Murray Klein

The applicant, an Employment Standards Officer, sought judicial review of an Ontario Labour Relations Board decision setting aside an order that the employer pay an employee for constructive dismissal.

The employee, after 16 years, was moved to a lower-paying, more physically demanding job due to downsizing.

After six days, he quit due to back problems caused by the new work.

The OLRB found he quit and was therefore not constructively dismissed.

The Divisional Court held this decision was unreasonable, as the employee was clearly constructively dismissed and did not waive his rights by attempting the new job for six days.

The OLRB decision was set aside.

The employer appealed an Order to Pay issued by an Employment Standards Officer for termination, vacation, and severance pay.

The employee, whose position was declared redundant, was transferred to a lower-graded, more physically demanding position.

After working in the new position for a short time, the employee submitted a letter of resignation, believing he had secured alternative employment.

The Board found that the employee had clearly and unequivocally expressed an intention to quit and acted upon it.

Consequently, the Board concluded that the employee was not constructively dismissed but had voluntarily resigned.

The appeal was allowed and the Order to Pay was rescinded.

The applicant union brought an application under the Employment Standards Act claiming that the responding parties, who took over portions of the food services contract at Pearson International Airport from the predecessor employer, were successor employers liable for termination pay.

The responding parties argued that the building owner (GTAA) was a federal undertaking, rendering the provincial successor employer provisions inapplicable, and raised several other statutory defenses.

The Board held that the provincial law applied as it did not impair the federal undertaking, found that the responding parties were successor employers providing services to the building owner, and concluded that the employees were entitled to termination pay from the successors despite having received notice from the predecessor.

The applicant appealed an Employment Standards Officer's decision not to make an order under the Employment Standards Act.

At the hearing, the applicant withdrew the appeal.

The Ontario Labour Relations Board terminated the matter.

The applicant employer sought to review an Order to Pay issued under the Employment Standards Act.

The affected employee had concurrently pursued a wrongful dismissal action in court, which was ultimately successful, and leave to appeal to the Supreme Court of Canada was denied.

The employee subsequently confirmed he no longer asserted any claim to the monies held in trust for the ESA claim.

Given the circumstances and the positions of the parties, the adjudicator vacated the Order to Pay and directed the return of all trust monies to the applicant.

The applicant employer appealed an Order to Pay issued by an Employment Standards Officer, which found that the employer terminated the responding party's employment because she was pregnant.

The employer operated an adult entertainment establishment and claimed the employee quit.

The Board found the employer's witness lacked credibility and concluded as a fact that the employer terminated the employee because he did not want a pregnant woman behind the bar for aesthetic reasons.

However, the Board noted that section 44 of the Employment Standards Act protects the right to take pregnancy leave, not pregnant employees per se.

The Board deferred its final decision and directed the parties to make further submissions on whether the facts constituted a breach of the Act.

The applicant, a director of West Machinery Co. Limited, sought a review of an order to pay unpaid wages and vacation pay owed to employees of Tobac Curing Systems Limited.

The Employment Standards Officer had found that West and Tobac were related employers under section 12 of the Employment Standards Act and issued the order against the applicant as a director of West.

The Board found that the two companies were related businesses, as they operated under the same roof, shared a controlling mind, and West relied almost exclusively on Tobac's employees.

The Board also rejected the applicant's argument that the Officer had broad discretion under section 58.22 to consider her personal circumstances before issuing the order.

The application for review was dismissed and the order to pay was affirmed.

The applicant, a director of Don Baxi Agencies Inc., filed an appeal of an Employment Standards Officer's Order to Pay.

The parties reached a settlement agreement requiring the applicant to pay $19,440 to the responding party in full satisfaction of the liability.

The Ontario Labour Relations Board issued a consent order incorporating the terms of the settlement, which provided that if the funds were not paid by the specified date, the original Order to Pay would be affirmed and enforceable.

The applicants sought judicial review of an adjudicator's decision finding them liable as related employers for termination and severance pay owed to employees of a related business under the Employment Standards Act.

Applying a reasonableness standard of review, the Divisional Court upheld the adjudicator's decision.

The Court found that the adjudicator reasonably applied the established criteria for related employer liability, noting the applicants' significant financial and operational control over the related business.

The application for judicial review was dismissed.

The applicants sought judicial review of an adjudicator's decision finding them to be related employers under section 12 of the Employment Standards Act, making them liable for termination and severance pay to employees of One + One Fashions Inc. The Divisional Court applied a reasonableness standard of review.

The court found that the adjudicator reasonably applied the established criteria, concluding that the applicants had significant operational and financial control over the related business, and that the arrangement had the effect of defeating the true intent and purpose of the Act.

The application for judicial review was dismissed.

The applicant sought a review of an Order to Pay issued by an Employment Standards Officer.

The principal issue was whether the applicant and Dolfin Developments Ltd. were related employers under section 12 of the Employment Standards Act.

Following the hearing, the Vice-Chair identified a relevant decision not raised by the parties and directed the Registrar to forward it to them, allowing three weeks for written submissions.

The applicant, a director of an insolvent company, sought review of a Director Order to Pay for unpaid wages.

She raised two preliminary issues: first, that the Employment Standards Officer lacked authority to issue the order without first issuing one against the employer; and second, that the matter was res judicata because the trustee in bankruptcy had disallowed the employees' claim.

The Board dismissed both preliminary arguments, finding that the Employment Standards Act does not require an order against an insolvent employer as a precondition to director liability, and that issue estoppel did not apply because the trustee's determination under the Bankruptcy and Insolvency Act involved a different legal question than the one under the Employment Standards Act.

The applicants appealed a Director Order to Pay holding them liable as directors for unpaid wages and vacation pay owed to a former employee.

The Employment Standards Officer found that the primary employer and its parent company were related employers under section 12 of the Employment Standards Act.

The applicants, who were directors of the parent company, failed to present evidence or submissions to challenge the related employer finding.

The Board affirmed the Order to Pay, finding the applicants jointly and severally liable for the unpaid wages.

The applicant employer sought review of two Orders to Pay issued under the Employment Standards Act.

The Employment Standards Officer found that the applicant was a successor employer following a sale of a business from a company in receivership.

The Board upheld the Officer's findings, concluding that the transaction constituted a sale of a business under section 13(2) of the Act.

The Board held that the applicant was liable for vacation pay accrued by employees prior to the sale, and that a former director and minority shareholder qualified as an employee entitled to termination and severance pay.

Furthermore, the Board found that another employee was constructively dismissed when his shift was fundamentally changed, entitling him to termination and severance pay based on his combined service with both employers.

The union sought a declaration that three companies (Metalcraft, Manufacturing, and Trillium) were related employers under section 12 of the Employment Standards Act, and therefore jointly and severally liable for over $2 million in unpaid wages, termination, and severance pay owed to former employees of the bankrupt Metalcraft.

The Board found that the companies were related due to common ownership, common management by a key individual, and similar business operations.

The Board further found that the financial arrangements among the companies, driven by their primary lender, had the effect of defeating the purpose of the Act by shielding the assets of the solvent companies while leaving the employees of the bankrupt company as unsecured creditors.

The companies were declared related and jointly and severally liable for the amounts owed.

The applicants, directors of a bankrupt furniture company, appealed orders to pay issued against them under the Employment Standards Act.

The Ministry of Labour was satisfied that pursuing the orders would not be in the public interest due to the directors' financial and health circumstances.

The Ministry withdrew the orders, and the Board terminated the proceedings.

The applicant employer sought review of an Order to Pay issued by an Employment Standards Officer regarding vacation pay.

The claimant alleged that a transition from an accrual-based to a current-year-based vacation accounting method resulted in a loss of earned vacation pay during the transitional year.

The Board found that the current-year method did not violate the Employment Standards Act, as the employer continued to provide vacation time and pay well in excess of the statutory minimums.

The Board concluded that the employer's policy provided a greater right or benefit than the Act, and set aside the Order to Pay.

The applicant, a real estate agent, sought a review of an Employment Standards Officer's decision not to issue an order for additional termination and severance pay.

Following the sale of the employer's real estate division, the applicant was terminated while on maternity leave.

The employer calculated her severance based on the short-term disability benefits she received in the 13 weeks prior to her notice.

The applicant argued the calculation should be based on the 13 weeks prior to December 1992, claiming she was on an unpaid disability leave throughout 1993.

The Adjudicator dismissed the application, finding the applicant failed to prove she was on a medical leave prior to November 1993, as real estate agents frequently choose not to work for extended periods without being on formal leave.

The applicant employer appealed an Order to Pay for unpaid wages.

In a previous decision, the adjudicator found the applicant was not personally liable as a related employer, though his corporations were.

The remaining issue was whether the letter of credit held by the Director of Employment Standards should be returned to the applicant.

The adjudicator found that the initial letter of credit establishing jurisdiction was provided by one of the liable corporations, not the applicant personally.

Therefore, the Director was not required to return the letter of credit and could disburse the funds to the employees.

The applicants, directors of a bankrupt employer, sought a review of Orders to Pay issued under the Employment Standards Act for unpaid wages.

The Ministry of Labour had paid compensation to most claimants under the Employee Wage Protection Program and was subrogated to their claims.

On consent of the parties, the adjudicator ordered that the Orders to Pay be reduced to $30,000, for which the three directors are jointly and severally liable.