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Top Ontario employment law cases of 2019

Friday, January 17, 2020 @ 1:04 PM | By Inna Koldorf

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Inna Koldorf %>
Inna Koldorf
Last year was a year full of changes in employment law. Aside from the many legislative changes on both the provincial and federal fronts, our courts (and some administrative tribunals) created new law, affirmed existing legal concepts and overturned others. With 2019 firmly behind us, we reviewed the top cases of 2019 and narrowed our selection of the top five cases to the following, in no particular order of importance. Two cases will be addressed in this first part of a two-part series, three others in part two.

1. Constructive dismissal

Employees’ entitlement to chronic mental stress benefits under the WSIB regime came into effect on Jan. 1, 2018. Under the Workplace Safety and Insurance Act, 1997 an employee’s entitlement to WSIB benefits is in lieu of all rights of action against the employer for the same injury. It did not take long after the chronic mental stress benefits entitlement came into effect for an employer to test whether this new category of benefits would help employers stop harassment-based constructive dismissal claims in their tracks.

In Morningstar v. Hospitality Fallsview Holdings Inc. 2019 ONWSIAT 2324, the employee alleged that she was harassed and bullied because of a medical condition. She resigned and filed a constructive dismissal claim based on allegations of harassment, bullying and discrimination.

The employer filed a “right to sue” application with the Workers’ Safety and Insurance Appeals Tribunal (WSIAT), seeking an order that the employee’s constructive dismissal claim was statute-barred because the employee was entitled to chronic mental stress benefits with respect to the same injury on which she relied in her constructive dismissal claim.

The WSIAT agreed with the employer. It held that the constructive dismissal action was “inextricably linked” to the workplace injury of mental stress, the same injury which entitles the employee to WSIB benefits. As a result, the employee’s civil claim was statute-barred, even though the remedies she sought civilly were different from the benefits she was entitled to under the WSIB regime.

2. Dependent contractors

The concept of the dependent contractor, the worker who is not an employee but is still economically dependent on the employer, was clarified by the Court of Appeal in 2019. The plaintiff in Thurston v. Ontario (Children’s Lawyer) 2019 ONCA 640 was a sole practitioner lawyer who provided legal services to the Office of the Children’s Lawyer (OCL) by way of a series of fixed-term agreements over a 13-year period.

During that time she also maintaining an independent legal practice. When the last of the fixed-term agreements expired, the OCL did not renew the agreement. Over the years, the OCL billings accounted for an average of 40 per cent of the lawyer’s annual billings.

The lawyer filed a claim alleging that she was a dependent contractor and was therefore entitled to reasonable notice of the termination of her relationship with the OCL.

On a motion for summary judgment, the motion judge held that the plaintiff was a dependent contractor because of the permanence of her relationship with the OCL; the fact that the percentage of her total billings was generally trending upward; because she performed work integral to the OCL; and because the public perception was that she was an OCL lawyer. The plaintiff was therefore entitled to notice or payment in lieu of notice at the expiry of the last fixed-term agreement.

On appeal, the court held that the motion judge misapprehended the legal test in determining the lawyer’s status. The Court of Appeal noted that dependent contractors are dependent on the company because of complete or near-complete exclusivity with the company. This complete or near-complete exclusivity did not exist in Thurston.

In addition, the court noted that the lawyer’s contracts with the OCL required her to confirm that she did not work exclusively for it; the lawyer operated her own legal practice for the entire 13-year period; she was not guaranteed a minimum amount of work with the OCL; the OCL reserved the right to terminate the lawyer’s contract at any time without fault or liability; the lawyer had her own office, supplies and staff; and the lawyer’s work with the OCL did not constitute her main source of income during the 13-year period. The appeal was allowed, and the court dismissed the lawyer’s action.

This is the first half of a two-part series. Part two: Key employment law cases in 2019.

Inna Koldorf is a partner in Miller Thomson LLP’s labour and employment law group, where she advises employers on labour, employment and human rights issues.  

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