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What Employees Need to Know About COVID-19

The World Health Organization officially declared the spread of COVID-19 to be a worldwide pandemic on March 11, 2020.  The impacts of this spread are already being felt by Canadians, and they are sure to get worse before they get better. Workers should be aware of their rights and obligations in the coming months. This short primer provides an overview of some of those rights and obligations. Every employee’s situation is different and these suggestions are not provided as or a substitute for legal advice.

All Ontarians should stay informed: Government of Canada’s Response to COVID-19

I’m infected but I can’t afford not to work. What should I do?

While anyone who is infected or thinks they are infected should immediately quarantine themselves to prevent the spread of the disease, the harsh reality is that many people cannot afford to take even one day off from work if they are going to make ends meet. Employees in this position have several options open to them:

  • Figure out if you are entitled to leave under the Employment Standards Act (“ESA”). Many workers in Ontario are entitled to a variety of statutory leaves, including family medical leave, family caregiver leave, critical illness leave, sick leave, and family responsibility leave. Each leave is only available if the worker is provincially regulated and if they meet specific eligibility criteria set out in the ESA. Moreover, while various leaves might be available to the same person, statutory leaves are not necessarily paid and can sometimes offset employer-provided benefits. Workers should also keep in mind that employers may be able to request evidence to substantiate their eligibility for certain leaves.
  • Review your contract of employment and/or your employer’s policies for entitlements to sick leave or other leaves of absence. While many statutory leaves do not require employers to pay employees, some employers offer benefits beyond those guaranteed in the ESA. Many employers are also implementing special policies to address COVID-19, which may provide for enhanced benefits. Employees should check with their employers to see if they are being offered additional sick leave entitlements or alternative work arrangements, such as more generous policies on the ability to work from home. Again, keep in mind that these benefits may offset against ESA benefits and employers could likely ask for evidence to substantiate eligibility for certain entitlements.
  • Consider applying for employment insurance. Workers who are unable to work due to infection by COVID-19 may also be eligible for security benefits from various government programs. For example, on March 11, 2020, the federal government announced that it is waiving the one-week waiting period for Employment Insurance for employees quarantined, or directed to quarantine themselves, because of COVID-19. Some employees in Ontario might also be eligible for workers’ compensation through the Workplace Safety and Insurance Board, depending on the risks associated with their work and how they became infected, among other things.

If you need more information about Employment Insurance (EI) you can read the earlier article on “the Basics of Employment Insurance (EI)“.

Can my employer make me stay home if they think I have COVID-19?

Probably not, but this depends on why they think you’re infected and on the nature of your workplace. Employees in Ontario are protected by human rights legislation, such as the Ontario Human Rights Code (“Code”). Among other things, the Code prohibits discrimination in employment on the basis of disability, ethnic origin, place of origin, race, and family status. Diseases, such as COVID-19, engage the protected ground of disability because it covers medical conditions that carry significant social stigma. This protection also extends to a perceived disability or medical condition, meaning it may still be a violation of the Code if an employer discriminates against a worker they think is infected even if the worker is perfectly healthy. The Code may also be breached where employers discriminate against individuals or communities because of an association, perceived or otherwise, with COVID-19, for example because the individual is originally from or has travelled through regions that are believed to be suffering more greatly from the spread of the disease.

Someone in my family is infected and I need to care for them or others now that they are quarantined. Do I get time off from work to do so?

Maybe. As noted above, employees in Ontario are entitled to a range of statutory leaves, including family medical leave, family caregiver leave, critical illness leave, and family responsibility leave. These may be accessible to workers needing time off to take up family responsibilities during the COVID-19 pandemic. In addition, in certain circumstances, denying a person time off to care for family members may amount to a breach of the Code on the basis of family status. Note, though, that not every caregiver situation will fall into that category. While employers are expected to make reasonable efforts to accommodate legitimate family responsibilities, employees are equally expected to cooperate with that accommodation process and, if possible, to make alternative arrangements to avoid absenteeism.

Do I have to tell my employer that I’m infected with COVID-19 or that I think I’m infected? Can my employer ask me if I’ve been tested? Can they ask me for my results?

If you are infected or think you are infected, then every effort should be made to stay quarantined and seek appropriate medical care. But equally important to getting yourself healthy is avoiding the spread of the disease to others. Disclosing your condition to access the benefits and protections discussed above is a key way to go about doing this. Moreover, keep in mind that most employers will welcome knowing that their staff are infected to ensure proper accommodation and workplace safety. Further, as noted above, sanctions against employees for disclosing their infection would very likely amount to a breach of the Code.

That being said, there is no general duty requiring employees to disclose their illnesses to their employers, and employers cannot generally inquire about that sort of information. Employees do have obligations when it comes to their own accommodation in the workplace, however, and employers will probably have policies in place providing for a highly confidential disclosure process to facilitate accommodation pursuant to employer obligations under the Code.

At the same time, employees should note that employers do have statutory obligations to ensure workplace safety. The ongoing spread of COVID-19, along with increasing infection rates and associated health risks, may eventually necessitate a more proactive approach by employers. This may include, among other things, inquiries about whether employees are infected. Of course, any steps taken by an employer in this respect, along with any answers given by an employee, would be subject to privacy legislation and would have to be reasonable and tailored to the circumstances.

Can I wear a mask to work?

Right now, probably not. Healthy individuals cannot really reduce their risk of infection by wearing a face mask, and there are currently no government recommendations that people do so. As a result, whether employees are permitted to wear a mask at work will depend on the workplace and the type of work being done. Employees working in the health sector, for example, may have a more reasonable basis to wear a mask because they are more likely to be exposed to infected individuals, or they may be more likely to spread the infection to people who are immunocompromised. In comparison, employees working in less dangerous workplaces that are oriented to customer service, for example in the retail industry, do not share the same risks and therefore do not share the same need for protection. In each case, employers will need to weigh their legitimate business needs against the reasonableness of each individual employee’s request. The reasonableness of the request may also change as the disease continues to spread.


Contact Will McLennan

Contact Will McLennan, the author of this article, about any employment law related questions or issues you may be facing. Call 416-304-6528 or email him at wmclennan@btlegal.ca.

Will is an Associate of the Employment Group at BT Legal. In this role, he advises on all aspects of employment and labour law, including representation before administrative tribunals, collective agreement negotiations, arbitrations, wrongful dismissals, breach of contract, breach of fiduciary duty, and human rights.

Before joining BT Legal, Will articled and worked as an associate at an employment firm in Toronto where he assisted employer clients in formulating practical solutions for a wide variety of workplace-related issues.

Will was called to the bar in 2018, after earning a J.D. from Schulich School of Law. Prior to attending Law School, Will obtained his Honours Bachelor of Political Science and Philosophy from McGill University.

Photograph of Will McLennan, Author of COVID-19 Article.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

Bonus After Being Fired

Businesses often refuse to pay a bonus after an employee is fired, but, in some cases, the law in Ontario requires them to. Employers need carefully drafted bonus policies if they wish to avoid this obligation and employees need to know when to fight for their bonus after being fired, laid off or terminated.

Determining Whether a Bonus is Owed

The established legal test for determining an employee’s entitlement to damages on account of a lost bonus was set out by the Ontario Court of Appeal in Paquette v TeraGo Networks Inc. (“Paquette“).

In Paquette, the Court of Appeal judge noted that the motion judge’s analysis focused only on the wording of the incentive plan.  The Court of Appeal judge stated that the motion judge should have focused on whether the wording of the plan was effective to limit his right to receive compensation for lost wages (including both salary and bonus) during the period of reasonable notice.

The legal test involves consideration of the following questions:

  1. Was the bonus an integral part of the employee’s compensation package, thereby triggering a common law entitlement to damages in lieu of bonus? and
  2. If so, is there any language in the bonus plan that would restrict the employee’s common law entitlement to damages in lieu of a bonus over the reasonable notice period?

The Court relied upon the basic principle of damages for wrongful dismissal that the employee should be in the position that he would have been, had he not been wrongfully terminated. Based on this, the Court found that the employee would have received the bonus and the requirement that he be actively employed could not limit his right to the bonus, because the reason he was not working was the employer’s wrongdoing in terminating the employee.

Language In the Contract and Bonus Plan Matters

Bonus plans can be effective in restricting an employee’s entitlement to bonuses in some cases but not in all cases. The plans must be carefully drafted so that they contain clear and unambiguous terms because courts are increasingly applying detailed scrutiny to their language and wording when determining entitlement.

The language must be very clear and state restrictions to entitlements in very definite terms – with no ambiguity. For example, the commonly used restrictive clause “employee must be actively employed” or engaged in “active employment” can be interpreted in different ways. Whether an employee is actively employed during the reasonable notice or statutory notice period is not always clear.

In another case, Kielb v National Money Mart Company (“Kielb”), an employee had signed an employment contract that contained a bonus plan limitation clause that stated the bonus would not accrue and was only payable on the payout date.

The employee argued that this limitation clause was unenforceable due to its ambiguous and contradictory nature and because it contravened the Employment Standards Act. The trial judge rejected these arguments. He found the limitation clause to be unambiguous. Read in its entirety, it was clear that if the bonus payout date had fallen within the notice period, then the employer would have been obliged to honour it. Upon appeal, the Court of Appeal agreed that the language disentitled the employee . 

A Bonus Limitation Clause Needs to be Brought to the Employee’s Attention

In 2019, the Court of Appeal seems to have held that not only does a bonus limitation clause need to be clear, enforceable and unambiguous, it may also need to be brought to the workers attention.

In Dawe v The Equitable Life Insurance Company of Canada (“Dawe“), an employee was terminated without cause after 37 years of service. He sued for wrongful dismissal.  The restrictive term provided that in order to participate in the plan, an employee “must be in the employ of the company at the time” the pay is processed.  The employee alleged that he was never made aware of the change to his entitlements.

The motion judge found that the employee was entitled to his bonus for the notice period because it was an integral component of his compensation and the terms of the plans did not displace his common law entitlement. The employer appealed the motion judge’s decision to the Court of Appeal. Although the Court of Appeal ultimately agreed that the language in the contract and bonus plan effectively limited the employee’s bonus entitlement after termination, the Court of Appeal did not overturn the motion judge’s decision. The Court found that there was insufficient proof indicating that the employee fully appreciated the impact of the clause on his bonus entitlement after getting fired. 

The Final Word on Bonuses after Termination

The Ontario Courts are concerned that employees know clearly what their rights are on termination. In this regard, their is an emphasis on the words used in the employers contracts and policies. Whether an employee is entitled to payment of their bonus after being terminated is difficult to know with any certainty for laymen and laywoman. This area of the law is currently in flux. The Supreme Court of Canada is currently opining on this issue and the law could change with their next decision.

While I ordinarily try to avoid shameless plugs, legal advice is critical in these circumstances and should be sought out.

Suggested recommendations for employers:

  • Keep in mind that, if there is nothing that states otherwise, employees are entitled to bonus payments during the period of reasonable notice. As well, even if there is a contract or policy that says otherwise, it may not be enforceable, particularly where the result is harsh.
  • The use of clear, unambiguous language is critical but is difficult to achieve in practice. Seek legal advice when drafting employment agreements, especially when including limiting language. The courts have clearly shown their willingness to rule against employers where there is any ambiguity.
  • Structure compensation packages for new hires such that the bonuses are not an integral part of compensation, as well as including limiting language.
  • Stipulate within the bonus plan that employees have no entitlement to bonuses during periods of reasonable notice. This limiting language must be clear and unambiguous.
  • Create and practice a fair and clear process when assessing entitlements to a discretionary bonus for the period up to an employee’s dismissal. 
  • Conscientiously document performance issues or other issues that may influence bonus eligibility as per applicable bonus policies or employment contracts.

Suggested recommendations for employees:

Employees need to recognise the importance of understanding all terms of their contract before signing it. Suggested course of actions for employees include:

  • Employees should not make assumptions as to whether or not they are entitled to bonuses, particularly where they have accrued. 
  • Employees need to take proactive steps to seek advice before signing any agreements.
  • Bargain for better terms in contracts before signing them.
  • Explore bonus claims even if the bonus plans appear to preclude them from payment

The bottom line is that there continues to be uncertainty regarding the rules around assessing an employee’s right to a bonus after dismissal. Courts strictly scrutinise wordings of bonus plans and employment contacts as part of their decision processes. In the end, employers need to ensure that their bonus policy includes clear, unambiguous language regarding the entitlements of employees upon dismissal.


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btlegal.ca.

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.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

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.

Statutory Minimum Notice Periods VS Common Law Notice Periods

Upon being fired, an employee is entitled to receive either (1) working notice, or (2) pay-in-lieu of notice. Working notice is not unusual but more often than not an employee is unhappy about being fired and an employer is concerned that the employee may do something to hurt the employer’s business while working to the end of the notice period. For that reason, employers usually chooses to terminate the employee immediately and, provide pay in lieu of notice.

The Employment Standards Act contains only the minimum entitlements that employees must receive on termination. Likewise, the Canada Labour Code sets out the minimum notice periods and severance entitlements for federally regulated employees (i.e. banking and telecommunications). However, just like the minimum wage, most employees should get a lot more than the minimums.

Judge made law or otherwise the law made by the Courts is called the “common law”. It entitles most employees to “reasonable notice”. Reasonable notice is much greater than the statutory minimums. Employees default to getting common law reasonable notice, unless they have a written employment contract that says otherwise.

There is no set formula to calculate common law notice. Generally, it is accepted that the average short-term employee is owed three to six months of notice, a long-term employee in a senior position may be owed up to 24 months or more, and somewhere in the middle for the other lengths of employment. How senior the employee’s position is will also be a factor. For example, a vice president or manager may be entitled to higher pay in lieu of notice that an employee doing a low level job, even for the same length of time. The employee’s age and the availability of alternative employment are also factors the Courts consider.

You can learn more about ‘Reasonable Notice’ and what the appropriate length is for different employees in my earlier article on “How much notice/severance should I get after being fired?.”

Termination Clauses

A termination clause in an employment contract alters an employee’s entitlements to common law reasonable notice. While it could technically provide for more, more often than not, employers include termination clauses to limit what an employee would otherwise get after being fired. Termination clauses cannot limit entitlements to below the minimums.

Where there is a valid and enforceable termination clause, an employee would not be successful if they attempted to seek more in a wrongful dismissal action. Fortunately, the Courts are often persuaded to strike out termination provisions. There are a number of different reasons that a court might find a termination clause unenforceable, such as pressure being put on the employee at the time of signing of the contract or where the limits on the severance pay are less than the minimums. If the termination clause is successfully struck out common law notice applies.

An experienced employment lawyer can offer advice on options on how to deal with terminations — for example whether one should sue for wrongful dismissal or alternately file a claim for termination pay or severance pay with the Ministry of Labour. It should be noted that a person cannot do both – sue for wrongful dismissal and file a claim for termination or severance pay. Seeking legal advice on rights is recommended to make the right decision. An employment lawyer can also help ensure payments for common law notice are maximized either through court action or a negotiated settlement.

When are termination clauses unenforceable?

In Movati Athletic Group v Bergeron, an employee had worked for about 16 months before she was terminated without cause. Purporting to rely on the termination clause in her contract, the company gave her the minimum entitlements under Ontario’s Employment Standards Act, 2000 (ESA). The employee claimed damages for wrongful dismissal arguing that the termination clause in her employment contract was not clear enough to rebut the presumption that she was entitled to common law reasonable notice of termination.

The court found the termination clause not clear and as a result, the employee received three months’ pay in lieu of reasonable notice of termination instead of her statutory minimum entitlements. This case illustrates how important it is for employers to make all efforts to expertly craft termination clause wordings and how important it is for employees to have their employment contracts checked by a lawyer before deciding whether it is actually enforceable.

A court will not enforce a termination clause that excludes minimum statutory entitlements upon dismissal as set out in the ESA or Canada Labour Code. It is illegal for an employer to provide less than the minimum standards of the ESA or Code, even if the employee has voluntarily agreed to accept a lower amount. Additionally, a court will not enforce a termination clause if it has not been properly drafted. Poorly drafted clauses are very common and any ambiguity in the language in the termination clauses usually acts against the employer.

Termination Provisions must use the clearest possible language when trying to limit an employee’s rights upon termination. Failing to use explicit language leaves the door open for varying views and interpretations of intention and, therefore, the clause may be set aside by a court for ambiguity.  Courts resolve drafting ambiguities in favour of employees.

Laws on termination clauses continue to evolve. It is important to keep abreast of changes and consult with employment lawyers when employers are drafting clauses or when you, an employee, are terminated


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btlegal.ca.

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.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

Accommodating Mental Health Illness

Mental health illnesses affect approximately 20% of Canadian workers and cost the country billions of dollars. According to the Centre for Addiction and Mental Health and the Canadian Mental Health Association, at least 500,000 employees are unable to work due to mental health issues in any given week.

The ability to engage in meaningful, paid work is a basic human right for every person.

In this article, we will discuss how employers are required to respond promptly and effectively when employees declare or display mental health issues. This response is referred to as the duty to accommodate and we will outline why accommodation is necessary, forms of accommodation, how to identify the need for accommodation and some solutions organizations can apply to ensure duty to accommodate can be met.

Why is accommodation necessary?

The goal of any accommodation is to ensure that any employee who is able to work yet who is experiencing some form of mental health issue or addiction issue has been offered options to be able to continue to work in a modified manner. It is an employer’s obligation under the Human Rights Code to respond immediately and appropriately when employees experience mental health problems. Proper support must be put in place to manage performance and productivity issues.

What is considered accommodation?

Mental health issues and the way they manifest themselves vary greatly. As a result, accommodations must be developed and applied on a case-by-case basis. The employer does not have a duty to change working conditions fundamentally but the employer must accommodate the employee in a way that will ensure that the employee can work as long as it does not provide undue hardship to the employer.

The standard of undue hardship is a very high standard for an employer to meet and it often means they are required to go to extreme lengths and even expense to accommodate.

Accommodation may include job restructuring, job bundling, reassignment to other positions, or retraining for other positions.

Examples of Duty to Accommodate

  • Providing stress leave for a person suffering depression or anxiety
  • Allowing a flexible work schedule to accommodate psychiatric or therapy appointments
  • Providing a quiet work environment with opportunity to work from home
  • Time off with pay to attend treatment programs for drug or alcohol dependency

How do employers identify the need to accommodate?

Often employers are afraid of saying or doing the wrong thing, so they say nothing. This can lead to poor productivity, lower morale, and conflict in the work environment.  However, employers should be aware that employees could be reluctant to disclose mental health issues. Where behaviour in the workplace makes it apparent that the employee is having mental health issues, the employer cannot simply terminate an employee who is not performing his or her job.  For example, a worker may be found to be crying at his desk and not completing his work or being repeatedly absent from work. This creates a duty to inquire on the part of the employer who must give the employee an opportunity to explain

Stigma around mental health often makes it difficult to identify needs to accommodate. Sometimes employees are unable to accurately pinpoint their disability needs, which make it difficult for employers to determine if a duty to accommodate exists.  Depending on the situation, the failure to accommodate an employee’s mental illness may constitute discrimination and give rise to human rights complaints or employment law claims. Employers must ensure that requests for accommodation are adequately addressed to avoid such claims.

Accommodating a disabled employee can cause frustrations both on the part of the employer and employee. Often they are suspicious of each other and do not understand their respective rights and obligations. Additionally, the employees are very vulnerable – financially, physically, and/or psychologically which complicates situations and raises the stakes for Human Rights Code violations. Potential liabilities can be significant if taken to court. 

The court has emphasized that employers need to act with empathy. What constitutes reasonable measures to meet the duty to accommodate is a question of fact and will vary with the circumstances of the case. The onus is on the employer to establish that it could not accommodate the employee without “undue hardship”.

What if accommodating an employee is too difficult for an employer? What is Undue Hardship?

There are no formal criteria for determining undue hardship. The courts will consider the context, health and safety of the employee, the cost to the employer in providing accommodations, collective agreements, workplace policies and procedures, the inter-changeability of the employer’s workforce and facilities and the operational requirements of the employer’s workplace. 

There is a reasonable limit to how far an employer or service provider has to go to accommodate an employee’s needs. They can claim undue hardship as the reason why certain policies or practices need to stay in place, even though they may have a negative effect on the employee. Although company policies and procedures may be robust, the need to go beyond them to accommodate an employee does not necessarily constitute undue hardship. For that reason, each case requires a tailored approach.  Sufficient evidence is necessary to assess claims for undue hardship. 

Generally, it will be more difficult for a larger organization with a large workforce to establish undue hardship.  This is because the cost of an individual accommodation will be proportionately less and because there are more alternative work opportunities if required in the accommodation plan. Conversely, a small employer may not be reasonably able to bear the financial burden of accommodation or may not have other employees who can do the work that the disabled employee is unable to complete.  Accommodation in such a case would more easily amount to undue hardship, which relieves the employer of having to accommodate the disability.

The Jurisprudence

The case of Harden v The Ottawa Hospital illustrates some interesting points regarding the collaborative nature of the duty to accommodate process such as an employer’s obligation to offer acceptable levels of duty to accommodate, be responsible to diligently investigate accommodation and propose job options, as well as an employee’s obligation to actively participate in the accommodation process by promptly providing medical information, be truly committed to seeking work that accommodates restrictions and make sincere efforts to secure positions. The duty to accommodate process demands active participation on the part of both the employer and employee.

In this case, the employee has a mental health condition that prevented her from working in her regular job as a registered nurse providing bedside nursing in a critical-care hospital setting. In the end, the employee resigned despite the fact that a reasonable offer of temporary accommodated employment by the hospital was available. She firmly believed she was discriminated against because her employer did not find a permanent job, which met her substantial restrictions, and because the hospital did not offer her several years of salary in exchange for her resignation from employment. The employee felt the hospital owed her more than it was prepared to offer by following its standard process of accommodation. She was seeking a financial package in exchange for her resignation as part of the duty to accommodate.

Ultimately, this position demonstrates a misunderstanding of the duty to accommodate. The duty to accommodate mandates that the employer to carefully consideration the individuals situation and provide meaningful attempts to find appropriate accommodations. It does not dictate that employer needs to provide new jobs or offer any sort of “buy-outs”.

The court concluded that the employer had discharged its duty to accommodate the employee to the point of undue hardship and dismissed the application.

Finding Solutions

Employers must engage in creative problem solving when asked to accommodate a mental health issue. Insurance benefit plans must treat disabilities equally and workplace policies and procedures must be flexible and adaptable to those having a mental disability. 

Organizations need to make sure they openly address stereotypes and make their organizational cultures more responsive to people with psychosocial disabilities. Under the Code, organizations are obliged to ensure they offer an inclusive work environments that meets the needs of people with mental health disabilities and addictions – thus promoting full inclusion and participation. 

Employers are not required to:

  • Continue to employ persons who are unable to fulfil basic employment obligations over the foreseeable future;
  • Create completely new positions or provide employees with meaningless work where the employee is incapable of anything else;
  • Cater to any specific form of accommodation preferred by the employee

Employees are required to cooperate and accept reasonable alternatives when presented and to provide all information requested by employers about the disability.

In summary

The costs and impact of disability and illness are very high:

  • For workers it translates into loss of income and impacts on self, family, and social environments;
  • For employers it translates into increased insurance premiums, loss of productivity by trained workers, and increased recruitment costs;
  • For society it translates into costs of social programs for individuals who may otherwise be productive and active members of the workforce.

Offering appropriate accommodations (temporary or permanent) to employees due to illness, injury or disability is a win-win for both employers and employees and is what the law in Ontario requires.


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btlegal.ca.

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.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

The Duty to Mitigate

When employees are dismissed with cause or without just cause, they are obligated to make a reasonable effort to find comparable new employment within the period of reasonable notice. This obligation is referred to as their “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 that 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 it is met.

What is the Duty to Mitigate?

The duty to mitigate is engaged within a reasonable period of time after an employee is terminated. Employers may argue in court that damages are not owed because the employee could have been re-employed if they tried harder to find a comparable job. In these cases the courts make thorough assessments of effort and consider a broad range of factors, circumstances and evidence. Awards will be significantly reduced if the courts find that efforts are found to be insufficient or if the employee unreasonably refused alternate comparable employment. 

Employees are expected to take steps that any reasonable person in a similar situation would take to find comparable employment and to accept that employment if it becomes available. Of note, though, a dismissed employee is not expected to accept employment that isn’t comparable to their former position. For example, a senior executive at one company wouldn’t be expected to take on an entry-level or mid-management position elsewhere just for the sake of being employed.

What does comparable employment mean?

The Ontario Court of Appeal has emphasized that “comparable employment” does not mean “any employment”. In order to be “comparable”, offers of employment must be comprehensive of the status, hours, and remuneration of the employee’s employment with his/her former employer.

How to Mitigate?

There are different ways that employees can mitigate their damages from a wrongful or constructive dismissal. An employee can accept:

  1. Re-employment with the same employer
  2. Employment in a non-comparable job position, or
  3. Employment in a comparable job position

Re-employment with the same employer

In some cases, an employer may dismiss an employee from their job, but offer a different position within the company or the same position but at a reduced pay rate or reduced level of responsibility.

Several judges have concluded that an employee can refuse an offer of alternative employment with the same employer where the work environment the employee would be returning to is hostile or would cause loss of dignity or embarrassment. Courts look at the entire context including the employee’s relationships with individuals at the former workplace, salary, and similar work conditions and responsibilities.

Lets look at three legal cases that cover different decision outcomes.

Dussault v Imperial Oil Limited

The Ontario Court of Appeal found that two employees who refused offers of employment from the purchaser of their employer did not fail to mitigate their damages since the employment that was offered was not “comparable.” In the case, the plaintiffs received less favourable offers of employment — offers where their salaries would be reduced after a period of 18 months and their prior service with Imperial would not be recognised. As a result, they both rejected the offers and brought a wrongful dismissal action against Imperial. 

The case went before the Court of Appeal during which time Imperial Oil argued that the motion judge erred in failing to find that the employees had not mitigated their damages by accepting comparable employment with Mac’s (who had purchased the previous employer). The Court rejected that argument and agreed with the decision of the motion judge that the employment offered by Mac’s was not comparable and that it would have resulted in an immediate, substantial decrease in the plaintiffs’ benefits, as well as a material drop in their base salaries. As well, the Court found there was no reason to depart from the well-established principle that “comparable employment” does not mean “any employment,” and requires an offer with comparable status, hours, and pay.

Benjamin v. Cascades Canada ULC

In this case, an employee chose to retrain instead of accepting a comparable employment offer and the Court fund that the duty to mitigate was not met. The Judge wrote: “retraining on its own is not evidence of a failure to reasonably mitigate damages; rather, if an employer can establish that comparable work is available and the employee made a choice to retrain and not to seek comparable employment, retraining would not constitute reasonable mitigation.”

This case indicates that retraining can be considered reasonable mitigation in certain cases but employers will not be required to fund retraining through the payment of reasonable notice for employees that could have otherwise secured a similar position instead. Interestingly, participating in retraining as mitigation in cases where no comparable employment is available may be considered as “reasonable”.

Evans v. Teamsters Local Union No. 31

In the third case the employee rejected the comparable employment offer and the duty to mitigate was not met. The Supreme Court of Canada ruled that an employee has to accept alternate jobs offered by the employer as part of the duty to mitigate only if a “reasonable person would accept that opportunity”. Where a reasonable person would not return to work for the same employer then there is no need to return to the company that fired you just because it is offering a comparable job.

Re-employment with a Non-Comparable Job

There is no obligation to mitigate by taking a job that is not comparable and/or not in line with what the employees training, education and experience has prepared him for. As an easy example, a former CEO does not have to take a job at McDonalds after termination.

Employment in a comparable job position

Upon finding a new comparable job, an employee’s entitlements to reasonable notice end.

Conclusion

Employer tips:

  • Employers can reduce their potential liability by offering support to departing employees. Such measures can include career counselling, outplacement services, reference letters and notifications of comparable positions with their businesses or elsewhere. 
  • Offering positive references and making efforts to end things on good terms with employees will also reduce employer’s liability by making it easier for the employees to find a new position.
  • If the employee fails to take advantage of this assistance, the employer may be able to prove a failure to mitigate thus reducing company liability for wrongful dismissal damages.

Employee tips:

  • Employees should be aware that the onus is on them to make a reasonable efforts to seek comparable employment when dismissed.
  • Always create and keep a detailed log sheet of all efforts to find a new job. Keep dates and times listed for when you updated your resume, updated your Linked In or other social media platforms, join Indeed or Monster, saved jobs to consider, worked on cover letters. Keep a list of jobs you applied for and whether or not you got interviews. The more detail and effort included in your job  search logs the easier it will be to establish your attempts to mitigate.

Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btlegal.ca.

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.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

Employee Classification Risks

The way people view and perform work is changing and Canadians must be ready to respond. Short-term engagements, temporary contracts and independent contracting characterize this type of workforce. Organizations often rely on contractors to fill key positions, help maintain labour flexibility and keep overhead costs under control. However, any organization that uses independent contractors or is considering doing so, need to be aware of the associated risks and seek the advice of experienced legal counsel.

This article sets out to use a recent Uber class action, Uber v Heller, as a precedent to exemplify the legal and financial risks associated with how companies classify workers. We will look at how the courts make decisions on classification of workers, what protection is available to independent contract workers; and finally suggest some ways businesses can build practices to protect themselves.

Workers need to understand how they are classified, what it means; and take action when there is an issue. Employers need to understand how to create and maintain proper practices to accurately assess and classify their workforce.

Let’s look at Uber v Heller more closely.

In the Uber Class Action, the plaintiffs seek $400 million in damages as well as a declaration that Uber drivers are employees (not contractors) of Uber and therefore entitled to the benefits and protections afforded by the Employment Standards Act (ESA).

Uber brought a preliminary challenge to the proposed class action on the basis that its drivers, including Mr. Heller, were precluded from proceeding through the courts as they had instead agreed to resolve any disputes through private arbitration in the Netherlands. In the end, the action was stayed in favour of arbitration. For a more detailed review of this decision see my earlier article Arbitration Clause in Employment Contract puts the Breaks on the Uber Class Action in Ontario

Mr. Heller appealed the stay decision to the Court of Appeal claiming that the arbitration clause in Uber’s driver services agreement represents an unlawful contracting out of the ESA and that the clause is unconscionable and thus invalid at law. The Court of Appeal accepted both arguments and overturned the decision of the motion judge. I also wrote about this Court of Appeal decision: Uber Class Action Given the Green Light to Proceed by Ontario Court of Appeal

So, are Uber Drivers now classified as Employees?

The Ontario courts have yet to answer the question of classification — whether Uber drivers are classified as employees. The ruling on the classification is the larger issue in the Uber case litigation. However, at this time, the court is still determining the preliminary issues of jurisdiction and the enforceability of the arbitration clause. The Supreme Court of Canada – the highest court in our country – has granted to hear Uber’s appeal.

This case clearly demonstrates the significant impact of improper classification claims on a large company. Regardless of the outcome of the Uber case in terms of classification, the case demonstrates that clarity and enforceability of the classification system used by an employer is very instrumental in protecting employers against costly litigation such as what Uber is currently involved in.

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.

How do the courts determine worker classification?

In Sagaz Industries Canada Inc., the Supreme Court of Canada outlined some of the factors to consider in determining whether a worker is an employee or an independent contractor. In the decision, the Supreme Court of Canada makes the point that there is no single test that provides a clear answer to ever-changing variables of workforce relations (hence classification of employee versus independent contractor) and that people must examine all possible factors in the relationships to form a picture of the total relationship of the parties.

Canadian courts and tribunals have developed common law tests associated with the employment relationship to determine who is an employee and who is an independent contractor. The following are key factors considered in these tests:

  • Control
  • Ownership of tools
  • Chance of profit/risk of loss
  • Business integration
  • Payment
  • The factors are weighed and considered together in determining whether a person is an employee or independent contractor.

As an example, if the relationship looks like an employment relationship wherein the employer controls working conditions and the worker is economically dependent on the employer, the worker will likely be found to be an employee.

Worker Classification Example:

The case Fisher v Hirtz, 2016 ONSC 4768 details the scope of review and analysis necessary in determining the true legal nature of employment relationships and employee classifications therein and the impact of that classification on dismissal claims.

In this case, the plaintiff sues a company for wrongful dismissal. In the end, her claim was dismissed because the court determined she should be classified as an independent contractor not an employee. Had she been deemed an employee or dependent contractor, the court would have concluded, among other things, that she did not quit but was dismissed without cause and was entitled to pay in lieu of reasonable notice.

Employee versus contractor cases result in varying decisions on classification — there is no set formula to determine classifications. Decisions must be on a case-by-case basis involving close attention to the factors in each case. In the end, the true legal nature of the employment relationship must be identified and clarified.

In determining the true legal nature of relationships the courts look at:

  • The intentions of the parties
  • How the parties themselves regard the relationships
  • The behaviour of the parties toward each other
  • The manner of conducting their business with one another.

In Fisher v Hirtz, the court followed the tiered analysis and applied the above legal principles of established methodologies and criteria. In the end, the worker was deemed a contractor as her employer assigned the work, as it did to other trades persons, but she controlled whether she would accept the assignment.

The first stage of analysis will end once the worker is determined to be an employee. If the worker is determined to be a “contractor” the analysis will continue through a second stage to decide if they are a dependent contractor or an independent contractor.

In the case cited above, during the second stage of the analysis, the court determined she was an independent contractor as she had only provided varying amounts of services over a sixteen-month period during which she also carried on business as a sole proprietor. There was little evidence of any long-term dependency.

General Overview of Independent Contractors

Essentially, contractors are self-employed service providers who manage their own businesses.

An independent contractor has more freedom to choose how they complete work but are responsible for paying their own taxes, getting their own health insurance, and paying into unemployment and workers compensation funds. The most important factor is the level of control an employer has over the worker.

In contrast, an employee works under the control of an employer and has certain benefits provided by the employer including workers compensation, unemployment insurance, and health insurance.

Protection for Contract Employees

Canadian law has not yet caught up with changes in the labour market and contract workers are generally excluded from the protections and benefits that accompany traditional paid employment.

Gig workers are generally treated as independent contractors with none of the employment rights guarantees available in more regular jobs. The Employment Standards Act (ESA) does not apply to independent contractors, volunteers or other individuals who are not considered employees under the ESA.

How can businesses and employers protect themselves?

Practice development tips:

  • Take a proactive approach to reviewing the workforce and classifying employees accordingly. This can save a lot of headaches, potential penalties and even mitigate the risk of litigation.
  • Make sure employees are not misclassified as contractors when they should be recognized as regular staff with rights under the Employment Standards Act — contact an experienced employment lawyer for advice if necessary.
  • Regularly monitor the relationship to ensure the contractor’s independent status doesn’t change. For example, a company might hire an independent contractor who becomes more engaged in the company over years. If the company’s reliance on the individual’s services grows, the individual could be deemed an employee.

Workforce Tips:

  • If there are independent contractors who are actually being treated like employees, it may be time to change their classification.
  • At time of hiring, if a worker insists that they want to be an independent contractor and not an employee, it is advisable to investigate the situation and seek legal advice before agreeing.
  • In the event of a challenge, the practical reality will govern the classification and not what is written in a contract.

Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btlegal.ca.

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.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

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”.

This article will be focusing on discipline in the workplace aside from termination. For more information on termination see one of my earlier articles: Termination of the Employment Relationship in Ontario » Legally Speaking.

What is Progressive Discipline?

Progressive discipline is a process used to deal with any job-related behaviour that does not meet expected and communicated standards or policies regarding job performance, absenteeism or lateness, or other minor misconduct. The primary purpose of the progressive discipline doctrine is to help an employee understand that a performance problem exists and to offer opportunities for improvement. The concept behind progressive discipline is that where an employee repeatedly fails to meet the expectations of the job, the disciplinary action against him will begin with mild correction action and gradually move to more serious actions as each incident occurs — eventually permitting an employer to terminate for cause.

The law does not require employment contracts to include the employer’s approach to progressive discipline however, best practices suggest an employer should set out their approach to progressive discipline in a well-written and well-communicated policy. In this regard, they are able to refer to it specifically as necessary.

Levels of Disciplinary Action

Basic progressive discipline policy provides for four levels of discipline: verbal warning, written warning, suspension and termination. There is no one single approach applied — approaches vary depending on the company and collective bargaining agreement. For example, the discipline for a first offence may be counselling in one company yet a warning in another.

Overall, effective discipline helps to correct employee behavioural issues, increase productivity as well as help to protect a company against wrongful termination lawsuits.

Levels of disciplinary action are as follows:

  • Verbal warning
  • Written warning
  • Performance improvement plan
  • Temporary pay cut
  • Loss of privileges
  • Suspension
  • Demotion
  • Termination

Termination for cause should be considered as a last resort. It is challenging to prove terminations are justified and courts only do so in the clearest of circumstances. In exceptional circumstances, immediate termination for an act of significant or severe misconduct may be appropriate but in almost all cases, employers should be guided by the principle of progressive and corrective discipline.

Rather than straight dismissal, the goal of progressive discipline is correcting poor behaviour and creating a better and more productive employee.

What should employers do?

In instances where an employee’s performance or conduct is at issue, the employer should clearly provide the employee with the following:

  • A clear explanation of the problem
  • A list of steps that should be taken by the employee to address and correct the problem
  • Assistance to the employee to help him address and correct the problem
  • A reasonable time frame in which the problem is expected to be corrected

This process applies to any of the disciplinary action levels – i.e. Verbal or written warnings, performance improvement plans etc. Employers must give employees clear messages, actionable steps, assistance and reasonable time frames to show improvement during any stage of discipline.

What Forms of Discipline Are Not Appropriate?

Employee discipline is not about dominance or punishment. As a result, in most instances, discipline that is punitive is contrary to employment law. For example, withholding pay or suspending an employee without pay is not appropriate. Subjecting an employee to humiliation in front of coworkers, demotions or cuts in salary/pay are also considered inappropriate forms of discipline. Bullying usually involves repeated incidents or a pattern of behaviour that is intended to intimidate, offend, degrade or humiliate a particular person or group of people. It has also been described as the assertion of power through aggression. In this respect, it is punitive and not an appropriate form of discipline.

Suspension is a common form of punitive disciplinary action.

Unpaid Suspensions

According to the Ontario Court of Appeal, an unpaid administrative suspension generally triggers a constructive dismissal “unless it (is) an express or implied term of the contract that the employer (can) suspend an employee without pay.”

The Courts will assess unpaid suspensions with a higher level of scrutiny than paid suspensions. Accordingly, employers should not impose unpaid suspensions unless they are expressly permitted to do so by a contract of employment or the circumstances are such that an unpaid suspension is reasonable. In other words, if an employer imposes an administrative suspension that is neither expressly permitted by contract nor reasonable in the circumstances, they run the risk of liability for constructive dismissal damages.

Courts often look at whether the employee had the opportunity to challenge the suspension before the person who imposed the suspension in the first place. Failing to allow for this may render the suspension a constructive dismissal, wherein the employee may claim for notice for the termination of their employment and the potential for any unpaid wages during the suspension period.

A clear and well-drafted employment agreement or workplace policies and handbooks regarding suspensions will provide both the employer and employee with information on their rights.

How is the appropriate level of discipline determined?

Courts and tribunals expect employers to apply disciplinary measures fairly and consistently, taking into account any specific circumstances of the situation on a case-by-case basis.

Aside from the strict facts of the case, adjudicators consider both “aggravating” and “mitigating” factors in determining the most appropriate type and severity of disciplinary action — especially when an action as serious as dismissal is being considered. Arbitrators weigh the presence, or absence, of mitigating factors in deciding whether to uphold, reduce or rescind a disciplinary sanction.

  • Aggravating factors lead to a more substantial (harsher) penalty
  • Mitigating factors lead to a more lenient (lesser) penalty

Some examples of employee related factors that affect the level of disciplinary action taken include the following:

  • Clean employment record
  • No other disciplinary record on file
  • State of mind of employee when behaviour came into question (i.e. medical condition; emotional problems, harassment, violence etc.)
  • Whether an employee shows remorse during the investigation — i.e. admitting responsibility, offering an apology etc.
  • Wilful or Intentional insubordination and/or misconduct

Examples of some of the case related factors adjudicators consider are as follows:

  • Was the misconduct intentional?
  • Is the employee accepting responsibility for his/her actions?
  • Was the infraction an isolated incident?
  • Is this a long-term employee?
  • What is the work history of the employee?

From Policy to Practice

Policies communicate expectations to staff and guarantee that fair and consistent treatment is served to all. It is important for staff to know from the start what is expected and how their performance will be addressed should it fall short of workplace standards. Policies hold everyone accountable and need to be supported by accompanying procedures.

The following are procedures to support progressive discipline:

On-going operational procedures:

  • Hold regular manager training, and make progressive discipline policy review a prominent part of that training
  • Create a standardised form for all managers and departments to use when they write up an employee for a disciplinary infraction. Be sure they fill out the form in full.
  • Develop a system that allows easy review of disciplinary write-ups.
  • Practice early detection of issues with equal treatment of employees by different managers. Make it a point to ask about this issue during employee reviews.
  • Discipline managers if they fail to uphold company policies.

Procedures involving incompetence: Employee lacks the skills or ability to do the job.

  • Set out clear, reasonable job expectations in company policies
  • Clearly communicate job expectations to all employees
  • Bring unacceptable work to the attention of the employee promptly
  • Provide reasonable supervision, training and instruction
  • Give reasonable warning that failure to meet these expectations could result in dismissal
  • Allow for time and opportunity to meet the job expectations
  • If not improvement has emerged, dismiss the employee
  • Keep complete written records

Procedures involving misconduct: Employee breaks rules for keeping the work place efficient and safe.

Suggested steps:

  • Give the employee an opportunity to tell his/her story about the misconduct
  • Collect all the relevant facts surrounding the misconduct
  • Give a verbal warning
  • Give a written warning
  • Suspend the employee
  • As a final step in the process, dismiss the employee
  • Keep complete written records

Summary Comments

Termination of staff should be considered a last resort. The incorporation of progressive discipline in the form of policies, procedures and practices can provide effective corrective strategies to mitigate many behaviour issues and avoid disputes being taken to court. Progressive discipline is a doctrine upheld by Ontario courts, which should be part of a company policy and should be clearly communicated and adhered to.


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btlegal.ca.

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.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

Age Discrimination and Forced Retirement

Currently, there are approximately 1.5 million older persons in Ontario. By the year 2021, Ontario will be home to three million people over the age of 65. Older workers make a valuable contribution to this province every day.

The Ontario Human Rights Code (the “Code“) states that it is public policy in Ontario to recognize the dignity and worth of every person and to provide equal rights and opportunities without discrimination. Employment is central to an individual’s financial health, sense of worth, dignity as well as their satisfaction in feeling able to participate fully in society and be a part of a community.

So, are People Age 65 and Older Subject to Mandatory Retirement?

The answer is no, with limited exceptions.

This article reviews when mandatory retirement is permitted in Ontario. We will review:

  • Some of the protection available under Human rights legislation;
  • Explore how courts evaluate age discrimination cases and cite a couple of tribunal cases where age discrimination was allowed; and
  • Finally, we will offer some pointers for employers and outline the steps employees can take to file a claim.

The History of Mandatory Retirement

Until December 31, 2009, the mandatory retirement age in Canada was 65. At age 65, an employer could terminate your employment for the simple reason of your being 65.

The Federal government prohibited mandatory retirement in 2009. However, the prohibition against mandatory retirement has two exceptions — Supreme Court justices who must retire at age 75 and judges, magistrates and justices of the peace in Provincial courts who must retire between 70 and 75.

Other than these two exceptions, there is no law in Ontario that requires persons to retire at any age. In theory, employees can work until they no longer wish to do so or are incapable of performing their jobs.

What is Age Discrimination and How are Workers Protected?

Imposing an employment decision (such as forced retirement) based solely on age and not on the ability to do the job, is age discrimination under the Code.

In Canada, both federal and provincial human rights law protects Canadians from age discrimination. Ontario`s Human Rights Code protects anyone aged 18 and over against discrimination in employment on the basis of their age.

The Code specifically prohibits mandatory retirement – protecting employees aged 65 or more from being forced to retire, except in cases where the retirement age can be justified as a “bona fide occupational requirement”.

A bona fide occupational requirement is an employment requirement or qualification that is necessary because of the nature of the employment.

One example of bona fide occupational qualifications is mandatory retirement ages for bus drivers and airline pilots for safety reasons.

Persons aged 65 and older who believe that they have been discriminated against on the basis of age, including through mandatory retirement policies, may file a claim of discrimination on the basis of age with the Ontario Human Rights Commission.

The Bona Fide Occupational Requirement Test (BFOR)

The Courts justify discrimination through a test called “Bona Fide Occupational Requirement” (BFOR) which is a standard or criteria that allows an employer to “discriminate” based on an otherwise prohibited ground, if and only if there is a legitimate reason that is connected to the employee’s ability to do the job.

The “test for a BFOR” in the context of age discrimination was discussed in 1982 by the Supreme Court of Canada in Ontario v. Etobicoke. In this case, the complainant, a firefighter, was required to retire at age 60.  The Court set out a two-part test to determine whether a mandatory retirement scheme is justifiable:

  1. Subjective component: the employer must establish that mandatory retirement was imposed honestly, in good faith, and in the belief that the limitation is in the interests of the adequate performance of the work, and not for ulterior or extraneous reasons aimed at objectives which could defeat the purpose of the [Human Rights] Code.
  2. Objective component: the employer must establish that the retirement plan is reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public.

What’s the Bottom line?

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. This can be best achieved through the development and communication of a retirement policy that sets out the objective justification for the retirement age. Such policies can later be relied upon in the event of any claim.

Age Discrimination Tribunal Case Review

In Kearns v. Dickson Trucking Ltd. (1988), 10 C.H.R.R. D/5700 (Can. Trib.) a 69-year-old salesman was terminated despite excellent performance. The first time the alleged reason for termination was raised was in the termination letter. The reason given was that there would no longer be a need for his position. However the employee was not declared redundant and the position was filled by a younger person. A case of age discrimination was successfully made out.

In Salter v. Newfoundland (2001), 41 C.H.R.R. D/68 (Nfld. Bd. Inq.) [Hereinafter “Salter”], the tribunal found that the factor of being a pension-eligible employee was considered in making the determination to declare the claimant redundant and that this was synonymous with considering his age. Age discrimination was found in the case.

What these two cases tell us is that an employer cannot avoid the prohibition on mandatory retirement by trying to lay off employees based on redundancy, where the real motive is age related. 

Lessons for Employers:

Employers are bound by three rules in the Code as follows:

  1. They cannot refuse to hire, train or promote people because of their age;
  2. They cannot unfairly target older workers, or other age groups, when it comes to reducing staff or reorganizing; and
  3. They must make sure that the workplace is free from discrimination, is inclusive, and respects and supports the needs of all its workers, including older employees.

In our aging population, age discrimination is common and is on the rise. Claims of age discrimination due to forced retirement are becoming increasingly common and can be costly to employers

Employers can have mandatory retirement programs based on a certain age but these programs must be based on a bona fide occupational requirement for performing the job.

Employers can protect themselves by taking the following steps:

  • Have a retirement age in place which is fixed and communicated clearly to employees, along with the explanation for why this age has been determined to be a necessary qualification for the job.
  • Incorporate the fixed retirement age in a “retirement policy” that sets out the objective and justification for that “fixed retirement age”
  • Take measures to provide a workplace that is free of ageist stereotypes and that provides an environment where older workers are treated as individuals, assessed on their own merits instead of against presumed group characteristics
  • Ensure older workers are subject to the same performance management practices as every other worker
  • Define the eligibility criteria for any voluntary retirement program
  • Share the criteria with all staff, irrespective of age, through a neutral medium such as a written document

Tips for Employees:

If you feel you are experiencing age discrimination at work there are a few things you can do:

  • If you need human rights legal advice or help filing an application with the Human Rights Tribunal of Ontario, contact the Ontario Human Rights Legal Support Centre at: 416-597-4900 or 1-866-625-5179 and speak with a Human Rights lawyer.
  • To file an application with the Human Rights Tribunal of Ontario, visit their website and follow the instructions for how to file an application.
  • To learn more about your rights, responsibilities and options, contact/hire an employment lawyer

Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btlegal.ca.

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.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

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

Public access to court proceedings is the normal practice in Court proceedings to the justice system (courts and tribunals) as it ensures justice is administered in a fair manner, in accordance with the principle of freedom of expression, found in the Charter of Rights and Freedoms. However, until recently, openness and transparency did not extend to Ontario’s Tribunals, which make decisions on a wide range of matters

The tribunal system was initially set up with the idea that people could use it as an alternative to the court system to achieve faster, less expensive and easier resolutions. Tribunals, were part of the justice system but operated outside of the principles of openness and transparency.

This article highlights a recent decision of the Superior Court of Justice in Ontario leading case that initiated significant change to the operation of Tribunals in Ontario. We will highlight some emerging issues facing Tribunals in finding the balance between protecting privacy while being accountable to foundational principles of openness and transparency.

Tensions between privacy and openness

In this age of the Internet, the publication of justice system information can lead to serious privacy consequences. As a result, tensions arise between two competing justice values – an open and accessible justice system and the right to privacy.

Questions arise about how to protect the personal information of individuals involved in court and tribunal processes while continuing to foster openness and accountability. It is a difficult balance to reach.

Rules for privacy differ between courts and tribunals

Seeking justice through the criminal court system can be a gruelling, intimidating and de-humanizing process for individuals. This is evidenced through media coverage of high profile cases where credibility goes on trial, private lives go under the microscope and the victims forced to re-live the trauma every day in the courtroom.

The Province’s various administrative tribunals make decisions on a range of issues from landlord and tenant disputes to human rights complaints. Documents and records have in the past typically not been readily accessible. Up until May 2019 the rules of disclosure in the formal court system as well as the principles of transparency and openness were not considered a part of the tribunal system. Access to administrative tribunal records and proceedings was inconsistent — either at the discretion of the respective tribunal or through access-to-information requests under the Freedom of Information and Protection of Privacy Act (FIPPA).

What changed?

In April 2018, the Ontario Superior Court of Justice released its decision in Toronto Star v. AG Ontario, finding that the application of the Freedom of Information and Protection of Privacy Act to administrative tribunals violates the principle of freedom of expression embedded in section 2(b) of the Charter of Rights and Freedoms. The court agreed with the Star that tribunals needed to implement changes to be more open and accessible, transparent and rigorous – necessary to maintain the integrity of the system. Previously, there had been a good deal of secrecy, misinformation, selective disclosure of information, delay, and cost. The result is that the public has had no consistent right and ability to see how decisions are made and on what basis.

The decision in this case significantly transformed how tribunals operate. The outcome had broad ramifications for all judicial tribunals. The court clearly confirmed that tribunals are not simply a function of government, but have adjudicative powers like courts and need to operate openly, like courts.

Bringing Openness into the World of Tribunals

As a response to the decision in the Star case, in May 2019, Tribunals Ontario released a new policy confirming they are now guided by the open court principle and committed to transparency, accountability and accessibility in decision-making and operations.

The open court principle allows the public and media access to tribunal proceedings. It ensures effectiveness of the evidentiary process, encourages fair and transparent decision-making, promotes the integrity of the justice system and informs the public about its operation.

Openness and access to information is fundamental to gaining public confidence in the justice system and in building public understanding of how the administration of justice is maintained.

New challenges for Tribunals

Tribunals now must refine the balance between openness and the privacy concerns of vulnerable people who share sensitive personal information during proceedings. Most decisions and orders of Tribunals Ontario tribunals are available online without charge on CanLII and in some cases on boards’ or tribunals’ websites.

Privacy should never defeat the foundational principles of openness and accountability in tribunal processes, however, where individuals are involved in tribunal processes, their privacy deserves respect and protection.

Maintaining consistency in the balance of privacy and openness

The Canadian Judicial Council plays a leadership role in initiating discussions and debate about the development of electronic access policies. The Council has stipulated that it is important to encourage, to the extent possible, a consistent approach to the use of personal information by courts and administrative tribunals in their decisions and the posting of those decisions on websites.

The CJC’s model protocol on publication of personal information in court decisions, published in 2005, places the onus on judges, not publishers, to limit disclosure of personal information. It provides specific recommendations for protecting the privacy of personal information, characterized as “omitting personal data identifiers which by their very nature are fundamental to an individual’s right to privacy.” It identifies certain information, such as name and date of birth, social insurance number and financial account numbers, as being worthy of protection in written decisions because of the risks associated with disclosing them:

Concluding remarks:

  1. Openness and transparency are fundamental principles of our justice systems – courts and tribunals must respect these principles in their operations.
  2. Withholding public access to records or information for proceedings is unconstitutional and no longer allowed
  3. Privacy and protection of personal information are secondary to the principles of accessibility and transparency
  4. Development of specific electronic policies and promoting wide-spread adoption of them is an important step towards maintaining consistency in the balance of privacy and openness in the justice system.

Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btlegal.ca.

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.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

When Can a Resignation be Retracted?

Do you know someone who tendered their resignation and then had second thoughts? Maybe they did so in anger, or based on illness or circumstances changed. You may wonder: when can a resignation be retracted?

Here you will find the answer to that and we will look at what the courts consider when making a decision. You will find some useful tips, whether you are an employer or an employee, about what you need to know and what to do.

Can an employee retract a resignation?

In brief, an employee may be able to retract a resignation that was made with clear intent, provided that they have an immediate change of heart and quickly let the employer know. However, if an employee clearly and deliberately gives notice and the employer just as clearly accepts it, it may be too late to undo.

Decisions to resign happen for many reasons and in different circumstances. The onus is on both employers and employees to take specific steps to make sure that they get the result they want. Let’s look at some circumstances.

Employees may take back a resignation in these circumstances where the:

  • Resignation has been made with intent, yet the employee has had an immediate change of heart and quickly let the employer know;
  • Employer has not yet accepted the resignation; and
  • Employer has not acted to its own detriment or suffered any expenses by reasonably relying on it

As well, an employee may take back a resignation in circumstances where the resignation was made under emotional stress, in anger or on impulse.

How is “Intent to resign” determined by the court?

Overall, the intent to resign must be deemed voluntary, clear and unequivocal and not made under conditions of emotional stress.

Let’s look in detail based on cases that have been heard by courts, how intent to resign is determined:

Case 1: Is the intent to resign clear and unequivocal?

Recently, in English v. Manulife Financial Corporation, 2019 ONCA 612, Ontario’s highest court, the Court of Appeal, confronted a case of what constitutes a “clear and unequivocal” resignation.

In this case, Elisabeth English, a 66 year old woman was a 10-year employee at Manulife Financial. Manulife Financial was considering an upgrade to its customer service department by bringing in a new computer system. Elisabeth was near retirement age and did not want to go through the training to learn the new system. In September 2016, she provided written notice of resignation, effective Dec. 31, 2016. At the time, English told her supervisor she was not certain she wanted to retire and was assured she could change her mind if she wished.

A few weeks later, she learned that the computer system was not going to be changed so she promptly asked if she could take back her resignation. Her manager did not confirm or deny the request and she kept working. However, in November, her manager informed her that Manulife was already making plans to move on, and she was asked not to return to work on Dec. 12th.

English commenced an action against Manulife for wrongful dismissal. She maintained that she should have been allowed to keep working as she had properly retracted her resignation.

What did the court decide?

  • The motion judge concluded that Elisabeth’s letter constituted a “clear and unequivocal” resignation, and that her resignation was accepted by Manulife. Accordingly, Elisabeth had not been wrongfully dismissed.
  • The Court of Appeal held that the motion judge erred in finding a “clear and unequivoical” resignation, ruling that Elisabeth’s resignation notice was equivocal given the circumstances in which she presented it to Manulife and that she was entitled to withdraw it. Elisabeth had properly advised that she had changed her mind and her supervisor had not indicated that there was a problem with this.
  • Accordingly, since Elisabeth did not in fact resign, the Court held that her termination was wrongful and awarded her 12-months’ salary in lieu of notice.

Courts carefully consider all circumstances surrounding resignations, including the employer’s response when determining “intent” to resign”.

From this case we can see that the Court considered the employee’s request to withdraw her resignation sound as it was made in a timely manner and made before her resignation had been clearly accepted by the employer. In the end, the Court found she did not have a continuing clear intent to resign. The employer had not clearly accepted her resignation and had not acted to its detriment in relying on the resignation.

An employee really can quit and take it back later if the circumstances don’t demonstrate a clear intent and a clear acceptance of the resignation.

Case 2: Is the intent to resign offered under conditions of emotional stress?

In Upcott v. Savaria Concord Lifts Inc., 2009 CanLii 41348 (Ont S.C.) after a dispute with a fellow co-worker, the employee, Barry Upcott, told both his boss and the HR manager he was fed up and said, “I’m done”. He refused to discuss the issue. He turned in his keys, made two trips to collect some belongings, left the workplace, and left a phone message for his boss to ask about picking up the remainder of his belongings from the office. The employer interpreted the employee’s actions as a resignation; quickly deleted all of his emails, disabled his email, called his home to verbally accept his resignation and advised that a follow-up letter accepting the resignation was on its way.

The employee sued the employer, alleging that he had not really resigned because he acted in a fit of anger and should have been allowed to retract his resignation.

What did the court decide?

Despite the employee expressing a clear intention to resign, the resignation was not valid and the employee should have been allowed to come back to work. The Court reasoned that:

  • A reasonable person viewing the situation objectively would not have concluded that the employee’s words and actions amounted to a voluntary resignation and;
  • A reasonable person viewing the situation objectively would have considered that the employee went through a foolish fit of anger and he would likely retract his resignation quickly after leaving the office.

By refusing to allow the employee to come back to work afterwards, the employer engaged in wrongful dismissal. The Court awarded the employee $50,000 in damages. Although a resignation may appear clear and unequivocal and an employer has accepted it, the resignation will not be valid and can still be retracted where the employee made the resignation on impulse in a state of emotional stress.

Bottom-line

So what can we learn from these cases that will help employers and employees to make the right choices and get the results they want?

Tips for Employees

  • Make sure to take ample time to “cool off” if you have had heated arguments or are upset at work. Making important life decisions such as quitting your job should be made in a calm state of mind and emotion not in the heat of the moment.
  • If you are sure of your intent to resign, always communicate it in writing to the employer in clear and unambiguous language.
  • If you intend to resign but are not entirely sure of your decision, avoid speaking with co-workers about it and do not take any actions that are associated with resigning (like clearing your desk of items and taking them home).
  • If you want to retract your resignation, timing is critical. Notify your employer as soon as possible that you wish to retract the resignation. The courts are more likely to conclude that the resignation was not valid if you promptly take steps to rescind it.

Tips for Employers

  • If an employee submits a resignation, and you wish to move ahead with it, it is best to promptly confirm, in writing, that you have accepted that offer.
  • If an employee has resigned in the middle of an emotional outburst, especially one that is entirely out of character, it is advisable to avoid acting upon it and let emotions settle.
  • Under emotionally charged situations, consider offering the employee a chance to “cool off”. Speaking to them under calmer conditions can clarify intent.
  • Consider all conditions around the intent to resign. Always evaluate the employee’s behaviour. Is it consistent with actual voluntary intent to resign or is it unusual behaviour that may be linked to mental health issues, upsetting workplace conditions or other external factors?
  • Once you have established that the employee has resigned and voluntarily intended to do so, advise the employee in writing of the acceptance of the resignation.
  • Request that all resignations be submitted in writing.
  • Make sure you are not forcing a resignation upon an employee – ultimatums or making changes to roles/positions may be perceived as wrongful dismissals.

Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btlegal.ca.

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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