June 25, 2015

Employees terminated without cause have a duty to mitigate their damages by taking reasonable steps to secure alternate employment. In Steinbach v. Clean Energy Compression Corp, the court found that the employee’s efforts to find new work, particularly by electing to undertake training for a new career in an unrelated field, did not meet that duty and consequently ordered a lower notice period than it otherwise would have:

A good reminder to employers to stick to the truth when it comes to any statements they make about former employees. The British Columbia Supreme Court recently awarded damages to a plaintiff against his former employer for defamation. The former employer had made statements to others in the industry that the plaintiff was incompetent, breached professional obligations, and was terminated for his unscrupulous practices. The employer failed to retract those statements and refused to apologize. Each of the defendants were ordered to pay the plaintiff $15,000:

Frustration of contract occurs when an unanticipated event renders the contract impossible to perform. In a recent case out of Ontario, the court found that an employment contract involving a terminally ill employee who eventually passed away was frustrated by the employee’s illness:

An example of a successful due diligence defence in an occupational health and safety prosecution where the employee undertook work that he was clearly not authorized or directed to conduct:

Ontario recently introduced Bill 113 the Police Record Checks Reform Act aimed to provide clear, consistent and comprehensive standards for how police checks are requested, conducted and disclosed. The Bill will affect employers that routinely request police record checks as part of the hiring process:

A complainant in an Ontario Human Rights Tribunal matter withdrew her complaint on the “proverbial steps” to the court house. The respondent employer argued that this was  case that demanded costs be awarded against the complainant. The respondent also argued that the applicant should be declared a vexatious litigant. The Tribunal issued a stern rebuke but found that it could not award costs as it did not have jurisdiction to do so. The complainant was, however, prohibited from making any further applications against the respondent:

The provincial court in Nova Scotia recently agreed to a “creative sentencing” option against  a defendant company involved in an occupational health and safety prosecution following the electrocution death of an employee. In addition to a $35,000 fine to the company, the court also ordered that the company to make a series of presentations about the facts of the case and the workplace issues involved totaling 150 hours over 18 months:

Several amendments were made recently to PIPEDA, the federal private sector privacy legislation in Canada. A summary of some of the changes as noted on Slaw:

The business contact exception from the definition of personal information has been broadened.

Provisions have been added to allow the transfer of personal information to an acquiring business for both diligence and closing purposes. Most have been approaching this in a similar way, but vendors/purchasers, and their counsel should make sure they comply with the exact requirements.

A new section says consent is only valid if the individual would understand what they are consenting to. This speaks to the clarity of the explanation, and is particularly important when dealing with children.

Several new exceptions to the collection, use and disclosure of personal information without consent have been added. Such as witness statements, communication to next of kin of ill or deceased persons, and fraud prevention.

The Commissioner now has a compliance agreement remedy.

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June 17, 2015

According to a recent case out of Ontario, terminating an employee in June could lead to larger damage awards:

In light of recent news concerning airline employees suffering from mental illness, should employees be required to disclose known disabilities?

Normally, when an employee on a fixed-term employment contract is terminated early, the employee is entitled to damages for the income he or she would have received for the balance of the contract had it not been terminated early. According to this decision out of Ontario, that may not be the case. When the court found a termination provision to be unenforceable, the employer successfully argued that the employee should be entitled only to reasonable notice of termination instead of the balance of the five year contract. Why? Because the parties included an early termination provision, it was clear that something less than the balance of the contract should be awarded if the agreement was terminated early. It was not the parties’ intentions to award damages for the balance of the contract:

Sean Bawden with another interesting post about reconciling the duty to mitigate with summary judgment in wrongful dismissal cases:




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May 27, 2015

Stringer LLP writes about another example of the court striking down a termination provision in an employment agreement resulting in a lengthy common law notice period. Here, the clause did not properly account for fringe benefits during the statutory notice period and therefore violated the Employment Standards Act, 2000:

Stewart McKelvey writes about the Ogden v. CIBC case from earlier this year and the concept of cumulative cause:

The British Columbia Supreme Court found an employee’s maternity leave was not a good reason to reduce her bonus. The employee had exceeded her targets early in the year but the employer still deducted from her bonus because she missed four months of the year on maternity leave:

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May 13, 2015

A Human Rights Tribunal in Quebec has sided with a man who was fired for his job after he was charged with marijuana possession and the charges were later dropped. The man was an employee of a flooring company sent on contract to perform work at a prison for inmates who committed sexual crimes.  The prison, which was closed for renovations at the time, thought the man a security risk and did not permit him on site. He was fired by his employer and lodged a human rights complaint shortly thereafter. The Tribunal held that even if he had been convicted of the possession charges, there was no rational link between that offence and the perceived security risk:

The Ontario Court of Appeal recently upheld a common and related employer decision. At the court below, several related corporate defendants were found jointly and severally liable for reasonable notice of termination and pension benefits despite the fact that the plaintiff had not been technically employed by some of the defendants:

Termination of a unionized probationary employee can have consequences.

The Canadian Payroll Consulting blog advocates for the reform of “province of employment” rules:

Much has been written on social media and elsewhere about the #FHRITP story which came to a head here in Canada over the past few days. A history of the meme can be found here (which actually began as a series of fake news blooper clips) along with video of CityTV News reporter  Shauna Hunt now famously confronting the heckler. Word came out yesterday that one of the men in the video was about to be fired and a second man was under investigation by his employer. Once again, off-duty misconduct is shown to have very real consequences in the workplace:

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May 1, 2015

Canada’s Privacy Commissioner released some materials this week dealing with Canada’s anti-spam legislation (CASL), including a guide for businesses doing e-marketing:

The Ontario Court of Appeal upholds a decision in which the trial judge found it would not be reasonable for a long-term employee to continue working in a less important position with his former employer following constructive dismissal on the basis that the employee viewed the environment as “unfriendly”:

Stuart Rudner writes about why it makes sense to provide a reference letter to employees dismissed without cause (hint: helping the employee mitigate his or her damages is good for the employer):

  •  http://rudnermacdonald.com/dismissals/providing-employment-references-just-makes-sense/

Michael FItzgibbon in his “Thoughts from a Management Lawyer Blog” discusses how far an employer must go to assist a departing employee to mitigate his or her damages:

The BC Court of Appeal overturns an earlier trial judgment and sends the case back for a new trial in Ogden v. Canadian Imperial Bank of Commerce. The plaintiff bank employee had been terminated for cause after a wire transfer incident involving a client. The BCCA found the trial judge misapprehended the defendant’s arguments and the evidence before it relating to the incident and others that preceded it which may constitute cause for termination:

The Ontario Superior Court of Justice concluded that two workers were in fact dependent contractors and entitled to 26 months’ notice of termination:

An arbitrator upheld a three day suspension for a large employee after he made hostile and intimidating comments to a smaller co-worker in the company washroom:

Evan Campbell from Miller Thomson’s Guelph office on the dos and don’ts for employers during union drives:

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April 22, 2015

Doug MacLeod provides an update on recent employment law decisions that were heard as summary judgment motions in Ontario:

The Canadian Payroll Consulting blog with some tips on vacation time and pay best practices:

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March 18, 2015

On employer rights and obligations when faced with severe weather:

HRM Canada on the problem with paid suspensions in the wake of last week’s SCC decision in Potter:

Avoiding employer liability when terminating short service employees:

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March 9, 2015

On Friday, the Supreme Court of Canada released an interesting decision in Potter v. New Brunswick Legal Aid Services Commission discussing the test for constructive dismissal. Sean Bawden reviews the case and the two paths to constructive dismissal in his blog, Labour Pains:

Changes to the Canada Labour Code’s holiday pay rules are coming into effect March 16:

The Ontario Human Rights Tribunal ruled recently that the termination of long-term disability benefits for workers over age 65 does not infringe the Human Rights Code. Similar provisions exist in the Alberta Human Rights Act that permit the termination of such benefits in Alberta:

Stuart Rudner on the importance of consideration to ensure an employment contract is enforceable:

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March 6, 2015

Your first ten years in the labour market likely shape your lifetime earning potential:

Stuart Rudner explores whether an employer can void a severance agreement if employee misconduct is discovered after entering the agreement. The issue was considered in a case in Ontario called Ruder v. 1049077 Ontario Limited. Factors to be determined when determining whether a settlement agreement can be voided include:

  1. the evidence of mistake;
  2. the reasonableness of the agreements;
  3. the prejudice to the party seeking to uphold the settlement if it is not enforced;
  4. the prejudice to the party seeking to set aside the settlement if it is not if it is enforced in relation to the prejudice to the party who seeks to uphold the settlement if it is not enforced;
  5. the effect on third parties if it is not enforced; and
  6. whether there was a real risk of injustice.

A staff lawyer terminated after 22 years of service was awarded 22 months’ pay in lieu of notice, compensation for other employment related losses, damages for a failure on the part of the Defendant to act in accordance with its duty to the Plaintiff to act fairly and in good faith as regards his dismissal, interest and costs after the Defendant failed to establish just cause for dismissal after a lengthy trial:

The Alberta Court of Appeal recently overturned the decision of a chambers judge which had upheld the decision of a Master to strike the appellant’s claim related to constructive dismissal. At first instance, the plaintiff sought to sue his employer for stress and related disabling physical harm he suffered as a result of what he considered a campaign of harassment and bullying. He sought damages for pain and suffering and loss of income and benefits including the difference between his LTD payments and the salary he would have earned to age 65.

Without filing a defence, the Defendant made an application to dismiss the claim before a Master arguing the court was without jurisdiction to hear the complaint because the matter was exclusively within the jurisdiction of the Workers’ Compensation Board. The Master agreed and struck the claim.

The plaintiff appealed that ruling and also applied to amend his claim to include a claim for constructive dismissal. The chambers judge allowed the amendment but concluded, notwithstanding the amendment, the essential character of the dispute framed in the Statement of Claim arose from an accident as defined in the Workers’ Compensation Act leading him to conclude that the matter remained in the exclusive jurisdiction of the WCB.

At the Court of Appeal, the panel disagreed with the characterization of the essential character of the claim:

The nature of the dispute in this case, as it currently stands, is twofold. The amended statement of claim seeks damages for two causes of action: i) physical and psychological injuries sustained in the workplace, and ii) constructive dismissal…

The WCA is the statutory scheme with jurisdiction to address the first cause of action, but not the second. The WCA asserts no jurisdiction to compensate claims for constructive dismissal and it is not suggested that there exists a collective agreement or any statutory scheme which could assume jurisdiction to address that claim. If the judgment appealed from were allowed to stand, the appellant would be left without a forum to advance that claim, as would every other claimant for constructive dismissal who alleged that the workplace abuse leading to termination also caused stress or other psychological injury. With respect, we conclude the chambers judge erred in striking the claim as it relates to the claim for constructive dismissal.

The Superior Court of Ontario ordered the disclosure of the investigator’s notes following a workplace investigation that resulted in his termination. At the time of the investigation, the plaintiff had argued that the investigator was biased against him. The investigator and a third party discussed the matter over email and copied legal counsel on the message. The plaintiff sought production of that email.

The court ruled that in order for the communication to be privileged, three criteria must be met:

  1. It was a communication between a solicitor and a client;
  2. It entailed the seeking or giving of legal advice; and
  3. It was intended to be confidential between the parties.

The parties agreed the first and third criteria were met. The court found that the purpose of the email was not to get legal advice but for one party to give its unbiased opinion of events to the other party. Simply copying legal counsel on the message was not enough.

Yesterday, the CRTC announced that the first fine for violation of Canada’s Anitspam Laws (CASL) had been issued. Following an investigation, Quebec-based corporate training firm Compu-Finder was issued a Notice of Violation including a penalty for $1.1M.

Compu-Finder was cited for four violations of CASL after it sent commercial electronic messages without the recipients’ consent and without an unsubscribe mechanism. The CRTC notes that Compu-Finder was responsible for 26% of the complaints submitted to the Spam Reporting Centre.

Jennifer Heath of Rubin Thomlinson with an interesting piece on implementing a mandatory vaccination policy in your workplace:

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January 28, 2015

It was earlier reported that Target employees would get around 16 weeks’ pay as the company wound down operations in Canada. In this article, some employees are upset that they might get 16 weeks’ notice of termination rather than 16 weeks’ pay in lieu of notice:

Workers who are let go before the end of the wind-down period will continue to be paid, effectively receiving “severance” pay equal to the average hourly wage they had been earning. However, if employees are needed for the whole period, they’ll work as usual, and will receive no additional severance pay. If an employee quits or finds a new job during that time, they get nothing additional.

The BC Human Rights Tribunal will hear a complaint from a number of former employees at a pulp mill in Castlegar, BC who allege that female employees were denied equal pay and promotions that men in the same position received:

An Alberta Provincial Court judge ordered “moral damages” against the defendant in a wrongful dismissal action for what he described as a lack of good faith and fair dealings in the termination:

[64] The Court can not condone the Defendant’s actions. The Defendant was not candid with the Plaintiff. The Defendant did not afford the Plaintiff the opportunity to accept the proposal submitted to him, despite advising him to think about it. The Defendant was not truthful in stating the reason for dismissal. The Defendant was considering terminating the Plaintiff, before change to the Plaintiffs work hours was even raised with the Plaintiff. The Defendant, however, stating the Plaintiff’s alleged rejection of the work hours proposal as the reason for dismissal.

[65] Following the principles established in Wallace and Keays, for the reasons I have detailed and employing the language developed in Zesta and Simmons, the Plaintiff is entitled to moral damages.

Doug MacLeod writes in his blog about the costs of terminating an employee returning from a pregnancy leave. The plaintiff was an office manager at a dental practice returning from a pregnancy leave. Just prior to her return, her employer informed her that she would be returning to a different position as a dental hygienist with later hours which the employer knew would pose child care issues for the employee. The plaintiff sued and was awarded pay in lieu of notice of 12 months plus $30,000 for breach of her human rights.

The Ontario Supreme Court adopted the test described in the Federal Court of a Appeal’s decision in Johnstone for determining whether there is discrimination on the basis of family status:

Is posting a job change on social media soliciting former clients? Sean Bawden doesn’t think so, but, he opines, you may be off side if you start adding clients of your former employer to your social media account immediately before or just after you switch jobs:

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