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Posts tagged: Nadia Halum

All We Do Is Work

By , October 31, 2017 9:23 am

This blog introduces you to all members of the firm and describes the kinds of cases we handle.

 

MacLeod Law Firm

 

OUR PEOPLE

Nicole Simes has been working with me for more than four years. She represents and advises employers and employees. She spends a lot of her time in court and at administrative tribunals: she is a real litigator! Nicole has a particularly strong background and interest in human rights issues.

Nadia Halum articled with the firm and has been working as an associate for about 1 ½ years. Nadia also represents and advises employers and employees. Nadia is an exceptional legal researcher. She also has considerable experience assisting employers with compliance issues under the Employment Standards Act, the Occupational Health and Safety Act and the Accessibility for Ontarians with Disabilities Act.

Fiona Martyn is currently articling with the firm. She supports Nicole, Nadia and me. This includes legal research, drafting pleadings & facta, and putting together court documents.

Judy Lam is our Office Manager and oversees the non-legal aspects of the firm. She is often the first point of contact with the firm.

OUR CLIENTS

Employers

We mostly advise and represent small and medium sized employers. Many of our clients are owner operators. Most of our clients employ 100 or less employees although we do advise several large employers. Many of our employers do not have a person with a formal human resources designation (i.e. CHRP, CHRL, or CHRE) and for these clients, in addition to providing legal advice we often take on the role of trusted advisor.

When we are first introduced to a new client we make sure the employer has a well drafted employment contract. Then we make sure the client has complied with its obligations under Ontario’s employment laws.  Our blog keeps our clients up to date on most employment law developments. We are a phone call away and often answer questions in real time; that is, when you call with a question we can often answer it immediately on the phone.

Employees

We advise employees in all positions and all industries.

We review 100s of severance packages each year; this usually involves a one-hour meeting where we: review the background to the termination; discuss the client’s legal rights; discuss the client’s options; and, tell the client whether we think the package is fair.

If we cannot negotiate a fair settlement for our client then we commence legal proceedings. These proceedings may be commenced in small claims court, at the Ministry of Labour, at the Ontario Human Rights Tribunal, or in the courts. It is sometimes in our client’s interest to commence two or more legal proceedings.

We also review scores of employment contracts each year. After reviewing the history of contract negotiations, we inform our clients which parts of the contract are a problem and suggest ways to change the contract so it is more employee friendly. If our client is the employer’s clear first choice then we can often help the person secure significant enhancements to the employer’s initial offer.

ALL WE DO IS WORK

The MacLeod Law Firm will continue to restrict its practice to workplace law which includes employment law, labour law (i.e. workplaces that are unionized), and human rights law.

We have three lawyers to assist you with your legal needs. We operate a collaborative law practice which means we often consult with each other to get different perspectives on a case. I also delegate work to Nicole, Nadia and Fiona as appropriate which means our client receive cost effective service.

We understand that every client has a different risk tolerance. We get to know our clients so the advice we provide is consistent with this risk tolerance and makes business sense.

For those readers who have not retained the MacLeod Law Firm in the past and want to know how we can help your organization, please call me at 416 317-9894 at your convenience.

 

Negligent misrepresentation during recruitment process costs employer $83,000

By , October 10, 2017 4:53 pm

Providing misleading information to an employee during the recruitment process about the eligibility for an employee benefits program cost an employer $83,000

Feldstein v 364 Northern Development Corporation

Mr. Feldstein applied for a software engineer position with 364 Northern Development Corporation (“the Company”). Before accepting the position, Mr. Feldstein asked the Company’s Chief Information Officer (“CIO”) about the eligibility requirements for the Company’s long-term disability (“LTD”) plan. As Mr. Feldstein suffered from cystic fibrosis, this information was very important to him, as he believed that he would require substantial LTD benefits in the future.

The CIO provided Mr. Feldstein with a brochure which summarised the Company’s LTD benefits, which contained a “proof of good health” clause. When Mr. Feldstein asked what this clause meant, the CIO explained that he would qualify for LTD benefits after working for the Company for three months. Based on this information, Mr. Feldstein accepted the position and signed an employment contract.

The employment contract in question contained the following “entire agreement” clause:

“This Agreement constitutes the entire agreement between the parties and supersedes all prior communications, representations, understandings and agreements whether verbal or written between the parties with respect to the subject-matter hereof.”

The purpose of an entire agreement clause is to prevent parties who have entered into a final contract from invoking prior discussions or understandings to give a different meaning to its provisions.

However, the contract did not contain any details of the benefits plan. Instead, the clause in the contract stated:

“The Employee shall be entitled to participate in all rights and benefits under any life insurance, disability, medical, dental, health and accident plans maintained by the company for its employees generally. In addition, the Employee shall be entitled to participate in all rights and benefits under other employee plan or plans as may be implemented by the Company during the term of this Agreement.

Shortly after accepting the position, Mr. Feldstein applied for LTD benefits as his health deteriorated significantly. He expected to receive full coverage of up to $5000 per month. Instead, Mr. Feldstein was only eligible for $1000 per month because he had not completed a medical questionnaire which was required to establish “proof of good health.” Mr. feldstein sued the Company for negligent misrepresentation.

Decision

The trial judge made the following findings:

  • the CIO’s explanation of “proof of good health” was inaccurate and misleading;
  • the Company was negligent in making this representation as the CIO had not taken any steps to verify the accuracy of the information he provided and the Company failed to provide Mr. Feldstein with the required medical questionnaire
  • it was reasonable for Mr. Feldstein to rely on the information the CIO provided; and
  • Mr. Feldstein would not have accepted an employment offer that did not provide adequate LTD coverage and acceptable eligibility requirements due to his health concerns.

The Company attempted to argue that the entire agreement clause in the employment contract meant that Mr. Feldstein could not sue for negligent misrepresentation. The court rejected this argument, as the CIO’s statement relating to the meaning of “proof of good health” was not an express term of the contract. As it was a matter outside of the contract, the clause could not exclude liability for pre-contractual misrepresentation.

Mr. Feldstein was awarded $83,336.80 as compensation for lost LTD benefits and $10,000 for aggravated damages. On appeal, the award for loss of benefits was upheld, but the aggravated damages were overturned.

Lessons to be learned

  1. Anyone interviewing a job applicant should provide accurate information concerning employee benefits; otherwise, the organisation may be required to self-insure for the value of benefits that are subsequently denied by the group insurer.
  2. Including an entire agreement clause in a contract like the one cited above does not always protect an employer from negligent misrepresentations made during the hiring process.
  3. It is important to periodically review employment contracts including entire agreement clauses and clauses dealing with group benefits to ensure they still protect employer interests in light of recent developments in the law.

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

How to Spot a Resignation

By , July 31, 2017 10:16 am

Contrary to popular belief, it is not always easy to know when someone has resigned. Even if an employee uses words such as “I quit,” a court may still find that the employee has not truly resigned. An employer in Alberta learned this lesson the hard way. 

Carroll v Purcee Industrial Controls Ltd. (“PIC”) 

Mr. Carroll worked for the defendant first in Calgary, Alberta. He then moved with his family to Madagascar, where he continued to work for PIC. In 2012, business was in decline and the relationship between Mr. Carroll began to deteriorate. In August 2012, Mr. Carroll tendered his written resignation and requested a fair severance package. PIC rejected his resignation and urged Mr. Carroll to take his planned holiday. Mr. Carroll continued to work for PIC after he returned from his holiday. 

The relationship between Mr. Carroll and PIC became increasingly strained. In May 2013, Mr. Carroll again suggested they should terminate his employment “on professional terms”, and outlined his proposed terms of severance. One of the owners told Mr. Carroll that he would be ready to discuss the matter in a few days. Mr. Carroll responded that he planned to move back to Canada with his family in July. 

Mr. Carroll’s employment ended on June 7, 2013, when PIC purported to accept his resignation. 

The Decision 

At trial, Mr. Carroll argued his employment was terminated without cause and he was entitled to pay in lieu of notice. PIC claimed Mr. Carroll voluntarily resigned from his employment, in which case he was not entitled to any damages. 

A resignation must be clear and unequivocal, which involves both a subjective and objective component. Subjectively, did the employee intend to resign? Objectively, viewing all the circumstances, would a reasonable employer have understood that the employee had resigned? The court looks at the employee’s words, acts and the surrounding circumstances. 

Despite the fact that all indications of severing the employment relationship were initiated by Mr. Carroll, the court found that he did not intend to resign from his employment. The court found that Mr. Carroll’s words, when viewed contextually, were “an emotional reaction.” Mr. Carroll’s resignations came from a place of frustration, even though they were not said in the heat of the moment. Furthermore, the fact that that the owner indicated he would be ready to discuss the matter in a few days was consistent with someone who was contemplating the proposal outlined by Mr. Carroll (i.e. he could not have considered Mr. Carroll to have resigned). 

More importantly, the court found it difficult to accept the resignation was clear and unequivocal when it was tied to a proposal for terms of severance. In the circumstances, the burden was on the employer to confirm with Mr. Carroll that he truly intended to resign. The court concluded that Mr Carroll was dismissed, and therefore entitled to seven months’ pay in lieu of notice. 

Lessons to be Learned 

The onus is on the employer to confirm an employee’s true intentions behind a purported resignation. Otherwise, the employer risks having to respond to a wrongful dismissal claim in the future. Therefore, even in situations where employees utter words typically associated with a resignation (such as “I quit”), it is important not to take such words at face value. In these circumstances, or any time an employee brings up the matter of a severance package, it is important to consult a lawyer. 

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

Can my organization implement a drug testing policy at the workplace?

By , July 24, 2017 10:24 am

If you’ve been following the news over the last few months, you know that the Ontario Superior Court of Justice refused to allow the union’s injunction against the TTC’s random drug and alcohol testing policy. More recently, the Supreme Court of Canada upheld the termination of an employee who was terminated for violating his employer’s drug testing policy. These developments have led to us answering many questions from employers (and news publications) about whether they can also test their employees for drugs and alcohol.

Despite the TTC’s success at court, employers should proceed with caution when instituting drug and alcohol testing at the workplace. Firstly, the issue before the court was not whether such a policy was discriminatory. Secondly, the court refused the union’s injunction because of both the safety-sensitive industry and the wide area in which the TTC operates. Furthermore, the caselaw preceding the TTC decision shows that there is a high evidentiary burden an employer must satisfy to justify random drug testing its employees.

Because addictions to drugs or alcohol are considered “disabilities” under the Ontario Human Rights Code, drug and alcohol testing has human rights implications for people with addictions. For example, a human rights issue may arise where a positive test leads to automatic negative consequences for a person based on an addiction.

However, courts and tribunals recognise that it is a legitimate goal for employers to have a safe workplace, particularly in safety-sensitive industries. Therefore, there is caselaw that has recognised that a drug testing policy is justifiable if an employer can show that the policy is a bona fide (i.e. legitimate) requirement of the job. However, even if the policy is a legitimate requirement, employers should strive to minimise any potential discriminatory impact, and be prepared to accommodate employees with addictions who are negatively impacted by the policy.

Another requirement for a drug and alcohol testing policy to be found justifiable is that it must measure impairment, as opposed to drug or alcohol use. For example, while alcohol testing is able to measure a person’s impairment quite accurately, because drugs can remain in a person’s system for quite some time after their use, drug testing is less accurate at measuring impairment rather than drug use. For this reason, alcohol testing tends to be more permissible than drug testing. Similarly, testing after an accident or a “near-miss” is more justifiable than random testing.

Lessons to be Learned

As we get closer to marijuana being legal in Canada, questions around workplace safety and the permissibility of drug testing are bound to increase. We will continue to publish additional information as more relevant cases are released. In the meantime, if you are considering implementing a drug and alcohol testing policy at the workplace, you should consult an employment lawyer to find out whether such a policy would survive the scrutiny of a court or tribunal.

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

Is An Employee Ever Required to Accept a Demotion?

By , May 19, 2017 11:58 am

Sometimes, as part of a restructuring, an employer will eliminate some positions and offer the displaced employees new positions. Are displaced employees required to accept a demotion or a pay cut? In a recent decision, the Ontario Court of Appeal tackled the question of whether an employee was required to mitigate his losses by accepting a new position.

In Fillmore v Hercules SLR Inc., Mr. Fillmore was 51 years old and had been employed as the company’s director of purchasing for approximately 19 years. As part of a restructuring, the company decided to terminate Mr. Fillmore, who was provided with a severance offer and a new employment offer. If he signed the severance offer, he would be provided with 8 weeks’ written notice (in accordance with the Employment Standards Act) and an additional 12 weeks’ pay. In addition, he was offered a supervisor position and a pay cut of more than 20 percent. Mr. Fillmore did not accept either offer and began a wrongful dismissal claim.

The company argued that in rejecting the new offer, Mr. Fillmore failed to mitigate his damages. Caselaw suggests that, in the absence of the employee facing a potential hostile atmosphere, embarrassment or humiliation, an employee may be required to mitigate their damages by accepting comparable employment with the employer.

The motion judge found that the new offer of employment was not an offer to work through the notice period: rather it was an offer to accept a demotion. The question the court must answer is whether a reasonable person would have accepted the new offer. The motion judge found that a reasonable person in Mr. Fillmore’s position was not obliged to accept a demotion which risked waiving a claim for wrongful dismissal. The Ontario Court of Appeal agreed.

Lessons to be Learned:

Although in some circumstances, an employee may be required to accept a comparable position with the same employer, reasonable people can disagree on whether the new position is comparable.  It is very important, particularly during a company restructuring, to consult a lawyer about your right to transfer, demote and terminate employees.

“The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

 

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