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Hi. I have some news.

As of April 1, 2019, I am no longer practicing in private practice. I have joined Canopy Growth Corporation in the position of Director, Legal (Litigation and Employment).

As a result of that change, Labour Pains, at least as you have come to know it, no longer exists. Over the past few months, I have been working to port some of the information contained on Labour Pains to a new blog, which I have called, “The House Work Blog.” It’s a Blog, about Work, by an in-House lawyer. “House Work.” The URL for that blog is thehouseworkblog.blogspot.com.

Labour Pains had over 400 posts. It was written over a period of almost exactly seven years. (Sean Bawden’s Law Blog for the Suddenly Unemployed, as it was then known, launched on April 1, 2012.) Given those numbers I have been unable to port all those posts. I will see what I can do; it’s going to take some time.

This blog has grown and changed over those seven years. I think it’s better now than it was then. For reasons that I still do not completely comprehend, many of you (some of whom I have never met) followed this blog. You retweeted it, commented on it, told others about it, for all of which I am grateful. It has, undeniably, enabled me to become who I am. I too have grown and changed over those seven years. I think for the better.

For those who (like me) like statistics, here are some facts and figures:

  • Sean Bawden’s Law Blog for the Suddenly Unemployed launched on April 1, 2012.
  • I joined Kelly Santini LLP on November 1, 2012, thanks, in no small part, to what the blog had already become.
  • The Law Blog for the Suddenly Unemployed became “Labour Pains” on February 1, 2014, to reflect the balance between employer and employee-side posts.
  • In that time, and to the extent that Google Analytics can be trusted, the blog was viewed about 500,000 times. It appreciated 1.2 million pageviews.
  • The most popular post, by far, was “Entitlement to Bereavement Leave in Ontario” (posted Aug 29, 2017 and 35,459 pageviews to date.) The next most popular post was “Dude, Where's my ROE?” (posted Sep 24, 2013, and 27,866 pageviews to date.) Third most popular was “Termination from Employment While on Disability Leave” (posted Jun 24, 2015, 20,446 pageviews.)
  • My post “Addicted to Love – Is an Affinity for Internet Pornography a Disability?” (Mar 14, 2015, 14,347 pageviews) is Labour Pain's fifth most popular post of all time.

I have been thinking about this post for weeks. I have been looking at it for hours. I am not quite sure what else to say, which is ironic.

Thank you for supporting me. Thank you for supporting this work. This is not goodbye, and one never knows exactly what the future will hold.

For now, please enjoy whatever The House Work Blog becomes.

Here’s to future growth.

Sean Bawden

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Does the inability to reliably test for cannabis create an undue hardship for employers with respect to their duty to accommodate the use of medical marijuana?

In International Brotherhood of Electrical Workers, Local 1620 v. Lower Churchill Transmission Construction Employers' Association Inc., 2019 NLSC 48 (CanLII), a judge of the Supreme Court of Newfoundland and Labrador found to be reasonable a labour arbitrator’s earlier decision that it did.

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“A fiduciary who knows about wrongdoing committed against the beneficiary has a duty to tell the beneficiary.” That important lesson was the key takeaway from a decision of the Court of Appeal for Ontario upholding a termination of employment for just cause: Dunsmuir v. Royal Group, Inc., 2018 ONCA 773 (CanLII)

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Does a termination clause that only allows an employer to terminate an employee without notice for “just cause” comply with the provisions of the Ontario Employment Standards Act, 2000?

In the case of Khashaba v. Procom Consultants Group Ltd., 2018 ONSC 7617, the Honourable Justice Carole J. Brown of the Ontario Superior Court of Justice held that it does not.

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Should the payroll of employees outside Ontario be included in the calculation of the payroll under section 64 of the Employment Standards Act, 2000?

According to a decision of the Ontario Labour Relations Board, released late in 2018, Doug Hawkes v. Max Aicher (North America) Limited, 2018 CanLII 125999 (ON LRB), it is only Ontario-based employment and operations that is captured by section 3 and therefore section 64 of the ESA.

This decision is a victory for large, multijurisdictional employers with more limited operations in Ontario.

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Will an arbitration clause in independent contractor agreement always be found to be illegal, if, notwithstanding that to which the parties ostensibly agreed, the worker can later allege that he is, in fact, an “employee”?

A cursory reading of the Court of Appeal for Ontario’s decision in Heller v. Uber Technologies Inc., 2019 ONCA 1 might lead those who do not practice in the area of employment law to conclude that the answer is “yes.”

I might not be so sure.

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Can a company, which ostensibly deems all of its workers to be “independent contractors”, require those workers to arbitrate their issues, including the issue of whether or not they are, in fact, “employees”? Or, is such an agreement an attempt to contract out of the protections afforded to employees by virtue of the Employment Standards Act, 2000? In addition to, or in the alternative to, such a question, is such a clause “unconscionable”?

In the fist decision issued by the Court of Appeal for Ontario in 2019, Heller v. Uber Technologies Inc., 2019 ONCA 1, Ontario’s top court found that: (a) Uber’s arbitration clause amounts to an illegal contracting out of an employment standard; and (b) such clause is also unconscionable at common law.

Why does one think this ride isn’t over yet?

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Can an employee extinguish his statutory right to severance pay by way of a full and final release signed in the context of a share sale?

According to a 2018 decision of the Court of Appeal for Ontario, Kerzner v. American Iron & Metal Company Inc., 2018 ONCA 989 (CanLII), the answer to that question is a resounding “no.”

The case has real implications for those who practice employment law in the context of the sale of a business.

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Is the sole requirement to rebut the common law presumption of termination only upon reasonable notice that the contractual termination clause comply with the ESA, or is something else required?

In a decision released December 6, 2018, Movati Athletic (Group) Inc. v. Bergeron, 2018 ONSC 7258 (CanLII), the Ontario Divisional Court (Swinton, Thorburn, and Copeland JJ.) upheld an earlier decision of the Honourable Justice O’Bonsawin, 2018 ONSC 885, about which I blogged in my post Lack of Clear Warning Voids Termination Provision, which held something more is required.

In addition to upholding Justice O’Bonsawin’s decision, the Divisional Court provided some very clear, point-by-point analysis on what it takes for a contractual termination clause to sufficiently, and legally, rebut that common law presumption.

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