By: Hilary Page and Lisa Stam

2018 was a whirlwind of statutory changes in the employment law world, which has perhaps overshadowed the judicial developments that have taken place in courts. In today’s post, we turn to all things case law and give our picks for the top 5 employment law cases of 2018.

1. Amberber v. IBM Canada Ltd., 2018 ONCA 571

This one is likely to make most employment lawyers top cases of 2018 lists. We all love a good termination clause case! The law on what makes a valid “without cause” termination clause seems to change like the weather, but Amberber gives us the latest. Bear with us, here is the clause in question:

TERMINATION OF EMPLOYMENT

If you are terminated by IBM other than for cause, IBM will provide you with notice or a separation payment in lieu of notice of termination equal to the greater of (a) one (1) month of your current annual base salary or (b) one week of your current annual base salary, for each completed six months worked from your IBM service reference date to a maximum of twelve (12) months of your annual base salary.

This payment includes any and all termination notice pay, and severance payments you may be entitled to under provincial employment standards legislation and Common Law. Any separation payment will be subject to applicable statutory deductions. In addition, you will be entitled to benefit continuation for the minimum notice period under applicable provincial employment standard legislation.

In the event that the applicable provincial employment standard legislation provides you with superior entitlements upon termination of employment (“statutory entitlements”) than provided for in this offer of employment, IBM shall provide you with your statutory entitlements in substitution for your rights under this offer of employment.

Amberber, an IBM employee with 16 years of service was terminated, in accordance with above language in his contract. He then brought a court case, arguing that the clause was vague and should be deemed unenforceable. The lower court agreed with him. IBM appealed to the Ontario Court of Appeal, who did not.  Justice Gray wrote:   “In my view, there is no ambiguity. As stated by Laskin J.A. in Chilton v. Co-Operators General Insurance Co. (1997), 1997 CanLII 765 (ON CA), 32 O.R. 161 (C.A.), at p. 169, “[t]he court should not strain to create an ambiguity where none exists.”  In my view, the motion judge strained to create an ambiguity where none exists.”

2. Watson v. The Governing Council of the Salvation Army of Canada, 2018 ONSC 1066

This case is important because of its #metoo angle. In this case, the Ontario Superior Court ruled that the Full and Final Release signed by Ms. Watson at the time of her termination did not prevent her from bringing a claim for damages for the sexual harassment she experienced at the hand of her former manager.

The Release, which the employee signed when she was terminated from the Salvation Army after only four months of employment, contained the expected language regarding releasing the employer from ALL claims connected to her employment or the end of her employment. Ms. Watson was paid $10,000 in exchange for executing the release.   

Four years after the termination of her employment, Ms. Watson brought a claim. The defendant manager brought a motion for summary judgment based on the fact that Ms. Watson had executed a release. The Superior Court dismissed the motion stating that the sexual harassment did not arise from the employment relationship and therefore that it was not covered by the release:

“I conclude the Release cannot be considered all inclusive, including the claims herein, as the scope was the employment relationship.  While many of the alleged events occurred at the place of employment and, perhaps, because of the employment, sexual harassment, intimidation and other improper conduct are not connected to employment.”

I can’t help but wonder if this case would have been decided differently a few years ago. The #metoo consciousness raising is having wide effect.

3. Unifor Local 707A v. Suncor Energy Inc., 2018 CanLII 53457

We have blogged about the Suncor Energy drug testing saga in the past. While not exactly a 2018 case, this case saw some movement in 2018 and we think it’s very noteworthy, especially given issues that recreational cannabis legalization is spurring. This is also a good reminder to our American readers of the very different approach Canadian courts take with workplace drug testing generally.

You’ll recall that this long-lived case is all about random drug testing in the workplace. The fact of a safety-sensitive workplace alone is not sufficient justification for random drug testing. Suncor relied on the additional “general problem of substance abuse” as its additional justification. The union challenged this justification. The union prevailed at arbitration, but the arbitration decision was quashed by the Alberta Court of Appeal who ruled that the arbitration panel had made an improper distinction between the bargaining unit in question and the workplace as a whole. In doing so, the Alberta Court of Appeal confirmed that random drug testing was permissible in safety-sensitive workplaces where there was a general problem with drug and alcohol use.  The union appealed the Alberta Court of Appeal’s decision to the Supreme Court of Canada. In June 2018, the Supreme Court denied the leave application, so they will not be hearing the case and in late 2018 Unifor dropped the case, deciding not to take it back to arbitration. Suncor, meanwhile, announced that it will begin random drug testing on workers in safety-sensitive positions in January.

The denial of the leave application is significant because it tacitly endorses the Alberta Court of Appeal’s ruling regarding random drug testing. Had the Supreme Court had an issue with it, we expect they would have not denied the application for leave.

Drug testing is an issue we expect to continue to evolve in 2019. We will keep you posted.

4. A.B. v. Joe Singer Shoes Limited, 2018 HRTO 107

Another impactful case this year was that of A.B v. Joe Singer Shoes. This sad case saw the Ontario Human Rights Tribunal award $200,000 in human rights damages for injury to the Applicant’s dignity, feelings and self-respect harshly denouncing the abuse of power perpetrated by the employer against this long-time employee. The details of this case are sordid and involve multiple sexual assaults and long-term sexual harassment by an employer against the Applicant, an immigrant from Thailand, whose first job upon coming to Canada was working for the personal Respondent at his shoe store. She stayed for almost 30 years and suffered harassment and assaults almost weekly. The Applicant’s version of events was believed over the Respondent’s – though she gave evidence that the Respondent had kept her quiet for years by telling her no one would ever believe her.

Often, we think of HRTO awards as too low to have a significant impact on those who breach the Ontario Human Rights Code. HRTO damages are, after all, not intended to be punitive but compensatory. While the details of this case are extraordinary, and the $200,000 award is still an outlier, this case demonstrates how seriously abuses of power are now being taken.

5. Roskaft v. RONA Inc., 2018 ONSC 2934

This is another case likely to be popular on the top 2018 lists. Some of the most common and tricky issues we deal with as employment lawyers are what to do when employees get sick. We all know that the employer has a duty to accommodate disability up to the point of undue hardship, but we struggle with when frustration finally kicks in.

In his case, Mr. Roskaft a 13-year Rona employee had been off sick for almost three years when Rona decided to terminate his employment for frustration. They reasoned that Mr. Roskaft’s medical evidence showed that he was permanently disabled and that he was unlikely to be able to return to work within a reasonable period. Mr. Roskaft was, at the time, receiving LTD. Mr. Roskaft brought a wrongful dismissal action.

Ontario Superior Court ruled that while Rona could not rely exclusively on evidence from the insurer, Mr. Roskaft’s continued receipt of LTD and representations to the insurer that he was totally and permanently disabled could allow Rona to reasonably conclude that his contract was frustrated.

This case suggests that continued receipt of LTD may act to tip the balance in frustration cases.