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.

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. 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...