SIMON SAYS...

“Simon Says”  is where you can find out about recent yet significant cases and legislation.

Here you can find detailed information on Simon’s speaking engagements.


2017

  July 18, 2017

Simon wrote another article on First Reference entitled “Divisional Court confirms Human Rights Code provides statutory authority to demand an Independent Medical Exam”.   This blog explores the recent Ontario Divisional Court decision in Bottiglia v. Ottawa Catholic School Board 2017 ONSC 2417 where the court held that an employer could demand an Independent Medical Exam from an employee under the authority of the Ontario Human Rights Code when there was conflicting medical evidence from the employee’s own doctor.   A link to the decision can be found here.

  May 19, 2017

Simon wrote another article on First Reference entitled “Ontario considers big changes to Employment Standards Act and Labour Relations Act”.   This blog considers a recent independent report commissioned by the Provincial Government to examine changes to both the Ontario Employment Standards Act, 2000 and the Labour Relations Act.   A link to this blog can be found here.

  March 15, 2017

Simon published another article on First Reference Blog entitled “Employee’s age justifies wrongful dismissal damages of 24 months”.  This post explores the recent court decision in Stephanie Ozorio v Canadian Hearing Society, 2016 ONSC 5440 where the court held that the employees age of 60 and the difficulty she would face competing with younger individuals for jobs at a comparable level justified a common law damage award of 24 months .  While an employees age always factors into an assessment of an employee’s damages, this case demonstrates Judges are willing to accept these arguments more readily.   A link to the blog post can be found here.

  February 15, 2017

Simon published another article on First Reference Blog entitled, “Requesting background checks after employment starts”.  In this blog post, Simon discusses the recent Ontario Superior Court decision in Covenoho v. Pendylum Inc., 2016 ONSC 4969 which held that it was not unlawful for an employer to request a criminal background check from an employee after employment had already started. The Employee’s refusal to consent to the background check and subsequent termination were upheld by the court.  A link to this decision can be found here.

2016

  December 14, 2016

Simon published another article on First Reference Blog.  The article entitled “Employee Termination Deemed Reprisal” which explored the prohibition against terminating or reprising against employees who exercise their right to refuse unsafe work under the provisions of the Ontario Occupational Health and Safety Act.  In the article Simon considers the recent decision of Podobnik v. Society of St. Vincent de Paul Stores (Ottawa) Inc. 2016 where the Ontario Labour Relations Board held that the company’s decision to terminate an employee was not for a legitimate restructuring.  Rather, it was directly linked to her exercising her right to refuse unsafe work and it constituted a reprisal against her for exercising this right.  A link to the decision can be found here.

  November 17, 2016

Simon published another article on First Reference Blog.  The article entitled “Fresh Consideration and Employment Contracts” examines two recent cases, the Ontario Court of Appeal’s decision in Holland v. Hostopia.com Inc., 2015 ONCA 762 and a recent trial decision in Gibbons v. BB Blank Inc.,  2016 CanLII 44181 on how companies can make employment contracts that are offered on hiring or a promotion binding.  The key is to have the employee sign the contract before commencing his/her duties and to ensure there is fresh consideration for a new contract of employment.  A link to the decision can be found here.

  October 17, 2016

Simon published another article on First Reference Blog entitled “Refusing a 50 km commute not a failure to mitigate”, where he reviewed a recent Ontario Court of Appeal decision where the court held that the Plaintiff’s decision not to explore a new job that was 50 kms away from her house did not constitute a failure to mitigate.   A link to the decision can be found here.

  September 15, 2016

Simon published another article on First Reference Blog entitled “Huge wrongful dismissal damage award overruled by Ontario Court of Appeal on basis of misapplication of law of just cause dismissal”.  The case examines how an teacher was awarded a 12 month package, long term disability benefits for depression that arose after the termination and over $130,000 in costs even though he admitted he had fraudulently calculated and entered in student marks.  In this case, the school appealed and the decision was squarely overruled on the basis the trial judge misapplied the facts and the law and should have come to the conclusion there was just cause for dismissal.  In the end, the teacher owed almost $100,000.00 in legal costs to the school.  The case highlights how expensive litigation can be and how trial judges don’t always arrive at the correct decisions.   A link can be found here.

  August 11, 2016

Simon published another article on First Reference Blog entitled “Arbitrator upholds just cause termination in part on negative Facebook post”.  In this case, the employee posted extremely negative comments about his Manager and Employer after he was terminated for just cause.   The Arbitrator upheld his termination and commented that the negative comments in his Facebook page only reinforced his negative view of the employer justifying the termination.  This case illustrates how dangerous an employee’s comments on social media can be and the need for employers to implement non-disparagement clauses in their severance letters.  A link to the article can be found here.

  July 14, 2016

Simon Published another article entitled “Ontario Court of Appeal suggest deference to trial judge in interpretation of termination clause” in First Reference Blogs about a recent Ontario Court of Appeal decision that interpreted a termination clause and whether or not the clause rebutted the presumption of common law notice and limited the employee’s entitlements to the minimum entitlements set out under the Ontario Employment Standards Act, 2000.  The Court of Appeal chose to defer to the trial judge’s analysis without fully considering whether or not the clause complied with the Employment Standards Act, 2000, so its impact on future decisions is questionable because it depends on the facts of each case.  A copy of the decision can be found here.

  June 9, 2016

Simon Published another article entitled “Motion for summary judgement raises questions about efficiency of pre-trial resolution” on First Reference Blog.  This case explored the common issue of assessing an employee’s common law notice period at the termination of employment and the efficiencies involved in settling the matter through voluntary negotiations or pursuing the matter by way of a motion for summary judgement.  Given the setting of notice periods by judges is often more of an “art” then a “science”, this case highlights the costs involved to employers in choosing not to settle cases through voluntary negotiations.  A link to the article can be found here.

  May 12, 2016

Simon published another blog post to First Reference Blogs.   In this article Simon provided an update on the Ministry of Labour’s OHSA and ESA blitzes that target specific industries and parts of the province to ensure compliance with the Occupational Health and Safety Act and the Employment Standards Act.  A link to the comment can be found here.

  April 14, 2016

Simon published another article on First Reference Blogs entitled: “Small claims court rules termination clause that violates ESA in future is unenforceable”.  Simon explores a recent Divisional Court of Ontario case upholding a decision from the Small Claims court which confirmed that if a termination clause could be non-compliant with the Ontario Employment Standards Act, 2000 at some point in the future, it would not be enforceable.  A link to the comment can be found here.

  March 17, 2016

Simon published another article to First Reference entitled: Ontario Human Rights Commission released updated policy on “preventing discrimination based on Creed”.  This article explores the Ontario Human Rights Commission’s recent 173 page report that offers guidance on how businesses and employers can avoid committing discrimination on the basis of creed.   It is timely given the ever changing dynamics of the Ontario workforce.  A link to the article can be found here.

  January 15, 2016

Simon published an article at First Reference Blog on the recent 3.5 year criminal sentence handed down to a Project Manager arising from violations of the health and safety provisions of the Criminal Code.   A summary of this groundbreaking decision, which is under appeal, can be found here.


2015

  December 18, 2015

Simon published another article on First Reference Blog examining a recent decision that explains when an Employer can demand an Independent Medical Exam during the accommodation process.  The test advanced by the Tribunal is one based on “reasonableness”.   A link to this article entitled "To IME or not To IME, This is the Question", can be found here.

  November 20, 2015

Simon published an article on a recent Ontario Divisional Court case that considered the enforceability of a termination clause in the federal jurisdiction.  Specifically, the case explored whether or not the termination clause violated the Canada Labour Code.  A link to the comment can be found here.

  September 18, 2015

Simon published another article on First Reference Blog exploring a recent Human Rights Tribunal of Ontario case where a small farm terminated two employees who wanted to take a day off work for a religious observance.  The article entitled, "HRTO concludes teenage Mennonites discriminated against when fired for observing a religious holiday" can be found here.

  August 24, 2015

Simon published another article on First Reference Blog entitled “Poor drafting leads to finding of fixed term contract” about a recent B.C. Supreme Court’s finding that an employer had agreed to a 3 year fixed term contract and owed damages for the balance of the contract for the early termination of the contract.   A link to the article can be found here.

  July 22, 2015

Simon published another article on First Reference Blog.   The article entitled “OLRB rules that sleeping on the job does not constitute 'intentional misconduct' under ESA”, explores a recent decision from the Ontario Labour Relations Board that found that an employee’s repeated sleeping on the job did not disentitle him to statutory termination pay under the Ontario Employment Standards Act, 2000.   A copy of the article can be found here.

  June 25, 2015

Simon was interviewed by National Public Radio (“NPR”) in the United States for a National Radio Segment on Uber Drivers and whether they could be considered employees, dependent contractors or employees.   A link to this radio segment that was broadcast on NPR’s national morning news can be found here.

  February 20, 2015

Simon published another article on First Reference Blog entitled, “Arbitrator Rules Employer Presentation not Discriminatory or Anti-Union”.  This article examines an Arbitrator’s decision to dismiss a grievance alleging that an employer presentation was both discriminatory and anti-union on the basis that the Union had failed to prove any harm.  A link to the article can be found here.

  January 23, 2015

Simon published another article on First Reference Blog on a recent court case that examined the potential liability arising from the termination of a short service employee who alleged he was bound by a 5-year fixed term contract.  The case also discusses contract formation and a copy of the article can be found here.

 

2014

  December 19, 2014

Simon contributed another article to First Reference Blog on the top five (5) employment law trends of the year.  A copy of this article can be found here.

  November 21, 2014

Simon published another article on First Reference Blogs on a recent Ontario Human Rights Tribunal decision on Workplace Sexual Harassment.  A copy of the article can be found here.

  September 17, 2014

Simon published an article on a recent HRTO decision whereby a company was found to have discriminated against a job candidate during the hiring process on the prohibited grounds of “race, colour and ethnic origin”.  A copy of this article can be found here.

  August 20, 2014

Simon published another article in First Reference Blogs on constructive dismissals entitled, 'Court rules that delay in implementing a promotion did not constitute a “constructive dismissal”'.   A link to this decision can be found here.

  July 15, 2014

Simon published an article on whether an employee’s dismissal for cause on the basis of profanity should be upheld in, “Arbitrator rules profanity during telephone call with manager insufficient to constitute ‘just cause’ for dismissal”.   A link to the article can be found here.

  May 21, 2014

Simon published an articled on two recent Federal Court of Appeal decisions that clarify an employer’s obligations with respect to accommodating the child care responsibilities of their employees.  A copy of the article can be found here.

  April 15, 2014

Simon published another articled on the Ministry of Labour’s Employment Standards Act Blitzes for 2014-15.   A copy of the article can be found here.

  March 19, 2014

Simon published an article on First Reference Blog entitled Ontario Human Rights Tribunal rules company discriminated against employee with developmental disability by paying her wages of $1.25 per hour.  A copy of the article can be found here.

  February 14, 2014

Simon published an article entitled OHRT rules the “flu” is not a “disability” attracting the protection of the Human Rights Code.  A copy of the article can be found here.

  January 22, 2014

Simon contributed another article to First Reference Blogs entitled Supreme Court of Canada confirms pension benefits should not be deducted from damages for wrongful dismissal.  A copy of the article can be found here.

 

2013

  December 18, 2013

Simon contributed another article to First Reference entitled, “OLRB Upholds MOL Finding that a Vehicle is a Workplace for the purposes of the OHSA”.  A copy of this article can be found here.

  October 16, 2013

Simon contributed another article to First Reference entitled, "Ontario Court of Appeal rules on distracted driving and handheld devices".  A copy of this article can be found here.

  September 9, 2013

Simon contributed another article to First Reference entitled Working Notice: A Refresher. A copy of this article can be found here.

  August 12, 2013

Simon published another article on First Reference Blog entitled OHRT orders $70,000 in damages against employer for reprisal termination even though complaints of discrimination lacked merit. A link to the article can be found here.

  July 16, 2013

Simon published another article on First Reference Blogs with respect to the Ontario Human Rights Commission new policy on removing the "Canadian Experience Barrier".  A copy of this article can be found here.

  June 17, 2013

Simon published another article on First Reference Blogs about whether or not Employers in Canada can refuse to hire smokers.  A link to Simon’s article can be found here.

  May 13, 2013

Simon published another article for First Reference Blogs on how an Employer can make deductions from an Employees wages in accordance with the Employment Standards Act.  A link to the article can be found here.

  April 16, 2013

Simon published another article for First Reference Blogs on a recent Human Rights decision where the Tribunal ordered a massive damage award against an employer for failing to consider employment options beyond the employee’s pre-injury job.  A link to the article can be found here.

  March 19, 2013

Simon published an article on First Reference Blog on a recent OLRB decision involving a company's breach of the Bill amendments to the Occupational Health & Safety Act.  A link to the article can be found here.

  February 20, 2013

Simon spoke about Age Discrimination at the Peterborough chapter of the Human Resources Professional Association (HRPA).

  February 19, 2013

Simon published an article on Family Status and the duty to accommodate Childcare Responsibilities on the First Reference Blog.  A copy of the article can be found here.

  February 7, 2013

Simon made a Co-Presentation with Dr. Massarella to the Peel chapter of the HRPA on Gender Neutrality - Bill 33 Toby's Law.

  January 15, 2013

Simon published another article in First Reference Blog entitled, "British Columbia Court Of Appeal concludes employee's conduct in workplace interpersonal conflict justified just cause for termination."  A link to the article can be found here.

2012

  December 14, 2012

Simon published another article in First Reference Blog entitled, "The intoxicate holiday party employee: Avoiding social host liability".  A link to this article can be found here.

  November 20, 2012

Simon added another blog post to First Reference on the issue of a failed employee claim of constructive dismissal on the basis of harassment and religious discrimination.  A copy of this article can be found here.

  September 18, 2012

Simon added another blog post to First Reference, a human resources forum, about current issues in human resources and employment law.  Simon’s recent blog is on the issue of age discrimination before the Ontario Human Rights Tribunal and the dismissal of a Complaint.  A link to the article can be found here.

  August 28, 2012

Simon started to blog at First Reference, a human resources forum, about current issues in human resources and employment law.  Simon’s first blog is on the issue of medical evidence and disabilities before the Ontario Human Rights Tribunal.  A link to Simon’s blog can be found here.

  August 22, 2012

Simon presented a 3 hours session to the HRPA on Age Discrimination.  He presented a seminar and then led the participants through two fact scenarios so that they could work through difficult and challenging human resources issues involving age.