Here is a list of the cases which changed employment law in Canada in 2017 (in no particular order). Note that some of these cases are not yet published on CanLII and therefore, there is no link available.
The Supreme Court of Canada held that the termination of an employee who was addicted to drugs who failed to disclose his drug use (as per the employer’s policy) was not discriminatory because the mere existence of addiction does not establish discrimination. The court took a common-sense approach which will make workplaces safer, and essentially ruled that if it were to hold otherwise, and an employee failed to comply with a workplace policy for a reason related to addiction, the employer would be unable to sanction him in any way, without potentially violating human rights legislation.
For the first time that I have ever seen, a court in Ontario awarded “inconvenience damages” as against an employer for failing to issue a Record of Employment upon termination on time to the employee or Service Canada so that the employee could apply for employment insurance benefits.
The Ontario Superior Court held that employers do not need legislative or contractual authority to require an employee to submit to an independent medical examination as part of accommodating a disability if they have legitimate reasons for requesting the examination. Therefore, employers may be justified in asking for an independent medical examination where they have legitimate concerns about the medical reliability of the employee’s doctor (i.e. the doctor’s diagnoses are inconsistent and/or contradictory).
The Ontario Superior Court held that a former employer who gave a former employee a poor reference (despite previously agreeing to be a reference) was not liable for defamation. This case demonstrates that former employers are permitted to provide a negative reference where the reference they provide is true and not made recklessly or with malice.
McLeod v. 1274458 Ontario Inc., 2017 ONSC 4073
The Ontario Superior Court held that working notice of termination was inappropriate for employees on medical leave, on the basis that an employee incapable of returning to work cannot be reasonably expected to undertake a search for new employment.
The Ontario Court of Appeal clarified the law of mitigation, holding (a) that employers will not be permitted to deduct terminated employees’ income earned during the statutory notice period; (b) employers will not be permitted to deduct terminated employees’ income earned from employment that was, at one point, simultaneous with the terminating employer, so long as that employer permitted such simultaneous employment; and (c) employers will not be permitted to deduct terminated employees’ income from employment that is not comparable because it was accepted out of need (i.e. low wage positions).
The Ontario Court of Appeal held that a termination clause in an employment contract is unenforceable if it explicitly or even ambiguously (a) excludes the continuation of benefits during the notice period or (b) excludes the payment or potential payment of statutory severance (on top of statutory notice).
Nogueira v Second Cup, 2017 ONSC 6315
The Ontario Superior Court held that a termination clause, which simply stated the employer would “comply with its obligations under the employment standards legislation” failed to explicitly oust the employee’s entitlement to common law reasonable notice because it was unclear whether the language left open the ability to pursue more than statutory notice prescribed by Ontario’s Employment Standards Act (i.e. seek common law notice). The employer should have clearly stated in the termination clause that the employee was limited to minimum notice under the Employment Standards Act only.
The Supreme Court of British Columbia awarded a new employee who was terminated before he even commenced work six weeks’ notice. The court found that just six weeks was appropriate considering the young age of the employee, his zero length of service, the precariousness of his position and the availability of alternate employment versus the high salary of his position, which was essentially the only factor in favour of the employee.
Galea v. Wal-Mart Canada Corp., 2017 ONSC 245
The Ontario Superior Court awarded a shocking $750,000 in extraordinary damages (i.e. moral damages, including aggravated damages and damages for mental distress and punitive damages) as against Wal-Mart for its pre-termination, and post-termination conduct of the termination of one of its senior employees who was “set up to fail” by Wal-Mart and left in limbo for many months. I suspect, like in 2014, in another case against Wal-Mart where the Court of Appeal significantly cut the lower court’s award of more than a million dollars in extraordinary damages, that this award will be significantly lowered by the Court of Appeal in 2018.
Dutton Employment Law is Toronto Employment Law Firm.