1. Employment and Labour
Law Seminar 2013
Wednesday, November 6, 2013
Toronto

2. Social Media and
Employee Obligations of
Confidentiality and Loyalty
Edward Majewski

3. Introduction
• DO think twice about whether you should encourage
employees to use social media for work-related
purposes
• social networking vs. social notworking
• DON‟T be mesmerized by the technology (duties of
loyalty and confidentiality are well-established)
• But DO worry about the technology (data
permanence, ease of dissemination, unfettered access
by third parties)
• DO educate employees about their workplace and offduty obligations to their employer
(loyalty, confidentiality) and about the perils of social
media (defamation, violating securities laws, etc.)
3

4. Social Notworking
• Lost productivity in the $ billions
• Time theft
• More than 1 hour each day (1.8 hours for “Gen Y”)
• Only 6.8% of employees say they use social media
for purely work-related purposes
4

5. Social Media as a Tool…Recruiting/Screening
• 77% of employers search online to do background
checks
• Asking candidates for their Facebook password is a
bad idea
• Human rights issues
• Knowing things you shouldn‟t know about the candidate, e.g.
age, race, religion, disability, etc.
• Safest approach: don‟t search online (or don‟t review online search
results) before making a conditional offer
• Decision-maker shouldn‟t conduct the online search
5

6. Social Media as a Tool…Recruiting/Screening cont.
• Privacy law issues
• Collecting, using and retaining personal information about
candidates (even if it‟s irrelevant and doesn‟t offend human rights
legislation)
• Warn candidates that thorough background searches, including
online information, are conducted (in order to at least obtain their
implied consent)
• Fairness issues
• Internet is unreliable
• May be limiting hiring to only those with digital presence
6

7. Legal Risks
• Vicarious liability for employees‟ wrongs committed in
the course of their duties, even if employer didn‟t
expressly authorize employees‟ conduct
• Defamation
• Example: trash-talking competitors in industry discussion forums
• Securities law violations (insider trading, “tipping”)
• Employee tweeting that s/he is working on a “big deal!”
7

8. Legal Risks cont.
• Admissions against employer‟s interests
• Social media data, tweets, posts, blogs, etc. may be producible in
litigation against employer (e.g. products liability, accident, etc.)
• Disclosure of employer‟s (or employer‟s customers‟)
confidential information
• Example: boasting about working on customer‟s top secret
project
8

9. The Perils of Social Media: Duty of Confidentiality
• Employees have a duty to
preserve the confidentiality of their
employer‟s non-public and
proprietary business-related
information that would harm their
employer if disclosed or misused
• Lasts indefinitely
• DO identify in advance the types of
information you consider to be
“confidential”
9

10. The Perils of Social Media:
Off-Duty Conduct vs. Duty of Loyalty
• Every employee owes to their employer a duty of
loyalty
• …all
pervasive, residual obligation to further the interests
of the employer which is not capable of exhaustive
categorization but which can be relied upon by the courts
to compel „faithful‟ service in a myriad of work
situations….
(G. England et al., Employment Law in Canada)
10

11. The Perils of Social Media:
Off-Duty Conduct vs. Duty of Loyalty
• Employees cannot disparage their employers or engage in
conduct that damages their employers‟ business, even when
that is done on their personal computers and outside of
working hours
• Example: Lougheed Imports Ltd. (West Coast Mazda) v. United Food and
Commercial Workers International Union
• Example: Wasaya Airways LP v. Air Line Pilots Assn., International (Wyndels
Grievance)
• Critical consideration: real versus potential harm to
employer?
• Amanda Todd suicide
• Exception: legitimate whistle-blowing
• Solution: make sure employees have proper channels to raise concerns
discreetly
11

12. Social Media Policies are Necessary
• Written policies are needed when employees may
need help in exercising their judgment
• Establish “bright lines” to prevent problems and
to support discipline when employees cross those
lines
• Employers could do a better job of proactively
explaining perils of social media to their
employees
12

13. Social Media Policies …Contents
1. Explain what social media is and what types of activities
the policy intends to cover (useful to mention specific
sites, but not limit it to them)
2. Remind employees about the perils of social media
(durability of electronic information, easy access by
persons outside the workplace, etc.)
3. Explain to employees the extent to which the policy covers
off-duty social networking activity
• They may not disparage their employer or co-workers using social
media, at or outside the workplace
• They should be discouraged from discussing the workplace and their coworkers on social media sites, even if they think they are doing so
anonymously
• They should be discouraged from identifying themselves with their
employer
13

14. Social Media Policies …Contents
4. Remind employees that they may not publish any
comments that may negatively affect their employer or their
employer‟s customers or business partners
5. Remind employees about their confidentiality
obligations, including identifying the types of information
that, if disclosed or misused by them, will result in their
termination for just cause
6. Prohibit the violation of laws (e.g. securities
laws, defamation)
7. Prohibit the violation of employer policies (e.g. harassment)
8. Prohibit the use of their employer‟s logos, trademarks, slogans, etc.
14

15. Social Media Policies …Contents
9. Prohibit speaking on behalf of their employer, especially
about anything in relation to their employer that is
currently in the news
10. If not prohibited entirely, then explain extent to which
social networking is permitted on employer‟s computers
and during working hours
11. Explain any specific rules regarding the use of social
media in work-related capacities (e.g. “Friending”
customers)
12. Advise employees that their use of social media while at
work will be monitored (i.e. no expectation of privacy)
15

16. Social Media Policies …Contents
13. Advise employees of the proper channels available to
them to express workplace concerns (instead of blogging
about them!)
14. Caution employees that not every violation of this policy
may be detected, so they should never assume that any
questionable behaviour has been condoned by their
employer
15. Advise employees of the consequences of violating the
policy (e.g. employer will report unlawful activity to the
authorities, termination for just cause)
16

17. Social Media … What to Look Forward To?
• Social networking and restrictive covenants (e.g.
non-solicitation obligations)?
• Updating employment contracts to address social
media issues
• “Un-friending” customers upon termination
• Who owns the “contacts”, social media account?
• Cyber-bullying legislation
• Unionization via social media
17

18. Case Law Update
• Ornge, [2011] OLAA No 232
• Discharge for disclosing patient information in blog about
accident was overturned
• Blog was removed immediately, sincere remorse, and apology
provided
• Ontario (Ministry of Community and Social Services)
(Aboutaeib Grievance), [2011] OGSBA No 167
• Employer‟s blog degenerated into forum for attacking
management and co-workers thanks to grievors, whose
discharges were upheld
• Other factors: dishonesty when confronted, no remorse hard core
pornography, conflict of interest (personal business)
18

19. Case Law Update
• Groves v. Cargojet Holdings Ltd, [2011] CLAD No 257
• Discharge overturned for grievor who posted on Facebook that
she wanted to kick lead-hand in the genitals wearing steeltoed boots and spit in lead-hand‟s face
• Factors: Facebook posts were limited to grievor‟s “friends”;
nothing damaging to employer‟s reputation
• Health Sciences Assn. of British Columbia (Cheema
Grievance), [2011] BCCAAA No 125
• Discharge for time theft overturned where grievor‟s
unauthorized use of social media during working hours didn‟t
compromise workplace performance
19

20. Case Law Update
• Alberta Health Services, 2012 CanLII 12067
• Discharge for harassment via Facebook overturned where grievor
didn‟t appreciate that insulting co-worker through social media could
be work-related (unpaid suspension substituted)
• Canadian Union of Postal Workers (Discharge for
Facebook postings Grievance), [2012] CLAD No 85
• Discharge for abusive comments on Facebook about manager
upheld where some of grievor‟s “friends” were co-workers
• Credit Valley Hospital v. C.U.P.E., Local 3252, 2012
CarswellOnt 451
• Dismissal upheld of employee who briefly posted photos from scene
of patient suicide and comments
• Factors: breach of patient confidentiality; lack of colour
20

21. Case Law Update
• International Union of Elevator Constructors, Local
50 v. ThyssenKrupp Elevator (Canada) Ltd., 2011
CanLII 46585 (OLRB)
• Dismissal upheld of employee shown in video, shot during
lunch break, with genitals stapled to wooden plank posted
• Factors: employee and employer easily identified in video;
employer was engaged in safety-sensitive industry so it could
not tolerate risk to its reputation and had to deter other
employees from engaging in stunts, horseplay, pranks, etc.
21

22. Case Law Update
• Bell Technical Solutions v. Communications, Energy and
Paperworkers Union of Canada (Facebook Posting
Grievance), 2012 OLAA No 481
• Facebook postings that ridiculed employer and supervisor
• Two employees dismissed; one dismissal upheld but other employee
reinstated with one-year suspension
• [I]t is well-established that inappropriate Facebook postings could result
in discipline or discharge, depending upon the severity of the postings.
The nature and frequency of the comments must be carefully considered
to determine how insolent, insulting, insubordinate and/or damaging they
were to the individual(s) or the company. In some cases, the issue is
whether the comments were so damaging or have so poisoned the
workplace that it would no longer be possible for the employee to work
harmoniously and productively with other employees or for the company
• Dismissal factors: Facebook postings were frequent and prolonged
(more than 16 months); derogatory to employer and supervisor
• Reinstatement factors: provocation by supervisor
22

23. Case Law Update
• S.G.E.U v. Saskatchewan (Ministry of
Corrections, Public Safety & Policing), 2009
CarswellSask 913
• Dismissal of three corrections officers upheld for joining racist
Facebook group created by one of them
• Derogatory comments re compensation for First Nations
victims of residential schools who were inmates: “What could
you do with at least $28,000 in healing?”
• Factors: employees were peace officers
23

24. Thank You
Edward Majewski
Tel: 416-8624422
Email: ed.majewski@gowlings.com
montréal
ottawa
toronto
hamilton
waterloo region
calgary
vancouver
beijing
moscow
london

25. Bullying in the Workplace
What it is, what it isn’t and what to do about it
David Law

26. Workplace Bullying, Harassment and Violence Defined
Broadly defined, complex and difficult in reality
Workplace bullying and
violence includes:
• Harassment or poisoned work
environment
• Physical violence, sexual violence
and threats of violence
• Sexual harassment & reprisals
26

27. OHSA Definitions
“workplace harassment” means
engaging in a course of vexatious comment or conduct against a
worker in a workplace that is known or ought reasonably to be
known to be unwelcome
“workplace violence” means
(a) The exercise of physical force by a person against a worker, in a
workplace, that causes or could cause physical injury to the worker,
(b) An attempt to exercise physical force against a worker, in a
workplace, that could cause physical injury to the worker,
(c) A statement or behaviour that it is reasonable for a worker to
interpret as a threat to exercise physical force against the worker, in
a workplace, that could cause physical injury to the worker.
27

28. Part XXX.0.1 of the Occupational Health and Safety Act
• Violence and harassment
•
•
•
•
Have a policy
Re- examine it annually
Assess the workplace for risks
Have a program for receiving reports and investigating cases of
harassment and violence
• Employees have to know about it
• Domestic violence
• A person with a history of violence
28

29. Workplace Bullying and Harassment
• Workplace bullying and harassment often include:
• Making remarks, jokes or innuendos that demean, ridicule, intimidate or
offend
• Displaying or circulating offensive picture or materials in print or
electronic form
• Repeated offensive or intimidating phone calls or e-mails
• Inappropriate sexual touching, advances, suggestions or requests.
• Not a normal work conflict or tough management styles
• Repeated, persistent, continuous behaviour as opposed to a single
negative act
• A power imbalance between the victim and the perpetrator
29

30. Workplace Bullying and Harassment
• Examples of workplace bullying:
•
•
•
•
•
•
•
•
•
•
•
•
Social isolation (silent treatment)
Rumours
Personal attack of a person‟s private life and/or personal attributes
Excessive or unjustified criticism
Over-monitoring of work
Verbal aggression
Withholding information
Withholding job responsibility
Trivial fault finding
Replacing proper work with demeaning jobs
Setting unrealistic goals or deadlines
Other verbal comments that could mentally hurt or isolate a person in the
workplace
• Could also involve physical contact (pushing, throwing things)
30

31. Workplace Bullying and Harassment
• Bullying behaviour may be unwittingly encouraged by:
•
•
•
•
Pitting workers against each other or emphasizing a competitive work style
Having a lax management style
Making unreasonable demands
Setting impossible deadlines or providing insufficient funding to accomplish
a goal
• Failing to give supervisors the authority to reprimand problem workers
• Failing to instruct supervisors on how to communicate effectively
• Not educating people on the types of behaviour which can be interpreted
as, and in fact, be harassment and bullying
31

32. Workplace Bullying and Harassment
• Effects on worker:
• Lower levels of job satisfaction
• Psychosomatic symptoms and physical illness
• Short and long term disability
• Signs and Symptoms of workplace bullying may
include:
•
•
•
•
•
•
Grievances by employees against their manager
Declining work performance
Increased stress and tension in the workplace
Poor morale
Increased absenteeism
High staff turnover
32

33. Where Can the Issue Arise?
•
•
•
•
An internal complaint of harassment or bullying
In a grievance at a unionized workplace
A complaint under the Human Rights Code
A reprisal complaint under the Occupational Health and
Safety Act – but not a “safety complaint” under that Act
• A claim under the Workplace Safety and Insurance Act
• A civil action for wrongful dismissal, constructive
dismissal and related damages
33

34. Boucher v. Walmart
• A Walmart employee with an excellent ten year employment
record successfully argued that she was constructively
dismissed.
• The employee alleged abuse by the store manager including
being forced to count skids in front of other employees to prove
she could count; being punched in the arm twice by a fellow
assistant manager; and being called an “(expletive) idiot”.
• The employee claimed constructive dismissal because of the
abusive work environment as well as sexual
harassment, intentional infliction of mental suffering and
assault.
A civil action ensued
34

35. Boucher v. Walmart
• A jury found that the employee was constructively
dismissed and awarded the highest award to date for an
employment related suit in Canada – $1.46 million .
• Walmart was directly liable for:
• $1.2 million for punitive damages and intentional infliction of mental
suffering; and
• $10,000 for not adequately addressing two assaults the employee
suffered at the hand of a fellow assistant manager.
• The store manager was directly liable for the remainder of
the award:
• $100,000 for intentional infliction of mental suffering; and
• $150,000 for punitive damages.
35

36. What Isn’t Workplace Harassment or Bullying
Examples of behaviour that is not workplace
harassment or bullying could include:
•
•
•
•
•
•
•
Changes in work assignments and scheduling
Job assessment and evaluation
Workplace inspections
Implementation of a dress codes
Disciplinary action
Differences of opinion or minor disagreements between co-workers
Workplace violence
36

37. What Isn’t Workplace Harassment or Bullying
Amodeov. Craiglee Nursing Home Limited OLRB
June 2013
•
•
•
•
•
•
•
An employee was reminded of her job requirements
Told that she needed to work more, harder and better
Was told what would happen if she didn‟t
The employee reacted by complaining to management
The employee was dismissed
And filed a reprisal complaint which made its way to the OLRB
The Ontario Labour Relations Board decision said:
“The workplace harassment provisions do not normally apply to the conduct of a
manager that falls within his or her normal work function, even if in the course of
carrying out that function a worker suffers unpleasant consequences…
The worst that can be said of what happened is that Ms. Heinz made a
blunt, unflattering assessment of the applicant’s performance and demanded in no
uncertain terms that she fulfill management’s work expectations or risk discipline.”
37

38. Open, Frank and Respectful Communication
• Communications occur in a context: what is appropriate between
some people and in some circumstances, will not be appropriate in
other situations
• People can have honest, serious disagreements about issues and
questions
• They can debate and differ, all in good faith
• Supervisors can critique work and assess performance
• None of that is inappropriate, and in fact, it is very necessary
• Each individual employee needs to understand there is a legitimate
purpose to open, frank and respectful communication
• And each individual employee needs to understand that there is a
line which should not be crossed
38

39. Over the Line
•
•
•
•
•
•
•
•
•
•
Words or deeds which demean, denigrate or insult
Which challenge character and integrity, without purpose or proof
Which reference personal characteristics
Which focus on someone‟s vulnerabilities
Non-communication which shuns, isolates and diminishes the value of a
person‟s contribution and participation
Acts or omissions which intimidate (bully) or coerce
Acts or omissions which unfairly describe or evaluate a person‟s work or
overall performance, or which threaten to
Harassment
Threats
Violence
Bullying is typically not about the work, but about the people involved:
the perpetrator’s purposes and the victim’s vulnerabilities
Work is just an excuse or a venue
39

40. Some Tools to Put in Place
• Supervisors and workers should be instructed in:
• Early recognition of escalating behavior or warning signs or situations that may
lead to violence
• Ways to prevent or diffuse volatile situations or aggressive behavior and manage
anger
• Non-violent crisis intervention techniques and conflict management
• A standard response action plan for violent situations, including the availability of
assistance, response to alarm systems and communication procedures
• Ways to deal with hostile people such as coworkers, customers, patients, clients, relatives of clients or patients and visitors
• The location and operation of safety devices such as alarm systems, along with
the required maintenance schedules and procedures
• Ways to protect oneself and coworkers, including use of the "buddy system"
• Policies and procedures for reporting, investigating and recordkeeping
• Information on multicultural diversity to increase staff sensitivity to racial and ethnic
issues and differences
40

41. Thank You
David Law
Tel: 613-783-8829
Email: david.law@gowlings.com
montréal
ottawa
toronto
hamilton
waterloo region
calgary
vancouver
beijing
moscow
london

42. The Evolution of „Family
Status‟ Accommodation in
Canada: Practical Tips
for Employers
Anna Abbott

43. The Ground of Family Status
• Employment
• 5. (1) Every person has a right to equal treatment
with respect to employment without discrimination
because of race, ancestry, place of
origin, colour, ethnic
origin, citizenship, creed, sex, sexual
orientation, gender identity, gender
expression, age, record of offences, marital
status, family status or disability
• OHRC: Policy and Guidelines on discrimination
because of family status
43

44. The Ground of Family Status
• “family status” means the status of being in a
parent and child relationship
44

45. The Ground of Family Status
• Raises complex and difficult issues for
employers related to the treatment of caregivers
in the workplace
• Accommodation of “family status” usually
relates to the needs of a caregiver
• Childcare
• Eldercare
45

46. Accommodation in Employment
• The principle of accommodation applies to all
grounds under the Ontario Human Rights
Code, but accommodation in employment most
often relates to the following grounds:
• Age
• Creed (religion)
• Sex (pregnant women)
• Family status (care-giving responsibilities)
46

47. Family Status Accommodation
• Employers have a duty to consider whether
they can make adjustments to workplace
policies and procedures to accommodate needs
related to family status
• May include flexible scheduling, permitting
employees to take leaves of absence to care for
family members who are ill or have a
disability, or providing access to alternative
work arrangements
47

48. Legal Test for Accommodation
• Step 1: Onus is on employee to prove “prima
facie” discrimination.
• Step 2: Once proved, onus then switches to the
employer to prove that the requirement is a bona
fide occupational requirement (BFOR) and that
they attempted to accommodate to the point of
undue hardship
48

49. Legal Test for Accommodation
• Step 2 breakdown:
• Purpose rationally connected to job
performance
• Honest and good faith belief that it was
necessary
• Standard reasonably necessary and
impossible to accommodate without undue
hardship
49

50. What is Undue Hardship?
• Undue Hardship?
• Consideration under the Human Rights Code
• Cost
• Outside sources of funding
• Health and safety
50

51. Accommodation Process
• Accommodation has a procedural aspect and a
substantive aspect
• If an employer fails to go through an appropriate accommodation
process, it will have breached the Code even where it can show
that it would not have been able to accommodate the employee
without undue hardship
•
51

52. Family Status: Where We Were Then
Differing opinions:
1. Must result in serious interference with family
duty – if nothing extraordinary about
employee‟s position, no discrimination (BC Court of
Appeal, Campbell River)
2. All protected Grounds should be treated the
same (Ontario Human Rights Commission, Federal Court of
Appeal)
52

53. Family Status: Where We Are Now
• Canada (Attorney General) v. Johnstone, 2013
FC 113 (January 2013)
• Canadian National Railway and Denise
Seely, 2013 FC 117 (February 2013)
• Devaney v. ZRV Holdings Ltd., 2012 HRTO 1590
(August 2012)
53

54. Canada (Attorney General) v. Johnstone
• Facts:
• Fiona Johnstone was border services officer
working rotating shifts, husband also border
services officer
• Required fixed shifts to meet childcare needs
• Loss of benefits
(pension, training, advancement) as fixed shifts
only available to part time employees
54

55. Canada (Attorney General) v. Johnstone
• Factors against CBSA:
• No individual assessment of Johnstone‟s case
• Allowed accommodation for religious
reasons, but ignored Johnstone‟s request
• Viewed family obligation as a choice
• Operational concerns were “impressionistic
assumptions” (inundated with requests, too
costly, destructive to 24 hour operations)
• No accommodation policy or training
55

56. Canada (Attorney General) v. Johnstone
• Justice Madamin: “childcare obligations arising
in discrimination claimed based on family status
must be one of substance and the complainant
must have tried to reconcile family obligations
and work obligations”
•
Factors for Johnstone:
• Tried to arrange care with family, and was successful for
some shifts
• Daycare hard to find outside regular hours
• Husband also worked shifts
• Provided options to CBSA
56

57. Canada (Attorney General) v. Johnstone
• Held:
• Discrimination on the basis of „family status‟ will be
made out where an employers rule “interferes with
an employee‟s ability to fulfill a substantial
parental obligation in a realistic way”
• CBSA discriminated against Johnstone by
failing to accommodate her childcare
responsibilities
57

58. Canada (Attorney General) v. Johnstone
• Held:
• CBSA failed to justify that variable shift policy was a
BFOR
• Awarded lost wages, pension
contributions, $15,000 general
damages, $20,000 for wilful reckless conduct of
CBSA
58

59. CNR and Denise Seely
• Facts:
• Long time employee with CN as freight train conductor
residing in AB, on laid off status
• Recalled for temporary work in BC
• Employment terminated when she failed to report
because of childcare responsibilities
59

60. CNR and Denise Seely
• Factors against employer:
• Never responded to request for accommodation
• Did not provide details of job including
duration, accommodation, working conditions
• Did not follow its own extensive accommodation policy
• Put employee in situation of choosing between
employment obligations and childcare duties
60

61. CNR and Denise Seely
• Factors for employee:
•
•
•
•
No immediate family nearby
Daycare during standard hours only
Husband away 14 to 24 hours at a time
Requested accommodation
61

62. CNR and Denise Seely
• Held:
• CN discriminated against Seely on the ground of
family status and failed to provide reasonable
accommodation
• Compensation for loss of wages and
benefits, $15,000 for pain and suffering and
$20,000 for reckless conduct by CN
62

63. Eldercare: Devaney v. ZRV Holdings Ltd.
• Facts:
• Architect employed with company from 1982 to
termination of employment in 2009
• Substantial care responsibilities for ailing mother
• Employer would not allow flexible work schedule
63

64. Eldercare: Devaney v. ZRV Holdings Ltd.
• Factors against employer:
• Attendance policy unreasonable/too strict
• No performance issues
• Failure to engage in dialogue with employee
64

65. Eldercare: Devaney v. ZRV Holdings Ltd.
• Factors for employee:
• Mother on waiting list for care home, care not available
on 24 hour basis
• Required income for her care
• Available by phone and email
• Hired by client on project because of good job
65

66. Eldercare: Devaney v. ZRV Holdings Ltd.
• Held:
• Company's strict attendance policy requiring Devaney to
work out of the company's office had an adverse impact
on him as a result of his family responsibilities. By failing to
engage in a dialogue with Devaney about his needs, the
employer contravened the Code.
• Adversely impacted on the basis of a requirement imposed
by his or her status as a caregiver. (If an adverse impact
is deemed to relate merely to an employee's preference or
choice, no prima facie case will be established)
• Awarded $15,000 in general damages
66

67. Accommodation Process
• Employee obligations in accommodation
process
1.
Make reasonable effort to find outside resources
2.
Advise employer of need for accommodation
3.
Provide employer with sufficient information
4.
Provide suggestions for accommodation
5.
Allow employer reasonable time
67

68. Accommodation Process
• Employee obligations in accommodation
process
6.
Co-operate with employer
7.
Facilitate implementation of accommodation
8.
Advise employer if needs change
9.
Accept reasonable accommodation
68

69. Accommodation Process
• Employer obligations in accommodation
process:
1.
Determine if employee requires accommodation
2.
Consider all possible accommodations
3.
Discuss options with employee
4.
Respond within reasonable time
5.
Keep written record
6.
Maintain confidentiality

70. Accommodation Process
• Employer obligations in accommodation
process:
7.
Request information
8.
Consider employee‟s accommodation suggestions
9.
Follow-up with employee
10. Modify accommodation if required
11. Explain to employee why accommodation impossible
70

71. Accommodation Policy
• Contents of Policy:
•
•
•
•
•
•
Statement of Commitment by management
Objectives
Request for Accommodation (who, how, contents)
Provision of Information (medical information)
Privacy and Confidentiality
Accommodation Planning (contents of accommodation
plan, timelines, goals, accountability)
• Undue Hardship (basis of
assessment, recourse, implementation)
71

72. Recommendations
• Be proactive with general planning and
preparation
• Accommodation policy
• Training for managers and supervisors
• Employee education
• Acknowledge and accept that you have a
positive duty to accommodate an employee to
the point of undue hardship
• Be proactive and sensitive when dealing with
specific problems
72

73. Recommendations
• Engage in dialogue with employee re needs
• Assess on an individual basis
• Be wary of inflexible work hours and rigid
attendance management policies
• Document the process
• Apply policies and procedures consistently
• Gather evidence of undue hardship
• Policies must be reasonable
73

74. Thank You
Anna Abbott
Tel: 416-369-7284
Email:
anna.abbott@gowlings.com
montréal
ottawa
toronto
hamilton
waterloo region
calgary
vancouver
beijing
moscow
london

75. OHS Case Law Update
David Law, Anna Abbott

76. Queen of the North
Queen of the North ferry Captain convicted of criminal negligence
causing death
• Section 217.1 of the Criminal Code imposes a duty on individuals
(workers, supervisors, directors) and organizations to take “reasonable steps” to prevent
“death” or “bodily harm” to a worker. This duty dovetails with ss. 219/220/221 of the
Criminal Code (general criminal negligence provisions) to create the offence of OHS
criminal negligence.
• The law elevated OHS liability and stigma by imposing criminal penalties and a criminal
record on the offender. This law supplements, rather than replaces, existing provincial
and federal legislation (i.e. can be charged with both)
• s.217.1 of the Criminal Code: “Every one who undertakes, or has the authority, to direct
how another person does work or performs a task is under a legal duty to take all
reasonable steps to prevent bodily harm to that person, or any other person, arising from
that work or task.”
Penalties: up to life imprisonment; fines (no maximum amount
stipulated)
Queen of the North Captain sentenced to 4 years
76

77. R. v. 679052 Ontario Limited (c.o.b. Auction
Reconditioning Centre), 2012 ONCJ 747
• Auction Reconditioning Centre (“ARC”) cleans vehicles for rental and
fleet operators. Its employees are assigned specific tasks; those who
are not trained and authorized to drive a vehicle on the property are
expressly not permitted to drive vehicles. However, a cleaner, without
a driver‟s license, moved a car into a wash bay and caused a chain of
collisions which resulted in injury to another worker.
• The Ontario Ministry of Labour charged the employer with failure to
instruct and to take reasonable measures. At trial the company was
convicted but it appealed and the Court of Justice acquitted, saying:
• “[…] it is difficult to understand on what basis [the trial justice] could have found
that an individual whose job it was not to drive should have received
information, instruction and/or supervision about the safe operation of a vehicle or
that a worker, who was not hired to drive a vehicle at the workplace, should have a
valid driver‟s licence and/or be sufficiently trained in the safe operation of a
vehicle. [….]
• “As it was not [the cleaner‟s] job to drive nor was there any reason for his
employers to suspect he would drive, there is no requirement for the defendant in
these circumstances to provide him with information, instruction or supervision in
safe operation or parking of [vehicles].”

78. R. v. 679052 Ontario Limited (c.o.b. Auction
Reconditioning Centre), 2012 ONCJ 747
On supervision the Court said:
• “there is no such legal requirement in workplaces
under the OHSA that a worker must be given such
information, instruction and warnings every time a
task is assigned.”
• The company was not required “to ensure that [the
cleaner] was supervised for every minute he was
working.”
• This logic conforms with what every
employer, supervisor and OHS professional knows –
and what every worker and every Ministry of Labour
Inspector – should remember.

79. R v XI Technologies Inc., 2013 ABCA 282
• Employer failed to identify and eliminate the
safety risk to employees in the operation of a
faulty calf-roping machine at a client
appreciation event
• Employee died - hit in head with steel bar
• No operator present, no employees knew how to
work the machine
• Employer acquitted at trial, conviction stood on
appeal

80. R. v. Metron Construction Corporation, 2013 ONCA 541
• Metron fine appealed - raised from $200k to
$750k
• Original fine "manifestly unfit "
• "A sentence consisting of a fine of $200,000 fails
to convey the need to deliver a message on the
importance of worker safety,… Indeed, some
might treat such a fine as simply a cost of doing
business."

81. Vale Mining
• $1,050,000 fine against Vale Canada Limited
($350,000 per count)
• Guilty Plea
• Fines rising in fatality cases
• Court considered Vale‟s size, the fact that two
workers died, and previous OHSA record in
awarding fine

82. R. v. Brewer‟s Retail Inc.
• Beer Store owner fined $175,000
• Worker died after drinking windshield washer
fluid out of unmarked vodka bottle
• Pleaded guilty to failing to acquaint a worker
with a hazard in the handling, storage or use of a
liquid chemical agent

83. Blue Mountain Resorts Limited v. Ontario
(Labour), 2013 ONCA 75
• Section 51(1) will only be triggered where there
is a reasonable nexus between the hazard giving
rise to the death or critical injury and a realistic
risk to worker safety at the workplace
• Overturned the Board and Divisional of Court
decisions, holding that they interpreted the
requirements under s. 51(1) of the Act in an
unreasonable manner

84. Terrace Bay Pulp Inc. (Re), 2013 ONSC 5111
• OHSA charges can proceed against insolvent
company that had obtained protection from
creditors under the CCAA
• Judge noted that MOL was not acting as a
creditor
• Judge noted that company could decide whether
to incur costs of defence or not

85. Thank You
Anna Abbott
Tel: 416-369-7284
Email: anna.abbott@gowlings.com
David Law
Tel: 613-783-8829
Email: david.law@gowlings.com
montréal
ottawa
toronto
hamilton
waterloo region
calgary
vancouver
beijing
moscow
london

86. Pay Equity
Ongoing Maintenance Responsibility Challenges
and Employer Unknowns Associated with the
Absence of Liability Limitations
Allen Craig

87. Pay Equity 2013 - The Pay Equity Act‟s Mandate
• The Pay Equity Act came into effect January 1, 1988 in an effort to
purportedly correct the part of the wage gap between men‟s and
women‟s wages that is due to undervaluing, and lower pay, of work
mainly done by women.
• Pay equity is equal pay for work of equal or comparable value. It
involves comparing jobs usually done by women with different jobs
usually done by men in the same establishment of an employer. If a
female job class is of equal or comparable value to a male job class in
the organization, the female job class must be paid at least as much as
the male job class.
• Pay Equity is not the same as equal pay for equal work, which means
that if a woman and a man are doing substantially the same jobs for
the same organization or company, they must receive the same wage
unless the difference in pay is due to differences such as seniority or
merit.
87

88. The Pay Equity Act‟s Mandate
• The Act applies to all employers in Ontario who have 10 or more
employees. Employers starting up new businesses with 10 or more
employees, or who grow to 10 or more employees, must immediately
include pay equity in their compensation (wage and benefit) practices.
• There are different pay equity plan posting and pay adjustment
obligations depending on the number of employees in an organization
in Ontario.
Employer Size in 1987
Posting Date of Pay
Equity Plans
First Pay Equity Adjustment
500+ employees/
public sector
January 1, 1990
January 1, 1991
100 to 499 employees
January 1, 1991
January 1, 1992
50 to 99 employees
January 1, 1992
January 1, 1993
10 to 49 employees
January 1, 1993
January 1, 1994
88

89. The Pay Equity Act‟s Mandate
• Employers with 10 to 99 employees chose whether or
not to post a plan. Posting a plan allowed these
employers to phase in pay equity adjustments at one
per cent of the previous year‟s payroll per year.
Those who chose not to post a pay equity plan had
to make all adjustments on the first pay equity
adjustment date and should have posted a Notice of
Requirement to Achieve and Maintain Pay Equity in
the workplace.
89

90. An Employer‟s Responsibility to Maintain Pay Equity
• Employers have an ongoing responsibility not only
to achieve but to maintain compensation practices
which provide for pay equity.
• The Pay Equity Commission has taken the position
that employers should have a maintenance
committee in place for each pay equity plan and that
this committee should be reviewing the genderneutral job comparison system on an annual basis.
90

91. Maintenance Checklist
1. Monitor regularly
•
Temporary skills shortage
•
Other permissible differences
2. Monitor when specific events occur:
•
Adjustments to salaries
•
Settlement of a collective agreement
•
Change in value of female or male job class
•
Vanishing job classes
•
Changes to the representative group of male job classes
•
Changes in the gender predominance of jobs
•
Newly created jobs
3. Monitor every two to three years:
•
Has the job comparison or evaluation system been reviewed to ensure
that it is consistent with what is currently known about genderneutrality?
91

92. The “Random” Selection of
Employers for Compliance Audit Review
• The review audit process has in the past and will
continue in the future to target Ontario businesses
on a sector as well as regional basis to ensure
employers are achieving and maintaining
compensation practices that comply with pay equity
legislation.
92

93. Template Letter to Employer re 2012 Monitoring Program
93

94. Notice of Requirement
94

95. Certificate of Posting
95

96. 2012 Monitoring Program Questionnaire
96

97. 2012 Monitoring Program Questionnaire
97

98. Closing-No Further Investigation
98

99. Conclusion
• An Ontario employer‟s responsibility to ensure
compliance and ongoing maintenance with the Act
continues to be somewhat detailed and onerous, let alone
of significant cost to a corporation, should the
Commission/Tribunal determine that pay equity was not
originally complied with or maintained to date.
• Moreover, there is no period of limitation which would
otherwise limit an employer‟s past financial liabilities for
not having complied with the Act.
Accordingly, depending on an employers number of
Ontario employees, financial liability as well as interest
may well be required to be calculated back some 20+
years.
99

100. Thank You
Allen Craig
Tel: 416-369-4422
Email: allen.craig@gowlings.com
montréal
ottawa
toronto
hamilton
waterloo region
calgary
vancouver
beijing
moscow
london

101. Top 10 Employment and
Labour Law Developments
Hugh Christie, John Illingworth and
Michael Comartin

102. Employee Has to Mitigate
• Employee worked for 33 years with Employer and its
predecessor
• Employer laid him off under mistaken belief
regarding rights under ESA, 2000
• Recalled Employee upon being advised of error
• Employee declined to come back to work
102

103. Employee Has to Mitigate
• New management had implemented a new
program -- Steps to Success with “missionary-like
zeal”
• Employee clearly uncomfortable and disagreed
with certain aspects of marketing program
• Court found that Employee ought to have taken
the opportunity to mitigate, despite change in
location
• Employee‟s erroneous layoff did not justify failure
to mitigate with Employer
103

104. Chevalier v. Active Tire 2012 ONSC 4309
• Employee has obligation to mitigate with
Employer, even after layoff
• Employers do not have right to layoff just because
ESA provides for layoff
• Layoff has to be in contractual document or
common industry practice
• Nonetheless, even after error, employer entitled to
invite employee to come back if genuine error and
not in bad faith
104

105. But…
105

106. Expanded Right to Layoff?
• Employee had worked for company since 2005 in
a middle management role.
• Company was in desperate financial situation and
laid off 59 employees on a rotating basis in 2008.
Claimed it was either layoffs or liquidation.
• Employee laid off in mid-November and told in
January that she would be recalled in July. Total
period of lay-off less than 35 weeks.
106

107. Expanded Right to Layoff?
• Employee found new work and claimed
constructive dismissal or termination – argued no
right to layoff under her employment contract
• Employer argued that since it had complied with
the ESA there was no dismissal – the layoff had
not exceeded the definition of “temporary”
107

108. Trites v. Renin Corp. 2013 ONSC 2715
• Court found that a temporary layoff that complies
with the ESA is not termination
• Court was of the view there was no room for
suggesting constructive dismissal at common law
arises from a temporary layoff complying with the
ESA
• However, in this case, the layoff was not
temporary as employee did not receive substantial
payments from the employer or supplementary EI
benefits
108

109. Termination language strictly construed
• Employer terminated without cause. Contract states
“he would receive six months‟ notice or pay in lieu
upon termination.”
• Employer had drafted contract
• Employee finds work within two weeks
• The Employer paid the three weeks statutory
requirement and refused to pay the balance
109

110. Termination language strictly construed
• Employer argues unfair to allow employee to receive
a windfall profit
• Purpose of notice to permit employee to find another
job and obligation should cease at that time
• Court of Appeal found the damages are liquidated
and therefore are not subject to mitigation
110

111. Bowes v. Goss Power Products Ltd.,
2012 ONCA 425
• Justice Winkler stated that “there is nothing unfair
about requiring employers to be explicit if they
intend to require an employee to mitigate what
would otherwise be fixed or liquidated damages”
• Found that a duty to mitigate is not implied in an
employment contract where it specifies a fixed
amount of notice
• The duty to mitigate should be set out in the
agreement
111

112. Reference to “Benefits” in Termination Provision
• Short-service employee fired without cause
• Termination provision provided for termination
“without cause at any time by providing you with
notice or payment in lieu of notice, and/or severance
pay in accordance with the ESA” which was “in
satisfaction of all claims and demands against the
Corporation which may arise out of statute or
common law with respect to the termination of your
employment with the Corporation.
112

113. Reference to “Benefits” in Termination Provision
• Employee argued the termination provision was void
because it excluded benefits during notice period
and therefore violated ESA benefits continuation
• Argued the „payment in lieu of notice‟ language and
the „in full satisfaction of all claims‟ language, contra
proferentum, meant that benefits were excluded
• Employer argued that the lack of a reference to
benefits meant they were left to ESA default
113

114. Stevens v. Sifton Properties Ltd. 2012 ONSC 5508
• Judge agreed that benefits were addressed by
inference since the contract listed the set of
entitlements upon termination and stated that they
were in full satisfaction of all rights
• The language “drew the circle” to exclude benefits
• Found that even if employer‟s reading was a
reasonable one, contra proferentum applied. Wanted
to give employers an incentive to comply with ESA
114

115. Injury to Dignity and Respect
• In 2008, Ontario‟s Human Rights Code amended to
allow civil courts to award damages for human rights
violations where part of another civil action (e.g. a
wrongful dismissal).
• Employee was a business analyst fired without
cause after 16 months. Alleged termination based in
part on her back problems. Employer had required
her to return to full-time work and terminated her for
failing to do so.
115

116. Wilson v. Solis Mexican Foods Ltd.
2013 ONSC 5799
• The judge was concerned with limited factual record
but found back injury was a factor in termination:
• Insisted on a “full recovery” before the plaintiff‟s return –
impossible to know when/if there could be a “full recovery”
• Refused to go through the proper process of discussing plaintiff‟s
limitations. Gave plaintiff the “run around”.
• Claimed it was a “corporate restructuring” but clearly related to
disability
• The judge awarded $20,000 for injury to dignity and
respect
116

117. Class Action Over Retiree Benefits
• General Motors restructuring to avoid bankruptcy
during the financial crisis
• Retiree life insurance and health benefits were cut
• Class action brought on behalf of approximately
3000 salaried employees – argued that the benefit
plan documents did not permit the reductions
117

118. Class Action Over Retiree Benefits
• The court noted that retiree benefits gave retirees
“peace of mind” that had been lost. Difficult or
impossible to replace such benefits in retirement.
Retirees expected core coverage for life.
• Retiree benefits were an important form of deferred
compensation. Not purely gratuitous on GM‟s part.
• Earlier versions of amendment language in GM‟s
benefit documents did not refer to former employees
or retiree benefits
118

119. O’Neill v. General Motors of Canada
2013 ONSC 4654
• The clause therefore was not clear on GM‟s right to
make changes to benefits for retired employees.
Interpreted contra proferentum against GM.
• Duty of good faith in employment and the
vulnerability of employees grounds to limit exercise
of employer‟s unilateral powers to change benefits.
• Judge granted summary judgment for breach of
contract for salaried employees. Denied for
executives because of different language.
119

120. Overtime Class Actions in Banking
• Another case in the line of cases that includes Brown
v. CIBC, concerning overtime pay
• Former investment advisors alleged to be entitled to
damages for unpaid overtime common in the job
• The bank defended the certification of a class action
on the basis that overtime eligibility depended on
managerial and „greater right or benefit‟
exemptions, which are individual issues not suitable
for a class action.
120

121. Rosen v. BMO Nesbitt Burns Inc.
2013 ONSC 2144
• Judge distinguished Brown v. CIBC where the
managerial exemption prevented certification, on the
basis of commonality of job descriptions/functions
• Judge rejected the application of the “greater right or
benefit” exemption – whether commissions were
greater benefit than overtime was a common issue
• Certified the class action
• An appeal is anticipated
121

122. Emails That Go Astray and Contain Legal Advice
• A non-performing employee accidentally cc‟d on
an e-mail between the company‟s Director of
Operations and the company‟s lawyer
• Requested advice on potential termination
• Despite efforts to recall the e-mail, the employee
read the e-mail and provided copy to her lawyer
• The employee took position that she was
constructively dismissed
122

123. Emails That Go Astray and Contain Legal Advice
• E-mail was privileged solicitor-client communication
and the inadvertent disclosure did not waive
privilege
• Still unfair to the employee to preserve privilege
• Without email, the employee would be at a significant
disadvantage in establishing the context for the
action
• Therefore, entitled to rely on the email
123

124. Fernandes v. Marketforce Communications
(2012 ONSC 6392)
• Including the wrong person on an e-mail is an
understandable mistake that happens to everyone
• This case is a useful reminder of the potential
consequences of such a mistake
124

125. Restrictive Covenants Even Harder to Enforce
• Employee received over $5 million when he sold
his interest in company
• Employee agreed to work for purchaser and
received shares in new entity
• Employee signed a non-competition clause that
ran 24 months from the date he disposed of his
shares in new company
125

126. Restrictive Covenants Even Harder to Enforce
• Court recognized that non-competes in sale
context treated differently than pure employment
• Clause needed to be reasonable in
scope, geographic ambit (all of Canada) and time
• Court of Appeal ruled that clause unreasonable
because of the way the time limit was defined
126

127. Martin v. ConCreate USL LP
2013 ONCA 1840
• Court did not like uncertainty of the time limit
• Sale of shares required consent of lenders and
company
• Not clear if Martin could ever get rid of shares
127

128. Martin v. ConCreate USL LP
2013 ONCA 1840
• Martin permitted to operate competitive business
within months of receiving $5 million
• Martin‟s new company obtained over $32 million in
business
• Purchaser company went bankrupt
• Case will not be appealed
128

129. When Does the Obligation to Reinstate End?
• Supervisor, Regulated Substances, Asbestos
developed generalized anxiety disorder because of
work-related stress
• Medically cleared to work, provided it did not involve
asbestos removal
• Sought other positions, which Employer failed to
consider or offer her
• Application made in 2004; liability decision released
in February 2012
• Parties unable to agree on remedy and HRTO
released remedy decision in early 2013
129

130. When Does the Obligation to Reinstate End?
• Pay loss of wages, CPP and pension loss from
June 26, 2003 until date of reinstatement (over 8 ½
years)
• Reinstatement to suitable alternative employment
including adjusting her length of seniority (and
provide up to 6 months of job training)
• Could not involve personal liability for health and
safety similar to the potential liability caused by
working in asbestos
130

131. When Does the Obligation to Reinstate End?
• Out of pocket expenses for dental and medical
expenses
• Pay adverse tax consequences
• Pay applicant $30,000 as compensation for the
injury to her dignity, feelings and self-respect;
• Interest (pre and post judgment)
131

132. Fair v. Hamilton-Wentworth School District,
2013 HRTO 440
• Until Fair, very few cases where HRTO ordered
reinstatement over objection of employer
• Aggressive approach to remedies
• Significant efforts must be made to
accommodate employee, including into a
different position if available
• Demonstrate efforts to be flexible, creative
• Cannot use overall cost-cutting as an excuse
• Large employers particularly vulnerable
132

133. Thank You
Hugh Christie
Tel: 416-369-7265
Email: hugh.christie@gowlings.com
Michael Comartin
Tel: 416-862-4321
Email: michael.comartin@gowlings.com
John Illingworth
Tel: 519-575-7507
Email: john.illingworth@gowlings.com
montréal
ottawa
toronto
hamilton
waterloo region
calgary
vancouver
beijing
moscow
london

134. 134