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My boss says I quit, but I didn’t!

Mar 06, 2017

We might think that it would be obvious when someone quits, but disputes about resignations are actually quite common. Typically what we see is a boss who says that an employee quit and an employee who denies it. A lot rides on who’s right – an employee who quits may not receive termination pay.

When an employee seeks our advice on this issue, we ask for details about what was said and done. We’re looking to see whether it was reasonable for the employer to have concluded that the employee quit. As a result, we need to know if you gave your boss a resignation letter or simply stormed off after a disagreement.

We also need to know what you did following the alleged resignation. Did you miss work for a week or immediately tell your boss that it was a mistake? The more that it looks like an employee’s comments were a response to a tense situation rather than a well-thought out plan, the more sympathetic courts will be.

For instance, in the recent decision, Johal v Simmons da Silva LLP, the Court concluded that the employee didn’t quit even though she handed in her security pass, collected her personal belongings and went home early. In siding with the employee, the court considered, amongst other things, the employee’s age (62), length of service (27 years), and seniority. These factors all suggested that she wouldn’t have up and quit. In addition, the employee never actually said that she was quitting and only left after receiving unexpected news of significant restructuring.

In coming to its conclusion, the Court cautioned employers against jumping at a possible resignation to avoid liability. An employer is required to do more than “let sleeping dogs lie” and must actually make inquiries about “the Plaintiff’s true and unequivocal intention”.

If your boss says you resigned and you’d like an assessment of your case, contact us. Symes Street & Millard has extensive experience representing employees in all types of employment disputes.

By Mika Imai; photo by rocketace with modifications, used under creative commons commercial license.


I’ve been fired, what do I get?

Feb 07, 2017

4069798055_dcca0a18fc_oThis is the most common inquiry we get. Unfortunately, there’s no easy answer: your entitlement depends on a whole range of factors. While we explore some of these below, this shouldn’t be taken as legal advice. What you’re owed will depend on your unique circumstances.

Am I owed anything at all?

If your employer had a good reason to fire you, you may be out of luck. Don’t be discouraged though, this is generally a hard standard to meet!

My employer didn’t have a good reason to fire me, now what?

If your employer can’t justify the termination, they must either:

  • Give you advance notice of your end date (i.e. working notice); or
  • Pay you the equivalent of the advance notice period (i.e. pay in lieu of notice).

In both cases, the notice period is the same. The only difference is whether you’re required to work during the notice period. There are two main places we look to evaluate the amount of notice an employee is owed.

  1. Employment Standards Act

The first place we look is the Employment Standards Act (“ESA”). The ESA sets out the basic notice entitlements for most employees. It’s based on the following formula:

Period of Employment

Less than 3 months                                        No notice

3 months or more, but less than 1 year         1 week

1 year or more but fewer than 3 years          2 weeks

3 years or more but fewer than 4 years        3 weeks

          And so on, up to a maximum of 8 weeks

In some circumstances, the ESA will also entitle employees to severance pay up to a maximum of 26 weeks.

2. Common Law Notice

Aside from ESA notice, most employees are entitled to “common law notice”. This is what you might be awarded if you went to court. Unlike ESA notice, there is no mathematical formula for common law notice. Instead, courts try to determine what would be a “reasonable” amount of time for you to find a new job. Notice is intended to act as a bridge to your next job, it is not intended to punish your employer for firing you.

Common law notice varies a lot, but it’s often in the range of one month per year of service. (The amount partly depends on whether you’ve continued to look for work. If you haven’t, this can shorten your notice period.)

Because common law notice can be quite high, some employers will try to use employment contracts to limit employee notice. If you signed a contract or received a written offer letter at any point during your employment, it is important to have a lawyer review it to determine if it affects the amount of damages that you may be able to claim. Keep in mind that these contracts and termination clauses are not always valid or enforceable.

What if my termination was discriminatory?

If you were terminated for discriminatory reasons, such as because of your race, religion, disability (or other grounds set out in the Ontario Human Rights Code), you may be able to claim additional damages under the Code. These damages could include compensation for loss of earnings and for mental distress.

Is that all?

In most cases, yes. However, if there are extenuating circumstances, you may get something more. This could include the employer’s use of harassing, abusive or discriminatory language when terminating you. The amount that you’d receive in these circumstances is highly contextual and can’t be estimated without additional information.

Of course, every case is different and it is important to get legal advice to find out what sort of damages and remedies you may be entitled to after your employment has been terminated.

If you’ve been fired and are seeking an estimate for what you’re owed, contact us. Symes Street & Millard has extensive experience representing employees who have been wrongfully dismissed.

By Mika Imai; photo by James 2 (Flickr), used under creative commons commercial license.


Providing employment coaching can help reduce wrongful dismissal payouts

Jan 17, 2017

People who have lost their jobs can sometimes benefit from talking to a professional about how to get back into the job market. Such advice has many flavours, such as traditional outplacement services, career counseling or a job coach.

Employers are not legally obligated to provide such help to staff whose employment has recently been terminated. Some employers nonetheless see it as the right thing to do.

Now, an evolving area of the law suggests that, in at least some cases, the offer of career counseling might also help protect the employer’s bottom line.

It may come as a surprise to some, but an employee’s post-employment job search is relevant to assessing wrongful dismissal damages. That’s because such damages are intended to help bridge an employee to their next job; they’re not supposed to be a windfall to the employee. Following that logic, if an employee doesn’t look for a new job after termination, it can reduce or eliminate the employer’s obligation to pay wrongful dismissal damages.

The catch is that the burden of proof is on the employer, not the former employee, to show that they failed to look for other work. That’s where career counselling services come in.

The case of Maxwell v United Rentals (2015) provides this sobering commentary:

[I]t is significant that the defendant offered no assistance to the plaintiff in seeking and obtaining alternate employment.  Although an employer is not obligated to provide such assistance to the dismissed employee, that is an important factor to be taken into consideration when the employer then accuses of the former employee of not taking adequate steps to secure alternate employment. As I said in Aucoin:

I am not suggesting that the employer has an obligation to provide outplacement counseling to a dismissed employee or to bring job opportunities to the intention of the former employee but if an employer intends to argue the failure to mitigate on the part of the former employee, it would be well advised to present evidence of assistance that was offered to the terminated employee during his or her job search. [citations omitted]

coaching.jpgThis line of reasoning has been picked up in other contexts. In Drysdale v Panasonic Canada Inc (2015), the employer had collected 370 job ads in an attempt to prove that other work was readily available to the employee if he had been looking hard enough. The judge was not impressed, and instead found:

The defendant offered the plaintiff no assistance in searching out these job postings and therefore it does not lie readily in the defendant’s mouth to criticize the plaintiff afterwards for not pursuing these specific job opportunities.  … Here, the defendant raised the issue of available job postings after the fact and only in the course of this litigation.  Prudence would have dictated that the employer make this information available to the employee in a timely way to assist him in his transition. 

These cases were more recently applied in Merritt v Tigercat Industries (2016), and Ontario courts have likely not seen the last of this type of reasoning.

For people whose employment has recently been terminated, there may be a feeling that such “help” from their former employers is intrusive and unwelcome. However, they turn down the assistance at their peril, since an employer will almost certainly introduce evidence of the refusal to show an employee wasn’t serious about job hunting.

On the flip side, these cases potentially put employers in a double bind. They bear the onus of proving that there was other suitable work in the job market. But unless they were actively helping — either by paying for a career coach or by providing job listings they intended to rely on — they risk being greeted with skepticism by a judge.

As a result, there may be discomfort from both employers and employees about this issue. If you’re on either side of the table, it may be wise to consult with a lawyer to determine the best course of action.

By Marcus McCann; photo by Kullez (Flickr), used under creative commons lincence

Symes Street & Millard specializes in employment and human rights law and has represented parties in many cases both inside and outside of the courtroom.


City calls for sexual harassment training for bar staff

Dec 14, 2016

kwtcThe City of Toronto quietly adopted a Motion on November 8, 2016 calling for better training for bartenders and waiters to help them recognize and intervene in cases of sexual harassment and sexual violence. The Motion was introduced by Councillor Kristyn Wong-Tam and adopted 35-4.

Such training would be delivered through Smart Serve, which is a mandatory program for anyone who serves or handles alcohol in the course of their employment in Ontario. The program is run by a not-for-profit but overseen by the Province, meaning that the City’s motion isn’t binding on Smart Serve.

However, the City joins a growing list of organizations calling for this training, including the Canadian Federation of Students and the Ontario Coalition of Rape Crisis Centres.

From a legal education perspective, Smart Serve is a bit of an anomaly. Not a lot of workplaces require the completion of a compulsory program to explain legal obligations to new sector workers. (Another example is WHMIS training, which is mandatory health and safety education for those who work with hazardous materials.) But that’s precisely why groups are calling on Smart Serve to deliver this information, as opposed to using another mechanism.

At the moment, Smart Serve has a strong focus on teaching those entering the profession that individual employees can be sued if they overserve a customer who then gets behind the wheel of a car.

When it comes to sexual violence, Smart Serve only refers to sexual harassment of patrons in the context of behavioural changes that might take place as inhibitions wane. The training does not contain advice specifically about how server should intervene in such situations. It also doesn’t address other bar scenarios, such as: patrons sexually harassing staff; instances of intimate partner abuse; the use of roofies; and other predatory behavior.

These are areas where public legal education would be really useful. The Province of Ontario and Smart Serve may also wish to consider, if it goes down this road, touching on other common human rights issues that arise in bars and restaurants. Such topics could include:

  • accessibility for patrons with disabilities;
  • racialized assumptions about patrons;
  • sexualized uniforms and attire;
  • gender segregated spaces like bathrooms; and
  • the rights of breastfeeding customers.

If Smart Serve does undertake this kind of an update, there is ample opportunity for improvement. Better human rights training would benefit everyone: patrons, servers and bar owners alike.

Symes Street & Millard specializes in employment and human rights law. It has expertise in advocacy both inside and outside the courtroom, as well as in policy development.

By Marcus McCann; photo from ward27news.ca


Do I have to give my employer notice that I’m quitting?

Nov 17, 2016

How many of your employees are in a hurry to leave at 5pm?

The short answer is, yes, employees must give their employer “reasonable” notice before quitting.

Quantifying how much notice is “reasonable” depends on the circumstances. The basic idea is that employers ought to be given enough notice to find a replacement or make alternative arrangements.

There is no clear-cut formula (e.g. I worked X number of years therefore I must give my boss X weeks’ notice). Rather, it often boils down to how essential the employee is to company profit and/or success. A lower ranking employee might be expected to give notice in the range of two weeks, but it can be longer for senior employees.

While employees should take these legal obligations seriously, they can’t be forced to keep working. Instead, the employer can sue for its losses. But even this is unlikely. Most employers won’t sue because legal actions are time-consuming and expensive.

Having said that, an employee’s risk of a law suit increases if multiple employees leave at the same time or a high-ranking employee leaves to join a competitor.

Employees should also be sure to review their employment contract. If it states how much notice they’re expected to give, this may be deemed the “reasonable” amount in the circumstances. An employee who leaves earlier still can’t be forced to work, but it may mean the employer has an easier path to a lawsuit.

As a practical matter, employees should consider giving as much notice as possible. Ending on amicable terms and getting a positive reference can be hindered when an employee leaves abruptly.

Symes Street Millard LLP provides expert advice to both employers and employees seeking to end an employment relationship. Contact us at the number above if you would like to discuss your legal options.

By Mika Imai; photo by Alan Cleaver (Flickr) used under cc licence


Human rights complaints against Cleveland baseball team name and logo get creative

Oct 25, 2016

Indians at Orioles July 1, 2012

As we reported on October 18, 2016, two human rights applications were filed by Douglas Cardinal against Rogers and Major League Baseball (“MLB”). The applications assert discrimination based on the Cleveland team name, the Cleveland Indians, and the team logo, the graphic image commonly known as the Chief Wahoo (the team also sometimes uses a letter “C” as shown in the attached image).

One of the claims is that Rogers and MLB published signs or symbols intended to incite discrimination contrary to section 13 of the Ontario Human Rights Code (the “Code”). Section 13 is a rarely used part of the Code and the decision to rely on it is an interesting one.

Unlike the average discrimination claim, section 13 requires analyzing a respondent’s intentions (i.e. whether a respondent intended to incite discrimination). Intentions are a tricky thing to prove because a respondent rarely admits wanting to discriminate. We also rarely now see the type of explicit racial discrimination where a business openly bans certain people based on race.

Because of this complexity, Mr. Cardinal argues that the focus should not be on whether Rogers and MLB wanted to incite discrimination by using the Cleveland name and logo, but whether, regardless of desire, it was reasonably foreseeable that using the name and logo would incite discrimination. Mr. Cardinal claims that reasonable foreseeability is made out:

“The continued presence of racist symbols in society, in and of itself, fuels additional racism. Most importantly, such symbols normalize racist conduct by others. When a Major League Baseball [. . .] team attracting millions of viewers uses a racist symbols [sic], others come to believe that such racism is acceptable. The Name and the Logo perpetuate the historical disadvantage suffered by Indigenous Persons by using them as a historical caricature.”

In considering Mr. Cardinal’s argument, the Human Rights Tribunal of Ontario (the “Tribunal”) will consider the other cases, though limited, where section 13 was alleged.

For instance, in Entrop v Imperial Oil Ltd, the Ontario Court of Appeal concluded that the good faith implementation of a policy on alcohol and drug testing was inconsistent with an intent to discriminate. By focusing on the employer’s “good faith”, the Court adopted an interpretation of intention that is more in line with the type of reasoning that Mr. Cardinal is trying to avoid.

On the other hand, Mr. Cardinal may find support in Bowater v Communications Energy and Paperworkers Union of Canada. In Bowater, Arbitrator Roberts concluded that “regardless of the true intention of the employer” the job posting language in question set out a threshold level of physical health without regard to accommodations. Accordingly, in finding a violation of section 13, Arbitrator Roberts drew a distinction between what the employer may have intended and how it was reasonably received.

Ultimately, this part of the case will likely turn on whether the Cleveland team’s name and logo are sufficiently offensive on their face that Rogers and MLB should have known that they would incite discrimination. Given the limited case law decided under this section, the Tribunal’s decision is difficult to predict. Regardless of the outcome, the Tribunal’s interpretation of “intention” will likely dictate how widely section 13 of the Code is used going forward.

By Mika Imai; photo by Keith Allison  (Flickr) used under cc license


Believe it or not, no one is trying to punish the Cleveland baseball team

Oct 18, 2016

Behind Douglas Cardinal’s failed injunction against the Cleveland baseball team, there is a human rights complaint. Two, actually. And those complaints will proceed in very different environments than what took place in Ontario Superior Court on October 17. As was made clear yesterday, the complaints allege that the name of the Cleveland franchise and their Chief Wahoo cartoon logo are discriminatory.

While it may not always seem this way, human rights regimes in Canada are intended to be ameliorative and remedial, not punitive. This principle prioritizes outcomes over blaming and finger-pointing.

It may seem like legal hair-splitting, but as a practical matter, this principle can really shape cases – sometimes for the better, sometimes for the worse.

For defendants like the Cleveland baseball team, the remedial principle removes a possible defence: lack of intent to discriminate. The Tribunal has been really clear that the respondent’s intent isn’t relevant, and that’s perfectly in keeping with the legal system more broadly. In order to punish a person, courts at least theoretically require some proof of moral culpability. However, when the law is merely trying to correct some harm — which is the case in many civil suits — intent will usually play only a secondary role, if at all.

On the other side of the coin, for applicants like Mr. Cardinal, the challenge will often be to prove a harm. And the key word is “prove”: the onus is on the applicant. Here, there is no doubt that racism toward Indigenous people is a major problem in both Canada and the U.S., and that it results in real and measurable harms. The more difficult part of the case will be to connect Cleveland’s name and logo to the downstream harms.

The remedial principle has other practical consequences for this case and others. Notably, compared to many American suits, the amount of money awarded by Canadian tribunals is usually very modest. Human rights awards are not intended to be punitive, and rarely does the Tribunal award more than five figures to an applicant.

Instead — and this is likely to strike fear into the heart of Cleveland’s front office — the Tribunal is more free than a Court to make specific orders about conduct going forward. Such orders could involve mandatory training, posting information publicly, and, yes, forbidding the logo to be used on the field here in Toronto.

Bottom line: the decision to proceed in Canada before human rights tribunals is inevitably going to shape how the case is litigated. Whether or not you think that Cleveland ought to be punished, it’s simply not the focus of the next stage in the litigation.

 

Symes Street & Millard specializes in employment and human rights law and has represented parties in many cases both inside and outside of the courtroom.

Photo by Erik Drost (Flickr) used under cc licence


What to look for in a contingency fee agreement

Sep 29, 2016

Otto Dix - Portrait of the Lawyer Hugo SimonsYou may have heard advertisements for lawyers on AM radio which proudly proclaim that at such-and-such a firm, there are no fees unless the client wins. And you may have wondered, what’s the catch?

Technically, there is no catch. Those ads are simply referring to contingency fee agreements. That’s when the obligation to pay a lawyer’s fee is only triggered by a positive result — for example, winning the case or negotiating a settlement. The fee is usually a percentage of the amount awarded to the client.

But not all contingency fee agreements are created equal. It’s important to read any agreement carefully, and think about it before you sign on the dotted line.

Here are some things to watch out for, if you’re a potential client, reviewing a contingency fee agreement:

LEGALESE

Some contingency fee agreements are long and laced with unneeded verbiage like “heretofore” and “aforementioned”. Such language can get in the way of understanding what a client is agreeing to.

If the language is confusing, it’s okay to ask for clarification before you sign, says Ben Millard, a partner at Symes Street & Millard.

“At the end of the day, a retainer agreement is like any other contract. You need to read it and understand it before you sign it,” says Millard. “Lawyers can be the worst culprits when it comes to stacking agreements with legalese and jargon.”

It’s not necessarily that lawyers are trying to trick their clients, Millard says. Many lawyers use that kind of elevated language in the rest of their legal work, and for some, it becomes second nature. They may not even realize that their clients are getting lost in it.

STEPPED AGREEMENTS

In some retainers, the percentage payable to the lawyer changes depending on the stage of the case. In those agreements, the percentage may be low in the early stages of litigation, but increase sharply if the case doesn’t settle quickly.

“There’s nothing inherently wrong with these types of agreements,” Millard says. “But people need to be clear about what they’re signing up for, and not stop reading after the first number.”

Every case is a little bit different, and so it’s difficult to know at the outset to know whether your case can be resolved quickly, or whether it might take longer. In other words, it’s hard to know at the beginning of your case whether you’ll be paying the lower percentage, or something higher.

“There are really two issues with stepped agreements,” Millard says. “Firstly, clients can be unclear or misled about what triggers a change in the fee structure. To some extent, that can be addressed if a lawyer clearly walks through the agreement with their client before it’s signed. And secondly, these agreements can put lawyers and their clients’ interests at odds. It can create a tension. For me, I think a transparent, flat rate is fairest, but of course different lawyers have different styles.”

BLENDED FEES

In some agreements, a portion of the legal fees is calculated on a contingency fee basis, and a portion is calculated on an hourly fee basis.

Unlike in an ordinary contingency fee agreement, the client will have to pay some hourly fee even if he or she loses. The upside is that the hourly rate is usually discounted, meaning that it’s less than it would be in a traditional retainer.

“These retainers can be difficult, because the formulas can get quite complex. In my experience, clients appreciate a flat percentage rate, but for those who are thinking about signing a blended fee retainer, the key is to run through a couple of scenarios, to see how each scenario affects the outcome.”

CONCLUSION

There is no doubt that contingency fee retainers can offer real advantages to clients, particularly those who want to avoid paying up front legal fees long before their case has been resolved. But as with any agreement, it is important that you carefully read the retainer and make sure you understand what it says and what the potential outcomes are. And when in doubt it’s okay to ask questions. For more information about the retainer options at Symes Street & Millard, contact us now.

Symes Street & Millard specializes in employment, human rights and administrative law. Contact us at the number above if you would like to discuss your legal options.

Illustration: “Portrait of the Lawyer Hugo Simons” by Otto Dix, Montreal Museum of Fine Arts

 

 

 

 

 

 


Clear language needed to disentitle employees from post-termination bonuses

Aug 22, 2016

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By Mika Imai

In 2015, the Ontario Superior Court of Justice heard two factually similar cases and came to opposite conclusions. Both cases dealt with employers who had denied bonuses to a terminated employee because he was no longer “actively employed” (a requirement under the bonus policies).

In Lin v Ontario Teachers’ Pension Plan, Justice Corbett concluded that, “where the bonus was promoted as an integral part of the employee’s cash compensation, it would be inappropriate and unfair . . . to be deprived of the bonus by reason of the unilateral action of the employer.”

Conversely, in Paquette v TeraGo Networks Inc., Justice Perell remarked: an individual is “. . . notionally an employee during the reasonable notice period; however, he will not be an ‘active employee’ and, therefore, he does not qualify for a bonus.”

Both decisions were appealed and, on August 9, 2016, Lin was upheld and Paquette overturned. In Paquette, the Court of Appeal outlined the correct approach to post-termination bonus cases:

“The first step is to consider the appellant’s common law rights. In circumstances where, as here, there was a finding that the bonus was an integral part of the terminated employee’s compensation, [the employee] would have been eligible to receive a bonus . . . had he continued to be employed during the . . . notice period.

The second step is to determine whether there is something in the bonus plan that would specifically remove the appellant’s common law entitlement. The question is not whether the contract or plan is ambiguous, but whether the wording of the plan unambiguously alters or removes the appellant’s common law rights.”

In considering the second step, the Court of Appeal found that the “active” service requirement was not clear enough to disentitle the employee to the post-termination bonus.

This new direction from the Court of Appeal should encourage employees to carefully review employment contracts for language removing their right to post-termination bonuses. Employers seeking to limit liability will need agreements with clear language.

Symes Street & Millard has extensive experience attaining compensation for employees who have been wrongfully dismissed and drafting employment contracts for employers. Contact us at the number above to discuss your options.

 

 


New legislation on workplace sexual harassment

Aug 17, 2016

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By Mika Imai

As of September 8, 2016, employers must comply with Bill 132, the Sexual Violence and Harassment Action Plan Act. Bill 132 adds “workplace sexual harassment” to the definition of “workplace harassment” under the Occupational Health and Safety Act (“OHSA”) and establishes more onerous requirements on employers. As a result, Bill 132 makes workplace sexual harassment more than an issue of discrimination under the Ontario Human Rights Code, but also a health and safety consideration under OHSA.

Prior to Bill 132, employers were required to maintain policies and programs on workplace violence and harassment. Policies had to be in writing for workplaces of six or more employees; programs did not have to be in writing. Under Bill 132, employers must now have a written program on workplace harassment. Unlike before, the program must be prepared in consultation with the committee or a health and safety representative, if any (i.e. in workplaces of six or more employees).

The requirements of workplace harassment programs, which are to be reviewed at least annually, are also more arduous under Bill 132. Previously, workplace harassment programs only had to detail reporting and investigation procedures. While those provisions remain, programs must also include measures for:

  • reporting incidents to persons other than the employer or supervisor, if they are the alleged harasser;
  • ensuring the confidentiality of identifying information about involved individuals; and
  • how the worker who allegedly experienced the harassment and the alleged harasser are to be informed of the investigation and any corrective action that took place.

Of note, Bill 132 requires that investigations be “appropriate in the circumstances”. Moreover, inspectors are empowered to order an employer to conduct an investigation by an impartial person, at the employer’s expense. These changes suggest the potential for new oversight by the Ministry of Labour.

Symes Street & Millard has extensive experience preparing workplace health and safety policies and programs. We would be happy to help you meet your obligations under Bill 132 before the September 8, 2016 deadline.


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