Round-Up Of The Ontario Court Of Appeal's Employment Decisions In 2019‎

In 2019, the Ontario Court of Appeal ("ONCA") provided us with guidance on matters of employment law. Below, in brief, are key points from many of ONCA's 2019 decisions relating to employment law.

On sentencing and fines for regulatory offences, ONCA says... The most important sentencing principals for regulatory offences under the Occupational Health and Safety Act ("OHSA") are deterrence (i.e. for the individual) and general deterrence (i.e. the greater public). The fines imposed must be no greater than those which are required to meet the objectives of sentencing. The fitness of a fine under the OHSA can be determined by asking, "What amount of fine is required to achieve general and specific deterrence, and would otherwise be appropriate bearing in mind the principles of sentencing, including proportionality and parity?" Ontario (Labour) v. New Mex Canada Inc., 2019 ONCA 30 On awarding punitive damages against employers, ONCA says... An employer's improper conduct in the course of terminating an employee's employment and during the ‎course of the ensuing litigation may warrant an award of punitive damages against an employer. ONCA affirmed a ‎$100,000 punitive damages award against the employer‎.‎ Ruston v. Keddco MFG. (2011) Ltd., 2019 ONCA 125 On the tort of intentional infliction of mental suffering, ONCA says... To make out the second branch of the test for the tort of intentional infliction of mental suffering (i.e. that the conduct was calculated to produce harm), the employee must show: (i) that the employer desired to produce the consequences that followed from the act/conduct, or (ii) the consequences of the act/conduct were known to be substantially certain to follow. The requirements of (i) or (ii) are important limiting elements of the tort of intentional infliction of mental suffering and distinguish the tort from an action in negligence. Colistro v. Tbaytel, 2019 ONCA 197 On whether an employee owes a fiduciary duty to an employer, ONCA says... A senior level employee that forms part of an employer's "top management" and exercises discretion that affects the employer's legal and economic interests does not automatically owe a fiduciary duty to the employer. Whether an employee has a fiduciary duty to an employer is inherently a contextual and fact-specific determination. In making such a determination, it is unhelpful to focus on job titles. Plate v. Atlas Copco Canada Inc., 2019 ONCA 196 On the "tort" of harassment, ONCA...