December 9, 2014

Denton’s Occupational Health and Safety group covers the Schmig decision of the Canadian Industrial Relations Board (CIRB) from earlier this spring. The CIRB dismissed a safety reprisal complaint brought by the self-represented Schmig after he missed a number of deadlines and failed to respond to the CIRB. Schmig had complained that his employer took action against him for exercising his safety rights. The CIRB requested more particularized pleadings and, after several extensions were granted and additional materials sent to the complainant, the CIRB ultimately decided to dismiss the complaint:

[35] In this case, Mr. Shmig claimed in a discussion with the IRO that he never received the Board’s decision requesting more particularized pleadings. The IRO sent him another copy of the decision.

[36] When Mr. Shmig failed to provide the requested pleading, he claimed in another discussion with the IRO that the emailed copy of the decision had never reached him.

[37] Finally, after the Board granted Mr. Shmig an extension to file the requested particulars, Mr. Shmig failed to pick up two separate Board mailings which had been couriered to his last known address.

[38] Ultimately, it is not the Board’s role to chase after a party for its pleading. The Board is satisfied that it provided Mr. Shmig with several opportunities to pursue his complaint. For whatever reason, Mr. Shmig chose not to do so.

[39] In these circumstances, the Board has decided to dismiss Mr. Shmig’s complaint.

The Chartered Professional Accountants of Canada magazine features an article/interview with Canada’s Privacy Commissioner, Daniel Therrien. Among other things, the interview cover’s his thoughts on Bill C-13 (cybercrimes bill) and data collection:

Doug MacLeod runs down his top 10 employment law stories for 2014. Most are Ontario-centric, naturally, but stories 2, 4, and 8 apply beyond that province’s borders:

With a tip o’ the hat to Daniel Strigberger, here is an interesting PIPEDA case released today by the Court of Appeal of Ontario. The facts are accurately summarized by the court as follows:

[2]          The appellant, Royal Bank of Canada (“RBC”), has a judgment against the defendants, Phat and Phuong Trang. The Trangs own a property, which they have mortgaged to the respondent, Bank of Nova Scotia (“Scotiabank”). RBC wants the Sheriff to sell the Trangs’ property so it can collect its judgment. The Sheriff, however, refuses to sell the property without a mortgage discharge statement from Scotiabank. RBC twice sought to obtain this statement by examining the Trangs as judgment debtors, but they did not appear for either examination. RBC also asked the mortgagee, Scotiabank, to produce a mortgage statement. Scotiabank said PIPEDA precluded it from doing so.

The court held that a mortgage discharge statement, unlike the mortgage originally registered on title and publicly available through the land registry system, contains details of the mortgage balance that are not public and therefore the mortgage discharge statement is personal information. The court went on to dismiss other aspects of RBC’s appeal. The only present recourse for RBC to obtain the information it requires is to apply for an order to examine a representative of Scotiabank. The court also notes that in the future, a requirement to disclose such information could be written into the loan documents to expressly authorize the release of this information:

A London-based gynecologist and obstetrician suggests it may be time to consider recognizing “menstrual leave” in the modern workplace:

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December 8, 2014

Kyla Stott-Jess of Fasken Martineua writes on HR Hero about several employment law lessons to be learned from the Ghomeshi matter. Among them? Discipline for employee’s conduct in their private lives, employers’ obligation to prevent harassment, and whether a member of a union can sue her employer:

An interesting post on Slaw late last week about police officers in Quebec donning cowboy outfits in silent protest during ongoing labour negotiations. The article points out that because the police service are deemed an essential service, they are not permitted to strike. The employer grieved the clear dress code violation but lost as the arbitrator pointed out that there really aren’t many other ways for employees in an essential service to pressure their employer during such labour disputes:

Order F2014-37 was released earlier this month by Alberta’s Office of the Information and Privacy Commissioner. The complainant was surreptitiously video taped by a WCB investigator when she was out with her mother. The mother was in receipt of WCB benefits and was under investigation. The adjudicator found that the collection of the complainant’s personal information was authorized by Part 2 of FOIP. Section 33(b) of FOIP allows the public body to collect personal information for law enforcement purposes. This allowed WCB to collect information about the claimant under surveillance. The provision was not, however, limited to the collection of information of only the claimant. The OIPC did recommend that to the extent possible, personal information of other individuals collected during the investigation be edited or redacted prior to use or disclosure:

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December 5, 2014

Stuart Rudner on avoiding common employment law misconceptions:

Small to midsize employers, many HR professionals, and many lawyers proceed based upon completely inaccurate understandings of how employment law works. While there are many examples of this, there are three that I see regularly in my practice:

  1. the myth that the severance entitlement in Canada is one month per year, regardless of other factors such as age or position;
  2. the belief that every employee is automatically subject to a probationary period; and
  3. the belief that when there is a shortage of work, employers automatically have the right to lay employees off temporarily.

Number 1 is a particular pet peeve of mine.

Stuart Rudner again, but this time on designing and implementing employment contracts to ensure that they are enforceable. This is one point in particular that either gets missed in the rush to hire a new employee or is overlooked entirely by employers who don’t know any better:

However, many organizations only have the individual sign the employment contract after a verbal agreement is entered into. In some cases, the contract is sent to the individual a few days before her start date and she is asked to bring it with her when she shows up for her first day of work. In others, it is presented to the employee on his first day of work or even weeks or months thereafter. At that point, the individual already has a job and is typically not receiving any new benefit by signing the contract. As a result, if challenged, the contract is likely to be found unenforceable.

Stuart Rudner yet again on… just kidding. This time, it’s Donovan Plomp of McCarthy Tetrault on a case called Maxwell v. British Columbia from earlier this fall in the BC Court of Appeal confirming that employees entitled to contractual severance are not obligated to mitigate their damages:

[78] Where a contract provides for the effect of termination, generally the provisions of the contract prevail. Recourse to the common law is not required.  In some circumstances, the contract may require mitigation, but where it does not the innocent party is entitled to what was agreed. The guilty party is not entitled to graft onto the bargain struck by the parties additional terms that dilute or modify the entitlement of the innocent party.

And finally, HRM Online with an article about a documentary casting light on the chauvanism that dominated the workplace in the 1970s:

Starting as a secretary and making her way up to manager, Jacquee Storozynski-Toll says the harassment ranged from bottom pinching and pranks and to point-blank belittlement. She even recalls being bent over her boss’ knee and spanked; “People were coming and going and no one stopped to ask what was going on,’ she reveals. ‘It was like it was a perfectly normal thing to do. You simply can’t imagine it now.’

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December 4, 2014

Came across this article on how to stop wasting time in meetings while surfing the web on my phone during a meeting yesterday:

The Ontario Court of Appeal, in a decision dealing with the approval of a receiver’s legal fees, has some choice words for the billable hour model:

Justice Sarah E. Pepall for the Court of Appeal dismissed the receiver’s appeal, and held that “there is something inherently troubling about a billing system that pits a lawyer’s financial interest against that of its client and that has built-in incentives for inefficiency. The billable hour model has both of these undesirable features.”

This past week, two journalists in the United States were fired for their inappropriate behaviour on Twitter and other social media providing further examples of employees being disciplined for off-duty misconduct:

An article by Field LLP on the current state of the law concerning lawsuits by unionized employees against their employer inspired by the Jian Ghomeshi saga:

Another post by Field LLP, this one a bit more dated, concerning restrictive covenants in employment agreements and the enforceability of those provisions, especially non-competition clauses:

Tips from Maanit Zemel for preparing a CASL compliance policy:

Determining which country’s laws will apply to employees on foreign assignments is tricky:

Last month, an Alberta company was fined $80,000 under the Occupational Health and Safety Act for a workplace accident that occurred in 2011 when a worker’s hair was caught in a conveyor belt drive shaft:

Tips for implementing a smoking cessation policy at work:

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December 3, 2014

The Ontario Supreme Court upheld on judicial review an arbitrator’s award striking down the employer’s imposition of mandatory pre-access drug and alcohol testing. The employer had complied with a direction from Suncor that all contractors providing goods and services to it in Canada must implement Suncor’s drug and alcohol testing policy. Suncor’s policy is, famously around these parts, subject to judicial review. Ryan Smith of the Edmonton office of Miller Thomson LLP wrote about the arbitrator’s award last year:

Experts and/or law professors expect Canada’s Anit-Spam Law (“CASL”) to face a constitutional challenge in 2015:

Can you record conversations at work? According to Daniel Lublin, you can if you are a party to the conversation. Recording conversations that you are not a part of is against the law and could result in charges under the Criminal Code:


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December 2, 2014

Amendments to Alberta’s PIPA passed third reading last night:

In Consbec Inc. v. Walker, the BC SC awarded damages to an employer against an employee for failure to give reasonable notice of resignation:

[220]     Peter worked for Consbec for approximately five years. He was hired to “grow the business”, and that never changed during the entire time that Peter worked for Consbec. He was dispatched to the Maritimes and later to the Western Division to open up opportunities for Consbec in the drilling and blasting business. In order to do so, he was required to look for business. After locating a project and searching for information about the project, in consultation with Richard, a bid was made. The bid was made based on Consbec’s cost. Although Peter was the only employee, both in the Maritimes and in the west, it was necessary to have an employee in the area so as to do the work that I have described.

[221]     Peter owed Consbec notice to give Consbec sufficient time to replace him. As a result of Peter’s abrupt exit, Consbec sent Trevor to assess the situation and make sure that potential customers knew that, despite Peter’s departure, Consbec was still doing business in the west. Mr. Mitchell was moved in quickly and took the position that Peter held. Had Peter given the notice that he was required to give, at law, Consbec may have hired a new employee. They argue that they were left with no other choice but to move Mr. Mitchell, who was experienced in the Central Division, to Kamloops to look after Consbec’s business interests.

[222]     There is no point in trying to determine the proper notice that Peter should have given Consbec. All that would do would lead to speculation as to what Consbec would have done and whether the notice was sufficient, given the factors set out in Sure-Grip.

[223]     Consbec seeks damages on the cost of bringing Trevor to Kamloops and moving Mr. Mitchell and his family to Kamloops.

[224]     Peter argues that Consbec must prove its damages. He argues that the notice he should have been required to give is two weeks. He argues that there was little disruption in business for Consbec as all the information for active projects was known at head office. The foreman was on site at the Langvista 1 project and was reporting to Jeff Walker. I conclude that there was no disruption to the Langvista 1 project. Further, Peter pointed to the fact that there is no loss of earnings as a result of his not giving reasonable notice.

[225]     However, that is not the test. The test is one of opportunity, as stated in Sure-Grip and demonstrated in Aquafor Beech at para. 40:

The notice period gave Mr. Maunder an opportunity to work through transition matters with Mr. Whyte and Mr. Dainty. It gave him an opportunity to retain Brad Beech to take over some of Mr. Whyte’s projects. It gave him an opportunity to retain a headhunter to hire new employees, although it is clear to me that Mr. Maunder did not do so until well after the notice period. There is nothing to suggest that a longer notice period was required or would have made any difference.

[226]     This opportunity was not given to Consbec.

[227]     Consbec has been unable to provide the receipts for travel for Trevor and Mr. Mitchell to Kamloops. When Consbec moved its office in 2012 to its present location, the documents were accidentally thrown out. Mr. Sawdon, in consultation with Mr. Mitchell and Trevor, was able to estimate those expenses.

[228]     Peter objects to these estimates since, knowing that these documents existed, at no time in its list of documents, did Consbec list them. I am prepared to consider Mr. Sawdon’s evidence as to these costs, as well as Mr. Mitchell’s evidence, who was able to recall his expenses and their specifics as reimbursed by Consbec.

[229]     What I must assess are the damages that Consbec suffered as a result of Peter leaving his job without notice.

[230]     Mr. Sawdon estimated the cost of having Trevor come to British Columbia at $11,135.00. It took Trevor two and a half days to drive from Sudbury to Kamloops. He remained in Kamloops for approximately one month. Mr. Sawdon calculated Trevor’s costs in his testimony as follows:

Q         And what types of expenses did you include in those calculations?

A          Beginning with Trevor, Trevor drove to British Columbia. It’s approximately 3600 kilometres. Our per kilometre payment is about well it is at that time 40 cents.

Q         40?

A          40.

Q         40 cents per kilometre?

A          40 cents per kilometre.

Q         Okay?

A          He would have been unproductive as he was driving out and he would have been paid at approximately $40 per hour, assuming he drives a hundred kilometres an hour it would have been 36 hours and he would have had a per diem of approximately $125 a day to cover his room and board for the three days that it took him to come out. And that simply would be multiplied by two to reflect his return to Sudbury. And while he was in Kamloops, I believe his Sudbury to Sudbury time was 43 days, I believe, and so 37 of those days he would have been actually in Kamloops, and I simply went by the per diem of $125 a day which appears reasonable.

[231]     I find Mr. Sawdon’s calculations and estimations reasonable Consbec incurred a cost of $11, 135.00 to place Trevor in British Columbia.

[232]     Mr. Mitchell testified that Consbec reimbursed him $9,781.11 for expenses he incurred in selling his house in the Sudbury area. Those expenses consisted of $8,167.00 for a commission he incurred and the balance was for legal expenses. These expenses were documented. Mr. Mitchell testified that he incurred moving expenses in the amount of $12,000.00 to $13,000.00 with AMJ Campbell Movers to move the Mitchells’ possessions to British Columbia. Mr. Mitchell said he paid for these expenses and was reimbursed by Consbec. Mr. Mitchell said he incurred the sum of $5,000.00 for the land transfer tax for the purchase of his home in Kamloops and Consbec reimbursed him. Mr. Mitchell said he was paid approximately $29,700.00 for travel expenses between Sudbury and Kamloops. That amount represents nine trips by air, six of which were promised by Consbec to the six-member Mitchell family to return to Ontario for Christmas. The Christmas trip represents about $12,000.00. This totals $56,981.11. Taking an average of the proposed moving expenses and excepting flying the Mitchell family back to Ontario for Christmas, I find that, as a result of Peter’s departure and failure to give notice to Consbec, that Consbec incurred damages in the amount of $44,981.11 to replace Peter with Mr. Mitchell.

[233]     Had Peter given reasonable notice to Consbec of his resignation, this amount might have been less. Consbec may have hired somebody in British Columbia. Peter’s actions prevented them from making that choice and considering other options.

[234]     I assess damages against Peter for the failure to give reasonable notice in the amount of $56,116.11.


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December 1, 2014

The Calgary Herald picks up the story of the Syncrude manager fired for cause after a night of regrettable behaviour at a company function. The Alberta Court of Appeal upheld the termination last month:

HRM Online writes of a mysteriously unnamed case case from this summer from the BC Court of Appeal dealing with just cause dismissal based on after-acquired cause. After terminating an employee without cause, the employer discovered text messages on his company cell phone sent during working hours indicating he was looking to purchase drugs for resale. The employee was not happy with the severance offer and sued for wrongful dismissal. The employer defended on the basis that the text messages gave it just cause for dismissal. The court warns that if the employer knew about the conduct before termination and failed to reprimand the employee, it could not rely on those facts to support just cause for termination later on:

Here’s a recent decision following a voir dire in a prosecution under the Alberta Securities Act. The defendants alleged that their s. 7 Charter rights were violated and the prosecution was engaged in prosecutorial misconduct and an abuse of process:

[30] The Commission alleges it has evidence that the accused was selling securities of Locate that breached a number of trade related offences under the Securities Act, including numerous prohibited representations about Locate to potential investors. They also had evidence which I have heard in this voir dire, that the accused failed to obey a Summons issued and served on him to appear for an investigative interview by not appearing at the interview nor attempting to reschedule the interview as was offered to him.

[31] The Commission decided to proceed against him. They had three options: an Administrative Hearing before a Commission panel; seek a declaration of non-compliance in the Court of Queen’s Bench; lay an Information and have a Summons issued initiating a quasi-criminal proceeding in the Provincial Court. They chose to proceed by way of Information.

[32] The defence submits that to make that choice was prosecutorial misconduct. They say this because this process puts the accused in jeopardy of facing more serious sanctions including loss of liberty and higher fines. They say this because a more culpable offender, Drever, who was the operating mind of Locate, was prosecuted by way of the lesser procedure of an Administrative Hearing. Finally, they say this because, in their view, the decision to exercise their discretion to proceed by Information was based solely on the fact the accused did not appear at the interview in answer to the summons when he had valid reasons not to appear, particularly because he had not arranged for counsel or received legal advice. His second reason was because he was going to be in Florida the day of the interview which turned out not to be true. He was in town but ignored the Summons and did not appear nor did he attempt to reschedule.

The court found in favour of the ASC.


The Office of the Information and Privacy Commissioner tabled its Annual Report today for 2013-2014 with the Alberta Legislature. The report contains some interesting information about reorganization within the OIPC and amendments to PIPA as a result of the UFCW SCC case. There are some fun statistics and infographics in there along with a summary of important court cases and investigations on pages 36 to 48.

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November 27, 2014

Earlier this year, class action lawsuits were filed against the Canadian Hockey League alleging that the players were in fact employees and entitled to the protection of minimum employment standards legislation. Stuart Rudner posits in a recent article in the Toronto Star that, looking at all the factors, it’s hard to see how the players would not be considered employees:

Six leading employment and tax lawyers interviewed by the Star say the 60-team CHL faces an uphill battle trying to defend against class-action lawsuits alleging its players are employees deserving of minimum wage and benefits.

“Looking at all of the factors . . . it’s hard for me to imagine that these players are not employees,” says Toronto employment lawyer Stuart Rudner. “The clubs tell these players everything, including when to eat, when to show up, when to have a pre-game nap, all of which are hallmarks of an employee who is not independent.”

The allegations have not been proven in court and league officials have said they will defend themselves against the claim in court.

A week after the Star first reported on a class-action suit filed in Toronto against the CHL claiming $180 million in damages and unpaid minimum wages for thousands of players, a new $60-million suit was filed Friday in Calgary and another $50-million suit in Montreal Thursday targeting two of the CHL’s three regional leagues — the Western Hockey League and the Quebec Major Junior Hockey League.

The leagues “knew or recklessly disregarded the fact that the relationship between the club and (players) was one of employer/employee, and as such the contracts contravened employment standards legislation, yet required the contracts be signed so as to avoid paying the (players) minimum wages, vacation pay, holiday pay or overtime pay,” the claim alleges.


An arbitration decision earlier this year in Ontario suggests a zero tolerance approach to discipline for safety violations can be unfair to the employee. An employee was suspended for 3 days following a finding that he violated the company’s zero tolerance policy for alcohol. A search of his vehicle one day found a half consumed bottle of flavoured alcohol in the trunk under camping equipment. The employee had borrowed his wife’s car that day and it had been previously used by the employee’s daughter on a camping trip and she had not yet unpacked the trunk. He was unaware of the presence of the vodka and the company admitted it had no reason to disbelieve him. Nonetheless, minimum punishment imposed. The arbitrator wrote:

I accept that in the interest of workplace safety the Company is justified in adopting an approach of zero tolerance for breaches of that rule, to the extent that each and every incident is to be investigated and appropriate discipline imposed. I reject the imposition of an automatic penalty of suspension without regard to the totality of the circumstances as inconsistent with the just cause standard set out in the collective agreement.

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November 26, 2014

News broke yesterday that Ghomeshi has agreed to withdraw his $55M lawsuit against the CBC. His beef will be proceeding through arbitration. He will also be picking up the tab for the CBC’s $18,000 in legal costs. I don’t know for certain, but I had heard the CBC didn’t deliver a defence yet in the case but, had prepared a motion to strike the claim:

…. and now news breaks that Ghomeshi has surrendered to police and will be in court to face four charges of sexual assault and one charge for overcome resistance – choking:

Remember that teen aged girl in Halifax that committed suicide after a video of her being sexually assaulted at a party was passed around her school? After charges were laid against her alleged attackers, provisions in the Criminal Code kicked in making it illegal to publish her name. Her parents and a lot of others think that’s a dumb thing and are praising a local newspaper, the Chronicle Herald, for breaking that publication ban to bring attention to their daughter’s cause:

Part of a class action lawsuit launched after the 2012 e. Coli outbreak at the XL Foods processing plant in Brooks has been settled, tentatively:

An interesting article in the Financial Post about class action lawsuits stemming from changes to pensions and benefits. Justice Warren Winkler of the Ontario Superior Court of Justice is quoted as once declaring such suits the way of the future:

A good summary and overview of the lower court’s decision in the BC Teachers’ Federation case that was decided a few weeks ago in a quick oral judgement from the bench by the SCC. The Union successfully argued that birth mothers are entitled to pregnancy leave benefits and parental leave benefits. The Employer had previously denied birth mothers from receiving parental leave benefits if they took advantage of pregnancy leave benefits:



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November 25, 2014

News came out yesterday that WetJet’s flight attendants rejected a tentative agreement with the airline. CUPE and a group calling itself the WestJet Professional Flight Attendants Association (WPFFA) have been working to have employees sign membership cards lately:

Blakes and the Legal Post weighsin on the proposed changes to PIPA:


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