Toronto Employment Lawyer

Case of mistaken retirement

How do you beat your ex-employer in court but ultimately collect little or no damages? Ask Leo Magnan.

Magnan succeeded in proving that he was wrongfully dismissed but failed to collect the true value of his claim. His mistake: he couldn't demonstrate that his dismissal caused him financial loss.

Magnan was a 65 year old customer support advisor with Brandt Tractor Ltd for 38 years, who had no intention to retire when his employer forced him to do just that. Brandt mistakenly believed that Alberta Human Rights legislation permitted it to enforce mandatory retirement for employees at 65.

Brandt reconsidered after a letter from Magnan's lawyer. They offered Magnan a different job with the company because Brandt had already filled his position.  Instead of accepting the new position, Magnan sued Brandt, claiming its actions in mistakenly retiring him were tantamount to his dismissal and it was unreasonable to expect him to return, especially because the retirement was against his will. Although contrary to his claim, Magnan had accepted a valuable retirement gift just days prior to his lawyer's letter.

An Alberta court agreed with Magnan's claim however, in calculating the winnings, the court almost entirely reduced his claim. It found that Magnan could have avoided the loss he suffered. That is, the court found that as Magnan was going to retire even had he not been dismissed, the dismissal cause him few actual losses. The decision also indicated that Magnan couldn't properly show he had looked for another job following his dismissal thus, significantly reducing his claim.

Employment law files can be won or lost where one side or the other doesn't appreciate how an employee's post-dismissal actions can affect the value of his or her claim. Employees can avoid this result by observing the following advice:

Make real efforts to find other work following dismissal to avoid as much economic loss as possible. Courts frown on employees who take little or no action to find other work and then sue their former employers for their salaries during that time.

To avoid an argument that other work was available had an employee simply looked, I advise my clients to apply for at least one or two jobs per week.

Keep detailed notes, documenting all efforts undertaken to look for other work and ensure that there are no documentary gaps.

Older employees in provinces without mandatory retirement should be cautious about mentioning planned retirement dates, especially if they suspect the company is planning to end the relationship.

You can read the article in full here.

Daniel A. Lublin is a Toronto Employment Lawyer.  He can be reached at dan@toronto-employmentlawyer.com or through his Website www.toronto-employmentlawyer.com.

Settling before trial can lead to big savings

The Toronto Star recently published an article outlining the potential costs of litigation and lawyers fees. It indicated that the average civil trial will cost just over $60,000.

The above figure was based on a lawyer's fee of $300/hr. However, the article pointed out that lawyer's fees can range from as low as $250/hr up to approximately $800/hr.

Fortunately for those in Ontario who may be involved in or perhaps are considering litigating an employment law matter, mediation is a mandatory component of the dispute resolution process. 

Daniel A. Lublin is a Toronto Employment Lawyer.  He can be reached at dan@toronto-employmentlawyer.com or through his Website www.toronto-employmentlawyer.com.

Head scarf issue leads to head ache

Canadian entrepreneur Sarah Desrosiers, is facing a legal battle after she denied employment to Bushra Noah because Noah would not abandon her traditional headscarf and display her hair if hired to work in the salon.

Desrosiers' London, England based Wedge Salon plans to battle Noah's suit. The small business owner claims that salon workers should showcase their hair to market their ability and essentially, their product. Noah, who has previous experience in salons, feels her headscarf does not hinder her ability to preform salon duties.

In respect of Ontario law, the Ontario Human Rights Code protects employees from discrimiantion in employment.  As a result, they cannot be adversly treated or discriminated against based on a set of 'grounds' including race, nationality, religion etc.  Employers do have a legal defence available, however.  In the case of Desrosiers, she would have to demonstate that the requirement of the position, to not wear a headscarf, is a bone fide occupational requirement - or an essential component of the job.   

The matter is scheduled to be heard in Central London's Employment Tribunal in the new year.

For more information, please see the original Toronto Star article here.

Daniel A. Lublin is a Toronto Employment Lawyer.  He can be reached at dan@toronto-employmentlawyer.com or through his Website www.toronto-employmentlawyer.com.

Female hospital workers rewarded $15,000 at human rights tribunal

Two female workers at a hospital in Montreal were awarded $15,000 in damages after they brought their matter before a human rights tribunal.

The Quebec tribunal ruled in favor of Mary Smith and Jenifer Bennett against Montreal's Jewish General Hospital. Smith and Bennett claimed that they were being sexually discriminated against by the hospital because they were denied shifts because they were women.

The hospital argued that the women were kept from full time employment because the hospital works to accommodate Orthodox Jewish patients whose religion restricts contact between unmarried men and women. The Jewish population at the hospital consists of about one third of patients however, an even smaller minority follows Orthodox Talmudic law.

For more information, see this CBC new article.
For the ruling (en francais), follow this link

Dershowitz joins the Black team

Adding to his repertoires of high-profile clients, Alan Dershowitz has joined Conrad Black's defense team in an advisory position.

Lord Black joins the ranks of O.J. Simpson, Mike Tyson, and Leona Helmsley as Dershowitz clients.

For more information on the Mr. Dershowitz or the Black trial, try this article from canada.com.

Employee Email and the Attorney-Client Privilege

When speaking with your attorney, you might want to reconsider using your work email.

Amongst other issues, problems arise because workplace emails are often monitored or stored on a company server and can theoretically, be accessed by a third party (your employer) at anytime.

Please see this article from law.com on this burgeoning subject. It is very informative and  includes the following 4 step tool to measure privacy expectations at your workplace;

1. Does the company maintain a policy that bans personal or other objectionable use of its e-mail system?
2. Does the company monitor the use of the employee's computer or e-mail?
3. Do third parties have a right of access to the computer or e-mails?
4. Did the company notify the employee or was the employee aware of the use and monitoring policies?

If you answered yes to any of the above questions, you might want to consider calling your lawyer next time  you need to speak with him or her.

Take action against poor reviews

Employees seeking to dismiss their habitual underperformer usually follow a prescription for a tidy divorce:

Gather ammunition in the form of a series of negative performance reviews and create a paper trail documenting all allegations and concerns. This creates a mountain of evidence for the dismissed employee to overcome.

Performance appraisals can, however, be a double-edged sword. For maligned employees, I often recommend they prepare for the battle by building a supportive documentary case - in essence, challenging a negative or unjust performance appraisal. Then, should legal confrontation ensue, the employee has the ability to contest any injurious inference drawn by a series of unsatisfactory appraisals.

Precedents indicate employers owe a duty to provide employees with the opportunity and means required to improve under performance, if dismissing on those grounds. Judges require employers prove the employee was grossly incompetent, and that progressive warnings, identifying areas of concern were issued.

You can read the article in full here.

Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of wrongful dismissal.  He can be reached at dan@toronto-employmentlawyer.com or visit www.toronto-employmentlawyer.com

Self proclaimed poster child for paralegals sentenced to 4 months house arrest

After 15 years of acting as a paralegal, Maureen Boldt has been sentenced to house arrest for the unauthorized practice of law.

The operator of Boldt paralegal and mediation, located in North Bay, Ontario,  violated a 2000 court order that forbid her from practicing law. A four term city councillor, Ms. Boldt was found guilty of acting as a barrister by offering and providing services with regards to wills, estates, and divorce agreements. According to the law society, who as of last year has undertaken to regulate the burgeoning profession, paralegals are restricted to practice only in Small Claims Court, the Ontario Court of Justice under the Provincial Offences Act, summary conviction offences where the maximum penalty does not exceed six months of imprisonment, and before administrative tribunals.

This is a first of it's kind decision. It can be seen as a victory for the average person, protecting them from trusting their legal matters with someone who may not be appropriately qualified to practice law.

You can read the article in full here.

Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of wrongful dismissal.  He can be reached at dan@toronto-employmentlawyer.com or visit www.toronto-employmentlawyer.com

Fired worker signs fate away

What results if a just-dismissed employee is essentially forced to sign a release, preventing him from taking legal action? 

Does it matter if the employer took advantage of the employee's personal problems, effectively "preying" on his concerns, and even threatening him by stating he would get nothing unless he signed his name?

According to a recent Ontario Judge, not much!

After 15 years of service with Pennzoil-Quaker State, Patrick Barr was fired and found himself in a pickle. Presented with an offer of severance, Barr was given two weeks to decide his fate - sign his name on the documents, thus accepting the company's offer, or receive nothing more.

According to Barr, he was told by the HR director several times that the offer was a "very good deal" and that he did not need to consult a lawyer. The problem was that the HR manager who urged him was his long-time trusted friend, who spoke to Barr in a personal capacity. The manager even showed up at his house and effectively, advised him to sign off on the deal.

Barr also claimed that the company, knowing that he had recently been through costly divorce proceedings, "preyed" on his concerns of mounting legal costs by threatening that , if he didn't agree to it's initial offer, he would ultimately get less.

Relying on his friend's advice and presumably fearful of challenging his ex-employer, Barr signed the documents and was paid according to the terms of the offer. Later on, believing the deal was unfair, Barr sued Pennzoil, claiming the agreement was substantially one-sided and should be set aside, as it was signed under duress.

An Ontario court recently disagreed with Barr, dismissing his claim and indicating that there was no genuine issue for trial. The court indicated that Barr could have refused his friend's advice and discussed the deal with a lawyer. The deal was less than what Barr could have received and was "unfortunate" according to the court.

This case provides a stark message for employees when confronted with an offer of severance or an ironclad release: fair or not, seldom will a signed document be set aside.

Employees can avoid this result by observing the following advice:

• Like any commodity, a termination package is usually negotiable. Seek specialized counsel before signing your name.
• Duress or coercion is not easily proven - especially where the employee is given time to consider the offer and does not immediately protest his or her consent.
• Ask for more time or the opportunity to meet with a lawyer if the terms of an offer or release are unclear.

You can read the article in full here.

Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of wrongful dismissal.  He can be reached at dan@toronto-employmentlawyer.com or visit www.toronto-employmentlawyer.com