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Restrictive Covenants in the Commercial Context: Payette v. Guay Inc.,...

n Payette v. Guay Inc. 2013 SCC 45, the Supreme Court of Canada distinguished between the interpretation of a restrictive covenant negotiated in the sale of a business and one found in an employment contract. In the commercial context, a restrictive covenant is lawful unless it can be established by the employee/vendor that its scope is unreasonable. In contrast, a restrictive covenant in an employment contract is presumed to be unenforceable unless the employer can establish it is reasonable in the circumstances.

Employee vs. Independent Contractor: Federal Court of Appeal Clarifies Test

The Federal Court of Appeal has recently clarified the test to be applied in determining whether a worker is an employee or an independent contractor, in 1392644 Ontario Inc. (Connor Homes) v. Canada (National Revenue), 2013 FCA 85 (CanLII).

Regional Construction Newsletter Fall 2013: Litigation-avoiding Behaviour

Issues arise on every construction, so what separates the projects that complete successfully from those mired in litigation? Whether it is early intervention to nip catastrophe in the bud or proactive management before problems arise, there are some easy guidelines to minimize risk. Click here for more.

Certification: A Step Above the Competition

For many businesses, competing for – and winning – contracts is crucial for success. In an increasingly competitive marketplace, obtaining and complying with internationally recognized certifications can be an effective way to help a company stand out from their competition. Certifications confirm that your business, products, or employees meet a certain standard of efficiency, quality control, or competency.

Employee’s Belief of Discrimination ≠ Actual Discrimination

In a recent decision of the Ontario Court of Appeal, General Motors of Canada Limited v. Johnson, 2013 ONCA 502, it was confirmed that an employee’s honest belief that they are being discriminated against is not, in and of itself, a sufficient basis on which to find workplace harassment and discrimination.

Constructive Dismissal – Sanderson v. Muskeg Lake Cree Nation

Sanderson v. Muskeg Lake Cree Nation, [2013] C.L.A.D. No. 202 (August 5, 2013)

Upon facing a 1.6 million dollar deficit, the Respondent performed a staffing review and decided to delete the complainant’s position in human resources. The Complainant had a degree in social work and a social worker position was available with an intended future HR component, so the position was offered to the complainant with no change in pay.

What are an Employer’s Obligations with Respect to Gender Identity?

Across Canada, there is a trend in human rights law to increase protections for transgendered individuals. Last year, Ontario and Manitoba joined the Northwest Territories in expressly including “gender identity” as a prohibited ground of discrimination under their human rights legislation. Ontario also included “gender expression” as a prohibited ground. In addition, Nova Scotia in 2012 added “gender identity” and “gender expression” to its Human Rights Act to protect transgendered persons from discrimination.

Can Employers Reduce Retiree Benefits?

A recent Ontario Superior Court of Justice decision may have implications for pension reform a cross the country, including in New Brunswick. In O’Neill v General Motors of Canada, 2013 ONSC 4654 (“O’Neill”), the employer, General Motors of Canada (“GM”), substantially reduced the health care and life insurance benefits of former salaried and executive employees after they had retired. The central issue was whether GM was entitled to reduce the benefits of retirees.

Terminations under the Canada Labour Code need not be for...

An employer dismissed its employee without cause and provided him with 6 months’ severance pay. A labour arbitrator decided that the employee’s allegation of unjust dismissal was made out because the Canada Labour Code (CLC) only permitted dismissals for cause. The decision of Redlon Agencies Ltd. v. Norgren, 2005 FC 804 (“Redlon”), was cited for this premise.

Employers Should Think Carefully Before Imposing a Dress Code

While employers may believe that they have a broad right to regulate what employees wear in the workplace, this is not the case. The question of what requirements an employer can impose on an employee’s appearance can actually be quite complex because the imposition of dress codes create a tension between an employee’s right to look the way they want and the employer’s business interest in regulating appearances. Unless an employer can provide an objective explanation of why the dress code is necessary, arbitrators typically find in favour of employees’ interests in self-expression.