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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