Bad Employer Conduct – 2023’s Top 3 Most Scathing Canadian Employment Law Decisions

As employment lawyers, we all have times when we wish our employer-side clients had come to us for advice before making certain decisions.  There’s a lot that can be done to protect an employer who seeks assistance early in the process – especially if it involves a termination.  Costs can be reduced, risks can be mitigated, and whole potential areas for future disputes can be eliminated entirely with careful consideration and planning.

Bad Employer Conduct

The result of failing to get proper employment law advice can be catastrophic.  Not only can it be exceedingly expensive, but the reputational damage for an organization can be profound.  And if you’re an employer who has made some mistakes in the process – do not double down on those errors by adopting unreasonable and ill-supported litigation strategies.  The patience of Canadian courts has worn thin and there appears to be an increased willingness to award moral and punitive damages, as well as substantial cost awards, when finding that employers have behaved badly.  2023 has produced some truly prodigious decisions on this front.  Here are my top three 2023 cases in which employers f***ed around and found out.

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AI in the Hiring Process – Legislative Changes and Risks for Employers to Consider

Proposed new job posting requirements regarding AI disclosure

The Ontario government recently introduced Bill 149 – Working for Workers Four Act, 2023 which includes planned amendments to the rules regarding job postings in the Employment Standards Act. The planned amendments include a requirement that employers disclose the use of artificial intelligence (“AI”) in the hiring process. The specific language proposed for this amendment in Bill 149 is as follows:

AI in the Hiring Process - Legislative Changes and Risks for Employers to Consider

Every employer who advertises a publicly advertised job posting and who uses artificial intelligence to screen, assess or select applicants for the position shall include in the posting a statement disclosing the use of the artificial intelligence. Regardless of whether or not the bill is passed, the suggested amendment is noteworthy simply for the fact that it’s early (at least in the employment law sphere) Canadian legislation regarding AI.  It represents an acknowledgement of the potential risks for employees and employers that will need to continue to be assessed, and it has been prepared in line with the province’s stated priorities from its Trustworthy Artificial Intelligence (AI) Framework (the “Framework”).

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Don’t Lose Your Enforceable Termination Clause to the Substratum Doctrine

If you’re an employer or HR representative well-acquainted with the realm of employment law blogs, you’ve undoubtedly encountered a myriad of cautionary tales about the perils of contracting errors.  The blogs about this topic are countless – and for good reason! The significance of getting contracts right cannot be overstated, as a single mistake could potentially lead to substantial liabilities for your organization. An omitted phrase or a misused word within a termination clause could be the deciding factor between an 8-week statutory notice obligation and a hefty 24-month damages award.

The significance of getting contracts right

However, let’s assume that you’ve taken every precaution. You’ve carefully reviewed your contracts, consulted legal experts, and you’re confident that your termination clauses are impeccably drafted. Is there still a risk that a court would refuse to enforce that termination clause?  The answer, perhaps unsurprisingly, is yes.  Even with meticulous drafting, there’s a legal principle that could potentially invalidate your termination clause – the Substratum Doctrine.

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Does Your Workplace Need an AI Policy?

AI Policy for BusinessesIn the digital era, artificial intelligence (AI) is becoming increasingly intertwined with our daily lives, especially in the ways we do our work. From voice assistants to chatbots to art generators, AI has found its way into various industries, transforming the way work gets done. As AI continues to advance, it raises important questions about its ethical implications and potential impact – good and bad – on the workplace.  The bad should not be ignored.  How much damage might be done to your organization if AI was not used responsibly by an employee?

I’m sure many in the legal industry are familiar with the recent news stories about the New York lawyer who relied on ChatGPT to assist with his research and drafting.  The chatbot provided the lawyer with case law precedents that simply did not exist.  The AI system entirely fabricated the cases.  The lawyer did not verify this information and attempted to rely on these cases in court to a disastrous and embarrassing result.

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ChatGPT and AI Disruption of the Law

ChatGPT and AI Disruption of the LawThe sensationalism surrounding ChatGPT that has developed since its launch on November 30, 2022, has been fascinating to observe.  For the uninitiated, ChatGPT is an artificial intelligence (“AI”) chatbot that provides detailed responses based on conversational prompts from the user.  It will compose pretty much anything you ask it to – whether it be an e-mail or an essay – and it will do so in a matter of seconds.  

ChatGPT quickly made headlines following its debut as students started using it to do their homework assignments and journalists responded with shock as they tested its ability to write news articles for them.  The sentiment from some vocal sources was negative and painted a dire picture regarding the impact ChatGPT could have in education and various industries – including legal services.  

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Selling, Closing, or Buying a Business? Consider Your Employment Law Liabilities! (Part II)

buying a businessBuying a Business

This post will explore some of the employment law issues that should be considered if you’re purchasing a business.  Employment law-related factors to review when selling or closing your business were covered in Part I.

This post focuses on businesses with non-unionized workforces.  Unionized workplaces have their own distinct issues that must be addressed when purchasing a business and a lawyer should be consulted regarding those as well.

Strong entrepreneurial spirits truly are critical components of any healthy economy.  Many people dream of being their own boss – directing the growth of a company and taking an active role in their own future prosperity while providing a product or service that they are passionate about.  Purchasing a business with an established business model and customer base can be a great way to give yourself a head start on these goals, but it’s essential to consider all of your possible risks and liabilities when doing so.  Completing a fulsome review of your potential employment law risks as part of your due diligence is the best first step to protecting your investment.  You can’t know what other actions will be helpful without taking this initial step. 

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