Confidentiality Clauses with Teeth

| November 18th, 2014 | No Comments »

Confidentiality clauses are provisions within an Employment Contract/Agreement that should not be taken lightly. When carefully drafted, they can and have been known to be strictly enforced by the Courts and can be cause for some serious implications. With that being said, employers and employees should consult with an employment law expert to get advice on how to best protect their interests. Employees should read and understand their Confidentiality clause to ensure that their rights are protected under the law.

In Patrick Snay v. Miami’s Gulliver Preparatory School, the Courts enforced the Confidentiality provision, even after reaching a resolution. Mr. Snay was ordered by the Court to repay the entire settlement for breach of the Confidentiality clause. While the case of Jan Wong, a former Globe and Mail columnist who published a book about his employment settlement, was ordered by the Court to repay the entire settlement and cover the Globe’s legal fees. This demonstrates the gravity of a well written Confidentiality clause and the effective use of the legal language.


I’m a unionized employee-can I go to court?

| October 30th, 2014 | No Comments »

Unionized employees can have advantages of being represented by an association. They are also confronted with some disadvantages that can leave a bitter taste and feel like they are being neglected. While, the union has the obligation to follow certain procedures to protect their employee’s best interest, they also have the responsibility to make their decision in a manner that is fair and diligent. What happens when the union is unable to pursue the grievance and the employer are unable to act on the employee’s behalf? What other recourse is available to the employee?

Toronto employment lawyer, Daniel Lublin addresses this topic by stating that all unions have a fair duty of representation towards their members.  In addition, employees bear the responsibility to follow grievance procedures as indicated in their collective agreement. If a union is unable to pursue the grievance, the employee cannot sue the employer or the union in court. However, you can file an administrative complaint against the union.

For more information on this topic, read Daniel Lublin’s Globe and Mail column and full article I’m unionized, can I sue my employer or union?

U.S. employer refuses to pay Canadian employee’s wage

| September 29th, 2014 | No Comments »

When a U.S. employer refuses to pay a Canadian employee’s wage and claims they are not within the jurisdiction to file a claim, the employee has options.  The foundation of an employer/employee relationship is that in exchange for an employee’s hard work, the employer pays a salary.  Simply because the employee works from home in Ontario for an employer in the U.S., does not mean that the employer/employee relationship functions any differently.

Daniel Lublin, Toronto employment lawyer provides reader’s with his response to the question, can a Canadian employee file a claim against a U.S. employer for wages owed?  His answer is yes.  You can commence proceedings against the employer in either Ontario or the U.S. state where the business is located. Although choosing where to pursue the claim is a matter of strategy.

Initiating the claim in Canada can be more costly for a number of reasons. Mr. Lublin explains that the best option is to hire a lawyer in the U.S. state where the business operates and explains in more detail the reasoning for this.

Read more about this topic in Daniel Lublin’s Globe and Mail column and full article My U.S. employer owes me $36,000 and refuses to pay

Publicly criticizing your employer – Is it considered misconduct?

| June 6th, 2014 | No Comments »

Nothing is more public than expressing your work frustrations and criticizing your employer on social media sites and the internet.  This is not the smartest idea considering the workplace consequences and the potential damage to your career.

As Daniel Lublin, Toronto Employer Lawyer explains in his latest Globe and Mail article, “An employee’s public comments about his employer can be considered misconduct where those statements are harmful to the employer’s interests or damaging to its business. One reason is that employers can be exposed to liability because of statements made by their employees”.

Employees can speak their mind privately or publicly as long as their comments don’t negatively affect their employer’s business.  It is always wise to consider how the employer will feel about the statement, the consequences and whether voicing your opinion is worth the trouble it may cause you.

To find out more on the topic from a legal perspective, read Daniel Lublin’s article in the Globe and Mail, Speaking your mind can hurt your career.

Court blocks executive’s move from Blackberry to Apple

| March 28th, 2014 | No Comments »

On March 24, 2014 the Ontario Superior Court of Justice prevented a senior executive at Blackberry from moving to its major competitor, Apple.

In BlackBerry Limited v. Marineau-Mes, 2014 ONSC 1790, the debate centered on an employment contract containing a six-month resignation provision.  Among other things, Marineau-Mes had promised to give Blackberry six months’ advance written notice of his intention to resign.  He did not.

On December 23, 2013, Martineau-Mes gave Blackberry notice of his resignation.  On December 24, 2013 he advised that he would be joining Apple in two months’ time in California.

Blackberry argued Martineau-Mes was contractually obliged to provide six months’ notice.  Martineau-Mes argued that, if anything, Blackberry was limited to damages for replacing him if he failed to give adequate notice, and that he was not required to give notice because:

  1. The contract violated the Employment Standards Act, 2000 (the “ESA”) because it did not provide him with adequate vacation pay;
  2. The contract itself was unenforceable due to a lack of consideration;
  3. The six-month resignation period was tantamount to a non-compete provision and therefore void against public policy; and
  4. Pursuant to the contract, he had “Good Reason” which would allow him to resign without providing six month’s advance notice.

Despite able arguments, the court was not convinced that the termination provision offended the ESA or that Martineau-Mes had not received consideration in exchange for the contract when he took on the role of Executive Vice President.

Further, the court did not agree that the six-month resignation provision was akin to a non-competition clause because, among other things, Martineau-Mes knew that Blackberry needed him to transition his role and that he must remain available to perform his duties during the period of resignation.  Even if the provision were to be found to be a non-compete, the court deemed it reasonable in the circumstances.

Finally, the court was not convinced that Martineau-Mes had “Good Reason” pursuant to the contract to resign without notice.  Even if there was Good Reason, Martineau-Mes could only effect this clause if he gave Blackberry 15 days’ notice and a chance to rectify the breach.  He did not and therefore could not rely on the provision.

Ultimately, the court determined that Blackberry was entitled to a declaration that the contract was binding and that Martineau-Mes was obliged to provide six months prior notice of his resignation.  Effectively, this blocks Martineau-Mes from joining Apple until June 23, 2014.

This is an unusual case as not only is it rare for an employer to pursue an action against a departing employee for failure to provide reasonable notice of resignation, but even rarer still for an employer to seek enforcement of the resignation provision.  If any, an employer will occasionally sue for damages caused by the employee’s failure to provide reasonable notice.  Presumably, Blackberry decided to pursue the action to prevent one of its executives from moving to a competitor for as long as legally possible, but the case does provide an interesting precedent for an employer enforcing a resignation provision.

GM employees win lawsuit

| July 19th, 2013 | No Comments »

GM retirees win lawsuitAbout 3000 retired employees of General Motors Canada have won a class-action lawsuit against their employer, who was found wrong in cutting healthcare and life insurance benefits of the retirees.

Daniel Lublin was asked to appear on CTV News to comment on the recent decision of the Ontario Superior Court. He explained how important is to have proper employment contracts as well as workplace manuals and policies in place.

He says there are ways for employees to protect themselves from these changes even if the employer is going through economic hardship. To learn more, watch Daniel’s interview on CTV News.


Employee fired after calling in sick to play in softball tournament

| July 15th, 2013 | No Comments »


A former Telus employee’s termination for lying about being sick and instead taking the day off to play in a softball tournament was recently upheld by the Alberta Court of Queen’s Bench.


Sickness and Softball Don’t Mix

Jarrod Underwood was a five-year employee of Telus. He asked to get one of his regularly scheduled shifts off in order to play in a softball tournament, but the request was denied because no other employees were available to take his shift. The morning of the tournament, Mr. Underwood told his manager that he would be missing work due to “unforeseen circumstances.” Knowing about the softball tournament and suspicious of his absence due to his prior request to have the day off, the manager went to the ballpark, where he saw Mr. Underwood pitching in the tournament.

When Mr. Underwood’s manager confronted him about the incident, he admitted to playing softball, but claimed that he missed work due to suffering food poisoning. He insisted that, while he was too sick to work, he was well enough to participate in the softball tournament. As a result of the incident, Telus terminated Mr. Underwood’s employment, claiming that the trust relationship had been irreparably damaged by his dishonesty.


Court Decides Employee Fired After Calling In Sick

The matter was taken to arbitration, where the arbitrator accepted the employee’s explanation that he was too ill to work that day, but that he was still well enough to play softball due to being able to appropriately manage his illness from the ballpark but not the workplace. The arbitrator ordered Telus to reinstate Mr. Underwood with a 30-day suspension. Telus appealed to the Court of Queen’s Bench, which overturned the arbitrator’s decision. The Court found that Mr. Underwood’s version of events defied “logic and common sense,” and ruled that the arbitrator’s conclusion that the employee was actually sick was unreasonable. Given that the employee had lied to his employer about being sick, the trust relationship was indeed irreparably damaged. The Court thus upheld Mr. Underwood’s termination. It goes to show that in certain cases, an employee can be fired after calling in sick.


This post was guest-authored by Nathan Rayan.


Former Tiffany Vice-President Caught in $1.3 million Jewel Heist

| July 3rd, 2013 | No Comments »

Tiffany theft from former employer

Tiffany’s former Vice-President of Product Development has been accused of stealing more than $1.3 million worth of jewelry from her former employer.


Details of Tiffany Vice-President’s Heist

The executive is alleged to have abused her access to valuable jewelry in order to steal, then resell, over $1 million worth of products she represented as her own. As part of her job she was able to “check out” more than 165 pieces of jewelry including diamond bracelets, platinum hoop earrings, platinum diamond rings and pendants. But, instead of returning the jewelry, she sold some, if not all, of it to a third party company based in Manhattan.

Further, the executive appears to have made false statements to her employer, including that she had only recently checked out the missing jewelry in anticipation of creating a PowerPoint presentation for her supervisor and that the missing jewelry could be found in an envelope in her office. The employer could not substantiate either the PowerPoint or locate the envelope with the missing jewels.


Tiffany Vice-President’s Consequences

As the director of the FBI stated “a privileged position in a prestigious company does not insulate a thief from arrest and prosecution”.

In addition to criminal prosecution, theft of this magnitude will usually support a just cause termination.

While this is a US-based case, were the activity to occur in Canada a court would likely consider the Tiffany Vice-President’s level of deception in achieving the theft, their position of trust, and the theft itself in justifying termination with cause.

Pregnancy rights in the workplace

| July 2nd, 2013 | No Comments »

Pregnancy rights in the workplaceWhat does an employer need to keep in mind when dealing with an employee who announces her pregnancy?  In the Globe and Mail’s latest video of the series Daniel Lublin covers some important tips that every employer should know.

The Changing Workplace Landscape: “Precarious” Work

| June 24th, 2013 | No Comments »

In a detailed report years in the making and released earlier this year, the Law Commission of Ontario (LCO) confirmed what many have long suspected: the nature of employment is changing dramatically.

The traditional workplace relationship – full-time, stable employment with at least some benefits – is becoming increasingly less common. In its place, more and more employees are engaged in work that the LCO characterizes as “precarious” – low wages, little job security, and few or no benefits.


LCO’s Stance on Precarious Work

The LCO is concerned about this trend, as the workers at these sorts of jobs are predictably vulnerable, and precarious work and vulnerable workers present a challenge for society as a whole. Such “precarious work” limits employees’ ability to fully participate in the community, due to a lack of financial resources due to low wages and insufficient time due to often working multiple jobs. This predictably contributes to family stress. According to the LCO, 22 percent of Ontarians work in low-pay, unstable jobs.

Many employers rely on “precarious” workers in order to remain profitable, especially in certain industries that are dominated by small businesses with low profit margins. Given the current state of the economy, this trend is projected to continue for the foreseeable future.


How the Changing Workplace Affects Employees, and What Can Be Done

Currently, ignorance of the law by employees and employers alike, as well as intentional breaches of the law by some unscrupulous employers, are major obstacles for employees. The LCO’s report makes numerous recommendations on changes to both employment standards legislation and government enforcement strategies that, it hopes, will restore some balance to workplaces that are increasingly relying on these types of jobs. The LCO hopes that improved communication and increased enforcement will lead to fewer workplace law violations; additionally, the report urges more robust protections for workers engaged in “precarious work” in employment legislation. It remains to be seen to what degree the LCO’s recommendations will be adopted as government policy.

Despite the changing nature of the workplace and the shift away from traditional, full-time employment, the vast majority of Ontario employees – even those doing “precarious work” – are currently protected by the Employment Standards Act and other workplace legislation. Employees would be well served to learn about these rights and protections, to ensure that they are treated fairly. Employers could save themselves future headaches by learning which workplace laws apply to them and ensuring that they are always in compliance. To address the changing workplace landscape, precarious work must be at the top of the list for employees and legislators alike.