by the so-called...

The majority of the Alberta Court of Appeal scrutinized the non-solicitation clause’s language, which prohibited the employees from “solicit(ing) customers in any manner whatsoever, in any business or activity for any client of Globex with which he/she had dealings.” Relying on the Ontario Court of Appeal...

There are important peripheral issues to business immigration, quite separate from those pertaining to gaining admission to Canada. Employment law implications for corporate employers seeking to hire from abroad can be significant and are often overlooked. In Canada, the Immigration and Refugee Protection Act requires, in...

In today’s competitive marketplace, it’s not uncommon for organizations to induce skilled professionals to defect from corporate rivals. Obviously, it is not automatically improper to poach employees from rivals, but defections can cause organizations to suffer economic loss or other harm; for example, when the...

The area of economic torts is not comprehensible without a great deal of time and effort. The judiciary and practitioners across Canada consistently find themselves wading through elements and rationales of the two seemingly similar, yet fundamentally distinct, torts of inducing breach of contract and...

A resignation is matter of substance, not form. To constitute a valid resignation, there must be unequivocal evidence supported by conduct consistent with an employee’s intention to voluntary resign her employment. The employee’s conduct before and after the supposed resignation is relevant in making the...

The tort of inducing breach of contract is a perplexing yet fascinating legal phenomenon. It arose from the action for enticement of a servant contained in the Statute of Labourers of 1349. Fundamentally, the inducement tort is about persuading a contractor to defect. Perhaps, the...

Employees are expected to perform work in exchange for pay. When an employee fails to attend work due to a permanent illness or disability, an employer may be justified in terminating the employment without liability. Termination of employment in such a case is not based...

The Ontario Occupational Health and Safety Act (“OHSA”) was recently amended by the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace) (“Bill 168”), a law which expands and creates new obligations for Ontario employers to take specific steps to proactively prevent...

Aside from base salary, employment contracts frequently offer additional economic incentives. Typically, these include deferred profit-sharing plans, short- and long-term incentive plans, stock options, pension benefits, corporate discounts, discretionary bonuses, and merit compensation. Discretionary bonuses are particularly apt to be confused with merit compensation plans. Though...

Dismissed employees frequently attempt to bolster their wrongful dismissal claims by pleading economic torts. One of these increasingly pleaded economic torts is the tort of inducing breach of contract (the “inducement tort”), which imposes liability on an employer who intentionally procures a breach of its...

The bar for accommodation for Ontario employers is about to be set a little higher. The final version of the Employment Accessibility Standard developed under the Accessibility for Ontarians with Disabilities Act, 2005, has been released and is expected to become law early in 2010....

In Ontario, employers are responsible for the health and safety of employees in the workplace. Increasingly, employers are charged with a breach of the Occupational Health and Safety Act (“OHSA”), which is designed to protect employees against health and safety hazards at work. The OHSA...

With thousands of job casualties being claimed each week by the wounded economy, buzzwords like downsizing, corporate reorganizations, economic restructuring and layoffs are becoming increasingly ingrained in employers’ minds. By contrast, ambushed by employers’ unpreparedness to survive another recession, employees frantically search the Internet in...