Top Employment Law Cases from 2021

Another year has flown by. In 2021, Ontario saw important judicial decisions that changed the landscape of employment law both related to and unrelated to the pandemic. Here is a list of some of the most notable decisions from 2021 (in no particular order):

1. Morningstar v. WSIAT: The divisional court partially overturned a WSIAT decision which barred a constructive dismissal claim from proceeding in Court if it was based on workplace harassment and the employer had Workers Compensation coverage. As a result, these cases can now proceed through the Courts even if Workers Compensation coverage is available.
2. Russell v. The Brick: This was a wrongful dismissal case wherein the Court awarded $25,000 in moral damages in addition to reasonable notice due to the Company’s lack of transparency and fair dealing at the time of termination. Among other things, the Company:
1. failed to advise the employee that he would still receive his minimum statutory entitlements under the Employment Standards Act even if he did not accept their first offer, and
2. Ultimately did not pay the employees minimum entitlements under the Employment Standards Act until after litigation commenced.
3. Nahum v. Honeycomb: Pregnancy can increase reasonable notice periods if the pregnancy is reasonably likely to impact the employee’s ability to find alternate work. This is a factor to be considered when assessing severance options for a pregnant employee, separate and apart from the consideration of any human rights or employment standards issues that may be engaged.
4. Waksdale v. Swegon North America: The Supreme Court denied leave to appeal to a 2020 Court of Appeal decision which held that an unenforceable “for cause” invalidates all other termination provisions in an employment agreement – even if the “for cause” clause was not relied on by the employer and if the “without cause” clause would otherwise have been enforceable. As a result, this is now the law of the land and employers should review their existing employment agreements and obtain legal advice on any contracts that may be impacted by this decision.
5. Hawkes v. Max Aicher: Under the Ontario Employment Standards Act, employers are obligated to pay severance pay to employees with 5 or more years of service if they have a payroll of at least $2.5 million. In this decision, the divisional court held that the $2.5 million threshold is calculated based on a Company’s global payroll (and not just that based in Ontario).

Huckso v. A.O. Smith Enterprises: After a workplace investigation, an employee who was found to have sexually harassed a co-worker was given a final warning, asked to apologize and to take sensitivity training. The employee refused to apologize. In response, the employer terminated his employment for cause. The Court of Appeal upheld the termination for cause due to refusal to comply with reasonable corrective action.

The foregoing should not be considered to be legal advice and should not be relied upon as such. Please consult a lawyer to get advice and an opinion on your unique circumstances.