gowlings' employment and labour law seminar 2013

Employment and Labour Law Seminar 2013

Wednesday, November 6, 2013

Toronto

Social Media and Employee Obligations of

Confidentiality and Loyalty

Edward Majewski

Introduction

• DO think twice about whether you should encourage employees to use social media for work-related purposes• social networking vs. social notworking

• DON’T be mesmerized by the technology (duties of loyalty and confidentiality are well-established)

• But DO worry about the technology (data permanence, ease of dissemination, unfettered access by third parties)

• DO educate employees about their workplace and off-duty obligations to their employer (loyalty, confidentiality) and about the perils of social media (defamation, violating securities laws, etc.)

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Social Notworking

• Lost productivity in the $ billions

• Time theft

• More than 1 hour each day (1.8 hours for “Gen Y”)

• Only 6.8% of employees say they use social media for purely work-related purposes

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Social Media as a Tool…Recruiting/Screening

• 77% of employers search online to do background checks

• Asking candidates for their Facebook password is a bad idea

• Human rights issues• Knowing things you shouldn’t know about the candidate, e.g. age,

race, religion, disability, etc.• Safest approach: don’t search online (or don’t review online search

results) before making a conditional offer• Decision-maker shouldn’t conduct the online search

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Social Media as a Tool…Recruiting/Screening cont.

• Privacy law issues• Collecting, using and retaining personal information about

candidates (even if it’s irrelevant and doesn’t offend human rights legislation)

• Warn candidates that thorough background searches, including online information, are conducted (in order to at least obtain their implied consent)

• Fairness issues • Internet is unreliable• May be limiting hiring to only those with digital presence

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Legal Risks

• Vicarious liability for employees’ wrongs committed in the course of their duties, even if employer didn’t expressly authorize employees’ conduct

• Defamation

• Example: trash-talking competitors in industry discussion forums

• Securities law violations (insider trading, “tipping”)

• Employee tweeting that s/he is working on a “big deal!”

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Legal Risks cont.

• Admissions against employer’s interests

• Social media data, tweets, posts, blogs, etc. may be producible in litigation against employer (e.g. products liability, accident, etc.)

• Disclosure of employer’s (or employer’s customers’) confidential information

• Example: boasting about working on customer’s top secret project

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The Perils of Social Media: Duty of Confidentiality

• Employees have a duty to preserve the confidentiality of their employer’s non-public and proprietary business-related information that would harm their employer if disclosed or misused

• Lasts indefinitely

• DO identify in advance the types of information you consider to be “confidential”

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The Perils of Social Media: Off-Duty Conduct vs. Duty of Loyalty

• Every employee owes to their employer a duty of loyalty

• …all pervasive, residual obligation to further the interests of the employer which is not capable of exhaustive categorization but which can be relied upon by the courts to compel ‘faithful’ service in a myriad of work situations…. (G. England et al., Employment Law in Canada)

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The Perils of Social Media: Off-Duty Conduct vs. Duty of Loyalty

• Employees cannot disparage their employers or engage in conduct that damages their employers’ business, even when that is done on their personal computers and outside of working hours

• Example: Lougheed Imports Ltd. (West Coast Mazda) v. United Food and Commercial Workers International Union

• Example: Wasaya Airways LP v. Air Line Pilots Assn., International (Wyndels Grievance)

• Critical consideration: real versus potential harm to employer?

• Amanda Todd suicide

• Exception: legitimate whistle-blowing

• Solution: make sure employees have proper channels to raise concerns discreetly

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Social Media Policies are Necessary

• Written policies are needed when employees may need help in exercising their judgment

• Establish “bright lines” to prevent problems and to support discipline when employees cross those lines

• Employers could do a better job of proactively explaining perils of social media to their employees

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Social Media Policies …Contents

1. Explain what social media is and what types of activities the policy intends to cover (useful to mention specific sites, but not limit it to them)

2. Remind employees about the perils of social media (durability of electronic information, easy access by persons outside the workplace, etc.)

3. Explain to employees the extent to which the policy covers off-duty social networking activity

• They may not disparage their employer or co-workers using social media, at or outside the workplace

• They should be discouraged from discussing the workplace and their co-workers on social media sites, even if they think they are doing so anonymously

• They should be discouraged from identifying themselves with their employer

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4. Remind employees that they may not publish any comments that may negatively affect their employer or their employer’s customers or business partners

5. Remind employees about their confidentiality obligations, including identifying the types of information that, if disclosed or misused by them, will result in their termination for just cause

6. Prohibit the violation of laws (e.g. securities laws, defamation)

7. Prohibit the violation of employer policies (e.g. harassment)

8. Prohibit the use of their employer’s logos, trade-marks, slogans, etc.

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9. Prohibit speaking on behalf of their employer, especially about anything in relation to their employer that is currently in the news

10. If not prohibited entirely, then explain extent to which social networking is permitted on employer’s computers and during working hours

11. Explain any specific rules regarding the use of social media in work-related capacities (e.g. “Friending” customers)

12. Advise employees that their use of social media while at work will be monitored (i.e. no expectation of privacy)

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13. Advise employees of the proper channels available to them to express workplace concerns (instead of blogging about them!)

14. Caution employees that not every violation of this policy may be detected, so they should never assume that any questionable behaviour has been condoned by their employer

15. Advise employees of the consequences of violating the policy (e.g. employer will report unlawful activity to the authorities, termination for just cause)

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Social Media … What to Look Forward To?

• Social networking and restrictive covenants (e.g. non-solicitation obligations)?

• Updating employment contracts to address social media issues

• “Un-friending” customers upon termination

• Who owns the “contacts”, social media account?

• Cyber-bullying legislation

• Unionization via social media

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Case Law Update• Ornge, [2011] OLAA No 232

• Discharge for disclosing patient information in blog about accident was overturned• Blog was removed immediately, sincere remorse, and apology

provided

• Ontario (Ministry of Community and Social Services)(Aboutaeib Grievance), [2011] OGSBA No 167

• Employer’s blog degenerated into forum for attacking management and co-workers thanks to grievors, whose discharges were upheld• Other factors: dishonesty when confronted, no remorse hard

core pornography, conflict of interest (personal business)

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Case Law Update

• Groves v. Cargojet Holdings Ltd, [2011] CLAD No 257• Discharge overturned for grievor who posted on Facebook that

she wanted to kick lead-hand in the genitals wearing steel-toed boots and spit in lead-hand’s face

• Factors: Facebook posts were limited to grievor’s “friends”; nothing damaging to employer’s reputation

• Health Sciences Assn. of British Columbia (Cheema Grievance), [2011] BCCAAA No 125

• Discharge for time theft overturned where grievor’s unauthorized use of social media during working hours didn’t compromise workplace performance

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Case Law Update• Alberta Health Services, 2012 CanLII 12067

• Discharge for harassment via Facebook overturned where grievor didn’t appreciate that insulting co-worker through social media could be work-related (unpaid suspension substituted)

• Canadian Union of Postal Workers (Discharge for Facebook postings Grievance), [2012] CLAD No 85

• Discharge for abusive comments on Facebook about manager upheld where some of grievor’s “friends” were co-workers

• Credit Valley Hospital v. C.U.P.E., Local 3252, 2012 CarswellOnt 451

• Dismissal upheld of employee who briefly posted photos from scene of patient suicide and comments

• Factors: breach of patient confidentiality; lack of colour

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Case Law Update

• International Union of Elevator Constructors, Local 50 v. ThyssenKrupp Elevator (Canada) Ltd., 2011 CanLII 46585 (OLRB)

• Dismissal upheld of employee shown in video, shot during lunch break, with genitals stapled to wooden plank posted

• Factors: employee and employer easily identified in video; employer was engaged in safety-sensitive industry so it could not tolerate risk to its reputation and had to deter other employees from engaging in stunts, horseplay, pranks, etc.

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Case Law Update • Bell Technical Solutions v. Communications, Energy and

Paperworkers Union of Canada (Facebook Posting Grievance), 2012 OLAA No 481

• Facebook postings that ridiculed employer and supervisor• Two employees dismissed; one dismissal upheld but other employee

reinstated with one-year suspension• [I]t is well-established that inappropriate Facebook postings could result

in discipline or discharge, depending upon the severity of the postings. The nature and frequency of the comments must be carefully considered to determine how insolent, insulting, insubordinate and/or damaging they were to the individual(s) or the company. In some cases, the issue is whether the comments were so damaging or have so poisoned the workplace that it would no longer be possible for the employee to work harmoniously and productively with other employees or for the company

• Dismissal factors: Facebook postings were frequent and prolonged (more than 16 months); derogatory to employer and supervisor

• Reinstatement factors: provocation by supervisor

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Case Law Update • S.G.E.U v. Saskatchewan (Ministry of Corrections,

Public Safety & Policing), 2009 CarswellSask 913 • Dismissal of three corrections officers upheld for joining racist

Facebook group created by one of them• Derogatory comments re compensation for First Nations

victims of residential schools who were inmates: “What could you do with at least $28,000 in healing?”

• Factors: employees were peace officers

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Thank You

montréal · ottawa · toronto · hamilton · waterloo region · calgary · vancouver · beijing · moscow · london

Edward MajewskiTel: 416-8624422Email: [email protected]

Bullying in the WorkplaceWhat it is, what it isn’t and what to do about it

David Law

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Workplace Bullying, Harassment and Violence Defined

Workplace bullying and violence includes:

• Harassment or poisoned work environment

• Physical violence, sexual violence and threats of violence

• Sexual harassment & reprisals

Broadly defined, complex and difficult in reality

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OHSA Definitions

“workplace harassment” means engaging in a course of vexatious comment or conduct against a

worker in a workplace that is known or ought reasonably to be known to be unwelcome

“workplace violence” means(a) The exercise of physical force by a person against a worker, in a

workplace, that causes or could cause physical injury to the worker,

(b) An attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker,

(c) A statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.

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Part XXX.0.1 of the Occupational Health and Safety Act

• Violence and harassment• Have a policy• Re- examine it annually• Assess the workplace for risks • Have a program for receiving reports and investigating cases of

harassment and violence• Employees have to know about it• Domestic violence• A person with a history of violence

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Workplace Bullying and Harassment

• Workplace bullying and harassment often include:

• Making remarks, jokes or innuendos that demean, ridicule, intimidate or offend

• Displaying or circulating offensive picture or materials in print or electronic form

• Repeated offensive or intimidating phone calls or e-mails • Inappropriate sexual touching, advances, suggestions or requests.• Not a normal work conflict or tough management styles• Repeated, persistent, continuous behaviour as opposed to a single

negative act• A power imbalance between the victim and the perpetrator

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• Examples of workplace bullying:• Social isolation (silent treatment)• Rumours• Personal attack of a person’s private life and/or personal attributes• Excessive or unjustified criticism• Over-monitoring of work• Verbal aggression• Withholding information• Withholding job responsibility• Trivial fault finding• Replacing proper work with demeaning jobs• Setting unrealistic goals or deadlines• Other verbal comments that could mentally hurt or isolate a person in the

workplace• Could also involve physical contact (pushing, throwing things)

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• Bullying behaviour may be unwittingly encouraged by:

• Pitting workers against each other or emphasizing a competitive work style• Having a lax management style• Making unreasonable demands• Setting impossible deadlines or providing insufficient funding to accomplish

a goal• Failing to give supervisors the authority to reprimand problem workers• Failing to instruct supervisors on how to communicate effectively• Not educating people on the types of behaviour which can be interpreted

as, and in fact, be harassment and bullying

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• Effects on worker:• Lower levels of job satisfaction• Psychosomatic symptoms and physical illness• Short and long term disability

• Signs and Symptoms of workplace bullying may include:• Grievances by employees against their manager• Declining work performance• Increased stress and tension in the workplace• Poor morale• Increased absenteeism• High staff turnover

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Where Can the Issue Arise?

• An internal complaint of harassment or bullying• In a grievance at a unionized workplace• A complaint under the Human Rights Code• A reprisal complaint under the Occupational Health and

Safety Act – but not a “safety complaint” under that Act• A claim under the Workplace Safety and Insurance Act• A civil action for wrongful dismissal, constructive

dismissal and related damages

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Boucher v. Walmart

• A Walmart employee with an excellent ten year employment record successfully argued that she was constructively dismissed.

• The employee alleged abuse by the store manager including being forced to count skids in front of other employees to prove she could count; being punched in the arm twice by a fellow assistant manager; and being called an “(expletive) idiot”.

• The employee claimed constructive dismissal because of the abusive work environment as well as sexual harassment, intentional infliction of mental suffering and assault.

A civil action ensued

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Boucher v. Walmart

• A jury found that the employee was constructively dismissed and awarded the highest award to date for an employment related suit in Canada – $1.46 million .

• Walmart was directly liable for:• $1.2 million for punitive damages and intentional infliction of mental

suffering; and • $10,000 for not adequately addressing two assaults the employee

suffered at the hand of a fellow assistant manager.

• The store manager was directly liable for the remainder of the award: • $100,000 for intentional infliction of mental suffering; and• $150,000 for punitive damages.

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What Isn’t Workplace Harassment or Bullying

Examples of behaviour that is not workplace harassment or bullying could include:

• Changes in work assignments and scheduling• Job assessment and evaluation• Workplace inspections• Implementation of a dress codes• Disciplinary action• Differences of opinion or minor disagreements between co-workers• Workplace violence

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What Isn’t Workplace Harassment or Bullying

Amodeov. Craiglee Nursing Home Limited OLRB June 2013

• An employee was reminded of her job requirements• Told that she needed to work more, harder and better• Was told what would happen if she didn’t • The employee reacted by complaining to management• The employee was dismissed• And filed a reprisal complaint which made its way to the OLRB• The Ontario Labour Relations Board decision said:

“The workplace harassment provisions do not normally apply to the conduct of a manager that falls within his or her normal work function, even if in the course of carrying out that function a worker suffers unpleasant consequences…

The worst that can be said of what happened is that Ms. Heinz made a blunt, unflattering assessment of the applicant’s performance and demanded in no uncertain terms that she fulfill management’s work expectations or risk discipline.”

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Open, Frank and Respectful Communication

• Communications occur in a context: what is appropriate between some people and in some circumstances, will not be appropriate in other situations

• People can have honest, serious disagreements about issues and questions

• They can debate and differ, all in good faith• Supervisors can critique work and assess performance• None of that is inappropriate, and in fact, it is very necessary• Each individual employee needs to understand there is a legitimate

purpose to open, frank and respectful communication• And each individual employee needs to understand that there is a

line which should not be crossed

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Over the Line

• Words or deeds which demean, denigrate or insult• Which challenge character and integrity, without purpose or proof• Which reference personal characteristics• Which focus on someone’s vulnerabilities • Non-communication which shuns, isolates and diminishes the value of a

person’s contribution and participation• Acts or omissions which intimidate (bully) or coerce• Acts or omissions which unfairly describe or evaluate a person’s work or

overall performance, or which threaten to• Harassment• Threats• Violence

Bullying is typically not about the work, but about the people involved:

the perpetrator’s purposes and the victim’s vulnerabilities

Work is just an excuse or a venue

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Some Tools to Put in Place

• Supervisors and workers should be instructed in:

• Early recognition of escalating behavior or warning signs or situations that may lead to violence

• Ways to prevent or diffuse volatile situations or aggressive behavior and manage anger

• Non-violent crisis intervention techniques and conflict management• A standard response action plan for violent situations, including the availability of

assistance, response to alarm systems and communication procedures• Ways to deal with hostile people such as co-workers, customers, patients, clients,

relatives of clients or patients and visitors• The location and operation of safety devices such as alarm systems, along with

the required maintenance schedules and procedures• Ways to protect oneself and coworkers, including use of the "buddy system" • Policies and procedures for reporting, investigating and recordkeeping• Information on multicultural diversity to increase staff sensitivity to racial and ethnic

issues and differences

Thank You


David LawTel: 613-783-8829Email: [email protected]

The Evolution of ‘Family Status’ Accommodation in

Canada: Practical Tips for Employers

Anna Abbott

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The Ground of Family Status

• Employment

• 5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability

• OHRC: Policy and Guidelines on discrimination because of family status

http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90h19_f.htm#s5s1



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• “family status” means the status of being in a parent and child relationship

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• Raises complex and difficult issues for employers related to the treatment of caregivers in the workplace

• Accommodation of “family status” usually relates to the needs of a caregiver• Childcare • Eldercare

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Accommodation in Employment

• The principle of accommodation applies to all grounds under the Ontario Human Rights Code, but accommodation in employment most often relates to the following grounds:

• Age• Creed (religion)• Sex (pregnant women)• Family status (care-giving responsibilities)

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Family Status Accommodation

• Employers have a duty to consider whether they can make adjustments to workplace policies and procedures to accommodate needs related to family status

• May include flexible scheduling, permitting employees to take leaves of absence to care for family members who are ill or have a disability, or providing access to alternative work arrangements

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Legal Test for Accommodation

• Step 1: Onus is on employee to prove “prima facie” discrimination.

• Step 2: Once proved, onus then switches to the employer to prove that the requirement is a bona fide occupational requirement (BFOR) and that they attempted to accommodate to the point of undue hardship

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Legal Test for Accommodation

• Step 2 breakdown: • Purpose rationally connected to job

performance• Honest and good faith belief that it was

necessary• Standard reasonably necessary and

impossible to accommodate without undue hardship

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What is Undue Hardship?

• Undue Hardship?• Consideration under the Human Rights Code

• Cost• Outside sources of funding• Health and safety

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Accommodation Process

• Accommodation has a procedural aspect and a substantive aspect

• If an employer fails to go through an appropriate accommodation process, it will have breached the Code even where it can show that it would not have been able to accommodate the employee without undue hardship

•

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Family Status: Where We Were Then

Differing opinions:1. Must result in serious interference with family

duty – if nothing extraordinary about employee’s position, no discrimination (BC Court of Appeal, Campbell River)

2. All protected Grounds should be treated the same (Ontario Human Rights Commission, Federal Court of Appeal)

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Family Status: Where We Are Now

• Canada (Attorney General) v. Johnstone, 2013 FC 113 (January 2013)

• Canadian National Railway and Denise Seely, 2013 FC 117 (February 2013)

• Devaney v. ZRV Holdings Ltd., 2012 HRTO 1590 (August 2012)

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Canada (Attorney General) v. Johnstone

• Facts:• Fiona Johnstone was border services officer

working rotating shifts, husband also border services officer

• Required fixed shifts to meet childcare needs• Loss of benefits (pension, training,

advancement) as fixed shifts only available to part time employees

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• Factors against CBSA:• No individual assessment of Johnstone’s case• Allowed accommodation for religious reasons,

but ignored Johnstone’s request• Viewed family obligation as a choice• Operational concerns were “impressionistic

assumptions” (inundated with requests, too costly, destructive to 24 hour operations)

• No accommodation policy or training

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• Justice Madamin: “childcare obligations arising in discrimination claimed based on family status must be one of substance and the complainant must have tried to reconcile family obligations and work obligations”

• Factors for Johnstone:• Tried to arrange care with family, and was successful for

some shifts• Daycare hard to find outside regular hours• Husband also worked shifts• Provided options to CBSA

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• Held: • Discrimination on the basis of ‘family status’ will be

made out where an employers rule “interferes with an employee’s ability to fulfill a substantial parental obligation in a realistic way”

• CBSA discriminated against Johnstone by failing to accommodate her childcare responsibilities

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• Held: • CBSA failed to justify that variable shift policy was a

BFOR

• Awarded lost wages, pension contributions, $15,000 general damages, $20,000 for wilful reckless conduct of CBSA

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CNR and Denise Seely

• Facts:• Long time employee with CN as freight train conductor

residing in AB, on laid off status• Recalled for temporary work in BC• Employment terminated when she failed to report

because of childcare responsibilities

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• Factors against employer:• Never responded to request for accommodation• Did not provide details of job including duration,

accommodation, working conditions• Did not follow its own extensive accommodation policy• Put employee in situation of choosing between

employment obligations and childcare duties

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• Factors for employee:• No immediate family nearby• Daycare during standard hours only• Husband away 14 to 24 hours at a time• Requested accommodation

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• Held:• CN discriminated against Seely on the ground of

family status and failed to provide reasonable accommodation

• Compensation for loss of wages and benefits, $15,000 for pain and suffering and $20,000 for reckless conduct by CN

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Eldercare: Devaney v. ZRV Holdings Ltd.

• Facts: • Architect employed with company from 1982 to

termination of employment in 2009• Substantial care responsibilities for ailing mother• Employer would not allow flexible work schedule

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• Factors against employer:• Attendance policy unreasonable/too strict• No performance issues• Failure to engage in dialogue with employee

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• Factors for employee:• Mother on waiting list for care home, care not available

on 24 hour basis• Required income for her care• Available by phone and email • Hired by client on project because of good job

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• Held:• Company's strict attendance policy requiring Devaney to

work out of the company's office had an adverse impact on him as a result of his family responsibilities. By failing to engage in a dialogue with Devaney about his needs, the employer contravened the Code.

• Adversely impacted on the basis of a requirement imposed by his or her status as a caregiver. (If an adverse impact is deemed to relate merely to an employee's preference or choice, no prima facie case will be established)

• Awarded $15,000 in general damages

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• Employee obligations in accommodation process

1. Make reasonable effort to find outside resources

2. Advise employer of need for accommodation

3. Provide employer with sufficient information

4. Provide suggestions for accommodation

5. Allow employer reasonable time

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• Employee obligations in accommodation process

6. Co-operate with employer

7. Facilitate implementation of accommodation

8. Advise employer if needs change

9. Accept reasonable accommodation


• Employer obligations in accommodation process:

1. Determine if employee requires accommodation

2. Consider all possible accommodations

3. Discuss options with employee

4. Respond within reasonable time

5. Keep written record

6. Maintain confidentiality

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• Employer obligations in accommodation process:

7. Request information

8. Consider employee’s accommodation suggestions

9. Follow-up with employee

10. Modify accommodation if required

11. Explain to employee why accommodation impossible

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Accommodation Policy

• Contents of Policy:• Statement of Commitment by management• Objectives• Request for Accommodation (who, how, contents)• Provision of Information (medical information)• Privacy and Confidentiality• Accommodation Planning (contents of accommodation

plan, timelines, goals, accountability)• Undue Hardship (basis of assessment, recourse,

implementation)

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Recommendations

• Be proactive with general planning and preparation• Accommodation policy• Training for managers and supervisors• Employee education

• Acknowledge and accept that you have a positive duty to accommodate an employee to the point of undue hardship

• Be proactive and sensitive when dealing with specific problems

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Recommendations

• Engage in dialogue with employee re needs• Assess on an individual basis• Be wary of inflexible work hours and rigid

attendance management policies• Document the process• Apply policies and procedures consistently• Gather evidence of undue hardship• Policies must be reasonable

Thank You


Anna AbbottTel: 416-369-7284Email: [email protected]

OHS Case Law Update

David Law, Anna Abbott

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Queen of the North

Queen of the North ferry Captain convicted of criminal negligence causing death

• Section 217.1 of the Criminal Code imposes a duty on individuals (workers, supervisors, directors) and organizations to take “reasonable steps” to prevent “death” or “bodily harm” to a worker. This duty dovetails with ss. 219/220/221 of the Criminal Code (general criminal negligence provisions) to create the offence of OHS criminal negligence.

• The law elevated OHS liability and stigma by imposing criminal penalties and a criminal record on the offender. This law supplements, rather than replaces, existing provincial and federal legislation (i.e. can be charged with both)

• s.217.1 of the Criminal Code: “Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take all reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.”

Penalties: up to life imprisonment; fines (no maximum amount stipulated)

Queen of the North Captain sentenced to 4 years

R. v. 679052 Ontario Limited (c.o.b. Auction Reconditioning Centre), 2012 ONCJ 747

• Auction Reconditioning Centre (“ARC”) cleans vehicles for rental and fleet operators. Its employees are assigned specific tasks; those who are not trained and authorized to drive a vehicle on the property are expressly not permitted to drive vehicles. However, a cleaner, without a driver’s license, moved a car into a wash bay and caused a chain of collisions which resulted in injury to another worker.

• The Ontario Ministry of Labour charged the employer with failure to instruct and to

take reasonable measures. At trial the company was convicted but it appealed and the Court of Justice acquitted, saying:

• “[…] it is difficult to understand on what basis [the trial justice] could have found that an individual whose job it was not to drive should have received information, instruction and/or supervision about the safe operation of a vehicle or that a worker, who was not hired to drive a vehicle at the workplace, should have a valid driver’s licence and/or be sufficiently trained in the safe operation of a vehicle. [….]

• “As it was not [the cleaner’s] job to drive nor was there any reason for his employers to suspect he would drive, there is no requirement for the defendant in these circumstances to provide him with information, instruction or supervision in safe operation or parking of [vehicles].”

R. v. 679052 Ontario Limited (c.o.b. Auction Reconditioning Centre), 2012 ONCJ 747

On supervision the Court said:• “there is no such legal requirement in workplaces

under the OHSA that a worker must be given such information, instruction and warnings every time a task is assigned.”

• The company was not required “to ensure that [the cleaner] was supervised for every minute he was working.”

• This logic conforms with what every employer, supervisor and OHS professional knows – and what every worker and every Ministry of Labour Inspector – should remember.

R v XI Technologies Inc., 2013 ABCA 282

• Employer failed to identify and eliminate the safety risk to employees in the operation of a faulty calf-roping machine at a client appreciation event

• Employee died - hit in head with steel bar• No operator present, no employees knew how to

work the machine• Employer acquitted at trial, conviction stood on

appeal

R. v. Metron Construction Corporation, 2013 ONCA 541

• Metron fine appealed - raised from $200k to $750k

• Original fine "manifestly unfit "• "A sentence consisting of a fine of $200,000 fails

to convey the need to deliver a message on the importance of worker safety,… Indeed, some might treat such a fine as simply a cost of doing business."

Vale Mining

• $1,050,000 fine against Vale Canada Limited ($350,000 per count)

• Guilty Plea• Fines rising in fatality cases• Court considered Vale’s size, the fact that two

workers died, and previous OHSA record in awarding fine

R. v. Brewer’s Retail Inc.

• Beer Store owner fined $175,000 • Worker died after drinking windshield washer

fluid out of unmarked vodka bottle• Pleaded guilty to failing to acquaint a worker

with a hazard in the handling, storage or use of a liquid chemical agent

Blue Mountain Resorts Limited v. Ontario (Labour), 2013 ONCA 75

• Section 51(1) will only be triggered where there is a reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at the workplace

• Overturned the Board and Divisional of Court decisions, holding that they interpreted the requirements under s. 51(1) of the Act in an unreasonable manner

Terrace Bay Pulp Inc. (Re), 2013 ONSC 5111

• OHSA charges can proceed against insolvent company that had obtained protection from creditors under the CCAA

• Judge noted that MOL was not acting as a creditor

• Judge noted that company could decide whether to incur costs of defence or not

Thank You


Anna AbbottTel: 416-369-7284Email: [email protected]

David LawTel: 613-783-8829Email: [email protected]

Pay Equity

Allen Craig

Ongoing Maintenance Responsibility Challenges and Employer Unknowns Associated with the

Absence of Liability Limitations

Pay Equity 2013 - The Pay Equity Act’s Mandate

• The Pay Equity Act came into effect January 1, 1988 in an effort to purportedly correct the part of the wage gap between men’s and women’s wages that is due to undervaluing, and lower pay, of work mainly done by women.

• Pay equity is equal pay for work of equal or comparable value. It involves comparing jobs usually done by women with different jobs usually done by men in the same establishment of an employer. If a female job class is of equal or comparable value to a male job class in the organization, the female job class must be paid at least as much as the male job class.

• Pay Equity is not the same as equal pay for equal work, which means that if a woman and a man are doing substantially the same jobs for the same organization or company, they must receive the same wage unless the difference in pay is due to differences such as seniority or merit.

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The Pay Equity Act’s Mandate

• The Act applies to all employers in Ontario who have 10 or more employees. Employers starting up new businesses with 10 or more employees, or who grow to 10 or more employees, must immediately include pay equity in their compensation (wage and benefit) practices.

• There are different pay equity plan posting and pay adjustment obligations depending on the number of employees in an organization in Ontario.

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Employer Size in 1987 Posting Date of Pay Equity Plans

First Pay Equity Adjustment

500+ employees/public sector

January 1, 1990 January 1, 1991

100 to 499 employees January 1, 1991 January 1, 1992



The Pay Equity Act’s Mandate

• Employers with 10 to 99 employees chose whether or not to post a plan. Posting a plan allowed these employers to phase in pay equity adjustments at one per cent of the previous year’s payroll per year. Those who chose not to post a pay equity plan had to make all adjustments on the first pay equity adjustment date and should have posted a Notice of Requirement to Achieve and Maintain Pay Equity in the workplace.

89

An Employer’s Responsibility to Maintain Pay Equity

• Employers have an ongoing responsibility not only to achieve but to maintain compensation practices which provide for pay equity.

• The Pay Equity Commission has taken the position that employers should have a maintenance committee in place for each pay equity plan and that this committee should be reviewing the gender-neutral job comparison system on an annual basis.

90

Maintenance Checklist

1. Monitor regularly• Temporary skills shortage

• Other permissible differences

2. Monitor when specific events occur:• Adjustments to salaries

• Settlement of a collective agreement

• Change in value of female or male job class

• Vanishing job classes

• Changes to the representative group of male job classes

• Changes in the gender predominance of jobs

• Newly created jobs

3. Monitor every two to three years:• Has the job comparison or evaluation system been reviewed to ensure

that it is consistent with what is currently known about gender-neutrality?

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The “Random” Selection of Employers for Compliance Audit Review

• The review audit process has in the past and will continue in the future to target Ontario businesses on a sector as well as regional basis to ensure employers are achieving and maintaining compensation practices that comply with pay equity legislation.

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93

Template Letter to Employer re 2012 Monitoring Program

94

Notice of Requirement

95

Certificate of Posting

96

2012 Monitoring Program Questionnaire

97

2012 Monitoring Program Questionnaire

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Closing-No Further Investigation

Conclusion

• An Ontario employer’s responsibility to ensure compliance and ongoing maintenance with the Act continues to be somewhat detailed and onerous, let alone of significant cost to a corporation, should the Commission/Tribunal determine that pay equity was not originally complied with or maintained to date.

• Moreover, there is no period of limitation which would otherwise limit an employer’s past financial liabilities for not having complied with the Act. Accordingly, depending on an employers number of Ontario employees, financial liability as well as interest may well be required to be calculated back some 20+ years.

99

Thank You


Allen CraigTel: 416-369-4422Email: [email protected]

Top 10 Employment and Labour Law Developments

Hugh Christie, John Illingworth and

Michael Comartin

102

Employee Has to Mitigate

• Employee worked for 33 years with Employer and its predecessor

• Employer laid him off under mistaken belief regarding rights under ESA, 2000

• Recalled Employee upon being advised of error

• Employee declined to come back to work

103

Employee Has to Mitigate

• New management had implemented a new program -- Steps to Success with “missionary-like zeal”

• Employee clearly uncomfortable and disagreed with certain aspects of marketing program

• Court found that Employee ought to have taken the opportunity to mitigate, despite change in location

• Employee’s erroneous layoff did not justify failure to mitigate with Employer

104

Chevalier v. Active Tire 2012 ONSC 4309

• Employee has obligation to mitigate with Employer, even after layoff

• Employers do not have right to layoff just because ESA provides for layoff

• Layoff has to be in contractual document or common industry practice

• Nonetheless, even after error, employer entitled to invite employee to come back if genuine error and not in bad faith

105

But…

106

Expanded Right to Layoff?

• Employee had worked for company since 2005 in a middle management role.

• Company was in desperate financial situation and laid off 59 employees on a rotating basis in 2008. Claimed it was either layoffs or liquidation.

• Employee laid off in mid-November and told in January that she would be recalled in July. Total period of lay-off less than 35 weeks.

107

Expanded Right to Layoff?

• Employee found new work and claimed constructive dismissal or termination – argued no right to layoff under her employment contract

• Employer argued that since it had complied with the ESA there was no dismissal – the layoff had not exceeded the definition of “temporary”

108

Trites v. Renin Corp. 2013 ONSC 2715

• Court found that a temporary layoff that complies with the ESA is not termination

• Court was of the view there was no room for suggesting constructive dismissal at common law arises from a temporary layoff complying with the ESA

• However, in this case, the layoff was not temporary as employee did not receive substantial payments from the employer or supplementary EI benefits

109

Termination language strictly construed• Employer terminated without cause. Contract states

“he would receive six months’ notice or pay in lieu upon termination.”

• Employer had drafted contract• Employee finds work within two weeks• The Employer paid the three weeks statutory

requirement and refused to pay the balance

110

• Employer argues unfair to allow employee to receive a windfall profit

• Purpose of notice to permit employee to find another job and obligation should cease at that time

• Court of Appeal found the damages are liquidated and therefore are not subject to mitigation

Termination language strictly construed

111

• Justice Winkler stated that “there is nothing unfair about requiring employers to be explicit if they intend to require an employee to mitigate what would otherwise be fixed or liquidated damages”

• Found that a duty to mitigate is not implied in an employment contract where it specifies a fixed amount of notice

• The duty to mitigate should be set out in the agreement

Bowes v. Goss Power Products Ltd., 2012 ONCA 425

112

Reference to “Benefits” in Termination Provision

• Short-service employee fired without cause• Termination provision provided for termination

“without cause at any time by providing you with notice or payment in lieu of notice, and/or severance pay in accordance with the ESA” which was “in satisfaction of all claims and demands against the Corporation which may arise out of statute or common law with respect to the termination of your employment with the Corporation.

113

Reference to “Benefits” in Termination Provision

• Employee argued the termination provision was void because it excluded benefits during notice period and therefore violated ESA benefits continuation

• Argued the ‘payment in lieu of notice’ language and the ‘in full satisfaction of all claims’ language, contra proferentum, meant that benefits were excluded

• Employer argued that the lack of a reference to benefits meant they were left to ESA default

114

Stevens v. Sifton Properties Ltd. 2012 ONSC 5508

• Judge agreed that benefits were addressed by inference since the contract listed the set of entitlements upon termination and stated that they were in full satisfaction of all rights

• The language “drew the circle” to exclude benefits• Found that even if employer’s reading was a

reasonable one, contra proferentum applied. Wanted to give employers an incentive to comply with ESA

115

Injury to Dignity and Respect

• In 2008, Ontario’s Human Rights Code amended to allow civil courts to award damages for human rights violations where part of another civil action (e.g. a wrongful dismissal).

• Employee was a business analyst fired without cause after 16 months. Alleged termination based in part on her back problems. Employer had required her to return to full-time work and terminated her for failing to do so.

116

Wilson v. Solis Mexican Foods Ltd.2013 ONSC 5799

• The judge was concerned with limited factual record but found back injury was a factor in termination:• Insisted on a “full recovery” before the plaintiff’s return –

impossible to know when/if there could be a “full recovery”• Refused to go through the proper process of discussing plaintiff’s

limitations. Gave plaintiff the “run around”. • Claimed it was a “corporate restructuring” but clearly related to

disability

• The judge awarded $20,000 for injury to dignity and respect

117

Class Action Over Retiree Benefits

• General Motors restructuring to avoid bankruptcy during the financial crisis

• Retiree life insurance and health benefits were cut• Class action brought on behalf of approximately

3000 salaried employees – argued that the benefit plan documents did not permit the reductions

118

Class Action Over Retiree Benefits

• The court noted that retiree benefits gave retirees “peace of mind” that had been lost. Difficult or impossible to replace such benefits in retirement. Retirees expected core coverage for life.

• Retiree benefits were an important form of deferred compensation. Not purely gratuitous on GM’s part.

• Earlier versions of amendment language in GM’s benefit documents did not refer to former employees or retiree benefits

119

O’Neill v. General Motors of Canada2013 ONSC 4654

• The clause therefore was not clear on GM’s right to make changes to benefits for retired employees. Interpreted contra proferentum against GM.

• Duty of good faith in employment and the vulnerability of employees grounds to limit exercise of employer’s unilateral powers to change benefits.

• Judge granted summary judgment for breach of contract for salaried employees. Denied for executives because of different language.

120

Overtime Class Actions in Banking

• Another case in the line of cases that includes Brown v. CIBC, concerning overtime pay

• Former investment advisors alleged to be entitled to damages for unpaid overtime common in the job

• The bank defended the certification of a class action on the basis that overtime eligibility depended on managerial and ‘greater right or benefit’ exemptions, which are individual issues not suitable for a class action.

121

Rosen v. BMO Nesbitt Burns Inc.2013 ONSC 2144

• Judge distinguished Brown v. CIBC where the managerial exemption prevented certification, on the basis of commonality of job descriptions/functions

• Judge rejected the application of the “greater right or benefit” exemption – whether commissions were greater benefit than overtime was a common issue

• Certified the class action• An appeal is anticipated

122

Emails That Go Astray and Contain Legal Advice

• A non-performing employee accidentally cc’d on an e-mail between the company’s Director of Operations and the company’s lawyer

• Requested advice on potential termination• Despite efforts to recall the e-mail, the employee

read the e-mail and provided copy to her lawyer• The employee took position that she was

constructively dismissed

123

• E-mail was privileged solicitor-client communication and the inadvertent disclosure did not waive privilege

• Still unfair to the employee to preserve privilege• Without email, the employee would be at a

significant disadvantage in establishing the context for the action

• Therefore, entitled to rely on the email

Emails That Go Astray and Contain Legal Advice

124

Fernandes v. Marketforce Communications (2012 ONSC 6392)

• Including the wrong person on an e-mail is an understandable mistake that happens to everyone

• This case is a useful reminder of the potential consequences of such a mistake

125

Restrictive Covenants Even Harder to Enforce

• Employee received over $5 million when he sold his interest in company

• Employee agreed to work for purchaser and received shares in new entity

• Employee signed a non-competition clause that ran 24 months from the date he disposed of his shares in new company

126

Restrictive Covenants Even Harder to Enforce

• Court recognized that non-competes in sale context treated differently than pure employment

• Clause needed to be reasonable in scope, geographic ambit (all of Canada) and time

• Court of Appeal ruled that clause unreasonable because of the way the time limit was defined

127

Martin v. ConCreate USL LP2013 ONCA 1840

• Court did not like uncertainty of the time limit• Sale of shares required consent of lenders and

company• Not clear if Martin could ever get rid of shares

128

Martin v. ConCreate USL LP2013 ONCA 1840

• Martin permitted to operate competitive business within months of receiving $5 million

• Martin’s new company obtained over $32 million in business

• Purchaser company went bankrupt• Case will not be appealed

129

When Does the Obligation to Reinstate End?

• Supervisor, Regulated Substances, Asbestos developed generalized anxiety disorder because of work-related stress

• Medically cleared to work, provided it did not involve asbestos removal

• Sought other positions, which Employer failed to consider or offer her

• Application made in 2004; liability decision released in February 2012

• Parties unable to agree on remedy and HRTO released remedy decision in early 2013

130


• Pay loss of wages, CPP and pension loss from June 26, 2003 until date of reinstatement (over 8 ½ years)

• Reinstatement to suitable alternative employment including adjusting her length of seniority (and provide up to 6 months of job training)

• Could not involve personal liability for health and safety similar to the potential liability caused by working in asbestos

131

• Out of pocket expenses for dental and medical expenses

• Pay adverse tax consequences • Pay applicant $30,000 as compensation for the

injury to her dignity, feelings and self-respect;• Interest (pre and post judgment)


132

Fair v. Hamilton-Wentworth School District, 2013 HRTO 440

• Until Fair, very few cases where HRTO ordered reinstatement over objection of employer

• Aggressive approach to remedies• Significant efforts must be made to

accommodate employee, including into a different position if available

• Demonstrate efforts to be flexible, creative• Cannot use overall cost-cutting as an excuse• Large employers particularly vulnerable

Thank You


Michael ComartinTel: 416-862-4321Email: [email protected]

John IllingworthTel: 519-575-7507Email: [email protected]

Hugh ChristieTel: 416-369-7265Email: [email protected]

gowlings' employment and labour law seminar 2013

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