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 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

Even 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.

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?

Frustration 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

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.

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).

As 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.

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.

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.

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

The 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.

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.

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

To 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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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.

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

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.