Employment and Labour Law Seminar - June 13, 2013


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Employment and Labour Law Seminar - June 13, 2013

  1. 1. Gowlings Employment and Labour Law SeminarJune 13, 2013Anna AbbottBettina BurgessP.A. Neena GuptaMark JosselynBill MacGregorR. Ross WellsChris AndreeAllen CraigJohn IllingworthLesley LoveJordan SmithPhil WolfendenEdward Trevvett
  2. 2. 2June 13, 2013Employment and Labour Law Seminar
  3. 3. 3I Spy…How Far Can Employers Goat Work and Online in MonitoringEmployees?Presented By:Bettina Burgess
  4. 4. 4
  5. 5. Forms of Monitoring5• Computer tracking software• Cyber spying on social networking sites• Video surveillance• GPS• RFID’s• Naked eye observation• Audio Recordings• Physical searches
  6. 6. Applicable Laws: StatuteFederal: Personal Information Protection and ElectronicDocuments Act (“PIPEDA”)• Only applies to federally regulated employers“Personal Information” is broadly defined as:“information about an identifiable individual, but does not includethe name, title or business address or telephone number of anemployee of an organization”Information collected through any form of monitoring constitutespersonal information so long as it can be attributed to anindividual6
  7. 7. Applicable Laws: StatuteBritish Columbia and Alberta: Personal Information andProtection ActQuebec: An Act Respecting the Protection of PersonalInformation in the Private Sector• Applies to the collection of employee information• May collect personal information without the consent of theemployee if it is reasonably necessary to manage theemployment relationship• Must be able to show that there is nexus between thepersonal information and the duties performed by theemployee7
  8. 8. Applicable Laws: StatuteOntario and the Rest of Canada• No applicable legislation for private sector,provincially regulated employers• Public sector employers are governed bythe Privacy Act and various municipalprivacy statutes8
  9. 9. Applicable Laws: StatutePrivacy Commissions apply a 4 part test: Is the measure demonstrably necessary to meet aspecific need? Is it likely to be effective in meeting that need? Is the loss of privacy proportional to the benefitgained? Is there a less privacy-invasive way of achieving thesame end?9
  10. 10. Applicable Laws: StatuteIs the measure demonstrably necessary to meet aspecific need?• Not acceptable: Monitoring employee activity only toensure productivity• Acceptable: Safety, asset management, improvingefficiencies, protect against theft and vandalism, andmonitoring employee productivity• Acceptable: Monitoring employee activity uponreceipt of substantial evidence of serious misconduct10
  11. 11. Is it likely to be effective in meeting thatneed?• Surveillance must be effective inachieving purpose• Ex. Video surveillance used to ensureadherence to safety protocol but imagesare not precise enough to pick up use ofequipment11
  12. 12. Is the loss of privacy proportional to the benefit gained? Surveillance that collects more information thanis necessary or is overly privacy-invasive will notsatisfy this test Ex. Key stroke monitoring which collectspersonal passwords and banking information aswell as what confidential information theemployee was sending to third parties12
  13. 13. Is there a less privacy-invasive way of achieving thesame end? If another less privacy-invasive means of puttingan end to the misconduct or other problemwould have achieved the same goal, thesurveillance method used will not be permitted Ex. If simply confronting the employee wouldhave been sufficient to prevent the employeefrom excessive computer use, there is no needto surreptitiously monitor his computer use13
  14. 14. Applicable Laws: ContractUnionized Work Place• Privacy rights of workers are governed by the collectiveagreement either explicitly or in the good faith dealing provision• Most union cases deal with employees who have beendisciplined based upon misconduct discovered through the useof some form of surveillance• The union worker typically grieves both the discipline and theinvasion of privacy• Arbitrators use a similar test to that of the privacy commissions indetermining whether the employer went too far in the use ofmonitoring activities and thereby breached the collectiveagreement and the privacy rights of the union worker14
  15. 15. Applicable Laws: ContractNon-Unionized Workplace• If an employer does not have a contractual right to engagecertain monitoring techniques either through written agreementor policy, the employee may successfully sue for constructivedismissalColwell v. Cornerstone Properties Inc.• Employee successfully sued for constructive dismissal andpoisoned work environment when she discovered that heremployer had installed a video camera in her office with nolegitimate purpose15
  16. 16. Applicable Laws: TortIntrusion Upon Seclusion: Jones v. Tsige• Prior to Jones v. Tsige no court would definitively rule that therewas no tort of invasion of privacy, but conversely, no appellatecourt would find that there was one.• Superior Court of Justice, 2010: There is no free standing right toprivacy of common law. This is an area of law that should bedeveloped by statute.• Court of Appeal, 2011: There is a tort of intrusion of seclusiongiving rise to common law protection of privacy rights.16
  17. 17. Applicable Law: TortTest for Intrusion Upon Seclusion:1. The defendant’s conduct must be intentional or reckless.2. The defendant must have invaded, without lawful justification,the plaintiff’s private affairs or concerns.3. A reasonable person would regard the invasion as highlyoffensive causing distress, humiliation or anguish.Proof of harm is presumed – no need to prove economic loss17
  18. 18. R. v. Cole - Employees Do Have a ReasonableExpectation of Privacy• An employee may have a reasonable, butlimited expectation of privacy when it comesto computer use at work• Qualification: This case dealt with Charterrights that are not triggered in the privatesector• Point to be taken from R. v. Cole: implementvery clear policies18
  19. 19. POLICIES, POLICIES, POLICIES• Do NOT rely upon your employee’s common sense – it goes out thewindow when it comes to computer use and use of social media• Courts and Tribunals expect you to educate and manage youremployees• In all decisions dealing with employee privacy rights versus employer’srights to monitor where clear policies were present, employees werehighly criticized for not following them• Where clear policies were absent, employers were highly criticized fornot having them in place• Make the policies known to the employee – simply posting policies onthe company’s internet is not sufficient• Consistently enforce the policies or they become meaningless19
  20. 20. What to Include in Policies• No expectation of privacy – passwords do not equal private• Types of monitoring that may be engaged• The purpose for which monitoring may take place: maintainintegrity of systems, investigation of employee misconduct• Information collected: whatever the employee has viewed,created or downloaded• Where information will be stored• Who will have access to the information• When and how it will be destroyed• Company owns the data, even if personal to the employee• Acceptable and unacceptable personal use• Consequences for violating the policy20
  21. 21. Other Best Practices• Determine an appropriate goal or purpose before monitoringemployee computer use• Remember that results from surveillance may not be reliable oradmissible evidence in court• Consider all less privacy-intrusive alternatives and documentalternatives considered, and reasons for rejecting them• Where appropriate, inform employees prior to implementingsurveillance• Obtain consent where appropriate – policy acknowledgmentideal21
  22. 22. Other Best Practices• Capture as little information as possible• Limit access to senior executives/managementon a need to know basis only• Ensure secure storage• Destroy information as soon as it is no longerneeded• Stay on top of the law – privacy law iscontinually changing22
  23. 23. 23Thank YouName Bettina L. BurgessTel: 519-569-4557Email: bettina.burgess@gowlings.comMontréal  Ottawa  Toronto  Hamilton  Waterloo Region  Calgary  Vancouver  Beijing Moscow  London
  24. 24. 24AODA – Accessibility for Ontarianswith Disabilities ActPresented By:Anna Abbott
  25. 25. 25Accessibility for Ontarians With DisabilitiesAccessibility forOntarians withDisabilities ActAccessibilityStandard forCustomer ServiceIntegratedAccessibilityStandardsInformation andCommunicationsStandardsEmploymentStandardsTransportationStandardsBuilt Environment
  26. 26. ApplicationWho has to comply?If your organization (public, private andnot-for-profit organizations) has at leastone employee, and you provide goods,services or facilities to the public or toother organizations, then you aresubject to the regulations26
  27. 27. ApplicationWho has to comply?Classes:• Government of Ontario and Legislative Assembly• Large designated public sector organizations with 50+employees• Small designated public sector organizations with 1 to 49employees• Large organizations with 50+ employees• Small organizations with 1 to 49 employeesRequirements and timelines for compliancedepend on class27
  28. 28. The Integrated Accessibility Standards Regulation• IAS adds to rather than replaces existingOHRC obligations with respect toaccommodation• “undue hardship” still alive28
  29. 29. The Integrated Accessibility Standards Regulation• Establishes accessibility standards andintroduces requirements for• Information and Communications• Employment• Transportation• Built Environment• Establishes compliance framework forobligated organizations29
  30. 30. Information and Communication Standard• Part II of the IAS• Among other things, requirement to make internetand intranet websites and web content accessiblein accordance with Web Content AccessibilityGuidelines (WCAG) 2.030
  31. 31. Information and Communication Standard• Provide accessible formats and communications supports in a timelymanner and at a cost that is no more than the regular cost charged toother persons, when a person with a disability asks for them. In effectfor large organizations on January 1, 2016.• Make feedback processes accessible by providing accessible formatsand communications support when requested and notify the publicabout the availability of accessible formats and communication support.In effect for large organizations on January 1, 2015.• Make public emergency information accessible when requested, if theorganization prepares emergency procedures, plans or public safetyinformation and makes the information available to the public. In effectsince January 2012.31
  32. 32. Information and Communication StandardWCAG 2.0 is an internationally accepted standard forweb accessibility which sets out guidelines for makingwebsites more accessible for persons with disabilities:• Writing web content in clear language• Providing alternative text for imagines• Ensuring that website navigation can be done with keyboardonlyEach guideline has 3 levels of accessibility - A, AA, and AAA32
  33. 33. Information and Communication StandardEx: if an employer had an explanatory video on itswebsite, the video will have to have close captioningto accommodate individuals with hearing loss.33
  34. 34. Information and Communication StandardObligated organizations (public sector organizationsand large organizations of 50+) shall meet therequirements of the Information and CommunicationStandard in accordance with the following schedule:• January 1, 2014: new internet websites and webcontent must conform with WCAG 2.0 level A• January 1, 2021: All internet websites and webcontent must conform with WCAG 2.0 Level AAother than criteria 1.2.4 (captions) and 1.2.5 (pre-recorded audio descriptions34
  35. 35. Recommendations• Be aware of timelines for compliance• Meet with IT personnel• Create project plan for website updates• Assign responsibility for compliance35
  36. 36. AODA Compliance Wizard36http://www.mcss.gov.on.ca
  37. 37. 37Thank YouName Anna AbbottTel: 416-369-7284Email: anna.abbott@gowlings.comMontréal  Ottawa  Toronto  Hamilton  Waterloo Region  Calgary  Vancouver  Beijing Moscow  London
  38. 38. 38Ongoing Maintenance ResponsibilityChallenges and EmployerUnknowns Associated with theAbsence of Liability LimitationsPresented By:Allen V. Craig
  39. 39. Pay Equity 2013 – the Pay Equity Act’s Mandate• The Pay Equity Act came into effect January 1, 1988 in an effort to purportedlycorrect the part of the wage gap between men’s and women’s wages that is dueto undervaluing, and lower pay, of work mainly done by women.• Pay equity is equal pay for work of equal or comparable value. It involvescomparing jobs usually done by women with different jobs usually done by menin the same establishment of an employer. If a female job class is of equal orcomparable value to a male job class in the organization, the female job classmust 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 awoman and a man are doing substantially the same jobs for the sameorganization or company, they must receive the same wage unless the differencein pay is due to differences such as seniority or merit.39
  40. 40. 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 growto 10 or more employees, must immediately include pay equity in theircompensation (wage and benefit) practices.• There are different pay equity plan posting and pay adjustment obligationsdepending on the number of employees in an organization in Ontario.40Employer Size in 1987 Posting Date of Pay Equity Plans First Pay Equity Adjustment500+ employees/public sectorJanuary 1, 1990 January 1, 1991100 to 499 employees January 1, 1991 January 1, 199250 to 99 employees January 1, 1992 January 1, 199310 to 49 employees January 1, 1993 January 1, 1994
  41. 41. 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 equityadjustments 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 alladjustments on the first pay equity adjustment date and should haveposted a Notice of Requirement to Achieve and Maintain Pay Equity inthe workplace.41
  42. 42. An Employer’s Responsibility to Maintain Pay Equity• Employers have an ongoing responsibility not only to achieve but to maintaincompensation practices which provide for pay equity.• The Pay Equity Commission has taken the position that employers should have amaintenance committee in place for each pay equity plan and that this committeeshould be reviewing the gender-neutral job comparison system on an annualbasis.42
  43. 43. Maintenance Checklist1. Monitor regularly temporary skills shortage other permissible differences2. 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 isconsistent with what is currently known about gender-neutrality?43
  44. 44. The “Random” Selection of Employers forCompliance Audit Review• The review audit process has in the past andwill continue in the future to target Ontariobusinesses on a sector as well as regionalbasis to ensure employers are achieving andmaintaining compensation practices thatcomply with pay equity legislation.44
  45. 45. 45Template Letter to Employer re2012 Monitoring Program
  46. 46. 46Notice of Requirement
  47. 47. 47Certificate of Posting
  48. 48. 482012 Monitoring ProgramQuestionnaire
  49. 49. 492012 Monitoring ProgramQuestionnaire
  50. 50. 50Closing-No Further Investigation
  51. 51. Conclusion• An Ontario employer’s responsibility to ensure compliance and ongoingmaintenance with the Act continues to be somewhat detailed andonerous, let alone of significant cost to a corporation, should theCommission/Tribunal determine that pay equity was not originallycomplied with or maintained to date.• Moreover, there is no period of limitation which would otherwise limit anemployer’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 calculatedback some 20+ years.51
  52. 52. 52Thank YouName Allen V. CraigTel: 416-369-7343Email: allen.craig@gowlings.comMontréal  Ottawa  Toronto  Hamilton  Waterloo Region  Calgary  Vancouver  Beijing Moscow  London
  53. 53. 53Is Your Employee’s Childcare IssueReally Your Problem?Presented By:P.A. Neena Gupta
  54. 54. The Ground of Family StatusEmployment5. (1) Every person has a right to equal treatment withrespect to employment without discriminationbecause of race, ancestry, place of origin, colour,ethnic origin, citizenship, creed, sex, sexualorientation, gender identity, gender expression, age,record of offences, marital status, family status ordisabilityOHRC: Policy and Guidelines on discrimination because of family status54
  55. 55. The Ground of Family Status“family status” means the status of being in a parentand child relationship55
  56. 56. The Ground of Family Status• Raises complex and difficult issues foremployers related to the treatment ofcaregivers in the workplace• Accommodation of “family status” usuallyrelates to the needs of a caregiver• childcare• eldercare56
  57. 57. Accommodation in EmploymentThe principle of accommodation applies to allgrounds under the Ontario Human RightsCode, but accommodation in employmentmost often relates to the following grounds:• Age• Creed (religion)• Sex (pregnant women)• Family status (care-giving responsibilities)57
  58. 58. Family Status Accommodation• Employers have a duty to consider whetherthey can make adjustments to workplacepolicies and procedures to accommodateneeds related to family status• May include flexible scheduling, permittingemployees to take leaves of absence to carefor family members who are ill or have adisability, or providing access to alternativework arrangements58
  59. 59. Legal Test for AccommodationStep 1: Onus is on employee to prove “primafacie” discrimination.Step 2: Once proved, onus then switches to theemployer to prove that the requirement is abona fide occupational requirement (BFOR)and that they attempted to accommodate tothe point of undue hardship59
  60. 60. Legal Test for AccommodationStep 2 breakdown:• Purpose rationally connected to jobperformance• Honest and good faith belief that it wasnecessary• Standard reasonably necessary andimpossible to accommodate without unduehardship60
  61. 61. What is Undue Hardship?Undue Hardship?• Consideration under the Human Rights Code• Cost• Outside sources of funding• Health and safety61
  62. 62. Accommodation ProcessAccommodation has a procedural aspectand a substantive aspect• If an employer fails to go through an appropriateaccommodation process, it will have breached the Code evenwhere it can show that it would not have been able toaccommodate the employee without undue hardship62
  63. 63. Family Status: where we were thenDiffering opinions:1. Must result in serious interference with familyduty – if nothing extraordinary aboutemployee’s position, no discrimination (BC Courtof Appeal, Campbell River)2. All protected Grounds should be treated thesame (Ontario Human Rights Commission, Federal Court ofAppeal)63
  64. 64. Family Status: where we are now• Canada (Attorney General) v.Johnstone, 2013 FC 113 (January2013)• Canadian National Railway andDenise Seely, 2013 FC 117 (February2013)• Devaney v. ZRV Holdings Ltd., 2012HRTO 1590 (August 2012)64
  65. 65. Canada (Attorney General) v. JohnstoneFacts:• Fiona Johnstone was border services officerworking rotating shifts, husband also borderservices officer• Required fixed shifts to meet childcare needs• Loss of benefits (pension, training,advancement) as fixed shifts only available topart time employees65
  66. 66. Canada (Attorney General) v. JohnstoneFactors 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 “impressionisticassumptions” (inundated with requests, toocostly, destructive to 24 hour operations)• No accommodation policy or training66
  67. 67. Canada (Attorney General) v. JohnstoneJustice Madamin: “childcare obligations arising indiscrimination claimed based on family status must beone of substance and the complainant must have triedto reconcile family obligations and work obligations”Factors for Johnstone:• Tried to arrange care with family, and wassuccessful for some shifts• Daycare hard to find outside regular hours• Husband also worked shifts• Provided options to CBSA67
  68. 68. Canada (Attorney General) v. JohnstoneHeld:• Discrimination on the basis of ‘family status’ willbe made out where an employers rule“interferes with an employee’s ability tofulfill a substantial parental obligation in arealistic way”• CBSA discriminated against Johnstone byfailing to accommodate her childcareresponsibilities68
  69. 69. Canada (Attorney General) v. JohnstoneHeld:• CBSA failed to justify that variable shift policywas a BFOR• Awarded lost wages, pension contributions,$15,000 general damages, $20,000 for wilfulreckless conduct of CBSA69
  70. 70. CNR and Denise SeelyFacts:• Long time employee with CN as freight trainconductor residing in AB, on laid off status• Recalled for temporary work in BC• Employment terminated when she failed toreport because of childcare responsibilities70
  71. 71. CNR and Denise SeelyFactors 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 accommodationpolicy• Put employee in situation of choosing betweenemployment obligations and childcare duties71
  72. 72. CNR and Denise SeelyFactors for employee:• No immediate family nearby• Daycare during standard hours only• Husband away 14 to 24 hours at a time• Requested accommodation72
  73. 73. CNR and Denise SeelyHeld:• CN discriminated against Seely on the groundof family status and failed to provide reasonableaccommodation• Compensation for loss of wages and benefits,$15,000 for pain and suffering and $20,000 forreckless conduct by CN73
  74. 74. Eldercare: Devaney v. ZRV Holdings Ltd.Facts:• Architect employed with company from 1982 totermination of employment in 2009• Substantial care responsibilities for ailingmother• Employer would not allow flexible workschedule74
  75. 75. Eldercare: Devaney v. ZRV Holdings Ltd.Factors against employer:• Attendance policy unreasonable/too strict• No performance issues• Failure to engage in dialogue with employee75
  76. 76. Eldercare: Devaney v. ZRV Holdings Ltd.Factors for employee:• Mother on waiting list for care home, care notavailable on 24 hour basis• Required income for her care• Available by phone and email• Hired by client on project because of good job76
  77. 77. Eldercare: Devaney v. ZRV Holdings Ltd.Held:• companys strict attendance policy requiring Devaney towork out of the companys office had an adverse impacton him as a result of his family responsibilities. By failingto engage in a dialogue with Devaney about his needs,the employer contravened the Code.• adversely impacted on the basis of arequirement imposed by his or her status as acaregiver. (If an adverse impact is deemed to relatemerely to an employees preference or choice, no primafacie case will be established)• Awarded $15,000 in general damages77
  78. 78. Accommodation ProcessEmployee obligations in accommodationprocess1. Make reasonable effort to find outside resources2. Advise employer of need for accommodation3. Provide employer with sufficient information4. Provide suggestions for accommodation5. Allow employer reasonable time78
  79. 79. Accommodation ProcessEmployee obligations in accommodationprocess6. Co-operate with employer7. Facilitate implementation of accommodation8. Advise employer if needs change9. Accept reasonable accommodation79
  80. 80. Accommodation ProcessEmployer obligations in accommodationprocess:1. Determine if employee requires accommodation2. Consider all possible accommodations3. Discuss options with employee4. Respond within reasonable time5. Keep written record6. Maintain confidentiality
  81. 81. Accommodation ProcessEmployer obligations in accommodationprocess:7. Request information8. Consider employee’s accommodation suggestions9. Follow-up with employee10. Modify accommodation if required11. Explain to employee why accommodation impossible81
  82. 82. Accommodation PolicyContents 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 ofaccommodation plan, timelines, goals, accountability)• Undue Hardship (basis of assessment, recourse,implementation)82
  83. 83. Recommendations• Be proactive with general planning andpreparation• Accommodation policy• Training for managers and supervisors• Employee education• Acknowledge and accept that you have apositive duty to accommodate an employee tothe point of undue hardship• Be proactive and sensitive when dealing withspecific problems83
  84. 84. Recommendations• Engage in dialogue with employee re needs• Assess on an individual basis• Be wary of inflexible work hours and rigidattendance management policies• Document the process• Apply policies and procedures consistently• Gather evidence of undue hardship• Policies must be reasonable84
  85. 85. 85Thank YouName P.A. Neena GuptaTel: 519-575-7501Email: neena.gupta@gowlings.comMontréal  Ottawa  Toronto  Hamilton  Waterloo Region  Calgary  Vancouver  Beijing Moscow  London
  86. 86. 86Accommodating DisabilitiesPresented By:Jordan M. Smith
  87. 87. Overview1. Refresher – Basic Principles2. Case Discussion – Hamilton-Wentworth District School Board87
  88. 88. 88Key Principles• “The onus is on the respondent to establish that it could notaccommodate the applicant without undue hardship.”• “The evidence establishes that the respondent met theprocedural component of the duty to accommodate in that therespondent was aware of and actively pursued its duty toconsider alternate work. The respondent diligently undertook itsresponsibility to investigate accommodation and proposed joboptions to address the applicants functional limitations.”• Process is important – even when you have a reasonable guess whatthe likely outcome will be
  89. 89. Key Principles• “The substantive component of the duty to accommodaterequires me to assess the sufficiency of the respondentsaccommodation efforts and, if accommodation was notachieved, whether there were reasonable and validreasons why those efforts failed to yield appropriateaccommodation.”• “accommodation is not a question of mere efficiency”• “it will always seem demonstrably cheaper to maintain thestatus quo and not eliminate a discriminatory barrier”• The Tribunal will expect some measure of economic painand inconvenience before it will support a finding of unduehardship.
  90. 90. Right to Information• In order to offer suitable accommodation, you need toknow what the employee’s restrictions are.“the duty to accommodate places obligations on the employeeseeking accommodation as well. An employee who seeksworkplace accommodation has a duty to co-operate in theaccommodation process by providing her employer with areasonable amount of information about her physical and/ormental work restrictions and disability-related needs so that theemployer can assess whether and how the employee’s needsmay be accommodated without undue hardship.”
  91. 91. Employee Obligations• “To facilitate the search for an accommodation, thecomplainant must do his or her part as well.Concomitant with a search for reasonableaccommodation is a duty to facilitate the search forsuch an accommodation. Thus in determiningwhether the duty of accommodation has been fulfilledthe conduct of the complainant must be considered.”• When you get to the Human Rights Tribunal, whichparty is going to come across to the adjudicator as themore reasonable one?
  92. 92. Hamilton-Wentworth District School Board• 6 year employee of the School Board• Supervisor, Regulated Substances, Asbestos• Developed an anxiety disorder in the fall of 2001. “Her disabilitywas a reaction to the highly stressful nature of her job, and herfear that, in making a mistake about asbestos removal, she couldbe held personally liable for a breach of the OHSA.”• Went on LTD until April, 2004, at which time she was assessedas capable of gainful employment, but not able to return to herprevious position. Her Doctor’s note stated:- “Ms. Fair would not be able to function in a job which entailed responsibilityfor health and safety issues, nor any duties which would leave her at risk forpersonal liability. Outside these limitations and restrictions, Ms. Fair isotherwise capable of gainful employment.”
  93. 93. Hamilton-Wentworth District School Board• [30] When the respondent eventually requested that the applicantsubmit to an examination from the respondent’s own expert, theDisability Management Co-ordinator attempted to influence the expert’sreport in the following ways.• [31] She sent a letter to the respondent’s expert, requesting that he“identify REAL (emphasis in original) limitations/restrictions, fitness toreturn to work, separate from preference.” She advised that OTIP hadapproved the applicant’s pre-absence position, which was not accurate.She advised that the applicant had a “skewed sense of entitlement” andcharacterized the applicant as “extremely manipulative” and an“extremist.”• [32] In my view, this letter demonstrates that the respondent was notattempting to obtain objective clarification of the applicant’s limitationsbut was intended to encourage the expert to conclude that the applicantwas not worthy of accommodation.
  94. 94. Hamilton-Wentworth District School Board• Tribunal went on to find that the School Board hadnumerous positions available which it could (readshould) have offered the Applicant.• In other words, the School Board was found to havefailed to meet both its procedural and substantiveobligations.• Didn’t follow the correct process, and the solutions itcame up with were insufficient.94
  95. 95. REMEDY• Ordered Reinstated to “suitable alternative employment”, one“which is at or equivalent to the PASS level 6” which she waspreviously at (in other words – at the same pay level)• Back pay from June 26, 2003 until the date of reinstatement(March 2013)• Reinstatement of years of service with OMERS and payment ofpension contributions/costs• Retroactive CPP payment• Payment of out of pocket medical and dental• Compensation for “tax consequences”• $30,000 for “injury to her dignity, feelings and self-respect”95
  96. 96. 96Thank YouName Jordan M. SmithTel: 519-575-7519Email: jordan.smith@gowlings.comMontréal  Ottawa  Toronto  Hamilton  Waterloo Region  Calgary  Vancouver  Beijing Moscow  London
  97. 97. 97Dealing With the Bullyin the WorkplacePresented By:John Illingworth and Phil Wolfenden
  98. 98. 98Workplace Bullying DefinedWorkplace bullying covers a broad spectrum of problematic behaviours.Workplace bullying can include:• harassment or poisoned work environment• physical violence, sexual violence and threats of violence• ReprisalsViolence vs. HarassmentThe Occupational Health and Safety Act defines workplace harassment as engaging in a courseof vexatious comment or conduct against a worker, in a workplace – behaviour that is known orought reasonably to be known to be unwelcome• Typically offensive, embarrassing, humiliating or demeaning• May intimidate, isolate or even discriminate against the targeted individual
  99. 99. 99What Isn’t Bullying?A supervisors conduct in discharge of his or her normalsupervisory/managerial duties is not normally bullying, even where ithas "unpleasant consequences" for the employee.For example, a fair but blunt and unflattering assessment of anemployee’s performance and reasonable demands that he or shefulfill the work expectations or risk discipline is NOT bullying.Unless…the message, the means of delivery, or the time and placeare ill-suited to the individuals and the circumstances.
  100. 100. 100What Isn’t Bullying?Most commonly, people will misconstrue normal work activity andmanagement action as “bullying” where:• they are not accustomed to direction, or to directcommunications• there has been no preparation for the communication• they are particularly sensitive, feel isolated or insecure• they feel vulnerable at work, due to recurring work issues• the manner (or time and place) in which the message isdelivered is unnecessarily abrupt, dismissive, or inconsiderate ofthe person’s feelings
  101. 101. 101The Important Recent CasesBoucher v Walmart – $1.46 Million in Damages Awarded for Walmart’s Failure toPrevent and Address Workplace BullyingShakur v. Mitchell Plastics – slapping another employee did not amount to just causefor dismissal.Re City of Kingston – Precedent setting decision in which Arbitrator Newman sets outthe criteria to evaluate on a dismissal arising from violent threats.Re Quality Meat Packers Limited – 2013 case upholding discharge for violence.Re Ivestia Financial Services Inc. – OLRB does not have jurisdiction to addressreprisal complaints under the OHSA for harassment in the workplace. Board adoptsdecision in Re Ludlow Technical Products.
  102. 102. 102Where are we going?• Is there a disconnect between arbitrators and the Courts?• How do employers balance their obligations under the OHSAand exposure to quasi-criminal liability with the reluctance ofdecision-makers to uphold termination for cause?• Does the OHSA do enough to address workplace harassment?
  103. 103. 103Thank YouName: John Illingworth Philip J. WolfendenTel: 519-575-7507 Tel: 416-369-7355Email: john.illingworth@gowlings.com Email: phil.wolfenden@gowlings.comMontréal  Ottawa  Toronto  Hamilton  Waterloo Region  Calgary  Vancouver  Beijing Moscow  London
  104. 104. 104Cross-Border Employment, Labourand Immigration IssuesPresented By:Edward Trevvett (Harris Beach PLLC),Chris Andree, Bill MacGregor andLesley Love
  105. 105. 105• Discrimination Laws• Termination Issues• Changes to Terms of Employment• Restrictive Covenants• Drug and Alcohol Testing• Health Care Provision• Immigration Issues – Employer ObligationsAgenda – Discuss US Legal Differences
  106. 106. Discrimination Laws• Generally, US and Canadian workers enjoy similar protections fromemployment discrimination, but there a few key differences that maycatch employers accustomed to one set of employment laws bysurprise.• The grounds for protection are generally more expansive in Canadathan in the US (e.g., Canada provides access to benefits for same sexpartners and recognizes the right to marry between partners of thesame sex). In the US, however, some states have unusual protections(e.g., NY law protects victims of domestic violence).• In the US discrimination law is enforced by both an administrativeagency and state and federal courts.• Canadian damages are modest by US standards. Canadian law focusesmore on providing the position and wages that were denied by anemployers discriminatory practices, rather than awarding large punitivesettlements which is normal in the US.106
  107. 107. Changes to Terms of Employment• In the US, absent an existing written agreement orstatutory rights (e.g., minimum wages, overtime pay),employment is generally at will.• Terms of employment are subject to modificationwithout new/separate consideration and without priornotice.• Continued employment is valid consideration toimpose changes in the US.107
  108. 108. Termination From Employment• In the US, there is generally no statutory notice of termination orpay in lieu of notice.• In the US employment is generally "at will" and notice oftermination by an employer is required only by contract orcompany policy.• Severance plans and policies are quite common in the US.• Usually, severance plans require that the severed employeeexecute a release of claims as a prerequisite to receivingseverance payments.108
  109. 109. Restrictive Covenants• Like Canadian courts, in the US, courts will enforcenon-solicitation covenants that are reasonable (giventhe business interest to be protected) in time andgeographic scope.• In many states non-competition covenants areenforceable.• This is a state-specific issue in the US.109
  110. 110. Drug and Alcohol Testing• Active alcoholism and drug addiction are notrecognized as disabilities in the US and do not requireany accommodation.• Recovery, however, is protected.• Workplace drug and alcohol testing are very popularin the US and testing is regularly used in relation toreasonable suspicion and workplace injuries.• Pre-employment drug and alcohol testing is also verycommon in the US.110
  111. 111. New Employer Obligation to ProvideHealth Care in the US• March 23, 2010: The Patient Protection andAffordable Care Act, “PPACA,” morecommonly referred to as the Affordable CareAct, “ACA,” was passed.• Majority of law takes effect January 1, 2014;including significant employer penalties fornon-compliance.• On December 28, 2012, the IRS released itsmuch-anticipated proposed regulationsgoverning the PPACA.111
  112. 112. Employer Requirements – Health Care(The Pay of Play Mandate)• Large employers (50 or 100 employees depending on state) will berequired to offer their full-time employees (and their dependents)"minimal essential" health benefit coverage that provides a minimumvalue and is affordable to the employee or pay a penalty if any full-time employee receives a federal subsidy to purchase insurancethrough a health exchange.• Penalties flow when a subsidy is received and the employer eitherdoes not offer or does not properly offer coverage or the coverage isoffered but the government standards of minimum value andaffordability are not met.• A new complex measurement and stability period for benefit provisionwill apply.112
  113. 113. 2014 Play-or-Pay Employer Penalties• 4980H(a) Penalty: “Large employers” will be required to offer “minimumessential coverage” to 95% of their full-time employees and theirdependents or face a penalty of $2,000 for each full-time employee inexcess of 30 employees per yearNumber of full-time employees for the year – 30 x $2,000 = penalty• 4980H(b) Penalty: “Large employers” that offer “minimum essentialcoverage” to their full-time employees and their dependents may still facea penalty if the coverage was not “affordable” or failed to meet a“minimum value” threshold. Penalty is equal to the lesser of: (a) monthlypenalty of 1/12 of $3,000 multiplied by the number of full-time employeeswho receive government subsidized coverage through the exchange, and(b) the 4980H(a) penalty.• Both penalties are triggered by a full-time employee receiving governmentsubsidized coverage through the exchange113
  114. 114. Immigration Issues/Employer Obligationsin Termination Cases• Do employers need to advise the government of a termination?• To effectuate a bona fide termination of an H-1B employee, the employer isobligated to: (1) give clear notice of termination, (2) offer return transportationto the employee’s home country (but not required to pay for relatives ormoving possessions), (3) write to USCIS advising them that the worker is nolonger employer by petitioner and request withdrawal of the H-1B petition.• Unless other workers are based on the same underlying LCA, employer canalso withdraw the LCA.• No obligation to report terminated L-1 employees, O-1 employees, or TNemployees .• Foreign nationals in F-1 student status or J-1 exchange visitor status (withwork authorization) are registered in the SEVIS database, and their respectivesponsors are required to update the SEVIS system with details about theiremployment status, including termination.114
  115. 115. Immigration Issues/Employer Obligationsin Termination Cases• Does the employer need to pay for theforeign employee to relocate back home?• Employer is obligated to tender returntransportation cost to terminated H-1Bworker. This rule does not apply if theworker quits or if the H-1B status has run itsfull course.115
  116. 116. Immigration Issues/Employer Obligationsin Termination Cases• What about effect on permanent resident applications thatare pending?• Termination of H-1B employment has no legal effect onpending PR applications. However, since the PR applicationis likely based upon an offer of employment from thecompany which terminated the H-1B worker, it is likely thatthe green card process with that sponsoring company willgrind to a halt.• If the worker has obtained both an approved laborcertification application and an I-140 PR petition, they canpreserve the priority date, marking their place in line in theirparticular green card category (advanced degree orbachelor’s degree queues known as EB-2 and EB-3).116
  117. 117. 117Cross Border Sales and Entry of Technicians• Can sales personnel enter as business visitors?• Issues with cross border territories• After-sales support: Need to consider this for salesinto the U.S., or for sales/leasing ofequipment/machinery/software by U.S. businesses toCanadian purchasers• Contractual language must support entry of after-salesservice personnel (otherwise, need a work permit)
  118. 118. 118Cross Border Sales and Entry of Technicians• Specific language in sales agreement is needed tosupport:• Entry of personnel to install, commission or providetraining relating to equipment or machinery orsoftware• To allow entry for warranty period work (andbeyond)• To allow third parties to provide the after-salesservice (instead of only the vendor’s personnel)
  119. 119. 119Moving Personnel Across the U.S. / Canada Border• Business visitor v. Work Permit activities• Need to assess purpose of entry• For work permits, look first to NAFTA Professional (TN) Category• Second option: intra-company transferee (L-I) category• Intra-company transferee work permit option allow for the transfer ofmanagerial or specialized personnel• You can maximize entry and immigration options depending on theownership structure between Canadian and U.S. entities• Special rules for start-ups
  120. 120. Moving Personnel Across the U.S. / Canada Border• Choice of Port of Entry matters• Criminality and admissibility issues• Overcoming criminality• Non-citizens crossing the border• Permanent resident or work permit holder employees or service providers• Entry visa requirements• Processing options for work permits120
  121. 121. 121Recent Canadian Immigration Developments• TFWP and recent scrutiny• Tightening of Labour Market Opinion rules• A-LMO suspended• Outsourcing questionnaire• Increased compliance requirements and penalties• Age of children / dependents to change• Affect on recruiting and on current Foreign Workers• Revised Permanent Resident categories• CEC and skilled worker changes
  122. 122. 122Thank YouName: Edward A. Trevvett Name: Christopher M. AndreeTel: 585-419-8643 Tel: 519-575-7505Email: etrevvett@harrisbeach.com Email: chris.andree@gowlings.comName William R. MacGregor Name: Lesley A. LoveTel: 519-575-7528 Tel: 519-569-4562Email: bill.macgregor@gowlings.com Email: lesley.love@gowlings.comMontréal  Ottawa  Toronto  Hamilton  Waterloo Region  Calgary  Vancouver  Beijing Moscow  London
  123. 123. 123Top Eleven Employment LawDevelopmentsPresented By:R. Ross Wells, Mark Josselyn andP.A. Neena Gupta
  124. 124. 124A rose by any other name would smell assweet …..• Written contracts between companies operating foster and grouphomes for children with behavioural and developmentaldisorders• Both parties acknowledged that:• Individual an independent contractor and not an employee• Individual responsible for CPP remittances• Individual not entitled to any benefits• Individual able to conduct any other business or activity forprofit
  125. 125. 125A rose by any other name would smell assweet …..• Federal Court of Appeal looked at reality of work relationship:• Level of control exercised by the employer over the worker’sactivities;• Whether the worker provides his or her own equipment and hires hisor her own helpers;• Degree of financial risk assumed by the worker;• Degree of responsibility for investment and management assumedby the worker; and• The worker’s opportunity for profit in the performance of his or hertask.
  126. 126. 1261392644 Ontario Inc. (Connor Homes) v.Canada (National Revenue) (Fed. C.A.)Importance of Decision• Paperwork and intent of parties not determinative• The situation must reflect independence• Employer may be liable for unpaid EI premiums• Status issues very controversial in US and similar factors may applyhere in Canada
  127. 127. Employee has to mitigate• Employee worked for 33 years with Employer and itspredecessor• Employer laid him off under mistaken belief regardingrights under ESA, 2000• Recalled Employee upon being advised of error• Employee declined to come back to work127
  128. 128. Employee has to mitigate• New management had implemented a new program --Steps to Success with “missionary-like zeal”• Employee clearly uncomfortable and disagreed withcertain aspects of marketing program• Court found that Employee ought to have taken theopportunity to mitigate, despite change in location• Employee’s erroneous layoff did not justify failure tomitigate with Employer128
  129. 129. Chevalier v. Active Tire2012 ONSC 4309• Employee has obligation to mitigate with Employer,even after layoff• Clear that employers do not have right to layoff justbecause ESA provides for layoff• Layoff has to be in contractual document or commonindustry practice• Nonetheless, even after error, employer entitled toinvite employee to come back if genuine error and notin bad faith129
  130. 130. 130Emails that go astray and contain legaladvice• A non-performing employee accidentally cc’d on an e-mail between thecompany’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 andprovided copy to her lawyer• The employee took position that she was constructively dismissed
  131. 131. 131Emails that go astray and contain legaladviceDecision• E-mail was privileged solicitor-client communication and the inadvertentdisclosure did not waive privilege;• Still unfair to the employee to preserve privilege• Without email, the employee would be at a significant disadvantage inestablishing the context for the action.• Therefore, the solicitor-client privilege was waived.
  132. 132. 132Fernandes v. Marketforce Communications(Ont. S.C.J.)Importance of Decision• Including the wrong person on an e-mail is an understandable mistakethat happens to everyone.• This case is a useful reminder of the potential consequences of such amistake.• The case is just an interim decision: stay tuned for more
  133. 133. 133Laptops, Privacy, child pornographyR. v. Cole• School computer technician found possession of child pornography onschool laptop of teacher• Sexually explicit images of an underage student.• Laptop confiscated by school board officials who copied the temporaryinternet files onto another disk and gave the disk to police• Police reviewed the disk without a warrant.• School policy indicated supervisors had full access to computer• School board an arm of government – therefore, heightened Charterprotection
  134. 134. 134Laptops, Privacy, child pornographyR. v. Cole, SCC 2012• Court ruled: police should have obtained warrant before viewing• Private-sector employer would not be subject to Charter• Critical that there be clear policies regarding employer’s right to accessand review computers• Data always owned by employer• Employees should understand no expectation of privacy in company-issued computer and other electronic (e.g. smart phone) equipment
  135. 135. 135Termination language strictly construed• Employer terminated without cause• Employee’s contract states “he would receive six months’ notice or payin lieu upon termination.”• Employer had drafted contract• Employee finds work within two weeks• The Employer paid the three weeks statutory requirement and refusedto pay the balance
  136. 136. 136• Employer argues unfair to allow employee to receive a windfall profit• Purpose of notice to permit employee to find another job and obligationshould cease at that time• Court of Appeal found the damages are liquidated and therefore are notsubject to mitigation.• Justice Winkler stated that “there is nothing unfair about requiringemployers to be explicit if they intent to require an employee to mitigatewhat would otherwise be fixed or liquidated damages”.Termination language strictly construed
  137. 137. Stevens v. Sifton Properties13(b) The Corporation may terminateyour employment without cause at anytime by providing you with notice orpayment in lieu of notice, and/orseverance pay, in accordance with theEmployment Standards Act of Ontario137
  138. 138. Stevens v. Sifton Properties13 (c) You agree to accept the notice orpayment in lieu of notice and/or severancepay referenced in paragraph 13(b) herein,in satisfaction of all claims and demandsagainst the Corporation which may ariseout of statute or common law with respectto the termination of your employment withthe Corporation.138
  139. 139. 139• Employers and Human Resources professionals should remember thata duty to mitigate is not implied in an employment contract.• The duty to mitigate must be explicitly and clearly set out in theemployment agreement.• The parties are expected to clearly set out their intentions in thelanguage of the contract in order to provide certainty and closure ontermination.• Ambiguity resolved against employerBowes v. Goss Power Products Ltd.,2012 ONCA 425
  140. 140. Restrictive covenants even harder to enforce• Employee received over $5 million when he sold hisinterest in company• Employee agreed to work for purchaser and receivedshares in new entity• Employee signed a non-competition clause that ran24 months from the date he disposed of his shares innew company140
  141. 141. Restrictive covenants even harder to enforce• Court recognized that non-competes in sale contexttreated differently than pure employment• Clause needed to be reasonable in scope, geographicambit (all of Canada) and time• Court of Appeal ruled that clause unreasonablebecause of the way the time limit was defined141
  142. 142. Martin v. ConCreate USL LP2013 ONCA 1840• Court did not like uncertainty of the time limit• Sale of shares required consent of lendersand company• Not clear if Martin could ever get rid of shares142
  143. 143. Martin v. ConCreate USL LP2013 ONCA 1840• Martin permitted to operate competitivebusiness within months of receiving $5 million• Martin’s new company obtained over $32million in business• Purchaser company went bankrupt• Case will not be appealed143
  144. 144. Overtime class actions given green lightEmployee alleges on behalf of 5,000others:• overtime policy imposes more restrictiveconditions than the minimum standardsof the Code;• record-keeping systems not accurate;• Poor managerial practices for monitoringClaims $350 million in damages!144
  145. 145. Fulawka v. Bank of Nova Scotia• Banks argued shouldn’t be class action• Factual situations vary from branch tobranch; manager to manager• Court of Appeal found:• Sufficient common issues in terms ofliability to proceed as a class action• SCC refused to hear appeal145
  146. 146. 146Star Choice Television Network Inc. v. TatuleaImportance of Decision• Patience is a virtue• Employer carefully documented its proposals for accommodation andrequests to meet• Employer warned worker that failure to meet would be cause fortermination• Employee failed in its obligations and therefore, termination justified
  147. 147. 147When does the obligation to reinstate end?• Supervisor, Regulated Substances, Asbestos developed generalizedanxiety 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 remedydecision in early 2013
  148. 148. 148When does the obligation to reinstate end?• Pay loss of wages, CPP and pension loss from June 26, 2003 untildate of reinstatement (over 8 ½ years)• Reinstatement to suitable alternative employment includingadjusting her length of seniority (and provide up to 6 months of jobtraining)• Could not involve personal liability for health and safety similar tothe potential liability caused by working in asbestos.
  149. 149. 149When 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;• Interests (pre and post judgment)
  150. 150. 150Fair v. Hamilton-Wentworth School District,2013 HRTO 440• Until Fair, very few cases where HRTO ordered reinstatement overobjection 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
  151. 151. 151How long can you be liable for disabilitybenefits?• 55-year old employee with 24 years of service is dismissed withoutcause• Given ESA minimum notice and benefits (approx. 8 weeks + 24 weeks)• Employee mitigates – but lower pay and no disability coverage.• Employee became disabled 15 months after termination.• Employee sues original employer – would have had disability benefits athis original employer
  152. 152. 152How long can you be liable for disabilitybenefits?• 22 months of notice at common law• 22 months of benefits (including disability benefits)• Therefore,• Gets difference between wages before and wages at new job• Gets disability benefits• Gets $90,000 in costs
  153. 153. 153Brito v. Canac Kitchens, 2012 ONCA 61• Disability benefits during common law period a veryreal risk• Deal with it in employment templates, i.e. upontermination, STD and LTD will be extended only forESA notice period• Settle cases and ensure that claims to disabilitybenefits explicitly released
  154. 154. Workplace Bullying costs Employer• 42-year old retail employee with excellent ten-year service record• Earned $52,000 per year• Refused to backdate missed bakery logswhile she was away for training because shethought improper154
  155. 155. Workplace Bullying costs Employer• Store manager accused of deliberately trying tohumiliate employee• Forcing her to count skids in front of co-workers toprove she could count• Being called a “****” idiot or “are you an **** idiot?”• Punched in the arm by assistant manager• Alleges six months of sexual and mental harassmentduring May to December 2009155
  156. 156. 156Workplace Bullying Costs Employer• Employee did not look for other work and unemployed4 years later• Employer paid employee exactly what was requiredunder valid contract – 2 weeks per year of servicewhen she left• 2 ½ week trial on the tort claims
  157. 157. 157Boucher v. Wal-Mart Canada Ltd.October 2012• Jury took 2 hours to deliberate• Ruled constructive dismissal• Awarded $200,000 for mental distress• Awarded $1,000,000 for punitive damages• Did not find sexual harassment• Being appealed on the basis “perverse”, “shockinglyunreasonable” and “out of whack with previousawards”
  158. 158. 158Thank YouName: R. Ross Wells Name: P.A. Neena GuptaTel: 519-575-7513 Tel: 519-575-7501Email: ross.wells@gowlings.com Email: neena.gupta@gowlings.comName Mark JosselynTel: 613-786-0148Email: mark.josselyn@gowlings.comMontréal  Ottawa  Toronto  Hamilton  Waterloo Region  Calgary  Vancouver  Beijing Moscow  London
  159. 159. 159Questions?Thank You For Joining Us!Montréal  Ottawa  Toronto  Hamilton  Waterloo Region  Calgary  Vancouver  Beijing Moscow  London
  160. 160. 50 Queen Street North, Suite 1020PO Box 2248Kitchener, OntarioN2H 6M2519-576-6910www.gowlings.com160THANK YOU FOR JOINING US