Employment and Labour Law - ONCA

Stahle Construction Inc. appealed a trial judgment ordering it to pay general damages, out-of-pocket expenses, and costs to its former employee, Roberto Soave, for improper termination of long-term disability (LTD) coverage.

The Court of Appeal dismissed the appeal, affirming the trial judge's finding that Mr. Soave was disabled and eligible for LTD benefits prior to a car accident, despite Stahle's arguments regarding evidentiary burden and pleading.

The court found no palpable or overriding error in the trial judge's mixed findings of fact and law regarding disability and upheld the decision to determine the remitted issue.

The Toronto Police Service (TPS) denied Yazdan Khorsand's application for special constable employment with the Toronto Community Housing Corporation (TCHC) based on a pre-screening background check, without disclosing reasons or information.

Khorsand sought judicial review, arguing a breach of procedural fairness and systemic discrimination.

The Divisional Court found the decision judicially reviewable.

On appeal, the Court of Appeal for Ontario reversed this, holding that the pre-screening decision was part of a private employment hiring process by the TCHC, not a sufficiently public exercise of state authority by the TPS Board, and therefore not amenable to judicial review.

The court emphasized that the broad public impact of a decision does not automatically make it judicially reviewable and that public law remedies were unsuitable given the need to protect sensitive law enforcement information.

The appellant, Losani Homes (1998) Ltd., appealed a lower court decision that found their employment termination clauses void but upheld the validity of a fixed-term employment contract for the respondent, Kim Kopyl.

Losani Homes argued that the invalidity of the termination clauses, per *Waksdale*, should also void the fixed-term clause, converting the contract to one terminable on reasonable notice with a duty to mitigate.

The Court of Appeal dismissed the appeal, affirming that the invalidity of termination clauses does not affect a fixed-term clause, distinguishing *Waksdale* and reaffirming *Howard v. Benson Group Inc.* The Court held that the employee was entitled to compensation for the unexpired portion of the fixed term without a duty to mitigate.

IBM Canada Inc. appealed a summary judgment in a wrongful dismissal claim, challenging the 26-month reasonable notice period and the award of damages for Restricted Stock Units (RSUs).

The Court of Appeal dismissed the appeal, affirming that non-transferrable skills and the COVID-19 pandemic constituted exceptional circumstances justifying a notice period exceeding 24 months.

The court also upheld the RSU damages, finding the termination clause ambiguous and thus ineffective in limiting common law rights.

The appellant, OZ Optics Ltd., appealed the dismissal of its action against two former general counsel, Diane Lesley Evans and Samuel Edgar Schwisberg, following a successful motion for summary judgment.

The action alleged breach of contract, breach of fiduciary duty, conspiracy, and negligent performance of service.

The Court of Appeal dismissed the appeal from the bench, upholding the motion judge's findings that the claims were amenable to summary judgment, that Evans's actions did not constitute a breach or cause loss, and that Schwisberg's obligations under a holdover clause were absolved by the appellant's actions.

Costs were awarded to the respondents.

The appellant, a former employee, appealed a lower court decision regarding a share purchase agreement with his former employer.

The dispute centered on interest payments, alleged breach of good faith, and repudiation of the agreement.

The application judge found no breach of good faith or repudiation, ordered payment of overdue interest, T5 form corrections, and post-judgment interest, but denied pre-judgment interest.

The Court of Appeal upheld the findings on good faith and repudiation, affirming that the employer's failure to pay some interest did not constitute repudiation as principal payments continued.

However, the Court of Appeal reversed the lower court's decision on pre-judgment interest, ordering it at the rate set out in the agreement.

The Financial Services Regulatory Authority of Ontario (FSRA) appealed a Superior Court decision that dismissed its motion to stay a class proceeding initiated by Brewers Retail Inc. and a committee of pension plan members.

The class proceeding sought court approval of a comprehensive settlement regarding pension indexing issues, including amendments to the pension plan and trust, and compensation for known and unknown plan members.

FSRA argued that the Financial Services Tribunal (FST) had exclusive jurisdiction over these matters under the Pension Benefits Act (PBA) and the Financial Services Tribunal Act, 2017 (FSTA).

The Court of Appeal upheld the motion judge's finding that the Superior Court had concurrent jurisdiction, noting that neither the FSTA nor the PBA contained clear and unequivocal language ousting the court's inherent equitable jurisdiction to approve settlements and vary trusts.

The court affirmed that the class proceeding was the preferable procedure, as the FST lacked the power to approve the settlement or vary the pension trust, and the class action provided the necessary finality for all affected plan members.

The appellant, Mario Oliveira, appealed two lower court decisions: the dismissal of his wrongful dismissal action due to a breach of the deemed undertaking rule, and a finding of contempt for non-compliance with injunctive orders concerning a confidential union member list.

The Court of Appeal upheld the dismissal of the wrongful dismissal action and the contempt finding.

However, it set aside the 89-day intermittent jail sentence for contempt, replacing it with a 14-day conditional sentence (house arrest), and reduced the contempt costs from $75,000 to $50,000.

This appeal concerns the Divisional Court's quashing of three Ontario Labour Relations Board (OLRB) decisions, which had declared Tomasz Turkiewicz Custom Masonry Homes (TTCMH) and Brickpol Masonry Corporation (Mr. Turkiewicz's former business) a single employer under s. 1(4) of the Labour Relations Act, 1995, bound TTCMH to a collective agreement, and awarded damages to the Unions.

The Court of Appeal found that the Divisional Court erred in its application of the reasonableness standard of review, as articulated in Canada (Minister of Citizenship and Immigration) v. Vavilov.

The Court of Appeal held that the OLRB's decisions were reasonable, as the Board properly considered the erosion of bargaining rights as a valid labour relations purpose for the related employer declaration, adequately addressed the hiatus between businesses, and made a reasonable damages award.

The appeal was allowed, and the OLRB decisions were restored.

This is an appeal of a summary judgment in a wrongful dismissal action.

The motion judge had awarded the appellant damages equivalent to six months' reasonable notice, reduced by two months for failure to mitigate.

The Court of Appeal found that the motion judge erred in reducing the appellant's damages for failure to mitigate.

Specifically, the motion judge erred in principle by suggesting the appellant should have sought lesser-paying jobs and made a palpable and overriding error by concluding the appellant "aimed too high" based solely on job titles without considering comparable duties.

The Court emphasized that the employer bears a heavy burden to prove both that the employee failed to take reasonable steps and that comparable employment would have been found.

The appeal was allowed, and the damages were based on an eight-month notice period without the two-month reduction.

The appellant, Guestlogix Inc., appealed a judgment that awarded the respondent, Marina Antchipalovskaia, twelve months' common law notice for wrongful dismissal.

The core issue was whether the motion judge erred in treating the respondent's employment as continuous from 2011 to 2019, despite a termination and re-hiring in 2016 during Companies’ Creditors Arrangement Act (CCAA) proceedings, which included a court-ordered release of prior claims.

The Court of Appeal found that the motion judge erred by not giving effect to the 2016 termination and the CCAA release.

However, the court also held that the respondent's prior five years of experience still provided a benefit to the appellant and should be considered in determining the notice period.

The Court of Appeal substituted the twelve-month notice period with a seven-month notice period, recognizing both the effect of the CCAA release and the value of the respondent's previous service.

This is an appeal from a Superior Court decision concerning the enforceability of a non-competition covenant in an employment agreement.

The appellant employer sought to enforce the covenant against a former employee, a pharmacist, who left to work at a competing pharmacy.

The application judge found the covenant unenforceable due to ambiguity and overbreadth.

The Court of Appeal upheld this decision, affirming that the covenant's broad wording, which prohibited the employee from being "concerned with" or "interested in" any similar business, extended beyond what was reasonably required to protect the employer's legitimate interests.

The court reiterated that it cannot rewrite an unreasonable restrictive covenant.

Maria Amorim appealed a judgment that declared her ineligible for survivor pension benefits under the Pension Benefits Act, based on a finding that she and Daniel Carvalho were living "separate and apart" when he began receiving disability benefits.

The Court of Appeal dismissed the appeal, affirming the application judge's factual finding that the parties were living separate and apart, which was entitled to deference.

The court found no reviewable error in the application judge's holistic consideration of the indicia for "separate and apart" status.

The appellant, Wendy Sin Ming Ho, appealed the dismissal of her action against the Crown and four tribunals.

She alleged psychological harm from harassment and threats at an Ontario hospital (1999-2000) and subsequent failures by various tribunals to provide redress.

The motion judge dismissed her amended pleading, finding no vicarious liability for the Crown regarding hospital employment issues or quasi-judicial decisions, no Charter breaches, and no basis for a civil court to compel a criminal investigation by the RCMP.

The Court of Appeal upheld the motion judge's decision, finding no error, no viable cause of action against the Crown, and that fresh evidence did not assist her claim.

The appeal and a motion to file fresh evidence were dismissed.

Jack Ganz Consulting Ltd. (JGC) appealed a summary judgment dismissing its breach of contract and dependent contractor claims against Recipe Unlimited Corporation (Cara).

JGC alleged Cara breached a 2006 consulting agreement, including a stock option provision, and failed to provide reasonable notice upon termination.

The motion judge found JGC waived an auto-renewal clause, terminating the agreement in 2010, and that no other written agreement replaced it.

The Court of Appeal found the motion judge erred in finding a unilateral waiver for no consideration and that there was a genuine issue for trial regarding the terms governing the parties' relationship after 2008, given the uncertainty in the record and the parties' conduct.

The appeal was allowed, the summary judgment set aside, and the matter remitted for trial.

The Society of United Professionals appealed a Divisional Court decision affirming the Ontario Labour Relations Board's (OLRB) rulings regarding New Horizon System Solutions' refusal to disclose a Master Services Agreement (MSA).

The Society alleged violations of ss. 17 (duty to bargain in good faith) and 70 (interference with union representation) of the Labour Relations Act, 1995.

The Court of Appeal upheld the Divisional Court's finding that the OLRB's decisions were reasonable, concluding that the MSA was not necessary for the Society to carry out its representational duties under s. 70 and that the s. 17 application was premature when initially brought.

The court also found the OLRB's partial disclosure order under s. 17 and its reliance on counsel's representation regarding a specific MSA article to be reasonable.

The Participating Nursing Homes (PNH) appealed a Divisional Court decision that upheld a Pay Equity Hearings Tribunal order.

The Tribunal had directed the PNH and unions to negotiate a gender-neutral comparison system (GNCS) for maintaining pay equity, specifically to address changes in job duties and ensure ongoing compliance with the Pay Equity Act.

The PNH argued that the Act did not require them to tie their maintenance obligation to the proxy employer's historical valuation of male jobs.

The Court of Appeal dismissed the appeal, affirming the Tribunal's authority to ensure compliance with the Act and the necessity of ongoing comparison, including through the proxy method, to maintain pay equity.

The Court of Appeal for Ontario dismissed an appeal from the Divisional Court, which had found the Pay Equity Hearings Tribunal's decision unreasonable.

The case concerned the interpretation of the Pay Equity Act, specifically whether the statutory proxy method, used to establish pay equity in female-dominated workplaces, must also be used to maintain it.

The Tribunal had ruled that the proxy method was not required for maintenance, leading to an internal comparison method.

The Court of Appeal affirmed that the Tribunal's interpretation was unreasonable, as it ignored the Act's purpose, scheme, and wording, which necessitate an ongoing comparison to male (or deemed male) comparators to redress systemic gender discrimination.

The matter was remitted to the Tribunal to specify procedures for maintaining pay equity using the proxy method.

The appellant, an employee, appealed a motion judge's order striking parts of his statement of claim in a wrongful dismissal action, which included claims against corporate directors for unpaid vacation pay under the Employment Standards Act, 2000 (ESA) and the Business Corporations Act (OBCA), and for oppression under the OBCA.

The Court of Appeal upheld the striking of the ESA claim without leave to amend, finding the statutory preconditions were not met.

It also upheld the striking of the OBCA oppression claim with leave to amend, noting insufficient pleading of reasonable expectations.

However, the Court set aside the striking of the OBCA s. 131 claim for unpaid vacation pay without leave to amend, finding material facts were pleaded, and allowed it to proceed with amendment.

It also set aside the striking of certain paragraphs (14-23) related to the reprisal claim and varied the striking of paragraph 40, only removing irrelevant allegations.

The original costs award against the appellant was reduced to reflect his partial success on appeal.

The Court of Appeal for Ontario addressed whether "termination of employment for any reason that does not relate to a breach of discipline or misconduct" in s. 236(3) of the Federal Public Sector Labour Relations Act (FPSLRA) includes constructive dismissal.

The appellant, an undesignated separate agency, sought to dismiss the employee's constructive dismissal claim for lack of jurisdiction, arguing it should be resolved via grievance.

The Court affirmed the motion judge's decision, holding that constructive dismissal falls within the broad meaning of "termination for any reason" under s. 236(3), thereby preserving the employee's right to sue in court, as undesignated separate agency employees lack access to third-party adjudication for non-disciplinary terminations under the FPSLRA.

The appeal was dismissed.