This particular employee is a Defendant in a claim brought by her former employer. The Defendant, upon leaving her employer as an insurance broker, took with her a substantial list of clients and commenced working for a competing firm. Her employer sued her for breach of contract and that she obtained confidential information from her employer and used it to her financial benefit and that of her employer’s competitor. Ultimately, her employment contract did not have a valid or enforceable non-solicitation clause or a non-competition clause and as such she was successful in dismissing her employer’s claim.
The court was still required to assess whether this Plaintiff still obtained confidential information form her employer’s files and used that to solicit the clients she took with her. While the analysis was complex and lengthily, the contact information was kept on her cell phone and not in a private file or server. These were clients she was charged with doing business. Moreover, she did not solicit any of her employers other clients. Additionally, this plaintiff sent a letter informing all of the clients on her cell phone (over 100) that she had left the insurance brokerage, she did not ask for anything and
This particular matter involved a female employee who upon returning from maternity leave, found herself without accommodation from employer and eventually no job. As in many instances, this matter involved balancing day care and child care schedules with her employers expectations on returning to work. Her employer underwent a change in their business circumstances and required this Plaintiff to return to work on a specific schedule. This essentially altered the essential terms of her employment contract upon return from maternity leave.
The Court was required to balance the competing issues between child care requirements, the Human Rights components that protect mothers returning from maternity leave, and the employers right to contract and carryon their business. Family Status Discrimination is an enumerated ground of protection by the Ontario Human Rights Code. However, the duty to accommodate is a ‘joint process’ that requires both employee and employer to co-operate. The Plaintiff failed to inform her employer of her actual child care needs for her employer to implement an accommodation plan.
The Court decided that no breach of the Human Rights Code had occurred, concluding that this Plaintiff was not constructively dismissed. If she had been forthright in her accommodation needs, her employer was then
This is a matter where the Employer underwent a corporate restructuring of their business and the Plaintiff, a high ranking accounts payable manager was demoted and eventually resigned after indicating to her employer she had been constructively dismissed. In so determining that she was in fact terminated in that fashion, the Court concluded that the majority of her primary job functions were reassigned to an external firm, eliminating her role in the accounting division. The Removal of her high ranking managerial level title in the company coupled with a demotion into a role where she reported to an employee of equal rank was a constructive dismissal of her employment.
While the employer argued that it was allowed to make business decisions required for the betterment of it’s own interests, it could not make redundant and eventually terminate employees by effectively demoting them into voluntary resignation avoiding the applicable Notice and Severance payments under the Employment Standard’s Act. This is a commonly utilized tactic by employers to ‘push-out’ employees. Altering job title, position, core function, shift work, full/part-time status, number of hours worked, responsibilities, rate of pay, bonuses, overtime, benefits, and other primary terms of the employment relationship under the veil of
This is an appeal from a motion for Summary Judgment whereby the Defendant Employer attempted to have the Plaintiff’s claim for unpaid overtime dismissed for not proceeding with that claim within the limitations of actions. In short, this Plaintiff was a long-time employee of Honda Canada. Over many years he worked substantive overtime as a manager and was not paid for it. Mr. Ernewein, once discovering this, sued his former employer for the unpaid overtime.
Di Tomaso J., found that the claim for unpaid overtime should proceed, and McCarthy J., dismissed the Defendant employer’s appeal. The potential unpaid overtime was quite substantial over such a long period of time. Marc Lemieux personally litigated this particular matter.
The lesson learned is that in some instances, and despite the best efforts to prepare properly worded employment agreements, they are subject to interpretation of the courts.
This is an appeal determining whether a clause within an employment contract attempting to affect the legal rights of the former employee was enforceable. This particular termination clause attempted to limit the potential compensation the employer would pay the employee upon termination of their employment. The derivative law is located within the ambit of the Employment Standards Act and case law interpreting employment contracts. In this instance, the former employee was terminated following a change in ownership of the defendant employer (now owned by a new entity) who offered some of the original staff continued employment after the ownership change. They required new contracts be executed as a condition of employment. When the former employee was terminated without cause years later, his former employer attempted to rely upon the termination clause that was included in the new contract he signed, and limit the amount of damages owed to him.
The Plaintiff was awarded over $300,000.00 in damages for breach of his employment contract and termination without cause on summary judgment. The Court of Appeal turned over the amount awarded, but the matter was sent to trial and will be determined in due course.
The lesson learned is that the
This is an appeal from summary judgment where a long-term disability (“LTD”) insurer was successful in tossing out a claim for disability benefits made by an injured worker as it was commenced in the wrong jurisdiction of the courts. The Plaintiff was a unionized employee with a collective bargaining agreement. She also has a contract for LTD benefits. When a claim for LTD benefits was made following a motor vehicle accident, it was denied by her LTD insurer requiring it to be litigated.
Her claim for LTD benefits was commenced at the Ontario Superior Court of Justice, as many of these claims normally would be. However, the complexities if this matter start there. Her collective agreement contained express provisions administering her LTD benefits. The question before the court of appeal was whether this claim was in fact arbitrable, proceeding to the Ontario Labour Relations Board, or whether it could proceed as it was commenced at the Superior Court. In short, it was deemed arbitrable and the claim was dismissed by the Court; exposing the plaintiff personally to the costs of the Defendant.
The lesson learned is that every claim turns on its own set of material facts and the evidence
This is a motion before a trial Judge dealing with the assignment of future Statutory Accident Benefits (“SABS”). In motor vehicle litigation there are two separate potential claims. The first is a claim by an injured party to their own insurer for SABS; these include income replacement benefits, medical and rehabilitation benefits, attendant care benefits, non-earner benefits and caregiver benefits to name a few. The second potential claim is by the non-at-fault injured party against the other driver and their insurer; aka the 3rd party tort claim. This claim is for general damages for pain and suffering and special damages for a variety of monetary based losses. There is overlap between the two different claims, and contrary to popular belief an injured party cannot “double dip” on 100% of all compensation available between each claim.
As in this matter, the Plaintiff was successful at trial and awarded damages in different categories. The Defendant brought a post-verdict motion to deal with any damages that may overlap with SAB damages in an effort to decrease their exposure and reduce what is ordered to be paid.
This is a very complex and recently changed area of law that requires the expertise of a trial
This is an employment matter that dealt with non-solicitation and non-competition provisions contained within their employment agreement. The Defendant left the employment of the Plaintiff and joined a competitor company. On the first day this occurred, the Defendant called clients from his former employer in an effort to attain their business. The Supreme Court of Canada in Elsley Estate v. J.G. Collins Agencies Ltd., 2008 ONCA 576 (CanLII) guided the Court of Appeal to conclude that in this instance, and based on the material facts, the Defendant retained a proprietary interest in their client base.
The overarching principle is that these types of restrictive covenants must protect what is reasonable. The public interest concern of a departing employee being able to practice their trade and earn a living, versus the intended purpose of a non-solicitation clause, which is to protect the good will an employer invests into obtaining their clientele. It is a complex balancing act requiring contractual interpretation and analysis of the Employment Standards Act and associated case law.
Lemieux Law is well versed in the law of contractual liability and employment law. Being refrained from working is a serious matter requiring legal advice. On that same note, a
This is a personal injury whereby the Plaintiff suffered a low back injury as a result of a participating in the City of Barrie’s Winterfest & Festival of Ice and riding the Snow Slide. As a result, this Plaintiff suffered a tailbone style injury when a piece of ice protruded from the slide and struck her tailbone whilst riding the Snow Slide. The issue on appeal was the applicable standard of care owed by the City of Barrie. This particular injury arises within the context of the Occupiers Liability Act for negligence in maintaining the Snow Slide in a reasonably safe fashion for its intended use.
The contentious issue was whether the City of Barrie had in place a regular system of inspection and maintenance, and whether they actually participated in that system. The evidence of the City of Barrie at trial was that an employee was responsible for the slide, and positioned at all times near the bottom of it. The employees at the bottom of the slide are equipped with shovels and are instructed to smooth out the landing zone should any issue/hazard arise. The chunk of ice that caused the injuries was, unfortunately buried by snow.
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