In Wood v. CTS of Canada Co., 2018 ONCA 758, the Ontario Court of Appeal (“ONCA”) upheld the Superior Court of Justice’s finding of a “qualitative” component to reasonable notice of termination.

The closure of a Streetsville manufacturing plant had resulted in a mass termination for the purposes of section 41 of the Employment Standards Act, 2000 (“ESA”). The former employees sued regarding reasonable notice of the termination of their employment and Ontario Superior Court of Justice since, during the period of notice before their employment ended, the Employer was making them work above the maximum overtime hours permitted under the ESA.

The Ontario Superior Court determined that the employer failed to provide “reasonable” working notice and that the employer could not credit to its notice period any week where an employee worked over the ESA maximums. The Court found it cannot count as notice where an employee does not have a reasonable amount of time to look for work.

The Employer appealed but the Ontario Court of Appeal dismissed the appeal, holding that the motion judge did not err by invalidating parts of the working notice period. The Court of Appeal found that “quality of opportunity” is a relevant consideration during a notice period and it was not present because of the forced overtime that prevented the employees’ ability to find alternative work.

According to the Wood decision, an employer must provide employees a meaningful opportunity to seek other work during the notice period. Otherwise, the qualitative component is not met, and the court may invalidate some or all of the notice period. In such a case, employers are unable to credit that portion to the period of notice and employees will be entitled to pay in lieu of notice.

Post by  Lindsay McLellan, student-at-law

Image: No Boss I didn’t see a thing! by Neil Moralee via Flickr under Creative Commons licence

By: Elsa Ascencio, articling student.

Recently, the Supreme Court of Canada weighed in on how a trade union can be sued and determined that trade unions can properly be sued by way of representation order. A representation order is an order that can be obtained from a court whereby one or more persons are appointed to defend a legal action on behalf of the trade union.

The Supreme Court was addressing a situation whereby an employee of International Brotherhood of Electrical Workers, Local 773, sued her union-employer alleging wrongful dismissal. The worker initially sued the union directly. Local 773 argued against the lawsuit on the basis that a trade union cannot be sued in Ontario under the Rights of Labour Act. The worker then amended the lawsuit to include individual persons within the union as proper representatives of the union.

In addressing the question of how a union may properly be sued, the Supreme Court of Canada is clear that suing via a representation order is proper. Nonetheless, the Supreme Court permitted the lawsuit as filed against the individuals standing in for the union.

This case affirms that while trade unions can’t be sued in their own name as per Ontario’s The Rights of Labour Act. It further affirms that obtaining a representation order is the appropriate means of suing a union. Nonetheless, the Supreme Court has signalled that courts are permitted some flexibility as to in accepting lawsuits against individuals sued as representative of a union.

Image: “Supreme Court of Canada” by detsang via Flickr under Creative Commons licence

On March 5th, 2018, Associate Alycia Shaw and our articling student, Elsa Ascencio, were invited to speak at an event hosted by the Women’s Legal Mentorship Program at the University of Ottawa. The event – titled “Racialized Women Working in Law”— explored the barriers that racialized female lawyers face in the legal profession. Alycia and Elsa, along with other lawyers from the Ottawa legal community, answered questions from the audience in regards to recruitment, mental health, and involvement in civic society.
The event came at an appropriate time, notably with the rise of the #MeToo and #TimesUp movement. The event was in partnership with other racialized student groups and the #LawNeedsFeminismBecause group at the University of Ottawa. Thank you to the Asian Law Students Society and the Latin American Law Students Association for inviting us!

Jewitt McLuckie started the year by visiting with medical students at Ottawa Hospital’s general campus. On January 3, 2018, Randy and Alycia met with physical medicine and rehabilitation resident physicians to talk to them about how they can best support patients who struggle with disability and who are having difficulty accessing disability benefits. Both Randy and Alycia were impressed by the engagement and intelligence of the young women and men who attended the session.

Image credit: The Ottawa Hospital

Our articling student, Elsa Ascencio, was recently interviewed by New York Magazine about the Trump’s Administration’s decision to deport 200,000 Salvadorans from the United States. Nearly 200,000 Salvadorans have lived in the States for more than a decade through the Temporary Protected Status program. The program was a response to the devastating earthquake that struck the country in 2001.

The decision will have a lasting impact on Salvadoran families across the United States because many of them have built their lives in the U.S. Our articling student, Elsa Ascencio, spoke out on the issue. Although many Salvadoran immigrants are proud of their heritage, El Salvador still faces high levels of poverty and violence among youth. As the daughter of Salvadoran immigrants, Elsa wants others to know that countries like Canada and the United States have given opportunities for immigrants to pursue their dreams. Elsa uses her story as an example. Her parents arrived to Canada as immigrants and they worked in factories to support Elsa’s dream to go to law school.

At Jewitt McLuckie & Associates LLP, we promote the advancement of human rights in our society and we stand with our articling student in her dedication to a fair future for all immigrants.

Check out the full video here: http://nymag.com/daily/intelligencer/2018/01/the-deportation-administration-whats-at-stake.html