Canadian Employment Law Today

October 21, 2020

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Answer: The obligation of an employee to arrange childcare prior to seeking accommo- dation is the third of four factors required to establish discrimination on the basis of family status. This is a factor that requires the employee to make reasonable efforts to meet childcare obligations through reasonable al - ternative solutions and to demonstrate that such efforts have been expended but that no such alternative is reasonably accessible. Decision-makers have noted that employ - ees will be called upon to show that neither they nor their spouse can meet their enforce- able childcare obligations while continu- ing to work, and that an available childcare service or an alternative arrangement is not reasonably accessible to them so as to meet their work needs. It must be shown that both the employee and their spouse are unable to provide the childcare needed on a reliable basis. Determining whether this leg of the test has been satisfied is highly fact specific and all of the circumstances in each case will be taken into account. Courts have held that employees go far enough in satisfying this portion of the test when they investigate nu - merous regulated childcare providers, both near home and near work as well as unregu- lated childcare providers, including family and even a live-in nanny. Cases have held that employees will not satisfy this obliga- tion where their decision is based upon per- sonal preferences. This can include seeking accommodation from the employer so they can stay home to ensure their culture and language is passed on to their child, so they don't have to pay for full-time childcare or a more expensive childcare option, because leaving the child with family members has created family arguments, or because a day camp would be cost prohibitive without proof. As outlined above, the analysis of these situations is fact specific. Employers that are being asked to accommodate employees on the basis of family status should consider the individual circumstances and seek advice. Answer: A new line of cases emerging from Ontario has suggested that it is not enough to simply include a provision that notice or pay in lieu of notice will be the statutory minimum, but there must be a specific limitation to rebut the presumption of common law damages or notice. Decision-makers have considered the fol - lowing factors when determining whether a termination provision can rebut common law reasonable notice: There is a presumption that an employee is entitled to common law notice upon termina - tion of employment without cause; however, an employer may contract out of common law notice upon termination without cause pro- vided minimum legislative requirements are met. The presumption of reasonable notice at common law may be rebutted if the contract specifies some other period of notice as long as that other notice period meets or exceeds the minimum requirements of the applicable legislation — in this case, the Ontario Employ - ment Standards Act, 2000. The intention to rebut the right to common law reasonable notice must be clear and unam- biguous. The need for clarity does not require the use of a specific phrase or formula; how- ever, the intention must be "readily gleaned" from the language agreed to by the parties. Ambiguity will be resolved in favour of the employee and against the drafter of the termi- nation clause in accordance with the principle of contra proferentem. Surrounding circumstances may be consid- ered when interpreting the terms of a contract but are not to overwhelm the words of the agreement itself. While such cases are only binding in Ontar- io, similar decisions could arise in other prov- inces. Therefore, while it is not necessary to specifically state that common law notice will not apply, it would be best practice for employ- ers to implement wording in their contractual provisions to address this and avoid potential ambiguity. Leah Schatz is a partner with MLT Aikins LLP in Saskatoon. She can be reached at (306) 975- 7144 or lschatz@mltaikins.com. Have a question for our experts? Email jeffrey.smith@keymedia.com Ask an Expert MLT AIKINS LLP, SASKATOON with Leah Schatz Employee's childcare obligations before seeking accommodation Question: What are an employee's obligations in trying to arrange childcare before an employer should be expected to entertain a request for accommodation such as altering hours of work? Canadian HR Reporter, 2020 2 | | October 21, 2020 October 21, 2020 Avoiding common law notice in termination provisions Question: If a termination provision provides that minimum notice under legislation applies, is this enough to avoid common law notice entitlement? Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog features such topics as the debate over sick notes, unpaid internships, and employee parental obligations with the reopening of schools. You can view the blog at www.employmentlawtoday.com. The employee must make reasonable efforts to meet childcare obligations through reasonable alternative solutions. The intention to rebut the right to common law reasonable notice must be clear and unambiguous.

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