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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