An interesting case crossed my desk this week. It is Whiteman v. Eastern Lift Truck Inc. 183 A.C.W.S. (3d) 87. The case was recently decided by Mr. Justice Ray of the Superior Court of Justice.

What jumped out at me was how efficiently the plaintiff and his counsel made use of the procedural tools available to get a good result with minimal expense. Counsel for the defendant also deserves kudos as he agreed with the suggestion to deal with the case in this fashion.

The plaintiff was a forklift mechanic who earned $58,000 a year. He had worked for the employer for six years. No cause was alleged. The issue to be determined was the length of notice to which he was entitled, as well as whether the termination violated the Human Rights Code of Ontario.

Rather than wade through examinations for discovery and a trial, which would have made little economic sense since the plaintiff’s case was worth less than $30,000, plaintiff’s counsel brought a motion for partial summary judgment under Rule 76.07 of the Rules of Civil Procedure. Simply put, this rule allows a judge to render a decision when he or she determines there is enough information to do so, and where the judge determines that there is no need for cross examination of the parties. It appears that the evidence used was the plaintiff’s own affidavit that set out his job search. This was enough for the judge to conclude that the plaintiff was entitled to five-and-a-half months’ notice. The human rights issue, which could not be addressed using this process, was left undetermined. This will mean that it can be tried on its own at a later date, or settled between the parties. I am told by counsel that the matter took all of two hours to be heard in court.

If you are an employment lawyer reading this, ask yourself how many of the wrongful dismissal files sitting on your desk could be handled this way. If you are an employer, ask yourself the same question. If you are an employee considering engaging the services of counsel, make sure you ask if your dispute can be determined as simply and as efficiently as this. I think this case is a procedural sign of things to come.

Janice Rubin

Janice Rubin and I have been spending a significant amount of time updating the “Law of Termination in Ontario” book, originally published in 1995. What I’ve come to realize is that while there are a number of technical points which have changed in the Employment Standards Act, 2000 since the book’s debut 15 years ago, the basic employment law concepts remain the same. They are:

1) Employees are still entitled to reasonable notice of termination and the main elements of that calculation remain the same;

2) Termination with cause is still the “capital punishment of employment law”, making termination for cause very difficult for employers to rely on;

3) Termination provisions (especially provisions only entitling employees to Employment Standards Act, 2000 minimums or little more) need to be carefully and expertly crafted to ensure that the employer can rely on them when terminating employees;

4) Most employment law cases are about the sufficiency of notice. The “extras”, such as Wallace damages, mental distress, punitive damages, etc., are generally only awarded in the most extreme cases;

5) An employer’s breach of legislation such as the Human Rights Code, the Employment Standards Act, 2000, the Environmental Protection Act, the Pay Equity Act, the Occupational Health and Safety Act and/or the Workplace Safety and Insurance Act, followed by a termination of an employee can often lead to serious and unforeseen consequences, including an award of the “extras” described above.

As the French saying goes, plus ça change, plus c’est la même chose (the more things change, the more they stay the same).

Hena Singh

Over the last couple of months, we have seen our employer clients engage an increasing number of “independent contractors”. This can be an effective way of getting overflow work done without adding to the headcount, and adding fresh blood to an organization.

Here are a few things to look for when structuring these arrangements:

1. Put it in writing. Even these arrangements can end in tears if there is a disagreement on the basic terms. Your best bet is to set out the agreement in writing. Things that should be included are: what the project is; what the term is; where the person will work; and what the compensation will be. The other very important thing to include is what happens if there is a termination.

2. The duck test. Just because you call your new person an independent contractor, doesn’t necessarily mean that they aren’t an employee at law. If it looks like a duck, and walks like a duck, it may just be a duck, or in this case an employee to whom you may have to pay statutory or common law notice. An independent contractor is just that – independent. If you fully integrate that person into your operation, and if you exercise control over how they do their work, there is a chance that they will be an employee at law. Look to set up arrangements that look like a bargain between two equals, with a substantial amount of control and flexibility resting with the contractor.

3. Leaving it too long. The longer the relationship lasts, the greater the possibility that someone – and that could mean Revenue Canada – will conclude that it is really an employment relationship. In that case, the employer will be on the hook to pay income tax withholdings and CPP and EI premiums for the employee, often calculated from the beginning of the relationship. This can be costly, and may be difficult to collect from the employee.

Janice Rubin

For those of you following the progress of Bill 168, which proposes to add explicit protections for employees against workplace violence and harassment, you will know that one of the trickier elements of the Bill is the requirement that employers perform a risk assessment of the workplace. The purpose of this assessment is to determine if any parts of the employer’s operation are vulnerable to acts of violence.  Unfortunately, in its current form, the Bill does not explain how such an assessment is to be done.

I had a conversation with a client just last week that provided a great example of the kind of potential risk that an employer might uncover through an assessment.  This client is a retailer, and operates out of several malls.  On occasion, members of the public have come into the store and have been difficult to deal with.  Some have been overly aggressive. Even more rarely, members of the public have behaved in a violent fashion in the presence of staff. Luckily, to date, this violence has been directed at the store itself, i.e. knocked down and smashed merchandise, not the employees.

When I was reviewing this situation with the client, they mentioned that they did not know how many of these incidents had occurred and which stores were more susceptible to customers behaving this way. Most importantly, the client indicated that they did not have emergency security buttons in the store, they did not have an established security protocol, nor did they train their employees to know what to do if there was an act of violence or a threat of violence.

I suspect this is not an uncommon situation for many businesses.  I plan to review this situation with my client in anticipation of the Bill coming into law.  For those of you struggling with how to approach an assessment, these types of incidents might be a good place to start.

Janice Rubin