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Posts tagged: employment law barrie

Valuing Employee Pensions in Wrongful Dismissal Cases: A Boring but Important Issue

By , November 6, 2018 10:18 am

A long service, older worker is terminated. Under the terms of the individual’s pension plan, the employer is not permitted to continue his participation in the pension plan. So the question arises: when calculating wrongful dismissal damages, how do you calculate damages for pension benefits?

A recent case considered this question.

The Facts

Imperial Oil Ltd. terminated Donald Dussault’s employment after 39 years of service when he was 63 years old. Imperial Oil immediately discontinued Mr. Dussault’s participation in its pension plan and Mr. Dussault decided to start collecting his pension benefits.

A judge concluded that Mr. Dussault was entitled to compensation in lieu of 26 months’ notice of termination. One component of his compensation was his pension.

Commuted Value of Pension

Imperial Oil called an expert witness who concluded that Mr. Dussault’s pension was worth $189,117 more than if Imperial Oil had kept him in its pension plan for the 26-month period after his termination. Mr. Dussault did not call an expert witness of his own on this issue.

Employee Claim for Damages for the Employer’s Contributions to his Pension During Notice Period is Denied

Since Mr. Dussault would have been enrolled in the pension plan if Imperial Oil had provided him with 26 months’ notice of termination, and since Imperial Oil would have made contributions to his pension during this notice period, Mr. Dussault sought damages equal to these contributions. The court concluded that the value of his pension was higher than if Imperial Oil had continued paying into his pension plan until the end of the 26-month notice period. However, the court refused to order the requested damages because Mr. Dussault could not prove any damages.

Employer Claim to Reduce Employee Damage Award by the Value of the Pension Benefits he Received During the Notice Period is Denied

Mr. Dussault collected pension benefits during the 26-month notice period. Imperial Oil asked the judge to deduct this amount from Mr. Dussault’s wrongful dismissal damages. However, the judge refused to do, concluding that pension benefits are a benefit employees have earned for their years of service and are not meant to be an indemnity for the loss of employment.

Lessons to Be Learned

  1. Every employer should require all employees to sign an employment contract with a legally enforceable termination clause. In this case, Imperial Oil could have reduced a 26-month common law reasonable notice period to as little as 8 weeks’  termination pay and 26 weeks’ severance pay. This is another case where a judge concluded that the common law notice period was more than 24 months.
  2. For long-service employees who are entitled to a lengthy common law reasonable notice period, damages for a reduced or an enhanced pension can be significant. I have represented clients who have not taken pension benefits during the notice period and the value of lost pension value (as opposed to an enhanced pension value in this case) has been significant.
  3. When valuating pension benefits, it is important to retain an expert. A slight change in actuarial assumptions can result in significant differences in a pension’s valuation.

For almost 30 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416-317-9894 or at [email protected]

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.

Bill 148 (aka Wynne government changes to the Employment Standards Act) Bites the Dust

By , October 25, 2018 9:31 am

On Tuesday afternoon, the Ford government tabled legislation Bill 47 – Making Ontario Open for Business Act, 2018 which will repeal some of the recent changes to Ontario’s Employment Standards Act, 2000 and eliminate new statutory obligations that are scheduled to be imposed on employers on January 1, 2019.

Although Bill 47 must go through the legislative process, the Ford government has a majority of seats in the Ontario legislature so I expect the changes will take effect on January 1, 2019 when many of the Bill 148 changes are scheduled to become law.

Roll backs

The two paid personal emergency leave days that were introduced by the Wynne government in the past year will be eliminated.

The public holiday pay calculation for part-time employees that was in effect before Bill 148 will become law again.

Equal pay for equal work for substantially the same work regardless of employment status will be repealed. So there will generally be no obligation to pay part-time employees the same rate as full-time employees for performing substantially the same work.

The prohibition for asking an employee for a doctor’s note to prove sickness will be repealed.

The presumption that a person is an employee as opposed to an independent contractor if an individual claims he or she is an employee will be eliminated.

Pending laws that will not take effect

The minimum wage will not increase to $ 15 per hour on January 1, 2019, as scheduled, and there will be no cost of living increase in the minimum wage until October 2020.

The new scheduling rules will not take effect.

The new on call pay rules will not take effect.

An employee’s right to request changes in work hours or work location will not take effect.

An employee’s right to refuse scheduling changes with less than 4 days notice will not take effect.

The requirement to provide an employee with 3 hours pay if a shift is cancelled with less than 48 hours will not take effect.

Changes to the Employment Standards Act

The ten days personal emergency leave will be eliminated under Bill 47 and replaced with three days Sick Leave, three days Family Responsibility Leave, and two days Bereavement Leave for a total of eight days. These eight days are unpaid.

Bill 47 also includes changes to the Labour Relations Act, and the Ontario College of Trades and Apprenticeship Act.

A bill is often sent to a committee after Second Reading and Bill 47 could change after that process, but I doubt there will be any changes to this bill. But stay tuned; I will provide updates on this proposed employment law as we get closer to January 1, 2019.

For almost 30 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416-317-9894 or at [email protected]

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.

Investigating Workplace Harassment Complaints: Get Ready for Changes to the OHSA

By , July 26, 2016 7:20 am

“Bob is harassing me.”

Your spidey senses should be tingling. Because some kind of investigation should be taking place soon. If not, consider what happened when an employee at CBC complained about Jian Ghomeshi and was ignored or when an employee at the TO2015 Pan American games complained about David Peterson and her complaint was allegedly not taken seriously.

Immediately after you are told about Bob the alleged harasser you should determine whether the person is alleging workplace harassment.

Under the Ontario Human Rights Code (the “Code”) harassment on any of the 16 prohibited grounds (like sex and race) is defined as engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.

Effective September 8, 2016, workplace harassment under the Occupational Health and Safety Act (the “OHSA”) will be defined as (a) engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or (b) workplace sexual harassment.

An employee who has been harassed within the meaning of the Code can obtain damages from her employer from the Ontario Human Rights Tribunal or from the Ontario Courts. An employee who complains he has been harassed under the OHSA cannot claim damages.

Sexual Harassment: A Special Kind of Harassment

For reasons that I do not understand, the Ontario government has decreed that effective September 8, 2016 an employee who has been sexually harassed at work can file a complaint under the Code or under OHSA. Accordingly, an employee who has been sexually harassed will thereafter be able to commence legal proceedings in at least 3 legal fora; namely;

1. An application under the Code

The Code prohibits sexual harassment in employment and a person can file an application under the Code seeking damages. In a 2015 decision an adjudicator under the Code awarded a former employee who had been sexually harassed $ 150 000 in general damages.

2. A complaint under the OHSA

An employee can file a complaint and the employer must investigate the complaint and inform the person of the results of the investigation. The only obligation is to investigate and report back to the person.

3. An action in Ontario’s Superior Court

An employee can sue for damages for a breach of the Code and/or for damages for the tort of sexual assault. In a 2015 decision a judge awarded a former employee over $ 300 000 damages in connection with sexual harassment/assault in the workplace.

Lessons to Be learned

1. Make sure you have a written policy to investigate workplace harassment complaints in place by September 8, 2016. For information about our fixed fee service, click here.

2. Sexual harassment complaints can be more legally complicated than other kinds of harassment complaints.

3. Investigate all workplace harassment complaints quickly and tailor the investigation to the circumstances of the case. This includes: deciding whether to use an internal or external investigator; whether to permit employees to bring legal representation to meetings; whether the investigator can make recommendations; whether to write a report; whether to release a formal report (if one is prepared) to the parties, etc. Not all investigations need to be treated the same.

For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

“The material and information provided on this blog and this website are for general information only and should not, in any respect, 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 linked or referred to or contained herein. No person should act or refrain from acting in reliance on any information found on this website or blog, without first retaining counsel and obtaining appropriate professional advice from a lawyer duly licensed to practice law in the relevant jurisdiction. These materials do not constitute legal advice and do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

AODA Update: New Regulation Taking Effect July 1, 2016

By , June 27, 2016 11:56 pm

The Accessibility for Ontarians with Disabilities Act (“AODA”) is constantly changing. So when there has been yet another change to AODA it takes all of my energy not to cover my ears and yell “LAH, LAH, LAH” at the top of my lungs.

Employment Standards Regulation: January 1, 2017

The most important amendment to AODA that applies to employers with 1 to 49 employees takes effect on January 1, 2017. For a description of our compliance service in connection with the Employment Standards Regulation, click here.

Ontario Regulation 165/16: July 1, 2016

Before the Employment Standards takes effect, however, another regulation – O. Reg. 165/16 – will take effect on or about July 1, 2016. It will consolidate all of the accessibility standards in the Integrated Accessibility Standards Regulation. Thereafter both small (1 to 49 employees) and large (Over 50 employees) organizations will be required to do the following:

Changes to AODA Requirements

  1. Training– currently, organizations are only required to provide customer service training to employees and volunteers who deal with third parties, and those who participate in developing the organization’s policies. However, the new regulation will require organizations to, as soon as practicable, train: (a) all employees and volunteers; (b) every person who participates in developing the organization’s policies; and (c) every other person who provides goods, services or facilities on behalf of the organization.
  2. Documenting policies, practices and procedures – currently, organizations with 20 or more employees must “document” their customer service policies, practices and procedures, and make a copy of that document available on request. However, when this regulation takes effect, this requirement will only apply to organizations with 50 or more employees. In other words, organizations with 20 to 49 employees are no longer required to document their customer service policies, practices and procedures.

Besides documenting their customer service policies, practices and procedures, large organizations must also (a) notify persons to whom it provides goods, services or facilities that the document which describes the organization’s policies, practices and procedures is available upon request; and (b) prepare a document that describes the organization’s training policy, summarizes the content of the training and specifies when the training is to be provided. Both documents must be provided to any person upon request.

All organizations with 20 or more employees must confirm their compliance with the above requirements by submitting an accessibility compliance report by no later than December 31, 2017.

Lesson to Be Learned

We recommend that you review and update all of your organization’s AODA policies, practices and procedures to ensure you are in compliance with the upcoming changes.

MacLeod Law Firm Update

I am very pleased to announce that I have hired Nadia Halum as our newest associate lawyer. She articled for us this past year. Please join me in welcoming Nadia to our firm. She can be reached at (647) 985-9894 or [email protected]

 

For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

“The material and information provided on this blog and this website are for general information only and should not, in any respect, 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 linked or referred to or contained herein. No person should act or refrain from acting in reliance on any information found on this website or blog, without first retaining counsel and obtaining appropriate professional advice from a lawyer duly licensed to practice law in the relevant jurisdiction. These materials do not constitute legal advice and do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

 

 

 

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