Canada: Ontario Court Revisits The "Common Employer" Doctrine

In its decision in King v. 1416088 Ontario Ltd., the Ontario Superior Court of Justice (the Court) recently reaffirmed a common law doctrine of "common employer."

In particular, the Court found a number of related corporate defendants to be jointly and severally liable to a plaintiff for reasonable notice of termination and pension benefits even though such plaintiff had not actually been employed by a number of such defendants.

Background:

For over 38 years, the plaintiff (Mr. King) worked as a bookkeeper for a number of entities in the auctioneering and liquidation industry operating under the trade name, "Danbury." Specifically, from 1973 until his termination in 2011, Mr. King's compensation records showed that he worked for five (5) different Danbury entities, at times providing services to multiple entities concurrently. Such entities were all owned and/or operated by the same family.

In 2011, Mr. King's then employer, 1416088 Ontario Ltd. (operating as Danbury Industrial) ceased to carry on business due to financial constraints and terminated all of its employees. Mr. King was not provided any severance in connection with such termination. Although shortly thereafter a number of former Danbury Industrial employees were offered employment by yet another related company, 986866 Ontario Ltd. (which then began operating as DSL Commercial), Mr. King was not. Notably, DSL Commercial traded in the same lines of business, from the same premises, and used the same contact information as Danbury Industrial.

Mr. King subsequently commenced a wrongful dismissal action against a number of Danbury entities, including DSL Commercial. In particular, Mr. King claimed for pay in lieu of reasonable notice of termination at common law as well as pension benefits pursuant to a "Retirement Compensation Agreement" he signed in 1981. Such agreement provided that Mr. King would receive monthly pension payments to the extent he continued in employment with his then Danbury employer (including its successors) until the age of 65.

Although Mr. King was never formally employed by DSL Commercial, he argued that he should be treated as such because: i) during his tenure with Danbury Industrial he had performed services for 986866 Ontario Ltd. (prior to it operating as DSL Commercial); and ii) DSL Commercial was a common employer (in addition to the other Danbury entities that had either formally employed him or he had performed work for) and/or was the successor to the Danbury companies that employed him.

Decision of the Court:

After reviewing the facts and applicable case law, the Court ultimately agreed with Mr. King and held all the Danbury defendants jointly and severally liable for the damages as claimed. In coming to such conclusion, the Court reaffirmed the general principle as outlined by Ontario's Court of Appeal in Downtown Eatery (1993) Ltd. v. Ontario. In particular, the Court of Appeal held that, "as long as there exists a sufficient degree of relationship between the different legal entities who apparently compete for the role of employer, there is no reason in law or in equity why they ought not all to be regarded as one for the purpose of determining liability for obligations owed to those employees who, in effect, have served all without regard for any precise notion of to whom they were bound in contract." What constitutes a "sufficient degree of relationship" in each case will depend on the facts including the relationship at issue and the amount of common control between such entities.

The Court relied on the following facts in determining that DSL Commercial was not a separate entity from Danbury Industrial:

  • DSL Commercial used the same premises, supplies, telephone system, and website as had Danbury Industrial. Such website also referred to DSL Commercial's corporate history as having spanned over 54 years;
  • Prior to his termination, Mr. King carried out a number of preparatory tasks needed for DSL Commercial to commence business (including setting up its payroll, WSIB and employer health tax account, and banking resolutions) and also monitored its bank account;
  • Although DSL Commercial formally had the license to use the "Danbury" name and logo, Danbury Industrial had also used the same name from May 2010 through October 2011; and
  • The operating name, "DSL Commercial" was based on the old corporate entity "Danbury Sales Ltd.," an employer of Mr. King in the 1980s.

While the Court was satisfied that liability could be grounded based on the relationship between Danbury Industrial and DSL Commercial alone, it also noted that the remaining Danbury entities were sufficiently interconnected such they could also be said to have employed Mr. King pursuant to the common employer doctrine.

In light of such findings, the Court granted Mr. King 24 months' pay in lieu of notice of termination as well as pre-judgment interest on such amount. With respect to his pension benefits claim, Mr. King was awarded the value of such benefits retroactive to the date of his termination (plus pre-judgment interest on such amount) as well as a declaration confirming his entitlement to receive future payments under the 1981 agreement.

Our views:

For businesses operating through interconnected entities, the Court's decision serves as yet another example whereby the courts will not hesitate to pierce the corporate veil and hold multiple companies jointly and severally liable for obligations owing to employees if the circumstances so warrant. As demonstrated by this decision, such liability can even extend to corporations that were not actively conducting business during a plaintiff's employment.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions