Employment issues

Some Common Questions from Businesses as Ontario Starts to Re-Open

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Our firm is starting to get some repeat questions as we inch (shouldn’t it be cm, as we’re Canadian) towards some kind of re-opening of the Ontario economy.

As such, we’re happy to answer some of the most popular questions here:

  1. Can an employee refuse to return to work? 

Provided the Employer has a workplace that is socially distanced and employees can do their job safely, then an Employee’s refusal to return to work could be considered a resignation.   Employees need to think carefully about that as resignation does not generally allow one to collect EI.

2. Can I carry on my business using curb side pickup?

If your business is specifically listed in the April 3, 2020 and  May 1, 2020 Ontario list of essential workplaces, then you can carry on curbside pickup.

If your business is not listed, you can do delivery, however, you cannot do curbside pickup. 

3. Do I have to socially distance within the workplace?

Yes.   This will require a lot of planning by employers.   Is the kitchen closed?  In a shared washroom situation, how many people are allowed in it? How do you control that?

The employees have a right to a safe workspace, so complying with Covid-19 precautions is key to being able to remain open once you are open.  

4. Do employees have the right to demand they continue to work from home?

Generally the answer is no.   If the employee reported to a physical workplace pre-pandemic rules, then that is the basis of their employment and the employee cannot unilaterally demand the right to work from home.

5. Will this ever end?

If by this, you mean being locked down and having a restricted economy, the answer is yes.  We don’t know when, but at sometime in the future, businesses will be completely reopened, though likely not the same way they used to be.

As with any legal Blog, the above is not legal advice.  If you have a question about your specific business contact a Business Lawyer for advice.

It’s great to see the start of re-opening of the Ontario economy.  We’ve all given up so much to get to this point, lets ensure we don’t take two steps backwards by ignoring all lessons we’ve learned.   So people, wash hands, use a mask when you’re inside a building that is not your house and socially distance, let’s get the economy moving again !

Inga B. Andriessen JD

You Can Complain, But You Cannot (Usually) Hide at the HRTO

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If you aren’t savvy with acronyms, the “HRTO” is the Human Rights Tribunal of Ontario. This Tribunal deals with claims of discrimination and harassment brought under the Ontario Human Rights Code. 

As business lawyers we have seen a dramatic increase in the number of HRTO Applications being filed against employers. In fact, there’s been a 25% rise in the number of applications being filed in the last few years, compared to 2016. 

While some Applications have merit and should be dealt with through the HRTO, we also come across Applications of disgruntled employees who file claims against their former employers out of spite.

For those that do choose to abuse this process, all we can say is – you can file your Application, but you can’t hide!

One thing to remember for those considering an HRTO Application is that your name and the relevant details to your Application become part of the public record. HRTO hearings are open to the public and written decisions, which include party names, are available to everyone.

Some parties bring an Application with the HRTO thinking that they can later conceal their personal information by way of a Tribunal Order. These Orders, which a party might seek to “anonymize” their name in the HRTO’s decision, are granted in extremely rare cases.

There are really only two circumstances in which initials will be used instead of names to anonymize the individuals mentioned in HRTO decisions: (1) protecting the identity of children and (2) exceptional circumstances.

Examples of “exceptional circumstances” include specific threats to personal safety, where there are parallel criminal proceedings relating to an alleged sexual assault, and where there is highly sensitive medical information.  

So if you are thinking about commencing an HRTO Application, make sure you’re doing it for the right reasons because this decision may follow you whether you like it or not!

Robin K. Mann, JD, Associate Lawyer

The Good Lawyer (Part 3)

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I know it’s been a few weeks (during which time we’ve eaten all of our Halloween candy and done a lot of black Friday shopping) but here we are again for our third installment of “The Good Lawyer.”

During our previous discussions on what makes for a good lawyer, we discussed communication and resourcefulness.

Today we will be talking about ….are you ready for it?…. RESPONSIVENESS!

This skill is surprisingly one that not enough lawyers exercise. If your lawyer isn’t responding to your emails or calling you back within a couple of days (in the latest), you shouldn’t stand for it. Many people think that unresponsiveness from lawyers is the price you pay for a good busy lawyer, but that’s simply not the case.

A good lawyer is someone who responds to clients, opposing counsel, legal assistants, and anyone else involved in a case in a timely manner. Your lawyer should be listening to you, you have a lot more knowledge about your case than you realize, and they could be missing out on some vital information. So, if you have a question or some information you believe your lawyer should know, reach out and be heard.

Our motto at Andriessen & Associates regarding responsiveness is quite simple really. Unlike a certain Carly Rae Jepsen, if we say “here’s our number” – just call if you need us, no “maybe”!

Stay tuned for Part 4 of our segment on “The Good Lawyer.”

Robin K. Mann, Associate Lawyer

So you’re applying for a “law job”

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Our firm is currently going through the second round of interviews for our jr litigator/solicitor position.  As the position is a junior position, we were overwhelmed (almost) with applications and had to whittle them down for the first round interview process.

Through this “whittling” process, I found recurring “themes” in applications that led me to put them in the “no interview” pile.  If you’re currently searching for a “law job” or frankly, “any job” maybe this will help or maybe it won’t, but if you’re going to read on here, these are some of the reasons applicants did not get offered an interview:

  1. The applicant spelled the firm name wrong.  In one case, they spelled the name incorrectly, three different ways, in one letter.  Yes, our firm name is long, but if you want to be a lawyer, you’re going to need to pay attention to detail.
  2.  The applicant didn’t include everything that was asked for in the job listing: if the ad says include transcripts, it means, include transcripts.
  3. The applicant addressed the letter to another law firm.  This happens more often than you would like to think.
  4. The applicant sent the application by regular mail, when the instructions were clear it was to be sent by email.  These type of instructions in a job application matter: if you’re not going to take direction at the application point, odds are, you are not going to respond well to being asked to do things when hired.
  5. The applicant did not explain why they were applying to the position in their covering letter.  This is particularly important when a resume does not show any history of the type of work we do.  We’re open to hiring juniors with no business law experience, but we would like to know why they’re applying.

We learn more from our mistakes, than our successes.  So, if you’re finding you’re not getting interviews, take a close look at your applications in light of the above, you might find the answer is in the details.

Inga B. Andriessen JD

Why are Law Clerks important?

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When I was in grade 8 and asked what I wanted to be when I grow up, I knew that it was to work in a law firm. I knew I didn’t want to become a lawyer, or be part of Reception (not that there is anything wrong with that!). I knew I didn’t want to go to Court, but wanted to be involved in files.

So why not become a Legal Assistant? At the time, I wouldn’t have known the difference, but when it came to college, it became apparent that I wanted to become a Law Clerk.

Law Clerks overlap with the Legal Assistant role, and that’s where I started. However, depending on the type of law firm, the more busy a Law Clerk gets, the more vital their role is and can no longer cross over to the Legal Assistant work.

What do I do you ask, well, in a nutshell, I take care of the nitty gritty so that lawyers can look at the big picture. For example, for a lawyer heading off to Court on a very important Motion, I make sure they have everything they need. I make sure the costs they are seeking are calculated and outlined in an organized fashion and that they have enough copies of their Orders to hand up to Judges. I also make sure that the Motion has been confirmed in time. Yes, ultimately it is on the lawyer’s shoulders to make sure this happens, but if they have to worry less about those types of things, the better they are at being a good lawyer for our clients. Law Clerks are also a great option for keeping costs down when it comes to drafting enforcement documents and reviewing file materials, which is also very important to a client.

On the corporate end of the spectrum, I make sure that annual corporate record keeping is being maintained and that the Minute Books are up to date. I make sure anything that needs to be reported to the Ministry of Government Relations is being reported. Again, this helps the lawyer focus on more complex corporate issues, and ensures that their time is being utilized how our clients need it to be.

The lawyer is always the point of contact for our clients, but it’s not just lawyers in a law firm, it’s all of us. We are a team, and we all have our vital roles. We couldn’t live without our receptionist or Legal Assistant, and I know that in our office, we couldn’t live without the Law Clerk.

Christine Allan
Law Clerk

Employers change is on the horizon in Ontario (aka the light at the end of the tunnel is a train)

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In Ontario, some significant changes are being proposed to the Employment Standards Act – the important words is “proposed” in that sentence, there is time for Employers to chime in with their thoughts. Our firm does not represent Employees in Employment Law issues, so our focus is solely on the Employer’s end of things.

The summary of the report, in my opinion, reads very much that Employers are evil and need to be reigned in by a more robust Ministry of Labour.

The reality is that we currently live in an age of Employment Law where the scale is already weighted very heavily in favour of the Employee. If an Employee is terminated without cause and without a contract limiting the amount of Notice of Termination they are entitled to, the Courts are consistently awarding at least one month for each year worked. That’s a lot of Notice for an Employer to pay out if they’re already downsizing for financial reasons.

Think the workplace is not weighted in favour of an Employee? Try navigating the challenge of terminating an Employee who claims to have a disability: have you accommodated them to the point of undue hardship? No, well, then you’re going to pay a lot.

Ensuring that Employees are not discriminated against and given fair Notice of Termination is already the law in Ontario.

Some of the new proposals include requiring Employers to pay for doctor’s notes if they require them. Really? Wow. That’s lovely and butts up nicely against the duty to accommodate disabilities which require Doctor’s input.

I recognize there are some bad apple Employers out there, but most of the Employers are looking to create a team of people who work with them to create a successful business. Let’s not punish the good apples for the bad behaviour of the bad apples.

Inga B. Andriessen JD

To Snap or not to Snap in Business

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Do you SnapChat? Does your company? Do you have any idea what I’m talking about?

You should.

As a business law firm, one of our beliefs is that you must continue to evolve. This doesn’t mean you need to use every new social media platform that is created, but you should understand it and understand how your clients and/or employees are using it.

SnapChat started off as a sexting Ap for teenagers. That would be a very bad use in a work environment.

It has now evolved into a platform that lets people and companies tell “stories” and turn their faces into dogs with tongues hanging out. The last part is o.k. at work, if your co-worker doesn’t object to being turned into a dog’s face; however, doing that without their permission could lead to allegations of bullying and a toxic work environment.

The above two paragraphs are examples of why you can’t ignore new social media if you are an employer. Your obligations to protect your employees from harassment and discrimination don’t end because you don’t understand technology.

Our firm Snaps occasionally. Our Snap Chat name is AndriessenLaw . Feel free to become friends with us if you’re interested in behind the scenes photos of the firm – last week our paralegal, Murray Brown’s guppy tank was featured. We did not turn any guppies into dogs.

Inga B. Andriessen JD

Vacations are important !

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It’s almost July. The kids are or are almost out of school. It doesn’t matter that I’ve been out of school for way too many years to remember, there is still something about July and August that says “vacation”.

No. We’re not shutting down the firm for the summer, but most of us will take a break for at least a week to recharge and that is important. I remember being a student and working in jobs where people chose to take vacation pay but not vacation time. Those people didn’t seem very happy.

If you don’t take time away from work, it is easy to be ground into the routine and start the downward spiral of hating your job.

Even if you can’t take a full week off, I find taking a long weekend off and enjoying one of our Provincial Parks can leave me just as refreshed as if I’d been away for longer. There is something about being in nature that just lets you relax. Of course, that could be the BC native in me coming out, maybe being in a bustling city is just as relaxing for Toronto natives.

The point is, take time to not work so that you can enjoy getting back to work.

Inga B. Andriessen JD

Why yes, you do have to prove your case

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At the end of last week, the Judge handed down his decision in the Jian Ghomeshi case. The finding was that the Crown had not proven its’ case “beyond a reasonable doubt”. That is the technical definition of what needs to be established in a criminal case before someone is convicted of an offence.

In Business Litigation, which is generally a Civil matter, the burden of proof is: has the plaintiff proven their case “on the balance of probabilities”? This is often described as a lower threshold.

While this threshold is lower than the criminal requirement, it still exists and a Judge will not simply “take your word for it” that something happened. You must prove your case.

To prove a case, evidence is gathered: emails, notes, contracts, photos and witness statements. These all form an important part of proving your case.

If you “forget” something until the defendant’s lawyer is cross-examining you, the decision is not likely going to go in your favour. If a Judge decides you’re lying or colluded with people to build up your case, you’re definitely not going to win.

Believing you are entitled to Judgment is not the same as proving it: you must prove your case or you’re not going to win.

Inga B. Andriessen JD

A few good reasons to talk to a lawyer before you terminate an employee

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Many businesses are blissfully unaware of the legal minefields they are navigating until one day it happens: a terminated employee sues, makes a Ministry of Labour Complaint or files a Human Rights Complaint. All of a sudden, the employer is faced with the full wrath of statutes and common law and generally a cheque made payable to the former employee. Much of this can be avoided if you talk to a lawyer before terminating an employee.

Here are a few of the problems that need to be addressed:

1. Make sure you’ve calculated your statutory termination and severance pay correctly. If you don’t do this correctly, you could be punished by a Court with “punitive damages” for failing to comply with the statutory minimums.

2. Ensure your business doesn’t become the Long Term Disability provider for former employees by drawing to their attention the availability of those benefits and ensuring you comply with the current Case Law trend of providing those benefits throughout the notice period.

3. Be certain there is no “duty to accommodate” an employee with a disability before terminating their employment. In Ontario, employers must accommodate a disability to the point of undue hardship on the employer, not the employee.

Terminating employees is not simple. Get good advice before you go that route: you’ll save yourself a lot of money and stress if you do.

Inga B. Andriessen JD