How does the current recession effect wrongful dismissal and employee rights for non-union employees?

If you belong to a union, you must go through your union; however, you may still want to consult with a lawyer.

Have you been dismissed or do you feel that you are in danger of being dismissed? Have you received “warning” letters from your employer that you don't agree with? Is your job changing? i.e. work load or nature of your work? Termination of employment is disturbing and stressful and an improper termination can add to the stress. The recession has brought more layoffs due to companies cutting costs. Some are going bankrupt. The modern workplace is often an important cornerstone in one's emotional and social well-being. Along with the financial upheaval and hardship that often flows from the loss of a job, an improper termination of employment may also be a source of great personal anxiety, discomfort and distress.

Is your employer alleging that they can terminate you for cause? In very rare cases an employee may be terminated for cause without any prior notice to the employee and without compensation; however; these are difficult to prove. Examples would include blatant theft or fraud.

If you have been wrongfully dismissed and your employer has made you an offer, consider whether or not the offer is sufficient and have the offer reviewed before signing. As part of this offer, you will receive reasonable notice or payment in lieu of. But that raises the question:

How is "reasonable notice" Determined?

Reasonable notice is determined with reference to the facts of each particular case, having regard to the character of the employment, the length of service of the employee, the age of the employee and the availability of similar employment, the experience, training and qualification of the employee and the circumstances of the employee's hiring and termination. Other considerations include: whether the employee was induced to take the job, whether there is an employment agreement with a clause that deals with reasonable notice in the event of termination, whether or not there were any human rights violations, employment standards act, and the employee's duty to mitigate. Another relevant factor in considering the appropriate notice period lies in decisions made by courts in analogous circumstances.

The Effect of the Recession:

One of the factors in determining reasonable notice periods is the availability of similar employment. The recession is either eliminating some types of jobs in Canada such as manufacturing jobs or making the time to obtain similar jobs longer. In the recent case of Eugene Moldovanyi v. Canac Kitchens Ltd., a division of Kohler Ltd, the Justice D. M. Brown considered this factor:“Availability of similar employment: Mr. Moldovanyi has looked for new permanent work, without success. Times are tough in the first quarter of 2009. Major layoffs by manufacturing companies are reported daily in the business media. I have no doubt that Mr. Moldovanyi is attempting to find replacement work in a very poor employment market;” in granting him 14 months reasonable notice

If you have been asked to sign an employment agreement or offer, have a concern regarding your employment or have been wrongfully dismissed, take an initial consultation with George C.Eyre by telephone at (416) 362-0495 and by email without fee or obligation

© 2009 George C. Eyre and George C. Eyre, Law Offices This article is intended for information purposes only and is not a substitute for legal advice and may not be relied on as such. You are advised to consult with a lawyer for advice regarding your specific case.

• Toronto based i4i has won a patent jury verdict in Texas, U.S.A. against Microsoft in the amount of $ 200M U.S. for willful patent infringement. The patent was for manipulating complex data in electronic documents and was awarded in 1998 to i4i. E-mails presented at the trial provided evidence that giant Microsoft was aware of i4i's software and inserted it into Word 2007 and Word 2003. I4i is seeking an injunction and treble damages. Microsoft says that it will appeal and that the patent is invalid. Stay tuned to see how it is resolved.
• The Independent Contracting Legal, Tax and Insurance Issues Video Seminar Presented by George C. Eyre B. Math, M. Eng, LLB, Bob Novosolec B.Admin. C.A. and Joe McCabe is now available online by clicking here [New Website]: Independent Contracting Legal, Tax and Insurance issues!!
• Canada's National DO NOT CALL LIST is expected to be fully in force by September. Core Rule: Telemarketers may not call numbers on National DNCL without express consent: Consumers are to Register. There are a number of exemptions such as Registered Charities and Existing Business Relationships. Telemarketers need to proceed quickly to comply with these rules which are expected to be fully in force by September 30, 2008. To view the presentation given by George C. Eyre at Managing Privacy Compliance Federated Press April 23 & 23, 2008, click here. DO NOT CALL LIST PRESENTATION AT MANAGING PRIVACY COMPLIANCE!!
• The Canadian government has drafted guidelines that would allow it to effectively censor film and television production by denying tax credits to projects deemed offensive which could kill the productions for any film or television show that the government deems offensive or not in the public's best interest. Bill C-10 is currently at third reading in the Senate.
• The CRTC, on April 12, 2006, decided that television content that is broadcast through cellular networks is exempt from its regulations.
• In Nashville, two men were indicted for violating U.S. copyright laws by posting music by country singer, Ryan Adams on a web site before the music was released to the public.
• Canada's new copyright legislation was expected to be introduced in December 2007 but was delayed. Was the delay was due to opposition expressed in the media starting on the Internet? The controversy centers on the claim that the proposed legislation will follow the American Digital Digital Millennium Copyright Act (DMCA), passed ten years ago which contains tough measures for copying digital media and would catch such common practices as sharing music and video files, television time shifting, copying media from one media such as a DVD to MP3 plys or even backing up computers. Software developers are concerned that the proposed legislation could stifle competition without improving piracy. Many think that the protective measures in the DMCA are excessive and that it is possible to have a more balanced approach. In the World Intellectual Property Organization's (WIPO) Internet Treaties that Canada signed in 1997, there are fair dealing provisions that were largely ignored in the U.S. legislation. It has to be taken into consideration that we pay levies on blank media that is send to copyright collectives. We look forward to broad consultation from all interested parties - have your say as well!
• The Ontario Court of Appeal created a "new and distinctive" defence for journalists reporting on matters of public significance; namely, the "public interest responsible journalism defence." In a major breakthrough for freedom of the press in Canada, the Court held that if a media outlet can show that it made every attempt to be fair and confirm that the contents of an article are true, it has a defence to defamation claim even if it got some of its facts wrong. The Court of Appeal ( in relying upon the Charter of Rights ) held that its traditional approach to the law of defamation which favours the protection of ones reputation over freedom of expression is out of sync in a country such as Canada that values freedom of expression. For a copy of the decision, click sources & links, CANLII - Ontario - Court of Appeal - Cusson v. Quan Nov. 13, 2007 Docket C45365.
• Copyright Board Approves Royalties for Online Music Downloads: On Friday March 16, 2007 On March 16, 2007, the Copyright Board of Canada ended a debate over what is fair compensation for copyright owners for downloading music over the Internet. The tariff provides applies retroactively from 2005 to 2007 that:
  • 7.9% of the price for songs distributed via permanent downloads must be provided to the copyright holder
  • For downloads provided via web subscription or on-demand streaming, the rates are 5.9% and 4.6% of the cost of a month's subscription, respectively.
  For a copy of the decision, to to Sources & Links on this site and click Copyright Board ( Canada) and click CMRRA/SODRAC Inc. (Online Music Services) for the Years 2005 to 2007
• Blogging is Journalism: NB Court: In the Queen v. Charles Joseph Leblanc, the Provincial Court of New Brunswick recognized blogging as a legitimate trade, and bloggers as legitimate members of the media. Further it held that , it was illegal for the arresting officer to remove Mr. Leblanc's digital camera, turn it on and delete pictures without a search warrant. The Court additionally found that the defendant, whom was never advised by the police that he would be arrested if he did certain things, was "simply plying his trade" along side other reporters ..." For the complete decision click Sources & Links in this web site and then CanLII - find the case in the NB section ( date of decision is November 24th, 2006) or by Docket: 05571102.
• The U.S. Court of Appeal found that major league baseball statistics were in the public domain. They were nothing more than facts and there was a strong public interest in keeping them in the public domain: C.B.C. Distribution and Marketing, Inc. v. Major League Baseball
• The Copyright Board of Canada held on October 18, 2007 that the Society of Composers, Authors and Music Publishers of Canada (SOCAN) are entitled to collect 3.1 per cent on the sale of a song purchased over the Internet. This would translate into approximately 3 cents for a song purchased for 99 cents over the Internet. To read the decision and for information on other rates, please click on Sources & Links and click on Copyright Board to find the decision, SOCAN Tariff 22.A (1996-2006) Internet - Online Music Services
• Dell: 1 Consumers: 0 The Supreme Court of Canada recently struck a blow to consumers by referring the case of dissatisfied customers to arbitration rather than certifying a class action law suit which would have made it easier for consumers to assert their rights. Dell Computer Corp. incorrectly offered its Axims computer for $ 89 and $ 118 on its web site ( when the actual prices were $ 379 and $ 549 ) and customers purchased computers on Dell's web site at these prices which Dell refused to honour. The Supreme Court upheld a clause on Dell's online agreement which requires dissatisfied customers to challenge companies through arbitration instead of through a class action. Some provinces such as Ontario and Quebec ( but not all ) have passed laws to prevent these types of clauses. See Dell Computer Corp. v. Union des consommateurs 2007 SCC 34. ( click on sources & links and CanLII )
• Will Safe-Harbour in the Digital Millennium Copyright Act of 1998 (DMCA) protect YouTube?: NBC Universal and Viacom Inc. have filed amicus briefs in support of a suit against YouTube which was filed last year for alleged copyright infringement; however, Goggle relies on the safe-harbour provisions in the Digital Millennium Act of 1998 which provides protection for Internet publishers since it removes offending materials once notified. The plaintiffs in this action claim that Youtube could use software to identify and remove offending copyright content.
• The Canadian government has blocked the CRTC from regulating VoIP ( voice over Internet protocol ) services. While the CRTC argues that regulation is necessary to foster competition in Internet phone regulation and to prevent smaller providers from disappearing, the government believes in free markets and wants to let consumers determine the winners and losers. For more information on the CRTC, click CRTC under Sources & Links on this site.
• The Supreme Court of Canada has ruled 5-4 that newspaper publishers are not entitled to reproduce in databases freelance articles acquired for publication in newspapers without compensating the freelance authors and obtaining their consent because the database reproduction was not a substantial part of the original newspapers. Newspaper publishers are entitled to reproduce staff written articles in databases and both freelance and staff written articles in CD-ROMs. The Court also held that only an exclusive licence must be in writing under the Copyright Act and hence ordered to trial the issue of whether an implied licence was given to reproduce freelance articles in the databases. : see Robertson v. Thomson Corp 2006 SCC 43 ( October 12, 2006 )- for the complete decision click Sources & Links in this web site and then CanLII - find the case in the Supreme Court of Canada section.
• A California appeals court held that online citizen journalists are entitled to the same legal protections ( i.e. in not disclosing sources ) as print journalists : Apple v. Technorati.

• The Canadian Government introduced an Act to amend the Copyright Act on June 20th, 2005.
  The highlights of the Act provide:
  (i)Copyright holders get the following new rights: (a) a reproduction right for performers; (b) new moral rights for performances, (c) the ability to control the first distribution of material in a tangible form; and the removal of some provisions allowing photographers some rights in commissioned photographs;
  (ii) the right of copyright holders to utilize protective rights management information and technological measures; 
  (iii) an amendment that revises the definition of telecommunication to the public to include making a work available to the public in a way that allows members of the public to access it through telecommunication from a place and at a time individually chosen by them;
  (iv) makes it illegal to circumvent or tamper with technological measures for the purpose of infringing copyright;
  (v) the copyright holder has the exclusive right to decide who is allowed access to their material which could extend to prohibit illegal peer-to-peer file sharing;
  (vi) Internet Service Providers (ISPs) are 
  (a) exempted from liability for simply providing Internet related services in the absence of actual knowledge of the copyright infringement;
  (b) required to implement a notice and notice system where the ISPs would be responsible for forwarding notices received from a rights holder that a subscriber is hosting or sharing copyrighted material to that subscriber;
  (c) must retain relevant information about the alleged infringement for a set period of time;
  (d) If the ISPs fails to comply, then they are liable for statutory damages.
  Although this controversial Act was scheduled to become law in Spring 2006, a federal election scheduled for January 23, 2006, has killed the Act; however, look for amendments to the Copyright Act to appear in 2006.

• In a recent case decided in November 2005, Autosurvey Inc. v. Prevost the Court held that where a litigant, on the advice of its solicitors, conducts an unauthorized act of search and seizure of another litigant's documents, including privileged and private communications with its solicitors without a court order and without procedural safeguards, the Court held not only that the solicitors be removed , but that there be a stay of the action. This case can be located at the CanLII link at the Sources & Links in this Site.

• Satellite Radio: On September 9, 2005, the Liberal government upheld the CRTC's decision to award three licences in the budding satellite radio market in spite of allegations that two of them were not offering enough Canadian content or French-language programming. There is concern that a reduction in Canadian content could result in damage to the relatively successful Canadian music recording industry.

• The United States Supreme Court held on June 27, 2005 in the peer-to-peer (P2P) software case, Metro-Goldwyn-Mayer v. Grokster Ltd. that Grokster was liable for the infringing acts of the users of its software because it distributed its software with the object of promoting its use to infringe software. Although the ruling is seen as a major victory for the entertainment and recording industries over unauthorized P2P file-sharing firms, many believe that it will do little to stem the flow of illegal downloads.
• BMG v. Jane Doe : In this case issued May 19, 2005 about whether an Internet Services Provider (ISP) must disclose the name of its clients who are accused of copyright infringement using P2P software, the Canadian Federal Court of Appeal gave BMG a limited right of disclosure by describing a rigorous test for ISP Disclosure of Users’ Identity of peer-to-peer Internet users accused of copyright infringement:
  The test involves establishing that:
  (a) the applicant shares some sort of relationship or connection with the third party against whom discovery is sought; and 
  (b) the third party is the only practicable source of information available. When granting the disclosure order, the Court will give further consideration to:
  (i) costs incurred by the respondents in assembling the information;
  (ii) whether the public interest outweighs the legitimate privacy concerns of the person(s) sought to be identified; 
  (iii) ensuring that privacy rights are invaded in the most minimal way; the length of delay between the time the request for the identities is made and the time the information is collected; and 
  (iv) whether the plaintiffs will potentially extract private information not related to copyright infringement in breach of privacy laws.
  Also, an order for disclosure should include specify the type of information to be disclosed and the manner in which it can be used.

  In a follow up motion to obtain the identities of the 29 users who identified themselves with pseudonyms, BMH was denied this information by the Federal Court of Appeal: " ... because of the age of the data and its consequent unreliability, the privacy interests of the 29 persons outweighed the public interest concern in favour of disclosure." "Ultimately the issue is whether the identity of persons who are alleged to infringe musical copyright can be revealed despite the fact that their right to privacy may be violated. Each side presents compelling arguments and the difficulty lies in reaching a balance between the competing interests."

• An independent contractor gets stung for one year's profits in the amount of $ 37,000 plus costs when an independent contractor acts directly for a major client of the computer technology services company's client. Although there was not a written contract that provided the usual non-competition and confidential clauses, the Court held for the services company because the independent contractor had breached his "duty of good faith" by billing the services company's clients directly without advising it and transferring a domain name. The factors that the court relied up include: evidence of contractual expectations and of a great deal of reliance by the services company upon the independent contractor: see TSP-Intl. v, Mills et al 74 O.R. (3d) 461 (Superior Court of Justice, Feb. 17, 2005) which can be accessed via the E-Laws link in Sources & Links. It shows the importance of having a written agreement reviewed by your lawyer!
  Note: This case was reversed on appeal on the narrow grounds that the services company did not plead "duty of good faith."

  Past CIPS SIG LAW4IT.COM SEMINARS

  1. October 2, 2006
     "Independent Contractors Agreement - from an Accounting, Insurance & Legal Perspective" 
     Discover the Practical Effects of Law On Your Business! 
     WHAT: Special Interest Group 
     Topic: "Independent Contractors Agreement - from an Accounting, Insurance & Legal Perspective" 
     Of Interest To: All Businesses & Organizations that use Independent Contractors & all Consultants
     Presenters: 
     
     Robert Novoselac B.Admin., C.A.; Wall & Associates P.C.
     
     Joe McCabe and LMS PROLINK
     the insurance source for CIPS members.
     
     George Eyre, LAW4IT.COM
     Cyberspace Lawyer.
     Read His Presentation Here
     
     WHERE: Metro Hall 55 John Street, Meeting Room 313
     WHEN: November 7, 2005 6 p.m. to 7:30 p.m.
     COSTS: Free to CIPS Members and Free Your First Time; otherwise $10

     CIPS - the Canadian Information Processing Society, founded in 1958 represents the interests of IT Professionals. CIPS, Toronto is the Toronto Branch. ISP is the only professional designation for IT professionals sanctioned by a government in Canada. For more information visit CIPS - Toronto by clicking on Sources & Links above.

Are ISP's Liable for the Downloading of Music Pursuant to Tariff 22?? Click Newsletter [2004] 7

What are the terms and conditions of a internet access agreement? What are the insurance requirements for computer professionals? See: Click Newsletter [2002] 3

Does your company need a web site hosting agreement? Click Newsletter [2002] 2

Does your company need a web site development agreement? Click Newsletter [2002] 1

Are online contracts valid in the Province of Ontario? Click Newsletter [2001] 1

As an independent computer contractor, what are the terms and conditions that should be considered in your contract? See: ISP Agreement

If you need practical expert advice from someone who has worked in and understands your business, please contact LAW4IT

Members of LAW FOR INFORMATION TECHNOLOGY have extensive experience in computer science, project management and systems and hence understand your business. LAW4IT.COM applies this experience to assist you in meeting your goals and solving and preventing problems.

We are a law firm which practice concentrates on computer, Internet, entertainment, business, intellectual property, privacy law and related matters. We register and prosecute Canadian and American Trade Marks. LAW4IT.COM provides services in the following major areas:

1. Computer & Internet Law
2. Intellectual Property
3. Entertainment, Multimedia and Advertising Law
4. Corporate, Commercial & Business Law and
5. Related Matters

Internet Law Services

LAW4IT.COM has experience in the following areas of Internet Law:

1. Web Site Development Agreement
2. Internet Access Agreement
3. Web Site Hosting Agreement
4. Privacy Law and Terms
5. Terms of Use
6. Minimize Risks

Computer Law Services

LAW4IT.COM has experience in the following areas of Computer Law:

1. 1. Software Licensing
   2. Independent Contractor Agreements
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   4. Outsourcing Agreement
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   6. Maintenance Agreements
   7. Distribution Agreement
   8. other agreements & matters

If you need practical legal advice from someone who has worked in and understands your business, please contact LAW4IT