Canadian Lawyer

July/August 2020

The most widely read magazine for Canadian lawyers

Issue link: http://digital.canadianlawyermag.com/i/1260101

Contents of this Issue

Navigation

Page 31 of 35

30 www.canadianlawyermag.com LEGAL REPORT LABOUR & EMPLOYMENT W r o n g f u l D i s m i s s a l • E m p l o y m E n t l a W • H u m a n r i g H t s p o s t E m p l o y m E n t C o m p E t i t i o n • C i v i l l i t i g a t i o n • a p p E l l a t E a D v o C a C y • D i s a b i l i t y 82 Scollard Street, Toronto, Canada, M5R 1G2 | Contact Stacey Ball at (416) 921-7997 ext. 225 or srball@82scollard.com www.wrongfuldismissal.ca ball profEssional Corporation Excellence in Employment & Labour Law • Counsel in Leading Cases | Author of Leading Treatise • Referrals on behalf of employees and employers respected W r o n g f u l D i s m i s s a l • E m p l o y m E n t l a W • H u m a n r i g H t s p o s t E m p l o y m E n t C o m p E t i t i o n • C i v i l l i t i g a t i o n • a p p E l l a t E a D v o C a C y • D i s a b i l i t y 82 Scollard Street, Toronto, Canada, M5R 1G2 | Contact Stacey Ball at (416) 921-7997 ext. 225 or srball@82scollard.com www.wrongfuldismissal.ca ball profEssional Corporation Excellence in Employment & Labour Law • Counsel in Leading Cases | Author of Leading Treatise • Referrals on behalf of employees and employers respected W r o n g f u l D i s m i s s a l • E m p l o y m E n t l a W • H u m a n r i g H t s p o s t E m p l o y m E n t C o m p E t i t i o n • C i v i l l i t i g a t i o n • a p p E l l a t E a D v o C a C y • D i s a b i l i t y 82 Scollard Street, Toronto, Canada, M5R 1G2 | Contact Stacey Ball at (416) 921-7997 ext. 225 or srball@82scollard.com www.wrongfuldismissal.ca ball profEssional Corporation Excellence in Employment & Labour Law • Counsel in Leading Cases | Author of Leading Treatise • Referrals on behalf of employees and employers respected JOB LOSSES (AS OF MAY 8) 3 million Since February 2 million April alone 13% Unemployment rate 374,000 Retail sector losses 320,000 Accommodation and food services 313,000 Construction 267,100 Education employers in such dire economic times. "Why take the aggressive position of a constructive dismissal and cut the tie with your employer during a very uncertain time?" says Clarke, who is co-head of the employ- ment and labour group nationally and head of the employment and labour group in Western Canada. Routinely a source of confusion for employers and another possible spawn of litigation is that many employers think they have a right to implement layoffs because of certain provisions in provincial employ- ment standards legislation, says Clarke. But even though the layoff provisions are in the acts, unless the employer established a right to layoffs in the employment contract, they cannot avail themselves of them, he says. And while the provisions are often in collective agreements, employers rarely put them in private employment agreements, Clarke says. "I can tell you that, after this, they all will. Everyone will be adding these going forward," he says. Clarke adds that, after COVID, more employers will also be including provisions that allow them to make unilateral changes to the terms and conditions of employment — provi- sions unpopular with employees, but which he sees occasionally in employment contracts. Another claim Clarke says he expects to see is terminated employees arguing that their employer failed to give reasonable notice. It will be interesting, he adds, to see if the courts consider the companies' economic circumstances, as there are decisions that go either way on that factor. Another lifeline available to employers is the doctrine of frustration. "Essentially, frustration occurs when a situation has arisen for which the parties "When the dust settles and when we see that the world's not going to end and people are going to slowly start coming back to work, you're going to see a ton of people challenging what happened." Daniel Lublin, Whitten & Lublin Conference Board of Canada

Articles in this issue

Links on this page

Archives of this issue

view archives of Canadian Lawyer - July/August 2020