Canadian Employment Law Today

March 20, 2019

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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PM40065782 Emplo y ment Law Today Canad ad a ian Bad contract wording gives long-time employee big notice award Termination clause limited notice, but didn't guarantee benefi ts during notice period; 21 months common law notice instead BY JEFFREY R. SMITH AN ONTARIO company must pay a dis- missed employee damages equal to 21 months' pay because the termination clause in its employment contract potentially de- prived the employee of benefi ts during the reasonable notice period, the Ontario Supe- rior Court of Justice has ruled. St. Joseph Communications is a market- ing and advertising company based in On- tario. In 1994, it hired Kelly Cormier as a freelance wardrobe stylist with an oral em- ployment contract. St. Joseph considered Cormier to be an independent contractor at the time, but Cormier believed she was an employee of the company. Cormier's duties as a freelance wardrobe stylist involved selecting clothing and acces- sories for models in St. Joseph's advertise- ments and promotions. Once she selected the items, the company bought them and hired the models, while also supplying an iron to Cormier to press the garments. St. Test for family status discrimination reaffi rmed in British Columbia B.C. Court of Appeal keeps bar high for type of parental duties that must be interfered with to constitute discrimination BY JAMES KONDOPULOS THE BRITISH COLUMBIA Court of Appeal has just reaffi rmed the test for fam- ily status discrimination in the province of British Columbia — a test which was fi rst developed by the same court about 15 years ago in Campbell River & North Island Tran- sition Society v. H.S.A.B.C., and which had come under criticism over the years and, indeed, was questioned more recently as no longer being good law. In a unanimous decision issued a few weeks ago in Envirocon Environmental Services, ULC v. Suen, the Court of Appeal confi rmed that the test from Campbell Riv- er represents the law in British Columbia. e test binds all decision-makers in the province — including the lower courts and administrative tribunals like the B.C. Hu- man Rights Tribunal and labour arbitration boards constituted under the B.C. Labour March 20, 2019 Failure to accept recall offer cuts down long-term worker's constructive dismissal damages pg. 3 Employee's refusal of recall offer 4 weeks after illegal layoff a failure to mitigate Arbitrator reinstates drug-stealing nurse pg. 4 Nurse had opioid substance abuse disorder; Employer didn't investigate accommodation MUST BE on page 6 » POTENTIAL on page 7 » CREDIT: PHOTOCREO MICHAL BEDNAREK/SHUTTERSTOCK with Stuart Rudner Ask the Expert pg. 2 Request for time off for religious reasons

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