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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