January 2022 - Stacey R. Ball

Fiduciary Employees: Impact Security Group Inc. v. Brown

by Stacey R. Ball| January 31, 2022August 13, 2023 | Employment Law| | General

In Canadian employment law, not all employees or dependent contractors are alike. Some, by virtue of their high position with the employer’s organizational hierarchy, are a type of employee that owe greater obligations to their employer than other employees. These are fiduciary employees, and they owe fiduciary obligations to their employers that go above and beyond what is typically owed in the employee-employer relationship (i.e., the implied duty of fidelity that all regular employees owe).

A relatively recent decision of the Saskatchewan Court of Queen’s Bench, Impact Security Group Inc. v Brown, provides a useful summarization of the law surrounding fiduciary employees.

The Employees

This case concerned two former employees of Impact Security: Mr. Brown and Mr. Zanger. Mr. Brown was once Impact Security’s Regional Manager for Saskatchewan, whereas Mr. Zanger was their Regina Branch Manager. Evidently, both former employees held senior positions within the employer’s organization.

Both employees left the company in April, 2021 to set up a competing company called Executive. According to Impact Security, the two employees had used the company’s confidential information while still employed to solicit future customers to Executive. In doing so, Impact Security argued they breached their fiduciary obligations to Impact.

Distinguishing Fiduciary Employees from Regular Employees

In order for the employees to breach their fiduciary obligations to the employer, they must first be found to have been fiduciaries. In addressing this issue, the Court provides a helpful summary of the principle.

At common law, all employees owe a duty of fidelity to their employers. However, employees in a fiduciary relationship with their employer owe higher duties, including duties of loyalty, good faith, and avoidance of conflicts of interest. Fiduciary employees cannot solicit their former employer’s customers, nor use the employer’s confidential information to the employee’s own advantage for a reasonable time following the end of their employment.

Determining whether or not an employee is a fiduciary requires a contextual analysis. A fiduciary relationship will arise where:

(a) the fiduciary has the authority to exercise power or discretion;
(b) the power or discretion is exercised unilaterally over the beneficiary (i.e., the employer), thereby affecting the beneficiary’s legal or practical interests;
(c) the beneficiary is peculiarly vulnerable to, or at the mercy of, the fiduciary; and
(d) the fiduciary has undertaken to act in the best interests of the beneficiary and to forsake the interest of all others in favour of the beneficiary with regard to the specific legal or practical interest at stake.

These four indicia of fiduciary relationships are often found to exist in employment relationships. In applying these indicia to the employment context, courts often consider a number of other factors, including:

1) level of responsibility;
2) ability to unilaterally exercise delegated authority to effect the employer’s legal and economic interests;
3) degree of contact with customers and/or suppliers;
4) knowledge of customer lists;
5) pricing information and other information key to the employer’s business, and
6) the employer’s vulnerability to actions taken by the employee.

It is ultimately a question of fact whether or not an employee is a fiduciary. Courts have been warned, however, to not be too quick to conclude that an employee is a fiduciary where the employee’s job is less than that of a senior managerial or directorial status.

Were Mr. Brown and Mr. Zanger Fiduciary Employees?

Mr. Brown held a very senior position within the company – he was, effectively, the face of the business. He possessed significant discretion when it came to hiring and supervising employees. His familiarity and relationship with many of Impact Security’s clientele leaves Impact in a potentially vulnerable position, especially given that many of those clients may move away from Impact Security and towards Mr. Brown’s new business. In considering all of this, the Court held that Mr. Brown was a key employee who did owe fiduciary obligation to his former employer, Impact Security, even following his departure. Furthermore, the Court found that Mr. Brown did indeed breach his fiduciary obligations by enticing some of Impact Security’s clients to leave and join his business instead.

On the other hand, Mr. Zanger did not hold a senior management position within the company. Mr. Zanger supervised employees but had no responsibility or control over finances or budgets or strategic planning whatsoever. For this reason, Mr. Zanger was found not to be a fiduciary.

Dismissed Employee Turns to UBER Job for Support: Income Held Not to be Deductible from Damages Award

by Stacey R. Ball| January 29, 2022August 13, 2023 | General

Generally speaking, a wrongfully dismissed employee has a duty to mitigate their damages by seeking alternative employment. If they are successful in finding new employment, the income they receive from that new employment will typically result in a deduction to the amount of wrongful dismissal damages they might be awarded in connection to their original termination. While this is generally true, a recent decision of the Federal Court seems to suggest that it is not necessarily always true.

The Dismissed Employee

This case concerned Mr. Dengedza, who had been unjustly dismissed from his employment with the Canadian Imperial Bank of Commerce (CIBC). At the time of his termination, Mr. Dengedza was 66 years old and held the position of Senior Investigator, Anti-Money Laundering Investigations Group. He had been with the bank for 9.5 years. He was earning an annual base salary of $60,400.

After his termination, Mr. Dengedza filed a complaint of unjust dismissal under the Canada Labour Code. He and the employer agreed that Mr. Dengedza would not be seeking reinstatement, and the employer would correspondingly not be asserting just cause for his termination. As a result, the only issue for the adjudicator to decide was the quantum of reasonable notice that should be awarded to Mr. Dengedza. Ultimately, the adjudicator decided that 14 months’ notice was appropriate.

The adjudicator was then tasked with deciding whether to deduct from this amount the income Mr. Dengedza was earning from his side job as an UBER driver.

The UBER Job

Prior to his dismissal, he was also working part-time as an UBER driver during non-business hours. CIBC gave him permission to do so. After his dismissal, Mr. Dengedza was understandably in need of cash and decided to increase his UBER hours. He began driving for UBER 60 hours each work. In doing so, Mr. Dengedza earned approximately $600 per week. According to Mr. Dengedza, the money he was making from UBER should not be deducted from his damages award because the work was “of a different character” than the work he had been performing at CIBC, and further because “his earnings were minimal and supplementary in nature.”

The adjudicator rejected his arguments. Before his dismissal, his UBER earnings were indeed minimal. However, after his dismissal and after he significantly increased his hours spent driving, his net earnings increased substantially. In the adjudicator’s opinion, his earnings did not represent a “minimal, trivial or inconsequential sum.” The adjudicator therefore considered the UBER earnings to be “amounts received in mitigations of loss” and had them deducted from the compensation payable by CIBC.

The UBER Job, According to the Federal Court

At the Federal Court, Mr. Dengedza argued the adjudicator erred in deducting his post-dismissal UBER earnings from the damages award because that income could not be properly characterized as mitigation earnings. On the other hand, CIBC argued that the UBER earnings were neither minimal nor supplemental, and were instead earned in substitution of his former income at CIBC.

The Federal Court agreed with Mr. Dengedza. They relied on the Ontario Court of Appeal’s reasoning in Brake v. PJ-M2R Restaurant Inc., where it was explained that:

“… if an employee has committed herself to full-time employment with one employer, but her employment contract permits for simultaneous employment with another employer, and the first employer terminates her without notice, any income from the second employer that she could have earned while continuing with the first is not deductible from her damages…”

Furthermore, Justice Feldman, in her minority concurring decision in the same Ontario Court of Appeal decision, argued that income earned from a substantially inferior position should not be deducted from damages:

“… if she can only find a position that is not comparable in either salary or responsibility, she is entitled to turn it down, and if she does, the amount she could have earned is not deducted from her damages. … It follows, in my view, that where a wrongfully dismissed employee is effectively forced to accept a much inferior position because no comparable position is available, the amount she earns in that position is not mitigation of damages and need not be deducted from the amount the employer must pay.”

The adjudicator in Mr. Dengedza’s case considered his post-dismissal UBER earnings sufficiently high to constitute replacement or substitute income. However, according to the Federal Court, this was a “somewhat arbitrary finding.” The adjudicator did not consider whether Mr. Dengedza, in earning his post-dismissal UBER income, had to work harder or longer than he would have needed to at CIBC in order to make the same “sufficiently high” figure. It is difficult, the Federal Court said, to see how working more hours in lesser paying positions can serve as a straight dollar for dollar substitute for the amount that would have been earned, in fewer hours, with the original employer.

As a result, the Federal Court held that the adjudicator’s failure to assess whether Mr. Dengedza’s post-employment UBER income was “fairly substituted and deducted as mitigation earnings, on a dollar for dollar basis with his CIBC earnings” rendered that part of the decision unreasonable. Therefore, Mr. Dengedza’s UBER income should not be deducted from his award of damages.

New CIRB Decision Comments on Manager Exception to Unjust Dismissal

by Stacey R. Ball| January 27, 2022August 13, 2023 | Employment Law| | General

The Canadian Industrial Relations Board has released new decisions concerning the “managerial exception” found in section 167(3) of the Canada Labour Code – a provision which excludes “Managers” from the Code’s unjust dismissal regime. This decision follows the Board’s decision in Saunders v WestJet, which was the focus of an earlier blog post concerning the managerial exception.

This blog post will discuss one of the Board’s recent decisions: Jerry Peter v Ditidaht First Nation.

Background Facts

Mr. Peter worked as a housing manager with the Ditidaht First Nation, his employer. He had been in this position since October, 2007, and was terminated on July 18, 2019. On October 7, 2019, Mr. Peter filed a complaint of unjust dismissal. In response, his employer raised a preliminary objection: Mr. Peter was a manager, and therefore was prohibited from making this unjust dismissal complaint.

The Board was therefore tasked with determining whether or not Mr. Peter was a manager under the Code. Ultimately, they decided he was not a manager within the meaning of section 167(3) of the Code. How did they reach this decision?

Managerial Status and Unjust Dismissal

Section 167(3) of the Code provides: “Division XIV does not apply to or in respect of employees who are managers.” Division XIV contains the provisions dealing with unjust dismissals, and therefore employees who are managers are excluded from the unjust dismissal regime and cannot bring such complaints. However, the issue is that the word “manager” is not defined by the Code. The Board must interpret the meaning of the word based on jurisprudence. Fortunately, the Board already has interpreted the word “manager”: they did so in their Saunders decision. In Saunders, the Board noted that a narrow interpretation of the managerial exclusion reflected Parliament’s intent and objective to exclude as few people as possible from the Code’s protection. They noted further that, generally speaking, the term “manager” is defined as an individual who is an administrator having the power of independent action, autonomy and discretion.

Was Mr. Peter a Manager?

With this interpretation in mind, the Board analyzed Mr. Peter’s role within his employer’s organization, looking specifically at the nature of the work and duties performed by Mr. Peter, rather than at his position title or rank. Although Mr. Peter worked as a housing “manager”, this is far from determinative.

Mr. Peter’s responsibilities and duties included, among other things:

assisting with manual labour;
working with the head contractor for maintenance and repairs;
providing contractors for maintenance and construction;
assessing and reporting on the conditions of the properties;
identifying and prioritizing maintenance and repair work; and
accounting and bookkeeping duties, such as authorizing purchase orders, monitoring accounts payable/receivable and replacing reserve funds.

The employer also argued that Mr. Peter had final decision-making authority regarding hiring, firing, disciplining and promoting employees. He had signing authority to enter into employment contracts. He was responsible for preparing budgets. It was therefore clear to the Board that Mr. Peter did have some administrative authority. However, the question is not whether there was an administrative component to his role, but whether or not he exercised the degree of independent action, autonomy and discretion necessary to be a manager under the Code.

In Saunders, the Board held that a manager under the Code must exercise a significant degree of autonomy and discretion in decision making regarding matters of policy and overall direction (i.e., not routine issues). This involves having the authority to do more than just make recommendations.

In deciding whether Mr. Peter was a manager, the Board must look at the totality of the evidence. Yes, Mr. Peter had employees reporting to him. He had the authority to hire and fire employees, to discipline and to approve leaves of absence. He prepared the budget for the housing department. Nevertheless, a “substantial proportion” of his duties were operational tasks related to the maintenance, repair and rentals of the employer’s housing. These tasks cannot be said to be administrative.

Although Mr. Peter clearly had some managerial duties, the Board did not believe he exercised the “significant authority, independence and discretion in his functions that is required in order to be considered a manager under section 167(3) of the Code.” Therefore, the employer’s preliminary objection to the Board’s jurisdiction was dismissed.

Just Cause for Dismissal, According to the Saskatchewan Court of Appeal

by Stacey R. Ball| January 25, 2022August 13, 2023 | Cause For Dismissal| | General

In a recently released decision, the Saskatchewan Court of Appeal was tasked with determining whether or not an employer, the Saskatchewan Indian Gaming Authority Inc., had just cause to terminate an employee by the name of Mr. Thomas. In answering this question, the Court of Appeal provided a helpful outline of the legal principles governing just cause terminations.

Why Was Mr. Thomas Fired?

In the summer of 2018, Mr. Thomas was one of three candidates for a promotion to a management position with the employer. By this time, he had already been with the employer for eight years. Unfortunately for Mr. Thomas, he was not selected for the promotion. It went to another candidate – a woman. Upon hearing this news, Mr. Thomas allegedly became “angry and aggressive.” He accused his superior of being a racist and argued that he would have had a better chance of being promoted if he had “cut his own balls off.” In his opinion, the employer’s explanations as to why he was not selected were “bullshit.” The entire ordeal left Mr. Thomas’ superior “quite shaken up” and fearful that Mr. Thomas would follow him to his home.

Mr. Thomas was ultimately fired from his employment on October 22, 2018 with cause, twelve days after his angry outburst.

Trial Judge: Just Cause for Termination

Mr. Thomas disagreed with the decision and filed a Statement of Claim with the Court of Queen’s Bench on November 19, 2021. His claim was dismissed. According to the trial judge, the employer had just cause to dismiss him as a result of the meeting he had with his superior. During that meeting, the trial judge found that Mr. Thomas had “engaged in misconduct that is incompatible with the fundamental terms of the employment relationship.” Mr. Thomas was found to have been insubordinate by threatening and belittling his superior. His conduct destroyed the capacity for he and his employer to trust one another and to work together, two aspects that are fundamental to continued employment. In the end, the employer had just cause to terminate Mr. Thomas without notice or severance pay.

On Appeal: Termination Upheld

The Saskatchewan Court of Appeal was tasked with deciding whether or not the trial judge had erred in finding there had been just cause to terminate Mr. Thomas. In doing so, the Court provided a very useful summarization of the law surrounding just cause. They raised several points, which I will summarize here:

1) Determining whether an employee’s conduct amounts to just cause for dismissal involves a contextual analysis with an eye to proportionality;
2) The key question is whether, in the circumstances, the behavior of the employee was such that the employment relationship could no longer viably exist;
3) Dismissal is warranted when the misconduct is sufficiently serious that it strikes at the heart of the employment relationship;
4) Whether misconduct amounts to just cause for dismissal is a question of mixed fact and law;
5) The particular label attached to the category of misconduct (i.e., whether it be characterized as insubordination or insolence) does not govern the determination; and
6) The applicable standard of review is one of palpable and overriding error, unless an extricable error of law or principle is identified.

In applying these principles to Mr. Thomas’ termination, the Court of Appeal found that the trial judge had made no error in their determination, other than that they likely should have said Mr. Thomas was insolent rather than insubordinate. Nevertheless, the trial judge “kept his focus in the right place, namely, the seriousness of the misconduct and its effect on the continuing viability of the employment relationship.” Therefore, the Court dismissed Mr. Thomas’ appeal and upheld the trial judge’s determination that he had been dismissed for just cause.

Age Isn’t Everything: 61-Year-Old Gets 2 Months Notice

by Stacey R. Ball| January 23, 2022August 13, 2023 | Employment Law| | General

We often think of an employee’s old age as being a very commanding consideration in the determination of reasonable notice periods. After all, it is often more difficult for older employees to find new work, not to mention the stress of having to start over somewhere new late in one’s life. However, in Flack v. Whiteoak Ford Lincoln Sales Limited, a recent decision of the Ontario Superior Court, we see that old age does not always guarantee a lengthy period of notice.

Assessing Reasonable Notice

In determining the proper amount of reasonable notice, the Court turned to the typical test set out in Bardal v. The Globe & Mail. There, it was acknowledged that a determination of reasonable notice must always be decided with reference to each particular case, and considering a number of factors including not only an employee’s age but also their length of service, the character of employment, and the availability of similar employment. Although it is true that like cases should be treated alike, there are often good reasons for distinguishing between similar cases such as to arrive at different conclusions. The Bardal factors are not exhaustive, and the weight allocated to each may vary.

In this case, the employee at issue was an older employee, being 61 years’ old at the time of his termination. However, he had only been with the employer for 9 months, meaning his length of service was relatively short. He was working as a Finance Manager at the employer’s car dealership, but was responsible for selling financial products as opposed to the cars. His salary in this position was $156,000 per annum (although he worked less than a year). These are the factors the Court had to consider in determining reasonable notice, although his age and length of service were perhaps more central than any other factors.

Length of Service

The employee, aware that his 9 months of service was a rather short period of time, attempted to argue before the Court that short service employees have, in recent years, attracted lengthier notice periods. Unfortunately, the Court disagreed. In the Court’s view, an employee’s length of service indicated the degree of investment employer and employee have made to each other. The Court noted that the employee, prior to working with the defendant employer, had three other positions of a relatively short duration. This appeared to support the employer’s assertion that their industry is characterized by a fluid job market, where turnover occurs relatively frequently. In cases such as this, where the employee’s short length of service suggests low investment in the employer, the employer will have less of a responsibility to assist the employee while they search for alternative employment.

The Court noted that the employee was not enticed away from a long-term employer, or from a position where he enjoyed significant job security. If that had been the case, then the investment the employee had made would have been greater, and thus the employer would have owed the employee more. This was not the case here. His length of service, therefore, favoured a shorter period of notice.

Age of the Employee

Could the employee’s short length of service be offset by his more senior age? According to the Court:

“It cannot be said that older employees are for that reason alone entitled to a greater notice period than younger employees. Indeed, there are very strong policy reasons that would militate against such a principle. Such a principle would quickly become a self-fulfilling prophecy. If hiring older employees brings along greater risk and greater commitment to a potential employer, the rational employer will discount applications from older employees in favour of younger ones unless other advantages outweigh that additional risk.” (emphasis added).

Therefore, the simple fact that an employee is older will not guarantee them a longer notice period. Even when considering the age of the employee, you must evaluate the weight to be given to that factor on a case-by-case basis. Here, the employee’s age was not prohibitive of his reemployment. For that reason, his age did not automatically attract a greater notice period because it did not make it more difficult for him to secure alternative employment.

Mandatory Vaccine Policy Does Not “Force” Employees to be Vaccinated, Says Federal Court

by Stacey R. Ball| January 21, 2022August 13, 2023 | General

In a recent decision, the Federal Court refused to grant an interlocutory injunction against a COVID-19 vaccination policy. The Applicants seeking the injunction were employees of the Government of Canada who refused to be vaccinated for a multiplicity of reasons. In their view, the mandatory vaccine policy infringed their rights at common law and under the Canadian Charter of Rights and Freedoms.

The Vaccination Policy

The vaccine policy in question was the “Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police.” According to the Policy, failure or refusal to be vaccinated in accordance with the policy would result in administrative leave without pay or even termination. However, the Policy does provide for some accommodation, but only to those who are “unable to be fully vaccinated based on a certified medical contraindication, religion, or another prohibited ground of discrimination as defined under the Canadian Human Rights Act …”. Therefore, employees who simply do not wish to be vaccinated are not entitled to accommodation, as this would not amount to a prohibited ground of discrimination as defined under the Canadian Human Rights Act.

Should the Injunction be Granted?

Ultimately, the Federal Court declined to grant an injunction against the vaccination policy. To begin with, the Court did not believe they should exercise their residual discretion to intervene in a labour dispute that is barred by s. 236 of the Federal Public Sector Labour Relations Act. Instead, the employees should have pursued their individual grievances through that Act.

Nevertheless, the Federal Court went on to determine whether or not their refusal to grant an injunction against the Policy would result in irreparable harm to the Applicants that could not be compensated for in damages. According to the Applicants, this is not just a case about losing employment, but rather about preserving their “right to refuse medical treatment, without the threat of financial reprisal, stigma, and social isolation.”

In the Federal Court’s view, this mischaracterizes the harm at issue. According to the Court, the harm the Applicants may suffer, in reality, is being placed on unpaid leave or terminated if they refuse the vaccine. Notably, the Court said:

“They are not being forced to get vaccinated; they are being forced to choose between getting vaccinated and continuing to have an income on the one hand, or remaining unvaccinated and losing their income on the other […] Put simply, a vaccine mandate does not cause irreparable harm because it does not force vaccination.”

Although it may seem as though mandatory vaccine policies at workforce employees to receive vaccines, they are not truly being forced because they retain throughout the ability to choose between the vaccine and their employment. The loss of employment, while a serious consequence, is reparable harm that can be compensated in monetary damages. It does not itself justify the imposition of an injunction such as that sought in this case.

As a result, the motion for an injunction against the vaccine policy was refused.

Strong Start to 2022 for COVID-19 Vaccine-Related Terminations

by Stacey R. Ball| January 19, 2022August 13, 2023 | Employee or Dependent Contractor| | Employment Law

Throughout the previous year, we have seen many workplaces adopt controversial COVID-19 vaccine mandates. To some, it is a necessary measure to protect the workforce and the Canadian public at large. To others, it is a violation of bodily autonomy and human rights. Given this divide, it is unsurprising that many individuals have refused to become vaccinated notwithstanding the risk to their employment.

As of the first week of the New Year 2022, we have already begun to see the effects.

City of Toronto Terminations

On Wednesday, January 5th, the City of Toronto announced that they had fired 461 city employees for their refusal to receive the COVID-19 vaccine. These 461 employees either had not received any COVID-19 vaccine, or did not report their vaccination status as required (perhaps for perceived privacy reasons, although the feasibility of this argument appears shaky in light of a recent labour arbitration decision). Notably, approximately 98.6% of the City’s employees (representing approximately 32,478 active employees) did receive their vaccinations and were in compliance with the mandate, meaning that the 461 terminations represented a very small fraction of the City’s workforce.

As for employees who remain partially vaccinated, their future with the City remains uncertain. There are currently 248 City employees who have only received their first shot. According to the City’s statement:

“Starting this week, those 248 employees with one dose will have a vaccination status meeting with their manager and, if applicable, their union representative. If at that meeting the employee is found to still not have two doses of a COVID-19 vaccine, employment could be terminated that day. Consideration will be given to employees who have an appointment booked for their second dose.”

It appears, therefore, that partially vaccinated employees must act quickly to secure their second dose, otherwise they may find themselves terminated as well.

There are also 37 City employees on temporary leave awaiting a decision on accommodation requests. These likely are accommodations requested under the Ontario Human Rights Code, R.S.O. 1990 and would include requests such as medical or religious accommodation. Interestingly, the Ontario Human Rights Commission released a statement in September, 2021, suggesting that personal beliefs relating to vaccines is not a protected ground under the Human Rights Code and will not protect employees from termination.

To conclude, I will leave you with a quote from the City Manager, Chris Murray:

“With the rapid increase in COVID-19 cases across the city, driven by the Omicron variant, it is good to know the City’s employees are doing all they can to protect each other and the people of Toronto.”

Toronto Police Officers Placed on “Indefinite” Unpaid Leave

While the City proceeds to terminate over 400 employees, it appears as though they may not be terminating their police who refuse vaccines. Instead, Toronto police who refuse vaccination will remain on indefinite unpaid leave. When they become fully vaccinated and disclose their updated vaccination status, they will be able to return to work.

Lawvin Hadisi, a spokesperson for Mayor John Tory, had this to say:

“Recognizing that much of employee relations when it comes to policing, including terminations, is governed and bound by the provincial Police Services Act, the Mayor is confident Chief Ramer is doing all he can to protect the health and safety of all members of the police service and encourage members to get vaccinated.”

What Makes a Great Law Firm Website in 2021?

by Stacey R. Ball| January 19, 2022August 13, 2023 | General

If there’s one thing that doesn’t stay still, it’s technology. Ever wondered what makes a great law firm website in 2021? With new trends coming in every year, it’s not surprising that many site owners are looking at ways to remain ahead of their competition. We asked the team at dNovo Group to break down some of the noteworthy features of a high-performing law firm website. This article will look at these key features that will help your law firm website dominate in 2021 and beyond.

Quick loading pages

Did you know that 50% of your website visitors will leave the page if it’s not fully loaded within 10 seconds? In fact, patience is less among desktop users who abandon a site that takes more than 3 seconds to load. Some commonly known culprits of slow loading pages are heavy images and videos on the site or unnecessary elements like flash players. Use a page speed tool to always keep track of your loading times and take steps to optimize your site speed.

Easy to read and navigate

One rule of thumb for any website, not just legal ones, is to ensure that every visitor can read and navigate – this creates a positive image for your brand. Simple things like making sure your contrast text and background have high contrast, carefully selecting your font size, type & weight and making good use of whitespace can enhance the page’s readability.

Interactivity features

Does your law firm website keep users engaged? Law firms haven’t invested in interactive website features, unlike other professional industries like real estate industries, banks and insurance firms. Your website should allow users to carry out an action of some sort. It could be as simple as booking an appointment with one of the partners online or an interactive piece of content that provides unique information to every user. Interactive content on your law firm website will result in a longer time spent on the page and reduce the bounce rate compared to static content. In fact, research has shown that sites with interactive content get higher conversions than those with passive content.

Minimalist look

Invest in a law firm website with a simplistic look. A clean, minimalist design is especially important for websites that are content-heavy. Make use of whitespace and a flat design that allows users to scroll through your content without feeling distracted. In fact, the minimalistic web design has become a trend for law firm websites, which has made many users expect this when they land on different law firm pages. If your website was done more than 3 years back, consider hiring the experts at dNovo for a redesign project to revamp its look and improve functionality.

Mobile First

The first rule of thumb in making your website search-worthy is investing in a mobile-first design. Your site’s pages should adjust to remain just as interactive when accessing them with a mobile device. Google has a mobile friendly test that allows you to check how mobile-first your web pages are.

Sokoloff Lawyers Successful Injunction Against Former Employee

In a recent decision of the Ontario Superior Court, popular personal injury law firm Sokoloff Lawyers won an injunction against six former employees who had been working out of the firm’s Brampton office. Notably, Savannah Chorney, the leading lawyer at the Brampton office, had plans to start her own firm and intended to work out of the very same office location.

The Takeover of the Brampton Office

According to the Court, “Ms. Chorney conducted a planned and deliberate operation to take over the Brampton office.” On October 8th, 2021, she closed the office early, changed the locks on the doors, had the Sokoloff Lawyers sign removed from the building, and instructed her employees to leave their computers on without password protection. Ms. Chorney and her team downloaded client files and precedents from the computers.

It was three days after this takeover, on October 11th, 2021, that Ms. Chorney advised her employer that she was resigning and would be starting her own practice out of the Brampton office.

On October 12th, Sokoloff Lawyers began receiving client file transfer authorizations. A number of Sokoloff Lawyers clients had decided to transfer to Ms. Chorney’s new practice. This occurred suspiciously quickly. According to Sokoloff Lawyers, this indicated that Ms. Chorney had started contacting clients before she had resigned from the firm. At the time of the Court’s decision, over 200 clients had provided authorizations to transfer. The Court ultimately agreed with Sokoloff Lawyers that Ms. Chorney had contacted clients about the transfer of filed before resigning from the firm.

Granting an Interlocutory Injunction

In deciding whether to grant an interlocutory injunction, such as the one requested in this case by Sokoloff Lawyers, a Court must apply the test laid out by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General). There are three parts:

There is a serious issue to be tried;
The moving party will suffer irreparable harm if the relief is not granted; and,
The balance of convenience favours granting the injunction.

Here, the Court easily found that there were serious issues to be tried. Among them was the claim that Ms. Chorney had breached her good faith and fiduciary duties to Sokoloff Lawyers.

Secondly, on the issue of irreparable harm, the Court was of the view that this factor was less important given the strength of the plaintiff’s case. Nevertheless, the Court held it would be unfair and unreasonable for Ms. Chorney and the defendants to force Sokoloff Lawyers to carry the cost of disbursements on the files that had been transferred. Effectively, this would result in Sokoloff Lawyers financing their direct competitor. The unfair competition that would be result would indeed be difficult to calculate.

Finally, in considering the balance of convenience, the Court was tasked with deciding which of the two parties would suffer the greater harm from either granting or refusing the injunction pending a determination on the merits. The Court concluded that the balance of convenience favored granting the injunction. Requiring Ms. Chorney and the defendants to pay the cost of disbursements at the time of the file transfers would level the playing field and prevent Sokoloff Lawyers from having to carry the cost of both its files and the files handled by its direct competitor, Ms. Chorney.

Conclusion

Ultimately, all three aspects of the test for an interlocutory injunction were met. The Court ordered that, among other things:

The Defendants refrain from initiating communication with or soliciting any current clients of Sokoloff Lawyers;
The Plaintiffs refrain from initiating communication or soliciting clients who have delivered file transfer authorizations;
The Defendants reimburse Sokoloff Lawyers all outstanding disbursements on transferred files within five months of Sokoloff Lawyers delivering a full accounting of claimed disbursements to the Defendants;
The legal fees associated with each transferred file be divided 25% to Ms. Chorney, 25% to Sokoloff Lawyers, and 50% to trust, with the entitlement of either party to this amount being determined later by consent of the parties or by an order of the Court.

Constructive Dismissal Resulting in High Damage Award Upheld by Ontario Court of Appeal

McGuinty v. 1845035 Ontario Inc. (McGuinty Funeral Home) is a case unlike many others, in the sense that it involved a particularly large award of wrongful dismissal damages: $1,274,173.83. There are not many scenarios in the context of employment law which could support such an immense award of damages. So alarmingly high was the award that the defendants actually appealed the ruling on the grounds that there had been an error in calculating the damages (among other grounds of appeal).

Ultimately, the Ontario Court of Appeal upheld the trial judge’s decision and the high award of damages.

Factual Background

The employee in this case was formerly the owner of the McGuinty Funeral Home – a family business that had originated with his grandfather. This was the only business the employee had ever known. At the age of 55, he made the difficult decision to sell the business. The sale agreement provided that the employee would remain with the funeral home for an addition ten years as a General Manager. Thus, the former owner became an employee of the company that bought the business.

Despite this agreement, there was a serious lack of trust between the new employer and the employee. The new employer changed the locks to the funeral home under the belief that the employee was throwing away funeral home files without authorization. Furthermore, the employer took away the employee’s use of the company vehicle, which had been a term of their agreement.

Eventually, the employee commenced a medical leave as set out in a doctor’s note. The employee was clear that during this medical leave, he would not be stepping down from his posiiton. During that leave, the employer removed the employee’s desk and pictures of the employee’s family. The employee also identified a number of unresolved concerns: unpaid commissions and wrongful deductions from his pay.

In analyzing these facts, the trial judge found that the employee had been constructively dismissed. The trial judge made five findings of fact, holding that the employer:

Improperly terminated the employee’s use of his company vehicle;
Recruited a subordinate to track the employee’s time at work, without notifying him;
Failed to pay the employee commissions to which he was entitled;
Removed the employee’s photograph from the funeral home; and,
Changed the locks to the funeral home without notice or explanation.

As a consequence, the trial judge found the employee was constructively dismissed. The employee was awarded the controversial amount of $1,274,173.83.

No Error in Calculating Damages

The employer subsequently took the position that the trial judge had erred in their calculation of damages. The employer proposed three arguments, all of which were ultimately rejected by the Ontario Court of Appeal. There was, in their opinion, no basis upon which to interfere with the trial judge’s decision. As a result, the large award of damages was upheld.

This, obviously, was a very welcome decision for the employee – and a very costly lesson for the employer.