Kelly O’Ferrall and Tiffany Wong -
In the recent Ontario Superior Court of Justice case of Reichard v. Kuntz Electroplating Inc., the Court held that an employer was justified in its decision to terminate an employee for cause after almost 24 years of service due to the non-disclosure of a workplace affair that violated company policy and resulted in a loss of trust in the employee.
In Brown v. Canadian Imperial Bank of Commerce, Justice Strathy of the Ontario Superior Court of Justice examined the plaintiff’s motion to certify the proceeding as a class action under the Class Proceedings Act, 1992 on behalf of a class of employees of the defendants Canadian Imperial Bank of Commerce (CIBC) and CIBC World Markets Inc. (CIBCWM) (referred to collectively as CIBC).
In a decision issued on April 20th, 2012, Justice Robert Mongeon of the Superior Court of Quebec gave a decisive answer to one of the most troubling questions facing debtors and DIP lenders in reorganizations under the Companies' Creditors Arrangement Act (CCAA). Justice Mongeon’s decision in White Birch should go a long way to calming concerns stemming from last year’s decision of the Ontario Court of Appeal in Indalex, at least with regard to proceedings in Quebec.
The Indalex decision, now before the Supreme Court of Canada, caused a stir because it reduced the rank of claims that had been granted “super-priority” status in the context of CCAA proceedings. Most notably, these include claims of the debtor-in-possession (DIP) lender, which are typically accorded a rank ahead of all pre-filing creditors pursuant to the terms of the Initial Order. DIP lenders provide capital essential to permit an insolvent company to successfully reorganize its affairs, and without a guarantee of super-priority status, that capital would simply not be made available.
William Hockin and Tiffany Wong -
In the recent decision of Mady Development Corp. v. Rossetto, the Ontario Court of Appeal restored part of an arbitrator’s decision that granted a terminated executive his earned bonus amounts despite his misappropriation of his employer’s money and resources during the period to which the bonuses were attributable.
As discussed in prior articles, if your organization provides goods or services directly to the public or to other businesses or organizations and has more than one employee in Ontario, it was required as of January 1, 2012 to be fully compliant with the Accessibility Standards for Customer Service Regulation (the Customer Standard) as well as the emergency preparedness requirements under the Integrated Accessibility Standards Regulation (the Integrated Standard).
To evaluate compliance with the Customer Standard, the Ministry of Community and Social Services requires organizations with 20 or more employees to complete an annual Customer Standard compliance report. The online reporting tool, as well as resources regarding the emergency preparedness requirements, were recently made available.
Kelly O’Ferrall and Nasim Jamasbi -
The Court of Appeal of British Columbia recently held that an employee was entitled to damages for wrongful dismissal, even after he refused to work during the 5-week notice period provided by his employer. The employee argued that working through the notice period would have been “intolerable”.
Facts
The employee, Raymond Giza, was employed by Sechelt School Bus Service Ltd. for 5 years at the time of his termination in September 2009. Sechelt provided Giza with 5 weeks’ notice of termination – his minimum entitlement under the British Columbia Employment Standards Act. Giza did not return to work after receiving his letter of termination.
The Ministry of Labour has announced the targeted safety blitz for the month of March 2012. Ministry inspectors will be targeting construction projects employing workers in high-rise formwork, low-rise formwork and masonry, siding and built-up roofing work. According to the Ministry’s website:
The inspections will help ensure that:
This blitz will be in addition to regular inspections undertaken by the Ministry of Labour. For more information on workplace safety, you can visit the Ontario government’s Safe at Work website.
If you have any questions regarding your obligations regarding workplace health and safety, please contact a member of Stikeman Elliott’s Labour, Employment and Pensions group.
On October 14th 2011, in the case of Rejeanne Rioux c. La Commission touristique du Port-Joli inc., Mr. Provencher, the new head chef, grabbed his colleague, Mrs. Rioux, by the hips. The complainant notified her discontent to Mr. Provencher by stepping back and by glancing unequivocally at him. Mr. Provencher repeated the gesture during the day and also during the following days. Moreover, he sometimes stroked her back or held her by the neck. He also made remarks with sexual connotations to Mrs. Rioux. She tried to inform her director, but she postponed the meeting. Following various similar incidents, Mrs. Rioux felt anxious and felt the need to consult her doctor. He prescribes her a work stoppage.
Despite the repeated complaints of the worker, the director concluded, without investigating, that it was only a misunderstanding. Only Mr. Provencher was interviewed and he trivialized the events. Management did not try to verify the well-foundedness of the complaint, but merely offered Mrs. Rioux a meeting in the presence of Mr. Provencher. The complainant refused the offer. During her work stoppage, Mrs. Rioux did not contact her employer nor did the employer try to reach her. The following season, management concluded that she had resigned when she didn’t show up.
Le 14 octobre 2011 dans la décision Réjeanne Rioux c. La Commission touristique du Port-Joli inc., M. Provencher, le nouveau chef cuisinier, prend Mme Rioux par la taille. La plaignante signifie son mécontentement à son supérieur en reculant et en lui jetant un regard sans équivoque. M. Provencher répète le geste au courant de la journée ainsi que dans les jours suivants. De plus, ce dernier lui caresse parfois le dos ou la prend par le cou et il fait parfois des allusions à connotation sexuelle à la plaignante. Mme Rioux tente d’en informer la directrice, qui reporte la rencontre. Suite à divers incidents, Mme Rioux est angoissée et ressent le besoin de consulter son médecin, ce denier lui prescrit un arrêt de travail.
Malgré les plaintes de la travailleuse, la directrice générale conclut, sans enquêter, qu’il s’agit d’un malentendu. Seul M. Provencher a été interrogé et il a banalisé les évènements. La direction n’a pas cherché à vérifier le bien-fondé des propos, elle a seulement offert à Mme Rioux une rencontre en présence de M. Provencher, une offre que la plaignante a refusée. Durant son congé de maladie, elle ne donne pas de nouvelle et l’employeur ne tente pas de la rejoindre non plus. La saison suivante, il conclut qu’elle a démissionné.
A recent decision of the Ontario Superior Court of Justice proves that employers cannot be too careful when drafting termination provisions. The Court held, among other things, a potential contravention of the Employment Standards Act, 2000 was sufficient to render a termination provision unenforceable, even if at the time of termination the provision provided the employee with an amount in excess of his ESA entitlements.
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