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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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:


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 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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