Employment Law vs Labour Law: A Brief Explainer

While the terms labour law and employment law are often used interchangeably, they are two distinct areas of Canadian law. To be fair, both labour and employment law are concerned with similar issues regarding the safe and equitable running of the workplace. However, there are some key differences between the two. Below is a brief overview of the two fields of law, labour law and employment law, and some of the differences between them.

What Is Labour Law?

Labour laws deal with collective bargaining, organized labour and unions. They govern the relationship between businesses and unions. In Canada, labour laws regulate the rights and obligations of trade unions and their members and address such issues as labour strikes and union organization disputes.

Unionized workplaces are governed by legislation such as the Ontario Labour Relations Act and the Canada Labour Code.

What is Labour Law - Labour Law Canada - KCY at LAW

What Is Employment Law?

In contrast, employment law is concerned with the employer-employee relationship. This means employment law deals with individual employment contracts and the rights of employers and employees as individuals.

Minimum wage, leaves of absence, hours of work, vacation entitlements and notice periods for termination are all governed by employment law. Employment laws also regulate employers’ obligations regarding the health and safety of their employees with regards to everything from physical hazards to discrimination and harassment.

The main piece of employment legislation in Ontario is the Employment Standards Act. This ESA was recently overhauled in 2016 which introduced a raft of new changes to the workplace which employers and employees should be aware. You can read more about the Changing Workplace ESA review here.

What Is Employment Law - Employment Law Canada - KCY at LAW

Ontario Employment Law Specialists

The law team at KCY at LAW are specialists in Ontario employment law. We provide legal counsel, representation and advocacy with respect to a full range of employment law services for both employers and employees. To book your consultation, call us today on 905-639-0999 or contact us online!

Notice Periods – 5 Questions About Notice of Termination

Things just aren’t working out with that one employee. A slow economy forces you to downsize. There’s a new piece of technology that will do the work of one of your employees twice as fast and for half the price.

Whatever the reason, at one point or another, most employers have found themselves in a position where they need to terminate the employment relationship with one of their employees. Then what?

5 Common Questions About Notice of Termination

Common Questions About Notice of Termination Ontario - KCY at LAWYou know you have obligations to your employee if you are going to terminate them without cause but what are they? How much notice do you owe? How much termination pay must you give?

You can find answers to these, and other questions about termination notice below.

1. Who is Entitled to Notice of Termination?

The first question employers will have to consider is if the employee you plan to terminate is entitled to notice.

Any employee who you have employed for at least three months on an indefinite term contract is entitled to reasonable notice of their termination. The Employment Standards Act (ESA) sets out statutory minimum amounts of notice to which terminated employees are entitled (discussed below).

Employees with fixed-term contracts are not entitled to notice of terminations. However, there are unique complications that come with ending a fixed-term contract before its completion. (You can read more on this topic here)

Employees who are terminated for cause are not entitled to any notice. Their termination is effective immediately.

2. What is Reasonable Notice?

Reasonable notice is intended to give a terminated employee adequate time to find a new, comparable job. Reasonable notice can be given in time or pay in lieu thereof. This means that, if an employee is entitled to one week’s notice, they will either continue working for one week after they have been terminated or be compensated with pay and benefits equivalent to the value of these things had the employee continued to work to the end of the notice period.

3. What are the Minimum Notice Periods?

The ESA sets out the minimum standards for termination notice and pay for all non-federally employed workers. Employees working in federally-regulated industries (such as banking and telecommunications) have their notice periods and severance entitlements set out in the Canada Labour Code.

The table below outlines the statutory minimum notice periods under the ESA.

Length of Employment Minimum Notice Required
Less than 3 months None
3 months to less than one year 1 week
1 year to less than 3 years 2 weeks
3 years to less than 4 years 3 weeks
4 years to less than 5 years 4 weeks
5 years to less than 6 years 5 weeks
6 years to less than 7 years 6 weeks
7 years to less than 8 years 7 weeks
8 years or more 8 weeks

During the statutory notice period, employers may not in any way change the nature of the employee’s work or compensation. This means wages and any other term or condition of employment must remain the same including benefit contributions, bonuses and vacation pay.

Employers should be aware that employees are often entitled to more than these statutory minimums. Common law notice, which is based on factors such as an employee’s position and age, often supplement statutory minimums.

For example, if an employee has been with your company for 10 years and has a relatively senior position, eight weeks’ notice may not be considered reasonable notice.

If you fail to provide an employee with the statutory minimum notice of their termination, the termination becomes a wrongful dismissal and you could be held liable for damages.

4. When does the Notice Period Begin?

Notice periods begin on the day that you give your employee written notice of their termination.

5. How is Termination Pay Paid?

Termination pay is to be delivered in a lump sum payment. It is equal to an employee’s regular wages for a regular work week. Vacation pay and benefit contributions must also be included in this payment.

Termination pay must be paid within seven days of the employee’s termination or on the employee’s next regular pay date, whichever comes later.

Termination of Employment Lawyers - KCY at LAW Burlington

Termination Of Employment Experts

Consulting with an experienced employment lawyer is the best way for employers to ensure that they give their employees appropriate termination notice. Contact KCY at LAW today on 905-639-0999 or online for more info.

Workplace Computer Privacy & Monitoring

There are many reasons an employer might want to monitor their employees’ workplace computer activities. Naturally, employers do not want their computers used for unlawful purposes or improper conduct such as information theft or harassment.

But what are your rights, as an employer, to monitor your employees’ workplace computer activities?

If you have a reasonable suspicion that the above behaviours are occurring, or if the business handled on workplace computers is of a sensitive nature, you may be able to monitor your employees’ workplace computer habits.

Employees’ Privacy Rights

In Ontario, employees have a general right to privacy in the workplace – including their workplace computer – unless it is explicitly stated otherwise in their employment contract. Because so much meaningful, private and intimate information about an employee is stored and reflected in their computer use, judges have overwhelmingly ruled that employees have a reasonable expectation of privacy when it comes to their workplace computers.
Employees Privacy Rights - Employment Lawyer Burlington

As demonstrated by the Supreme Court of Canada decision in R. v. Cole, it takes truly extreme circumstances to override this right to privacy.

Therefore, computer monitoring should only be employed as a last resort and with the greatest care.

Monitoring An Employee’s Workplace Computer

While there is no formal legislation governing the monitoring of employees’ workplace computers, privacy commissioners and arbitrators have developed various tests to determine if a certain type of employee monitoring is acceptable. Many of these decisions were initially made to address video surveillance but are now being applied to computer monitoring.

Generally speaking, in order to monitor an employee’s workplace computer use:
Guide to monitoring an employees computer use - KCY at LAW

  • There must be a legitimate concern that an offence is being committed and that computer monitoring will be an effective approach to solving this problem.
  • Except for rare circumstances, it is necessary to alert employees to surveillance practices and obtain their consent. Individuals should know who is watching and why.
  • Surveillance should be as limited as possible. General surveillance for an indefinite time is rarely acceptable.
  • Surveillance should be conducted with a specific purpose and only used for said purpose.

Workplace Computer Surveillance

There are many tools available to employers who wish to monitor their employees’ computer habits. There is software that can monitor and analyze online searches, emails and web browsing. There are tools that can track keystrokes and take time-lapsed desktop screenshots.

But be weary, none of these methods distinguish between an employee’s private and business use of their computer and even accidentally recording employee’s banking transactions or personal emails is going to get you in hot water.

Workplace Policies and Practices For Computer Use

Clear and comprehensive workplace policies should be your first defence against employee misconduct on workplace computers.

Most importantly, your policies must balance your need for information with your employees’ right to privacy. Accordingly, your policies concerning computer use and monitoring should be necessary to meet a legitimate business need.

Overly invasive monitoring policies can be costly. As mentioned before, judges do not take kindly to unnecessarily invasive surveillance. Undue monitoring can quickly amount to constructive dismissal or worse.

Workplace Computer Privacy Conclusions

Workplace computer privacy remains an evolving legal area. Employers should consult with an employment lawyer before monitoring their employees in any way to avoid legal risks.

KCY at LAW will give you the security of mind that your workplace computer privacy policies will support your business interests while protecting you against legal action. To book your consultation, call 905-639-0999 or contact us online.

Your Guide to Hiring Interns

It’s that time of year again. College and university students are heading into the final stretch of their academic year and many are looking for a summer opportunity that will develop their skills and give them work experience in their field.

Why Hire An Intern?

Internships can be a great way for students to get ‘real world’ experience in their fields and make networking connections. Furthermore, internships are now required for the completion of many academic programs.

For employers, taking on an intern can be a rewarding undertaking. It’s an opportunity to get new perspectives and fresh ideas, extra help with a specific project or even find your next great hire.

Fresh from the educational environment, interns are generally on top of the latest trends of thought and technology. Their outsider perspective can help you discover new, practical and efficient ways of approaching your operations. Furthermore, they can be a great way for you to assign a little extra help to an ongoing project, or benefit from an area of expertise that your business does not yet have.

Whatever your reason for hiring an intern, there are some things you need to know to ensure that your internship program is successful and in line with Ontario employment law.

Successful Internship Programs - KCY at LAW Employment Lawyers

Interns Are Not Free Labour

Having an extra brain or set of hands to support your team for free sounds enticing, but remember, interns are not replacements for paid employees. Indeed, there are only six circumstances under which you do not have to pay an intern.

First and foremost, interns are with you to learn. They’re not there to save you a buck or lighten your workload. These are certainly perks that an intern may contribute, but they are not the intern’s reasons for applying to your business. Interns are not employees. Adjust your expectations of them accordingly.

Interns Aren’t Experts

Remember, the main point of an internship from an intern’s perspective is to gain practical work experience. Employers should expect and accept that interns are going to be new to a whole lot of things. So don’t be dismayed if they’re not familiar with the finer points of Dropbox and SharePoint from the get-go. They’ll figure it out, especially if you help.

Interns Need Mentorship

Many students seek internships as part of their educational program or as a chance to apply their knowledge in a ‘real world’ setting. Accordingly, they’re looking for mentorship.

Interns require more hands-on direction and supervision than regular employees. If you know that you will be too busy to give your intern reasonable hands-on training, or unavailable to regularly check in, offer constructive feedback and answer questions, then an intern might not be a good fit for you.

Mutually Beneficial Internships Take Planning

Before you decide to hire an intern, it is important that you have clear and concrete goals for this temporary work arrangement. What project(s) will you have your work on and how will they align with the intern’s skills and learning goals? What skills will the intern have developed from working with you and what sort of mentorship will they receive?

Finding adequate and meaningful work for interns is a challenge many employers face. Because the work relationship is of a fixed term, employers are sometimes reluctant to invest the training and responsibility necessary for their interns to take on projects beyond the tasks they are directly assigned.

In order to keep your intern busy, you should consider creating a detailed workplan. It is reasonable to expect that your intern will be at least somewhat self-directed, but they will need a decent amount of information up front in order for them to productively fill their time. ‘Busy work’ is of little benefit to anyone. It’s frustrating for employers to have to constantly come up with little tasks, and disappointing to interns who hoped to get meaningful work experiences.

Legal Obligations to Interns

Legal Obligations to Interns

As an employer, it is essential that you be informed of your legal obligations to your interns. You should be familiar with the laws governing internships in order to ensure your program and policies are fair and lawful.

An experienced employment lawyer at KCY at LAW can advise you of these legal obligations and can help you craft policies and procedures that will make your internship program successful and beneficial to all parties. To book your consultation, call 905-639-0999 or contact us online today!

Wrongful Resignation – Understanding Wrongful Resignation

That’s enough. I’m walking out that door right now and never coming back.

The above thoughts have likely crossed the minds of many a frustrated employee. Indeed, in the moments when you’ve had it up to here with your job, there’s something very tempting and liberating about the thought of swift and unceremonious departure.

But take it from the experts at KCY at LAW’s employment law firm, you’d be well-advised to take a deep breath in these moments of anger before taking any rash actions.

What is a Wrongful Resignation?

If you haven’t heard of a wrongful resignation, don’t worry, you’re probably familiar with its sister concept: wrongful dismissal. When terminating an employee without cause, employers have a duty to provide reasonable notice or pay in lieu thereof. Failure to provide an employee with either leads to what is called a unlawful wrongful dismissal. A wrongful resignation is essentially the same thing as a wrongful dismissal, except that it is the employee who has failed to provide the employer with reasonable notice of their intention to quit their position.

The issue of wrongful resignation doesn’t come up that often since employers don’t usually suffer much loss, if any, for losing an employee without notice.

What is wrongful Resignation - KCY at LAW

Employee’s Reasonable Notice Obligations

Formally, there is no specific legal requirement under the Employment Standards Act or any other employment legislation for an employee to give two weeks or any other prescribed amount of notice of their intention to resign from their job. However, employees are required to give reasonable notice and it is also possible for them to have a contractual obligation to provide a certain amount of notice of their departure.

Even if an employee does not have a contractual obligation to give reasonable notice of their resignation, they may still be liable for damages should their unexpected departure cause a significant loss to their employer.

Wrongful Resignation or Not?

When deciding whether an employee’s departure was a wrongful resignation, the courts will consider what the reasonable notice should have been based on how long it would take the employer to find a replacement for the resigning employee. The employee’s position, length of service and the amount of time it would take to replace them will all be considered in this decision.

For example, it is much easier for a restaurant owner to find a replacement dishwasher than it would be for a tech company to replace a senior program developer who had been at the company for several years.

Determining Damages for Wrongful Resignation

Damages for Wrongful Resignation - KCY at LAWWhen determining the damages owed to an employer by an employee that has wrongfully resigned, the courts may consider:

  • Advertising costs for the vacant position
  • Placement agency fees
  • Overtime costs to other employees who must cover the resigned employee’s shifts or duties
  • Business losses

These damages would all be offset by the money a business saves by not having to pay the former employee during what would have been the reasonable notice period.

The Cost of Wrongful Resignation – Gagnon & Associates Inc. et. Al. v Jesso et. Al.

The costs to employees who wrongfully resign are well illustrated in the case of Gagnon & Associates Inc. et. Al. v Jesso et. Al..

Gagnon & Associates hired Mr. Jesso in 1996 for their shipping department. However, Mr. Jesso quickly worked his way into a sales role and by 2006 was the company’s top sales associate. Alone, Mr. Jesso accounted for 30% of Gagnon & Associates’ total sales. In 2006, while still employed with Gagnon & Associates, Mr. Jesso found employment with a competitor and tendered his resignation, effective immediately, to begin working for the other business.

Gagnon & Associates subsequently lost clients to this competitor and had a hard time finding an equally experienced sales associate. At trial, Gagnon & Associates argued that Mr. Jesso’s abrupt resignation did not give them adequate time to transition the position and had cost the company significant sales.

Mr. Jesso insisted he wasn’t a manager and didn’t have any fiduciary obligations to the company and therefore hadn’t owed any notice. Agreeing with Gagnon & Associates, the judge determined that reasonable notice would have been two months because of Mr. Jesso’s long tenure with the company and his invaluable sales expertise. Mr. Jesso was ordered to pay Gagnon & Associates $35,164.

Wrongful Resignation Takeaway for Employees

Before resigning without notice, employees – especially those in senior or specialized positions – should first consult with an employment lawyer to determine any obligations, contractual or otherwise, they may owe to their employer. KCY at LAW will make sure that you know your resignation rights and obligations to guarantee you a smooth and successful employment transition. Call us today on 905-639-0999 or contact us online to book your consultation.

Fixed Term Contracts

Sometimes, employers find themselves in need of a new employee, but know that they will not need this employee indefinitely. Perhaps they need someone with specialized knowledge to spearhead a project, or maybe they require a little extra help during their busiest season. Whatever the case, one option available to employers to fill these temporary employee needs is to hire someone on a fixed-term contract.

Indefinite vs. Fixed-Term Contracts: What’s the Difference?

What's The Difference Between Indefinite and fixed-term contracts?Indefinite contracts do not set an end date to the employment relationship between employer and employee. Employment is ongoing without a fixed or foreseeable end to the working relationship. Indefinite contracts can be terminated by the employer at any time so long as the employer gives appropriate notice or pay in lieu thereof according to the employee’s contract as well as employment law standards. If you hire an employee on a permanent basis, they have an indefinite contract.

By contrast, fixed-term contracts provide a set duration to the employment relationship between parties. With a fixed-term contract, both the employer and employee know exactly when the employment relationship will end.

Why Choose A Fixed-term Contract?

There are several scenarios that would make a fixed-term contract a practical employment arrangement. For example, an employer may to cover a permanent employee’s parental leave or a sabbatical. They are also a good option to create a temporary position for the purpose of a particular project.

Another advantage of this type of contract is that they minimize employers’ severance obligations to the fixed-term employee. Since the employee already knows the end date of their employment when they sign their contract, there is no need for reasonable notice before their last day of work. They essentially receive their termination notice before they even begin their job.

Fixed-Term Contract Termination Obligations

While avoiding certain termination obligations may be appealing, fixed-term contracts present a challenge to employers should they wish to terminate employment before the fixed-term contract is fulfilled.

Without a termination clause in their fixed-term employee’s contract, employers do not have the right to end the contract early. However, there are several reasons an employer may wish to end a fixed-term employment relationship early. Perhaps the project the employee was working on finished early or funding for the position has run out. Whatever the case, if an employer decides to prematurely terminate a fixed-term employment contract without cause, damages are not the same as common law notice periods. Rather, the employer must pay the employee the balance of their wages for the remainder of the original employment term.

For example, if an employee was given a six-month contract with a salary of $4,000 per month and their employer decides to terminate the employment relationship after five months, the employer would owe the employee that final month’s salary of $4,000.

As you can see, the amount owed to a fixed-term employee who is terminated without cause before the end of their contract can be more that the pay in lieu of notice that they would have received if they had an indefinite contract.

Termination Clauses in Fixed-Term Contracts

In order to terminate a fixed-term employee before their contract’s end date without having to pay them the balance of their contract, employers need to have a termination provision drafted into the employee’s contract.

However, employers should note that a simple termination provision for a certain number of week’s notice will override the balance owed if a contract is terminated early. Such was the outcome of Thompson v. Cardel Homes Limited Partnership. In this case, Cardel Homes had hired Mr. Thompson as a senior executive on a two-year contract that was subsequently extended for another year. The contract contained a detailed termination clause that guaranteed Mr. Thompson a 12-month severance payment in the event of an early termination. One month before the end of the contract, Mr. Thompson was informed that his contract would not be renewed again and was told that he didn’t need to come in for the final month of his contract and that he should pack his things. At trial, the judge ruled that, in being told to pack his things and not return to work before the end of his contract, Mr. Thompson had been constructively dismissed and was therefore entitled to the full 12 months of severance as was outlined in his employment contract, not the one-month balance remaining in his contract.

Fixed Term Contracts Info for Employers

Fixed Term Contracts Takeaways for Employers

Before hiring someone on a fixed-term basis, employers should seriously consider why it is that they do not want to hire this person on a permanent basis and have a clear sense of how long the employment relationship will last. Otherwise, the fixed-term contracts employers present to employees need to have clear, unequivocal language concerning severance entitlements in the event of early termination.

KCY at LAW can draft you fair and enforceable fixed-term employment contracts to protect your interests and serve your needs. Call us today on 905-639-0999 or contact us online to book your consultation.

Employment Equity Guide – 1995 Employment Equity Act

What is Employment Equity

The term employment equity was first introduced in 1984 by Supreme Court of Canada Justice Rosalie Abella in her Royal Commission Report. This report noted that certain groups of people – women, Aboriginal Peoples, visible minorities and persons with disabilities – faced systemic discrimination that kept them from accessing well-paying jobs. The report acknowledged that discrimination was rarely intentional, but that it was nonetheless woven into the very fabric of most businesses’ employment policies and practices.

The report did not place blame on any individuals. Rather, it argued that many common and seemingly neutral employer practices around hiring, retaining and promoting employees unintentionally disadvantaged the above-noted groups of people.

Therefore, the commission prescribed a systemic solution of employment equity to remedy the disadvantages faced by these groups of people. Justice Abella explained that employment equity is an ongoing process. It requires that we identify and eliminate barriers to people’s full participation in the workplace by enacting positive policies to facilitate their inclusion so that all areas of the workforce reflect broader social demographics.

Why Employment Equity?

History has shown that, without government oversight and legislation, businesses and organizations are not good at ensuring employment equity on their own. Before employment equity laws were passed, few companies voluntarily evaluated and changed their hiring and employment practices to ensure equitable opportunity for marginalized groups.

Employment Equity Act

Following the recommendations of the Abella Report, the purpose of the 1995 Employment Equity Act is “to achieve equality in the workplace” to ensure that no one is denied employment opportunities for reasons other than their ability to fulfil their role’s job requirements. But the Act is about more than meritocracy. It’s about correcting the systemic conditions that disadvantage women, Aboriginal Peoples, visible minorities and persons with disabilities.

The Employment Equity Act recognizes that what is fair is not necessarily that which is equal. The Act acknowledges the need to take special measures to remedy past inequities and accommodate differences in order to make the workplace just and accessible to all.

Employer Obligations under the Employment Equity Act

Employer Obligations Under the Employment Equity Act 1995Employer’s obligations under the Employment Equity Act are twofold:

  1. Identify and eliminate employment barriers in their employment and workplace policies and practices.
  2. Institute positive policies and practices and make reasonable accommodations to ensure designated groups achieve representation across all sectors of their business proportional to these groups’ representation in the overall workforce.

To start, employers need to determine the degree to which women, Aboriginal Peoples, visible minorities, and persons with disabilities are underrepresented in all occupational areas of their workforce. For example, since women make up 50% of the population, they should make up roughly 50% of management, 50% of HR, and 50% of sales roles. It is not enough to say that half of your employees are female if none of these female employees are in management positions.

Next, employers shall review their policies and practices to identify potential barriers to employment and opportunity (such as promotion) to these groups. For example, a potential barrier to a person with a disability may be the accessibility of your offices or policies prohibiting working off-site.

The Myth of Quotas – Employment Equity

When talking about employment equity, the topic of quotas or affirmative action are often brought forth to suggest that employment equity privileges one group of people by taking away opportunities from another group.

This is not the case. Employment equity does not involve hiring quotas or affirmative action.

Employment equity is about correcting injustices and creating a level playing field, not favouring one group over another. It simply requires employers to look at their workforce and set goals to make it match the overall composition of the broader workforce over time.

Furthermore, employment equity does not require employers to hire unqualified individuals. Employment equity does not hinder employers from setting bona fide qualifications for the job. Employers do not have to hire or promote anyone beyond their demonstrated job abilities. Finally, while employers are expected to make reasonable accommodations to facilitate the full participation of all people in their business, they do not have to incur undue hardship that would negatively impact their operations or business in order to do so.

Employment Equity Legal Experts - KCY at LAW Employment Lawyers

Employment Equity Legal Experts

KCY at LAW has the expertise to help you take advantage of the diverse talent that is a feature of the equitable workplace. We can help you identify barriers to meeting your equity goals and craft policies and procedures that will help transition your workplace into one that is equitable without compromising its success. Contact our employment law team now by calling (905) 639-0999 or contact us online for more info.

Fiduciary Obligations & Relationships – Employees Fiduciary Duty


Now there’s a ten-dollar word for you. Fiduciary describes a relationship of trust and confidence wherein the fiduciary must act in a manner that looks after the best interests of a beneficiary.

Fiduciary obligations are intended to protect the more vulnerable party in relationships involving a high degree of confidentiality and trust. Common examples of fiduciary relationships include doctor-patient, lawyer-client, employer-employee.

What Is Fiduciary Obligation?

Fiduciary relationships – and therefore obligations – arise when one party has the power or position to use information that could negatively impact the other party’s interests. For example, a doctor would have a fiduciary duty not to refer a patient to a business or product in which the doctor has a vested interest unless this is truly in the patient’s very best interest.

Breach of this duty is considered a serious violation of the law and any losses incurred by the beneficiary must therefore be compensated.

What is Fiduciary Obligation

Lac Minerals Ltd. v International Corona Resource

In the 1989 case of Lac Minerals Ltd. v International Corona Resources, the Supreme Court of Canada established a three-point test for determining if you are in a fiduciary relationship:

  1. The fiduciary has scope for the exercise of some discretion or power.
  2. The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interest.
  3. The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power.

Fiduciary Obligations Between Employers and Employees

Fiduciary obligations are meant to prevent conflicts of interest in employer-employee relationships. Both employers and employees can have this obligation towards the other.

Fiduciary obligations are implied, if not explicitly written, in employment contracts. They are often written into contracts as restrictive covenants that prohibit former employees from competing with their former employer.

The issue of fiduciary obligations often comes up after an employee has left a company or organization.

GasTOPS Ltd. v Forsyth – Example of Fiduciary Duty

The 2012 case of GasTOPS Ltd. v Forsyth provides an excellent example of the fiduciary duty employees owe to their former employers.

After all resigning from GasTOPS Ltd. – an industry leader of engine condition-based maintenance – with minimal notice, four employees formed their own competing company MxI.

These MxI founders had been the core programs designers of GasTOPS’ technology products and were part of the company’s senior management. At the time they set up MxI, they were fully aware of GasTOPS range of products, business plan and proposals to potential customers.

Within months of founding MxI, several other GasTOPS employees left to join the business, suggesting that the defendants had planned their exit from GasTOPS and establishment of a competing software development company for some time.

The trial judge determined that the defendants knew that their departure would leave GasTOPS unable to fulfil its existing contracts or pursue new ones. Furthermore, he determined that MxI pursued nearly all of GasTOPS current and potential customers using private business and technological information to which they were privy as GasTOPS employees.

GasTOPS was awarded over $20 million for MxI’s breach of its fiduciary obligation.

Employee Fiduciary Obligations - KCY at LAW - Employment Lawyers

Key Takeaways – Fiduciary Obligations

Restrictive covenants and fiduciary obligations aren’t meant to prevent employees from starting new or competing businesses altogether. Indeed, courts do not look generously upon overreaching restrictive covenants as they can inhibit fair and open competition. However, former employees must take care when founding a business in direct competition with their former employer.

If you wish to discuss your fiduciary obligations with an experienced employment lawyer and understand what they mean for your business, contact KCY at LAW today online or call us on (905) 639-0999.

New Labour Laws Bill 148 – Fair Workplaces & Better Jobs for 2018

12:00 a.m. on January 1, 2018 rang in not only a new calendar year, but also big changes to employment legislation in Ontario. The sweeping employment and labour law reforms ushered in by Bill 148: Fair Workplaces, Better Jobs Act, give Ontario workers greater protections and benefits.

Fair Workplaces, Better Jobs Act Changes

It’s been twenty years since the last significant review of the Employment Standards Act (ESA) and the Labour Relations Act. A lot has changed since then. These changes are intended to make labour laws compatible with the particular needs and challenges of the modern workforce.

Here’s what you need to know.

Fair Workplaces Better Jobs Act ChangesExtended Parental Leave
New parents can now take up to 18 months of parental leave after the birth or adoption of their child. In order to stay home longer with their new child, parents can extend their 12 months of federal employment insurance over an additional six months at a lower benefit rate. Additionally, mothers-to-be can now claim maternity benefits up to 12 weeks before their baby’s due date.

Minimum Wage Increase
Minimum wage has been increased by $2.40 from $11.60 to $14 per hour. This current wage is a pitstop on the way to the government’s ultimate goal of a $15 per hour minimum wage which is slated to come into effect 1 January, 2019.

Increased Vacation Time
Employees who have been with a company for five or more years are now entitled to three weeks of paid vacation.

Public Holiday and Overtime Pay
Bill 148 has simplified the calculations for both public holiday and overtime pay. Now, public holiday pay is calculated based on the employee’s regular wages in the pay period preceding the holiday, divided by the number of days worked.

Employees who work multiple positions with different rates of pay at the same company will now receive overtime pay at the rate of the role in which the overtime is worked. For example, if an employee ears $15 per hour for role A and $18 per hour for role B and they work overhours performing the work for role A, they will receive overtime pay calculated based on the $15 per hour wage of role A.

Expanded Access to Personal Emergency Leave
Thanks to provisions under Bill 148, all Ontario workers are now entitled to 10 days personal emergency leave per year, the first two of which must be paid. Until now, only employees of companies with 50 or more employees were entitled to such leave. Now, all workers have access to this job-protected leave of absence to deal with personal emergencies such as

  • Personal illness or the illness of a family member (such as a sick child who needs to stay home from school)
  • Bereavement
  • An urgent personal or family matter
  • Domestic or sexual violence

Also notable about these emergency days is that employees are no longer required to provide a doctor’s note to support their requested leave.

This is the first time all Ontarians will be entitled to paid sick days. This expanded eligibility come as welcome relief for the thousands of Ontario workers who have, in the past, found themselves at work despite illness and important family responsibilities because they could not afford to take the time off. These changes may contribute to healthier employees and therefore healthier and more productive workplaces.

Pay Equity For Non Full-Time Workers

While equal pay for equal work is a rallying cry most people associate with the feminist movement, changes to legislation are concerned with equal pay for temporary, casual, part-time and seasonal workers in line with their full-time coworkers. This means that employers can no longer pay full- and non full-time workers differently for the same job.

There are, however, exceptions to the rule. Pay systems based on seniority, merit or production quantity/quality may continue to pay employees different wages for the same work based on these systems. Equal pay legislation comes into effect on April 1.

Impact of Bill 48 for Employers

Takeaway for Employers

What does all this mean for employers? Hopefully: a happier and healthier workforce. However, many employers will need to review their workplace policies and procedures, as well as their employees’ contracts to ensure that they are in compliance with Bill 148. Contact KCY at LAW to consult an experienced employment lawyer and ensure that your business or organization is up-to-date with current employment legislation. Give us a call now on (905) 639-0999 or contact us online.

Workplace Investigations Part II: Employee Rights

Last week, we wrote about workplace investigations. We explained how employers have an obligation to ensure a fair and thorough investigation and how bringing in a competent and neutral third party, like an employment lawyer, can help achieve this end.

Now, we’d like to talk about workplace investigations from the employee’s perspective. In particular, we’d like to focus on employee’s rights during an investigation.

Employee Rights During Workplace Investigations

If you’re a fan of police procedural shows like Law and Order or anything from the CSI franchise, you know of the Miranda Rights. You know, the you have the right to remain silent, you have the right to an attorney stuff. Maybe you’re wondering if these same rights apply if you’re involved in a workplace investigation.

First of all, we do not have Miranda Rights in Canada. You do have similar rights if you are being arrested – namely the right to know why you are being arrested and the right to speak with a lawyer.

However, being involved in a workplace investigation is not the same as a police investigation and neither are your rights.

Procedural Fairness – Workplace Investigations

If you have been accused of improper workplace conduct – theft, harassment, fraud etc. – you might expect to have at least the same rights as if you had been arrested for a crime in terms of procedural fairness. You would be wrong.

If you are involved in a workplace investigation, you will not necessarily get to know who your accuser is or respond to them. You also may not even be told the evidence against you. You can even be terminated without being told why or given the opportunity to submit your own defense.

Procedural Fairness in Workplace Investigation

Of course, employers must do everything in their power to conduct a fair and thorough investigation and failing to do so is at their own risk. However, employees should note that their rights are contractual. That is, you are entitled to the basic laws governing dismissals under the Employment Standards Act. Nevertheless, you can be terminated without cause at any time so long as you are given proper notice or pay in lieu thereof.


While you certainly have the right to contact and consult a lawyer in your personal time should you find yourself the subject of a workplace investigation, you are not entitled to have a lawyer or anyone else present during a workplace investigation interview. This isn’t a police investigation; you don’t get that proverbial one call. If you are part of a union you may have the right to the assistance of a union representative, but otherwise you do not have any right to counsel.

Speaking Up

Again, you haven’t been arrested, and you therefore do not have the right to remain silent. As an employee, it is your duty to cooperate with any workplace investigation. Silence on your part during an interview can be taken as insubordination and can reasonably lead to disciplinary actions against you. Additionally, if you refuse to answer question, your employer will not have, and therefore will not take into account, your side of the story.

Electronic Surveillance

Employees have a general right to privacy in the workplace unless it is explicitly stated otherwise in their employment contract. When it comes to electronic surveillance – video, email or otherwise – the courts have emphasized the duty to balance employees’ rights to privacy with employers’ use of this material to investigate bad behaviour.

Surveillance must be conducted in good faith, in a reasonable manner, and only after exploring other alternatives. Workplace policies on surveillance should always be clear, comprehensive and accessible to all employees.

Electronic Surveillance in the Workplace


Employees have the right to a timely investigation. Employers must do their best to promptly initiate and investigate in response to complaints and allegations of wrongdoing. They must also implement disciplinary actions in a timely manner. If an employer has delayed such things and an employee files a legal complaint, arbitrators will look at the delay’s length and impact and measure this against the reason for the delay.

Workplace Investigation Legal Expert

Even though employee’s rights seem limited during a workplace investigation, you still have the right to a safe and fair work environment. Call KCY at LAW right away to consult with an experienced employment lawyer if you have been wronged by an improper workplace investigation. Call us on (905) 639-0999 or contact us online!

Workplace Investigations: How To Properly Investigate Alleged Misconduct

While most workplace issues can be dealt with directly, or with a little mediation from someone in HR, there are situations that may require a proper workplace investigation to resolve. Allegations or suspicions of theft, fraud, dishonesty, harassment or violence are just some of the circumstances that could warrant a workplace investigation.

How To Conduct A Workplace Investigation

When conducting a workplace investigation, there are many things you as a boss or employer should do to ensure its success.

First and foremost, you should gather the facts. Get all sides of the story. This means privately and neutrally interviewing all parties involved in the dispute – including the accuser and the alleged perpetrator. Remember, the alleged perpetrator has a voice too. Throughout the interview and investigation process, it is essential that you accurately record all the information you gather.

Workplace Investigations – Evidence Gathering

Employers should also gather evidence regarding the incident(s) such as documents, emails and photos when applicable. You should consult with experts to confirm the authenticity of materials such as photographs and surveillance video. Transcripts, notes, documents, video and any other material relating to the investigation should always be kept safe and confidential.

Workplace Investigation - Evidence Gathering - KCY at LAW

Following your evidence gathering, you should complete a report detailing your conclusions and recommending appropriate actions to remedy or reprise any wrongdoing.

Good Faith and Honest Mistakes

Sometimes, accusations will be proven incorrect. However, you should never make reprisals for allegations made in good faith. This means that if one employee makes accusations against another and it’s clear that these allegations were made from genuine concern based on the information the accuser had, they should not be punished should their allegations be proven incorrect. Only allegations brought forth with the intent to bring harm to the person against whom they are levelled should result in reprisal for the accuser.

Things to Consider During A Workplace Investigation

Investigations can make for tense workplaces. As an employer, you should make efforts to ensure that your employees feel safe and comfortable throughout the duration of the investigation.

The best way to ensure comfort and cooperation from all employees is to have clear policies detailing how you will deal with complaints. Employees should be made of such workplace policies at the beginning of their employment and employees should immediately be made aware of any changes to workplace policies.

Bring in an Expert

Unfortunately for all parties involved – including employers – workplace investigations are all too often flawed or mishandled.

For employers, mishandled investigations can be costly. If an employee feels that they have been seriously wronged by the mishandling of a workplace investigation, they may successfully claim constructive dismissal or even sue for damages.

Even many competent HR professionals can struggle to get everything right when conducting a workplace investigation. It is important that employers recognize when they are out of their depths to properly address alleged misconduct.

Workplace Investigations – Legal Experts

We therefore recommend hiring a qualified investigator help you handle workplace investigations. Having a competent third-party investigator, such as an experienced employment lawyer, will help you ensure a successful investigation. An employment lawyer has the legal knowledge and experience to conduct a fair and thorough investigation. In particular, allegations that are serious (involving violence, or criminality), involve high-ranking employees or complicated financial or legal issues, are best handled by a qualified third party.

Legal Experts in Workplace Investigations - KCY at LAW

Impartial Workplace Investigator

An outside investigator is more likely to be, and be seen by all parties as, impartial. Therefore, all parties involved in the investigation will be more likely to believe in the fairness of the investigation and accepting of its results.

If the behaviour or activity being alleged is serious and criminal in nature, you should report this to the police and allow law official to conduct their investigation without interference.

If you need the professional expertise of an employment lawyer to help you conduct a workplace investigation, call KCY at LAW now on (905) 639-0999 or contact us online for more info!

The Gig Economy – Freelancing in Canada

On-demand. Freelance. Contingent. Love it or loathe it, call it what you will, the gig economy is growing and shows no sign of slowing.

But what is it? The gig economy consists of short-term contract workers hired on a project basis.

The Gig Economy in Canada

A curiosity to many Baby Boomers, the growth of communications technologies and big data, an educated and specialized workforce, and the economic downturn in 2008 created the perfect conditions to push the gig economy into the mainstream.

Non-traditional workers make up an increasing portion of the workforce. According to a report from the HR consulting firm Randstad, these workers make up an estimated 20 to 30 per cent of the modern Canadian workforce. Information technology, administrative support and human resources are among the sectors that make the greatest use of this contingent workforce.

The Pros of the Gig Economy

The gig economy is championed for the flexibility it offers workers. Job postings for companies like Skip the Dishes and Uber invariably tout the prospective worker’s ability to set their own hours. At their best, gig jobs allow workers to carve out their ideal work-life balance while doing work they love.

For employers, contract, freelance and temporary workers offer the freedom to hire workers on an as-needed basis. As an employer, you can hire a specialist to address a pressing need for a fixed term and then have that expense vanish once the job is done. Temporary workers also enable employers to avoid paying into certain benefits and other expenses to which permanent employees are entitled.

Pros of the Gig Economy in Canada - KCY at LAW Employment Lawyers

The Cons of the Gig Economy

While the flexibility of the gig economy may be enticing, many people find themselves doing gig work out of necessity rather than choice. After all, contract workers do not have the same access to many aspects of the social safety net as permanent employees.

Many people would prefer to have a permanent position that offers stability, security, benefits and opportunities for advancement. Instead, many young workers in particular are faced with one short term contract after another and are forced to juggle multiple jobs just to make ends meet.

If contractors save companies money, why not contract out all positions? For employers, temporary workers can be financially prudent. However, permanent staff bring benefits of loyalty, stability and the sort of team work that can only grow from teamwork experiences. Temporary workers may be less likely to feel invested in a company that is not investing in them. Furthermore, constantly having to train new workers and integrate them into your business can be time-consuming and therefore costly.

Cons of the Gig Economy - Freelancing in Canada - KCY at LAW

Legal Frameworks for the Gig Economy

There is a growing need for legislation that protects workers in these situations of precarious employment. After all, contractors are often doing the same work as employees but at lower wages and without many of the benefits of permanent employees.

There are many legal and policy questions that the online gig economy poses and with which Canadian legislators are only beginning to grapple. To this today, determining whether a worker is an employee, an independent contractor or a dependent contractor has been primarily addressed on a case by case basis. Set rules have yet to emerge.

Legal Experts in Employment Contracts

If you’re hiring, KCY at LAW will help you ensure that all of your employment contracts will make for a fair and legal work environment. Call (905) 639-0999 or contact us online to book your consultation today.