1. Brand-damaging conduct as cause for discharge
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Although I had written about this issue in my columns earlier in the year, such firings became more pronounced following the Oct. 7 atrocities committed by Hamas in Israel, after which employers began to fire for cause or refuse to hire employees who signed anti-Semitic petitions, such as the TMU student petition, or who posted racist content on social media.
2024 will be a stock picker’s market Many of the rallies which now demand a unilateral ceasefire, including attempts to shut down Christmas celebrations, are organized by groups that were demonstrating immediately after October.
2. Pay transparency on the rise
On Nov. 14, the Ontario Government introduced Bill 149, the Working for Workers Four Act, 2023, affecting hiring in that province. The changes include prohibiting employers from including a requirement for Canadian work experience in job postings or application forms and requiring employers to disclose if they use AI in their hiring.
3. The old caps on severance are out the window
As recently as January 2023, the courts were quite clear that, absent extraordinary circumstances, 24 months was the maximum amount of wrongful dismissal damages that could be awarded. But the year nevertheless saw many awards greater than that. In Lynch v. Avaya Canada Corporation, the Ontario Court of Appeal upheld a 30-month notice period for a 63-year-old professional engineer. 2024 will be a stock picker’s market There was nothing “exceptional” in that case’s facts. As a result, the sky appears to be the limit in wrongful dismissal cases. The lack of predictability is also leading to more litigation, so expect employers’ severance costs to dramatically increase in the coming year.
4. Enter the Tort of Harassment
In Alberta Health Services v. Johnston, the Alberta Court of King’s Bench awarded $650,000 in damages, $100,000 of which was for harassment alone.
As I have pointed out, employers must respond promptly and investigate harassment complaints as a defence to such a lawsuit.
5. Employers can set their workplace vaccination policies
6. Moral, punitive and aggravated damages are increasingly popular
2024 will be a stock picker’s market Such damages were awarded for breaching employment standards obligations or for anything the court considered unjust behaviour. The Supreme Court, in a series of decisions, has noted employees’ vulnerability, and courts have protected them through these awards.
2024 will be a stock picker’s market The result? Full wrongful dismissal damages are provided to the employee, at great cost to employers.
Employers must constantly have their contracts refreshed with specialized counsel to keep up with the courts on this issue.
8. Employees on the hook for time theft
The B.C. case of Besse v. Reach CPA Inc.
The company was successful in suing her to repay the value of the time she had stolen.
9. No cutting corners on accommodation
The case of Valiquette v. BPM Enterprises Ltd. (Tim Horton’s), heard before the Human Rights Tribunal of Ontario, involved an employee who was terminated after giving her employer a medical note stating some of her physical limitations. . The HRTO awarded the employee $35,290.40
10. Record payout in New Brunswick upheld
2024 will be a stock picker’s market The case of Dornan v. New Brunswick, which I argued alongside Kelly Van Buskirk, was upheld on judicial review in late December.