2. 2
CARLETON 911
Carleton 911 is a new Canadian television
drama about firehouse staff with ridiculously
attractive firefighters and paramedics whose
substance abuse and sex lives are more
interesting than the emergencies to which they
respond.
Fact Situation No. 1
3. 3
Fact Situation No. 1, cont’d
The municipality feels that the firehouse is out of control and in order to get
the crew in order they recruit Wallace Walker from a 20 year career in
Chicago with promises of new equipment and large staffing and training
budgets.
Unfortunately the crew are entirely resistant to their new chief and are
determined to make Wallace’s life miserable with escalating pranks and
harassment directed at Wallace’s sexual orientation and ethnicity. Wallace
complains to the Commissioner who turns a blind eye and decides to wait
things out.
Things at the firehouse go from bad to worse and ultimately the municipality
decides that they have made a hiring mistake. When one of the firefighters
is injured due to equipment failure, Wallace is terminated for cause on the
basis of alleged gross negligence, just shy of completing the period that
would have entitled him to group benefits.
4. 4
Fact Situation No. 1, cont’d
Shortly after his dismissal Wallace suffers a reactive depression that
is incapacitating. Wallace who is 48 years of age finds himself with
no benefits and in the absence of any contractual termination
provisions sues for reasonable notice at common law and adds a
claim under Section 46.1 of the Ontario Human Rights Code.
1. What general damages are available?
2. How is the situation impacted by Wallace’s disability?
3. What impact is there with respect to the allegations of gross
negligence?
5. 5
Fact Situation No. 2
ZERO DARK FLIRTY
Zero Dark Flirty is the tale of Jessica, an attractive
investigator who has spent more than thirty years since
college with the same governmental agency on a hunt
for respect in the workplace.
6. 6
Fact Situation No. 2, cont’d
In recent years as part of a promotion, Jessica signed a new
Employment Agreement which provided:
“The employer may terminate your employment without cause at
any time by providing you with notice or payment in lieu of notice
and/or severance pay in accordance with the Employment
Standards Act of Ontario. You agree to accept such notice or
payment in lieu of notice and/or severance pay in satisfaction of all
claims and demands against the employer which may arise out of
statute or common law with respect to the termination of your
employment.”
7. 7
Fact Situation No. 2, cont’d
Due to an economic downturn, Jessica’s employer
elects to terminate the employment relationship and
offers her a total of 34 weeks base salary together with a
continuation of her group benefits for a period of eight
weeks in exchange for a signed Release Agreement.
Now in her 50’s making $85,000.00 annually, Jessica
suspects that it will be difficult to find alternate
employment and she rejects the offer and sues.
8. 8
Fact Situation No. 2, cont’d
1. Is the Employment Agreement enforceable?
2. Can the employer insist upon the execution of a
Release Agreement prior to paying the 34 week
package?
3. Is there a 24 month cap at common law?
4. What can the court do in response to a motion for
summary judgment inside the period of reasonable
notice?
9. 9
Fact Situation No. 3
LIFE OF BYE
This is an Ang Lee tale of an individual worker who goes from one
termination meeting to another. On this particular occasion Ricky
Coal provided full time onsite training with respect to programs
developed by the organization.
Ricky had his independent contractor arrangement terminated
summarily when it was discovered during routine maintenance that
he was using the organization’s systems to download child
pornography onto the work laptop provided to him by the
organization.
10. 10
Fact Situation No. 3, cont’d
Ricky sues alleging that he was in fact an
employee entitled to reasonable notice. He also
includes a tort claim for intrusion upon
seclusion.
11. 11
Fact Situation No. 3, cont’d
The employer relies upon the Service Agreement between the
parties which provides:
“It is understood and agreed by the parties that the contractor is
an independent contractor and that neither the contractor nor any
of its representatives are to be an employee or agent of the
corporation. Accordingly, the contractor understands that the
contractor is responsible for making all payments required by
self-employed individuals, including, without limitation, tax
remittances, contributions to the Canada Pension Plan and any
other amounts required to be paid under any statute, regulation,
by-law or otherwise as a result of receipt by the contractor of the
fees and payments herein.”
12. 12
Fact Situation No. 3, cont’d
The employer also relies upon its systems policies which provide:
“Computers, hardware and related software, telephones, cell phones,
pagers, Blackberries or similar devices, voicemail, fax and copy
machines, email, internet access and related systems and equipment
(the company’s tools) are company property. Users of the company’s
tools can have no expectation of privacy, even if passwords and other
security devices are used. The company reserves the right to examine
all files, email directories and other information stored on our computers
and systems… internet and email use are to be restricted to work
related activities and are not to be misused or abused… The company
reserves the right to monitor internet use and email messages…
Without limiting the generality of the foregoing, email and internet
access is not to be used to… engage in any illegal or unethical
activities… Violations of this policy will lead to discipline up to and
including termination of employment.”
13. 13
Fact Situation No. 3, cont’d
1. Is Ricky an employee?
2. Has the employer committed any tort?
3. Does the employer have just cause for summary
dismissal?
14. 14
Fact Situation No. 4
INLAND SECURITY
Clair Matheson is a demoted CSIS Agent with mental
health issues who now spends her days hunting serial
parking violators.
By reason of the death of her husband, Clair has
become the sole caregiver for her two children and
requested that the rotating shifts provided for by the
Collective Agreement be varied to a fixed day shift to
accommodate her family obligations.
15. 15
Fact Situation No. 4, cont’d
The employer responded that fixed day shifts are only
available to part-time employees and so Clair was
compelled to give up her full-time status and certain
benefits that included training, advancement and
pension benefits.
Clair launched a claim to the HRTO alleging
discrimination on the basis of family status.
16. 16
Fact Situation No. 4, cont’d
1. What are the issues?
2. Would it make any difference if Clair was providing
care to her ailing mother?
3. If Clair’s mental health issues result in the complaint
not being heard for many years, would this impact
upon the remedies?
17. 17
List of Cases for Fact Situations
Fact Situation #1 (Carleton 911)
Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799
Brito v. Canac, 2012 ONCA 61
Honda Canada Inc. v. Keays, 2008 SCC 39 [2008] 2 SCR 362
Kelly v. Norsemont Mining Inc., 5 C.C.E.L. (4th) 169 (BCSC)
Middleton v. Highlands East (Municipality), 5 C.C.E.L (4th) 289
18. 18
List of Cases for Fact Situations, cont’d
Fact Situation #2 (Zero Dark Flirty)
Stevens v. Sifton Properties Limited, 2012 ONSC 5508
Machtinger v. HOJ Industries Ltd., [1992] 1 SCR 985
Wright v. The Young and Rubicam Group of Companies
(Wunderman), 2011 ONSC 4720 (CanLII)
Middleton v. Highlands East (Municipality), 5 CCEL 4th 289 ONSC
Hussain v. Suzuki Canada Ltd., 209 A.C.W.S. (3d) 101
Lowndes v. Summit Ford Sales Limited, 2006 CanLII 14 (ONCA)
19. 19
List of Cases for Fact Situations, cont’d
Fact Situation #2 (Zero Dark Flirty), cont’d
Rienzo v. Washington Mills Electro Minerals Corporation, 2005
CanLII 44668 (ONCA)
Baranowski v. Binks Manufacturing Co., [2000] O.J. No. 49
Bernier v. Nygard International Partnership, 2013 ONSC 4578
(CanLII)
Bullen v. Proctor & Redfern Ltd. (1996), 20 CCEL (2d) 36
Thomson v. Bechtal Canada Ltd. (1983), 3 CCEL 16 (Ont. HC)
20. 20
List of Cases for Fact Situations, cont’d
Fact Situation #3 (Life of Bye)
671122 Ontario Ltd. v. Sagaz Industries Canada Inc. [2001], 2 SCR
983
1392644 Ontario Inc. (Connor Homes) v. Canada National
Revenue, 2013 FCA 85 (CanLII)
Jones v. Tsige, (2012) ONCA 32 (CanLII)
R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34
McKinley v. BC Tel, 2001 SCC 38 [2001] 2 S.C.R. 161
21. 21
List of Cases for Fact Situations, cont’d
Fact Situation #4 (Inland Security)
Attorney General of Canada v. Fiona Ann Johnstone, 2013 F.C. 113
Health Sciences Association of British Columbia v. Campbell River,
[2004] BCJ No. 922, 2004 BCCA
CNR v. Seeley, 2013 F.C. 117 (CanLII)
Devaney v. ZRV Holdings Ltd., [2012] OHRTD No. 1571 (CanLII)
Sharon Fair v. Hamilton-Wentworth District School Board, 2012 HRTO
350 (CanLII)
