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Zeilikman Law’s New Year Employment Law Newsmakers of 2014 

06 Jan 2015

Happy New Year from Zeilikman Law! Employment law is never stagnant – each year brings new changes and challenges to our door. So in celebration of the New Year and because we were in a reflective spirit we decided to set down the top 5 employment law news events that took place over the course of 2014.

1. Jian Ghomeshi

When the CBC fired Jian Ghomeshi in October, it set forth a firestorm of controversy and media frenzy. However, it also raised important issues about whether or not an employer can fire an employee based on what they do while not at work. We talked about it in our blog here.

2. Summary Judgement

In January our top court eased restrictions on the use of a summary judgement motion in the landmark decision of Hryniak v. Mauldin.

A summary judgment motion allows a plaintiff to bring the matter before a judge early in the proceeding in the hopes of the judge disposing of the matter quickly and in the favour of the plaintiff. The test is now whether or not the court can view the case such that a judge can decide on its merits and rule fairly without a trial. This change may result in an increase of employment law cases being brought before a judge in the hopes of disposing of the case early and reaching a conclusion in a more cost effective way. However, despite the above, lawyers may still have to proceed with using this very powerful tool with caution as there are multiple competing factors that may offset its use. We talked about it in our blog. Also see decision here.

3. Boucher v. Wal-Mart Canada

In May the Ontario Court of Appeal released a decision that generated a lot of buzz in the employment law community. This case was called a “landmark” decision by the Court of Appeal and involved allegations of harassment in the workplace. The facts involved an employee who was being bullied and belittled (often in front of co-workers) by her boss. Her boss’ behaviour did not change despite the employee bringing a complaint to the attention of management. Eventually, it became utterly intolerable for the employee and she quit. The employee then took Wal-Mart to court alleging that she was constructively dismissed and was owed notice and aggravated and punitive damages because of the reprehensible behaviour of her boss (to which Wal-Mart was vicariously liable for). She won at trial and was awarded an amount equivalent to 20 weeks’ notice and $1.45 million in aggravated and punitive damages. The decision was appealed to the Ontario Court of Appeal. The appeal court drastically reduced the aggravated and punitive damages awards given by the trial level court because it went beyond what was “rationally required” for punishment and deterrence. However, the amounts still remained very substantial. See decision here.

The take away? Employers better conduct workplace investigations into possible harassment or bullying cases fairly and impartially. If the employer either ignores an employee’s complaint or does not act quickly and in a reasonable manner to address the employee’s concerns, then they run the risk of the court finding that their failure to do so justifies a substantial award against them for aggravated and punitive damages.

4. Vulnerable Workers

This year has seen an increased focus in the media on the protection of vulnerable workers from abuses by employers. In addition to issues of harassment, discussion surrounded the issue of minimum wage and temporary or foreign workers. Legislative highlights included removing the $10,000 cap under the Employment Standards Act on the recovery of wages through the Ministry of Labour and increasing the time limit for recovery from 6 to 12 months.

We also talked about educating foreign workers on their rights here.

5. Farwell v. Citair

In February 2014, the Ontario Court of Appeal released another noteworthy case. This time the case involved the demotion of a longstanding employee who then sued his employer for constructive dismissal. The question arose as to whether the employee had been obligated to return to work for the employer regardless of his demotion as part of his duty to mitigate. The answer was “no,” because after the employee had been constructively dismissed the employer had failed to offer the position on new terms. See decision here.

The above article is for general information purposes only and does not constitute legal advice. If you have concerns with regard to the foregoing issues, please make an appointment with one of our lawyers or a qualified legal practitioner elsewhere.