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Labour and Employment

At Shibley Righton LLP, our Labour and Employment law group has been acting on behalf of school boards and other employers for more than thirty years, including contract negotiations, grievances, mediations, arbitrations, and many other aspects of the union/management relationship. We also handle wrongful dismissal and other employment law disputes for both employers and employees with the practical approach needed to get the job done right. Whether the claim is $25,000.00 or $10 million, our team's experience allows them to balance toughness in negotiations and litigation, with recognition of the mutual desire of the parties to get the problem resolved.

The firm's Business Law group is also active in employment issues, advising employers and employees at the time of contracting on the best ways to avoid future disputes, and to protect their respective interests.

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Publications

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Deborah Howden Head ShotA recent decision by the British Columbia Supreme Court underscores the fact that unless an employee’s off-duty conduct has direct implications on the workplace or the employer’s business, it does not constitute just cause for dismissal, says Toronto employment lawyer Deborah Howden.

"However if you're in a front-line or public position and your continued presence could damage an employer's reputation or workplace morale, that's a different scenario," says Howden, a partner with Shibley Righton LLP's Toronto office.

The B.C. case involved a long-serving firefighter who was fired from his position after being charged with impaired driving while he was off duty. The court found he was not, in fact, properly fired for just case, she says.

"The takeaway is the courts are not just going to look at potential harm to the employer’s reputation," Howden tells AdvocateDaily.com. "They're going to consider a list of factors — for example does that off-duty conduct render the employee incapable of performing the workplace duties?"

She says employers should cautiously proceed when presented with this type of situation and take steps to conduct a proper investigation before taking significant corrective action.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-11-05
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Jessica Koper Head ShotCanadian jurisdictions have taken a proactive approach to transgender rights in recent years, Windsor employment lawyer Jessica Koper tells AdvocateDaily.com.

Koper, an associate with Shibley Righton LLP, says the federal government recently made up lost ground on most provinces when Parliament passed Bill C-16, which added the terms “gender identity” and “gender expression” to the list of prohibited grounds of discrimination under the Canadian Human Rights Act (CHRA).

The language of the law mirrored provisions added to Ontario's Human Rights Code (HRC) as far back as 2012, she explains. In addition to the CHRA changes, the federal bill also amended the Criminal Code to ensure crimes motivated by a victim's gender identity or gender expression qualify as hate crimes.

“There has been a big movement in terms of transgender rights and protections, and I would describe the changes as more proactive than reactive,” Koper says. “There haven’t been many lawsuits in this area, but there has been a great deal of awareness raised along with policy changes.”

The CHRA first passed in 1977 under then-prime minister Pierre Trudeau's government, protecting Canadians from discrimination on the basis of sexual orientation. Canada later became one of the first countries in the world to legalize same-sex marriage in 2005 when the Civil Marriage Act passed both houses of Parliament during the government led by former prime minister Paul Martin.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-08-02
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Deborah Howden Head ShotA new law limiting what can be turned over in police background checks will make employers’ lives easier, Toronto employment lawyer Deborah Howden tells AdvocateDaily.com.

The Police Record Checks Reform Act passed without opposition at Queen’s Park all the way back in 2015, but only goes into force this November, when it will alter what police can tell organizations who request background checks for prospective employees and volunteers.

According to the Toronto Star, the legislation was prompted by its investigation into the plight of individuals denied the ability to work or travel due to the disclosure of “non-conviction records,” which include details of police interactions related to unproven allegations and mental health issues.   

Howden, a partner with Shibley Righton LLP's Toronto office, says the old rules tended to put employers in a difficult position because of the sheer volume of information they received.

“Virtually any contact with police could be brought to the attention of employers, meaning that they would have access to information that they had no idea what to do with,” she says.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story
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Date_Published
2018-07-10
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Deborah Howden Head ShotA recent Supreme Court of Canada (SCC) ruling clarifies the boundary between what constitutes incivility in a courtroom and strong legal advocacy, Toronto employment lawyer Deborah Howden tells AdvocateDaily.com.

The Law Society of Ontario (LSO) launched a proceeding against Toronto securities lawyer Joseph Groia 2007 for professional misconduct in court while successfully defending a client in a lengthy and complex fraud trial. The lawyer was cited by the law society for attacking Ontario Security Commission prosecutors both professionally and personally.

The lawyer received a $200,000 fine, a one-month suspension and ordered to pay about $2 million in legal fees in 2012.

He challenged the decision but it was upheld by the Divisional Court and the Court of Appeal until the Supreme Court of Canada overruled the LSO in a 6-3 judgment this year. The majority found that while the LSO retains the ability to determine whether courtroom behaviour can amount to professional misconduct, lawyers are also bound to fearlessly advocate for their clients, Howden says.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-06-19
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A recent Conference Board of Canada report has confirmed what many working  women have known all along — there is a significant gender wage gap in the province, with women making a mere 87 cents for every dollar earned by men. The Equal Pay Coalition’s calculation of the gap is actually bleaker, pegging it at approximately 30 per cent. Predictably, the conference board has given Ontario a “C” grade for the wage discrepancy.

By all accounts, the wage gap continues despite Ontario’s Pay Equity Act, which...

Please click here to read the rest of the story

Date_Published
2018-05-31
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Jessica KoperEmployers should prepare themselves for a spike in accommodation requests from employees with elderly family members due to Canada’s aging population, Windsor employment lawyer Jessica Koper tells AdvocateDaily.com.

Employers have a duty to accommodate under the Ontario’s Human Rights Code (HRC), which prohibits discrimination on the basis of family status, and Koper, associate with Shibley Righton LLP, explains that family status requests traditionally tended to relate to the care of children. However, that is changing.  

“Given today’s society and the growing elderly population, there are now many more individuals who are responsible for caring for their elderly parents than there used to be,” she says.

“And that number will only grow,” Koper adds.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-05-29
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stefan rosenbaum head shotIn Part 2 of a three-part series on the differences between employee and contractor, Toronto litigator Stefan Rosenbaum discusses the misconceptions.

The contract isn’t the last word on whether a worker is an employee or an independent contractor, Toronto labour and employment lawyer Stefan Rosenbaum tells AdvocateDaily.com.

“The most common misconception is that the contract itself is determinative, in the sense that if you have an agreement with an employer and it says you’re an independent contractor, that’s the end of the story,” says Rosenbaum, an associate with Shibley Righton LLP.

“Just because the two parties have decided that a worker is going to be an independent contractor does not mean the courts will necessarily agree.”

What often happens is when the work relationship ends, the party who’s designated an independent contractor will dispute the designation and argue that they were, in fact, an employee and entitled to the protections contained in Ontario’s Employment Standards Act (ESA), he says.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-05-08
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stefan rosenbaum head shotThere are several differences between employees and contractors, but the key indicator is the control that a worker has over their workplace, says Toronto labour and employment lawyer Stefan Rosenbaum.

“When the courts look at whether somebody is an employee or a contractor, they’re looking at the control aspect: How much control do you have over how you do the job and the remuneration that comes from that,” says Rosenbaum, an associate with Shibley Righton LLP.

The courts usually end up examining the issue when a contractor brings a lawsuit arguing that they’re in fact an employee, and that’s most likely to happen when the employment relationship breaks down, he tells AdvocateDaily.com.

“Both categorizations have different responsibilities and risks for the worker and the employer. That being said, in order to determine whether somebody is an employee or a contractor, the employment contract isn’t self-determinative,” Rosenbaum explains.

“Just because you’ve entered into a contract and it says that you’re an independent contractor, it doesn’t necessarily mean that the law would come to the same conclusion.”

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-03-27
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Matthew Urback Head ShotAs the rules that apply to tender calls and award of the workcontinue to evolve, new obligations and rights are created forowners and contractors who participate in a bid process. But“muddy” situations may arise, requiring that architects, ownersand their legal advisors, maintain an awareness of the evolvinglaws, and pay careful attention in the preparation of tenderdocuments as well as the valuation of the bids submitted.

Having issued a call for bids, an owner will review the tenders received and select the bid that is most attractive, generally the one that offers the lowest cost or the greatest value to the owner. The process and evaluation method that is most commonly used now is a direct result of the landmark decision of the Supreme Court of Canada (SCC) in The Queen (Ont.) v. Ron Engineering, [1981] 1 S.C.R. 111 (“Ron Engineering”). At first glance, the legal process seems straightforward enough, but the fallout from the decision has led to a convoluted legal regime that is with us to this day.

This is an excerpt from an article that appeared on Prodemnity.com.

Please click here to read the rest of the story.

Date_Published
2018-01-24
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John de Vellis head shot

Condominium corporations should start factoring increased labour costs into their budgets as amendments to Ontario's Employment Standards Act come into effect in the new year, says Toronto labour and employment lawyer John De Vellis.

 

Proposed changes to the Act include equal pay for part-timers who do the same work as full-timers with the same seniority; on-call provisions for employees; longer leaves for various purposes; and a higher minimum wage, says De Vellis, a partner with Shibley Righton LLP.

 

Those higher labour costs should now be in the minds of those who pen annual budgets for condos, he tells AdvocateDaily.com.

 

Bill 148, the Fair Workplaces, Better Jobs Act, which contains amendments to the Employment Standards Act, received royal assent on Nov. 27. Parts of the bill are already in force but most provisions will take effect on Jan. 1 and April 1. 

 

De Vellis says condominium corporations must budget for the proposed minimum wage increases — $14 an hour on Jan. 1, 2018, and $15 an hour on Jan. 1, 2019, followed by inflation adjustments.

 

This is an excerpt from an article that appeared on AdvocateDaily.com

Please click here to read the rest of the story.

Date_Published
2017-12-07
Description

An employee who suddenly loses their job may want to consult a lawyer to ensure they receive everything they’re entitled to, Toronto labour and employment lawyer Stefan Rosenbaum tells AdvocateDaily.com.

That’s especially important if they’re being asked to sign something, adds Rosenbaum, an associate with Shibley Righton LLP.

“If anyone ever asks you to sign anything after you’ve been terminated, you should certainly talk to a lawyer first and get some advice,” he says. “It’s prudent because many people don't realize that there are a variety of issues that could affect the amount of payment they could receive.

Rosenbaum suggests, as a starting point, it would be a good idea to do some research and prepare yourself before retaining a lawyer so that you find the right match — and have reasonable expectations.

This is an excerpt from an story that appeared on AdvocateDaily.com.  Please click here to read the complete article.

Date_Published
2017-09-26
Description

As a teenager, Toronto labour and employment lawyer Stefan Rosenbaum's part-time job as a grocery store cashier in Winnipeg gave him an early taste of workplace issues that now inform his main practice area.

“At a really young age, I realized the benefits a union — and an understanding of your rights as an employee — could bring,” says Rosenbaum, an associate at Shibley Righton LLP, the full-service, mid-sized Toronto firm where he articled in 2015-16. “You had somebody you could go to. When you have a union, they’re always looking out for you.”

He later had the eye-opening experience of working as a manual labourer in Fort McMurray, the heart of Alberta’s oil sands, for a seismic exploration company, where he and other employees were encouraged to work more than 50 days in a row.

“There is very little regulation. It’s just so far removed geographically, and completely run on an ad-hoc basis,” Rosenbaum tells AdvocateDaily.com. “So, it gives you a glimpse of what happens when things are done that way, and when people may not know their rights.”

While he particularly enjoys employment and labour cases, Rosenbaum handles a range of issues in his general litigation practice.

“I’ve gotten pretty much everything,” he says, including municipal and professional liability and commercial litigation cases.

One notable case was acting for a pension fund in South America that was defrauded of approximately $45 million by several parties, including some in Ontario.

This is an excerpt of an article that appeared on AdvocateDaily.com.  To read the rest of the story please click here.

Date_Published
2017-08-18
Description

Organizations have increasingly found efficiencies by using in-house lawyers, but sometimes there is a need for them to seek outside help, says Windsor employment and education lawyer Sheila MacKinnon.

“If you’re doing something routine — like real estate, where the transactions are not particularly novel — it makes sense to use in-house counsel,” MacKinnon, managing partner of Shibley Righton LLP’s Windsor office, tells AdvocateDaily.com.

She points to a municipality needing to draft a new bylaw as an example of routine work that can likely be tackled by an organization’s internal legal team.

But sometimes, unique situations — including litigation — arise outside of the legal staff’s area of expertise. So at that point, they should consider tapping an outside law firm.

This is an excerpt from an article that appeared on AdvocateDaily.com.  Please click here to read the complete story.

Date_Published
2017-07-21
Description

Many women in the workplace have been on the receiving end of rude or boorish behaviour from male colleagues who talk over or down to them in an effort to silence them, says Toronto labour and employment lawyer Deborah Howden.

The common term used to describe such conduct is "mansplaining," but what it really boils down to is discrimination, she tells AdvocateDaily.com.

“This happens in conversation where a man talks over a woman to either drown out her voice or explain to her something that is often within her own experience, knowledge or expertise,” Howden explains.

Some women have faced this type of situation in the form of an admonishment to be quiet or through outright pejoratives such as, “you’re being naïve or hysterical,” she adds.

“In its truest form, it’s discrimination because the behaviour stems from the sexist notion that the man’s knowledge — and voice — are more valuable than the woman’s,” says Howden, a partner with Shibley Righton LLP.

This article appeared on AdvocateDaily.com.  To read the complete story please click here.

Date_Published
2016-11-24
Description

A recent Ontario Court of Appeal judgment may resolve a long-standing question in the courts as to whether terminated employees are entitled to bonus payments earned during their notice period, says Toronto labour and employment lawyer John De Vellis.

"Historically, there’s been a fair amount of uncertainly around the issue of bonus payments in wrongful termination cases,” he tells AdvocateDaily.com.

“Employers fall back on their bonus policies that state employees are eligible to receive bonuses if they’re employed as of a specific date, whereas employees generally argue they should be deemed to be actively employed until the end of the notice period.”

This articles appeared on AdvocateDaily.com.  Please click here to read the full story.

Date_Published
2016-10-18
Description

An employer’s financial position should not be a consideration in determining termination pay, says employment and education lawyer Sheila MacKinnon.

“You don’t look at the circumstances of the employer, but the circumstances of the employee,” says MacKinnon, managing partner of Shibley Righton LLP’s Windsor office.

An Ontario Court of Appeal ruling involving teachers at a Windsor-area private school underscored that fact in Michela v. St. Thomas of Villanova Catholic School, 2015 ONCA 801.

Three teachers who were employed on a series of one-year contracts for several years launched a wrongful dismissal lawsuit that proceeded on a motion for summary judgment after the school failed to pay them in lieu of notice.

This story appeared on advocatedaily.com.  Please click here for the full article.

Date_Published
2016-07-27
Description

The federal government is catching up with its provincial counterparts in Ontario by introducing legislation to protect the human rights of transgender people, says Toronto human rights lawyer Deborah Howden.

Bill C-16, introduced recently in the House of Commons, would add the terms “gender identity” and “gender expression” to the list of prohibited grounds of discrimination under the Canadian Human Rights Act (CHRA), mirroring language added to Ontario's Human Rights Code back in 2012.  

Since then, a number of complainants have launched applications at the Human Rights Tribunal of Ontario (HRTO) under the updated code.

For the full story please click here

Date_Published
2016-05-26
Description

Unlimited vacation policies can help employers stick out in a competitive marketplace but there are some downsides, says Toronto labour and employment lawyer Deborah Howden.

Fewer than two per cent of Canadian employers have adopted the idea popularized abroad by high-profile companies such as Netflix and Virgin, says Howden, a partner with Shibley Righton LLP.

For the full story please click here

Date_Published
2016-05-02
Description

Employers must have policies in place if they want the ability to read their workers’ emails and online chats, says Toronto employment lawyer Barry Goldman.

“Unless there is a firm policy that says you may not use your computer for any personal use, employees are entitled to have an expectation of privacy, and the employer may not read or look at their personal emails,” says Goldman, apartner with Shibley Righton LLP.

According to a recent ruling, the European Court of Human Rights says a Romanian firm — which fired a worker after finding 45 pages worth of personal messages in just over a week in 2007 —  justifiably accessed his work Yahoo Messenger communications, CTV News reports.

The human rights court ruled the employer was acting within its rights when it accessed the employee’s private messages to check if he was completing his work, the report states.

The court notes this case was different to some successful privacy protection cases, as the worker had been given prior warning that communications could be read by management and that sending personal messages during work hours was banned. Previously, another worker had been fired over this.

Even if there was no policy on computer use, the worker likely could have been fired for gross dereliction of duty, Goldman tells AdvocateDaily.com.

“If you’re spending that much time on personal emails or Twitter or other social media, then you’re neglecting your job, and, save for extraordinary circumstances, that could be seen as gross dereliction of duty,” he says.

Although many companies are enacting policies proscribing computer use at work, the vast majority of employers still don’t have them, Goldman says. He encourages his employer clients to implement Internet use policies.

“Without such a policy, an employer will have no right to intercept and read an employee’s personal emails,” he says.

Goldman notes, however, that, with or without a computer use policy, employers would still have the right to intervene and notify police if work computers are being used for criminal purposes, such as for child pornography.

This article also appeared on advocatedaily.com

Date_Published
2016-02-23

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