An employment law primer for paralegals and lawyers, including: Jurisdiction, Possible Claims, Human Rights, Employment Contracts, Wrongful Dismissal, including how to calculate reasonable notice

1. Essential Background to
Wrongful Dismissal Actions
Amer Mushtaq
Formative LLP
D: 416-542-1616
amer@formativelaw.ca
Evelyn Perez Youssoufian
Employment Lawyer
D: 416-500-7585
evelynperez@yahoo.com
© 2016 Amer Mushtaq and Evelyn Perez Youssoufian
May not be reproduced without written permission.
Small Claims 2017
Essential Law, Winning Strategies for
Lawyers & Paralegals

2. • Overview
• Jurisdiction
• Possible Claims
• Human Rights
• Employment Contracts
• Wrongful Dismissal
• Notice
Introduction
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3. • Two primary sources of employment law
1. Statute, e.g. Employment Standards Act,
2000 (“ESA”) or Canada Labour Code
(“CLC”) – minimum rights
2. Common law, i.e. court case decisions –
greater rights and benefits to employees
Overview of Canada’s legal framework
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4. • Union v. Non-Union
• Court v. Ministry of Labour (“MOL”)
• Court v. Human Rights Tribunal
• CLC v. Court/Tribunal/MOL
• Ontario Human Rights Tribunal v. Canadian Human Rights
Tribunal
• Small Claims Court v. Superior Court of Justice
Jurisdiction
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5. • Unionized employee
− Arbitral process – through the union
• DFR applications
• Exception
− Human rights matters
• No duplicitous proceeding
Jurisdiction: Union v. Non Union
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6. • MOL has limited jurisdiction
− Based only on the ESA
• Limited recovery in MOL
• No cost award at MOL
Jurisdiction: Court v. MOL
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7. • Canada Labour Code
−Federally-regulated employers
Unjust dismissal v. wrongful dismissal
oNon managerial employee
oReinstatement
oLoss of income awards
Jurisdiction: CLC v. Court/Tribunal/MOL
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8. • Federal v. Provincial employer
• Different legislation
• Different process
• Different remedies
Jurisdiction: HRTO v. CHRC
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9. • Assessment of Claim(s)
• Assessment of damages
Jurisdiction: SCC v. SCJ
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10. • Federal v. Provincial employer
• Different legislation
• Different process
• Different remedies
Jurisdiction: HRTO v. CHRC
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11. • Without Cause
• Just Cause
• Human Rights
• Bad Faith manner of dismissal
• Tort
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Possible Claims

12. • Assess human rights claim
• Assess human rights remedies
−Reinstatement
−Lost wages
−Injury to the dignity, feelings and self-
worth
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Human Rights

13. • Employment agreements set out the parameters of the employment
relationship
• Cannot contract out of the minimum requires as set out in the ESA
• If no employment agreement, common law will govern employment
relationship
• Is there a termination clause in the Agreement? A well drafted
termination clause can limit an employee’s right to common law
notice
• Is there expanded employee obligations to the employer, e.g. non-
competition, non-solicitation
Employment Agreement
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14. • Must comply with the applicable employment standards legislation
• Must name proper employment standards legislation I.e. “Employment
Standards Act, 2000” not “Employment Standards Act”
• A term which contravenes the minimum ESA standards is void, for example
notice on “base salary” only, or where benefits are not included
• Common law will apply in absence of enforceable written term
• Was there consideration? Must have been provided to employee before
commencing employment, and before verbally hiring employee
• Was employee provided with sufficient time to review contract or have it
reviewed by a lawyer – no pressure/duress
Employment Agreement: Enforceability
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15. • Termination without Cause
• Termination for Cause – cause defined
• Resignation
• Bonus
• Employer’s Policies and Procedures/Policy Manuals
• Confidentiality
• Non-Competition
• Non-Solicitation
• Vacation time
Employment Agreement: Elements to Review
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16. • Reasons for which a court may not uphold a termination clause:
− In breach of the ESA, s. 1(1), 57, 59, 60, 61, 65 – Wright v The Young
and Rubicam Group of Companies, 2011 ONSC 4720, Carpenter v
Brains II, Canada Inc., 2015 ONSC 6224
− May breach the ESA in the future - Garreton v Complete Innovations
Inc., 2016 ONSC 1178
− The clause is ambiguous – Howard v Benson Group, 15 ONSC 2638
− Failure to require payments of all benefits an employee is entitled to
pursuant to their employment agreement – Miller v A.B.M. Canada Inc.,
2015 ONSC 1566, Stevens v. Sifton Properties Ltd., 2012 ONSC 5508
− Wrong statute cited – Shafron v KRG Insurance Brokers (Western) Inc.,
2009 SCC 6
− Employment Agreement does not contract out of common law notice –
Kosowan v Concept Electric Ltd., 2007 ABCA 85
Employment Agreement: Termination Clause
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17. • Wrongful dismissal is any time an employee is not
provided with reasonable notice pursuant to the
appropriate legislation and the employment agreement
• Does not mean an employee was terminated for just
cause
• To calculate reasonable notice, an understanding of the
various types of notice is required
Wrongful Dismissal
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18. • Statutory Notice – ESA
− Notice – ss. 55 – 62
− Severance – ss. 63 – 66
• Common law Notice
Notice
Common
Law
Notice
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19. • Must be provided in reasonable advance of the actual
termination
• Statutory minimum period must be given:
− Notice;
− Pay in Lieu of Notice;
− Severance (where employer has over $2.5 million in
salaries)
Statutory Notice
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20. 1) Notice, being working Notice
2) Pay in lieu of notice
− Employer to pay “wages”: to which employee would
be entitled as though employee had worked through
the notice period
− Required to continue benefits, medical, dental, STD,
LTD for duration
− Pay for unused vacation time
− Lump sum or salary continuance
Types of Notice
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21. • Traditionally much longer than statutory minimum
• Unless there is a proper termination clause in an employment
agreement employer must provide compensation for the common
law notice period
• Relevant factors in determining length of common law notice: length
of service, age, character of the position, including degree of
responsibility, and employee’s level of training and education
• Length of notice considered reasonable may depend on availability
of similar employment, having regard to the experience, training and
qualifications of the employee
• To assess a Client’s reasonable notice period a Wrongful Dismissal
Database search should be conducted
Common Law Notice
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22. • http://www.wrongfuldismissaldatabase.com/
• Provides a summary of all Canadian cases re: wrongful
termination
• Can choose the jurisdiction; Occupation categories; age;
and years of service
• Must fit the occupation of the Client to the named
occupations in the database
• Will search a range of age and years of service
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Reasonable Notice: WDD

23. • Search the printout for:
− Most Common amount of notice
− Average notice
− Most recent Ontario case
• Compare range of reasonable notice to amount provided
in the Termination Letter
• Is the range of notice within or outside of SCC
jurisdiction?
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Reasonable Notice: WDD

24. WDD Case Study
• 35 year old Client
• Cashier at XYZ Inc.
• 2 years and 5 months of service
• Client was earning $35,000/year

27. • Is Notice provided reasonable pursuant to the
Employment Contract and the Common Law?
− Notice provided
− Bonus
− Commissions
− Health care
− Stock options
− Pension, etc.
Is the Notice Reasonable?
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28. • Employer not required to give notice of termination if
there is just cause
• Just Cause is a situation in which the employee acts in a
manner that is effectively a repudiation of the
employment contract
• Context of situation will determine whether just cause,
e.g. insubordination, insolence, culpable absenteeism,
sexual harassment
• Employers will sometimes still settle cases where they
are alleging Just Cause
Just Cause
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29. • Advise Client she or he has a duty to mitigate by
securing, or making reasonable efforts to secure,
alternative employment
• Has same employer provided them with a lesser
position? Might need to accept, depending on position
• Duty is held to standard of reasonable
• No obligation to take a non-comparable position
Mitigation of Damages
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30. • Employment law can be complicated
• A thorough analysis of all possible claims, and likelihood of
settlement on the claims is necessary to properly advise your
Client of his or her options
• The Wrongful Dismissal Database is a great tool to use to
analyse the reasonable notice period owed to your Client
• Thank you for listening to us.
Amer Mushtaq and Evelyn Perez Youssoufian
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Conclusion