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Offer and Acceptance – Commencement of Employment
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Employment contract is formed at the moment of acceptance, meaning that employee can be
terminated before the start of work or that if the employer pulls the job before employee starts
working, can still file a wrongful dismissal claim.
Can be informal/verbal with no mention of specific terms like dates and vacation time.
Conditions precedent: parties may establish a contract subject to something happening, like
employer getting funding; if these conditions aren’t fulfilled, job can be pulled without employer
being subject to damages for wrongful dismissal.
Employers will want employees bound by policies and handbooks, but this won’t have been
seen by employee at time of acceptance. Way around this is to put in a term in the offer that
employee is bound by the handbook/policies. If it’s a sensible, reasonable policy that employee
should’ve known to be likely, that’s enough. If it’s a more restrictive or surprising policy that
couldn’t have been reasonably predicted, a general reference is enough – probably h ave to
have been able to see the handbook before accepting.
Gaps will be filled by the court as a reflection or parties’ intention had they turned their minds
to it. Example: without express term giving a notice period, there’s an implied term that
employee is entitled to reasonable notice of termination.
While freedom of contract allows employer/employee to agree to anything, you can’t contract
out of the HRC or the ESA minimums. (s.4)
Can’t Contract out of the ESA
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Machtinger: implied term that employee is owed reasonable notice of termination which can be
rebutted by an express term stipulating a notice period.
If the term falls below the ESA minimum, it’s a nullity, and employee is back to CL reasonable
notice. Also, as per Ladner Downs, it’s whether the provision would ever, at any point even in
the future, fall below the ESA minimum, not just at time of actual termination.
ESA will always be interpreted in an employee-friendly way (Machtinger)
Making Changes to the Employment Contract
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Singh: there must be additional consideration flowing to the employee if changes are made to
the employee’s detriment.
Singh: continued employment, without more, does not constitute good consideration for
changes. If there is no consideration given for a new contract, it’s unenforceable. Still under the
old contract and old provision.
Watson: continued employment isn’t good enough. This may also mean that a new contract
with a notice provision is unenforceable, left with the old contract with unenforceable notice
provision, leading to reasonable notice entitlement.
Watson: forebearance can be good consideration, but this can’t be in hindsight: employer must
show it intended to dismiss the employee if it refused to sign off on the change and it must be
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present at that time (Singh, it wasn’t expressed until litigation). This can be hard to show where
there are multiple employees subject to the change (intention to fire everyone?)
Kussman: a change to a contract is enforceable if employer gives the employee notice of the
change equivalent to common law notice of termination. If he doesn’t leave, at the end of that
notice period, the change is binding.
Wronko: Ontario decision where Kussman isn’t enough: employer actuall needs to terminate
the employee at the end of that notice and then offer re-employment under the new terms.
Employee Obligations – Possible Ways to find Just Cause for Dismissal for Breach
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Implied by common law, a violation of one of these duties in fundamental way may be cause.
Overarching principle: employee is obligated not to do anything that harms employer’s interests
Simpson: this obligation can extend outside the workplace. If the misconduct is bad enough,
even if it’s outside the workplace, it can harm the employer’s reputation enough to justify
dismissal with cause. This may also be assessed by looking at the perception of the other staff
and whether they saw the misconduct as work-related.
SS: flip-side of Simpson – if it’s off-duty conduct, it’s not part of her work and so not a breach of
her obligations to the employer justifying termination. Employee-friendly judge.
Duty to follow directions as long as they are reasonable and lawful.
Duty to report to work and be reasonably punctual. Can be cause for dismissal if there is a
pattern of absenteeism not for HRC reasons like illness or disability.
Duty of Honesty: McKinley – was the employee dishonest and was the dishonesty enough to
constitute cause?
Performance issues: hard to find cause or a breach of duty for bad performance. Possible where
employer can show clear, objective standards in place (sales targets) and then through concrete,
objective analysis, show that person didn’t meet these standards. Employer must show that
they gave the employee notice of this failure and enough time to correct. Often, will also have
to provide opportunities and aid to improve their performance, like training. If the poor
performance was due to a disability, won’t work (HRC).
Duty Not to Exploit Employer’s Interests: can’t make secret profits as an employee or get
customers better deals for secret profits. Also can’t compete against your employer, though
you can plan and prepare the way for it.
Duty of Confidentiality: can’t use anything about the employer not in the public domain, or take
it, disclose it, or bring it to a new employer. Anything that is in the employee’s memory is not
confidential and can be taken to a new employer (RBC Dominion Securities).
Who is a Fiduciary Employee?
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Two-part test for finding one: employee has relatively broad and independent discretion in
handling critical aspects of the employer’s business and employer’s business interests are
particularly and especially vulnerable to his actions.
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Frame test: does the relationship fall in a pre-established category? (director/corp,
trustee/beneficiary, agent/principle). If not, look for three characteristics: scope for the esercise
of some discretion or power, the ability to unilaterally exercise that discretion or power so as to
effect the beneficiary’s interests, and the beneficiary is peculiarly vulnerable or at the mercy of
the fiduciary’s holding that discretion or power.
Vulnerability = inability of employer to prevent injurious exercise of that employee’s power and
the difficulty employer would have of recovering from this conduct.
Extra Obligations/Duties for Fiduciary Employees
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Corporate opportunity: can’t quit to exploit a business opportunity they’ve become aware of by
virtue of their employment without first offering it and, if necessary, securing it for the
employer, even if they know it’s unlikely for employer to be interested. Cannot misappropriate
a maturing business opportunity their employer is pursuing. Also cannot compete after
resignation where resignation was motivated by obtaining the opportunity themselves and it
was their position that led to the opportunity. (Canaero)
Finding a corporate opportunity breach: position held by the employee, nature and ripeness of
the opportunity and its specificity, employee’s relation to it and how involved with it they were,
amount of knowledge they possessed, circumstances in which it was obtained, timing of the
breach (how long after resignation), and circumstances surrounding termination (fired?).
Duty to disclose: must disclose any info that can be reasonable expected to impact the
employer’s business in a significant way (another employee’s misconduct).
Must disclose anything that might impact their ability to do the job when applying for it.
Duty not to Compete: can’t compete while employed, but also can’t compete for a reasonable
period of time after the employment relationship ends, with reasonable time being how long it
takes for employer to safeguard their business.
Can’t entice other employees to leave with them.
Employer’s Obligations
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Obligation to provide reasonable notice of termination or pay in lieu
Duty to pay people for work with amount determined by contract, within ESA minimum.
Duty to provide work – can’t just tell employees not to come due to lack of work while hoding
that it’s not termination – that’s constructive dismissal.
Duty to provide a reasonable safe workplace (Nike). Not just warning against unusual dangers in
workplace known to them but also making the place as safe as exercise of reasonable care and
skill will permit. This duty supersedes what is considered common practice or what a
reasonable employer would have done.
Duty to prevent Harassment and Intimidation in the Workplace: part of a duty of providing a
psychologically safe workplace (Sulz).
No duty of act fairly to their employees in employment, only a duty of fairness in termination –
can’t lie about reasons for it or act harshly in the process.
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Employee or Independent Contractor?
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Distinction is crucial for vicarious liability: no vicarious liability from acts of contractors.
Distinction is also crucial in that indie contractors are entirely governed by their contract with
employers: ESA minimums do not apply.
Sgaz four-fold test: level of control over worker’s activities (employer controls what work gets
done, which workers will do it, and how/when/where they’ll do it and set remuneration for
employees, for contractors, only tell them what work is to be done with contractor controlling
the how and by whom), ownership of tools, whether there’s a chance of profit, whether there’s
a risk of loss – degree of risk or opportunity for profit.
Organization test: is the individual performing work that’s integral to the business (employee) or
more an accessory to the business (contractor).
Check full CAN for common key distinctions between the two.
Unionization – Key Changes to the Workplace and Employment Law
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Individual no longer has a distinct interest in the employment relationship and union becomes
exclusive bargainng agent, negotiating on behalf of the employees they represent for all the
terms/conditions of employment, all in the collective agreement.
If employee has claim against employer, it’s to union whether or not to pursue it.
Represents all the employees, even those who didn’t vote in favour of unionization.
Workers can only be terminated for just cause, which requires a step-by-step progressive
discipline process.
Seniority is crucial in determing access to shifts, promotions, overtime, etc. Not merit.
Work stoppages are possible during bargaining – can be locked out, but not terminated.
Unlike non-unionized, where only option is to quit and claim wrongful or constructive dismissal,
workers complaining of mistreatment can have a union file a grievance and go to arbitration and
fight on their behalf while they continue to work.
Vicarious Liability
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Employee has done something that has harmed a third party such that they have claim against
the employee and the employer is vicariously liable despite having done nothing wrong.
Basley: employer is vicariously liable if the misconduct was expressly authorized by the
employer or was so connected with what was authorized that it was basically a mode of doing
what was authorized (Salmand test).
First step: are there precedents that determine whether a case like this gives rise to VL?
If no, consider it in light of the policy rationales behind strict liability: the key factor is the
strength of the link between the activity/business of the employer and the employee’s
corresponding duties and the misconduct of the employee. Then balance the provision of a just
and practical remedy for the harm and the social interest in furnishing an innocent victim (deep
pockets) against concern of unduly burdening business enterprises. Also consider deterrence of
future harm (will this make the employer be more careful in future to avoid this harm?)
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Basically, first consider the deep pockets, deterrence, and balancing policy considerations. Then
consider if there’s a sufficient, significant connection between the wrongful act and the conduct
authorized by the employer, then consider other relevant factors: the opportunity the
enterprise afforded the employee to abuse his power, the extent to which the wrongful acts of
the employee aided the employer’s aims and gave a benefit, intimacy inherent in employer’s
enterprise, the power conferred on employee in relation to victim, and victim’s vulnerability.
Jacoby: non-profits have no deep pockets so require a stronger connection between the
conduct and the activities of the employer and corresponding employee duties. Also, there is no
deterrence policy aim satisfied if the misconduct is already a criminal offence. (Basley says yes)
ESA – Who it Does and Doesn’t Apply To
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Applies to anyone receiving or entitled to wages for work performed for another. Also applies
to anyone the employer allows, directly or indirectly, to perform work normally performed by an
employee even if employer doesn’t call the person an employee.
Applies to persons being trained by an employer for his business
No distinction based on full-time, part-time, or casual.
S.31 of ESA regs: doesn’t apply to regulated professions.
S.3: collective agreement can override some provisions of the ESA for unionized employees
(hours, overtime, holidays, lay-off, individual termination).
S.34(f) of regs: managers are exempt from provisions on hours of work, overtime, stat holidays.
Manager is defined as person whose principal employment responsibilities consist of supervising
and/or directing human or other resources or someone employed in executive capacity.
Factors: power to hire/fire/disicipline, ability to authorize overtime and leaves of absence,
ability to call in employees or lay-off, alter work process or schedules, train employees, or
responsibility for ordering supplies or inventory.
ESA Wage requirements
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S.20: minimum wage of $10.25 with special rates for certain classes of workers.
S.21: employer must pay employees what they’re entitled to. Cannot withhold wages to, say,
recoup past overpayment or unused vacation days or put in place policies docking pay for cashhandling errors or property damage or contributions to cost of business.
Traffic violations in course of work and new tools can be employee expenses, but employee
cannot be forced to pay for the cost of running and maintaining those tools.
S.27 and s.28: must provide wage statements on each pay day unless it’s the same as past pay
period. Contains hours of work, wage rate, deductions, and a breakdown of how wage was
calculated. Must be kept for two years at principal place of business.
ESA Hours Requirements
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S.32: employee must receive a 30 minute unpaid meal break at least once every 5 hours.
Employer must make these breaks happen.
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S.33: split shifts must be completed within 12 hours from the start.
S.34: if an employee is called in or scheduled to work and show up and then are told to go
home, they are entitled to 2 hours’ pay if called in or scheduled for <8 hrs, or 4 hours’ pay if they
were scheduled for more than 8 hours.
If work is suspended mid-shift for reasons beyond employer’s control, they get the greater of 2
hours or actual time worked.
S.34 doesn’t apply if employee shows up unfir to work.
Overtime
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S.35: applies when employee works >8 hrs a day or >40 hrs a week whether the employer
requires it of them or simply allows them to do it. Onus is on the employer to send them home.
Includes travel required as part of the job, time spent on-call at a location other than home, and
time spent at meetings and training.
S.36: employees are entitled to 32 consecutive hours free from work each week or 1.5x wage for
time worked in that period. Also are entitled to 8 hrs between shifts barring emergency.
S.40: 0-8 hours is regular rate, 8-12 is 1.5x, 12 hours plus is 2x.
Weekly overtime: only first 8 hours of each day worked is calculated. Each hour over 40 that
this amounts to is at 1.5x regular wage rate. You get both this overtime PLUS daily overtime.
S.39: n o excessive hours can be allowed or required - hours detrimental to health and safety.
Employees can agree to overtime banks and averaging agreements (see full CAN)
Statutory Holidays
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S.44: if employee has been employed for at least 30 days and earned wages for 15 of them, they
get stat holiday pay for holidays after those 30 days.
S.46: employees get 1.5x regular wage for time worked up to 12 hours on that stat holiday and
2x for anything more. Employee also gets s.45 “average day’s pay” on top of this (amount paid
over those 30 days divided by days worked). Basically means for those 12 hours, 2.5x wage.
Vacation
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S.57: if employed for 12 consecutive months, you get 2 wks per year. After 5 consecutive years
of employment, it’s 3 weeks per year. This doesn’t rollover into the next year, unless the
employer has contracted to give you more than this minimum – that excess can roll over.
S.58: the pay is 4% of gross earnings from previous year if employed for 12 months or 6% if
employed for 5 years.
Pregnancy and Parental Leave and other Leaves
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S.50: entitled to this regardless of length of employment. Leave can begin as early as 11 weeks
before expected due date and can’t end earlier than 6 weeks after the birth. 17 consecutive
weeks of unpaid leave. If leave isn’t requested until after the birth or abortion, it’s only the 6
weeks with an additional 6 weeks for complications arising out of the pregnancy/termination.
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S.51: birth fathers get 37 consecutive weeks of unpaid leave after the birth date. Birth Mothers
get 35 consecutive weeks tacked onto the 17 week pregnancy leave.
Adoptive parents get 37 consecutive weeks beginning 52 weeks of child’s placement with them.
Parental leave can be extended another 5 weeks if child has a condition requiring more care.
Family Responsibility Leave (s.52): up to 5 days unpaid leave per year to meet responsibilities
related to care or health of child in employee’s care or member of immediate family. Doesn’t
roll-over into the next year and portions of days count as whole days.
Bereavement Leave (s.53) up to 3 days unpaid upon death of immediate family member, need
not be consecutive, but must be taken within reasonable time after the death.
Compassionate Care Leave (s.52.1): up to 8 weeks unpaid leave to care and support family
member with serious medical condition with significant risk of death in next 26 weeks.
S.54: employer must grant leaves even if employee didn’t comply with technical or notice
requirements. Employer cannot alter terms and conditions of employment while they’re gone.
Employer has duty to place employee in same position upon return or a comparable position if
the position is gone (NOT if they just replaced the person while they were away).
S.56: employment is deemed continuous for purposes of calculating benefits and employee is
entijtled to any wage or benefit increase that occurred during leave.
ESA Notice Requirements
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S.63: statutory right to notice of individual termination or pay in lieu: no notice if employment
<3 months, 1 week for 3 to 12 months, 2 weeks for 12 months to 3 years, 1 week per year after
that up to a max of 8 weeks. Can be working notice, pay in lieu, or a combo of both.
Employer can lay off employee for up to 13 weeks within a 20 week period, more than that and
it’s termination.
S.64: if, within a 12 week period, 50-100 employees are terminated, they get an additional 8
weeks notice. 101-300 means 12 additional weeks. More than 300 = 16 additional weeks.
Notice of group termination goes to each employee, union, and minister of labour stipulating
number of employees affected, date of termination, and the reason.
S.65: casual employees don’t get notice under ESA, nor do defined term employees or
employees hired for specific work to be finished in 12 or fewer months. Also no notice
requirement if employment becomes impossible due to unforeseeable event, if they’re
employed by a construction employer, or if the terminated employee refused reasonable
alternative employment from the employer.
Complaints Under the ESA
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S.74: in writing to the ESB within six months of the incident. Branch then sends a letter to
employer detailing the wrongdoing and asking it to be remedied in 30 days. If this isn’t done,
employee can file a formal complaint.
S.76: director must investigate this formal complaint unless it’s out of time, there’s insufficient
evidence, or it’s dealt with in another proceeding.
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S.78: director tries to encourage settlements instead of adjudication, but can also order
compliance with the eSA, order the employer pay money if employees are owed, order
reinstatement of an employee, or order employee post notice of its breach in the workplace, or
can also dismiss the complaint.
Director cannot apply the Charter or HRC (s.86).
Can enforce through liens for unpaid wages, garnishing third parties, filing the decision so it
becomes a judgment capable of collection procedures, seizures of employer assets, making
director/officer personally liable for 2 months’ unpaid wages, or monetary penalties.
Employer can appeal to EST under Part 13 based on error of law, natural justice, or fresh
evidence and if still unhappy, can apply for reconsideration or judicial review under s.116.
Macaraeg: where rights are created by statute, if that statute has an enforcement regime, that
is the sole avenue for pursuing the claim. Can’t sue on ESA entitlements in court.
Express Contractual Notice Provisions
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Employer can limit the employee’s entitlement to reasonable notice by stipulating something
less. If it falls below the ESA minimum at outset or somewhere down the road (Ladner Downs),
whole term is unenforceable and employee is entitled to reasonable notice again.
If the provision is at all ambiguous or unclear on what it provides, back to reasonable notice.
Singh: if the term is introduced after commencement of employment and there’s no new
consideration, it’s unenforceable, back to reasonable notice.
If employee can argue that the sub-stratum of employment has changed, that the position and
job duties have fundamentally changed since that provision was agreed to, reasonable notice.
Pay in Lieu
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You get the wages you’d’ve been entitled to in the notice period, but also any benefits.
Medical and dental coverage you’d have gotten in that period is usually awarded through
topping of the payout by 8-10% - pay in lieu of coverage
Determining Reasonable Notice (Ansari)
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Bardal factors: character of employment (how senior, level of responsibility and importance,
education, salary, position in company hierarchy), length of service (breaks in employment
won’t mean that only most recent period is considered if it wasn’t long and a return was
expected and not, like, severance was paid out), age, and availability of similar employment
considering the personal circumstances of the employee (was reputation damaged by the firing?
Their experience and qualifications?).
Bardal factors have primacy, but other factors include inducement (left a secure job for this one
– the longer he worked here though, the less this matters) and whether relocation would be
required to find similar employment. Both length reasonable notice.
Just Cause
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Poor performance or misconduct is so significant that it constitutes a fundamental breach of the
employment contract by the employee such that employer is released from notice obligation.
Proportionality is guiding principle: can’t terminate without notice unless absolutely deserving
taking account of surrounding factors like provocation, trauma outside work, long service, and
good record. Means a single incident of misconduct generally won’t be enough unless it’s
something very serious, like theft, assault of a co-worker, or sexual harassment.
Decision to terminate must be in good faith (meaning all employees are treated the same –
other people don’t get a pass for that conduct – while considering this employee’s mitigating
factors) and not on an arbitrary or discriminatory ground.
Procedural fairness is required: employers must conduct an investigation wherein they give
employees a chance to explain and give their side of the story.
Assault, harassment, bullying, theft (time and property), or fraud work.
Absenteeism requires a repeated pattern with warnings and chances for improvement.
Refusal to relocate may work as long as employer’s request was reasonable.
Illness: more frustration than just cause: can’t terminate while someone is on disability leave but
if an absence is of sufficient duration (~2 yrs) and it is extremely unlikely that they’ll return in
the reasonably foreseeable future, the contract is frustrated and no notice required.
There generally needs to be an element of dishonesty, but not required where conduct is
detrimental enough to the employer’s reputation or business.
Just Cause for Dishonesty
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McKinley: is there dishonesty and did the employee’s dishonesty give rise to a breakdown of the
employment relationship. Requires an assessment of the context of the misconduct to see if it
violated an essential condition of the employment relationship or was fundamentally
inconsistent with the employee’s obligations to the employer.
Federally Regulated Employers and Unjust Dismissal
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Labour and employment is usually provincial unless an integral aspect of the employer’s
enterprise falls in a federally regulated industry in s.91 and 92 of the Constitution Act
(aeronautics, telecommunications, navigation and shipping, railways, post, banks, Indians,
interprovincial trucking). In that case, it’s the Canada Labour Code.
Actton: for an employer to be federally regulated, the essential nature of its operations must fall
within one of those industries or, if not, it must be somehow so integrated into the operations
of another business that IS federally regulated so as to be federally regulated itself. Shared
ownership alone isn’t enough to establish such integration.
Biggest difference is CLC’s unjust dismissal process, which unlike wrongful dismissal, usually
leads to reinstatement of the employee where successful. Employee must not be a contractor
or manager and must be employed for at least 12 months with the complaint made within 90
days of dismissal subject to minister’s discretion. Must be a dismissal, not for resignation and
not with cause.
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Lay-offs are NOT unjust dismissals provided that the employer can show it was genuine and for a
real business reason and that this employee was properly selected for it.
Can’t be a collective agreement or other statutory mechanism for redress available and there
must be an exhaustion of conciliation procedures.
Requires ministerial approval of the hearing and employer can challenge person’s right to an
unjust dismissal claim under s.240 before the hearing.
Practically speaking, this means that a federally regulated employee can only be dismissed for
cause or without cause if you can justify it as part of a lay-off. Otherwise, reinstated.
If reinstatement is inappropriate due to deterioration of the relationship or there’s fault on the
employee’s behalf (close to cause) or job no longer exists, it’s damages for CL reasonable notice.
Can file both a wrongful and unjust dismissal complaint, but the remedies affect each other.
Constructive Dismissal
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Farber: where the employer unilaterally makes a fundamental or substantial change to the
contract of employment that violates the contract’s terms.
Employer alters terms/conditions fundamental to the employment relationship, entitling
employee to walk away and argue they were terminated due to change and sue for the damages
they’d have gotten had they been terminated (wrongful dismissal damages, reasonable notice).
Is the breach serious enough to be fundamental? Has the employee terminated in a timely way
or impliedly condoned the breach?
A reduction in remuneration of at least 10% is generally considered fundamental though there
may be more leeway if there was a bona fide business reason for the reduction.
Job duties being changed to extent of changing the position, like a demotion.
Relocation where the request isn’t reasonable or isn’t in good faith (just trying to induce to quit)
Harassment cases may lead to work environment being so poisoned that employer’s failure to
address leads to constructive dismissal.
Farber: only thing relevant is what was known by the employee at the time of the offer and
what ought to have been foreseen by a reasonable person in the same situation – that there
would’ve been practically no change had he stayed is irrelevant otherwise.
Condoning the Fundamental Change?
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Can be deemed to have accepted the fundamental change if the employee waited to long to act
on it. They are given a reasonable period of time though, months, to account for his not
wanting to be unemployed and to try out the new job.
Objective test: would a reasonable person in the employer’s position believe the employee
intended, voluntarily and without coercion, to agree to the changed terms? Commonly, it’s a
combination of two changes that is fundamental breach, but waited too long on first one.
Mitigation
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A wrongfully dismissed employee has a duty to take reasonable steps to find alternative
employment. If not, their damages will be reduced – notice period drops by 1-2 months to
account for this avoidable loss.
Avoided loss: where the employee found a job during the notice period, the money and any
other remuneration they made during notice period will be deducted from employer’s liability.
Mitigation expenses: if the employee acted reasonably to attempt to reduce their loss in
discharging their obligation to mitigate, expenses they reasonably incurred to do so will be the
responsibility of the employer who wrongfully terminated them.
Michaels: Employer has onus of proving the employee failed to take these reasonable steps to
find another job. High standard – just reasonable, not diligent, not enough that they didn’t try
hard. Employer generally has to point to a particular job the employee was suitable for but
failed to take reasonable efforts to secure.
Whether it’s reasonable to apply for a job is based on geography, nature of the position, how
much of a step down it is in pay, how much of a change in lifestyle.
Bowes: unless the contract says there is, there is no duty to mitigate in contractually agreed
upon notice entitlements. It’s only for common law notice period. This also means that you’d
get the full contractual notice period even if you found a job/avoided loss in that period.
Risks of Pursuing a Constructive Dismissal Claim (Mitigation)
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Requires the employee to walk away from job and has to show that they were subject to a
fundamental change – barring big change in remuneration, that’s no guarantee.
Mitigation is an issue: employer can argue it was reasonable to stay on the changed job until
you found another job – unreasonable to turn down a guaranteed paycheque. Problem is that
staying to mitigate may be misinterpreted as condoning the change.
Russo: gave notice through his lawyer that he was staying out of his duty to mitigate and wasn’t
accepting the change. This stopped employer from being able to argue he accepted.
Evans: whether they are obligated to stay in order to discharge duty to mitigate depends on
whether it’s reasonable for the employee to return: are the working conditions going to be the
same? Would they be returning to a hostile environment? Is litigation ongoing? If the
environment is hostile and it’s humiliating, they should not be obligated to return.
Uncontroversial Restrictive Covenants
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Confidentiality of information: agreement that after leaving, they can’t disclose confidential
info. It’s generally very broad but doesn’t add much to already existing common law duty.
Solicitation of employees: leaving employee is prohibited from soliciting other employees to
leave and work for him. Frequent way around this is for them to send someone else to solicit.
Controversial Restrictive Covenants
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Non-Competition Obligations: if an employee leaves they will not compete for a set period, with
competition defined in terms of geography, products, and services. It’s a very broad obligation
and courts typically find them unenforceable as a result.
Non-Solicitation: allows for competition, but bars solicitation of employer’s clients – can be
existing clients, particular clients, or potential clients, but if it gets overly broad, it starts to look
like a non-competition obligation and can get tossed.
Employer’s Onus of Showing a Restrictive Covenant to be Enforceable
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Restrictive covenants are prima facie unenforceable due to being restraint of trade and against
public policy (employees’ right to make a living and public’s interest in freedom of movement in
labour market vs. employer’s protecting his business)
Consideration was given for it (it’ll typically show up post-acceptance/formation).
Restrictive covenant must be unambiguous in its terms so there is no doubt that employee knew
exactly what he was restricted from doing.
Employer must show a proprietary interest worthy of protection, that this covenant concerned a
real interest of the employer that it should be able to protect.
Contra preferentum is in effect: ambiguities are interpreted in favour of the employee.
The restrictive covenant must be reasonable: covers a reasonable geographic area, reasonable
duration (2 years max), the nature/scope of the prohibited activity isn’t defined too broadly.
The limitation is not against public interest – only a concern in certain industries (ie dentistry).
Examples of overly broad and ambiguous language (Valley First): can’t compete “in any way
whatsoever,” can’t solicit people “in any way related to the business.” A covenant covering an
entire industry will likely be too broad.
Shafron: covenant’s geographic area must be unambiguous. Also, blue pencil severance to fix
covenants should be used sparingly and only when the part removed is small, trivial, and not a
main component of the covenant. Notional severance can’t be used at all.
Common Law Post-Employment Obligations – Competition?
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Fiduciary employees can’t compete for a reasonable time after employment has ended, but
otherwise, barring an enforceable restrictive covenant, there is nothing barring non-fiduciary
employees from competing immediately upon leaving employment (RBC Dominion Securities)
provided they don’t make use of the employer’s confidential information.
Duty to Provide Notice of Resignation
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Since there’s no ESA provision on this, the employee must either provide notice of resignation
stipulated in his contract or the common law reasonable notice of resignation – usually a week
or two, a month for senior employees.
If he fails to do so, it’s breach of contract with employee getting damages for what it would have
received had the employee given proper notice (lost productivity)
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RBC Dominion Securities: damages attrituable to a failure to give notice of resignation are
compensable with the amount being loss of production owing to the employee’s absence during
that notice period or the profits employee would have made the employer in that period.
Damages for Wrongful Dismissal
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Aimed to put the employee to be put in the position he’d been in had he gotten the notice.
What of value would he have received in that notice period?
Wages/salary: base pay he would’ve gotten in that period as well as benefits.
Wage increases: if employee can prove on balance of probabilities that he’d’ve gotten a raise in
that period, damages will compensate for that (like if it’s a fixed formula or an annual thing).
Commissions: if employee can satisfy court that he would’ve made commissions in the period –
can be hard to show more than base pay since being a poor performer was likely why fired.
Overtime: entitlement is assessed based on past practice of the parties and business conditions
during the notice period.
Insurance: if employee is injured during the notice period, employer will cover his losses as
though he were still covered by the insurance plan.
Bonuses: is the bonus discretionary and would employee have gotten one in the notice period?
Unlikely since they’re usually related to performance level and he got fired for a reason.
Vacation pay: entitled to vacation pay if he took vacation after being fired, during notice period.
Post-Employment Benefits and Wrongful Dismissal Damages
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Waterman: collateral benefits: when a source other than damages from employer ameliorate
the loss suffered by employee as a result of the employer’s termination w/o notice.
Example is a pension plan or disability benefits.
Test: was the post-employment benefit intended to indemnify the employee for the breach
(termination w/o notice) OR would the benefit not have accrued to the employee but for the
employer’s breach?
This test results in pension plans and disability plans NEVER being deductible from the
employer’s obligations to pay damages.
Damages for Mental Distress Due to Manner of Dismissal
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Wallace: employers have an obligation of good faith and fair dealing in the manner of
termination, even if no such duty during employment. Examples of a breach of this: not being
forthright about reason for termination, accusing employee of serious misconduct and telling
others, reassuring employee of job security and then terminating without notice, not telling the
employee about impending termination while knowing he’s relying on continued employment,
terminating employee during disability leave.
Honda: no damages for actual loss of the job or distress suffered due to termination.
Aggravated damages require and independent, actionable wrong. Damages only flow from
breach of good faith in termination.
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Honda: post-Wallace, it’s always an implied term in every employment contract that employers
will be honest, candid, and forthright with employees in the course of dismissal and a failure to
meet this duty is expected by the parties to lead to foreseeable, compensable damages.
No Wallace bumps: damages amounts are fixed according to basic contract principles (Hadley).
Honda: punitive damages are only available where the conduct was harsh, vindictive,
reprehensible, malicious, and extreme in nature by any reasonable standard such that it’s
deserving of condemnation and punishment of its own.
Baggs: employee must establish that the mental distress complained of was a direct result of the
manner in which she was terminated and NOT just the fact she was terminated or some other
trauma. Typically must also show an element of unfair dealing or dishonesty by the employer.
Tort of Negligent Misrepresentation
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First must show a duty of care based on the existence of some special relationship between the
parties. Employer/employee always works, and after Queen v. Cognos, so does employer
representative/employee during recruitment process.
Second: must be representation that is untrue, inaccurate, or misleading about some form of
existing fact (nature of the job or job security) and NOT a prediction of future fact.
Third: party making the representation must have acted negligently in doing so through a failure
to take reasonable care to ensure its accuracy and its not being misleading.
Fourth: employee must have relied on the representation in a reasonable manner (took the job).
Fifth: that reliance must have been detrimental to the employee in some way, they suffered
damages as a result of that reliance (resigning from another job, relocation, etc).
Through compensatory damages, court will restore the individual to the position he’d have been
in but for the negligent misrep.
Queen: interviewer has duty exercise such reasonable care as circumstances require to ensure
that the representations he makes are accurate and not misleading.
Employers can get around this liability through entire agreement clauses: clause in contract that
only thing employee can rely on are what’s in the four walls of the agreement, not prior reps.
Human Rights Code
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S.11: can’t discriminate on prohibited grounds in advertising employment.
S.13: can’t discriminate in employment on the proscribed grounds enumerated in the section.
Employers CAN discriminate on any other grounds not explicitly enumerated.
Proscribed grounds: race/colour/ancestry/place of origin, religion, marital or family status,
physical or mental disabilities (including addiction), mental disabilities (does NOT include stress),
sex, age, sexual orientation, criminal convictions.
Discrimination means treating an employee differently because of one of the above proscribed
characteristics. Must be a causal relationship: differential treatment of a person who just so
happens to have such a characteristic doesn’t count.
Showing an HRC Breach
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Step 1: employee must show on a prima facie basis that there’s been discrimination: differential
treatment based upon a prohibited ground.
Step 2: employer must show that either the employee did not suffer the adverse treatment
they’re claiming OR that there was no nexus between that adverse treatment and the person’s
proscribed ground/characteristic.
Step 3: if the employer can’t show either part of step 2, he must show that while the
discrimination occurred, it was part of a bona fide occupational requirement.
Meiorin: test for showing a bona fide occupational requirement: first must show that the
standard/policy in question was rationally connected to the performance of the job.
Second: show that it adopted the standard in an honest and good faith belief that it was
necessary to the fulfllment of that legitimate work-related puirpose (adopted it because of the
rational connection in step 1)
Third: show that the standard is reasonably necessary to the accomplishment of that legitimate
work-related purpose: this is whon by demonstrating that it would be impossible to
accommodate the individual employees sharing that characteristic without imposing undue
hardship on the employer.
Central Alberta Dairy: undue suggests that some hardship in accommodating is acceptable.
Considerations are financial cost of accommodating, interchangeability of the workforce and
facilities (could someone else pick up the slack), prospect of substantial interference with rights
of other employees.
Renaud: oither factors: disruption of a collective agreement, problems with morale for other
employees (don’t factor this TOO much), size of the operation, ease with which facilities will be
adapted, and where safety is an issue, degree of risk.
Meiorin also establishes that it’s about the particular individual and their characteristic:
accommodation can’t be based on broad assumptions about groups with the characteristic.
Sexual Harassment
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Differential treatment based on gender or pregnancy are both discrimination based on sex.
Janzen: sexual harassment always constitutes sex discrimination and a breach of the HRC.
Janzen: sexual harassment is unwelcome conduct of a sexual nature that detrimentally affects
the work environment or leads to adverse job related consequences to its victims.
Employers are also liable for it much more easily than standard vicarious liability. HRC s.44(2):
any act of employee that occurs during company time and is work-related is deemed an act by
the employer.
Worker’s Compensation – Historic Compromise
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S.10 of WCA codifies it: employees cannot sue their employer or other employees for
compensation for personal injury but they can sue for property damage and losses arising out of
the incident. IN return, they get compensation on a no-fault basis with no inquiry into whether
they did anything wrong.
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It’s an entitlement system based on an inquiry system where board officers determine whether
the entitlement exists (was it really arising out of and in course of employment) but nonadversarial.
S.257: if employer gets sued in court, you can argue that the personal injury arose in
employment – WCAT then makes a determination if there is an employer/employee relationship
between the parties at time of incident and whether it ws in course of employment, than can
dismiss the court action.
Who is Covered?
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Employers are defined broadly as anyone who employees a worker, including corps and sole
proprietors. If you’re an employer, you must register or be penalized for the capitalized value of
the injury when one occurs.
Labour contractors: dependent contracts who are independent in some sense (bring own tools)
but dependent in others (work for one company according to their rules). They only provide
labour – if they bring lots of equipment of their own employees, they’re not dependent
contractors. They can either register themselves or the employer will register them as
employees.
Independent operators: no one working for you and unincorporated: need not register, though
they can apply for personal operation protection.
Volunteers who aren’t emergency workers are not covered. Nannies and childcare workers with
limited hours are also excluded. Truckers moving in and out of jurisdiction may or may not be.
Compensable Injuries
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Injury must have “arisen out of and in the course of employment.” Arisen out of is the nexus
establishing that something in or about the employment caused the injury while “in the course
of” is about the time and place of injury. Must have both.
But for test: wouldn’t have suffered the injury if you weren’t at work. This usually satisfies both
elements of the test.
Substantial deviation: employee can take themselves out of employment by doing something
while on the job that deviates strongly from their usual duties (getting drunk on the job).
Hazards of nature: if injury is caused by nature and the job doesn’t generally require work in an
outdoor environment, it won’t be covered.
Mental injuries: s.5: psychological injuresi flowing from otherwise compensable injuries are
covered. So too are mental disorders that meet the “arose out of and in the course of” test.
Compensable consequences: injuries that occur outside of work but would not have occurred
but for the workplace injury are covered.
Occupational diseases: just have to show that work had a causative significance in giving you the
disease, a causal link that is more than significant. If so, you’re covered, even if there may have
been other non-work related causes in play.
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Compensated according to temporary wage loss benefits and, if the condition stabilizes and
becomes permanent, you get compensation based on either loss of function or loss of earnings
(refer to full CAN).
Access to Information and Causes of Action
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S.1 of Privacy Act: if defendant’s conduct is wilful and without claim of right and nature of
privacy plaintiff is entitled to is what’s reasonable with regard to lawful interest of others and
it’s intruded on wilfully, you can commence a BCSC action for intrusion of privacy (Watts).
FIPPA gives citizens a general right of access to information held by public bodies.
PIPA gives smaller right of access against private organizations: you can only ask for what they
have about you, must be a nexus between the document and the person requesting.
Evidence obtained in breaches of privacy found by commissioner will be tossed by arbitrators.
Privacy in the Employment Context
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Hiring: background checks. Employment records. Disclosure of employee information.
Requests for medical certificates. Employee surveillance, monitoring web usage, and GPS.
Eastmond test: is the surveillance overt or covert (overt can be okay, covert basically never). Is
it for a reasonable purpose (safety, security, reducing vandalism, theft, or liability for property
damage, NOT for monitoring productivity) and is it done in a reasonable manner (you only
collect what you need and only access the info when you need to).
Detailed Eastmond 4-part test: is the measure demonstrably necessary to meet a specific need?
Is it likely to be effective in meeting that need? Is the loss of privacy proportional to the benefit
gained? Is there a less invasive way of achieving the same need?
Schindler: reasonableness is easier to show where the employer has a detailed privacy policy,
gave notice to the employees about the purpose of the collection/use of the private info, the
info was overwhelmingly related to work activites, and monitoring was continuous.
UBC: even if the purpose is reasonable, can be tossed based on manner being unreasonable if
there’s no notice and/or no privacy policy in place.