Monthly Archives: January 2014

ILN Today Post

Reevaluating Employee Classifications

As PR agencies grow, positions become more specialized and employees begin to fit more neatly into certain, defined roles. As this occurs, it is critical for PR managers to reevaluate their employee classifications to determine which employees should be classified as exempt (not eligible for overtime) and non-exempt (eligible for overtime). More…

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.CA Domain Names Held To Be Personal Property

A recent Ontario Superior Court of Justice decision (Court File No. CV-13-480391) has held that .CA domain names are personal property and as such are subject to the rules that govern any other type of personal property, including those against wrongful conversion.  Perhaps more importantly, the case appears to stand for the proposition that title in .CA domain names exists independently of the registration of those domain names.

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Fired Employee Entitled to Both Damages and Full Pension Benefits

Richard Waterman had worked for IBM for 42 years when the company fired him without cause.  IBM provided him with 2 months notice of the termination of his employment.  He was 65 years old.  Waterman sued IBM to enforce his contractual right to be given reasonable notice of termination.  The trial judge set the appropriate period of notice at 20 months.  When he was fired, Waterman had a vested interest in IBM’s defined benefit pension plan.  Under the terms of the plan, IBM had contributed a percentage of Waterman’s salary to the plan on his behalf.  Upon termination, Waterman was entitled to a full pension and his termination had no effect on the amount of his pension benefits.  The trial judge declined to deduct the pension benefits paid to Waterman during the notice period in calculating his damages.  IBM’s appeal was dismissed by the British Columbia Court of Appeal.  
The Supreme Court of Canada, Justice Cromwell writing for the majority, dismissed IBM’s further appeal.  Chief Justice McLachlin and Justice Rothstein dissented.
Justice Cromwell held that the rule that damages are measured by the plaintiff’s actual loss does not cover all cases.  He ruled that pension benefits are a form of deferred compensation for an employee’s service and constitute a type of retirement savings.  They are not intended to be an indemnity for wage loss due to unemployment.  
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Fired Employee Entitled to Both Damages and Full Pension Benefits

Richard Waterman had worked for IBM for 42 years when the company fired him without cause.  IBM provided him with 2 months notice of the termination of his employment.  He was 65 years old.  Waterman sued IBM to enforce his contractual right to be given reasonable notice of termination.  The trial judge set the appropriate period of notice at 20 months.  When he was fired, Waterman had a vested interest in IBM’s defined benefit pension plan.  Under the terms of the plan, IBM had contributed a percentage of Waterman’s salary to the plan on his behalf.  Upon termination, Waterman was entitled to a full pension and his termination had no effect on the amount of his pension benefits.  The trial judge declined to deduct the pension benefits paid to Waterman during the notice period in calculating his damages.  IBM’s appeal was dismissed by the British Columbia Court of Appeal.  
The Supreme Court of Canada, Justice Cromwell writing for the majority, dismissed IBM’s further appeal.  Chief Justice McLachlin and Justice Rothstein dissented.
Justice Cromwell held that the rule that damages are measured by the plaintiff’s actual loss does not cover all cases.  He ruled that pension benefits are a form of deferred compensation for an employee’s service and constitute a type of retirement savings.  They are not intended to be an indemnity for wage loss due to unemployment.  
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California Opens The Door, Slightly, To Wage Deductions At Termination

by Shane Sagheb

For years, employers in California have been cautioned about deducting debts from employees’ final paychecks. On January 9, 2014, the Ninth Circuit Court of Appeals issued an unpublished opinion in Ward v. Costco Wholesale Corp., No. 11-56757 (9th Cir. Jan. 9, 2014), holding that under certain limited circumstances, such deductions do not run afoul of federal law or the California Labor Code. In light of the fact that this decision is not published and no state court opinion has adopted its holding, however, employers should remain cautious about making such deductions.

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ILN Today Post

PENSION PAYMENTS— DAMAGES IN WRONGFUL DISMISSAL

In IBM v Waterman released December 13, 2013, the Supreme Court of Canada clearly stated that payments from a pension plan are not to be deducted from damages in wrongful dismissal cases.

The majority’s rationale:

  • Pension benefits are a  form of deferred compensation and constitute a type of retirement savings. They are not intended to be an indemnity for wage loss due to unemployment. In general, damages will not be reduced by payments received if the payments are not intended to be an indemnity for the loss caused by the breach and the plaintiff has contributed (in this case service) in order to obtain entitlement to them. Moreover, there is room for broader policy considerations, in this case that the law should not provide an economic incentive to dismiss pensionable employees rather than other employees. More…
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ILN Today Post

RING OF FIRE UPDATE

Cliffs Natural Resources Inc.’s decision in November 2013 to cease all development activities in connection with its Black Thor chromite project in the Ring of Fire came on the heels of a Government of Ontario announcement regarding the creation of a crown corporation to develop the Ring of Fire infrastructure.

In retrospect, Cliffs’ decision represented a wake up call to the Provincial and Federal governments to produce a viable business plan to develop the necessary infrastructure to allow for the commercial exploitation of the vast mineral resources located in the Ring of Fire area. Cliffs’ decision was a clear signal to both the Provincial and Federal governments that it was simply not prepared to spend its resources without a clearer understanding of how the infrastructure will be developed. Cliffs was really saying “you need this project more than we do” and appears prepared to sit on the sidelines until a political solution can be reached. More…

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Proposed HIPAA Rule to Enhance Criminal Background Check System

On January 7, the U.S. Department of Health & Human Services (HHS) published a notice of proposed rulemaking (NPRM) to revise the HIPAA Privacy Rule expressly permitting certain covered entities to disclose specific information about individuals who are subject to the federal mental health prohibitor to the National Instant Criminal Background Check System (NICS). HHS […]
The post Proposed HIPAA Rule to Enhance Criminal Background Check System appeared first on OMW Health Law.

For more information please visit www.omwhealthlaw.com or click on the headline above.

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TSX Venture Exchange Looking for Support for Proposed MI 45-312

The TSX Venture Exchange sent out the following notice on January 13, 2014:

As you may know the CSA is looking for comments for its new proposed prospectus exemption for existing security holders. The deadline for comments is January 20, 2014. This link will take you to the proposed exemption.

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Heather announced as Expert Annotator on Quickscribe

Heather Hettiarachchi has been announced as an Expert Annotator in the area of Employment Law on Quickscribe Services Ltd. Quickscribe offers powerful tools designed for tracking, referencing and researching current and historical versions of BC Statutes, regulations, Bills, Orders in Council and key federal laws.

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