Canada: Top 10 Employment & Labour Law Cases & Trends In 2015

Issues arising from employment relationships continued to make the news in 2015, as both the Ontario legislature and our Courts weighed in on the changing economy and its impact on workplaces, human rights concerns and the rights and responsibilities of employees at work.

The Cassels Brock Employment & Labour Group has put together a list of our top cases and trends from 2015.

  1. Rise in Summary Judgment - This past year saw a continued increase in the use of summary judgment motions to resolve wrongful dismissal claims. The frequent use of these motions has raised an issue with respect to how to address an employee's duty to mitigate their damages during the reasonable notice period. In particular, given the relatively fast resolution of these motions, the length of an employee's notice period may be determined by the court prior to the expiry of the notice period. As a result, employers are left unable to assess whether the employee has satisfied their duty to mitigate. To resolve this issue, a number of decisions have adopted the "Trust Approach." Under this approach, an employer is ordered to pay the full notice period award at the conclusion of the motion, however, over the remainder of the notice period, the employee must account for mitigation earnings and repay those amounts to the employer. The Trust Approach raises concerns for employers as it requires full payment of an award prior to the end of a notice period and as a result, provides little incentive to the employee to find new employment. The approach also makes it difficult to prove that an employee has failed to mitigate, or failed to disclose mitigation earnings. The continued adoption of this approach will make summary judgment a less favourable route for employers going forward, especially in cases of employees with entitlement to long notice periods.
  2. Charter vs. Human Rights Code - In 2015 the Ontario Court of Appeal was required to consider whether or not an employee's derogatory posts about a female supervisor on a union blog were harassment and discrimination within the meaning of the Ontario Human Rights Code. The employee took the position that since his comments occurred in the context of his union activities, they were both outside of his employment and protected by his right to freedom of expression and freedom of association under the Canadian Charter of Rights and Freedoms. The Court of Appeal agreed with the employee, and held that while his blogging was clearly sexist, it did not have a significant impact in the workplace itself and, in balance with his Charter rights, did not constitute discrimination "with respect to employment" or harassment "in the workplace." [See: Taylor-Baptiste v. Ontario Public Service Employees Union, 2015 ONCA 495.]
  3. Employees Behaving Badly Continue to Make News - In May of 2015, a video of several male Hydro One employees making and/or supporting vulgar statements to CityNews reporter Shauna Hunt at a Toronto FC game went viral. Amid a barrage of media attention and public outcry, one of the hecklers, Shawn Simoes, was fired by the company, which used the incident as an opportunity to publicly affirm its commitment to equality and respect in the workplace. In November of this year, it was reported that Mr. Simoes had been rehired by Hydro One after an arbitration process. The process was kept confidential and there has been no public reporting of whether or not the company voluntarily agreed to rehire Mr. Simoes or was ordered to do so by the arbitrator.
  4. Ongoing AODA Compliance - The requirements under the Accessibility for Ontarians with Disabilities Act and the Occupational Health and Safety Act (the AODA) continued to roll out for private sectors employers 2015. Most significantly, as of January 2016, employers with over 50 employees are required to have met the AODA standards relating to accessible employment practices. These standards require a significant review of recruitment, hiring and performance management processes to ensure accessibility for job applicants and employees with disabilities. For an overview of these AODA requirements, see our recent e-lert here.
  5. Family Status Continues to Present Challenges - In recent years a number of cases have considered an employer's obligation to accommodate parental obligations in the workplace. In 2015, this issue continued to be litigated with a number of decisions across Canada applying the decision in Canada (Attorney General) v. Johnstone,1 where the Federal Court confirmed that childcare is included in the protected ground of "family status." In SMS Equipment Inc. v Communications, Energy and Paperworkers Union, Local 707,2 an Alberta court upheld an arbitration award finding that an employee was discriminated against when her employer refused to accommodate a request for a shift change due to childcare obligations. More recently, in Partridge v. Botony Dental Corporation,3 the Ontario Court of Appeal upheld a decision finding that an employer discriminated against an employee returning from maternity leave when it changed the employee's hours in a manner that conflicted with her childcare obligations. While we expect this issue will continue to present challenges for employers, it is important to note that courts will make a distinction between a legal obligation to care for children, and personal choices of parents. For example in Flatt v. Canada Attorney General,4 the Federal Court of Appeal held that an employee who had requested accommodation to breastfeed her child during work hours had failed to establish discrimination on the basis that breastfeeding was a "personal choice," not a legal obligation. See our previous e-lerts on family status claims from May 2015 and April 2015.
  6. Ontario Government Targets Sexual Harassment - In 2015 the Ontario Government moved forward with its three year action plan to combat sexual violence and harassment by introducing Bill 132: the Sexual Violence and Harassment Action Plan Act. If passed, Bill 132 will make significant amendments to the Occupational Health & Safety Act including increasing employer obligations with respect to workplace harassment programs, creating additional duties for employers to protect workers from workplace harassment, and ensuring that incidents are appropriately investigated with the results communicated to complainants and alleged harassers. Bill 132 will also create substantial new obligations for educational institutions to develop and regularly review standalone sexual violence policies. Finally, the proposed legislation will remove limitation periods for certain types of proceedings based on sexual assault.
  7. Employer's Financial Difficulties are NOT Relevant to Determining Reasonable Notice - In late November 2015, the Ontario Court of Appeal slammed the door shut on the ability for an employer to argue that its financial concerns could justify a reduction in the notice period to an employee. Initially, on a summary judgment motion, the judge had reduced three employees' entitlement from a 12 month notice period to a six month notice period. The rationale provided for the reduction was the employer's financial position and the availability of alternate work. The motions judge specifically held that "The law does not ignore the dilemma of the employer." This point has been reversed by the Court of Appeal which found that "... this court has never held that an employer's financial difficulties justify a reduction in the notice period." Full stop. The Court of Appeal then increased the entitlement of the three employees back to 12 months. [See: Michela v. St. Thomas of Villanova Catholic School, 2015 ONCA 801 (CanLII).]
  8. New High for Human Rights Damages - The shocking facts of a case involving two temporary foreign workers who were sexually harassed, solicited, assaulted and then threatened with reprisal by their manager prompted the Human Rights Tribunal of Ontario to impose record awards for compensation for injury to dignity, feelings and self respect this year. The Tribunal ordered the personal respondent and the employer (jointly and severally) to pay one applicant $150,000 plus interest and the other applicant $50,000 plus interest. You may recall that, until 2008, the maximum that could be awarded on this basis was $10,000. [See: OPT v. Presteve Foods Ltd., 2015 HRTO 675 (CanLII).] At the same time, a record award of the British Columbia Human Rights Tribunal for injury to dignity, feelings and self-respect of $75,000 was set aside by the British Columbia Supreme Court on the basis that there was nothing so "unique" about the case to warrant such a disproportionate result. The prior record high damages award in British Columbia was $35,000. The matter has sent back to the Tribunal to reconsider its decision. [See Kelly v. University of British Columbia, 2015 BCSC 1731 (CanLII).]
  9. Ontario Focuses on Precarious Employment and Vulnerable Employees - 2015 saw several legislative changes affecting Ontario workplaces. The Employment Standards Act, 2000 (the ESA) and the Workplace Safety and Insurance Act (the WSIA) were both amended to increase protections for Ontario workers. In February of this year, the $10,000 cap on awards under the ESA was removed and employees can now claim unpaid wages for up to two years. Changes to the ESA also imposed new posting obligations on Ontario employers. The WSIA has been amended to significantly increase corporate fines and add a new offence for attempting to prevent workers from reporting injuries to the Workplace Safety and Insurance Board. The Ontario government also launched a series of public consultations soliciting input on how the government can act to better protect workers with insecure or low paying employment, particularly those who work on a temporary or contract basis.
  10. Employer Avoids Paying Out 5 Year Term Contract - The unique challenges presented by fixed term agreements made the news in 2015 when an employee who had only worked two of five years of a fixed term agreement brought an action seeking payment of the entire term. The employee argued that since the termination clause in the contract was vague, it was not enforceable against him and he should be entitled to payment for the entire term. The Court agreed with the plaintiff that the termination clause was not binding but held that the fact that it existed at all meant that both parties always understood and intended that the agreement could be terminated prior to the expiry of the five year term. The employee was awarded common law notice of termination, which was far less than the three years of pay he sought. [See: John Howard v. Benson Group Inc. 2015 ONSC 2638]. For a more detailed discussion of this case, please see our May 2015 e-lert.


1. Canada (Attorney General) v. Johnstone, 2014 FCA 110

2. SMS Equipment Inc. v Communications, Energy and Paperworkers Union, Local 707, 2015 ABQB 162

3. Partridge v. Botony Dental Corporation, 2015 ONCA 836

4. Flatt v. Canada Attorney General, 2015 FCA 250

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