Employees Not Covered By ESA

Seeing as this blog is situated on an employment law firm’s website, it’s made ample mention of the Employment Standards Act (ESA) over the years.

The ESA is one of Ontario’s most significant pieces of employment legislation. The Act sets out employees’ rights and employers’ responsibilities in the workplace. It also sets standards for things like minimum wage and overtime pay.

You don’t have to be an Ontario resident or even a Canadian citizen or permanent resident to be entitled to all of the ESA’s protections, rules and regulations. You are even entitled to all of the ESA’s protections if you don’t have a valid permit to work in Canada. Indeed, most Ontario workers are covered by the ESA’s legislation.

Employees Not Covered by ESA in Canada

Employees Not Covered by ESA in Canada - KCY at LAWHowever, there are still dozens of industries whose workers do not benefit from the rules and regulations outlined in the ESA. So while servers, receptionists and cleaners are all covered by the ESA, the following job positions, for example, are not:

  • Pilots
  • Babysitters
  • Lawyers
  • Federal government workers
  • Bank tellers
  • Long haul truck drivers

Instead, employees in the above jobs may be regulated by other legislation such as the Ontario Labour Relations Act or the Canada Labour Code.

While the ESA applies to most Ontario workplaces, according to the Ministry of Labour, the ESA does not apply to:

Employees in Sectors that Fall Under Federal Jurisdiction

Such sectors include airlines, banks, post offices, radio and television stations and the federal civil service. Employees in these sectors are covered by laws made by the Canadian government, such as the Canada Labour Code, which apply all across Canada. The Canada Labour Code also applies if you hold political, judicial, religious or elected trade union office.

Students in Work Experience Programs

This applies to you if you are working under a program that has been approved by a university or college of applied arts and technology or if you are a secondary school student performing work under a program authorized by your school board.

Individuals Doing Community Participation Under the Ontario Works Act of 1997

Individuals on social assistance and doing community participation under the Ontario Works Act are covered by the Ontario Works Act with respect to their workplace rights and obligations and not the ESA.

Employees Not Covered by ESA - Employment Lawyer Burlington - KCY at LAW

Police Officers

Police officers’ employment rights are detailed in the Police Services Act.

Self-employed and Independent Contractors

Employers have occasionally tried to claim that their workers are self-employed and that the ESA therefore doesn’t apply. But this is often inaccurate. Even if you signed a contract saying that you are an ‘independent contractor’ you may still be entitled to ESA protections.

ESA Entitlements Legal Experts

The best way to verify your ESA entitlements is to speak with an experienced employment lawyer such as Kathy Chittley-Young here at KCY at LAW. (905) 639-0999 or fill out a form online here.

Probationary Period – Advice & Information

Starting a new job can be exciting. New office, new co-workers, new corner sandwich shop gems to discover. It can also be nerve-racking – new office, new co-workers, no idea where to find a decent BLT. Not to mention the added performance anxiety of that probationary period.

Setting out probation periods in employment contracts is becoming an increasingly common practice. Resumes and interviews can only go so far towards sussing out the perfect candidate. A trial period lets an employer get to know their new hire and see if he or she lives up to all that their cover letter promised. It lets the employer assess his or her suitability for their company.

There is often a lot of confusion surrounding probationary work periods among new hires. Its length, conditions and your rights – or lack thereof – during this time are a mystery to many. So let’s demystify them, shall we?

What Is A Probationary Period?

Let’s start by clarifying what it is, legally speaking. Statutory probation periods are a period of time at the beginning of an individual’s employment when they can be terminated without any notice or pay in lieu thereof.

What is A Probationary Period - Employement Lawyer Ontario

What Does It Mean To Be On Probation?

Legally, a probationary employee was first defined in 1979 by Justice Van Camp in the case of Mitchell v. The Queen:

The term is well understood in business and industry as an employee, who is being tested to enable the employer to ascertain the suitability of the employee for its purposes. Probation is a period when the employee may prove that he is suitable for regular employment as a permanent employee and will meet the standards set by the employer.

How Long Is The Probation Period?

Statutory probation periods vary in length from province to province. They range from just 30 days in Manitoba to six months in New Brunswick. Ontario fits comfortably in the middle with a three-month probationary period.

Employers can set out a different probationary length in their new hires’ contract but it may not exceed the statutory provincial length. Therefore, it would be fine for an Ontario worker to be on probation for two months but four would be unacceptable and would not be upheld in court.

Probationary Periods Must Be Written In Your Contract

Probationary periods are not automatic. Just because you have started a new job does not necessarily mean that you are on probation. A probationary period must be clearly stated in your employment contract. A contract that states something to the effect of: employee performance will be reviewed after three months will not likely be considered a probationary period if a situation is brought to court.

Mention of a probationary period can affect whether or not an employee takes a job, especially if they would be quitting one position for another. A probationary period means that they could be fired from their new position at their employer’s whim and left without the safety net of termination pay.

It is therefore advantageous to all employees if their contract makes no mention of this period. That way, if an employee is fired during the first three months of their employment and their contract did not make mention of a probationary period, they may be entitled to termination notice or pay.

Wrongful Dismissal During The Probationary Period

Probationary Period Advice for Employers - Employment Lawyer OntarioEven during the probationary period, new employees are not entirely vulnerable to the whims of their new employer. Wrongful dismissal cases during the probationary period are rare, largely due to the fact that the notice period of such a short period of time would be small, as would the damages. The Employment Standards Act doesn’t set out a notice period for employees of less than three months. However, courts are still entitled to apply common law periods of reasonable notice when they feel it is appropriate.

In Ritchie v. Intercontinental Packers Ltd. (1982) Justice Noble clarified the duty of the employer to act reasonably and in good faith when terminating an employee during the probationary period. When a probationary employee is fired, the employer must have “acted fairly and with reasonable diligence” in determining if the probationary employee was “suitable in the job for which he was being tested.”

This means that the employee must have been “given a reasonable opportunity to demonstrate his ability to meet the standards the employer sets out when he is hired.”

Probationary Period Advice for Employers

The threshold for dismissing a probationary employee, however, is low. If the employer simply finds them unsuitable for the position – maybe they just don’t jive with the rest of the team – that is often enough. However, when dealing with probationary employees, employers should:

  • go over the probationary employment conditions with their new hire;
  • evaluate the new employee’s performance and suitability to the job based on the requirements of the position and their fit within the organization; and
  • let the employee know of any shortcomings and give them the chance to improve.

Probationary Period Legal Experts

If you have further questions about the statutory probation period and what it means for you either as an employee or an employer, contact KCY at LAW by calling (905) 639-0999 or get in touch online.

Bill 132: New Protections Against Sexual Harassment in the Workplace

In September of last year, the Government of Ontario officially signed Bill 132 into law as part of the provincial government’s efforts to address harassment in the workplace. The Bill involves amendments to various existing statutes and legislation such as the Occupational Health and Safety Act (OHSA).

The Bill expands the definition of ‘workplace harassment’ to include directing comments or conducts against an employee at a workplace that could reasonably be considered unwelcome or sexual harassment.

Defining Workplace Sexual Harassment - Bill 132 Information - KCY at LAW

Defining Workplace Sexual Harassment

The OHSA now defines workplace sexual harassment as:

“engaging in a course of vexatious comment or conduct against a worker, in a workplace because of sex, sexual orientation, gender identity or gender expression where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or making a sexual solicitation or advance where the person making it is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know the solicitation of advance is unwelcome”

Genesis Of Bill 132: New Protections Against Sexual Harassment in the Workplace

The genesis of this Bill came in March of 2015 when the Government of Ontario announced an Action Plan to Stop Sexual Violence and Harassment with the intention to protect Ontarians from the impacts of these types of harassment and violence.

The Bill places a number of positive duties on employers to craft policies and train employees on how to address and investigate complaints should they arise. Failure on the part of employers to address and investigate complaints can result in a Ministry of Labour-led investigation or fines.

Employer Programs Required By Bill 132 - Bill 132 Legal Advice - KCY at LAW

Employer Programs Required By Bill 132

According to Bill 132, employers must have policies and programs in place to address issues of sexual harassment. Programs must detail:

  • how harassment should be reported;
  • to whom it should be reported (as well as alternative individuals in case said person is the harasser);
  • how allegations will be investigated;
  • how perpetrators of harassment will be disciplined;
  • how confidential information regarding allegations and their investigation will be managed; and
  • how all parties will be informed of the investigation’s outcome.

The Bill requires that workplace policies and programs be reviewed and updated annually. Additionally, Employers must provide training to staff about the policies and programs they put in place.

Bill 132 Compliance & Legal Advice

If you haven’t already, you should revise and update your policies in consultation with an employment lawyer to make sure you are in compliance with Bill 132’s new regulations. To review or develop your workplace’s policies, contact KCY at LAW’s professional employment law team at (905) 289-0999 or fill out an online consultation request form here.

Frustration of Contract in Five Questions

It’s a term that gets a lot off buzz. But what does it actually mean? This week’s blog is here to set the record straight.

What is Frustration of Contract?

Frustation of Contract Information - Employment Lawyer NiagaraFrustration of contract is the legal termination of a contract because of unforeseen circumstances that:

  • make the contract and its objectives virtually impossible to execute;
  • make the performance of the contractual obligations illegal; or
  • render the contract fundamentally different from its original intended character.

What Causes A Contract To Be Frustrated?

Frustration of contract usually arises from unforeseen events or circumstances such as:

  • an accident;
  • changes in the law; or
  • illness of either contractual party.

For an employer to end an employment arrangement due to frustration of contract, the circumstances must have been unforeseeable and occurred through no fault of either party to the contract. Furthermore, the burden of proof to demonstrate that a contract has been frustrated rests with the employer.

Illness of either employer or employee is the most common way in which a contract becomes frustrated. Frustrating a contract depends on the nature and expected length of illness as well as the prospect of recovery. Frustration of contract only applies to situations involving a permanent disability. Temporary disabilities must be accommodated to the point of undue hardship (in accordance with human rights laws) or employees must be terminated according to normal Employment Standards Act (ESA) requirements.

What Happens When A Contract Has Been Frustrated?

When a contract has been frustrated it can be terminated without liability to either party. This means that neither party is entitled to damages. However, the employer is still obligated to pay the employee their minimum entitlements under the ESA (such as termination and severance pay).

How Do Courts Decide If A Contact Has Been Frustrated?

Frustration of contract is largely addressed on a case-by-case basis. This is because the consequences of a frustrated contract are quite harsh to employees. Courts will also look to see if there is any reasonable chance the employee will be able to return to work in the foreseeable future.

How Long Must An Employee Be Off Work For A Contract To Be Considered Frustrated?

There is no set time period that an employee must be off from work for their contract to be considered frustrated. Two years is a time period often tossed around because this is usually when disability insurance is cut off. However, being cut off from disability is not the same as medical evidence that an employee will not be able to return to work.

Courts will take into consideration how long an employee has been with a company as well as their position in it. Generally speaking, the more essential they are to the operations, the quicker the frustration can occur. For example, a cashier at a large supermarket could be off for five years before his contract is considered frustrated whereas an associate executive director of a shoe brand might only be off a year and a half before her contract becomes frustrated.

Frustration of Contract Experts - KCY at LAW

Frustration of Contract Experts

If you have been have been off work due to unforeseen circumstances, KCY at LAW have the expertise to represent your interests. Call us at (905) 639-0999 or fill out our consultation request form here.

Constructive Dismissal: The Case of Farwell v. Citair Inc and the Duty to Mitigate

This week, we’re going to be looking at the limits of an employee’s duty to mitigate following a constructive dismissal through the 2012 case of Farwell v. Citair Inc.

For a quick refresher, check out our blogs from the archives on constructive dismissal and the duty to mitigate.

Farwell v. Citair Inc. – The Facts of the Case

Constructive Dismissal - Farwell v. Citair Inc - Case FactsMr. Ken Farwell worked for Citair Inc., a manufacturing plant in Hensall Ontario. He started at the plant as a general labourer in 1971 and was promoted five times over the course of 38 years. His final promotion was in 2004 to the position of Vice President of Operations.

In 2009, Mr. Farwell was told that he was being returned to his position of Purchasing Manager, a position he hadn’t held since 1993. Mr. Farwell declined to accept this demotion. Nonetheless, a short time later, Mr. Farwell’s boss announced to the company’s employees that Mr. Wayne Meidinger, an employee Mr. Farwell had previously overseen, would be taking over Mr. Farwell’s VP position the following week. The boss said nothing of Mr. Farwell’s new position.

Mr. Farwell was present at this meeting and felt deeply embarrassed and humiliated by this public announcement that a more junior employee would be taking over his position. Arguing that he had been constructively dismissed, he did not return to work.

Farwell v. Citair Inc. – At Trial

The trial raised four basic issues:

  • Had Mr. Farwell been constructively dismissed?
  • If so, what was the reasonable period of notice?
  • Did he mitigate his damages?
  • Was he entitled to damages for mental distress?

In court, Citair Inc. argued that, while Mr. Farwell’s job title had changed, his salary and work conditions were fundamentally the same and that he had therefore not been constructively dismissed. Citair Inc. also argued that, by not taking the position as Purchasing Manager during the notice period, Mr. Farwell had failed to mitigate his damages.

Farwell v. Citair Inc. – The Decision

At trial, the judge found that Mr. Farwell had been constructively dismissed.

The judge agreed with Mr. Farwell that the move from his position as Vice President of Operations to Purchasing Manager involved a substantial change in duties, responsibilities and, importantly, demoted status and prestige in the company.

Given Mr. Farber’s age (58 years), length of employment with Citair Inc. (38 years) and high managerial position, the judge determined 24 months to be an appropriate length of notice.

Furthermore, the judge found that Mr. Farwell had not failed to mitigate his damages by refusing the position of Purchasing Manager during the notice period.

Mr. Farwell found a position as a Purchasing Agent for Citair Inc.’s competitor, Northlander Industries, approximately seven months after his dismissal. The judge determined that Mr. Farwell had made reasonable efforts to find comparable employment in the difficult economy of the time.

The judge found that Mr. Farwell was not obligated to take the position of Purchasing Manager during the period of working notice. Despite a similar salary and working conditions to his previous position, the judge noted that holding this position (which he had held years earlier) would have constituted working “in an atmosphere of hostility, embarrassment or humiliation” since he would be reporting to a previously subordinate employee.

The judge, however, did not find that Mr. Farwell was entitled to damages for mental distress.

Constructive Dismissal Experts - Employment Lawyer Burlington - KCY at LAW

Farwell v. Citair Inc. – The Takeaway

According to the Farber case, a demotion, especially one with diminished prestige and status, can constitute constructive dismissal. However, if Citair Inc. had asked Mr. Farwell to return to his VP position for the duration of the notice period, Mr. Farwell would have likely been required to do so.

The Farwell v. Citair Inc. decision suggests that, in cases of constructive dismissal involving a substantial demotion, employees will not have to mitigate damages by working the notice period in the diminished role.

Constructive Dismissal Experts

If you believe you have been constructively dismissed though demotion or other circumstances, contact KCY at LAW’s employment law team for expert representation. Reach us at (905) 639-0999 or contact us online.

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Leaves of Absence – Emergencies, Health & Bereavement

Last week we introduced you to the leaves of absence available to Ontario workers to help them cope with various life events from birth to death. This week we will jump right in and give you an overview of four types of leave employees can take when faced with serious medical emergencies in their immediate family.

Leaves of Absence: Who is ‘Family’?

Families come in many shapes and sizes and the ESA recognizes this in its legislation regarding leaves of absence. Family, as it relates to the leaves of absence we are about to discuss, is a fairly broad term that includes most close relatives (by birth, marriage or adoption).

Leaves of Absence Ontario - Defining Family - KCY at LAWAs it relates to Personal Emergency, Family Medical, and Family Caregiver leaves of absence, the term ‘family’ may refer to:

  • The employee’s spouse (married or unmarried)
  • The employee’s brother or sister (including step-siblings)
  • The employee or their spouse’s parent, (including step- and foster-parent)
  • The employee or their spouse’s child, (including step- or foster-child)
  • The employee or their spouse’s grandparent or step-grandparent
  • The employee’s child’s spouse (son- or daughter-in-law)
  • The employee or their spouse’s grandchild or step-grandchild
  • A relative of the employee dependent on the employee for care or assistance

Family Medical leave also includes:

  • The employee’s brother-in-law, step-brother-in-law, sister-in-law and step-sister-in-law
  • The employee’s spouse’s son- and daughter-in-law
  • The employee or their spouse’s aunt, uncle, niece and nephew
  • Anyone who considers the employee to be like a family member

Types of Leaves of Absence

Now that we know the people for whom you are entitled to take these various leaves of absence, let’s take a look at five types of leave and what they entail. Family caregiver, family medical, critically ill child care, personal emergency and crime-related leaves have a degree of overlap and you can be entitled to more than one of these leaves for the same event.

Personal Emergency Leave
This leave is intended to address a personal illness, injury or medical emergency. You can also take this leave of absence in the case of the death, illness, injury or medical emergency of a family member (see above). Under this leave, you are entitled to take up to 10 days off in every 12-month period. These days do not need to be consecutive but even a half day off will count as a full day of leave. Importantly, this leave is only accessible to Ontarians employed by a company or business with over 50 employees.

Family Caregiver Leave
This leave is to enable you to care for a family member with a serious medical condition for up to eight weeks in a twelve-month period. As with a personal emergency leave, these eight weeks do not need to be taken consecutively. However, taking any number of days off in a week for this leave will count as one week of leave.

Taking a family caregiver leave requires a certificate from a medical professional (i.e. physician, registered nurse or psychologist) stating that your family member has a serious medical condition though it does not need to state what said condition is. You can find the necessary certificate for your physician to fill out here.

Leaves of Absence for Emergencies, Health Problems & Bereavement

Family Medical Leave
This leave is intended to allow you to care for a family member with a serious medical condition and a significant risk of dying within six months. You are entitled to up to eight weeks in a half-year (26-week) period for this leave. Again, these weeks do not need to be consecutive and, as with the other leaves of absence, taking just one day off in a week counts as an entire week of leave. This leave also requires a certificate from a physician, registered nurse or psychologist stating that the family member has a serious medical condition and a risk of dying within the next 26 weeks.

Critically Ill Child Care Leave
This leave is for parents whose child’s health has significantly changed for the worse and whose life is at risk because of illness or injury. The child may be the employee’s biological, adopted, step or foster child but must be under the age of 18 to take this specific leave.

This leave can last up to 37 weeks in a one year (52 week) period. These weeks do not need to be taken consecutively and this leave can be extended for another 37 weeks. This leave requires a certificate that states that your child is critically ill, requires parental care and sets out the period of time for this care.

Crime-Related Child Death or Disappearance Leave
This leave is for employees facing the devastating tragedy of their child dying or disappearing under criminal circumstances. For an employee to qualify for this leave they must have been with their current employer for at least six months prior to the tragedy. Under this leave you are entitled to 104 weeks (two years) for the death of your child or 52 weeks (one year) for their disappearance.

Leave of Absence Legal Experts

If your work position has been negatively impacted by a leave of absence, KCY at LAW has the expertise to ensure that your rights are protected. Call to book a consultation on (905) 639-0999 or reach us online for more info.

Duty to Mitigate: Helping The Employer Who Fired You?

In previous blogs, we talked about constructive and wrongful dismissals. In both instances, terminated employees have what is called a duty to mitigate. But what exactly is this duty and what does it mean for recently-dismissed employees? What is the scope and character of this duty?

What Is The Duty To Mitigate?

The duty to mitigate, in its most basic sense, means that an employee terminated without cause or constructively dismissed must make reasonable efforts to find new employment.

The reason for providing reasonable notice or compensation in lieu thereof is to give employees the time necessary to find a new job. The duty to mitigate is intended to offset former employer’s termination payments under the belief that an employer’s liability is limited to their former employee’s ability to obtain alternate work. However, employees are not expected to take employment that is not comparable to their former position.

What Is The Duty To Mitigate - Employment Lawyers

In the case of a constructive dismissal, an employee may be required to accept re-employment with their former employer in order to mitigate damages. This is only the case if the terms of re-employment are not fundamentally different from those before the constructive dismissal and only if personal relations in the workplace remain amicable.

Courts will decrease the compensation owed to an employee according to how much they earn from other income sources during the reasonable notice period. Employers are not expected to continue paying their former employees after they have found comparable work, even if they did so before their notice period has passed.

How Determine Damages Awarded To Dismissed Employees

To determine the damages awarded to a dismissed employee, courts will:

  • Determine the reasonable notice period according to the employee’s employment contract and the Employment Standards Act (ESA)
  • Determine the amount of money they would have earned during the notice period if they had not been fired
  • Subtract from this amount their earnings from other income sources during the notice period
  • Award the employee the difference between these amounts

Example of Calculating Damages for Dismissed Employees

Let’s say you have been terminated from your job of 5 years where you earned $15 per hour for a 40-hour week. You were dismissed without cause or notice. Under the ESA you are entitled to 5 weeks’ termination pay in lieu of notice. So, after leaving your job your former employer will continue to pay you $600 per week for 5 weeks. Happily, after two weeks you find a new, comparable job that pays $14.50 per hour, also for a 40-hour week. At this point you will stop receiving your full termination pay from your former employer. Instead, for the remaining three weeks of your notice period, you will receive the difference in wages between your old and new jobs ($0.50 per hour). Accordingly, you will receive $20 per week from your former employee for the remaining three weeks of your notice period.
Document Your Mitigation Efforts - KCY at LAW
If a court finds that an employee has failed to mitigate, they may not be entitled to any damages or, alternatively, reduced damages based on the period of time during which they failed to mitigate.

Onus On Employers

Fortunately for a recently-dismissed employee, the onus to prove that you have failed to mitigate lies with your former employer. It is up to them to prove that you did not make reasonable efforts to mitigate their damages before a court. In order to do so, an employer must prove that you could have found a comparable position with similar compensation if you had made a reasonable effort to do so.

Document Your Mitigation Efforts

If you want to start a wrongful or constructive dismissal action it is important that you document your mitigation efforts. This means carefully logging your job searches and applications during your reasonable notice period. Failing to take reasonable steps to mitigate may result in your notice period being reduced by the courts.

Employment Law Experts

KCY at LAW’s team of employment law experts can help you navigate the labyrinth of documentation necessary for you to successfully demonstrate the fulfillment of your duty to mitigate and ensure that you receive your full termination pay entitlements. Call KCY at LAW to book your consultation: (905) 639-0999 or contact us online now.

The Changing Workplace Review – ESA Overhaul

If you are reading this post you’ve probably heard of the Employment Standards Act (ESA). We talk a lot about it on our blog and the fact that you are on an employment lawyer’s webpage suggests that your Google search about your severance entitlements or maternity leave indicated your rights under the ESA have been infringed and you are here to see if we can help you. (We can!)

What Is The ESA?

For those not familiar with this piece of legislation: the ESA regulates employment in the province of Ontario and sets out standards regarding such workplace issues as minimum wage and overtime pay to which both employees and employers must adhere. The Act is the backbone of Ontario labour law and it is due for an update.

Much of the legislation within the ESA was crafted in the 1990s and, unlike butterfly clips and JNCO jeans, has largely stood the test of time. However, the information age has created an economy few legislators could have imagined when they sat down at their Windows 95 to develop the ESA. That’s why the Ontario Ministry of Labour announced last year that it would be reviewing the ESA.

What Is the ESA - Employment Standards Act

A Changing Workforce – Changing Workplaces Review

In July of 2016, the Ontario Ministry of Labour released an Interim Report based on consultation with a dozen Ontario cities. This Changing Workplaces Review proposed hundreds of options for amending the ESA and the Labour Relations Act to improve protections for workers while supporting businesses in the modern economy.

The workplace is changing. The workforce of the Baby Boomers who developed the ESA is very different from the one Millennials currently navigate. Gone are the days of ubiquitous nine-to-fives, unions and retirement plans. Today, work in many sectors is far less stable than it was 20 years ago. Involuntary part-time, temporary and self-employment are on the rise, as are short-term contract positions. Few young people entering the workforce can expect to work for the same company for 25-plus years and retire with a pension. Many workers do not have the same protections as their parents or grandparents and this increasing lack of stability and security for employees is part of what is driving the push for this ESA overhaul.

What To Expect From An Updated ESA

Changing Workplaces Review of the ESA - Proposed ChangesThe Changing Workplaces Review is focussed on reforms that protect the most vulnerable workers and those in precarious positions. Though employers may be skittish about proposals that will increase their operating costs, the review seeks to balance the needs of both employees and employers.

Some proposed reform options include:

  • providing shift workers minimum advanced notice of schedules and compensation for last minute changes to said schedules;
  • making paid sick days mandatory;
  • increasing paid vacation time to three weeks per year;
  • starting overtime at 40 hours instead of 44 hours; and
  • raising the 26-week cap on severance pay

While we do not yet know which recommendations, the government will adopt in its ESA overhaul, we hope to see changes that keep employees protected and employers competitive.

Experts In Employment Law

KCY at LAW are experts in employment law that can help you navigate your rights under the Employment Standards Act. We stay up-to-date with the changing legislative and legal landscape to ensure you get the best counsel. Reach us online or call us at (905) 639-0999 to book your consultation.

Severance vs. Termination Pay: What’s the Difference Anyway?

Though sometimes used interchangeably, termination pay and severance pay are not the same thing. While all employees of three months or longer with a company are entitled to termination pay (in place of notice) upon dismissal, not everyone is entitled to severance pay. To clarify the difference between the two, we’ve prepared a handy refresher for you.

What Is Termination Pay?

Termination pay is, quite simply, pay that is given in place of required notice of termination. Normally, an employee who is terminated without cause is entitled to either a statutory period of notice during which they continue working and receiving pay and benefits,  or they are entitled to pay in place of said notice. The amount of notice to which an employee is entitled will likely be set out in their employment contract, otherwise they are entitled to certain minimum standards guaranteed under the Employment Standards Act (ESA).

What is termination pay - Employment Lawyers

Required Notice for Termination in the ESA

The length of notice to which employees are entitled depends on how long they have been working with a company. The ESA guarantees the following notice durations or pay in lieu thereof:

Duration of Employment Notice or Pay-in-lieu Entitlement
3 months to less than a year 1 week
1 – 2 years 2 weeks
3 years 3 weeks
4 years 4 weeks
5 years 5 weeks
6 years 6 weeks
7 years 7 weeks
8 or more years 8 weeks

For example, If you worked for 4 years and 6 months at a company with a weekly pay of $1,000 and were terminated without cause, you would receive either four weeks’ notice or $4,000 (4 x $1,000) upon termination.

What is Severance Pay - Employment Lawyers

What Is Severance Pay?

As mentioned above, not everyone is entitled to severance pay. Severance pay is considered an earned benefit for long-serving employees. Or, as the Ontario Ministry of Labour puts it, severance pay “compensates an employee for loss of seniority and the value of firm-specific skills, and recognizes his or her long services.”

Additionally, to qualify for severance pay you must have worked for a company with a total annual payroll of $2.5 million or more for at least five years.

Severance pay is calculated differently from termination pay. To determine severance pay, you must multiply your regular week’s wages by your number of years of employment with the company.

For example, if you worked 7 years and 6 months (with a qualifying company) at a regular weekly pay of $1,000, your severance pay would be $7,500 ($1000 x 7.5).

Severance and Termination Pay Entitlements Lawyers

Consulting with an experienced employment lawyer is the best way for you to determine your full severance and termination pay entitlements. KCY at LAW have the expertise to ensure you your full entitlements under the ESA and your employment contract. Reach us at (905) 639-0999 or

Women in Canadian Law

Happy International Women’s Day!

Back in 1972, at a time when a mere 5% of Ontario lawyers were female, the Osgoode Hall Law Journal published an article by Linda Silver Dranoff (called to the bar in 1974), discussing the status of women in the profession. One of the more revealing things she cited in her report was a then-contemporary survey of Toronto law firms seeking articling students. The survey revealed that 40% of responding firms “openly admitted to a prejudiced attitude toward women applicants.” Trying to make sense of this, Silver Dranoff explained that,

“some members of the legal profession charge that women will give up the practise of law for marriage and motherhood, that they approach law as a hobby and therefore there is a basis for treating women lawyers differently from male lawyers.”

Women in Canadian Law

Proving those patriarchal prejudices wrong for 45 years and counting are the consistently growing number of women entering the legal profession. The latest available data suggests that women account for nearly 40% of Ontario’s lawyers. Though gender parity in the profession remains elusive – women are indeed still more likely than their male counterparts to abandon private practice to strike that illusory work-life balance – young women are leaning in and now account for nearly 60% of the youngest lawyers in the province.

Percentage of Female Partners In Law Firms

Less Than 20% Of Firm Partners Are Women

But there is yet work to be done. Women still account for less than 20% of firm partners. This has significant implications for firms wishing to hold a competitive edge. If firms want to remain competitive, they will need to find ways to retain top female talent. Just as it took a critical mass of women entering the profession for them to gain accommodations such as separate robing areas in court, the hope is that, as more women enter the profession, flexible working arrangements will become a priority.

Timeline Of Canadian Women’s Achievements In The Legal Profession

Women In Canadian Law - A Timeline of AchievementsTo celebrate how much women have achieved, we would like to share the following timeline of just some of Canadian women’s achievements in the legal profession:

1891: A year after graduating with a degree in mathematics at the age of 16, Clara Brett Martin petitions the Law Society of Upper Canada (LSUC) to be admitted as its first female law student.
1892: Legislation is passed permitting the admission of women as solicitors.
1897: Clara Brett Martin becomes the first woman in the entire British Empire to be admitted as a barrister and solicitor.
1906: Clara Brett Martin opens up her own practice, focussing on wills, real estate and family law
1911: the first International Women’s Day conference is held
1916: Emily Murphy, renowned suffragist, is appointed police magistrate for Edmonton, making her the first female magistrate in the British Empire
1918: White Canadian women become eligible to vote in federal elections regardless of their provincial enfranchisement.
1919: Law students Laura Denton and Helen Currie found the Women’s Law Association of Ontario (WLAO).
1920: Mary Buckley Laughton, another founding member of the WLAO, becomes the first female lawyer to pen a journal article for MacLeans
1924: Vera Parsons, first female criminal defense lawyer and first woman to appear before a judge and jury in Ontario graduates from Osgoode
1929: In the landmark Persons Case, women are declared persons and eligible to be appointed to the senate of Canada
1940s: As male lawyers were shipped off to WWII, the LSUC calls on women to temporarily take their place.
1941: Quebec’s Bar Act is changed to allow women to be called to the bar.
1943: Helen Kinnear becomes the first woman to be appointed as a judge by the federal government.
1946: Gretta Wong Grant is called to the bar and becomes the first Chinese-Canadian women to practice law.
1954: Violet King Henry is called to the bar, becoming Canada’s first black female lawyer.
1971: Mabel Van Camp becomes the first woman appointed to the Supreme Court of Ontario
1975: Laura Legge is elected the first female bencher at the LSUC.
1977: Marion Ironquil Meadmore becomes the first Indigenous woman lawyer in Canada.
1982: Bertha Wilson is appointed the first woman to the Supreme Court of Canada.
1993: Kim Campbell, who had earned her LLB in 1983 becomes Canada’s first female prime minister.
2000: Beverley McLachlin becomes the first female Chief Justice of the Supreme Court of Canada.

International Women’s Day

On International Women’s Day it’s a good time to take stock and see how far things have progressed over the years. At KCY at LAW we’re happy to continue that progression and if you need a lawyer for any personal injury or employment law related issues then call us today on (905) 639-0999 or contact us online to see how we can help you.

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Video Surveillance in the Workplace – Big Brother Boss?

From financial institutions to factories, video surveillance is common in many workplaces. It is especially prevalent in places where there is inventory or cash. Deterring harassment, theft and vandalism are just some of the reasons an employer may want to monitor their employees. However, the Canadian justice system has not been particularly tolerant toward employers who video monitor their employees without good faith or cause.

The Rules of Video Surveillance in the Workplace

In Canada, employees have a general right to privacy at the workplace, like in any other public space, unless it is explicitly stated otherwise in their employment contract. Accordingly, an employee would not have a reasonable expectation of privacy in an open lobby but would in a locker room.

Video Surveillance Rules in the Workplace - KCY at LAW

Well defined workplace policies should be your first defence against employee misconduct. Video surveillance in the workplace should be the option of last resort. Less invasive means of monitoring issues of suspected criminal activity, harassment, or violence should also be pursued before installing cameras. Only once other options for deterring suspected or known inappropriate behaviour have been exhausted should video surveillance be considered.

Is Video Surveillance In A Workplace Legal?

Is Video Surveillance in a Workplace Legal - KCY at LAWThere are many external factors, such as whether a workplace is unionized, that can also contribute to determining if video surveillance in a workplace is legal and legitimate. Based on a multitude of court rulings concerning workplace video surveillance and employee privacy rights, the following conditions should be demonstrated when installing video surveillance systems:

  • There must be a legitimate concern that an offence is being committed and that installing cameras 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 be able to know who is watching what and to what end.
  • Surveillance should monitor a particular area suspected of improper activity and for a determined period of time. However, surveillance must not single out a specific employee. The expanse of surveillance should be limited as much as possible. General surveillance for an indefinite time is usually considered unacceptable.
  • Surveillance should be conducted with a specific purpose and only used for said purpose.
  • Signs alerting employees and visitors to surveillance cameras should be prominently displayed.
  • Adhere to PIPEDA legislation regarding employees’ privacy and access to information.

Video Surveillance In The Workplace – Legal Experts

To avoid infringing upon your employee’s privacy rights, you should talk to an experienced employment lawyer before installing any surveillance measures in the workplace. KCY at LAW can help you to develop fair and legal employee monitoring systems. To find out more give us a call now on (905) 639-0999 or contact us online!

Psychiatric Malpractice

On December 12, 2008, Hamilton resident Donna Molnar was taken to St. Joseph’s hospital after attempting suicide. This was not her first suicide attempt and it would not be her last. Barely two weeks later she was found in a field by a rescue dog after lying in the snow for three days. Last year Ms. Molnar reached a significant settlement in a $12.5 million lawsuit against two doctors at St. Joseph’s Healthcare Hamilton as well as her family doctor.

Ms. Molnar vs St Joseph’s Healthcare Hamilton – Psychiatric Malpractice

Ms. Molnar’s position was that her family doctor and those at St. Joseph’s had demonstrated negligence in her mental health care. She had been experiencing severe anxiety and depression for some time and had made three previous suicide attempts before disappearing from her home on December 19, 2008. She was discharged from St. Joe’s after swallowing pills without seeing a psychiatrist on December 12 and was not referred to a psychiatrist after visiting her family doctor three days later. She alleged that her doctors failed to take appropriate actions to help a person clearly experiencing a mental health crisis.

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Psychiatric Malpractice – Negligence in Mental Health

People suffering from mental health issues are vulnerable and depend on the expertise of their psychiatrists the same way someone with respiratory issues would trust in their doctor to diagnose and treat their ailment. Like all doctors, psychiatrists owe a duty of care to their patients and if their patient suffers injury or wrongful death, the psychiatrist may be held liable for damages.

Psychiatric negligence may include:

  • Failure to properly diagnose and treat a patient
  • Failure to conduct a proper suicide risk assessment
  • Failure to prevent a patient’s suicide, self harm, or harm of others
  • Negligent use of psychopharmacological drug

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Suicide Prevention

Suicidal thinking is usually associated with problems that can be treated. If you cannot think of solutions besides suicide, it is not that solutions do not exist, only that you are unable to see them at the moment. If you are feeling suicidal or know someone who is, visit suicideprevention.ca or call a crisis centre such as Lifeline (1-800-273-TALK). Your life matters.

Medical Malpractice Experts

Medical malpractice suits are complicated and require the expertise of an experienced personal injury lawyer. If you or a loved one has suffered from psychiatric negligence, contact KCY at LAW by calling (905) 639-0999 or online to book your consultation and get the compensation you deserve.