Willson Lewis LLP
EMPLOYMENT LAW:
HIRING, FIRING, AND
EVERYTHING IN BETWEEN
SATISFIED CLIENTS ARE OUR GREATEST STRENGTH!
Offering experienced counsel practising in all aspects of civil and commercial litigation including employment law,
construction, family, equine law, wrongful dismissal, tax disputes, estate and property disputes, and collections
1183 King Street West, Suite 200, Toronto, Ontario M6K 3C5
Tel: 416 534-9504 Fax: 416 534-9503 www.willsonlewis.com
Willson Lewis LLP
Biographies
CATHERINE E. WILLSON, B.A., LL.B., PARTNER
A longstanding member of the Ontario Bar Association, Catherine E. Willson is a founding partner of Willson
Lewis LLP, and has established a successful practice in employment law, civil litigation, equine, collections,
construction, and family law. She was an executive member of the Canadian Bar Association (Ontario) – Civil
Litigation Section. She is also a member of the Advocates Society, the Association of Trial Lawyers of America,
and the Toronto Construction Association. Catherine is both the Chairman of the Risk Management Committee
and an Honourary Governor of the Royal Agricultural Winter Fair. Catherine is the legal expert for the Canadian
Federation of Independent Business (Member Services) and is a regular speaker at legal and business
conferences, an instructor at the University of Guelph, and writes on legal issues for several national
publications.
CRAIG A. LEWIS, B.A., LL.B., PARTNER
Has been practicing employment law since being called to the Bar. He received his Bachelor of Laws degree
from Queen’s University and was admitted to the Law Society of Upper Canada in 1993. A member of the
Ontario Bar Association, Advocates Society, Canadian Association of Black Lawyers and the Metropolitan
Toronto Lawyers Association. Craig has been a speaker at Ontario Bar Association seminars concerning
advocacy matters and has litigated at all levels of Court in the Province. In his employment practice, Craig has
prepared employment contracts and independent contractor agreements. He has provided advice on hiring,
terminations packages and wrongful dismissal claims. He has assisted clients in drafting employment policy
manuals. Craig has extensive experience in responding to human rights complaints.
Willson Lewis LLP
Biographies
MARLENE KAZMAN B.Sc., LL.B. - ASSOCIATE
Marlene was called to the Ontario Bar in 1993, having received her LL.B. from the University of Western Ontario
and completing her articles at one of the oldest law firms in Canada. Marlene’s practice includes civil,
matrimonial and construction lien law. Marlene has trial experience at all levels of Court in the Province of
Ontario, and she is a member of the Ontario Bar Association and the Women’s Law Association of Ontario.
Marlene is a frequent contributing writer of legal information articles for the National Credit News.
CHRISTOPHER ROBERTSON, B.A., LL.B. - ASSOCIATE
Christopher is an associate with Willson Lewis LLP and was called to the Bar in 2003, Christopher's practice
focuses on employment-related litigation and commercial disputes. He has successfully appeared at the Ontario
Superior Court of Justice on the Commercial List and the Ontario Court of Appeal. He has also appeared before
various Boards and Tribunals including the Ontario Labour Relations Board, the Ontario Human Rights Tribunal,
the Licence Appeals Tribunal, the Health Professions Appeal and Review Board, as well as professional
regulatory agencies.
AIMEE COLYER, B.A., LL.B. – ASSOCIATE
Aimee was called to the Ontario Bar in 2007. After completing her articles with Willson Lewis LLP, Aimee
practised as an associate with two large Bay Street firms. In 2009, she returned to the firm to practice family law
and civil litigation. Aimee is a member of the Ontario Bar Association.
Experienced counsel practising in:
CIVIL LITIGATION





EMPLOYMENT LAW





employment contracts and
consulting agreements
wrongful dismissal
conflicts in the workplace
termination packages
human rights
dispute resolution
court actions, applications,
injunctive relief
commercial disputes
personal disputes
mediation and arbitration
Experienced counsel practising in:
CONSTRUCTION LAW

construction projects (general
contract/project management/design build)
 preparation of construction contracts
 tender advice and resolution of disputes
 negotiation and litigation of construction
disputes including lien actions and breach of
trust issues
FAMILY LAW

divorce, separation, custody,
support, property issues
 separation agreements
 cohabitation and marriage contracts
 settlement negotiation and mediation
Experienced counsel practising in:
EQUINE LAW

dispute resolution, litigation
 purchase and sale agreements,
boarding agreements and
leasing agreements
 co-ownership agreements and
syndications
 taxation
EMPLOYMENT RELATED
STATUTES
EMPLOYER
LIABILITY
The
Canada
Pension Plan
Act
The
Canada
Labour
Code
HIRING – EMPLOYMENT
CONTRACTS
APPLICATIONS & RECRUITING
DO NOT:




Ask about age, date of birth, hair or
eye colour, weight or height
Ask about religious affiliation
Ask about Canadian citizenship
Ask for ‘maiden name’ or greeting
identification, i.e. Mr. or Miss.
JOB OFFERS

Avoid making a verbal job offer with different
written terms later

Do advise that the offer is forthcoming and send it
in writing

Do give time for the employee to review

Do encourage the employee to get legal advice

Do get signature before work starts
EMPLOYMENT CONTRACTS
CONSIDER:

Indefinite term or specific
project or task

Compensation including bonuses
 Describing duties and specifying
ability to change

Describing the probationary nature of the
position and ability to dismiss without notice

Providing for Termination
•
Ontario Employment Standards Act, 2000 and
related provincial statutes
•
Common law (except Quebec)
EMPLOYMENT CONTRACTS
CONSIDER:
 Inserting a non-competition clause
– temporal, geographical, task specific restrictions

Inserting a non-solicitation clause
– customers, employees

Inserting a confidential information clause
 Ensure that adequate consideration is
provided for the contractual relationship
EMPLOYEE vs. INDEPENDENT
CONTRACTOR

Employee
–
–
–
–

Income tax, CPP, EI – deductions and remittances
T4’s
Vacation pay, overtime, holiday pay
Termination pay
Independent contractor
– No obligation on principal to pay income tax, CPP, EI – just GST,
HST
– Contractor must remit taxes
– Little or no notice of termination
– No EI
– Contractor can deduct his or her business expenses against
income
– Relationship built on contract
TESTS – INDEPENDENT
CONTRACTOR
 Control Test
 the degree of direction and control over a worker
 Ownership of Tools
 Chance of Profit
 Risk of Loss
 Organization Test
is an individual’s work an integral part of business
operations of the company?
COMPANY DO’S:
 Require a written contract for services executed
by the contractor.
Include a termination provision in the contract with notice of no
less than an employee’s entitlement under the Employment
Standards Act – do not make reference to the Act in the
contract.
 Make the contract for a definite term or task.
 The contract should indicate that the person is an independent
contractor and not an employee.
 The contract should state that the contractor is responsible for
paying all Government remittances to the appropriate agencies.
It is a good idea to obtain an indemnity from the contractor to
pay remittances required by Government agencies in the future.
COMPANY DO’S:
 Clearly define the scope of authority provided to
the contractor – for example, the contractor may not enter into
contracts on behalf of the company.
 The contract should indicate that the contractor is free to
provide services to others.
 The contract should contain a confidential information clause.
 Ensure that adequate consideration is provided for the
contractual relationship.
 Require invoices for services from the contractor.
COMPANY DO’S:
 Clearly sever a prior employment relationship before entering
into a contractual relationship.
 Consider the application of relevant taxes – GST, HST, etc.
 Require the contractor to obtain a G.S.T. number and to charge
or remit G.S.T. to the Government.
 Where transportation services are provided, specify that the
contractor is responsible for the vehicle and all of its expenses.
 Permit the contractor to hire employees or subcontractors.
COMPANY DON’TS:
 Include a non-solicitation/anti-competition clause in the contract
 Refer to the contractor as a commissioned sales person or
speak of commission sales or salaries in the contract.
 Provide T4 slips.
 Exert control over the contractor’s hours of work, vacation time,
or subject the contractor to company supervision or
performance evaluations.
 Allow the contractor to use company stationary or business
cards.
COMPANY DON’TS:
 Supply a permanent workstation or office space or encourage
the contractor to use company equipment or company staff as
assistants.
 Restrict the number of clients that the contractor can serve.
 Prevent the contractor from soliciting his/her own clients or set
quotas for the contractor.
 Require the contractor to comply with company policies and
discipline procedures.
 Provide medical or disability benefits or vacation pay.
EMPLOYEE MANAGEMENT DO’S
DO:
 Have regular performance reviews
 Create a paper trail
 Show the level of performance required
 Communicate your expectations
 Give clear, prompt and consistent instruction
 Give written instruction
 Give warning memo
 Provide training
DUTY TO ACCOMODATE
DO:
 Listen to the Employee
 Work with the Employee
 Make business needs known
 Ask for medical information from Employee’s physicians
 Tolerate absenteeism that is disability related
 Accept a modified work schedule that is reasonable
 Be sensitive to Employee concerns
 Keep medical information confidential – Need to Know Only
DUTY TO ACCOMODATE
DON’T:
 Harass the employee for
medical information
 Prefer employer’s opinion over
medical opinion
 Send the employee to a company
doctor, unless exceptional circumstances
 Treat the employee as if she/he is malingering
 Discipline for disability related absence
 Intimidate or bully the employee
 Refuse to deal with the employee’s lawyer
RELEVANT LEGISLATION RE:
WORKPLACE CONDUCT
Occupational Health and Safety Act, Bill 168
Currently, employers who contravene the Act are guilty of an offence and face fines pursuant to
section 66.
Bill 168 amends section 1 (1) to include the following definitions:
"workplace harassment" means 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;
"workplace violence" means,
(a) the exercise of physical force by a person against a worker, in a workplace, that causes or
could cause physical injury to the worker,
(b) an attempt to exercise physical force against a worker, in a workplace, that could cause
physical injury to the worker,
(c) a statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise
physical force against the worker, in a workplace, that could cause physical injury to the worker.
The Bill will require employers with more than 5 employees to develop a program to implement a
workplace violence and harassment policy. The program must include measures for workers to
report incidents of workplace harassment and set out how the employer will deal with incidents
and complaints of workplace harassment.
The Bill comes into force on June 15, 2010.
Occupational Health and Safety Act,
Bill 168
Bill 168 outlines many requirements for Ontario employers including:







Specific assessments to measure the risk of workplace violence
Measures to control the risks identified in these assessments including procedures for
reporting violence, getting immediate assistance when violence is likely to occur, and
guidelines for conducting investigations and handling complaints
Written and posted policies and procedures addressing these risks
Employee training in these policies and procedures
Reasonable steps to prevent domestic violence in the workplace
Disclosure of information about employees with a history of violent behaviour
Continued conduct of assessments to ensure the policies protect employees
Penalties for failed compliance include personal fines up to $25,000 or imprisonment for a term
of not more than twelve months or both. Corporations may be fined up to $500,000.
An employee has the right to refuse to work if the employee believes that he/she is in danger of
becoming a victim of workplace violence.
DISMISSAL
What is Constructive Dismissal?
 Demotion
 Unilateral reduction in salary
 A hostile work environment (problem managers)
 Geographic transfer
 Change in commission structure or method
of remuneration
DISMISSAL
Just Cause v. Without Cause
Just Cause:
 No notice or pay in lieu required
 Requires serious misconduct (i.e. theft) by employee, or gross
incompetence or insubordination
 Warnings must be issued
 A reasonable opportunity to explain, or improve, must be
given
Without Cause:
 Notice or pay in lieu required pursuant to Employment
Standards Act, or Canada Labour Code; and common law
The Employment Standards Act, 2000
Employer notice period
57. The notice of termination under section
54 shall be given,
(a) at least one week before the termination, if the employee’s period
of employment is less than one year;
(b) at least two weeks before the termination, if the employee’s period
of employment is one year or more and fewer than three years;
(c) at least three weeks before the termination, if the employee’s
period of employment is three years or more and fewer than four
years;
(d) at least four weeks before the termination, if the employee’s period
of employment is four years or more and fewer than five years;
The Employment Standards Act, 2000
Employer notice period (Continued)
(e) at least five weeks before the termination, if the
employee’s period of employment is five years
or more and fewer than six years;
(f) at least six weeks before the termination,
if the employee’s period of employment is
six years or more and fewer than seven years;
(g) at least seven weeks before the termination, if the employee’s
period of employment is seven years or more and fewer than eight
years; or
(h) at least eight weeks before the termination, if the employee’s
period of employment is eight years or more. 2000, c. 41, s. 57.
The Employment Standards Act, 2000
Pay instead of notice
61. (1) An employer may terminate the employment
of an employee without notice or with less notice
than is required under section 57 or 58 if the employer,
(a) pays to the employee termination pay in a lump sum equal to the
amount the employee would have been entitled to receive under section
60 had notice been given in accordance with that section; and
(b) continues to make whatever benefit plan contributions would be
required to be made in order to maintain the benefits to which the
employee would have been entitled had he or she continued to be
employed during the period of notice that he or she would otherwise
have been entitled to receive.
The Employment Standards Act, 2000
Entitlement to severance pay
64. (1) An employer who severs an employment
relationship with an employee shall pay
severance pay to the employee if the employee
was employed by the employer for five years or more and,
(a) the severance occurred because of a permanent discontinuance of all or
part of the employer’s business at an establishment and the employee is
one of 50 or more employees who have their employment relationship
severed within a six-month period as a result; or
(b) the employer has a payroll of $2.5 million or more.
The Employment Standards Act, 2000
Calculating severance pay
65. (1) Severance pay under this section
shall be calculated by multiplying the
employee’s regular wages for a regular
work week by the sum of,
(a) the number of years of employment the
employee has completed; and
(b) the number of months of employment
not included in clause (a) that the
employee has completed, divided by 12.
Canada Labour Code
DIVISION X
INDIVIDUAL TERMINATIONS OF EMPLOYMENT
Notice or wages in lieu of notice
230. (1) Except where subsection (2) applies, an employer who
terminates the employment of an employee who has completed
three consecutive months of continuous employment by the
employer shall, except where the termination is by way of
dismissal for just cause, give the employee either
(a) notice in writing, at least two weeks before a date specified in
the notice, of the employer’s intention to terminate his
employment on that date, or
(b) two weeks wages at his regular rate of wages for his regular
hours of work, in lieu of the notice.
Canada Labour Code
DIVISION XI
SEVERANCE PAY
Minimum rate
235. (1) An employer who terminates the employment of an
employee who has completed twelve consecutive months of
continuous employment by the employer shall, except where
the termination is by way of dismissal for just cause, pay to the
employee the greater of
(a) two days wages at the employee’s regular rate of wages for his
regular hours of work in respect of each completed year of
employment that is within the term of the employee’s
continuous employment by the employer, and
(b) five days wages at the employee’s regular rate of wages for his
regular hours of work.
REASONABLE NOTICE
 Employment Standards Act is a minimum only
 Ball park/range of notice
 Factors – Age, Seniority, Length of Employment, other issues
 Month per year maxim – Right or Wrong
 Bad faith damages
 Benefits & Pension
 Disability Plan Issues
HOW TO TERMINATE
 Written Notice
 Private Meeting, Little Said
 Respectful
 Make Notes
 Securing Confidential Information and Property
 Record of Employment in 5 days
 Termination Pay due in 7 days or next payroll
 Job Placement Assistance
MANDATORY
RETIREMENT
As of December 12, 2006,
there is no mandatory retirement at age 65
in the Province of Ontario
WHAT DOES THIS MEAN?
Willson Lewis LLP
EMPLOYMENT LAW:
HIRING, FIRING, AND
EVERYTHING IN BETWEEN
SATISFIED CLIENTS ARE OUR GREATEST STRENGTH!
Offering experienced counsel practising in all aspects of civil and commercial litigation including employment law,
construction, family, equine law, wrongful dismissal, tax disputes, estate and property disputes, and collections
1183 King Street West, Suite 200, Toronto, Ontario M6K 3C5
Tel: 416 534-9504 Fax: 416 534-9503 www.willsonlewis.com