If an employee is being wilfully disobedient, insolent, insubordinate, or simply engaging in misconduct, it is possible for them to be terminated (Scott v Domtar Sonoco Containers Inc, para 8). Terminating an employee on one of these grounds is referred to as summary dismissal.

 

        Summary dismissal allows an employer to terminate an employee without notice and without payment in lieu of notice. However, an employer can only rely on summary dismissal to terminate an employee if it can be justified. It is the employer’s responsibility to prove they have justification for summary dismissal (Scott, para 8). To rely on misconduct as justification for summary dismissal, the employer must also prove that the misconduct made it impossible to for the employment relationship to continue (McKinley v BC Tel, para 39).

 

        If there are a series of relatively minor transgressions committed by the employee, these can accumulate to just cause for summary dismissal (Scott, para 30). However, in order for the employer to rely on these minor transgressions as justification for summary dismissal, the employer has a heavy burden of proof. Specifically, the employer must be able to prove: (David J Doorey, The Law of Work, p 183–184).

 

  1. The employee was given clear an unequivocal warnings about their actions;
  2. The employee was given an opportunity to correct their behaviour;
  3. The employee failed to correct their behaviour when given the chance; and
  4. The cumulative transgressions of the employee prejudiced the employer’s business.

           Failure by the employer to give the employee warnings and an opportunity to correct their behaviour will prevent the employer from being able to justify the summary dismissal. The employer should warn the employee about all the behaviour that could result in termination, even if it seems obvious. For example, in Cain v Roluf’s Ltd, the employer failed to warn the employee that her pattern of showing up late to work and leaving work early without permission could result in termination (Cain, para 23). When the employer terminated the employee, the court found the employer could not justify the summary dismissal because they failed to warn the employee that her tardiness and absenteeism could lead to termination (Cain, para 33).

 

        In summary, a misbehaving employee can be terminated. The employer can terminate the employee via summary dismissal without notice and without pay in lieu of notice. However, the employer must be able to justify the termination. If the employer is relying on a series of minor transgressions committed by the employee as justification for summary dismissal, the employer must have given the employee clear and unequivocal warnings that their actions may result in termination and the employer must give the employee the opportunity to correct their behaviour. If the employer fails to do so and skips straight to termination, the employee will be able to bring a claim for wrongful dismissal.

 

If you have further questions or inquiries, please contact 519-578-4150 for more information.

 

Resources:

Cain v Roluf’s Ltd, [1998] OJ No 661.

 

David J Doorey, The Law of Work, 2nd ed (Toronto: Emond Montgomery Publications Limited, 2020).

 

McKinley v BC Tel, 2001 SCC 38. < 2001 SCC 38 (CanLII) | McKinley v. BC Tel | CanLII >.

 

Scott v Domtar Sonoco Containers Inc, [1987] 20 CCEL 290.

 

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What is a Parent? By Megan Brohman

Every family looks different. When there are children involved, it is important to know the role the adults in the home play in the life of the child.

 

Biological Children

          For a biological child and parent, it is easy. The birth parent of the child is recognized in law as the parent of the child (Children’s Law Reform Act, s 6(1)). The exception to this rule is surrogacy; surrogates give up their entitlement to parentage via surrogacy agreement or declaration by a court (CLRA, s 6(2)).

 

Adopted Children

            In the case of adopted children, the guiding statute is the Child, Youth and Family Services Act. As of the date the adoption order is made, the adopted child is treated, by law, as if they are the biological child of the adopted parent (CYFSA, s 2(a)). The adoption order effectively breaks all legal ties between the child and the birth parents (CYFSA, s 2(b)). Therefore, as of the date of the adoption order, the person whose name is on the order becomes the legal parent of the adopted child, whereas the birth parent ceases to have any parenting role or legal ties to the child.

 

Stepchildren

            When it comes to stepchildren, the Divorce Act is the guiding statute. The Divorce Act uses the term “child of the marriage”, which includes the child of two spouses or former spouses where: (Divorce Act, section 2(2))

 

     (a) the spouses stand in the place of parents; and

     (b) one spouse is the parent and the other spouse stands in the place of a parent.

 

The term “stand in the place of a parent” is also referred to as loco parentis. Essentially, a person who stands in the place of a parent will be deemed by the court to be a parent of that child. When determining whether a person in standing in the place of a parent, the court will consider several factors outlined in Chartier v Chartier (para 39), including:

 

     (a) Intention (expressed or implied) to assume parental obligations

     (b) The fact of forming a family with the child, including considering:

             

  1. Whether the child participates in their extended family
  2. Whether they provide financially for the child
  3. Whether they discipline the child as a parent
  4. Whether they represent to the child, their family, and the world that they are responsible as a parent to the child
  5. The nature and existence of any relationship between the child and the absent biological parent.

If these criteria are satisfied, the person will be seen as a stepparent to the child, which gives them rights and obligations as a parent. If the marriage were to breakdown, a stepparent has the right to apply for decision-making responsibility (formerly referred to as custody) and parenting time (formerly referred to as access) (CLRA, section 21(1)). However, the stepparent also has an obligation to pay child support for any child in which they stand in the place of a parent (Divorce Act, section 15.1(1)). 

 

Common Law Marriages and Children

          When it comes to children of common law marriages, the Family Law Act is the guiding statute. A child is defined by the Family Law Act as “a person to whom a parent has demonstrated a settled intention to treat at a child [of their] family” (FLA, s 1(1)). The same test from Chartier, as outlined above, is used to determine if a person stood in the place of a parent to the child in question. Again, if the court finds the person satisfied the listed criteria, this gives rise to rights and obligations as a parent, including decision-making responsibility, parenting time, and child support upon breakdown of the relationship.

 

If you have further questions or inquiries, please contact 519-578-4150 for more information.

 

Resources:

Chartier v Chartier, [1999] 1 SCR 242. <1999 CanLII 707 (SCC) | Chartier v. Chartier | CanLII>.

 

Children’s Law Reform Act, RSO 1990, c C-12. <https://canlii.ca/t/5563b>.

 

Child, Youth and Family Services Act, SO 2017, c C-14, Sch 1. <https://canlii.ca/t/5569j>.

 

Divorce Act, RSC 1985, c C-3. <https://canlii.ca/t/551f9>.

 

Family Law Act <https://canlii.ca/t/55cvm>.

 

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Welcome Back, Jorden Gregory!

Jorden Gregory

 

Giffen Lawyers would like to welcome back Jorden Gregory as an associate lawyer.  Born and raised in Cambridge, Ontario, Jorden earned his BA (Honours) from the University of Toronto in 2013 prior to receiving his his Juris Doctor from the University of Ottawa in 2016.  We are proud to have Jorden back on our team!

 

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On October 27, 1961, the Street Light Advisory Committee of Waterloo Region submitted a recommendation to the City of Kitchener to replace the ornamental streetlamps in the Westmount Area. The recommendation would replace the 49-year-old standard lights with new Mercury Vapour Luminaries for a total cost of $658,000. On January 30, 1962, the Council of the Corporation of the City of Kitchener unanimously passed the recommendation from the Street Light Advisory Committee to install these new streetlights.

 

                These changes were concerning to the residents of the neighbourhood and to the Region of Waterloo at large. Luckily, the residents had Mr. Peter Giffen leading a delegation fighting to protect the character of the beloved residential neighbourhood. By the late 1970s, Mr. Giffen was at war with the City of Kitchener.  Mr. Giffen appeared before the City Council representing the delegation, with a petition boasting 130 signatures in support of protection of the ornamental streetlamps. He argued “our concern is immediate” and the “council will thank [him]” for protecting the streetlamps.

 

Thanks to his perseverance, Mr. Giffen successfully convinced the City to postpone their decision and to provide the evidence that led to the decision to remove the ornamental streetlamps. However, this sadly did not end the war. Mr. Giffen continued to fight, requesting meetings with the Mayor to discuss alternatives. Ultimately these attempts were unsuccessful, and the ornamental streetlamps Mr. Giffen worked so hard to save were taken down.

 

                Mr. Giffen’s impact has not been forgotten. His arguments to save the streetlamps have been revived by residents of Ferndale Place, Waterloo, who are fighting to preserve “elegant white street lamps that had been salvaged from a historic Kitchener neighbourhood and installed when the Ferndale enclave was built 60 years ago.”[1] The City also resurrected their past arguments, claiming that the ornamental streetlamps need to be replaced with higher and brighter streetlights that properly illuminate the streets. Although the residents of Ferndale place were unsuccessful in their battle against the City, we are confident that the advocacy of Peter Giffen illuminated their path to justice and radiated as bright as the streetlamps he fought so hard to keep.

 

[1] Dispute in Waterloo over street lamps proves illuminating | TheRecord.com

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It has long been observed that Ontario’s Occupier’s Liability Act carried an inherent prejudice against occupiers in that there were no notice requirements for injuries arising from a slip and fall, thereby often preventing a thorough investigation into the circumstances surrounding the slip and fall. However, the Occupiers Liability Act was recently amended to add a section requiring a 60 day notice requirement for injuries arising from the presence of snow or ice. The notice must provide the date, time, and location of the occurrence, as follows: 

 

Notice period – injury from snow, ice

 

6.1(1)  No action shall be brought for the recovery of damages for personal injury caused by snow or ice against a person or persons listed in subsection (2) unless, within 60 days after the occurrence of the injury, written notice of the claim, including the date, time and location of the occurrence, has been personally served on or sent by registered mail to at least one person listed in subsection (2).

 

It is further stipulated under subsection (2) that the notice must be personally served on the occupier or an independent contractor employed by the occupier to remove snow or ice on the premises during the relevant period in which the injury occurred. 

 

Practically speaking, permitting a 60 day period to provide notice might not be overly helpful to the occupier because conditions will likely have changed in the intervening time.  However, the new notice requirements are much preferable to the situation that existed prior to the amendments.

 

For example, prior to the amendments, a claimant could wait two years to provide the occupier with notice of the injury.  At that point, any surveillance footage would likely be deleted, witness recollection would be compromised, and relevant maintenance records may have been deleted.  With the new notice requirement, at a minimum, there would be preserved records, and the maintenance personnel would have reasonably fresh recollections.  Depending on the location, there might even be contemporaneous surveillance footage that could still be accessed.  The prospects for a  more thorough investigation are obvious.

 

However, despite the new notice requirement, the amendment carves out the following exception:

           

Exception

 

6.1(6) Failure to give notice in accordance with subsection (1) or insufficiency of the notice is not a bar to the action if a judge finds that there is reasonable excuse for the want or the insufficiency of the notice and that the defendant is not prejudiced in its defence.

 

As such, if a judge finds that there is a “reasonable excuse” for the lack of notice and that the defendant is not prejudiced in its defence, then the 60 day notice requirement can effectively be waived. 

 

While there is no reported case law to date interpreting notice under section 6 of the Occupiers Liability Act, the newly added section is very similar to the notice requirements that already exist under section 44(10) the Municipal Act, 2001, which stipulates that no action shall be commenced against a Municipality unless notice is provided to the Municipality within 10 days of the occurrence.  Similarly, there is an exception in the event that a “reasonable excuse” can be provided for the lack of notice. 

 

It is therefore likely that courts will look to caselaw interpreting section 44(10) of the Municipal Act, 2001, for guidance when interpreting these new sections of the Occupier’s Liability Act.  Particularly, with respect to whether there was a “reasonable excuse,” the test will likely be whether in all the circumstances of the case, it was reasonable for the plaintiff to not give notice until she did.  Relevant factors will likely include the following:

 

  • The seriousness of the injury;

  • Whether surgery was required;

  • The duration of stay in the hospital;

  • The nature and amount of medications the person was taking;  and

  • The subsequent therapy required and the impact it had on the person’s career and mental health.

 

With respect to prejudice, the onus will likely be on the plaintiff to establish the occupier was not prejudiced in its defence.  The absence of prejudice can be established by demonstrating there are other sources of information such as:

 

  • The occupier having taken steps to investigate the incident despite the absence of notice;

  • Timely photographs of the scene;

  • Known witnesses; and

  • Available inspection and maintenance documentation.

 

Again, it is likely that the Courts will adopt these factors in interpreting the notice requirements under section 6 of the Occupiers Liability Act, as the underlying principles are effectively identical.

 

Should you wish to discuss how the Courts may interpret the new provisions going forward or discuss strategies in defending such claims, feel free to contact Giffen’s insurance defence team:

 

            Phil Garbutt – pag@giffenlawyers.com

            Stephen Brogden – stb@giffenlawyers.com

            Nolan Downer – nrd@giffenlawyers.com

            Nolan Kiddie – npk@giffenlawyers.com

 

Best regards,

 

 

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Giffen LLP - Response to COVID-19

 

In light of the continued spread of COVID-19 and more recently, the ‘global pandemic’ declaration by the World Health Organization, we at Giffen LLP have been taking various precautionary measures and adjusting our operations to ensure the health and safety of our employees, clients, families and the greater community. We will continue to do so as the situation changes. We are making every effort to ensure this situation does not impact the quality of service and support that our lawyers and staff are providing to our clients.

 

At this time our offices remain open but we are prepared in the event that all or some of our members need to work remotely. We have technology in place that enables us to do so in an efficient and effective manner, allowing us to provide uninterrupted service to our clients as necessary.

 

To protect our internal community, we have enhanced our office sanitation efforts and put policies in place for business and personal travel, events and meetings. We also continue to provide our employees with the most up-to-date health and safety procedures as outlined by Health Canada, Ontario Health Agency and Region of Waterloo Public Health.

 

Please do not hesitate to contact your relationship partner, or me, if you have any questions, or if we can be of assistance in guiding you through these new challenges.

 

We greatly value our relationships with you. We are confident that we will get through this together and wish everyone the best during this difficult time.

 

Yours truly,

 

Philip A. Garbutt, Managing Partner

Giffen LLP

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Welcome, Tyler Nivins!

Tyler Nivins

 

Giffen Lawyers welcomes Tyler Nivins as an associate lawyer.  Born and raised in Kitchener, Ontario, Tyler earned his BA (Honours) from the University of Western Ontario in 2011 prior to receiving his law degree from the University of Birmingham in the United Kingdom in 2019.  Great to have you with us, Tyler!

 

To learn more about Tyler's practice, please go here

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By: Greg A. Carr

 

With a few specific exceptions, an employer has an absolute right to terminate an employee at any time.  There do not need to be performance issues, disciplinary issues, or any other justification for the termination.  Notwithstanding, the law protects employees by requiring an employer to provide the employee with reasonable notice of their termination, or alternatively, paying them an amount of money in lieu of receiving reasonable notice.

 

So what is reasonable notice?  Reasonable notice is governed by two different regimes – (1) the Employment Standards Act, 2000 (“ESA”) and (2) the common law (judge-made law). 

 

 

The Employment Standards Act

 

Pursuant to the ESA, an employee who has been employed for at least 3 months, is entitled to reasonable notice of:

  • one (1) week, if they have been employed for less than a year;
  • two (2) weeks, if they have been employed for more than 1 year, but less than 3 years;
  • one (1) week per year of service if they have been employed for more than 3 years, to a maximum of eight (8) weeks’ notice.

In addition, an employee may be entitled to “severance pay”, if they have been employed for more than 5 years, and their employer has a payroll exceeding $2.5 million.  In such circumstances, in addition to the notice requirements above, the employee is entitled to one additional week’s pay per year of service (to a maximum of 26 weeks).  For example, an employee who is terminated by an employer with a payroll exceeding $2.5 million, who has been employed for 10 years, would be entitled to reasonable notice (or pay in lieu) of 8 weeks, and an additional 10 weeks’ severance pay.

 

 

The common law

 

Where the ESA does not apply, an employee is entitled to reasonable notice at common law.  In determining reasonable notice at common law, courts will consider a number of factors, including the employee’s age, education, role they held, and likelihood of re-employability in that or a similar position.  Based on the factors to be considered, the notice period may vary greatly depending on the case, and the ultimate notice period is informed by what judges have found to be a reasonable notice period in similar cases in the past.  While a number of factors are involved, the guiding principle at common law is a notice period of 1 month per year of service.

 

 

How do I know if it’s the ESA or common law that applies?

 

Whether it is the ESA or the common law that establishes the reasonable notice period will be determined by the termination provisions of an employment contract.  The common law will apply unless the employee has entered into a legally enforceable employment contract limiting the employee to “ESA minimums” upon termination.   

 

Even where an employment contract purports to limit an employee’s entitlement to ESA minimums, the clause may not be enforceable.  There is likely no issue in employment law more often litigated than the enforceability and applicability of a termination clause.  Courts have established strict requirements which must be contained in a termination clause, such as providing for reasonable notice and the continuation of benefits.  Where the clause does not comply with the requirements established by the courts, or runs afoul of the ESA, the clause will be unenforceable and the common law notice period will apply.

 

 

What is the employee entitled to during the notice period?

 

While there are some exceptions, generally speaking, an employee is entitled to their entire remuneration package throughout the notice period.  This includes not only wages and health benefits, but can include pension contributions, RRSP matching, bonuses, company cell phone reimbursement, company vehicle reimbursement, and any other benefits that arise out of employment. 

 

 

Please note that this article is for information purposes only and is not intended and should not be relied on as legal advice.  If you have any questions about your rights as an employer or employee about this, or any other employment matter, please contact Greg A. Carr at Giffen LLP, and we would be happy to meet with you to discuss your matter and determine how we can best assist you moving forward. 

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Welcome, Jacqueline Fitzpatrick!

 

Giffen Lawyers LLP welcomes Jacqueline Fitzpatrick as an associate lawyer. Originally from Ariss, Ontario, Jacqueline earned her BA (Honours) from the University of Guelph prior to receiving her Juris Doctor from Lakehead University in 2017.  Great to have you with us, Jacqueline!

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Welcome, Emily Metcalfe!

 

Giffen Lawyers LLP welcomes Emily Metcalfe as an associate lawyer in our Family Law department.  Raised in Waterloo Region, Emily received here undergraduate degree from the University of Regina, before graduating from Queen's University with her Juris Doctor in 2018.   Great to have you with us, Emily!

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