Employment & Immigration Law Publications

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...

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...

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....

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...

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...

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...

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’...

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...

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...

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 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...

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...