A Mitigation Windfall for Fixed-Term Employees, Location Depending

Recent cases highlight an important difference between provinces in the treatment of mitigation income after the breach of a fixed-term employment contract. Ontario’s jurisprudence can result in a windfall to some employees, where cases provide for damages to the end of the contract’s term without deduction for income earned in alternative employment. But courts outside … Read more

Why Mitigate When You Could Work on Your Sailboat?

A recent case demonstrates the challenge employers face when seeking reduced damages for an employee’s inadequate attempts to mitigate. The plaintiff in Hucsko v. A.O. Smith Enterprises, 2020 ONSC 1346, made no efforts to find alternative employment after termination, but the Court opted not to reduce his damages because the defendant company did not lead … Read more

New Uncertainty for Employment Contract Amendments

A modern trend in the law of contract variation has generated some excitement in the employment law world about whether companies may now be able to change employment contracts without providing fresh consideration (or a new benefit) to employees. That would make life easier for HR professionals. But a recent appellate decision will dampen some … Read more

“Saving Clause” to the Rescue? Employers Should Rely on Sound Drafting First

A recent case confirms (briefly put) that there is no substitute for the proper drafting of employment contracts. In Rossman v. Canadian Solar Inc. the Ontario Court of Appeal dealt a significant blow to the utility of “saving clauses” to salvage drafting errors when a termination provision is not compliant with employment standards legislation. This … Read more

Calculating Wrongful Dismissal Damages After Mitigation at Higher Pay

A recent case weighs in on an interesting puzzle in the law of wrongful dismissal damages: How to factor mitigation income into the award when the employee gets new work at significantly higher pay. Kideckel v. Gard-X Automotive Refinish Inc. suggests the jurisprudence is consolidating around a principled approach, holding that an employer shouldn’t get … Read more

With Great Power Comes Great Liability

Employers owe their employees a duty of good faith. Breaching that duty during a termination can lead to expansive liability, as the City of Toronto recently learned the hard way. The case of Headley v. City of Toronto involved an employee who was dismissed on allegations of theft and fraud. But the City’s conclusions were … Read more

Another “Saving Clause” Flubs the Rescue

A recent case dealt another blow to the utility of “saving clauses” to rectify drafting errors in employment contracts. The Court in Groves v. UTS Consultants Inc. found a clause ostensibly supplanting the employee’s right to reasonable notice of termination was unenforceable and the intention to contract out of the common law was not salvaged … Read more

Wrongful Dismissal Damages (Case Summary No. 1): Hickaway v Riddell Kurczaba Architecture

Another Alberta wrongful dismissal case will be of interest to employment law and HR geeks seeking to hone their internal reasonable notice gauges. This post summarizes the Bardal Factors, confirms the reasonable notice period, and sets out some points of interest from the judgment in Hickaway v Riddell Kurczaba Architecture Engineering Interior Design Ltd. SUMMARY … Read more

Independent Contractors and Tax Liability: New Case suggests Dangers and Risk-Management Strategies

Using independent contractors instead of employees can be a high stakes game. A recent case was doubtless a nail-biter for one employer, which narrowly avoided an expensive tax bill. MWW Enterprises Inc. v. M.N.R. provides a nice example of how courts approach the distinction between independent contractors and employees in tough cases. This article summarizes … Read more

Human Rights, Extraordinary Remedies: New Case Highlights Advantages For Employees of Using Human Rights over the Court System

A recent Human Rights case highlights the vastly different remedies available to employees in the Human Rights system versus the civil courts. After a 13-day hearing, the complainant in Pratt v University of Alberta received: compensation for 18 months’ lost wages, well exceeding pay in lieu of reasonable notice; general damages, including for mental distress; … Read more