January 14, 2015

Two senior corporate officials have been jailed for health and safety offences in Ontario, writes Adrian Miedema in the Dentons Canadian Occupational Health & Safety Law blog. Two directors of New Mex Canada Inc. were jailed for 25 days after a worker was killed in a workplace accident:

Baldev Pura and Rajinder Saini — both directors of New Mex Canada Inc. — were sentenced to 25 days in jail.

And New Mex Canada, an importer and retailer of furniture and accessories, has been fined $250,000.

On Jan. 18, 2013, a worker was moving merchandise in a Brampton, Ont., warehouse using a combination forklift/operator-up platform called an order picker.

The order picker had been modified and had an additional platform supported by the forks which did not have a guard rail around it, and the worker wasn’t wearing fall protection or safety shoes.

The worker was found on the floor and was pronounced dead of blunt force trauma to the head.

The Alberta Human Rights Commission released two decisions recently that concerned the status of settlements between the complainants and respondents.

In Caron v. The City of Edmonton, the respondent argued that the complaint had been settled and that the AHRC lost jurisdiction to hear the complaint.  In determining that the matter had been settled when the respondent offered and paid the sum of $10,000 in exchange for the complainant withdrawing his complaint (and the complainant instructed his counsel to accept), the tribunal chair wrote:

[36]      In considering the matter of whether a settlement agreement should be set aside, I have found it useful to refer to the principles enumerated by Justice Rooke in the Chow v. Mobil Oil Canada decision.[6] As noted in Mr. Carter’s correspondence of September 19, 2014, the decision sets out some criteria for determining the validity and enforceability of an agreement. While the decision addresses the matter of a release given in the context of a human rights complaint, the principles concerning validity and enforceability are no less applicable when considering the validity and enforceability of the purported settlement agreement in the present case. The list provided by Justice Rooke is not intended to be exhaustive of the grounds of challenge. Nonetheless, it includes many pertinent considerations on which I have relied in the summary below:[7]

  1. The actual language of the release itself, [or in this case the withdrawal of the human rights complaint] as to what is included, explicitly or implicitly.
  1. Unconscionability, which exists where there is an inequality of bargaining power and a substantially unfair settlement: Lloyds Bank v. Bundy, [1975] 1 Q.B. 326; Blackmore v. Cablenet Ltd. (1994), 1972 CanLII 864 (SKDC), 8 C.C.C. (2d) 174. This does not, however, allow a tribunal to interfere with a settlement where it finds inadequacy of consideration: Gissing v. T. Eaton Co.,[1911] O.L.R. 50 (C.A.).
  1. Undue Influence may arise where the complainant seeks to attack the sufficiency of consent: Yui-Ming Sui. A plea of this nature will be made out where there has been an improper use by one party to a contract of any kind of coersion, oppression, abuse of power or authority, or compulsion in order to make the other party consent.
  1.       The existence or absence of independent legal advice may also be considered: Yui-Ming Sui; and Adamson. However, if a party has received unreliable legal advice that may not affect the settlement: Robertson v. Walwyn.
  1.       The existence of duress (not mere stress or unhappiness), and sub-issues of timing, financial need, and the like …: Heys, Adamson, D. & C. Builders, and Gregov). 
  1.       The knowledge on the party executing the release as to their rights under the Act, and, possibly, the knowledge on the party receiving the release that a potential complaint under the Act is contemplated.
  1. … lack of capacity, timing of the complaint, mutual mistake, forgery, fraud, etc.

In Stergiou v Apache Canada Ltd., the complainant settled her complaint with the company, received settlement funds, and signed a release. She later filed a human rights complaint based on rumours she heard about herself and a former co-worker. The complainant was given an opportunity to seek independent legal advice and new the that the release was important. She testified that she read the release and signed it, but at the time did not really understand it.

The AHRC found the release valid and enforceable:

[21]      On the facts presented by Ms. Stergiou, she was meeting her monthly financial obligations; there is no basis for setting aside the Release for any reasons of dire financial circumstances. Ms. Stergiou was unwilling to pay a $150 fee for advice about whether the $14,000 payment offered her was appropriate in the circumstances. She testified she was unwilling to meet with or pursue legal advice if there was a fee to be charged. In the circumstances, I do not accept that Ms. Stergiou did not have the opportunity to obtain independent legal advice. She had three pages setting out the names of lawyers from which she could have chosen one. Especially in the face of a $14,000 payment, a fee of $150 is not a reasonable basis upon which Ms. Stergiou can now say she was not given an opportunity to obtain independent legal advice. I reject this argument.

[22]      Ms. Stergiou was given seven days to review and return the signed Release. Even where there is a holiday weekend, a week is typically sufficient time to review a Release and obtain independent legal advice. Where, as here, the complainant returned the signed Release five days prior to the deadline, it is not open to now say she did not have enough time to consider her options. There has been no evidence presented of any undue pressure applied by Apache to Ms. Stergiou. The timeline allowed for signing the Release seriously undermines this argument.

[23]      Based on Ms. Dexter and Ms. Stergiou’s testimony, I accept that she was upset by her termination of employment, but there is no evidence that she was upset to the point of being unable to competently make decisions. She was able to attend interviews and apply for positions. The upset does not approach mental incapacity. I find it is accurately characterized as stress and unhappiness, which do not ground invalidity.

[24]      There was no evidence of duress, or unreasonable requests made of Ms. Stergiou by Apache. Ms. Dexter appropriately stopped Ms. Stergiou from signing the Release during the termination meeting and recommended she take time to review the documents.

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January 13, 2015

Hicks Morley writes about changes to the federal holiday formula under the Canada Labour Code that will come into effect March 16, 2015:

Effective March 16, 2015, significant reforms to the general holiday provisions of Part III of the Canada Labour Code will come into force. The amendments include the introduction of a new “holiday pay” formula and the elimination of certain qualifying requirements. In this FTR Now, we highlight key aspects of these pending changes and the impact they will have on federally regulated employers.

In an article from the December 19, 2014 edition of the Lawyers Weekly, Luis Milan writes about a Quebec Court of Appeal decision which overturned a lower court’s decision which had raised the rules of procedural fairness too high in the case of a workplace investigation. The lower court ruled that the investigation into workplace harassment was flawed for a variety of reasons: the respondent to the complaint was not provided with complete copies of all statements of the complainants and witnesses, one member of the investigation team was replaced part way through the investigation violating the “who hears must decide” principle, and summoning the respondent to meetings without enough notice to adequately prepare:

The appeal court said that workplace investigations into psychological harassment should not be held to the same procedural fairness standards as disciplinary hearings held by a professional corporation and should not be viewed as adversarial in nature, as is the case with administrative or judicial tribunals. Individuals accused of psychological harassment in the workplace therefore should not expect to receive a full copy of the complaints made against them, but instead will have to make do with redacted copies. While pointing out that an “allegation of psychological harassment is not a trivial matter,” the appeal court noted that an investigation should be conducted diligently and within a reasonable time frame.

“It should be reminded that an employee convened to respond to such an allegation during an employer’s investigation is not preparing to appear before a court of justice and cannot demand weeks nor even days to reflect and prepare,” said Justice Marie-France Bich, adding that complainants too have rights, including the right to have their complaint be heard diligently.

“The appeal court held that while it is important to treat people accused of being harassers fairly, it does not mean that an internal investigation should be [turned] into an adversarial process as if it was before the courts of justice, encumbered with rules of procedural fairness,” said Chabot.

Moreover, investigators should be given sufficient latitude to conduct their examinations, so long as they act in a reasonable manner, added the appeal court.

In R v Thomas, the Alberta Provincial Court sentenced Roslyn Rhae Thomas after she pleaded guilty to six counts of fraud over $5000. While working in the payroll departments of six separate employers, Ms. Thomas defrauded those companies of over $1.8M. Ms. Thomas was sentenced to serve 6 years’ incarceration in addition to paying restitution totalling over $1.85M in restitution:

  •  http://www.albertacourts.ab.ca/jdb_new/public/pc/2003-NewTemplate/pc/Criminal/2014/2014abpc0280ed1.pdf

In Schimanksi v B & D Walter Trucking, the court ordered judgment for 4 months’ pay in lieu of notice to a 67 year old bookkeeper with 18 months’ service. The court also ordered aggravated damages in the amount of $2,500 for mental distress on the following basis:

[41] In this case, the following actions and circumstances surrounding the Plaintiff’s dismissal justify an award of damages in her favour for mental distress. I point out that no one of these factors on its own justifies a compensatory award for mental distress, however, looking at them jointly leads to a different conclusion:

1. Proposing that she receive less than the statutory requirements provided by ss230(1)(b) and 235(1)(a) and (b) of the Canada Labour Code RSC, 1985, cL-2.

2. Requiring a release from her before they would pay any of the minimum severance required by law.

3. Withdrawing the severance proposed and alleging just cause based upon post-termination conduct.

4. Filling in and filing the Record of Employment showing her as dismissed.

5. Failing to provide her with the letter of reference promised and alleging that she acted improperly by breaching confidentiality without offering her any opportunity to explain.

6. Maintaining the allegation of just cause throughout the proceedings.

[42] I am satisfied that all of these factors contributed to the Plaintiff’s distress, which required her to attend her doctor and obtain medication to help with her anxiety and sleeplessness.

Just cause for termination was premised on the plaintiff’s breach of confidentiality by using the office of the defendant’s client to send settlement documents effectively telling the client about the termination. However, because the alleged breach occurred after termination and had nothing to do with the conduct or actions of the employee in the performance of her duties while employed and therefore could not justify termination for cause.

Two employees of the City of Hamilton public works department have been suspended pending an investigation for bringing pot brownies to a potluck at work. One coworker who ate a brownie was taken to hospital in life threatening condition:

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January 12, 2015

The Supreme Court of Canada will be releasing two decisions on Friday which concern collective bargaining and freedom of association:

Professor David Doorey on his excellent blog, The Law of Work, wrote up a summary of one of the cases when the Court of Appeal decision was rendered here:

The Government of Alberta has decided that universities, Alberta Health Services, and school boards will be exempt from the requirements of a broadened Sunshine List:

The provincial government has abandoned its plan to broaden its highly touted salary and severance disclosure list to require post-secondary institutions, school boards and Alberta’s health super board to report compensation of employees earning more than $100,000.

“After reviewing the policy, the government determined that its scope and application for Government of Alberta employees, and not for employees of arm’s-length bodies, was appropriate,” said Mike Storeshaw, director of communications for the premier’s office.

“It ensures transparency while respecting employee privacy, and also respects the arm’s-length relationship with government that some organizations require in order to carry out their roles and mandates,” Storeshaw said.

It was just over a year ago when the province, under former premier Alison Redford, unveiled its sunshine list, indicating in a news release that “agencies, boards and commissions will be expected to adopt a similar policy for their organizations,” and quoting the Canadian Taxpayers Federation’s lauding of the policy as the “gold-standard example for other jurisdictions to follow.”

News came down last week that the Alberta Courts (the Provincial Courts, the Court of Queen’s Bench, and the Court of Appeal) will no longer be posting judgments to the Court websites. Decisions will continue to be made available through CanLII, however. I guess we will have to change our bookmarks although I do note the RSS feeds from the albertacourts.ab.ca website seem to still be functioning:

The prairie provinces are, according to this headline,  pondering an overhaul to the delivery of legal services:

Putting your affairs in order might one day be as simple as another stop at Costco or the Alberta Motor Association, the dean of the University of Alberta’s law school says.

With seismic shifts already shaking the American and Commonwealth legal profession, Alberta has joined the Canadian conversation about changes in technology and service delivery that could improve access to legal services, break the virtual monopoly held by lawyers and radically change how and where legal advice is given.

“You can go into an AMA location and get your insurance dealt with, get your tickets to Disneyland,” said Paul Paton, dean of the U of A law school. “Why not be able to access somebody who can do a draft will for you?”

An RCMP member has filed a sexual harassment lawsuit against the RCMP including two named officers and two psychologists. The member has been on medical leave since 2005 and is suffering from post-traumatic stress disorder, according to the claim. A copy of the claim was posted by the CBC in the link below. Among some of the allegations in the claim:

Whitelaw says she joined the RCMP in Manitoba in 1986 and was posted to Grand Rapids, Man., for field training. She says her supervisor, Laurence McKenzie, told her she could live in a filthy, abandoned nursing station.

She says McKenzie told her she could clean it up and “put curtains on the windows since she was a woman and could turn it into a real home.”

Whitelaw claims McKenzie later pulled her sweatpants down when she was helping a colleague move. She says he and another officer, Dave Bettesworth, allegedly turned up at her trailer drunk one night after learning she was a lesbian.

“Bettesworth told the plaintiff that ‘if she made it with a Mountie she would not be a lesbian anymore,'” the notice of civil claim reads.

“They acted with the intent of sexual gratification which traumatized and sexually humiliated the plaintiff and demeaned her value as an RCMP officer and as a human being.”

Whitelaw claims she complained to senior RCMP management in Manitoba but they failed to act. She resigned in 1987 and claims she later learned McKenzie retired from the force because of allegations of improper sexual conduct with another female civilian member.

Another wrongful dismissal case, another judge throwing dirt on the rule of thumb grave:

In a recent case from the Alberta Court of Queen’s Bench (note that the decision was posted to the court’s website), Master Schlosser reviews the law related to releases. Master Schlosser then summarizes said law as follows:

[26] If I were called upon to come up with a test about releases, based on the authorities set out above I would suggest:
1. If the terms of a release do not exclude it, extrinsic evidence is virtually always receivable to determine the meaning and scope of the release. While very broad forms, (such as the language used in Gwininitxw) may exclude some avenues of inquiry, the door still remains open to ascertain whether the subject-matter of the claim was intended to fall within the release.
2. A good rule of thumb might be, (to borrow from another area) that if the requirements of section 3 of the Limitations Act
are not present, the claim in question is not released.
3. In cases where there is a reference to an action, the preferred approach would be to ask whether the claim now sought to be advanced would be res judicata, or subject to the doctrine of merger (eg Sherwood Steel Ltd. v. Odyssey Construction Inc., 2014 ABCA 320), as if the matter had been taken to judgment.

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January 9, 2015

First Reference Talks with a good primer on the current state of the law in Canada concerning whether obesity is a recognized disability:

Howard Levitt in the Financial Post with some solid, basic advice on how to properly overhaul HR policies and contracts. The bit about implementing new or amended employment agreements is something that catches a lot of employers:

In this somewhat recent decision of the Alberta Court of Appeal, the court rules that requesting and supplying mitigation information is not a “thing that materially advances an action” and dismisses the plaintiff’s wrongful dismissal action under the 3-year Drop Dead Rule:

I conclude that although the mitigation information the County had requested was relevant to negotiations, in fact no negotiations ever occurred as a result of that information. The Plaintiff was clearly under an obligation to provide the Defendant with mitigation information, in any event, and even if it had been provided within the three year period it still would not in and of itself have been something that significantly advanced the action. In this case, Ms. McKee only provided some mitigation information on October 31, 2013 after the three year period had passed, and on the eve of the drop dead application. The information Ms. McKee provided clearly did not lead to any settlement negotiations or settlement offer. Accordingly the case authorities submitted by counsel for Ms. McKee that state that settlement discussions and mitigation information being gathered which later narrowed the issue for settlement discussions may constitute a thing that materially advanced an action, are not applicable here since no settlement negotiations or settlement offers ever occurred, and the information was provided after the three years had expired.

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January 6, 2015

In an entry on this site on November 7, 2014, we I linked to a blog post by Stuart Rudner that, among other things, reviewed a case out of BC dealing with the alleged wrongful dismissal of a man named Roe. The BC Court of Appeal has now reversed that decision and sent the case back for reconsideration.

The Court of Appeal held that the trial judge erred in his characterization of the misconduct that occurred giving rise to the termination. Recall that the plaintiff had admitted to giving away $70 in desert and beverage vouchers to his daughter’s volleyball team. While the trial judge found the breach to be trifling, the Court of Appeal found that the trial judge did not take into consideration the high degree of trust and responsibility the plaintiff had as a senior manager.

The Legal Post writes that the provisions of Canada’s Anti-Spam legislation (“CASL”) which will come into force on January 15, 2015 could impact employers with “bring your own device” policies in the workplace. The provisions of CASL coming into force concern requirements for the installation of software on computers and other electronic devices.

Fasken Martineau’s Northern Exposure blog covers a recent case concerning the payment of commissions during the notice period. Absent enforceable contractual language to the contrary, an employee who is terminated is entitled to all pay he or she would have earned during the notice period but for the termination. In this case, contractual language ruled the day and resulted in the employee being denied payment of commissions during the notice period except for those permitted by the contract. Now would be a good time to review your contracts and see whether commissions, bonuses, and other amounts would be payable during the reasonable notice period:

The termination of a junior spy three months before the end of his five year probationary period with CSIS was recently upheld by the Public Service Labour Relations Board:

Tamara Ticoll on the Stikeman Elliott Canadian Employment and Pension Law blog writes about cumulative misconduct justifying just cause termination.  The plaintiff had, over approximately two years, was disciplined for a variety of incidents including poor performance, serious misconduct, insubordination, incompetence, breach of company rules and conduct that was prejudicial to the employer’s business. In finding just cause existed for termination, the court wrote:

[96]              I am of the view that Easy gave Chopra ample verbal and written warnings of its dissatisfaction with his performance and conduct. It gave him every opportunity to improve his behaviour. Easy documented his behaviour and told Chopra he was required to correct it.

[97]              Chopra’s behaviour fell below any reasonable standard of conduct. The cumulative incidents were not minor or trifling. They affected the workplace as a whole.

[98]              Easy had just cause to terminate Chopra’s employment because of the performance issues set out earlier and in addition insubordination and conduct specifically designed to harm Easy, including spreading rumours that Easy was closing.

[99]              As Echlin J. stated it in Daley: “The conclusion that must be drawn in this instance is that the series of acts cumulatively do amount to enough ‘bricks to constitute a just cause wall.'” In my view there were sufficient bricks here to constitute a just cause wall.

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December 29, 2014

In Fernandes v. Peel Educational, the Ontario Superior Court found that the employer did not have cause for termination and awarded a 12 month notice period. However, at the date of termination, the employee was completely disabled and the employer had cut off his benefits. The employer was liable for the value of the employee’s health benefits for nine years to age 65. Another reminder for employers to be sure just cause exists before terminating on that basis:

Googling an employee’s disability is not going to be sufficient for an employer to meet its duty to accommodate the disability of an employee because, as the Ontario Human Rights Tribunal recently held: (1) internet searches will only yield general information, not individualized results; (2) the information can be misleading or wrong; and (3) the information may be biased. You need to make specific inquiries with the employee and the employee’s doctor:


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Changes Coming to the Provincial Court Act and Small Claims Procedure in Alberta

Further changes to the Provincial Court Civil Division here in Alberta, lovingly referred to as “small claims court”, have long been rumored since the Court increased its monetary jurisdiction to $50,000 in August of this year.

At a Canadian Bar Association section meeting held earlier today, more details were revealed. From the sounds of things, two big changes are to be expected.

First, the introduction of a schedule for costs. Presently, small claims courts across the province tend to award costs to the successful litigant based on an informal 5/10% rule. If represented by counsel, the successful party will normally be awarded 10% of the costs of the claim. If self-represented, then the successful party may receive 5% of the value of the claim.

Under proposed amendments to the Provincial Court Act, a schedule for costs analogous to what is presently available with Schedule C of the Court of Queen’s Bench Rules of Court will be in place. Costs will be awarded for various steps taken in the litigation process and will be awarded in various amounts depending on the value of the claim. Theoretically, this will result in costs awards that better represent the true costs incurred in bringing and action in the Provincial Court.

The other noteworthy change will be the introduction of what was described as a Simplified Trial Stream. Similar to the simplified procedures available in British Columbia, Saskatchewan, and some parts of the United Kingdom, the Simplified Trial Stream will likely involve self-represented parties only and will permit the Court to resolve the trial in less than one hour. The parties will be required to file with the Court a Trial Statement that will include copies of the pleadings, theory of the case, damages calculations, and relevant documents. The Court will also have the discretion to limit cross-examination and will be at liberty to hear from one or both or none of the parties. A judge (or perhaps a senior clerk) will triage all newly filed claims and direct appropriate cases, such as those where no real defence exists, to the Simplified Trial Stream.

As I understand it, the draft amendments to the Provincial Court Act are essentially complete although the exact figures to include in the schedule of costs has not been determined. It is hoped that the whole package will be ready for the legislature for the spring sitting.

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December 16, 2014

One of my favourite blogs, Canadian Payroll Consulting by Alan McEwen, covers the topic of employee identity.

What would you do in this situation? You’re hiring an employee, where a valid driver’s licence is required. The company pays by direct deposit, so the applicant has provided a void cheque. You have asked, but the employee says his SIN card has been lost. The driver’s licence shows the person’s name as ‘Richard John Harris’ but the pre-printed bank cheque shows the account holder as ‘Jack Harris’.

Fist Reference Talks deals with how to respond to a frivolous human rights complaint by reviewing the case of Queen v. Pro Bono Law Ontario (2014 HRTO 1092):

The applicant sought the services of the respondent to launch a civil suit for wages allegedly owed to him for his reign as Her Majesty the Queen. The applicant has apparently changed his legal name to Her Majesty (first name) the Queen (last name). Although he identified himself to the Tribunal by his previous legal name, he has submitted documentation to the Tribunal that appears to confirm his change of legal name, including a document of name change issued under the Vital Statistics Act, dated March 20, 2014.

In the world of business immigration, Microsoft has raised the eyebrows of some as they have been granted a previously-unknown labour market impact assessment exemption meaning that the company will be permitted to bring in temporary foreign workers in British Columbia without first offering those jobs to Canadians:

Hat tip to Yosie St. Cyr for linking to this story yesterday. An employee of the Treasury Board brought a grievance against her employer after her request to work from home was rejected. The grievor alleged that her employer:

discriminated against her on the grounds of sex and family status when it refused her request to telework from home full time, Monday to Friday, for a year following the end of her year-long maternity leave in March 2013. She made the request because, as she put it in her grievance, she needed “… to change the way [she worked] because of breastfeeding.”

The Public Service Labour Relations Board considered the various tests from Johnstone, Hoyt and Cambpell River and ultimately decided that the grievor did not demonstrate prima facie discrimination on the basis of family status:

First Reference Talks on whether an employer is obligated to create a new position to accommodate an employee to the point of undue hardship:

In Perron v Revera Long Term Care Inc., 2014 HRTO 766 (CanLII), the Human Rights Tribunal held that an employer’s duty to accommodate does not include a duty to create a new position, fundamentally change working conditions, assign the essential duties of an employee with a disability to other employees or to hire another employee to perform them in the employee’s place.

Matt Maurer on Slaw.ca writes about a case, Donath v. HughesContainers Ltd.,  where a plaintiff successful in a wrongful dismissal lawsuit almost lost out because she got to trial too fast. The court held that a 12 month reasonable notice period would be sufficient, but it had only been 10 months since the plaintiff was terminated. The defendant argued, ultimately unsuccessful, that the plaintiff had a duty to mitigate her damages and there was no telling what would happen in the next 2 months. If she found a job, she would be overcompensated by the trial judge’s wrongful dismissal award:

Dennis Buchanan of the Buchanan Ontario Workplace Law Blog with a deeper analysis of the Donath case noted above:

The Alberta Human Rights Commission offers its advice on how to determine the proper employer of a complainant. In Green v. Kee Management Solutions Inc., the complainant alleged that she had been discriminated against on the basis of her sex in the area of employment. The complainant was dispatched from Calgary to Langley, BC to complete a delivery for a trucking company. To get there, she hitched a ride with another driver in Calgary who, allegedly, sexually assaulted and harassed her during the trip.

The AHRC considered various tests and factors from the SCC and the ABCA in Lockerbie and ultimately determined the employer in this case was a federal undertaking and that the complainant needed to seek a remedy with the Canadian Human Rights Commission instead.

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December 12, 2014

Stuart Rudner discusses two recent cases where employees were fired for absenteeism. Managing absenteeism is a challenge and this post highlights that difficulty:

Employers should closely monitor the attendance of employees and ensure they have clear policies that are being routinely enforced. Where there are concerns, they should be addressed immediately so employees will understand the rules and not be given the opportunity to argue that an informal agreement existed regarding their ability to take time off.

The fundamental bargain between employer and employee is the employee will work and the employer will pay him. There will always be occasions when employees need to take time off work; that is to be expected and employers should be reasonable in tolerating absences. However, where the extent of the absences becomes unreasonable, employers should be able to take action. In many cases, they deprive themselves of the opportunity to do so by failing to consistently enforce policies and discipline offenders.

The Legal Post shines the spotlight on a case from the Ontario Superior Court of Justice from last month. The plaintiff successfully sued his employer for wrongful dismissal after he was summarily fired for punching a co-worker in the face:

The case arose after a co-worker complained to the plaintiff, an assembler at Northfield Metal Products with 15 years’ service, about the way he was doing his job. An exchange of words followed.

The next day, the co-worker’s elbow accidentally touched the plaintiff as they were passing each other before their shift commenced. The plaintiff became aggressive and threw a punch that caused his co-worker’s nose to bleed.

The employer fired the plaintiff without giving him an opportunity for a face-to-face meeting. The plaintiffs sued for wrongful dismissal and garnered an award of 15 months’ pay.

HRM Online reports that Parliament Hill is implementing a new policy to prevent workplace harassment, sexual and other kinds:

When the recent Parliament Hill sexual harassment scandal hit the headlines, the nation was shocked to learn that such behaviour was thriving in the halls of our government.

Now, the Board of Internal Economy has officially unveiled a new workplace policy which seeks to stamp out workplace bullying, sexual or otherwise, once and for all – but it seems there are still some major gaps in the system.

The ABlawg writes about Alberta’s amendments to PIPA:

Bill 3 essentially removed the blanket prohibition against the collection, use, and disclosure of personal information without consent. This narrow amendment attempts to balance the union’s right to freedom of expression with privacy interests protected by PIPA. While such amendments will make notable changes concerning trade unions in a labour dispute, this is far from a dramatic overhaul of our privacy legislation. During the debates in the legislature, opposition MLAs expressed doubts about whether Bill 3 actually addresses the whole spirit of the Supreme Court decision. For example, they expressed concerns about the limits of the application of the Bill to disclosure of personal information during labour disputes, and not in the context of other union activities (e.g., social justice contexts) (See: Alberta, Legislative Assembly, Hansard, 28th Leg, 3rd Sess, No 10e (1 December 2014) at 259-265 (David Eggen, Kent Hehr, Deron Bilious, Brian Mason and Rachel Notley)). It remains to be seen whether or not the Alberta government will introduce broader and more comprehensive changes to PIPA that will accommodate not only the freedom of expression of unions in a labour dispute but the interests of other social and political groups as well.

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December 11, 2014

As the year comes to a close, you tend to find a lot of retrospective articles looking back on the best albums or scandals of the year. Lawyers are not immune to this trend so here’s a list from Cassels Brock of the top 10 labour and employment law trends from 2014:

HRM Online ponders whether Canada is moving closer to a ban on genetic discrimination:

“As personalized genetic testing hits the mainstream, what companies do with that information is of growing concern,” says William Wolfe-Wylie. Insurance brokers are already utilizing genetic testing as a way of denying coverage to “high-risk” individuals and without proper regulations there’s nothing to stop other industries abusing it too.

Imagine looking at a candidate’s CV and considering how at risk they are of cancer, how disposed they are to flu or even, perhaps most ominously, if they’re likely to develop dementia? That’s exactly what the bill hopes to ban.

Henry Chang on First Reference runs down the Ministerial Instructions released earlier this month relating to the proposed expressed entry system for Citizenship and Immigration. Looks like a fun time to be an immigration lawyer:

The temporary foreign workers in Fernie, BC who narced on their employer and who became the catalyst for many of the changes to the foreign worker program over the past year are now facing possible deportation. Their work permits have expired and renewals aren’t possible thanks to the changes they helped bring about:

I received correspondence yesterday from the Employment Standards Commission in Alberta. Our client was appealing to an umpire an order issued by an Employment Standards Officer in a messy dispute over unpaid wages. The letter said that appeals are presently being scheduled for 18 to 24 months from the date the appeal is received. Given the fact that the employee will be without compensation for allegedly unpaid wages and the employer will have the appeal deposit (which is the amount of the order PLUS 10%) tied up this whole time, the entire process seems inherently unfair to both parties. It’s no surprise, then, that immediately sharing that bit about the scheduling of appeals, the letter goes on to encourage settlement.

Yosie Saint-Cyr writes over at slaw.ca about a recent case from the Alberta Human Rights Commission dealing with the employee’s obligation to participate in the accommodation process:

Employees must participate in their employer’s accommodation process, even where that process has not produced satisfactory results. In the Alberta Human Rights Tribunal case of Perera v. St. Albert Day Care Society, Theresa Perera found this out the hard way when, due to a disabling injury, she refused to perform the work she was assigned and her employer terminated her for insubordination. However, the tribunal found Perera’s injury was a factor in the termination, and therefore the termination was discriminatory. Nonetheless, the insubordination made reinstatement impossible.

More on the challenges faced by the independent investigator tasked with investigating the Ghomeshi matter at the CBC:


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