Presented by Denyse Boulet & Jennifer Emmans, Gowlings

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Top Ten Employment Law Developments
Denyse Boulet & Jennifer Emmans

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10 – Tsakiris v. Deloitte & Touche, 2013 ONSC 4207
• Deloitte had business travel and expense
reimbursement policy – expenses reported within 60
days; fraud cause for immediate dismissal.
• Senior manager routinely defaced receipts to obscure
date or time of expense; charged personal expenses
to client accounts
• Given warning and placed on probation
• More receipts then submitted by manager
– Over a year old contrary to policy;
– Attendees of meals not related to charged client file

3. The Decision
• Termination for just cause not upheld
• Not repeat conduct – different issues with claims
• Employer could have rejected dated receipts
• Further, more specific warnings or instructions on use
of non-client mandate codes could have been
undertaken
– Not uncommon to charge business development to client files
in anticipation of transferring to new client file;
– Such charges not generally charged to clients ultimately
anyway
• Did not show untrustworthiness or lack of probity
sufficient to constitute just cause

4. Why it Matters?
• Another example of the risks associated with
terminating employees for “just cause”
• Employer had to pay 10 months reasonable
notice at common law

5. 9 – Bernier v. Nygard International Partnership,
2013 ONCA 780
• Manager terminated, 54 years old, 13 years of service
• Terminated and provided with minimum Employment
Standards Act (“ESA”) notice:
– Original 1999 employment agreement provided for 30
days
– “Amendment” to agreement in 2007 provided for
minimum ESA notice
– Employer policy of ESA minimum notice
• Plaintiff brought summary judgment claiming 18
months reasonable notice

6. The Decision
• 18 months reasonable notice awarded
– 1999 Employment Agreement invalid – violated ESA
– 2007 Amendment never signed by manager
– “Policy” not binding on manager
• Summary judgment allowed – no genuine issues
for trial
• Since only 6 months had passed, remainder of 18
months notice to be paid into trust – plaintiff to
account for any income earned

7. Why it Matters?
• Termination provisions must be valid – cannot
provide less than ESA
• Amendments to employment agreements must be
properly implemented
• Minimum ESA requirements are not positively
regarded by courts
• Put best evidence forward on summary judgment
– courts won’t give the benefit of the doubt and
send to trial

8. 8 – MacKinnon v. Celtech Plastics Ltd.,
2012 HRTO 2372
• Machine operator worked for Celtech:
– 35 years, 67 years of age, $60-$65,000 annually
• Laid off for 5.5 months, then called back to work
• Subjected to long hours, unreasonably high
standards, heavy labour and harassment by
supervisor – eventually quit
• Alleged that Celtech purposely drove him to quit
in order to avoid having to pay him notice or
severance

9. The Decision
• Discrimination found
• Treatment of Applicant had sufficient connection
to age
• “Proxies” for age can include:
– High number of years of service
– Higher salary as related to experience
• $27,000 awarded for injury to dignity, feelings and
self-respect
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10. Why it Matters?
• Age discrimination can occur where
employees treated differentially based
on years of experience; salary
• Employers should be aware of proxies
for grounds of discrimination
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11. 7 – General Motors of Canada v. Johnson,
2013 ONCA 502
• Employee had refused to attend training by
Johnson - Johnson felt refusal was racially
motivated
• GM conducted investigations and found that
conduct was not racially motivated
• Johnson came to view workplace as poisoned
and took medical leave
• After 2 years, Johnson cleared to return to work
but refused positions available, GM deemed him
to have resigned.

12. The Decision
• Trial judge found Johnson was victim of racist
behaviour, poisoned work environment, and
constructive dismissal
• Court of Appeal overturned trial decision on all
counts
• Johnson may have believed he was victim of
racism, perception may have led to stress and
mental anguish, but facts did not support claims

13. Why it Matters?
• Employers are often held responsible for
employee stress and mental anguish in the
workplace
• An important appellate level case showing
that an employee’s subjective experience will
not be enough to find discrimination where
there is no objective evidence to support it

14. 6 – Globe and Mail v. Communications, Energy and
Paperworks Union of Canada (Jan Wong Grievance),
• Wong terminated by Globe and Mail and brought
action
• Settlement reached between parties – subject to
confidentiality clause
• Three years later, Jan Wong published a memoir
which stated that:
– “I can’t disclose the amount of money I received.”
– “I’d just been paid a pile of money to go away…”
– “Two weeks later a big fat check landed in my account”
– “Even with a vastly swollen bank account…”

15. The Decision
• These statements were found to breach
confidentiality clause
• Pursuant to the terms of the settlement
agreement, Jan Wong had to pay back the
amount of the settlement to the Globe and
Mail

16. Why it Matters?
• Confidentiality clauses in settlement
agreements will be upheld where:
– the agreement is entered into voluntarily,
– the terms are clear and unambiguous; and
– the agreement is not unconscionable

17. 5 – Wilson v. Solis Mexican Foods Inc.
2013 ONSC 5766
• Action brought under the Ontario Superior Court
of Justice for 1) wrongful dismissal, and 2)
discrimination under Ontario Human Rights Code
• Employee had good performance until back
issues required time off work
• Employer insisted employee must be capable of
full time hours and duties upon return
• Not willing to accommodate sitting, walking,
standing
• Employee stayed on medical leave, and was
eventually terminated due to restructuring

18. The Decision
• Despite restructuring, judge found decision to
terminate employee based in whole or in part
on disability
• Back issues were “significant factor” in
decision
• Restructuring was used as opportunity to
terminate
• $20,000 awarded under Code
• 3 months reasonable notice for wrongful
dismissal

19. Why it Matters?
• This is the first decision in Ontario where a
court has awarded human rights damages in
a wrongful dismissal action

20. 4 – Communications, Energy and Paperworks Union,
Local 707 v. SMS Equipment, 2013 CanLII 68986
• Grievor was single mother of two
• Rotating schedule – seven days off, seven days
on – blocks rotated between day and night shifts
• On weeks working nights, either stayed up during
day, or had to hire childcare for 24 hours so she
could sleep:
– Too expensive
– Not comfortable with children in childcare that long
• Asked for accommodation based on so that she
could work exclusively day shifts – employer
refused

21. The Decision
• Family status includes childcare responsibilities
• Grievor adversely impacted by work scheduling
rules - put in position of having to choose
between family responsibilities and work
• Discrimination found by Arbitrator based on family
status – employer could not show undue hardship
in accommodating different schedule
• Accommodation ordered

22. Why it Matters?
• We are seeing more and more cases in this area
in the last year or two
• Yet another case confirming that employers must
accommodate real family responsibilities to the
point of undue hardship

23. 3 – Musoni v. Logitek Technology Ltd.,
2013 ONCA 622
• Plaintiff was dismissed by employer
• Paid 2 weeks notice in compliance with
employment agreement and ESA
• Employment agreement stated simply that:
– 15 days notice provided by either party to terminate
– No mention of benefits
• Plaintiff conceded that he had read, agreed to
and signed agreement – it was valid and in force
• Plaintiff challenged only employer’s basis for
termination

24. The Decision
• Court found that reasons for termination irrelevant
since notice was provided
• Notice satisfied employment agreement and ESA
• Did not question validity of employment
agreement
• Upheld by Court of Appeal
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25. Why it Matters?
• Recent decisions in this area have found that
termination provisions must
– A) provide for benefits
– B) not be capable of interpretation contrary to ESA
REGARDLESS of what is actually paid to
employee on termination:
– Stevens v. Sifton Properties (2012 ONSC 5508)
– Wright v. Wunderman (2011 ONSC 4720
• Unclear whether this case will result in changes to
recent law

26. 2 – Communications, Energy and Paperworks Union of
Canada, Local 30 v. Irving Pulp and Paper Limited,
2013 SCC 34
• Irving developed random alcohol testing policy for
employees in safety-sensitive positions
• One employee selected for testing grieved the
policy – there was no serious problem of alcohol
abuse in the workplace (8 incidents in 15 years)

27. The Decision
• Supreme Court found that employers are not
allowed to conduct random alcohol tests in
workplace unless:
– Employer can demonstrate problem with use or abuse of
alcohol or drugs in workplace;
– There is reasonable cause to test an employee;
– An incident has occurred where alcohol may be a factor and
testing is required as part of investigation ;
– Part of an agreed rehabilitative program, return to work
conditions after disability related to alcohol;
– Negotiated testing as part of collective bargaining agreement

28. Why it Matters?
• Supreme Court has placed tight restrictions on
circumstances that will justify alcohol testing
• Test will apply to both drug and alcohol testing
• Unclear how this will apply to non-unionized
settings

29. 1 - IBM Canada Ltd. V. Waterman,
2013 SCC 70
• Waterman was dismissed without cause,
provided with 2 months notice:
– 65 years old, 42 years of service
• Had vested interest in defined benefit pension
plan
• Sued for wrongful dismissal – awarded 20 months
with no deduction of pension payments during
notice period
• Supreme Court considered whether pension
payments should reduce the damages payable
during period of reasonable notice

30. The Decision
• Supreme Court found that Waterman was entitled to
both his full salary and benefits for 20 months, as well
as his pension
• Found that pension was like private insurance, and
not compensation, and therefore should not be
deducted
• Waterman had earned pension during years of
service, and therefore had rights in the pension akin
to property rights
• Employers should not be incentivized to terminate
pensioned employees over non-pensioned employees

31. Why it Matters?
• Binding decision: pension benefits are a form of
deferred compensation – they have already been
earned and therefore will not be deducted from
pay in lieu of reasonable notice
• Employers may want to include clauses in
employment agreements which prevent
employees from “double dipping”, although it will
remain to be seen if they will be upheld in court

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Denyse Boulet
Gowling Lafleur Henderson LLP
Barristers & Solicitors
160 Elgin St. Suite 2600
Ottawa, ON K1P 1C3
Direct Tel: 613.783.8824
Email: denyse.boulet@gowlings.com
Jennifer Emmans
Gowling Lafleur Henderson LLP
Barristers & Solicitors
160 Elgin St. Suite 2600
Ottawa, ON K1P 1C3
Direct Tel: 613.786.0161
Email: jennifer.emmans@gowlings.com
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