Top 10 employment law stories of 2024

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Top ten lists invariably reflect themes and ideas of personal interest to the author. That is especially true in this collection, as 2024 was a year in which no employment law cases were heard at the Supreme Court, and few cases were, in my view, entirely groundbreaking.

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With that said, here is an unapologetically subjective list of the 10 most notable developments in employment law this year.

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1. The invalidity of termination clauses

The case of Dufault v. Ignace put the finishing touch on the enforceability of most employment contracts. The contract stated that, subject to certain payments, an employer could terminate an employee in its “sole discretion” at “any time.” Since there are statutory periods when an employee is protected from dismissal, this language was held to render the entire termination provision unenforceable, consistent with the Ontario Court of Appeal’s rulings that any contract which could potentially violate the Employment Standards Act in any respect vitiates the entire termination provision.

This contract was also invalid because it provided that the employee would only be paid salary during the termination period provided. However, the ESA requires “regular wages” be paid during the statutory notice period, which can include commissions, vacation pay, bonuses and other remuneration in addition to the base salary.

Of note to employers, one or more of the violative provisions in this contract are found in most Canadian employment contracts. As a result, prudent employers must once again go back to the drawing board and get their employees to sign new contracts in order for them to be enforceable. This will be no easy task, since, for a new contract to be valid, an employer must provide an employee something new of value, and punitive provisions must be made clear to the employee before they sign.

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But all is not lost in this realm.

In Bertsch v. Datastealth Inc., the Ontario Superior Court of Justice upheld the enforceability of a termination clause in an employment agreement limiting the employee’s entitlement to only the ESA. Datastealth’s termination provisions closely aligned with the ESA requirements and explicitly provided that, if Bertsch’s employment was terminated with or without cause, he would receive only the minimum payments and entitlements owed to him under the ESA and Ontario Regulation 288/01.

2. The death of DEI

When New York Times columnist and prominent liberal Maureen Dowd declared that “woke is broke,” we knew we had hit a tipping point. Walmart, Boeing, Ford, Molson Coors, John Deere, Harley Davidson, Toyota and Lowe’s are just some of the businesses that announced they were ending or reducing their DEI departments on the basis that, alternately, it was taking their focus off the bottom line and/or it was creating workplace divisions.

In some cases, it was also a response to their own employees’ revolt, particularly long tenured workers who felt disadvantaged by the lack of opportunity DEI was providing them. More employees, on a percentage basis, were laid off in this area in 2024 than in any other year, and new hirings were hard to find.

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Given the far left-wing bias of most DEI practitioners and trainers, and the well-publicized suicide of Richard Bilkszto after being harassed by a DEI trainer, as well as the recognition that the current wave of anti-semitism was a product of DEI culture as it is commonly practiced (pitching races against each other), the pushback has been inexorable.

3. Unionized employees in Ontario can proceed to the Human Rights Tribunal as an alternative to arbitration

In London District Catholic School Board v. Weilgosh, the Ontario Superior Court held that unionized employees can proceed directly to the Human Rights Tribunal with their claims instead of grieving through arbitration. However, the tribunal can stay an application when a human rights issue is part of a case an employee is already grieving to arbitration, or dismiss a case entirely if an arbitration board has made a ruling that deals with the human rights issues. This means unionized employees will not ultimately be permitted two “kicks at the can.”

4. Disconnecting from work

The federal government and some provincial legislatures, including Ontario’s, have now passed “disconnect from work” legislation requiring employers to have policies that spell out when employees are free to disconnect and when they are not.

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The philosophy is that employees would know when they do and do not need to remain in contact with their employers, and that such policies should be known up front, when an employee is deciding whether or not to work for a prospective employer.

5. Rising workplace investigations and the beginning of a pushback

Canadian employers, propagandized by the investigation lobby (whose adherents and trainers are often the same as DEI ones), have become almost fearful of not calling in outside investigators in response to virtually every complaint, however trivial. In almost every instance, the investigations are a colossal waste of corporate resources, with bills usually in the six figures, and the workplace is in chaos and full of tension while they are ongoing.

Increasingly, these “investigations” are simply exercises in building up cases against employees. who, on pain of termination, are not permitted to speak to anyone themselves and have to sit at home with everyone assuming their guilt.

That is why I have referred to workplace investigations as “the new firing squad.”

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Employees are quickly realizing that there is virtually never a return from a suspension during investigation, and, on the rare occasions there is, the work relationships are irreparably soiled. As a result, employees are now fighting back, hiring counsel and demanding the due process that these investigations, as practiced by most of the usual consultants, do not offer.

Although there is little jurisprudence in this area, the courts are catching on. In Marentette v. Canada (Attorney General), the Federal Court of Canada found violations of procedural fairness and ordered a new investigation with a different investigator.

6. The “right” to work from home on human rights grounds

As employees are ordered back to the office, many believe they have a right to work from home if it is more efficient. However, there is no such law granting an employee the right to work from home, except one based in human rights legislation. In Khanom v. Idealogic PDS Inc., the Ontario Superior Court of Justice found that the employer discriminated against an employee by refusing to permit her to work from home to protect the health of her husband.

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7. Lawsuits for “bad faith” conduct during employment

It has long been the law (i.e., the Wallace, and Honda decisions) that bad faith conduct in the termination process leads to additional damages. But the B.C. Court of Appeal in British Columbia v. Taylor found that bad faith conduct in the course of employment can give way to a lawsuit. Imagine future lawsuits for employers allegedly acting in bad faith in not providing a promotion, a bonus or a raise. One can envisage the opening of the litigation floodgates.

8. You can regret suing

The wrongful dismissal cases involving Nadine Ahn, Ken Mason and RBC excited corporate Canada and every prurient titillated onlooker with its alleged tales of sex and high finance. When Ms. Ahn, RBC’s CFO, was fired by the bank for cause for allegedly having an affair, she issued a big public claim, suing for $50 million.

RBC decided it had no choice but to go public with evidence of what it viewed to be her improper relationship with Mr. Mason and even filed a counterclaim, which the press predictably covered. It’s likely Ms. Ahn deeply regrets not going away quietly. Ahn’s case could have been handled differently and avoided this consequence, but that is a topic for another column.

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9. Make sure you are compliant with employment legislation

In Pohl v. Hudson’s Bay, Justice Robert Centa awarded $55,000 in additional damages as result of Hudson Bay’s various violations of legislation, including the ESA. Some of the violations seemed trivial. It is important for employers to ensure they make their payments and filings when the Acts says they must, otherwise the employer will be starting its case on an expensive wrong foot.

10. Regulatory bodies’ Codes of Conduct place tradespeople and professionals at career-ending risk for off-duty conduct

The Supreme Court of Canada’s dismissal of Jordan Peterson’s application for leave to appeal (handled by my office) is a chilling reminder to the more than 20 per cent of Canadian workers covered by codes of conduct that you can potentially lose your livelihood for transgressions of those codes, even if entirely unrelated to your work.

So, there you have it.

To my readers, I hope I have helped you avoid the many pitfalls and landmines in the employment law area while also keeping you entertained, and I hope that you are enjoying your holiday season. I wish you the best for 2025!

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers with offices in Ontario, Alberta and British Columbia. He practices employment law in eight provinces and is the author of six books, including the Law of Dismissal in Canada.

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