Legally Speaking

An employment law blog for employees and employers published by Toronto employment lawyer Justin W. Anisman

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5 Steps to Follow After Being Fired

Being fired is a terrible emotional blow and it can often be very difficult to move on. So much of who we are as individuals arises from the jobs we hold; so much of how we define ourselves is based on “what we do” for a living.  It is not surprising that getting fired is often described as one of life’s most stressful and devastating events. Because it is quite easy to become overwhelmed, I wanted to share my advice on how to best respond to getting fired and moving on in a positive and rewarding manner.

Entitlements to Unvested Stock Options After Termination

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Where stock options or restricted share units (RSUs) form a large…

Employment Law for EMS, Healthcare Workers and Health Professionals

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If you work in emergency medical services (EMS), healthcare or…

Discrimination during the Job Interview and Hiring Process

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Discrimination in the course of a job interview or in the making of hiring decisions remains too common across Ontario. While the job interview is an opportunity for both employers and job seekers to learn about each other and to determine suitability or fit for the job at hand, attempts by an employer to solicit information that relate to the "protected grounds" (i.e. race, age, sex, gender, identity etc.) under the Ontario Human Rights Code is generally off limits. Ontario workers are protected from discrimination even at the pre-hiring, interview or application stage of employment. It is important, therefore, for both employees and employers to understand what questions are appropriate and which are not. This article will review some of guidelines around pre-employment screening during the interviewing and hiring process.

Understanding Restrictive Covenants: Non-Solicitation and Non-Compete

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Non-solicitation and non-competition clauses are used to protect employers from losing customers or business as a result of a departing employee. Over the course of their employment, employees may acquire specialized knowledge of a company's trade secrets, expertise or other unique proprietary information about their employers. In many cases, particularly in sales, employees establish and maintain successful and close relationships with customers or clients. While these are positive elements of an employment relationship, when an employee changes jobs, the company intelligence they take with them and their subsisting relationship with company clients, can pose issues for employers. As a result, employers often look for ways to protect their business interests, customer bases and other threats of competition. One way employers can do this is by imposing restrictive covenants on their employees in their employment contracts. In this article, I will explain two of the most common restrictive covenants: non-solicitation and non-competition.

All Ontario Employers Need New Employment Contracts: Court of Appeal

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Due to a very disruptive decision released by the Ontario Court…

Punitive Damages in Employment Law

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Punitive damages may be awarded in situations where an employer's misconduct is so malicious, oppressive and high-handed that it offends the court’s sense of decency. In the context of Ontario employment law, Courts can punish employers by an award of punitive damages, in situations where the misconduct is serious and egregious.

Who I am

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.

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Arbitration Clause in Employment Contract puts the Breaks on the Uber Class Action in Ontario

The Ontario Court has confirmed that an arbitration clause in an employment contract is generally enforceable. Much to the chagrin of Mr. Heller and his lawyers in the proposed class action brought against Uber, Justice Perell of Ontario Superior Court of Justice stayed the lawsuit against Uber. As a result, Uber drivers in Ontario that want to sue for their rights under the Employment Standards Act, 2002 will need to do so by way of Arbitration in the Netherlands.
March 13, 2018/by Justin W. Anisman

Shifting Balance Between Privacy and Openness in the Tribunal World of Justice

Public access to court proceedings is the normal practice in…
October 3, 2019/by Justin W. Anisman
Workplace Harassment, Health and Safety

Workplace Harassment, Health and Safety

All workers should have the ability to complete their job duties…
March 21, 2019/by Justin W. Anisman

When Can a Resignation be Retracted?

Do you know someone who tendered their resignation and then had…
September 8, 2019/by Justin W. Anisman

Temporary Layoffs: What Everyone Needs to Know

Temporary layoffs are an attractive option for employers facing economic downturn, business or financial troubles, or a global pandemic like COVID-19. While it may appear to be a good way to eliminate staff without paying termination pay or severance, there are many misconceptions that both employers and employees have.

This article aims to help you understand everything you need to know about temporary layoffs under Ontario employment law and should be used as a guide whether you are a business owner considering laying off staff or an employee who was laid off.
April 27, 2020/by Justin W. Anisman

Public Holiday Pay: What You Need to Know

What are the statutory holidays in Ontario? Can employers force employees to work on statutory holidays? How do you calculate Holiday Pay? Answers to these questions and more.
February 24, 2018/by Justin W. Anisman

Featured on the Front Cover of Law Times

I am thrilled to be featured on the front page of law times along…
April 30, 2018/by Justin W. Anisman

Equal Pay for Part Time Work begins April 1, 2018

As of April 1, 2018, employers will be required to pay casual, temporary, part-time, and seasonal employees the same rate as permanent and full time employees so long as they perform substantially the same kind of work, in the same establishment, under similar working conditions and their performance requires substantially the same skill, effort and responsibility.
March 26, 2018/by Justin W. Anisman

Age Discrimination and Forced Retirement

The bottom line is that it is contrary to law for employers to require employees to retire at a fixed age, whether it be 65, or older or younger, unless the employer can establish to the satisfaction of the court or the Human Rights Commission that the established age is based on a bona fide occupational requirement.  So it is the exception, not the rule, where mandatory requirement is allowed. Employers must be able to provide evidence that the retirement age is justifiable in law.
October 18, 2019/by Justin W. Anisman

Termination of the Employment Relationship in Ontario

The Employment Standards Act, 2000 (the “ESA”) provides the minimum standards of employment with respect to among many other things, overtime, hours of work, minimum wages, holidays, pregnancy and parental leave and termination of employment.
July 17, 2017/by Justin W. Anisman

Punitive Damages in Employment Law

Punitive damages may be awarded in situations where an employer's misconduct is so malicious, oppressive and high-handed that it offends the court’s sense of decency. In the context of Ontario employment law, Courts can punish employers by an award of punitive damages, in situations where the misconduct is serious and egregious.
June 12, 2020/by Justin W. Anisman

Accommodating Mental Health Illness

Although mental health issues and the way they manifest themselves vary greatly, employers must under the Ontario Human Rights Code accommodate employees up to the point of undue hardship to the employer. Employers are required to respond promptly and effectively when employees declare or display mental health issues.

In this article, we will discuss the duty to accommodate and will outline why accommodation is necessary, forms of accommodation, how to identify the need for accommodation and some solutions organizations can apply to ensure their duty to accommodate can be met.
February 7, 2020/by Justin W. Anisman
Photograph depicting sexual harassment in the workplace.

Sexual Harassment at Work

What you need to know about sexual harassment in the Ontario workplace. Advice for employees, managers and employers on their rights and obligations.
July 31, 2018/by Justin W. Anisman

Negotiating Maximum Termination Pay and Severance Pay

Often, people who lose their job assume that if they receive any termination pay, severance pay, or pay in lieu of notice then they must have been properly compensated for being fired. This is far from the case. There are many factors and considerations a person should be aware of when figuring out what their termination entitlements are and more often than not an employment lawyer can help them get what is fair.
February 21, 2020/by Justin W. Anisman

COVID-19’s Effect on Reasonable Notice of Termination

COVID-19 is having significant economic impacts on both employees and employers. Mass layoffs are happening across Canada despite government initiatives to avoid them. Many employers are considering staff cuts to remain profitable. While terminating employment for legitimate business reasons (such as a downturn in the economy) is lawful, generally speaking, an employee terminated in these circumstances is entitled to reasonable notice of termination, or pay in lieu of notice. It's important to understand how the state of the economy can influence the length of reasonable notice owed to terminated employees
April 1, 2020/by Justin W. Anisman

Employee Classification Risks

Employers must become proactive in taking action to sharply review and assess workforce compositions and ensure that appropriate classifications are in place. Employers must also understand that a worker's title does not determine whether they are an employee or independent contractor but that it is the nature of their employment relationship that determines the classification. As well, a worker's actual classification may differ from what the contract specifies.
November 15, 2019/by Justin W. Anisman

Constructive Dismissal: A Good Reason to Quit

“Constructive Dismissal” is defined as a substantial and unilateral change to the terms or working conditions of employment. In other words, a constructive dismissal describes situations where, although an employer has not directly fired an employee, its actions or its failure to address issues, leaves an employee feeling like they’ve no choice but to quit.
May 15, 2020/by Justin W. Anisman

5 Steps to Follow After Being Fired

Being fired is a terrible emotional blow and it can often be…
October 7, 2020/by Justin W. Anisman
law-bartender-waiter-waitress

Employment Law for Bartenders, Waiters and Waitresses

Many ESA provisions apply to all employees, but there are important distinctions for liquor servers that hospitality employees and employers should know.
April 1, 2019/by Justin W. Anisman

You might want to hire an employment lawyer before your next employee

A well written employment contract often conveys significant advantages to employers. The modest upfront costs of an Employment Lawyer dwarf the significant common law notice periods employers owe in the absence of an employment contract or in the presence of a poorly drafted one.
February 22, 2018/by Justin W. Anisman

What documents are helpful to my employment lawyer?

Photo identification; Employment Contract; Termination Letter; Correspondence; Record of Employment ...
February 10, 2018/by Justin W. Anisman

Termination within Probation Periods

Probation at the start of employment may seem simple, but they don't always automatically allow employers to fire someone in their first 3 months free and clear. Probationary periods are actually legally intricate.

Employees who are terminated during probationary periods often accept their fate without seeking legal advice when in many cases they may be eligible for severance payments (even severance payments of several months or more). Likewise, employers may dismiss an employee within a probationary period only to be surprised and unprepared when they are told they have to pay termination pay for wrongful dismissal.
April 16, 2020/by Justin W. Anisman
Clawbies 2018 Nominations

#Clawbies2018 Nominations

It's time to make my nomination for the 2018 Canadian Law Blog Awards a.k.a. the Clawbies and I couldn't be more thrilled this year to nominate
December 13, 2018/by Justin W. Anisman

Federally Regulated Employers: Understanding what laws govern your workplace.

Approximately 90% of workplaces in Ontario are governed by the employment laws enacted by the Ontario government. However, some Canadians do not fall under that provincial jurisdiction, but instead are considered "federally regulated". Federally regulated workplaces are governed by legislation enacted by the Government of Canada instead of the Province of Ontario.
May 29, 2020/by Justin W. Anisman

Discipline at Work in Ontario

Being fired or getting terminated for “just cause” is only one form of discipline available to Ontario employers. Often, though, termination for cause is too harsh in the circumstances and therefore not available as an option. It is important for both employees and employers to understand what other types of discipline are available and how to act in accordance with the principles of “progressive discipline”.
November 1, 2019/by Justin W. Anisman

Ontario Election 2018: Do employees get paid time off to vote?

With the Ontario Provincial Elections around the corner, some…
May 25, 2018/by Justin W. Anisman
Featured post photo for the law of hours of work and breaks in Ontario

Hours of Work and Breaks

Everything you need to know about an employers obligation to provide breaks at work, the maximum number of daily and weekly hours of work and more.
September 5, 2018/by Justin W. Anisman

“My Boss Got Naked in Front of Me on a Work Trip”

While exploring one of the legal forums I frequent, a person…
April 18, 2018/by Justin W. Anisman

Time to Update your Workplace ESA Poster

As of January 2019, the Ministry of Labour has published its revised ESA Poster which all employers are required to post in the workplace. Download it here.
January 27, 2019/by Justin W. Anisman
The Right to Disconnect

Right to Disconnect

Ontario’s Bill 148 may have created a right to disconnect under the Employment Standards Act -- even for managers or supervisors.
November 27, 2018/by Nicholas Goldhawk

Video Cameras in the Ontario Workplace

More than ever before employers are installing cameras in the workplace. While video cameras are common place in retail stores or banks, what about in an office environment? Or in a break room? Does an employer have to tell its employees about surveillance cameras or can they be hidden?
June 12, 2018/by Justin W. Anisman
Uber-Class-Action

Uber Class Action Given the Green Light to Proceed by Ontario Court of Appeal

In a meaningful decision for Ontario employees, the Ontario Court of Appeal has ruled that the proposed class action law suit against Uber is not barred.
January 14, 2019/by Justin W. Anisman

Stealth in a Mareva Injunction: Ontario’s First Ex Parte Appeal

This article originally appeared on The Lawyer’s Daily website…
May 4, 2018/by Justin W. Anisman

What Employees Need to Know About COVID-19

The impacts of COVID-19 are already being felt by Canadians. Workers should be aware of their rights and obligations in the coming months.
March 16, 2020/by William (Will) McLennan
Limitation Period for Wrongful Dismissal Claims

How quickly must I sue after being fired?

The leading case in Ontario on the commencement of the limitation period in a wrongful dismissal action is Jones v. Friedman, 2006 CanLII 580 (ON CA) (“Jones (CA)”). Pursuant to this decision, in ordinary circumstances, a wrongful termination claim is discovered on the date the date the employee first receives notice of termination. Not the date that the employee's employment ended.
March 1, 2018/by Justin W. Anisman
Independent Contractor, Employee or Dependant Contractor

Employee, Independent Contractor or something in between?

Understanding the difference between the classifications of employees, independent
contractors, and dependent contractors is important for both workers and employers.
Workers should understand how they are being classified, and what that means for them in terms
of rate of pay, benefits, and legal protections. Employers must be diligent in properly classifying
their workers, as failure to do so can result in serious penalties and tax consequences.
April 19, 2019/by Justin W. Anisman

The Duty to Mitigate

Terminated employees are obligated to make reasonable efforts to find comparable new employment. This obligation is referred to as a "Duty to Mitigate". In other words, employees have an obligation to do what they can to limit the damage they may have suffered from their termination. They cannot sit back and do nothing to find another job throughout the notice period and just charge their wages to their former employer. In this article, we will review what employees and employers need to know about the duty to mitigate, including factors to consider and how courts decide on whether or not that duty is met.
January 24, 2020/by Justin W. Anisman

Understanding Restrictive Covenants: Non-Solicitation and Non-Compete

Non-solicitation and non-competition clauses are used to protect employers from losing customers or business as a result of a departing employee.

Over the course of their employment, employees may acquire specialized knowledge of a company's trade secrets, expertise or other unique proprietary information about their employers. In many cases, particularly in sales, employees establish and maintain successful and close relationships with customers or clients. While these are positive elements of an employment relationship, when an employee changes jobs, the company intelligence they take with them and their subsisting relationship with company clients, can pose issues for employers.

As a result, employers often look for ways to protect their business interests, customer bases and other threats of competition. One way employers can do this is by imposing restrictive covenants on their employees in their employment contracts.

In this article, I will explain two of the most common restrictive covenants: non-solicitation and non-competition.
July 17, 2020/by Justin W. Anisman

I’ve been fired. Does my employer have to tell me why?

Ontario employers are under no obligation to give a reason after terminating an  employee. In fact, Ontario employers do not need a reason at all to end an employment relationship and, therefore, are not required to prove that the employee did something wrong to justify why they were fired. Instead, an employer simply must provide the employee with reasonable notice.
February 10, 2018/by Justin W. Anisman

How much notice/severance should I get after being fired?

"Notice" and "severance", though often used interchangeably in common parlance, mean different things. Under the Employment Standards Act, severance pay is defined and is an amount of money an employer needs to pay an employee on termination if certain conditions are met. In addition to severance, employers must give notice of termination to employees.
February 10, 2018/by Justin W. Anisman

EI: Employment Insurance Basics

Life circumstances change and can have an impact on a person's…
December 4, 2019/by Justin W. Anisman

All Ontario Employers Need New Employment Contracts: Court of Appeal

Due to a very disruptive decision released by the Ontario Court…
June 25, 2020/by Justin W. Anisman

Important Upcoming Changes to the Ontario Workplace

On November 27, 2017, the Fair Workplaces, Better Jobs Act 2017 received royal assent and became Law in Ontario. Set out below are some of the most important changes to Ontario’s workplaces, including significant changes to minimum wage, employees rights to leave, pay equity, employers record keeping obligations and more.
November 29, 2017/by Justin W. Anisman

Marijuana at Work after Legalization

The Canadian and Ontario governments have now announced the Rules and Regulations for marijuana, which is set to become legal across Canada for recreational use in October of this year. The legalization of marijuana raises many new challenges and concerns about the effect on workplace safety. Here are answers to some of the most common questions I'm asked.
June 28, 2018/by Justin W. Anisman
Employment Contracts and how to Change them according to Toronto Employment Lawyer, Justin W. Anisman

How to Change Employment Contracts

Anytime you ask an existing employee to sign a new employment…
October 29, 2018/by Justin W. Anisman

Equal Pay in the Ontario Workplace

Over the past 30 years there has been a gradual progression to…
May 20, 2018/by Justin W. Anisman

Employment Law for EMS, Healthcare Workers and Health Professionals

If you work in emergency medical services (EMS), healthcare or…
September 1, 2020/by Justin W. Anisman

Bonus After Being Fired

Businesses often refuse to pay a bonus after an employee is fired,…
March 7, 2020/by Justin W. Anisman

Entitlements to Unvested Stock Options After Termination

Where stock options or restricted share units (RSUs) form a large…
September 22, 2020/by Justin W. Anisman

Discrimination during the Job Interview and Hiring Process

Discrimination in the course of a job interview or in the making of hiring decisions remains too common across Ontario. While the job interview is an opportunity for both employers and job seekers to learn about each other and to determine suitability or fit for the job at hand, attempts by an employer to solicit information that relate to the "protected grounds" (i.e. race, age, sex, gender, identity etc.) under the Ontario Human Rights Code is generally off limits.

Ontario workers are protected from discrimination even at the pre-hiring, interview or application stage of employment. It is important, therefore, for both employees and employers to understand what questions are appropriate and which are not.

This article will review some of guidelines around pre-employment screening during the interviewing and hiring process.
August 7, 2020/by Justin W. Anisman