i) In a recent decision, an employer entered into a five-year fixed term contract with an employee. Approximately two years into the contract, the employee’s employment was terminated. The termination clause in the contract sought to limit the employee’s entitlement on termination to the minimum statutory requirements set by the Employment Standards Act, 2000. However, the Court found that the termination clause was unenforceable, because it did not provide for benefit continuation during the statutory notice period. The Ontario Court of Appeal found that the employee was entitled to payment for the remainder of the contract – a full 27 months. The Court further held that the employee was not required to mitigate his damages (i.e. seek alternate employment) during that period.
ii) The Provincial Court of Alberta recently found that the financial circumstances of a corporate defendant that has violated the Occupational Health and Safety Act is a factor to be considered when determining the appropriate penalty; the larger the corporation, the larger the fine. The Court held that when sentencing smaller corporations with more restrictive financial viability, the penalty should reflect those circumstances.
iii) The Court of Appeal for British Columbia recently found that the British Columbia Human Rights Tribunal (the “Tribunal”) does not have jurisdiction with respect to a claim of discrimination in employment that occurred between parties that did not have a direct employment relationship. In that case, the complainant was employed by an engineering firm, Company A. He was responsible for supervising the work completed by another company, Company B. The respondent to the human rights complaint, Mr. S, worked for Company B. The complainant alleged that he had experienced discrimination at the hands of Mr. S. The Tribunal found that although the complainant and respondent were employed by different companies, it still had jurisdiction over the complaint. The Court of Appeal overturned this decision, finding that the Tribunal did not have jurisdiction over the complaint. The Court of Appeal noted that while the complainant could have brought a claim against his employer for allegedly failing to protect him from discrimination in employment, he could not claim discrimination in employment against an individual who was employed by a different company.