Employment and Labour Law Seminar - May 6, 2015

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May 6, 2015Employment and Labour Law Seminar

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Two Steps Forward, One Step Back:
Disability Accommodation
In the Workplace
Presented By:
Melanie Polowin

Our Story Begins ….
• Talk2Me Inc. is a small translation services company with 30 employees
in its Vancouver office. John was hired in 2011 into its 5-person French
translation group. He was a decent, reasonably cheerful guy (though not
a star) until the summer of 2014.
• Then he started missing work for migraines – on average, almost 1.5
days a week in June, July and August. Even when at work, he was not
functioning as well – he was irritable, less productive, and “negative”. In
early September 2014, John went on STD for 4 weeks.
• Since returning, the migraines persist – he is missing fewer days but still
a fair amount, and his productivity and “downer” attitude remain a
problem. John’s doctor is still trying to diagnose the problem.
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STOP!
D. Don’t play doctor, do play defence
R. Request up to date medical information/clarification
O. Options – canvas, identify, consider, assess, prioritize, test
P. Participation – this is a co-operative, collaborative TEAM SPORT!
and
R. Rinse and repeat
O. Observe and adjust
L. Log and document at every step
Reflex and rigidity are the main enemies of accommodation!
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Accommodation and disability management:
• is an active process….not a static event or series of events
• is a marathon…not a sprint
• is a shared responsibility amongst management, co-workers and the
individual
• requires individualized assessment
• requires periodic review and reassessment
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• Be proactive with general planning and preparation
• bona fide reasonable job requirements, rules and policies
• effective accommodation policies/guidelines/protocols
• on-boarding and ongoing training for managers and supervisors
• on-boarding and ongoing employee education
• Acknowledge and accept that there is a positive duty to accommodate
• Never dismiss requests out of hand!
• be sensitive and flexible when dealing with specific problems
• engage in ongoing collaborative dialogue with employee re needs
• assess based on actual merits/circumstances of individual’s situation
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• Recently, John met with Sunny, the Human Resources Manager. He
asked for the next several weeks to try modified work arrangements
suggested by his doctor – a flexible reduced workweek and some
changes to his physical surroundings (special lighting; relocating to a
quieter work station).
• Later the same day, John’s supervisor, Marla:
• told Sunny she was fed up with John’s unreliability and reduced productivity
• flatly refused to consider implementing any of John’s requested
modifications, saying “John is fine, he is simply milking the system”
• said her group couldn’t function properly if Talk2Me grants John’s requests –
as it is, they are frustrated because their burden increases every time John is
away.
• What Marla really wanted to know was: how soon can Talk2Me
terminate John?
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STOP!
Rushing to the finish line is a fatal error!
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Recap: jurisdiction – which laws apply?
Which laws apply?
• generally (everywhere except Quebec), the employee/worker
relationship is governed by the common law of the province where the
employee/worker primarily works (in Quebec, the Civil Code applies)
• for provincially regulated employers, the human rights and other relevant
legislation of the province where the employee/worker primarily works
will apply
• for federally regulated employers, the Canadian Human Rights Act and
other relevant federal legislation will apply, but the province where the
employee/worker primarily works will be a factor when dealing with
accommodation in the context of workers compensation issues
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Recap: what does “disability” mean?
• Inconsistent definitions/scope of “disability” or “handicap” across
Canada
• Very broad concept that covers injuries, illnesses, diseases,
impairments and conditions (permanent or temporary) that are more
than transient:
• past or present or perceived/presumed (even if not actual)
• regardless of cause/source, even if self-inflicted (drugs, obesity) or
unrelated to workplace
• visible or not, physical, mental, emotional and learning
• includes addictions, environmental sensitivities and severe allergies
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Recap: disability accommodation triggers
Obligations can arise under:
• general statutes ( e.g., human rights, health and safety, workers
compensation)
• dedicated legislation (e.g. Accessibility for Ontarians with Disabilities
Act, 2005)
Common disability accommodation triggers include:
• self-evident (wheelchair) or self-disclosed disabilities
• observable indicators of workplace problems (performance or
attendance issues, visible signs of distress or impairment)
• all medical notes/requests for leave and/or accommodation
Employers cannot be willfully blind.
Objective signs can trigger a duty to inquire.
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Accommodation: threshold test
Does the situation meet threshold requirements for accommodation?
• employee/candidate has a “disability”
• reasonable grounds to believe that he/she suffers or could suffer some
adverse treatment or effect as a result of employer’s requirements or
(in)actions
• the disability does or will play any role in the adverse treatment or effect
• employer knows (or ought to know) accommodation is requested or
required
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Accommodation: what next?
The onus then switches to the employer to make a sincere and provable
effort to consider accommodation options and to (as applicable):
• prove any bona fide occupational requirements (BFOR)
• provide reasonable accommodation options if feasible
• make a meaningful effort to implement its preferred option
• demonstrate flexibility re other feasible options if need be
• otherwise: prove that the disability cannot be accommodated without
undue hardship
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Dual obligations
Accommodation has a procedural aspect and a substantive aspect and the
employer must demonstrate compliance with both aspects:
• procedurally – obtain necessary medical information and properly
investigate any available options
• substantively – take reasonable steps to implement necessary
modifications, and to try different alternatives, up to the point of undue
hardship
If you are provincially regulated, mere failure to follow proper
accommodation process will= breach, even if undue hardship exists (note
an emerging federal vs. provincial schism on this point)
Reflex and rigidity are the main enemies of accommodation!
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The key question to be answered is this: ultimately, can this employee,
with reasonable accommodation (and without causing the employer
undue hardship), still perform (or resume performing) the essential
elements of his/her position?
However, you cannot answer the key question unless/until you know:
• what are the essential elements of the position?
• what are the limitations imposed by the disability (nature, scope,
duration, frequency) …and are those changing over time?
• what accommodations are medically required (vs. recommended vs.
desired) …and are those changing over time?
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Key question

Requesting information
What information can and should Talk2Me reasonably request?
• prognosis (yes) vs. diagnosis (generally, no)
• nature and effect on job performance and attendance
• likely duration/recurrence
• restrictions/limitations/accommodations (scope, necessity, duration)
• treatment/medications if they may affect job performance and
attendance
• other information if relevant, reasonable and truly necessary to enable
properly informed assessment of options
• specialist/outside expert
• independent medicals
• requires balancing privacy vs. relevance and utility of information
• requires dialogue/collaboration/controlled sharing of information
“Help us understand; help us help you.”
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• Sunny did some arm-twisting, and persuaded Marla to let John try all of
the modified workplace arrangements for 8 weeks.
• Sunny gave John a letter to give his doctor, outlining the truly essential
tasks/requirements of his job, and asked John to provide additional
information from his doctor within the next month.
• Marla and her team were still not happy – John noticed increasing
hostility.
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STOP!
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• 3 weeks into the new arrangement, John brought Sunny his doctor’s
letter, advising tests had revealed a brain tumour.
• John would need an operation, at least 3 months of rehabilitative
therapy, and possibly radiation or chemo.
• John would need to apply for disability leave starting next month, when
his surgery was scheduled.
• With John’s permission, Sunny shared this news with the CEO and
Marla.
• While Marla now grudgingly conceded John was not faking all along,
she asked to fill John’s position as soon as he started his leave.
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Accommodating the absent employee
• Accommodation is a marathon…not a sprint
• Providing disability benefits is not a substitute for accommodation and
does not, in itself, satisfy or excuse the duty to accommodate
• Keep communication lines open during the absence (“you are still on
the team”) (but be sensitive to optics)
• Request updates at reasonable intervals (but be sensitive to timing)
• Be cautious and sensitive to the risk when backfilling the absent
employee’s position (interim solutions help control risks)
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• John had his surgery, started STD, but his rehabilitation was much
slower than initially expected.
• His doctors confirmed John had residual cognitive impairment – he
would require speech and other rehabilitative therapy before he could
be expected to return to gainful employment.
• After 6 months on STD leave, John was approved for LTD benefits for
at least 3 months.
• Marla had a temporary employee filling in for John until this point – she
now wants to hire that temp employee (who has outperformed John
from day one) on a permanent basis.
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• After 3 months on LTD, an updated doctor’s report advised that John
would not be able to return to work for at least another 12 months.
• After hearing that, Marla hired the temp permanently – currently no
open position is available in Marla’s translation group.
• By now, John has been absent from work on STD and LTD for just
over 18 months.
• Talk2Me has just learned that John’s LTD benefits are about to be
terminated because....
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(UN) HAPPY (?) ENDING NO. 1
…… he has reached the “change of definition” date under the LTD policy.
• The insurer says John is not disabled from “any occupation”, though
based on medical reports he is permanently disabled from his “own
occupation” – so, John is no longer entitled to continued LTD benefits.
• John can’t afford to stay off work without benefits, so he tells Talk2Me he
wants to come back to work.
• Marla is emphatic that she has no job for John. Furthermore, the
company has been struggling a bit financially lately.
• Talk2Me asks: now what?
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(UN) HAPPY (?) ENDING NO. 2
…… he has recovered sufficiently to return to work (RTW).
• His doctor says John is no longer disabled from his “own occupation”
and can start a work-hardening RTW program next week.
• Marla is emphatic that she has no job for John. Furthermore, the
company has been struggling a bit financially lately.
• Talk2Me asks: now what?
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STOP!
and
R. Rinse and repeat
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• Denial of disability benefits  end of disability
• Re-engaging the active accommodation process
• reinstatement obligations
• evaluating changed circumstances
• confirming fitness for RTW if necessary/reasonable
• Frustration of contract/undue hardship
• any reasonable likelihood of returning to work in reasonably
foreseeable future?
• if so, ultimately, can this employee, with reasonable
accommodation, resume performing the essential elements of
his/her position?
• note an emerging federal vs. provincial schism as to whether
frustration can apply when the disability is work-related
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Cut-off of disability benefits: what does it mean?

Undue hardship
What constitutes undue hardship?
• falls on spectrum: > inconvenient but < practically impossible
• requires a contextual assessment (considers both employer’s and
employee’s circumstances)
• assessment must be individualized, based on actual (not speculative
or assumed) circumstances and evidence
• Ontario Human Rights Code factors to consider:
• cost/outside sources of funding
• health and safety
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(Not) Undue hardship
What is(n’t) considered undue hardship?
• speculative “floodgates” fears
• employee morale (resentful co-workers)
• effect on rights of other employees (burdening others)
• inconvenience/nuisance/annoyance
• some reasonable level of disruption of the workplace and/or collective
agreement
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STOP!
and
R. Rinse and repeat
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Summary: employee’s obligations
Employee obligations in accommodation process:
1. communicate in a timely way
2. generally, advise employer of need for accommodation
3. provide employer with sufficient information
4. consider all reasonable suggestions/alternatives for accommodation
(not just employee’s preference)
5. allow employer reasonable time to test alternatives and adjust
6. co-operate with employer
7. facilitate implementation of accommodation
8. advise employer if/as needs change
9. accept reasonable (not perfect) accommodation
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Summary: employer’s obligations
Employer obligations in accommodation process:
1. determine if employee requires accommodation
2. meaningfully consider possible accommodations, including employee
suggestions
3. discuss options with employee
4. respond within reasonable time
5. maintain confidentiality to the extent feasible
6. request necessary information/updates
7. explain which accommodations are impossible, why, and what
alternatives are offered
8. implement and follow-up
9. modify accommodations and adjust if/as required
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The Final Word
• Right or wrong, fair or not, accommodation is a heavy and mandatory
burden with significant financial and reputational risks
• Make it a priority to implement and enforce strong policies, frequent and
effective training, and meaningful protocols… then follow your policies
and protocols
• Take every request for accommodation seriously and ensure requests
are directed to the right people with the right skills to deal with them
properly
• Your efforts must be sincere and demonstrable
• Be careful, reasonable, flexible, fair... and try to be/stay compassionate
Someday... your turn may come.
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Resources
OHRC Policy on preventing discrimination based on mental health disabilities and
addictions
http://www.ohrc.on.ca/en/policy-preventing-discrimination-based-mental-health-disabilities-
and-addictions
CHRC Accommodation Works!
http://www.chrc-
ccdp.ca/sites/default/files/accommodation_works_application_manual_format.pdf
http://www.chrc-ccdp.gc.ca/fitness2work/index.html
OHRC Policy and guidelines on disability and the duty to accommodate
http://www.ohrc.on.ca/en/policy-and-guidelines-disability-and-duty-accommodate
OHRC E-learning re AODA
http://www.ohrc.on.ca/en/learning/working-together-code-and-aoda
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Thank You
Name: Melanie Polowin
Tel: 613-786-0244
Email: melanie.polowin@gowlings.com
Montréal  Ottawa  Toronto  Hamilton  Waterloo Region  Calgary  Vancouver  Beijing Moscow  London

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Enforceability of Termination Clauses
Presented By:
Katia Diab

WHY USE EMPLOYMENT AGREEMENTS?
• Protect valuable assets
• Confidential information.
• Intellectual property.
• Trade relationships.
• Create certainty (particularly at the time of termination)
• Business decisions vs. legal decisions.
• Provide leverage for negotiations.
• Absent employment agreements with enforceable termination
provisions limiting entitlements upon termination of employment,
employees are entitled to reasonable notice at common law.
• Save money
• Payments to former employees.
• Payments to outside counsel.
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WHY USE EMPLOYMENT AGREEMENTS?
Reasonable Notice at Common Law
Absent employment agreements with enforceable termination
provisions which specifically limit entitlements upon termination of
employment to the minimum standards prescribed by legislation,
employees are entitled to reasonable notice at common law.

DRAFTING ENFORCEABLE TERMINATION PROVISIONS
Termination language must comply with the Employment Standards
Act, 2000 (“ESA”)
S. 5(1) subject to subsection (2), no employer or agent of an employer
and no employee or agent of an employee shall contract out of or
waive an employment standard and any such contracting out or
waiver is void.

To be enforceable, a termination clause must:
1. Provide the employee with no less than his or her entitlement under
minimum applicable standards legislation; and
2. Use clear language to confirm the amount of notice specified is a cap
on the employee’s entitlements. The Supreme Court of Canada has
confirmed that every employee is given a right to reasonable notice at
common law, unless that right is displaced by clear terms to the
contrary.

Wright v. The Young and Rubicam Group of Companies, 2011 ONSC 4720
• Highlights the importance of carefully drafted termination provisions.
• The court set aside the termination clause in the employee’s employment
contract and awarded common law notice, on the basis of 2 grounds:
1. The termination clause did not refer to benefits during the statutory
notice period;
2. In certain circumstances, although not in those present at the time of
the employee’s termination in this case, the termination provision
would have resulted in less termination and severance pay than
required by the ESA.
• Employment agreements must comply with the ESA at all times.

Wright v. The Young and Rubicam Group of Companies, 2011 ONSC 4720
"There is, in my view, no particular difficulty in fashioning a termination clause
that does not violate either the minimum standards imposed by the Employment
Standards Act or the prohibition against waiving statutory minimum requirements
and there is no compelling reason to uphold a termination clause which the
draftsman may reasonably be understood to have known was not enforceable
either at all or under certain circumstances."

Stevens v Sifton Properties Ltd., 2012 ONSC 5508
• Ms. Stevens was employed in the position of head golf professional. The terms
and conditions of her employment were governed by an offer letter which
included the following termination clause:
With respect to termination of employment, the following terms and
conditions will apply:
…
(b) The Corporation 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.
(c) You agree to accept the notice or payment in lieu of notice and/or
severance pay referenced in paragraph 13(b) herein, 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 [Emphasis Added].

Stevens v Sifton Properties Ltd., 2012 ONSC 5508
• The court agreed the clause attempted to contract out of the ESA and relied on
the last statement of the termination clause that the contractual entitlements were
“in satisfaction of all claims and demands arising out of statute or common law”
• Because the termination clause did not expressly address continuation of
benefits during the statutory notice period, the court deemed the entire clause to
be void and unenforceable.
• The issue is not whether the employer acted in compliance with the minimum
requirements pursuant to the ESA, but whether the wording of the termination
clause is in compliance with those minimum requirements.

SOME REPRIEVE FOR EMPLOYERS?
John A. Ford & Associates Inc. v. Keegan, 2014 ONSC 4989
• The contract contained a term entitling the company to terminate the
contract on 30 days' notice.
• At time of termination, company gave 30 days notice in accordance with
the agreement.
• Problem: At the 5 year mark, the provision of 30 days notice would
violate the ESA.

John A. Ford & Associates Inc. v. Keegan, 2014 ONSC 4989
“The employer who drafts an agreement prescribing a fixed notice
period, rather than one that increases with the employee’s years of
service, and who does not negotiate a new employment agreement when
the employee’s years of service entitles him/her to a longer period of
notice, assumes the risk that the clause will become invalid at that point
and that the common law will prevail to determine the period of notice
required. It is only invalid at that point and not invalidated from when the
contract was initially executed.”

Luney v. Day & Ross Inc., 2015 ONSC 1440
• The Plaintiff worked for an interprovincial trucking company subject to the
Canada Labour Code (“Code”).
• Employed for a total of 12 years.
• Employed pursuant to an employment contract with the following
termination provision:

If your employment is terminated for other than ‘just cause’...you will be entitled to two
weeks [sic] notice or pay in lieu of notice and a severance of one week’s regular pay for
each full year of service, less statutory deductions. The payments are not to exceed the
equivalent of 15 weeks [sic] pay.
It is understood and agreed that in the event the aforesaid notice and severance
entitlements are not in conformity with the notice and severance provisions prescribed by
the Canada Labour Code or other similar legislation, the statutory minimum’s [sic] shall
apply and be considered reasonable notice and severance....
The foregoing notice and severance payments will satisfy any and all obligations to you by
Day & Ross Inc. or any affiliated company arising out of or in any way connected with the
termination of your employment, including any obligations arising under the Canada Labour
Code and similar legislation for notice, severance pay or reinstatement.

• The Plaintiff brought a claim seeking a finding that the termination clause
was unenforceable on two grounds:
1. That it was ambiguous and therefore did not rebut the presumption
of reasonable notice at common law; and
2. That it violated the Code as it did not provide for benefits.

• Court held that the language in the termination provision was clear
and did rebut the common law presumption of reasonable notice:
“In this case, the Termination Provision states that the notice and severance
payments provided for “will satisfy any and all obligations owed to you
by……, including any obligations arising under the Canada Labour Code and
similar legislation…” As the motion judge found, this language is clear and
cannot be read as confined to legislative entitlements.”

• The court also rejected the Plaintiff’s argument that the failure to
mention benefits was fatal:
“The Plaintiff’s argument that the Termination Provision violates the Code
because it does not provide for the inclusion of benefits ignores the express
wording of the Termination Provision. It provides that if “the severance
entitlements are not in conformity with the…severance provisions prescribed
by the Canada Labour Code or other similar legislation, the statutory
minimums shall apply and be considered reasonable notice and severance”.
Thus, under the Termination Provision, if the Code entitles the Plaintiff to a
monetary value for his benefits, then he is to receive that compensation.”

WHERE DO WE STAND?
• Courts in Ontario do not look favourably upon any attempt or apparent attempt to
deprive an employee of his or her entitlements at law.
• Wright v. Rubicam decision remains relevant, but law developing.
• Termination provisions need to be carefully drafted and regularly reviewed.

RECOMMENDATIONS
• USE Employment Agreements.
• Draft Carefully.
• Termination clauses must comply with the ESA and must be sufficiently clear
to rebut the entitlement to common law notice
• Use saving language.
• If the ESA provides for a greater right or benefit, the employee will receive
the entitlements pursuant to the ESA.
• Ensure intention not to contract out of the ESA is clear.
• Review and update regularly.
• Implement employment agreements throughout the workplace.

EXISTING EMPLOYEES
• How to introduce employment agreements for existing employees?
• Carefully and with consideration.
• Consideration
• Principle: each party to a contract must give and receive something in order to
make a contract binding
• If an employee is already working for an employer at the time of the
employment agreement, there is no “fresh” consideration and the contract is
void.

What is NOT effective consideration?
• An employee must receive something in addition to what he or she was
already entitled to in order for an employment contract to be bindings.
• “Past consideration is no consideration.”
• Continued employment alone is not sufficient consideration.
• The law does not permit employers to present employees with changed
terms of employment, threaten to fire them if they do not agree, and then
rely on the continued employment relationship as the consideration for the
new terms
• While an employer is entitled to say if you don’t agree with these new
terms, your employment will be terminated – the threat of termination must
be accompanied by an appropriate termination package.

What IS effective consideration?
• Examples include:
• Promotion, increase in salary, signing bonus, new bonus plan, incentive
compensation, cheque.
• Make sure the employment agreement clearly references and indicates the
consideration.

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Thank You
Name: Katia Diab
Tel: 519-575-7534
Email: katia.diab@gowlings.com

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Headlines in Labour, WSIB and
Health & Safety
Presented By:
John Illingworth and Rob Salisbury

Ministry of Labour “Blitzes”
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Focus Program Sector/Business Type Date
Precarious Employment Employment Standards Janitorial, Security, Business Services, Fitness
and Recreation Centres, Amusement,
Recreation Industries
May – July 2015
Struck By Hazards Health and Safety Construction May – June 2015
Temporary Foreign Workers Employment Standards Restaurants and other sectors known to
employ temporary foreign workers
May – July 2015
New and Young Worker Health and Safety Industrial May – August 2015
Trenching Hazards Health and Safety Construction July – August 2015
Mobile Equipment Traffic Control
Measures
Health and Safety Mining July – August 2015
Internships Employment Standards Information Technology and other sectors
known to have internships
September –
December 2015
Material Handling Health and Safety Industrial September 14 –
October 23, 2015
Heavy Equipment Operation Health and Safety Construction October –
November 2015
Modular Training Health and Safety Mining October –
November 2015
Safe Operation of Machinery Health and Safety Industrial January 18 –
February 26, 2016
Occupational Disease Health and Safety Mining February -
March 2016

Mandatory Working at Heights Training
• As of April 1, 2015, employers must ensure
that certain workers complete a working at
heights training program before they can work
at heights.
• The training requirement is mandatory for
workers on construction projects who use any
of the following methods of fall protection:
• travel restraint systems
• fall restricting systems
• fall arrest systems
• safety nets
• work belts or safety belts
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Ontario Government Announces Action Plan to
Address Sexual Harassment and Violence
• Currently unclear what the “action plan” will
include and how it will impact employers.
• The government has promised stronger
workplace safety legislation requiring employers
to investigate and address workplace
harassment, including sexual harassment.
• Might include mandatory training for front-line
workers in health care, hospitality, justice and
tourism who may be the first point of contact in
assault or harassment complaints.
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WSIAT Opens Door to Mental Stress Claims
• Decision No. 2157/09, 2014 ONWSIAT 938
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WSIAT Opens Door to Mental Stress Claims
Workplace Safety and Insurance Act
s. 13 (5) A worker is entitled to benefits for mental stress
that is an acute reaction to a sudden and unexpected
traumatic event arising out of and in the course of his
or her employment. However, the worker is not
entitled to benefits for mental stress caused by his or
her employer’s decisions or actions relating to the
worker’s employment, including a decision to change
the work to be performed or the working conditions, to
discipline the worker or to terminate the employment.
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Right of Action Not Taken Away under the WSIA
• Dicks, (Ontario) Workplace Safety and
Insurance Appeals Tribunal v.
Bellissimo, 2013 ONSC 7866
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Fight Occurred in the “Course of Employment”
• Decision No. 2140/14, 2014 ONWSIAT
2760
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Off-Duty Facebook Posts Constitute Just Cause
• United Steelworkers of America, Local
9548 v Tenaris Algoma Tubes Inc, 2014
CanLII 26445
65

Offensive Off-Duty Tweets Not Just Cause
• Toronto Professional Firefighters
Association, Local 3888 v. Grievance of
Lawaun Edwards, F13-142-07, 2014
CanLII 62879 (ON LA)
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Workplace Violence: Union vs. Non-Union
• Phanlouvong v. Northfield Metal Products, 2014
ONSC 6585
• Punching a co-worker does not amount to just cause for
dismissal.
• Firestone Textiles Company v. UFCW, 2014 CanLII
76772
• Termination of utility knife wielding employee upheld.
• Unifor Local 80-0 v .Certainteed Insulation, 2015
CanLII 600
• Employee’s yelling, swearing and abusive language enough
to constitute just cause.
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OHSA’s Broad Definition of “Employer”
Results in Significant Fine
• The company hired security guards through a
temporary staffing agency
• The security guard was walking outside the facility
when he was first struck by a car and then a tractor
trailer.
• The guard was dressed in dark clothing with no
reflective patches.
• Illumination was limited and the vehicles had poor
sightlines.
• The company pled guilty and was fined $150,000.
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Thank You
Name: John Illingworth Name: Robert E. Salisbury
Tel: 519-575-7507 Tel: 519-575-7520
Email: john.illingworth@gowlings.com Email: robert.salisbury@gowlings.com

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Immigration Update 2015
Presented By:
Bill MacGregor and Lesley Love

Introduction
Focus is on major developments that employers using
temporary foreign workers need to be aware of:
• New LMIA rules (June 2014)
• New specialized knowledge rule for intra-company
transferees (June 2014)
• New compliance rules for non-LMIA work permits
(February 2015)
• Express Entry – new Permanent Resident system (January
2015)
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New Regulatory Regime of January 1, 2014
• To “detect and deter employer non-compliance”
• New IRPA Regulations introduced January 1,
2014
• Significant changes to IRPA Regulations
• Many more statutory requirements put on employers (both for
LMIA and LMIA exempt work permit situations)
• Length of compliance period increased from 2 to 6 years (but
not retroactive)
• Broad powers of inspection granted
• Tougher “substantially the same” test
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Regulations: Inspection Powers
Very broad inspection powers given to government officers:
• May occur without a warrant at any place where TFW
works or did work in Canada
• Investigators may demand any documents or access to
computer systems
• Triggered randomly or where there is a concern (so a
complaint to the government may trigger inspection)
• Can occur anytime up to 6 years from first date of
employment of TFW
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Overhaul of Canada’s TFW Program
• Major changes to the TFW Program made June 20,
2014
• Affects almost all aspects of the program
• Continues trend of placing greater compliance
requirements on employers using TFWs
• Split Canada’s program into two streams:
• Temporary Foreign Worker Program, administered by
ESDC/Service Canada, to deal with LMIAs (formerly LMOs)
• International Mobility Program, administered by Immigration
Canada, for all LMIA-exempt work permits
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Overhaul of LMIA Regime
• LMIA application fee increased to $1,000 (from $275)
• New “high wage” v. “low-wage” job concept based on
provincial median wage
• New % cap on number of low-wage TFWs allowed per work site
• Change reduces ability to use TFWs in lower skill positions
• LMIAs for lower skill positions in accommodation, food
services and retail trade sectors can only be obtained in
economic regions where unemployment rate is less than
6%
75

Overhaul of LMIA Regime cont.
• Employers must now usually provide a Transition Plan outlining
activities to reduce reliance on TFWs
• Transition Plan will be assessed by Service Canada on subsequent
LMIA applications
• Employers must demonstrate compliance with the Transition Plan
• 10 Business Day LMIA processing for: (a) highest paid i.e. where
the TFW will be paid a salary that is higher than the “top 10% wage
threshold” for the province where the job is located; (b) highest
demand skilled trades; and (c) short duration (less than 120 days)
entries
• 10 business day processing is not provided in practice
76

Intra-Company Transferees – Specialized Knowledge
• Canada changed “specialized knowledge” rules in June 2014
• Tougher definition of “specialized knowledge”:
• Applicant must show a high degree of both proprietary knowledge and advanced expertise
• Must demonstrate advanced proprietary knowledge which is “uncommon knowledge of the
company’s products or services and its application in international markets”; or “an
advanced level of expertise of the company’s processes and procedures such as its
production, research, equipment, techniques or management”.
• Mandatory wage floor introduced: TFW must be paid at least the prevailing
wage for the occupation and location of work (does not apply to NAFTA
ICTs)
• Changes make it more difficult to transfer specialists
77

Compliance Rules for non-LMIA Work Permits
• February 21, 2015: New compliance rules for LMIA exempt
work permits (e.g. NAFTA, ICT categories)
• New $230 compliance fee and new form (IMM 5802)
• Must pay fee and file IMM 5802 form prior to applying for
any employer specific LMIA exempt work permit
• Failure to do so = denial of application
• Critical to complete IMM 5802 accurately as it will be basis
for future inspections
• Be careful of taking on compliance obligation you do not
control
78

79
Permanent Residence – New Express Entry System
• Started January 1, 2015
• Most TFWs must use Express Entry (EE) system to
transition to permanent resident status
• Must first enter EE Pool of candidates under the CEC,
FSW or FST PR category
• Must then receive invitation to apply (ITA) for PR status;
Getting an ITA depends on applicant’s EE points and the
cut off which is set by CIC for each draw from EE Pool
• CIC says will process within 6 months of confirming
complete PR application was received

Permanent Residence – New Express Entry System Cont.
• More or less predictability?
• Regarding who can become a PR?
• CEC eligibility no longer a guarantee if lack EE points
• EE points threshold – where will it stabilize?
• What is a “complete” application? Failure to provide it if invited to
apply means the person’s application is bounced
• Misrepresentation now punished by 5 year ban – how strict will
CIC be if candidate inadvertently provides wrong information?
• May increase pressure on companies to obtain an LMIA
or PLMIA for LMIA-exempt work permit holders to get
them more EE points. Creates compliance burden.
80

Best Practices for Employers
Employers need to adopt best practices and policies.
• Keep up to date on changes to rules and requirements
• Recruiting protocols to ensure consistency
• Review content of LMIA of Work Permit applications
• Document retention relating to TFWs and recruiting – will need to be
maintained for 6 years
• Changing employment terms of TFWs in Canada – need protocol in
place to avoid non-compliance and breach of STS test
• Consider moving TFWs to permanent status as soon as possible to
“narrow” compliance requirement window
81

82
Thank You
Name William R. MacGregor Name: Lesley A. Love
Tel: 519-575-7528 Tel: 519-569-4562
Email: bill.macgregor@gowlings.com Email: lesley.love@gowlings.com

83
Social Media – Updating the Status
Presented By:
Chris Andree

Introduction – Dos and Don’ts
• 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 off-
duty obligations to their employer (loyalty,
confidentiality) and about the perils of social media
(defamation, violating securities laws, etc.)
84

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
85

Social Media as a Tool…
Recruiting/Screening
• Human rights issues
– Knowing things you shouldn’t know about the candidate, e.g. age,
race, religion, disability, etc.
o 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
• 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)
86

Social Media as a Tool…
Recruiting/Screening
• Fairness issues
– internet is unreliable
– may be limiting hiring to only those with digital presence
87

Social Media…
Legal Risks
– Vicarious liability for employees’ wrongs committed in the
course of their duties, even if employer didn’t expressly
authorize employees’ conduct
– Defamation
o Example: trash-talking competitors in industry discussion forums
– Securities law violations (insider trading, “tipping”)
o Employee tweeting that s/he is working on a “big deal!”
88

Social Media…
Legal Risks
– Admissions against employer’s interests
o Social media data, tweets, posts, blogs, etc. may be producible in
litigation against employer (e.g. product liability, accident, etc.)
– Disclosure of employer’s (or employer’s customers’)
confidential information
o Example: boasting about working on customer’s top secret
project
89

Examples of Risks
- “Blain K. Manager from Hound Dog Co. is such a DB. Keeps
hitting on Allie. She’s super hot but chill dude!!
- “Allie’s lookin smokin today. Luv that sun dress. Wish I were a
flower.”
- “Allie blew me off. Why do the hot ones always play hard to get?
If she blows me off again she’s fired!”
- “Workin late again. Can’t wait for them to announce this merger.
Will have to learn to speak Waterloo. What does BB stand for?”
- “Heard Allie broke up with her boyfriend. Going to make my
move!”
90

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”
91

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)
92

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?
• Exception: legitimate whistle-blowing
– Solution: make sure employees have proper channels to raise concerns
discreetly
93

Employer Do’s
• Educate employees about managing privacy settings.
• Explain to employees that their duty of loyalty and
confidentiality operates 24/7.
• Explain to employees that as long as they leave the
company, its products, customers, business partners,
and co-workers out of their social media activity, the
company will have no interest or say in what they do
off-duty and on their own devices.
• Link the social media policy to a company’s other
behavioural policies.
94

Employer Do’s
• Discourage employees from commenting on social
media about breaking company news or non-public
information without first obtaining approval from a
designated company representative.
o Company spokespeople must be identified for employees in
advance.
• Provide employees with internal channels to vent.
• Explain to employees that they must assume that
everything they learn about their co-workers is
intended to be private and cannot be posted without
their co-workers’ permission.
95

Employer Do’s
• Require employees to report inappropriate social
media activity immediately to a designated company
representative.
o However, make it clear that employees who self-report a breach
of the policy in a timely way will be treated more leniently if their
breach was inadvertent and not malicious.
• Educate employees about all of the above and get “buy
in”.
o Give them “real time” examples of how companies (and by
extension their employees) have been damaged by inappropriate
social media activity.
96

Employer Don’t’s
• Don’t assume employees understand social media.
• Don’t assume employees understand any of their legal
obligations.
• Don’t turn all employees into brand ambassadors
without educating them about appropriate messaging
or the perils of social media.
• Don’t adopt the “disclaimer” model too readily.
• Don’t turn social media activity into compensable
“work”.
97

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
98

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 co-workers on social media sites, even if they think they are
doing so anonymously
– They should be discouraged from identifying themselves with their
employer
99

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, trade-marks,
slogans, etc.
100

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)
101

13. Direct employees to respect their co-workers’ privacy and
warn them about cyber-bullying
14. Advise employees of the proper channels available to
them to express workplace concerns (instead of blogging
about them!)
15. 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
16. Advise employees of the consequences of violating the
policy (e.g. employer will report unlawful activity to the
authorities, termination for just cause)
102

17. Require employees to report breaches (by others and
themselves) immediately.
18. Advise employees that anonymity and use of pseudonyms
will not excuse breaches of the policy.
19. Make compliance with the policy a term of ongoing
employment.
20. Include a sign-off acknowledgement page.
103

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
104

Case Law Update
• Simard Westlink Inc. v. Wallace, 2013 BCSC 2218
o warehousing business sought injunction against dismissed employee
who had posted embarrassing YouTube videos that disclosed
information about its customers and their products
• one video suggested customer’s food products were being stored next
to toxic chemicals
o permanent injunction obtained against employee for breach of
confidentiality
• Perez-Moreno v. Kulczycki, 2013 HRTO 1074
o (personal) respondent posted on Facebook that she had been
disciplined for calling applicant an ethnic slur at work
o Human Rights Code protects employees from harassment by their
co-workers via social media
o respondent ordered to take Human Rights Commission sensitivity
course
105

Case Law Update
• Communications, Energy and Paperworkers Union of
Canada, Local 64 v. Corner Brook Pulp and Paper
Limited, 2013 CanLII 87573 (NL LA)
o dismissal of employee upheld where she posted threatening
comments and ethnic slurs on Facebook directed at supervisors
when she became frustrated with safety investigation
106

Case Law Update
• Bell Technical Solutions v. Communications, Energy and
Paperworkers Union of Canada (Facebook Posting
Grievance), 2012 OLAA No 481
o Facebook postings that ridiculed employer and supervisor
o 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
o Dismissal factors: Facebook postings were frequent and prolonged
(more than 16 months); derogatory to employer and supervisor
o Reinstatement factors: provocation by supervisor
107

Case Law Update
• Alberta Health Services, 2012 CanLII 12067
o 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
o 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
o Dismissal upheld of employee who briefly posted photos from scene
of patient suicide and comments
o Factors: breach of patient confidentiality; lack of candour
108

Case Law Update
• Ornge, [2011] OLAA No 232
o 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
o 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)
109

Case Law Update
• Groves v. Cargojet Holdings Ltd, [2011] CLAD No 257
o Discharge overturned for grievor who posted on Facebook that she
wanted to kick lead-hand in the genitals wearing steel-toed boots
and spit in lead-hand’s face
o 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
o Discharge for time theft overturned where grievor’s unauthorized use
of social media during working hours didn’t compromise workplace
performance
110

Case Law Update
• International Union of Elevator Constructors, Local 50 v.
ThyssenKrupp Elevator (Canada) Ltd., 2011 CanLII 46585
(OLRB)
o Dismissal upheld of employee shown in video, shot during lunch
break, with genitals stapled to wooden plank posted
o 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.
111

Case Law Update
• S.G.E.U v. Saskatchewan (Ministry of Corrections, Public
Safety & Policing), 2009 CarswellSask 913
o Dismissal of three corrections officers upheld for joining racist
Facebook group created by one of them
o 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?”
o Factors: employees were peace officers
112

montréal  ottawa  toronto  hamilton  waterloo region  calgary  vancouver  moscow  london
Thank You
Christopher M. Andree, Partner
National Practice Group Leader,
Employment and Labour Law
Tel: (519) 575-7505
Fax: (519) 571-5005
Email: chris.andree@gowlings.com

114
Panel Discussion and
Top Legal Developments
Presented By:
Bettina Burgess, P.A. Neena Gupta
and John Illingworth

LEGISLATIVE CHANGES
• Stronger Workplaces for a Stronger Economy, 2014
• The new legislation is intended to provide additional support for
vulnerable workers by amending a number of Ontario’s
employment and labour statutes, including the Employment
Standards Act, 2000 (ESA), the Labour Relations Act, the
Occupational Health and Safety Act (OHSA) and the Workplace
Safety and Insurance Act.
115

LEGISLATIVE CHANGES
• MINISTRY OF LABOUR INFORMATION POSTER
• Amendments will come into force on May 20, 2015.
• Previously: only requirement was to publish the poster which provides
information about the ESA and its regulations.
• As of May 20, 2015:
• Employers must provide employees with the most recent
informational poster published by the Ministry of Labour (“MOL”)
within 30 days from the date the employee commences
employment.
• Employers must also provide translations if the employee requests it
and if they are available through the MOL.
.
116

LEGISLATIVE CHANGES
• MINIMUM WAGE
• As of October 2015, increases to minimum wage will be
dependent on the Consumer Price Index (“CPI”) for Ontario, as
published by Statistics Canada.
• Increases will be announced by April 1st of each year, and will be
in effect as of the following October 1st .
• If the CPI would result in the minimum wage decreasing, there
will be no change.
• If the CPI would result in an amount that is not a multiple of 5
cents, the minimum wage will be rounded up or down to the
nearest 5 cents.
117

LEGISLATIVE CHANGES
• SELF-AUDITS
• Amendments will come into force on May 20, 2015.
• Employment Standards Officers have the power to request an employer
conduct a self-audit of the employer’s records to determine compliance
with the ESA and regulations.
• The order requiring the audit will set out:
• the period to be covered; the provision of the Act that is the subject
of the audit; the method to be used to conduct the audit; the format
of the report; how long the employer has to complete it.
• Results of the audit must be reported to the MOL.
• Cannot make false or misleading statements.
118

LEGISLATIVE CHANGES
• CAP FOR UNPAID WAGES ELIMINATED
• Amendments came into force on February 20, 2015.
• Monetary cap eliminated:
• ESA capped unpaid wage claims (including termination pay, vacation pay
and overtime pay) at C$10,000. That has now been eliminated.
• Legislation deals with the transition from the current scheme to the new
scheme.
• $10,000 cap still applies for wages owing up to November 20, 2014.
• Time Limit Extended:
• ESA imposed 6 month time limit on recovery of unpaid wages, with the
exception of vacation pay which had a 12 month limitation period.
• Now limitation period is 2 years, with the exception of claims arising up to
November 20, 2014.
119

LEGISLATIVE CHANGES
• DEFINITION OF “WORKER” EXPANDED UNDER OHSA
• Amendments came into force November 20, 2014.
• The definition of “worker” under Ontario’s OHSA was expanded
to include people who are working for no pay such as interns,
students and volunteers.
120

LEGISLATIVE CHANGES
• TEMPORARY HELP AGENCIES
• Amendments to come into force on November 20, 2015.
• Joint and several liability for temporary help agencies and their
employer clients for unpaid wages under the ESA.
• Enhanced record keeping obligations: both the temporary help
agencies and the employer are required to record the daily and
weekly hours worked by the temporary worker and retain the
records for a minimum period of 3 years.
121

Breach of Privacy – is it cause?
• IT Helpdesk Analyst able to access any document
in the organization
• Analyst snoops in manager’s confidential file
folder on parking allocations, because she wants
a preferred spot
• Analyst was not given permission to access
document
• Analyst fired
• Was it just cause?
122

How does STD and LTD impact on Notice?
• Employee worked for company for 10 years.
• Had been off on STD leave, awaiting LTD
decision for stress and anxiety issues.
• STD benefits expired but KPMG continued to pay
her until her LTD claim was denied.
• She was due to return to work but did not come in
or meet with KPMG. KPMG provided her with a
termination letter offering 41 weeks.
123

• Unbeknownst to KPMG, Plaintiff
diagnosed/treated for breast cancer just prior to
termination.
• Upon learning this, KPMG changed the
severance package offer and provided STD
benefits for additional 3 months, when the Plaintiff
qualified for LTD.
• Plaintiff sued for wrongful termination.
• KPMG argued that the STD and LTD benefits
should be deducted from any reasonable notice
awarded.
124

• 10 months of reasonable notice.
• STD benefits (approximately 3 months) were
deducted from the reasonable notice.
• These were fully paid by KPMG, not insured.
• LTD benefits were not deducted from the
reasonable notice; more akin to private insurance
and employee made contributions.
• LTD policy provided that benefits are offset
against any employment income.
• There was no duty to mitigate given the Plaintiff’s
health.
125

A rose by any other name ….
• Plaintiffs are husband and wife, working for
CANAC Kitchens
• Husband had been employee of CANAC starting
in 1976; wife helped him on informal basis and
became employee in 1983
• In 1987, they became independent contractors at
CANAC’s insistence
• Contract required “full time and attention” to
CANAC’s business
• CANAC terminates and claims no notice is due
• Is CANAC right?

A rose by any other name ….
• Court confirmed that dependant contractors are
entitled to notice
• Appropriate notice deemed to be 26 months for a
contractor
• Higher than the notional cap of 24 months
• Contract silent as to termination
127

Accommodating family status - childcare
• Single mother with two young children works at Fort
McMurray (SMS Equipment Inc.)
• Normal schedule is 7 days on, 7 days off and
rotating day and night shifts
• Employee requests straight days because childcare
prohibitively expensive because she needed
someone to take care of children when she was
working and also when sleeping during the day
• Issue is cost, not availability
• Does employee have right to straight days just
because of costs?
128

When will that old guy retire?
Peter has worked for VBC for 45 years
(receptionist, clerk, bookkeeper, accounts
receivable clerk, account department manager).
Peter hates “newfangled” ways. Turnover in
accounting department is high – people are
frustrated by antiquated methods and Peter’s sense
of humour (he calls it sardonic, while others call it
mean and sarcastic). Peter’s performance reviews
are all very good.
129

Can we terminate a pregnant woman?
 Giant Co. and Medium Co. merge on April 1, 2015
 The merger leads to a planned reduction in force
of 15% of the workforce (over 400 in Canada,
10,000 worldwide)
 Christina, a senior Client Representative, goes on
maternity leave on April 1, 2015
 All the senior Client representatives are
consolidated into the US effective May 1, 2015
 There are no positions available in the org chart
that are comparable
 What should the company do?
130

Can we terminate a pregnant woman?
 Christina learns of our intention to eliminate all
the Canadian Sales Representatives
 Christina’s lawyer states that Company has an
obligation to find a comparable position in the
organization
 Christina’s lawyer points out that Christina could
take over the position of Canadian Client Event
Manager – we just have to fire the incumbent
instead of Christina
131

Assume Christina comes back
• What should she get paid?
• There was a bonus paid to employees on
December 31, 2014 because of the enormous
work and stress of the merger? Does Christina
get it?
• After a compensation review, Client
Representatives got a 2% per annum for 3
years? Does Christina get the increase for her
maternity leave year?
• If the only job available is at a little bit lower
salary range than Christina’s old position?
132

Managing Mental Illness in the Workplace
• Norman is a 20-year employee and a good
worker. Once in a while, Norman wears a tinfoil
hat to work and speaks to himself in the
washroom. Some workers have expressed
concern, but no one has complained that
Norman’s behaviour is threatening.
• Should management do anything, given that
Norman’s performance is generally very good?

Mental Health in the Workplace
• Sydney had been a very good worker, but since her
last review (exceeding expectations), her
performance has plummeted. She submitted a
report to management that was just obviously
incorrect and any efforts to talk to her are met with,
“I’m just busy and things are fine.”
• Management is fed up and decides to terminate
without cause.
• At the termination meeting, Sydney discloses that
she has depression and begs for another chance.
134

Mental Health in the Workplace
• Should management go ahead with the
termination?
• Can Sydney go on STD and LTD?
• In litigation, Sydney’s lawyer claims that we knew
or ought to have known that Sydney was suffering
from a mental health issue and that we should
have intervened at an earlier stage and seeks
$100,000 in punitive damages.
135

I’m worried about Karla ….
• Karla has always been a bit difficult, but recently it’s
been impossible. Karla was promoted about 8
weeks before into an important position and now
you’re worried about the department.
• She walks by people and won’t greet them. A co-
worker says she saw Karla sobbing in her car before
starting work. Karla’s work is getting done and her
director cannot fault her performance. One of her
co-workers is aware that she’s had some mental
health issues as a teenager and confides in you that
she’s worried about Karla.
136

Federal employers have more flexibility
• General view that dismissals under Canada
Labour Code (“CLC”) unjust if they were not for
cause
• Non-management employees had quasi-union
style protection, unless termination for cause or
genuine restructuring
• Presumption was that employer faced order of
reinstatement (with full back pay) or hefty
package
• Terminations are very risky
137

Federal employers have more flexibility
Wilson v. Atomic Energy 2015 FCA 17
• without cause dismissals are not automatically
“unjust” pursuant to the CLC
• There is no “right to a job in the sense that a
dismissal without cause is automatically unjust”.
• Must give reasonable notice
• Adjudicators must examine the specific facts of
each case to determine whether dismissal was
unjust in the circumstances.
138

ESA - Is your payroll $2.5 million per annum?
• Employment Standards Branch has historically
calculated payroll based on Ontario payroll only.
• Paquette v. Quadraspec Inc. [2014] 121 OR 3d 765 (ONSC)
holds that it is worldwide payroll and looks at company’s
total payroll in Canada (Ontario & Quebec).
• Section 64(2) of ESA:
(a) total wages earned by all employees in four weeks prior to
severance, multiplied by 13 = $2.5 million; or
(b) total wages in last or second last fiscal year prior to termination
= $2.5 million
139

Liars get punished by the Courts
• Bhasin and Hrynew had agencies under contract
with Can-Am Financial Corp.
• Hrynew wanted to take over Bhasin’s market and
had asked Can-Am to pressure Bhasin in this regard
– Bhasin refused offers to merge with Hrynew.
• Can-Am “misled” Bhasin about Hrynew’s duty of
confidentiality and “equivocated” when Bhasin
asked merger plans
140

Liars get punished by the Courts
• Can-Am appointed Hrynew to monitor agencies,
including Bhasin’s – Bhasin refused access to his
business records.
• Can-Am gave notice of non-renewal of their contract
with Bhasin for non-compliance.
• Bhasin lost the value in his business – majority of
sales agents solicited to work by Hrynew at the end
of the contract term.
• Underlying principle: each individual entitled to look
after his/her own self-interest, but ……
141

The Decision
• Good Faith
• Parties must perform contractual duties honestly
and reasonably.
• An underlying doctrine that may be given different
weight in different situations.
• Honesty in Contractual Performance.
• Applies to all types of contracts.
• Parties must be honest with each other regarding
the performance of contractual obligations.
• Breach will result in breach of contract and
damages.
142

Can we just suspend with pay?
• Potter was Executive Director of Legal Aid program
on a 7 year appointment.
• 4 years in, employment relationship became strained,
Potter went on medical leave during buy-out
discussions.
• One week before Potter was to return to work, placed
on paid suspension “until further direction” while
Board recommended to Minister of Justice that he be
terminated for cause.
• 8 weeks into suspension, Potter claimed for
constructive dismissal. Legal Aid argued he resigned
upon issuing the claim.
143

Can’t we just suspend with pay?
1. Did the employer unilaterally breach an express
or implied term of the contract?
2. If so, did the breach substantially alter an
essential term of the contract?
3. Did the employer’s conduct evince an intention
to no longer be bound by the contract, from the
perspective of a reasonable person?
So, was a paid suspension a constructive dismissal?
144

Can’t we just suspend with pay?
Court also said that employers must follow
good faith requirements that we saw in
Bhasin:
• honest and forthright communication with
employees that are being suspended;
• No stonewalling employees and acting in
secret; and
• Demonstrate that a non-disciplinary
suspension is reasonable and justified.
145

146
Thank You
Name: Bettina Burgess Name: P.A. Neena Gupta
Tel: 519-569-4557 Tel: 519-575-7501
Email: bettina.burgess@gowlings.com Email: neena.gupta@gowlings.com
Name: John Illingworth
Tel: 519-575-7507
Email: john.illingworth@gowlings.com

147
Questions?
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Employment and Labour Law Seminar - May 6, 2015

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