Canada: Top 10 Employment And Labour Law Cases & Trends In 2014

Employment law enjoyed a high profile in 2014, with some of the year's biggest news stories revolving around legal issues in the workplace. The Cassels Brock Employment & Labour Group has put together a list of our top cases and trends from 2014.

  1. Family Status Claims Present Challenges for Employers - 2014 saw two Federal Court decisions (Canada (Attorney General) v. Johnstone, 2014 FCA 110 (CanLII) and Canadian National Railway Company v. Seeley, 2014 FCA 111 (CanLII)) rule that child care is included in the protected ground of "family status" resulting in a new test for federal employers. We expect that we will also see it applied at a provincial level. The new test is as follows: 1. the child is under the employee's care or supervision; 2. the childcare obligations engage the employees "legal responsibility for that child" (as opposed to a personal choice); 3. the employee made reasonable efforts to meet that childcare obligation through reasonable alternative solutions, and no such alternative solution is reasonably accessible; and 4. the workplace rule interferes in a manner that is more than trivial or insubstantial with fulfilment of the childcare obligation. The Federal Court also ruled that in the accommodation process, a complainant must show "that neither they nor their spouse can meet their enforceable childcare obligations while continuing to work, and that an available childcare service or an alternative arrangement is not reasonably accessible to them so as to meet their work needs." The test, which puts obligations on the employee to seek other arrangements as part of the duty to accommodate, is a welcome clarification of this highly litigated protected ground. 
  2. Protecting Interns and Other Vulnerable Workers - We have observed a significant increase in scrutiny of unpaid internships, both in the media and by the Ontario Ministry of Labour ("MOL"). Between April and June of this year, the MOL carried out inspection "blitzes" targeting employers in industries known to operate unpaid internship programs. The result: 13 of the 31 inspected businesses that had unpaid internship programs were found to be doing so in contravention of the Employment Standards Act, 2000 (the "ESA") and had orders issued against them. This past year has also seen high profile companies such as Bell cancel their unpaid internship programs amidst pressures and a legislative push in Ontario for greater protections for unpaid interns and other vulnerable workers. The real legal issue here lies with the fact there is a presumption in Ontario that workers are entitled to minimum wage and other basic employment rights, regardless of the title of their position. While there are exceptions that allow for unpaid workers, these exceptions are very limited and are exclusively associated with accredited educational programs or positions that closely mirror educational programs. Unfortunately, the restrictive statutory requirements often go unnoticed by businesses that operate unpaid internship programs. For more on this issue, our most recent elert on the topic of unpaid interns is available here. You can also view our recent seminar presentation on the subject of unpaid interns, independent contractors and short-term employees by clicking here. 
  3. Compliance Concerns are Paramount - 2014 was the year of new regulation and training. New obligations under the ESA, the Accessibility for Ontarians with Disabilities Act and the Occupational Health and Safety Act had some employers scrambling to implement new standards, update policies and posters, and ensure that their employees received appropriate training. We've kept our clients up-to-date and have an archive of elerts if you need a refresher. (Please see our recent e-lerts on compliance requirements for the Accessibility for Ontarians Act, 2005, the update to mandatory posting requirements for employers, and getting your workplace ready for new health and safety training requirements.)
  4. Evolving Arguments on Termination Clauses in Employment Agreements - It is common practice for employees and employers to enter into employment agreements intended to contract out of the common law and limit entitlements on termination to the minimum provided for under the ESA or some other notice period. However, there is no shortage of arguments that have been used by terminated employees to get around these contractual provisions in order to obtain a more favourable common law notice period. Somewhat surprisingly, the case law on contractual termination provisions has continued to evolve in recent years, requiring employers to regularly revisit their standard termination clauses and ensure that they are drafted with precision. For example, in the last few years we have seen the courts take the view that termination provisions that do not explicitly reference a continuation of benefits during the notice period will not be implied to have such meaning, and thus will be set aside for failing to comply with the ESA (as the ESA requires a continuation of salary and benefits during the minimum statutory notice period).

    Another troublesome area has been the use of static termination provisions. As the ESA minimums increase depending on the length of an employee's service, the traditional view has been that - in order to be enforceable - a contractual termination provision must satisfy an employee's ESA entitlement to notice of termination and severance at any theoretical point in the employment relationship, not just the point in time that the employee is actually terminated. A recent decision of the Ontario Superior Court of Justice, however, suggests some reprieve for employers. In John A. Ford & Associates Inc. v. Keegan, 2014 ONSC 4989, the Court held that a contractual termination provision need only satisfy the employee's ESA entitlement at the actual time of termination. Accordingly, the common law should only kick in when an employee outgrows the contractual provision through length of service. Further, at that point, an employer and employee are free to enter into a fresh employment agreement to impose a new termination clause, assuming appropriate consideration is exchanged.  The John A. Ford decision may be a saving grace for employers with current employees subject to similar termination provisions who are terminated relatively early in the relationship. More broadly, the decision is a positive example of a court giving effect to the mutual intent of a contractual termination provision even though it was not necessarily ideally drafted. 
  5. Enforcing a Notice of Resignation Clause - In early 2014,  the Ontario Superior Court of Justice released a helpful decision confirming that employees who wish to resign can be forced to work out their contractual notice periods. In Blackberry Limited v. Marineau-Mes, 2014 ONSC 1790 (CanLII), Justice T. McEwan considered an employment contract requiring Blackberry executive, Marineau-Mes, to provide six months notice of resignation. In December of 2013, in the midst of Blackberry's well-known difficulties, Marineau-Mes resigned from Blackberry and indicated that he intended to join Apple two months later. Blackberry took the position that the notice was insufficient and applied for a declaration that Marineau-Mes was required to provide six months' notice of resignation through June 23, 2014. Marineau-Mes took the position that Blackberry's claim was confined to damages if he started his job with Apple prior to the expiry of the notice period. Damages, of course, would have been very difficult for Blackberry to prove as they aren't easily quantified. Marineau-Mes also asserted that the resignation provision was contrary to the ESA (as it did not permit the continued accrual of vacation pay) and public policy (as it was effectively a non-competition covenant). The Court rejected Marineau-Mes' arguments in their totality and found the contract to be enforceable. Decisions regarding employees' resignation obligations are a rarity as the resignation period often expires before a court date can be secured. This case is a useful reminder that executives' obligations will be enforced, if employers can get to court in time to do so. 
  6. The Divisional Court Approves an Unusual Remedy by the Human Rights Tribunal - In 2012, a report was published calling for increased financial awards in Human Rights decisions and it seems the Human Rights Tribunal of Ontario (HRTO) ("the Tribunal), may be taking that recommendation to heart. In Fair v. Hamilton-Wentworth District School Board, the Tribunal reinstated an employee to her position with full seniority almost a decade after she had left the workplace and awarded her, among other things, full back pay and $30,000 for compensation for the injury to her dignity, feelings and self-respect.  The award, amounting to over $400,000, was far greater than anything typically seen from the Tribunal. The main reason for the quantum, of course, was the Tribunal's rare exercise of its reinstatement power and the associated back pay award that had accumulated over the years. When this matter was appealed to the Divisional Court this year, it was anticipated that the Court might set out certain criteria applicable to the Tribunal's exercise of its reinstatement power and overturn the dramatic result in this case. The Divisional Court, however, did just the opposite. In its September 2014, decision on the appeal, the Divisional Court held that the Tribunal has broad remedial authority and that, while reinstatement is unusual, there is no barrier or obstacle to the remedy at law. To read our elert on the decision of the Tribunal, click here. To read our elert on the Divisional Court appeal decision, click here
  7. Punitive and Aggravated Damages Continue to Rise - A rare jury trial in an employment law matter resulted in an unusually high award of punitive and aggravated damages. The Court of Appeal later reduced the amount of punitive damages but upheld the overall damage award of over $400,000, finding that the company's investigation of workplace harassment was inadequate. 
  8. Gender Discrimination Gains a Higher Profile - Gender discrimination issues were in the news a number of times in 2014. Early in the year, York University came under fire after failing to support a professor's refusal to let a male student be excused from group work with female students on the basis that it would violate the student's religious practice. In overruling the professor's decision, York reasoned that since the accommodation would not have a "substantial impact" on the other students, they were required to accommodate the request. A few weeks later, the University of Toronto encountered a similar issue when a student filed a human rights complaint accusing his professor of discrimination after he failed a Women Studies course for not attending classes. The student argued that attending class in person caused him discomfort because it included only female students. The HRTO dismissed the complaint on the basis that that the student's discomfort was based on his own "personal preference" and did not require accommodation under the Human Rights Code.

    In other high profile cases involving gender issues, a group of women soccer players have filed a lawsuit against FIFA and the Canadian Soccer Association alleging that the associations are discriminating against women by requiring the 2015 Women's World Cup to be played on artificial turf, as opposed to the real grass used for men's tournaments. Similarly, in New Brunswick, a human rights complaint alleging that the University of New Brunswick discriminated against women by eliminating women's varsity hockey was allowed to proceed after the Board of Inquiry rejected an attempt by the university to have the case dismissed. 
  9. Confidentiality Clauses in Settlements Must be Respected - Employers breathed a sigh at relief when the Divisional Court upheld a labour arbitration award ordering a former employee with 21 years of service to repay an entire settlement amount as a consequence of breaching the confidentiality of the settlement. The case enjoyed a much higher profile than one typically sees with employment disputes because of the parties involved, Jan Wong and her former employer, The Globe and Mail.  (Jan Wong v. The Globe and Mail Inc., 2014 ONSC 6372 (CanLII))  The keys to this decision were: 1. that the settlement agreement specifically stated that the employee would be required to repay the settlement if she breached her obligation "not to disclose the terms of this settlement"; and 2. the former employee had independent legal advice throughout the negotiations. The Divisional Court agreed that the former employee's statements about her termination contained in her book, namely: "I can't disclose the amount of money I received,"; "I'd just been paid a pile of money to go away,"; "Two weeks later a big fat check landed in my account,"; and "Even with a vastly swollen bank account..." were a complete breach of the settlement agreement and Ms. Wong was required to repay over $200,000 in settlement costs. With the court's support, these types of repayment provisions should now be included in settlement agreements where appropriate. 
  10. Employees Behaving Badly - From Jian Ghomeshi to Ray Rice to Des Hague, the Vancouver C.E.O. who stepped down from his position after a media furor erupted when he was caught on camera kicking a puppy, the outside activities of high profile employees have been in the news in 2014. These incidents have raised questions about the extent to which employees who are integral to their employer's brand can say that their bad behaviour is not "work-related." The Ghomeshi matter in particular has sparked a very public dialogue in Canada about violence against women, harassment in the workplace and the ability of an employer to disassociate itself from an employee whose actions are antithetical to corporate values or to the company brand.  As social media continues to bring the private lives of Canadians into the public sphere, we expect that 2015 will bring even more examples of employers making decisions about their employees based on events that take place outside of the work environment.

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

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

In association with
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

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