Family status issues a growing concern
Employment lawyers were a busy bunch in 2014. In addition to legislative changes, courts and tribunals issued a number of decisions that both framed and clarified many of the issues currently facing employers.
The following are 10 of the most notable rulings from Canadian decision-makers.
Fair v. Hamilton-Wentworth District School Board, 2014 CarswellOnt 3509 (Ont. Div. Ct.).
In one of the most reported employment law cases of the year, the Ontario Divisional Court upheld a decision by the Human Rights Tribunal of Ontario, which found the employer had discriminated against the employee when it terminated her employment because of her disability.
The court reiterated the tribunal’s order to reinstate the employee’s employment, despite the fact she had been away from work for 10 years. In addition, it supported a damage award of all losses arising from the breach of the Human Rights Code, which amounted to nearly $450,000 in compensation.
As the largest damage award ever awarded by the tribunal, the case represents a high watermark for damages under the code and perhaps demonstrates an increasing willingness to grant larger awards where appropriate.
McIntosh v. Legal Aid Ontario, 2014 CarswellOnt 15493 (Ont. S.C.J.).
The plaintiff was advised that the defendant, an employee of Legal Aid Ontario, had accessed confidential information in her file in order to gather information about the plaintiff. The plaintiff bought an action for damages under Ontario’s new tort of intrusion upon seclusion.
The Ontario Superior Court of Justice allowed the action in part and held that the disclosure of personal information caused the plaintiff a measure of anxiety and distress. The court awarded $7,500 in general damages.
As case law continues to expand in the area of privacy rights, the decision is an important reminder to employers of the need to have robust privacy policies and to train employees with regards to the requirements under such policies.
Bhasin v. Hrynew, 2014 CarswellAlta 2046 (S.C.C.).
While not specifically an employment law case, the Supreme Court of Canada expressly recognized a common law duty to act with honesty and candour in the performance of all contractual obligations. This duty is based on an organizing principle of good faith.
While a duty of good faith in the manner of dismissal has already been recognized in the employment context, the Supreme Court’s decision may have far-reaching implications when courts deal with employment disputes in general, as contractual obligations are the basis of the employment relationship.
It may not be an issue concerning damages in the employment context, but may go to whether the provisions of an otherwise validly executed employment agreement are subject to challenge due to this obligation of fairness and honesty.
Paquette v. Quadraspec, 2014 CarswellOnt 5338 (Ont. S.C.J.).
In a decision with implications for employers with operations in multiple provinces, the Ontario Superior Court held that an employer’s payroll both inside and outside Ontario must be included when calculating the $2.5-million payroll threshold for severance pay when determining an employer’s severance pay obligations pursuant to the Ontario Employment Standards Act, 2000 (ESA).
Historically, only the employer’s “Ontario” payroll was counted, but this decision may open the door to claims for termination pay and severance pay based on a cumulative payroll.
Wong v. Globe and Mail Inc., 2014 CarswellOnt 15512 (Ont. Div. Ct.).
On Nov. 3, 2014, the Ontario Divisional Court dismissed journalist Jan Wong’s application for judicial review of an arbitrator’s decision ordering her to repay to her employer settlement monies because she had violated a non-disclosure provision in a settlement agreement.
The Globe and Mail had paid Wong $209,912 as part of a settlement. The settlement agreement contained a non-disclosure provision that required Wong to keep the terms of the settlement confidential and that she repay the settlement monies in the event of a breach of the confidentiality provision.
After receiving the settlement money, Wong published a book wherein she discussed the settlement and indicated she had been paid “a pile of money to go away.”
The court upheld the arbitrator’s order and commented that the provision in the settlement agreement that required repayment in the event of a breach was reasonable. Notably, the court also required the employee to pay the union and the employer’s costs of the judicial review.
The lesson for employers? Always make sure you have a good confidentiality provision in settlement agreements — and don’t be afraid to deal with what happens if there is a breach.
Dennis v. Ontario Lottery and Gaming Corp., 2014 CarswellOnt 9687 (Ont. S.C.J.).
This case is a good example of just how difficult it is for employers to establish what is known as “after-acquired just cause.”
OLG initially dismissed the employee on a without-cause basis and offered a settlement. Shortly thereafter, and prior to the employee receiving the settlement money (but after the employee had executed the settlement documents), OLG discovered the worker “borrowed,” without approval, nearly $1,000 from the employer’s social committee. The employee’s involvement in the social committee was voluntary.
OLG rescinded the settlement and took the position the employee’s termination was for “after-acquired cause;” that is, facts they learned after the initial termination. In response, the employee brought an action for enforcement of the settlement.
The Ontario Superior Court allowed the employee’s action for several reasons including, in large part, the fact that the employee’s involvement in the social committee was not an essential condition of her employment and the employer’s investigation into the allegations of theft was inadequate.
Johnstone v. Canada (Border Services Agency), 2014 CarswellNat 1415 (F.C.A.).
As family status issues gain in prominence, this decision of the Federal Court of Appeal is an important one. Here, the Canada Border Service Agency refused an employee’s request for a fixed schedule in order to allow her to provide child care.
The court held the refusal to accommodate the request constituted discrimination on the basis of family status. In arriving at this decision, the Court of Appeal reformulated the test for discrimination on the basis of “family status.”
While there still exist different “tests” for the application of family status obligations, the court made it clear that simple refusals will not satisfy the duty to accommodate, particularly as it relates to scheduling requests.
Decision No. 2157/09, 2014 CarswellOnt 6239 (Ont. W.S.I.A.T.).
In a challenge to the constitutionality of the mental stress claim provisions (section 13 of the Ontario Workplace Safety and Insurance Act (WSIA)), the Ontario Workplace Safety and Insurance Appeals Tribunal concluded that the provisions in the legislation infringed the right to equality guaranteed by the Charter of Rights and Freedoms because it treated mental and physical claims differently.
The tribunal found the infringement arbitrary and not justified by section one of the charter.
This decision has enormous implications for employers, particularly given the historical difficulty in proving benefit entitlement for mental health-related issues under the WSIA. And given the prominence of mental health issues in the workplace, challenging and litigating these types of cases under workers’ compensation legislation can be costly and time-consuming.
However, there may be an issue as to whether or not a claim for mental stress filed under the act will foreclose any civil litigation claims. Stay tuned.
Blackberry Limited v. Marineau-Mes, 2014 CarswellOnt 3522 (Ont. S.C.J.).
Here, the employee’s employment agreement obligated him to provide six months’ advance written notice of his resignation. Contrary to his contractual obligations, the employee provided only two months’ written notice.
In response, the employer applied to the Ontario Superior Court of Justice for a declaration the employee was obligated to provide six months’ prior written notice of his resignation. The court agreed with the employer.
Practically, insisting on a period of notice for an employee who no longer wishes to be employed may not be optimal, but as a method of keeping the employee from competing, it might serve to be quite helpful.
Lorenzo Lisi practises employment and labour law at Aird & Berlis in Toronto. For more information, call (416) 863-1500 or visit www.airdberlis.com.
More top cases from 2014
Jeffrey R. Smith, editor of Canadian Employment Law Today, combed through www.employmentlawtoday.com to identify even more groundbreaking cases from the past year.
Employer not at fault for failure to accommodate: A Nova Scotia municipal worker with multiple serious illnesses was on medical leave — but once she returned to work, she had issues with excessive absenteeism that led to her dismissal. An arbitrator found the employee’s disability wasn’t accommodated, but the employer didn’t have the opportunity to investigate its duty to accommodate since it didn’t have all the medical information. The employer was ordered to reinstate the employee, but only conditionally pending a review of its ability to accommodate her.
$100,000 in human rights damages for restaurant workers: An Ontario restaurant owner: forced Muslim kitchen workers to eat pork during their religious fast; enforced an English-only rule in the kitchen; made discriminatory comments; and made reprisals against them when they complained. The restaurant owner was ordered to pay almost $100,000 for discrimination and lost pay.
Addiction still a disability months after nurse’s termination: This involved an Ontario nurse fired for poor performance, intoxication at work and possible theft of drugs. Despite her denial of an addiction, an arbitrator found the employer should have suspected the nurse had a problem from her behaviour and ordered her reinstated. As a result, she was accommodated — but not to active duty.
Random drug, alcohol testing struck down at Suncor: Suncor introduced an amendment to its alcohol and drug testing policy at its Alberta oilsands operations to allow for random testing of employees in safety-sensitive positions — which describes 82 per cent of its oilsands workforce. An arbitrator struck it down, finding Suncor’s data indicating a problem didn’t differentiate between employees and contractors, and existing testing — post-incident and return-to-work after treatment — was sufficient.
Voluntary severance program not discriminatory: Workers on long-term disability challenged a voluntary severance program that calculated payment based on salary of the last day worked — which was much less for those who’d been off work for a long time. An arbitrator found the program was not discriminatory as active workers were giving up something different in ending their employment and all workers had a choice as to whether they wanted to change their own individual circumstances.
Worker’s holdout for ‘perfect’ accommodation fails: A federal employee who was Orthodox Christian wanted Orthodox Good Friday and Easter off instead of the regular dates of the holidays. The labour relations board found the employer provided accommodation options — such as vacation days, compensatory leave and leave without pay — but the employee wanted to work the regular holidays and take the Orthodox holidays off, which wasn’t an option. The decision? An employee needing accommodation isn’t necessarily entitled to accommodation to the exact terms desired, as long as there are reasonable options.
Addicted worker’s breach of last-chance agreement not the end: A worker with drug and alcohol addictions self-disclosed but suffered several relapses over a few years. The employer eventually terminated the worker after he breached a last-chance agreement, but the arbitrator found the employer should have attempted accommodation of the employee’s disability — and also noted such a dismissal would discourage other workers from entering the company’s treatment program.
