Whose device is it anyway?

Technology continues to blur the lines between our personal and work lives.  How often have you answered a client email on your work laptop, only to receive a follow-up question via text message on your personal phone?  

Many workplaces have adapted to the fluid use of technology and encourage their employees to use their own technology at work through bring your own device (BYOD) policies.

BYOD can provide many benefits to workplaces and employees. It has been shown to improve efficiencies and worker engagement while powering a more innovative, productive and collaborative workforce.  

As the use of mobile devices increases relative to personal computers, and as organizations continue to embrace the benefits of remote working arrangements, we believe that BYOD will continue to trend upwards.

But what are some of the legal risks and best practices surrounding BYOD which organizations should be aware of?

Permitted Uses

Employers should define the acceptable uses of personal devices for work purposes.  An employee’s use of email, instant-messaging and the internet can be a vehicle for inappropriate, discriminatory or harassing behaviour, especially for employees who feel less inhibited using their personal device.  

For example, an employee who exchanges inappropriate images with another employee on their respective personal devices could be engaging in workplace harassment.  As such, employers should be clear about the acceptable uses of workplace technology, regardless of who owns the equipment.

Vicarious Liability and Security

Vicarious liability refers to a concept whereby employers can be held responsible for the negligent actions of an employee, which includes an employee’s use of technology.

What happens when an employee’s personal computer is stolen, yet is flush with highly sensitive client information and which has minimal security preventing access to the computer, company networks and applications?  What about an employee who uses their personal computer to visit questionable websites on their personal time and is then subject to a malware attack which places confidential company information at risk?

Employers should educate employees on the importance of security best practices, such as not storing any work product locally.  Organizational best practices can also include using a password manager like LastPass and using a Virtual Private Network (VPN) to add security and privacy to private and public networks.

BYOD policies should also contemplate the security of confidential information on personal devices for departing employees.  The exit requirements should include a process for deleting data and proprietary information, as well as revoking access to organizational networks and applications.

Overtime

We have previously written about some of the issues surrounding constant connectivity, which can include claims for unpaid overtime to employees who are checking and responding to emails after work hours.  This is especially true for remote workers and workers who use their personal devices at work.  Employers should, therefore, have clear policies about the use of personal devices for work-related activities after hours.

Takeaways

While there may be some logistical hurdles in implementing an effective BYOD policy, we do not think it is something employers should shy away from.  Studies suggest that up to 67% of employees use a personal device at work, whether an organization has a BYOD policy or not.  You might as well embrace the fact that your top performers will check their work email on their brand new iPhone and access your cloud platform from their tablet in a trendy coffee shop on a Sunday afternoon.  

Organizations should therefore proactively devise and manage effective BYOD policies so that both employers and employees can reap the benefits of leveraging technology in the workplace.  

If you need help developing a BYOD policy, we would be glad to assist.

When employees revolt!

Microsoft employees recently made the news protesting the company’s $479 million contract with the U.S. Military to create mixed reality headsets using the HoloLens platform for use in war. Click on the link if you have no clue what we are talking about, but these are basically headsets that blend reality and virtual reality into the wearer’s experience. Anyway, whatever it is Microsoft is working on something for the U.S. Military that, using this technology, “provides increased lethality, mobility, and situational awareness necessary to achieve overmatch against our current and future adversaries.”

Some of the Microsoft engineers tasked with working on this project signed a petition stating that they “refuse to create technology for warfare and oppression” and demanding that Microsoft stop the project. Microsoft has so far not heeded the employees’ demands to stop working with the U.S. Military on this project and it is not expected that they will.  

When employees revolt

When employees are upset about a corporate direction or don’t want to work on a certain project because it conflicts with their own ethical code what happens? Can they just refuse to work? Do their ethical objections need to be accommodated by moving them to another project? Like most answers you’re bound to get from a lawyer, it depends.

Do disgruntled employees need to be accommodated?

Is what the employee is being asked to do within the scope of their contract or job? Any fundamental change to the terms of the employee’s contract or job could constitute a constructive dismissal. This would give the employee the right to make a claim against the employer for wrongful dismissal and notice damages.

Is the employee being asked to do something that is within the scope of their job but that violates their human rights somehow. Perhaps, for example, the work project is somehow contrary to their religious beliefs. In this case, an employer may need to provide the employee with accommodations.

Takeaways

If there are neither human rights nor constructive dismissal concerns an employer probably won’t legally have to kowtow to what more rightfully be seen as their employees’ preferences. If an employee simply refuses to work this may be grounds for a for cause dismissal or frustration of contract.  However, employers who have the capacity to do so may be wise to be sensitive to the preferences of their employees. Millennials, in particular, are known for having strong preferences and for speaking up when they disagree. Knowledge-based employers like Microsoft cannot afford to lose large numbers of talented and skilled people and so would do well to keep them as happy and productive as possible.  

Are you facing an ethical dilemma regarding a project in your workplace? Do you have employees in revolt over new duties? If so we’re here to help!  

Cameras in the workplace: Privacy Law and inadvertently catching your employees in the act

At SpringLaw, we are interested in privacy, technology and how they intersect in the workplace. A recent arbitration decision brought all three together and gives us some insight into how decision makers might treat evidence collected via surreptitious surveillance.

In Vernon Professional Firefighter’s Association, IAFF, Local 1517 and The Corporation of the City of Vernon the employer fire chief installed a security camera in his office. He did so based on a suspicion that someone was surreptitiously accessing confidential information held in a locked filing cabinet in his office. One morning he found the cabinet, which was usually locked, unlocked.

Instead of catching the officer snooper, one weekend the chief’s surveillance camera caught two employees engaging in a sexual act. The employees were terminated and grieved the terminations. The union brought an application to exclude the video. The decision in question addresses whether or not the video evidence was admissible.

Authorized Collection of Personal Information

The firefighters’ union argued that the surveillance camera footage was not admissible as evidence. The union argued that the video surveillance was not an authorized collection of personal information under  British Columbia’s Freedom of Information and Protection of Privacy Act (FIPPA).

British Columbia, for the record, has the most developed privacy law regime in Canada. FIPPA applies to institutions. Ontario has a similar law, also called Freedom of Information and Protection of Privacy Act. Under these laws, collection of personal information (such as video of a sex act) can be collected only for an authorized purpose and generally the person from whom the information is collected must be pre-notified.

The fire chief in this case surreptitiously recorded his office, so the employees did not have notice. However, the arbitration board held that the indirect collection of personal information was necessary, a reasonable exercise of managerial authority and that it had been collected in a reasonable manner. The employer was attempting to catch the snooper. The employer was be permitted to use the video in the termination grievance.

Factors to Consider When Collecting Personal Information

In making the determination that the collection, in this case, was reasonable, the arbitration board considered the following factors. These may be useful for employers wondering about the legality of hidden cameras in the workplace.

  1.  Was there a good reason for the surveillance? In this case, the snooper amounted to the reasons.
  2.   Were efforts made to address the problem in other ways? Installing hidden cameras should usually be a last effort.
  3.   Were there other sources for the same information?
  4.   Do the employees have an expectation of privacy at the time and place of the surveillance? For example, they very likely would if the camera was in their own private office or a washroom.
  5.   What is the scope of personal information collected? For example, does the camera capture information about all employees or only employees about whom the employer has suspicion?
  6.   What is the extent of intrusion into privacy? Is it constant or transitory?
  7.   How serious is the loss of privacy by employees captured by the surveillance? For example, bathroom surveillance would be a very serious loss of privacy.

Takeaways

While this case involved a public body, to whom privacy legislation applies, we can surmise that similar factors would be considered in regards to invasions of employee privacy in other contexts. Employer authority and the need to manage the workplace will always be balanced with the employees’ own privacy interests.

Do you work in a workplace with cameras? Are you an employer contemplating surreptitiously surveilling your employees? Privacy remains a tricky legal area with many potential landmines to step on. Get in touch if you’d like to talk to one of us about it!

The price of workplace harassment

Valentine’s Day has us thinking about romance. In the mind of an employment lawyer, the leap from romance to harassment is a short one, and so that is what our post is about today. Harassment is not a new topic for us. You can read our past posts on sexual harassment, employer obligations regarding harassment and the time we waste on sexual harassment for a primer on the subject.

Today we are going to take a look at what comes after the harassment has been reported, investigated and substantiated. What are the consequences of harassment?

OHSA Obligations

The Ontario Health and Safety Act requires that workplaces have harassment policies and plans in place in order to prevent and address workplace harassment. When harassment is reported or comes to light, either formally or informally, the employer has an obligation to investigate. What that investigation will entail depends on what the complaint consists of. The investigation should be conducted by an independent person. This can, in some cases, be someone internal as long as they were not involved in the harassment situation in any way and as long as they are not somehow under the thumb of either party. In situations where the complaint is complex or involves multiple people, organizations often choose to bring in a truly impartial third-party investigator. The investigation will determine whether or not the allegations of harassment are substantiated.

When a Harassment Allegation is Substantiated

Once the investigation has determined that the allegation of harassment is substantiated, what comes next? The employer will need to determine how to appropriately deal with the harasser. Depending on the situation, this could mean training, an apology, a re-organization of their role or reports. In some serious situations, harassment may warrant a termination with cause.

What About the Victim?

Harassment allegations often surface once the victim of harassment has left the workplace. They may come to the employer’s attention via a demand letter from employee counsel. This raises the question, is harassment worth anything?

The tort of harassment was recognized in the 2017 Ontario Superior Court case Merrifield v. The Attorney General. In this case, Mr. Merrifield was awarded $100,000 in general damages related to the harassment and intentional infliction of mental suffering he experienced at work.

Successfully establishing the tort of harassment requires that the following be proven:

  • The conduct of the defendant towards the plaintiff was outrageous;
  • The defendant intended to cause emotional distress or had a reckless disregard for causing the plaintiff to suffer from emotional distress;
  • The plaintiff suffered from severe or extreme emotional distress; and
  • That the outrageous conduct of the defendant was the actual and proximate cause of the emotional distress.

This legal test for harassment is similar but tougher than that of intentional infliction of mental distress. The conduct must be “outrageous and flagrant” and the mental distress must be visible and provable.

Takeaways

While this is a developing area of law, employers may be vicariously liable for employee on employee harassment. It is essential that employers have a proper workplace harassment program in place. Individual employees may also be liable for their harassing actions in the workplace.

Victims of harassment, that is not related to a Human Rights Code ground can turn to the courts to recover from harassment. However, the bar to recovery is, thus far, very high.

Rise of the machines in the workplace

Here Come the Robots

Is your workplace about to be automated? A recent study by McKinsey & Company suggests that about half of the activities (not jobs) carried out by workers could be automated right now with currently available technologies.  The study assessed 2000 work activities across more than 800 occupations, including mortgage brokers and CEOs.  Those are a lot of activities affecting a wide range of occupations.

Not even lawyers are immune from the rise of the machines!  Researchers have shown that algorithms can significantly outperform human judges in predicting whether an accused person will behave, or flee and/or commit a crime while on bail.  

Does this mean that all workers are on the verge of being replaced by robots? Not yet at least.  But it does mean that in nearly every industry, human workers should get comfortable working alongside machines.  

But what are some legal implications for employers and employees?

They Took Our Jobs!

One of the results of automation of job tasks is the changing nature of the job itself.  In some jobs, the automation of administrative or technical tasks can free up workers to focus on the uniquely human and strategic tasks which are most fundamental to the job itself.  For example, at SpringLaw, our lawyers leverage state of the art AI and predictive analytics to conduct legal research, which frees up time to focus on advising clients and devising file and negotiation strategy.  In this sense, the use of technology has changed some of our day to day tasks, but the essential character and essence of our jobs as lawyers have been enhanced.

On the other hand, consider the job of a school bus driver, whose job tasks include driving a school bus, but also include supervising a large group of children.  Suppose the operation of the school bus becomes fully automated, but a trustworthy adult is still required to supervise the children and ensure they do not interfere with the safe operation of the bus.  In this case, the essential character of the job has arguably been changed from driving a bus to supervising children.

When is Automation Constructive Dismissal?

If an employer does not specifically reserve the right to alter an employee’s essential job duties, an employee could argue that there was a fundamental breach of the employment contract and make a claim for constructive dismissal.  If the new role is beyond, below or so completely unrelated to their current role, an employer may be inadvertently setting an employee up for failure in the name of progress.

Jobs and workplaces evolve and employees should expect the inevitable journey of change in today’s workplace. Employers should expect to have to continuously invest in skills training. If, however, there is a contractual agreement to perform a certain role and that role is fundamentally changed, employers are at risk of a constructive dismissal lawsuit.

The simple (but not easy) solution is to terminate the employee without cause and offer up a reasonable termination package. The problem arises when employers try to prove someone is not performing their role or is now incompetent. The threshold for a “with cause” termination is very high in Canada, and odds are it will be cheaper (and certainly more decent) to offer a package and look for a different skill set.

There will no doubt be a long, messy period between the investments in new software and technology to upgrade the workplace systems,  the skill set misalignment, the discussions about what the role should look like, and then the hard questions asked about what next steps should look like.

Simply automating a task is sometimes not so simple. Employers will need to remain mindful of the impact of tech on people and while we don’t think that should stop progress, we do think there are employment law risks that face employers along the way.

Automation is in full swing and is here to stay.  We are happy and ready to answer all of your questions related to employment law and the implementation of technology in your workplace.  

References: Is honesty the best policy?

As kids, we learned that telling the truth was the right thing to do, but ask a lawyer and this golden rule is likely to become a little bit tarnished! However, a recent decision about honesty when providing a former employee with a reference might make us all feel a little better about telling the truth.

Kanak v. Riggin

On January 17, 2019, the Supreme Court of Canada denied leave to appeal in the case of Kanak v. Riggin. In 2018, the Ontario Court of Appeal upheld the 2017 trial judge’s decision which gave the thumbs up to honesty when it comes to giving employee references.

In this case, Ms. Kanak, a former employee of Mr. Riggin, was offered a job conditional upon a positive reference check. Ms. Kanak gave Mr. Riggin as her reference. When contacted by the new employer, Mr. Riggin was honest with his feedback, which led the new employer to rescind the job offer. Ms. Kanak then sued Mr. Riggin for defamation. She plead that he was motivated to make unflattering statements about her by malice, spite and a desire for revenge.

The Honest Truth

When asked, Mr. Riggin had told the new employer the following about Ms. Kanak:

  • There was a lot of conflict between Ms. Kanak, her supervisor and other employees;
  • Ms. Kanak did not take directions well;
  • Ms. Kanak is narrowly-focused;
  • Ms. Kanak did not handle stress well; and
  • He would not re-hire her.

Mr. Riggin denied being motivated by malice. He stated that he acted in good faith and that his statements were accurate. Notably, while working under Mr. Riggin, Ms. Kanak had consistently received positive performance reviews and merit-based pay increases. She had been laid off, along with other employees, due to the sale of the business and through no fault of her own.

Defamation?

The trial judge found that Mr. Riggin’s statements about Ms. Kanak did amount to defamation but that qualified privilege was a defence.

The legal test for defamation requires that all of the following be established:

  • The words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
  • That the words in fact referred to the plaintiff; and
  • That the words were published, meaning that they were communicated to at least one person other than the plaintiff.

While defamation was made out here, defamation in the form of an employment reference attracts no liability because it is a situation of qualified privilege.

On this point, the judge said the following:

The social policy underpinning the protection of employment references in this manner is clear: an employer must be able to give a job reference with candour as to the strengths and weaknesses of an employee, without fear of being sued in defamation for doing so. Without this protection, references would either not be given, or would be given with such edited content as to render them at best unhelpful or at worst misleading to a prospective employer.

Qualified privilege can be defeated, and liability for defamation can arise only where the statements are false AND malicious. The trial judge concluded that Mr. Riggin’s reference was not malicious. Thus the qualified privilege remained intact and Ms. Kanak’s action for defamation failed.

Takeaways

Other than hurt feelings and the potential for being dragged through expensive legal proceedings (admittedly things that can be big deals), employers should feel (mostly) free to be honest when providing references. As long as the employer is truthful and not acting with malice, disgruntled employees will have little legal recourse when given a reference they do not like.

If you’d like to chat about references or the other issues that can arise when employees leave, contact us!  

The Cost of Forcing an Employee to Retire

The Notice periods are trending upwards. One reason for this is that people are not necessarily retiring at 65 anymore, leading employers to struggle with how to exit the older employee for either declining performance reasons (real or perceived) or to simply make room for new talent.

As an example of the high-risk employers face when trying to push out an older worker without a fair package, in Dawe v. Equitable Life Insurance Company, 2018 ONSC 3130, the employee was awarded a 30 month notice period.  Mr. Dawe was terminated from his position as Senior Vice President of the Equitable Life Insurance Company at age 62.  Mr. Dawe had worked from Equitable Life and its predecessor company for 37 years. In his last year of work, Mr. Dawe earned a base salary of $249,000 and a STIP and LTIP bonus totalling $379,585. (We will cover the award for this bonus in a future post.)

Notice Periods for Older Workers

24 months is generally seen as the maximum period of common law reasonable notice to which a terminated employee is entitled. However, courts have also always been careful to add that that there is no absolute cap on reasonable notice.  

In the Dawe case, Justice Gordon commented that Mr. Dawe, while perhaps close to retirement age, should have been allowed to retire on his own terms. There were no comparable jobs available to him and he had dedicated the entirety of his working life to Equitable Life. Losing such a senior position at age 62 was tantamount to a forced retirement. While Mr. Dawe only requested a 30 month notice period, Justice Gordon commented that, had he been asked to, he would have awarded him 36 months.

Terminating Older Workers

In our experience, terminations of employees close to retirement are common. Often new management wants fresh blood to shake up how things have been done for years, or employers have stereotypical concerns about older workers keeping up with new technology and systems.

Since 2006, mandatory retirement is no longer legal. We live in an information workforce age where many jobs are not limited by age or a physical decline. Our lifespan and our work lives are longer than they have ever been. How workplaces adjust to this reality remains full of bumps in the road. The need for change management and new talent may be seen to outweigh the price of a notice period payment of an older worker.

The Dawe case shows, however, that the price tag could be hundreds of thousands of dollars. Wrapping up someone’s career requires careful planning and communication, and benefits from a shared goal of making it both fair and conducted with dignity.

If you have questions about retirement, notice periods or older workers get in touch! We’d love to chat.

All About Commissions

Employment arrangements with different kinds of compensation are common and can present a lot of questions when it comes to a termination. In this post, we will look at how the law treats commissions.

Notice Pay

Readers of our blog will know by now that when an employee is terminated without cause they are entitled to notice. How much notice will depend on whether or not there is a contract, the age of the employee, the character of the employment, the length of time the employee worked with the employer, etc. We usually talk about notice in terms of number of months.

Notice can be either working notice, where the employee is told that their job will end in a certain number of months and they continue working until that time or pay in lieu of notice, where the employee stops working on the day they are terminated but receives a notice payment representing a certain amount of months of pay. The notice payment can be structured as a lump-sum, one-time payment or as salary continuance, where the employee continues to get paid their regular salary for an amount of time. When an employee is paid commissions, the question of what is their regular salary arises.

Entitlement to Commissions During the Notice Period

Generally, an employee is going to be entitled to notice pay that includes an amount for commissions. Commissions are considered to be “wages” under the Ontario Employment Standards Act (ESA). Attempting to contract out of paying an employee their full “wages” during the notice period may violate the ESA.  This will especially be the case if the commissions formed an integral part of the employee’s overall compensation. In general, terminated employees must be “kept whole” during the notice period, this includes payment of wages and continuation of other benefits.  The notion of being “kept whole” is the legal way of saying that terminated employees should continue to be compensated as they were when actively at work.

Calculating Commissions During the Notice Period

Given that employees will generally be entitled commissions during the notice period, we are often asked how much they should be? When commissions are based on sales, but an employee is no longer at work making sales, how can the amount of a commission payment be determined? The most common approach is to take an average of the employee’s commissions over the last few years. If commissions are variable based on things like season, then a more logical approach may be to look at figures for specific months in the past year. The employee is entitled to compensation during the notice period that they would have earned had they been at work.

Another issue is the question of commissions earned prior to termination but not yet paid out. In general, terminated employees will be entitled to these.  If you have questions about commissions or other quirky forms of compensation, get in touch!

Costs and Legal Tech

At SpringLaw we love legal tech and consequently, a few recent cost decisions have caught our eye. In both Cass v. 1410088 Ontario Inc. (“Cass”) and Drummond v. The Cadillac Fairview Corp. Ltd. (“Drummond”) justices of the Ontario Superior Court made comments about artificial intelligence and legal research.

The Cass case was a slip and fall in which the defendant prevailed. The plaintiff, who was liable for costs, argued that defendant counsel fees were excessive and unnecessary. One issue raised was a $900 fee for case precedents, which the plaintiff argued, are available for free through CanLII or publicly accessible websites. Justice Whitten, perhaps also a lover of legal tech, agreed. He stated in relation to both the excessive amount of time counsel had spent on legal research, as well as the fee that, “[i]f artificial intelligence sources were employed, no doubt counsel’s preparation time would have been significantly reduced.” The defendant’s claims for disbursements was ultimately reduced from $24,300.67 to $11,404.08.

In Drummond, the defendant objected to the $1,323 claimed for legal research costs incurred using WestLaw. Justice Perell commented that the law is divided regarding whether a disbursement for legal research is a recoverable cost. One view is that legal research tools are simply part of a lawyer’s overhead and not recoverable, another is that they are a reasonable and recoverable disbursement.

Justice Perell’s own view aligns with the latter. In allowing the $1,323 disbursement for legal research he commented that, “computer-assisted legal research is a necessity for the contemporary practice of law and computer assisted legal research is here to stay with further advances in artificial intelligence to be anticipated and to be encouraged.” He further noted that, “computer assisted legal research provides a more comprehensive and more accurate answer to a legal question in shorter time than the conventional research methodologies.”

The message from the bench is clear, lawyers have an obligation to take advantage of the ways in which technology enables us to be more efficient. Neglecting to keep up with the times will cost you!

Top 5 Employment Law Cases of 2018

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.”

  1. 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.

  1. 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.

  1. 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.

  1. 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.

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