Workplace Wire - Connecting Employers to Developments in Labour, Employment & Pension Law

Employers have reason to worry about a recent decision from the Court of Appeal for Ontario which allowed an employer to sue an employee in Ontario even though the employee had few connections with the province.

Employees will likely be allowed to sue their employer in Ontario even though they are employed abroad and have very few ties with the province. The Court of Appeal in Dundee Precious Metals Inc et al v Marsland et al, 2011 ONCA 594 determined that coming to Ontario for meetings a few times a year was enough to expose an employee to lawsuits in the province.

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The question of whether the estate of an applicant who has died may continue to pursue an application with the Human Rights Tribunal of Ontario was addressed in the 2010 HRTO decision Morrison v. Ontario Speed Skating. In that case, the Tribunal refused to dismiss the application of a deceased applicant which was being advanced by the applicant’s wife (who was also executor of his estate).

The Tribunal determined that a human rights application was not automatically extinguished through common law.  It ruled that the rights of an applicant do not automatically abate upon death, noting that the Human Rights Code contemplates complaints being brought forward by persons other than the applicant.

This reasoning has since been adopted in two subsequent tribunal decisions (Dorosz v. Kingston General Hospital and Roy v. Wal-Mart Canada), and the principle appears to be settled.

To successfully continue to pursue this kind of claim, the person bringing the claim forward on behalf of the applicant must prove his or her authority to act on behalf of the applicant’s estate, such as submitting documentation proving the appointment as the estate trustee.

As for evidence at the hearing, the case law suggests that the adjudicator can use his or her discretion in determining whether to admit the hearsay evidence and what weight to give it, considering any other evidence regarding the circumstances.

With thanks to Roni Hoffman, Articling Student.

In the recent decision in McKinstry v. Stone, 2011 ONSC 5544, the Court dismissed the employer's motion for summary judgment on the issue of reasonable notice because the employment agreement referred a "policy booklet" and "standard code of ethics guide", and these were not produced at the motion.

This illustrates a common problem.  It is not unusual for employers to make reference to other documents in their employment agreements, whether it be policies, non-competition agreements, confidentiality agreements, etc.  The risk, from an employer's perspective, is that termination provisions that might seem clear in the employment agreement can be rendered ambiguous (and possibly even unenforceable) by these other documents.  In many cases, a better practice is not make specific reference to external documents at all, other than (perhaps) to state that the employee will comply with the employer's policies and procedures in effect from time to time. 

If the employer needs an employee to sign a confidentiality agreement, for example, provide the confidentiality agreement at the time of hiring and don't bother referring to it in the employment agreement. 

It is worth reading the decision of the court on this point, to drive it home: 

[15]           The Defendants have the burden of proving that Mr. McKinstry has been paid his full legal entitlement arising from his wrongful dismissal from employment without cause.  In order to do so, the Defendants must prove what that entitlement of Mr. McKinstry is.  They submit that it is the amount set out in the termination provision of the Agreement.  They must therefore prove what the specific terms of the Agreement are with respect to Mr. McKinstry’s entitlement.  Mr. McKinstry submits that in order to do so, the Defendants must produce the entire Agreement in its motion record.  This includes the documents referred to in the Agreement.  The Defendants have not produced the policy booklet and standard code of ethics guide which is referred to in the Agreement.  It is argued that it is therefore not possible to properly interpret the termination provision of the Agreement as this Court does not have access to the entire Agreement, which includes these documents.

[16]           I agree with this submission.  To succeed on this motion, the Defendants have a burden of proving that they are entitled to a dismissal of Mr. McKinstry’s claims for damages in wrongful dismissal arising from the failure to provide reasonable notice or pay in lieu thereof.  I agree that they cannot satisfy this burden of proof without establishing what the terms of employment were with respect to termination of employment.  This is a basic requirement that the Defendants must meet and they have not done so.  This is particularly so, in light of the conflicting evidence and submissions of the parties with respect to the effect that two employee manuals distributed after the date of the Agreement may have on the Agreement, as they contain what appear to be different termination of employment provisions.  The entire manuals were not produced by the Defendants.  Mr. McKinstry produced only excerpts of these manuals.  I find that the Defendants have not satisfied their burden of proof on this summary judgment motion with respect to wrongful dismissal claim regarding the failure to provide reasonable notice.  The motion for summary judgment on the wrongful dismissal claim is therefore denied.