OUR EXPERTISE

We recognize that not all employment matters require litigation.   Some issues require a simple discussion with legal counsel.   Our law firm is often retained to address questions relating to the employment relationship, including:

  • How to interpret the rights and obligations set out in employment agreements
  • When changes to terms and conditions of employment are permissible and the consequences of those changes
  • Whether non-competition and non-solicitation clauses are enforceable
  • Attendance management concerns, including whether absences are appropriate
  • When employment policies are required and whether they have legal effect
  • How employment legislation applies to the workplace and how legislation is interpreted by courts and administrative tribunals
  • Whether discipline or termination is required, or carried out fairly
  • Whether workplace accommodations are appropriate
  • The legal consequences of workplace violence and harassment and how violence and harassment should be addressed
  • Appropriate termination entitlements, statutory, contractual and at common law

Most Ontario workplaces require policies and procedures related to the prevention of workplace violence and harassment under the Occupational Health and Safety Act and that promote the accessibility of workplaces and of goods and services under the Accessibility for Ontarians with Disabilities Act.   In addition, the Occupational Health and Safety Act requires most employers to have developed policies and programs that address the hazards faced by workers.

It also makes good business sense to draft policies and procedures that are expected to apply in the workplace.  Putting expectations in writing minimizes the likelihood of future disputes regarding workplace expectations.   

We are regularly called upon to draft workplace handbooks, policies and procedures, including with regard to hours of work and overtime; vacation time and pay; workplace violence, harassment and discrimination; workplace accessibility and equal access to goods and services; anti-nepotism and workplace romance policies; and discipline and termination. 

Some disputes require litigation.  Employers and employees do not always agree that termination entitlements are appropriate, that the employment contract has been complied with, that workplace conditions are acceptable, or that changes to the terms and conditions of employment are fair. 

We have significant experience litigating wrongful dismissal and constructive dismissal claims – drafting pleadings, attending at mediation, conducting discoveries, arguing motions, attending at pre-trial and conducting trials. 

We have also been called upon to litigate the application of non-competition and non-solicitation provisions in employment agreements.

We have litigated before the Superior Court of Justice and the Ontario Court of Appeal.

The tri-partite relationship created by the unionized workplace brings unique challenges.   Our firm is routinely consulted in respect of the interpretation of collective agreements, the merits of grievances filed, whether the union is appropriately representing its members, and whether discipline or termination is appropriate.   Among the issues that we have been asked to consult, include:

  • Whether a dispute must be heard before an arbitrator
  • How to interpret the rights and obligations set out in the collective agreement
  • When terms and conditions can be introduced as of right, and when they have to be negotiated
  • How to resist a union’s attempt to unionize the workplace
  • Whether an unfair labour practice has been committed
  • Attendance management concerns, including whether absences are appropriate
  • Whether discipline or termination is required, or carried out fairly
  • Whether workplace accommodations are appropriate
  • The legal consequences of workplace violence and harassment and how violence and harassment should be addressed

We are regularly retained to defend grievances, on behalf of construction and non-construction workplaces alike.   Our lawyers assess the merits of grievances filed as against the facts of the case and the applicable collective agreement.    We have acted in respect of expedited arbitrations and arbitrations of significant length and complexity.

In addition, we have been asked to defend employers against related employer/sale of business applications, unfair labour practice complaints in the course of a union organizing drive and have resisted applications for interim relief during the course of these proceedings.

We have litigated unionized disputes before a significant number of labour arbitrators and the Ontario Labour Relations Board. 

The Employment Standards Act, 2000 (ESA) is legislation that sets out the minimum employment entitlements available to nearly all Ontario employees.   It regulates what employment records must be kept and provided, maximum hours of work, when and how much overtime must be paid, payment for public holidays, minimum entitlements on termination and available job-protected leaves. 

Complaints that the ESA have been violated are generally made to the Ministry of Labour; however, they may also be pursued through wrongful dismissal and constructive dismissal litigation.

We provide advice related to these minimum entitlements including when they must be provided and the effect of failing to provide them.   We have experience addressing ESA complaints, liaising with Employment Standards Officers, and litigating unresolved complaints before the Ontario Labour Relations Board and through employment litigation. 

A written employment agreement sets out all of the terms and conditions of employment, before the start of the relationship.  Putting these terms in writing minimizes the misunderstandings that might otherwise arise during the employment relationship.

Having a written employment agreement has an additional, and very significant, advantage.  Properly drafted employment agreements can limit the notice or pay-in-lieu of notice that would otherwise have to be provided to an employee on the date of termination.   

We have written employment agreements on behalf of employers, and defended the provisions of employment agreements written by our clients and others.

Canada Labour Code

Federally regulated workplaces (e.g. banks, railways, cross-border transportation companies) are subject to the Canada Labour Code (Code) an employment statute setting out the minimum employment entitlements available to all federally regulated employees.   The Code regulates maximum hours of work, when and how much overtime must be paid, payment for public holidays, minimum entitlements on termination and available job-protected leaves.  It also sets out the protections provided against sexual harassment and workplace violence in the workplace. 

The unjust dismissal provisions of the Code offer a unique protection to federally regulated employees.   Those provisions allow an employee to file a complaint with the Federal Labour Program, alleging that their dismissal was unjust.  Any non-managerial federally regulated employee with more than 12 months of service is entitled to the protections of the unjust dismissal provisions of the Code.  An adjudicator hearing a complaint of unjust dismissal has a significant number of remedies available to them, including reinstatement with back wages. 

The Code also addressees the unionized workplace and the health and safety obligations imposed upon federally regulated employers.

We have significant experience addressing wage complaints and unjust dismissal complaints filed under the Code.  We have appeared before officers appointed under the Code, litigated unjust dismissal complaints before adjudicators appointed under the Code, and appeared before the Federal Court of Appeal on judicial review proceedings. 

We have also participated in proceedings before the Federal Occupational Health and Safety Program in respect of the appeal of refusals to write health and safety Orders pursuant to the Code.

Canadian Human Rights Act

Federally regulated workplaces are also subject to the Canadian Human Rights Act (CHRA), human rights legislation applicable specifically to the federally regulated workplace. 

The CHRA prohibits harassment and discrimination in the workplace on the basis of race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and a conviction for which a pardon has been granted or a record suspended.

Complaints that the CHRA has been breached may be made in a number of situations, including when an employee is harassed, discriminated against, denied a leave, refused an accommodation, or disciplined or terminated based on a protected characteristic.  Not all requests for a leave or for accommodation must be provided.  Employees who identify with a protected characteristic are not immune from discipline or termination.     

Complaints under the CHRA are filed with the Canadian Human Rights Commission (Commission), where they are first mediated and then investigated.   The Commission may then refer a complaint on to the Canadian Human Rights Tribunal (Tribunal) where it will be litigated.  Adjudicators appointed under the CHRA have the power to issue monetary and non-monetary remedies including orders for reinstatement; the payment of lost wages, including the value of benefits and bonuses; out of pocket expenses; changing hiring practices; developing policies and procedures; and implementing training and education programs. 

We have represented clients before the Commission and the Tribunal, at all stages of human rights litigation. 

The Ontario Human Rights Code (Code) prohibits harassment and discrimination in the workplace on the basis of age, ancestry, colour, race, citizenship, ethnic origin, place of origin, creed, disability, family status, marital status, gender identity and expression, record of offences, sex (including pregnancy and breastfeeding), and sexual orientation.     

Complaints that the Code has been breached may be made in a number of situations, including when an employee is harassed, discriminated against, denied a leave, refused an accommodation, or disciplined or terminated based on a protected characteristic.  Not all requests for a leave or for accommodation must be provided.  Employees who identify with a protected characteristic are not immune from discipline or termination.     

Complaints under the Code are filed with the Human Rights Tribunal of Ontario, where they are first mediated and then litigated.  Adjudicators appointed under the Code have the power to issue monetary and non-monetary remedies including orders for reinstatement; the payment of lost wages, including the value of benefits and bonuses; out of pocket expenses; changing hiring practices; developing policies and procedures; and implementing training and education programs. 

We regularly give advice as to whether or not workplace decisions violate the Code.  When litigation is required to resolve whether the Code has been breached, we undertake litigation on behalf of our clients before the Human Rights Tribunal of Ontario. 

The Occupational Health and Safety Act (OHSA) and its Regulations set out both the general and specific protections offered to workers (including contractors and their employees).  These include the obligation to take ‘every precaution reasonable in the circumstances for the protection of a worker’.  The OHSA also imposes obligations to establish and maintain joint health and safety committees (or a health and safety representative), to prepare and maintain policies and programs related to workplace violence and harassment and prohibits acts of reprisal for complying with or seeking the enforcement of the OHSA.

Failing to comply with the OHSA can have serious consequences for workers, supervisors, employers, constructors, owners, licensees, architects, engineers, and officers and directors.   Not only can Ministry of Labour Inspectors enter a workplace to inspect for compliance with the OHSA, but the Inspector can write an Order requiring certain actions to be taken to comply with the Act.  Inspectors can also write “Stop Work Orders”, stopping all work from being conducted until remedial actions are taken.  Most significantly, the Ministry of Labour can lay quasi-criminal charges against individuals and corporations who violate the OHSA.  Charges can result in significant fines and even imprisonment.

A workplace injury or fatality gives rise to distinct obligations and will often lead to charges being laid against multiple workplace parties.   

We have significant experience with all aspects of the OHSA, including providing advice and counsel in respect of the obligations imposed by the Act; attending the workplace post-incident or accident to provide advice and guidance; providing advice to minimize liabilities after an incident or accident; reviewing and appealing Orders; requesting the suspensions of Orders pending appeal; reviewing Crown disclosure; attending at pre-trial conferences and attending trial. 

We have also litigated claims alleging a reprisal for having claimed the protections provided for by the OHSA and attended at coroner’s inquests on behalf of clients.

We have appeared before the Ontario Labour Relations Board, the Ontario Court of Justice and the Ontario Superior Court of Justice in respect of OHSA matters.

The Workplace Safety and Insurance Act (WSIA) is a statutory insurance plan that indemnifies eligible workers who suffer workplace injuries or who suffer from occupational illnesses.  The WSIA also provides compensation to the families of deceased workers.   The WSIA generally prevents workers and their families from suing their employers if the worker becomes injured, develops an occupational illness, or dies as a result of a workplace injury.

We have provided advice in respect of the obligations imposed by the WSIA, including the obligation to return workers to employment after injury or illness; the conditions under which benefits will be awarded or denied; the circumstances under which a work transition plan will be created; the rights and obligations associated with work reintegration; and how changing employment conditions may affect a worker receiving benefits. 

We are well-versed in the practices and procedures of both the Workplace Safety and Insurance Board (Board) and the Workplace Safety and Insurance Appeals Tribunal (Tribunal).  We have attended return to work specialist meetings with our clients, and  litigated before both the Board and the Tribunal when disputes are not resolved to the satisfaction of our clients. 

When a litigant starts a law suit, rather than pursue benefits through the Board, we can launch and pursue Right to Sue proceedings on behalf of our clients. 

The Accessibility for Ontarians with Disabilities Act, 2005 (AODA) requires employers to enact policies and procedures that improve access to goods, services, facilities, accommodation, employment, buildings, structures and premises for persons with disabilities.   The obligations are significant, and include the development of policies and procedures confirming the commitment to complying with the AODA and outlining the steps that will be taken to ensure compliance.   Training obligations are also set out in the AODA; these obligations generally require an employer to prepare training materials and to provide training to a range of individuals employed at, or providing services on behalf of, the organization.   

Our firm advises on all aspects of AODA compliance.  We provide advice related to the training obligations arising under the AODA, create training materials and carry out workplace training that meets the obligation of the legislation.  We help to create policies and procedures, including employment policies and multi-year accessibility policies and plans.  Significantly, we assist in the interpretation of the AODA, especially with regard to the effect of the legislation on internet, web and hand held devices.

Workplace investigation are recommended in a number of situations, including when there are allegations of workplace bullying, violence or harassment; when there is a suspicion of workplace conduct that may lead to discipline or termination; to confirm or deny violations of the human rights legislation; or when there has been a health and safety incident.   

The investigation process requires patience and understanding.  Often, difficult questions are asked of employees and managers.  Evidence must be gathered so as to maintain solicitor-client privilege and to protect against requests for disclosure of the investigators work product.  Interviews must be conducted respectfully, but with an eye to determining the facts underlying the investigation.  Difficult conclusions about workplace behaviour are typically required.

We have conducted workplace investigations.  We have interviewed witnesses, gathered and catalogued evidence, and prepared investigation reports. 

Not all employers want to hire outside counsel to conduct their workplace investigations.  In these cases, we help train and coach ‘internal’ investigators, guiding them through the investigation process and providing advice and counsel in connection with the preparation of investigation reports.

Various pieces of employment legislation require workplace training, notably the Accessibility for Ontarians with Disabilities Act, 2005, the Ontario Human Rights Code,  and the Occupational Health and Safety Act.    

Whether or not required by legislation, workplace training is recommended in a number of areas including with regard to respect in the workplace, how to appropriately impose discipline and carry out terminations, employee relations, human rights, and issues related to disability and accommodation.

We have been regularly called upon to develop training materials and carry out workplace training on behalf of our clients.  We can provide materials for use within the workplace after the training session.