December 19, 2016 By: Karine Dion
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The law is forever changing. With every passing day and year, all levels of court throughout this country render decisions that have an immediate and pronounced impact on all of us.

This has been an especially good year for employees.

Without cause termination of federal employees not permitted

The most significant employment law case to emerge in 2016 is no doubt the Supreme Court of Canada’s decision in Wilson v. Atomic Energy of Canada Limited. The Court confirmed that federal employees may not be dismissed without cause. This is in stark contrast to provincial employees who are not afforded that same type of protection, and more akin to what you see in the labour world where collective agreements are in play. Therefore, if the Canada Labour Code applies to you and your employer, you can only be dismissed for cause, or where there is a legitimate lack of work or the discontinuance of a function. For a more in-depth analysis of this case, please refer to our previous blog post Wilson v. Atomic Energy – Supreme Court Drops Atomic Bomb on Unjust Dismissal Regime.

Term contracts

Another great case for employees was Howard v. Benson Group Inc. (The Benson Group Inc.), in which the Ontario Court of Appeal confirmed that when an employee is working pursuant to a term contract, unless there is an enforceable termination clause in that contract, an employer can only terminate the contract by paying the employee what remains of the term (which can be quite significant). Most importantly, however, the Court confirmed that an employee does not need to mitigate these damages. This is just one more example of why term contracts are often viewed by employment lawyers as a minefield that is difficult to navigate and almost never worth its trouble (from the viewpoint of the employer, that is). For more information on this case, please refer to our previous blog post Fixed-term Contracts: To Mitigate or Not to Mitigate?.

Damage awards for bad treatment and loyal employees

The Ontario courts have also proved more willing to provide higher damages awards to employees who have either been badly treated by their employer or that have been loyal employees for decades.

In Strudwick v. Applied Consumer & Clinical Evaluations Inc., the Ontario Court of Appeal awarded almost $250,000 to a deaf employee whose employer tried to make her workplace so intolerable that she would just quit. When she refused, she was terminated for cause. Out of the total amount of damages awarded, the employee took home $40,000 in human rights damages, just under $24,000 in damages for intentional infliction of mental distress, $70,000 in aggravated damages, and $55,000 in punitive damages. These types of damage awards are not often seen, and are generally reserved for those employers who treat their employees in what can only be described as a despicable way. Even then, the judgement suggests that had this employee sought a higher award in her claim, she probably would have succeeded. For a more in-depth review of this decision, please refer to our previous blog post The Strudwick Decision – When Employers Get What They Deserve.

Although true independent contractors are not owed the same upon termination as are employees or even dependent contractors, many “independent contractors” are not independent at all. In Keenan v. Canac Kitchens Ltd., the employer tried to get away with paying less to two married employees it terminated by calling them “independent contractors”. However, the Ontario Court of Appeal considered them to be dependent contractors instead; this category of workers has rights more akin to employees, including being entitled to reasonable notice upon termination. Given the various Bardal factors at play, the Court determined that the employees were entitled to 26 months of reasonable notice, an award higher than the notional “cap” of 24 months (although never really a “cap” per se, 24 months has historically been at the higher end of reasonable notice damages awards). For more information on this case, please refer to our previous blog posts Court of Appeal affirms 26-month notice period for dependent contractor and Independent Contractor? Call Me What You Want, You Still Owe Me Money.

Protecting vulnerable employees

It has not only been the courts that have made favourable judgments for employees, but the government has also introduced bills aimed at the protection of vulnerable employees.

Bill 132, named the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), came into force on September 8, 2016. With respect to employment law specifically, this bill expands on the workplace violence and harassment framework already contained in Ontario’s Occupational Health and Safety Act (“OHSA”). Bill 132 introduces a new definition for “workplace harassment” as set out in the OHSA, which now includes “workplace sexual harassment”. For a more fulsome review of these changes, please refer to our previous blog post Bill 132 – Are Your Workplace Violence and Harassment Policies Compliant?.

Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code, was introduced on May 17, 2016. It has yet to pass through all readings at the Senate level, but this Bill is passing through the readings quite quickly, so I imagine it will become law soon into the new year. The main purpose of this Bill is to include “gender identity” and “gender expression” as prohibited grounds of discrimination within the Canadian Human Rights Act and, more specifically, to protect transgender individuals from discrimination. This change would only affect those who work for federally regulated workplaces; but have no fear, these same prohibited grounds of discrimination already exist in Ontario under its Human Rights Code. For a more in-depth analysis of this Bill and its purpose, please read our previous Labour Law blog post Bill C-16: A Further Step towards Protecting Transgender Canadians.

Changing Workplaces Review

Finally, the Ministry of Labour has been undergoing a massive undertaking known as the Changing Workplaces Review. Two Special Advisors led the first round of consultations by reviewing both Ontario’s Labour Relations Act, 1995 and its Employment Standards Act, 2000 to determine what changes need to be made to both statutes, if any, given how the law has been evolving over the last several years. The Special Advisor’s Interim Report was released on July 27, 2016, and although touching on a multitude of subjects, took a very hard view on the definition of “employee”. For more information on this review, see our previous blog post on the subject: Changing Workplaces Review: Update The Definition of “Employee”?. The Final Report has yet to be released, but we will keep our eye out to provide our readers with useful information once it does.

Conclusion

Navigating through the multitude of case law, in addition to understanding the litigation process, is not an easy feat. At Nelligan O’Brien Payne, our Employment Law group aims to stay on top of all important changes as they arise, whether they be legislative, common law, or even simply contemplated changes. However, regardless of how the law develops, the steps necessary to resolve your claim does not change as much. If you would like to learn more about the steps in a typical litigation matter, please review our blog post on the topic, Navigating the Litigation Process.

This has been a fantastic year for employees, and we have every hope that 2017 will be another year of positive change to help protect those that need it the most, with one of the most valuable and important parts of their lives: their work.

The Employment Law Group at Nelligan O’Brien Payne would like to wish all of our readers a wonderful and safe holiday season. Until next year!

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.