If I’m injured in an accident and unable to work what income replacement benefits are available to me?

If you are employed you may have access to short-term and/or long term disability benefits through your employer.  There are also a number of government benefits available. Employment Insurance offers 15 weeks of disability benefits if you were employed at the time of your injury.

The Canada Pension Plan also offers a disability pension to anyone who has a severe and prolonged injury or illness, that prevents them from regularly pursuing any substantially gainful employment.  In order to qualify for a CPP Disability Pension the injured person must have made contributions to CPP in 4 of the 6 years before they became disabled and have enough medical evidence to prove they have a severe and prolonged injury or illness.

If you qualify for a CPP Disability Pension the amount received will roll over into a retirement pension when you reach the age of 65, so there will be no gap in your contribution history.

The Ontario government also offers benefits through the Ontario Disability Support Program.  ODSP benefits also include coverage for some medical expenses such as prescriptions and special foods.

Please contact my office for further information on how to apply for any of the benefits discussed above.

Teena Belland, Associate

This article is provided as an information resource and is not intended to replace advice from a quaified legal professional and should not be relied upon to make decisions. In all cases, contact your legal professional for advice on any matter referenced in this document before making decisions.

If I’m injured in an accident and unable to work what income replacement benefits are available to me?

If you are employed you may have access to short-term and/or long term disability benefits through your employer.  There are also a number of government benefits available. Employment Insurance offers 15 weeks of disability benefits if you were employed at the time of your injury.

The Canada Pension Plan also offers a disability pension to anyone who has a severe and prolonged injury or illness, that prevents them from regularly pursuing any substantially gainful employment.  In order to qualify for a CPP Disability Pension the injured person must have made contributions to CPP in 4 of the 6 years before they became disabled and have enough medical evidence to prove they have a severe and prolonged injury or illness.

If you qualify for a CPP Disability Pension the amount received will roll over into a retirement pension when you reach the age of 65, so there will be no gap in your contribution history.

The Ontario government also offers benefits through the Ontario Disability Support Program.  ODSP benefits also include coverage for some medical expenses such as prescriptions and special foods.

Please contact my office for further information on how to apply for any of the benefits discussed above.

Teena Belland, Associate

 

This article is provided as an information resource and is not intended to replace advice from a quaified legal professional and should not be relied upon to make decisions. In all cases, contact your legal professional for advice on any matter referenced in this document before making decisions.

You have just been fired. What can you do and what are your entitled to?

  If you are unionized, seek guidance from your union representative.  If you are not unionized, you may be entitled to notice or pay in lieu of notice (“notice pay”).

   Legislation called the Employment Standards Act requires employers to provide notice prior to termination in the amount of one week per year of service, to a maximum of eight weeks.  Under certain circumstances, you may also be entitled to severance pay.

   You may also be entitled to reasonable notice under common law, which is based on cases decided by the courts. The length of common law reasonable notice will be decided by looking at factors like your age, position, level of compensation, and the availability of similar employment.

   Your employer can provide you either with notice prior to termination or notice pay.  However, if you are terminated with just cause, you will not be entitled to notice or notice pay.  Just cause is a legal test which will be determined on a case-by-case basis.

   Your employer should provide you with a Record of Employment, either on paper or submitted straight to Service Canada online, so that you can apply for Employment Insurance benefits.

   A lawyer will be able to provide you with specific advice regarding your entitlements based on the facts of your employment and your termination. 

   You should see a lawyer as soon as possible in order to address any concerns you may have regarding allegations of cause or your entitlement to notice or severance pay.

     Sabina Veltri, Lawyer
     Tierney Stauffer LLP      
     sveltri@tslawyers.ca

This article is provided as an information resource and is not intended to replace advice from a quaified legal professional and should not be relied upon to make decisions. In all cases, contact your legal professional for advice on any matter referenced in this document before making decisions.

Your Obigations When Terminating an Employee – Ontario

Non-unionized employees rights are not determined by a collective bargaining agreement.  Employers of non-unionized employees require a firm understanding of their obligations when terminating an employee, failing which employers can be exposed to time-consuming and costly litigation.

The entitlements of non-unionized employees upon the termination of their employment arise through legislation such as the Employment Standards Act, 2000 (the “ESA”) and through the body of rules and principles resulting from the decisions of our courts known as the common law.

The ESA provides that an employee is entitled to notice prior to termination or payment in lieu (“notice pay”) in an amount equal to one week per year of service up to a maximum of eight weeks.  An employee may also be entitled to severance pay if their length of service is five years or more and they meet one of the two following criteria: (a) they are one of fifty or more employees whose employment has been terminated by the employer within a six-month period, or (b) the employer has a payroll of $2.5 million or more.

The Supreme Court has ruled that employers have an implied obligation to provide employees with reasonable notice prior to the termination of their employment.  This is a common law principle that binds all employers with non-unionized employees. 

Unlike notice pay under the ESA, there is no grid applicable to determining common law reasonable notice.  The period of reasonable notice applicable to an employee is determined on a case-by-case basis with regard to the employee’s age, health, length of service, training and experience, and the availability of similar employment.  The period of reasonable notice is generally longer than the ESA entitlement, which is included within it.

The failure to provide notice prior to termination can be interpreted as a breach of contract upon which an employee can bring an action for wrongful dismissal.  The damages payable to the employee consist of the amount of remuneration that the employee would have earned over the period of common law reasonable notice, including any payments such as commissions, bonuses, benefits and vacation pay.  These damages are reduced by any income that the employee earns over that period through other sources, such as new employment.

There is no obligation on an employer to provide notice in cases where an employee is terminated for just cause.  “Just cause” is a term with specific legal meanings.  Not every act of misconduct or impropriety will qualify as just cause.  Employers should be careful when asserting just cause, as the threshold of proof is high and employers bear the onus of proving that just cause exists. 

Whether or not an employee’s behaviour warrants just cause is determined on a case-by-case basis.  The court will look at the employee’s behaviour and determine if it is serious enough to be considered a breakdown in the employment relationship.  Examples may include conduct which breaches a fundamental term of the employment relationship, which breaches the trust which exists in the employment relationship, or which is fundamentally or directly inconsistent with the employee’s obligations to his or her employer.

There are a variety of ways to structure an employment termination compensation package in order to fairly compensate the employee for lack of notice prior to termination.  Packages can include working notice, a combination of working notice and an ESA notice payment, a salary continuation with an incentive for the employee to find new employment, or a lump sum payment.  A release from the employee should be obtained in exchange for the payment.

Sabina Vltri
Lawyer, Litigation and Employment Law
Tierney Stauffer LLP
sveltri@tslawyers.ca
613-728-8057.

How enforeceable is a non-compete clause in an employment contract?

Q.  I was asked to sign a non-competition clause in my employment agreement. Is it enforceable?

A. A non-competition clause is a form of restrictive covenant which is a contract or a clause in which you agree to be limited in some way as to your future conduct. The enforceability of restrictive covenants depends on a court’s assessment of the reasonableness of what is being limited.

Non-competition clauses in employment agreements (as opposed to non-competition clauses in the context of a purchase and sale of a business) are generally unenforceable, subject to reasonableness. 

Read the non-compete clause carefully.

There are several tests that a court will use to determine reasonableness, including reasonable in time and space, reasonable in respect of the parties involved and reasonable in reference to the interests of the public. For example, a clause preventing you from earning a living in your area of expertise anywhere in the world would probably be ruled unenforceable, as the court would likely find that “anywhere in the world” would be an unreasonable limitation. Likewise, a non-competition clause intending to be of indefinite duration would probably be ruled unenforceable, as the court would likely find that a non-compete of indefinite duration would be an unreasonable limitation.

Generally, the more narrow the limitation, the more likely a court would be to find the limitation reasonable and enforce a non-compete in the context of an employment relationship.  As a general rule, the more one pays the other party for the non-compete covenant, the more likely it would be enforced (subject to the clause being reasonable in its limitations). 

     Adam Wiseberg, Lawyer
     Tierney Stauffer LLP  
awiseberg@tslawyers.ca