Legal news and trends for Canadian in-house counsel and c-suite executives
Issue link: https://digital.canadianlawyermag.com/i/50880
a salary freeze for themselves, instead electing to go ahead with a 2.42-per- cent raise. In late April, the City of Toronto approved the freeze, but instead of all non-union employees having their merit increases cancelled, only ones who are at the top of their pay grade won't get them. All employees aren't getting their planned cost-of-living increases either. Complicating the legal issues for employers, of course, is the question of whether the courts will take economic cir- cumstances into account when assessing wrongful dismissal cases. Already, lawyers are taking note of two significant rulings in that area from last year. In Evans v. Teamsters Local Union No. 31, the Supreme Court of Canada ruled that a fired worker, Donald Norman Evans, had a duty to mitigate his dam- ages from losing his job by agreeing to the employer's offer to keep working during the two-year notice period. As a result, Evans lost in court, something Robertson says is a sign that employees will now have to think again about their duty to mini- mize their losses before filing a lawsuit. In the second case, Wronko v. Western Inventory Service Ltd., the Court of Appeal of Ontario considered an employer's bid to change a worker's right to severance from two years to 30 weeks. The worker, Darrell Wronko, rejected the change and despite the fact the employer provided him with two years' notice while Wronko continued on the job, the court ruled in favour of his claim for breach of contract. Rather than relying simply on the passage of time, the judges held that the employ- er instead should have fired him with proper notice while offering him another contract on the new terms. For Arbour, the case is noteworthy since it puts a new spin on the notion that employers could change a term of employment as long as they gave proper notice. Already, labour lawyers like Steve Levitt, an associate at Nelligan O'Brien Payne LLP in Ottawa, say they've been seeing more inquiries from fired work- ers curious about whether they have a legitimate claim for wrongful dismissal. But while Levitt doesn't expect the eco- nomic downturn will affect how judges assess such lawsuits, Palmer isn't so sure, especially in cases that centre on claims that the firing was humiliating. "I suspect that the one thing that the courts are going to do is they're going to be a little bit more forgiving of employers on these constructive dismissal issues," he says. "There are going to be cases where two years ago it would have been construc- tive dismissal, and maybe in two years when these cases hit the deck the same action is not going to be constructive dismissal." In the meantime, recessionary condi- tions have already sparked battles over labour issues in the courts, most notably in the case of Nortel Networks Corp. employees who claim they lost out on promised severance packages after they agreed to stay on with the company tem- porarily to help it manage the transition of their jobs to places like China, Mexico, and Ireland, says Robertson. In Calgary, Labour Relations Board Remedies in Canada Second Edition This work covers the vast array of remedial orders issued by and available from the federal and provincial labour boards and provides an excellent procedural overview of the legislation. It also compares similarities and differences between jurisdictions across Canada and includes extensive case law. Topics include: • • • • remedial certification and other remedies during organizing drives bargaining orders and settlement of agreements termination of bargaining rights unlawful work stoppages • • • • cease and desist orders reinstatement and rescission of discipline discretion to grant or deny relief and conditions and undertakings compensation as remedy ... ORDER your copy today Looseleaf & binder • $199 • Releases invoiced separately (1-2/yr) P/C 0404032000 • ISBN 978-0-88804-480-8 For a 30-day, no-risk evaluation call: 1.800.263.2037 Canada Law Book is a Division of The Cartwright Group Ltd • Prices subject to change without notice, to applicable taxes and shipping & handling. Andrew_LRBR (CL 1-2h).indd 1 CL0609 INHOUSE JUNE 2009 • 5/4/09 10:57:54 AM 25 Jeffrey M. Andrew and much more!