Employment & Labour Law: Panel Discussion


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Employment & Labour Law: Panel Discussion

  1. 1. Employment and Labour Law Panel Discussion April 9, 2014
  2. 2. 2 CARLETON 911 Carleton 911 is a new Canadian television drama about firehouse staff with ridiculously attractive firefighters and paramedics whose substance abuse and sex lives are more interesting than the emergencies to which they respond. Fact Situation No. 1
  3. 3. 3 Fact Situation No. 1, cont’d The municipality feels that the firehouse is out of control and in order to get the crew in order they recruit Wallace Walker from a 20 year career in Chicago with promises of new equipment and large staffing and training budgets. Unfortunately the crew are entirely resistant to their new chief and are determined to make Wallace’s life miserable with escalating pranks and harassment directed at Wallace’s sexual orientation and ethnicity. Wallace complains to the Commissioner who turns a blind eye and decides to wait things out. Things at the firehouse go from bad to worse and ultimately the municipality decides that they have made a hiring mistake. When one of the firefighters is injured due to equipment failure, Wallace is terminated for cause on the basis of alleged gross negligence, just shy of completing the period that would have entitled him to group benefits.
  4. 4. 4 Fact Situation No. 1, cont’d Shortly after his dismissal Wallace suffers a reactive depression that is incapacitating. Wallace who is 48 years of age finds himself with no benefits and in the absence of any contractual termination provisions sues for reasonable notice at common law and adds a claim under Section 46.1 of the Ontario Human Rights Code. 1. What general damages are available? 2. How is the situation impacted by Wallace’s disability? 3. What impact is there with respect to the allegations of gross negligence?
  5. 5. 5 Fact Situation No. 2 ZERO DARK FLIRTY Zero Dark Flirty is the tale of Jessica, an attractive investigator who has spent more than thirty years since college with the same governmental agency on a hunt for respect in the workplace.
  6. 6. 6 Fact Situation No. 2, cont’d In recent years as part of a promotion, Jessica signed a new Employment Agreement which provided: “The employer may terminate your employment without cause at any time by providing you with notice or payment in lieu of notice and/or severance pay in accordance with the Employment Standards Act of Ontario. You agree to accept such notice or payment in lieu of notice and/or severance pay in satisfaction of all claims and demands against the employer which may arise out of statute or common law with respect to the termination of your employment.”
  7. 7. 7 Fact Situation No. 2, cont’d Due to an economic downturn, Jessica’s employer elects to terminate the employment relationship and offers her a total of 34 weeks base salary together with a continuation of her group benefits for a period of eight weeks in exchange for a signed Release Agreement. Now in her 50’s making $85,000.00 annually, Jessica suspects that it will be difficult to find alternate employment and she rejects the offer and sues.
  8. 8. 8 Fact Situation No. 2, cont’d 1. Is the Employment Agreement enforceable? 2. Can the employer insist upon the execution of a Release Agreement prior to paying the 34 week package? 3. Is there a 24 month cap at common law? 4. What can the court do in response to a motion for summary judgment inside the period of reasonable notice?
  9. 9. 9 Fact Situation No. 3 LIFE OF BYE This is an Ang Lee tale of an individual worker who goes from one termination meeting to another. On this particular occasion Ricky Coal provided full time onsite training with respect to programs developed by the organization. Ricky had his independent contractor arrangement terminated summarily when it was discovered during routine maintenance that he was using the organization’s systems to download child pornography onto the work laptop provided to him by the organization.
  10. 10. 10 Fact Situation No. 3, cont’d Ricky sues alleging that he was in fact an employee entitled to reasonable notice. He also includes a tort claim for intrusion upon seclusion.
  11. 11. 11 Fact Situation No. 3, cont’d The employer relies upon the Service Agreement between the parties which provides: “It is understood and agreed by the parties that the contractor is an independent contractor and that neither the contractor nor any of its representatives are to be an employee or agent of the corporation. Accordingly, the contractor understands that the contractor is responsible for making all payments required by self-employed individuals, including, without limitation, tax remittances, contributions to the Canada Pension Plan and any other amounts required to be paid under any statute, regulation, by-law or otherwise as a result of receipt by the contractor of the fees and payments herein.”
  12. 12. 12 Fact Situation No. 3, cont’d The employer also relies upon its systems policies which provide: “Computers, hardware and related software, telephones, cell phones, pagers, Blackberries or similar devices, voicemail, fax and copy machines, email, internet access and related systems and equipment (the company’s tools) are company property. Users of the company’s tools can have no expectation of privacy, even if passwords and other security devices are used. The company reserves the right to examine all files, email directories and other information stored on our computers and systems… internet and email use are to be restricted to work related activities and are not to be misused or abused… The company reserves the right to monitor internet use and email messages… Without limiting the generality of the foregoing, email and internet access is not to be used to… engage in any illegal or unethical activities… Violations of this policy will lead to discipline up to and including termination of employment.”
  13. 13. 13 Fact Situation No. 3, cont’d 1. Is Ricky an employee? 2. Has the employer committed any tort? 3. Does the employer have just cause for summary dismissal?
  14. 14. 14 Fact Situation No. 4 INLAND SECURITY Clair Matheson is a demoted CSIS Agent with mental health issues who now spends her days hunting serial parking violators. By reason of the death of her husband, Clair has become the sole caregiver for her two children and requested that the rotating shifts provided for by the Collective Agreement be varied to a fixed day shift to accommodate her family obligations.
  15. 15. 15 Fact Situation No. 4, cont’d The employer responded that fixed day shifts are only available to part-time employees and so Clair was compelled to give up her full-time status and certain benefits that included training, advancement and pension benefits. Clair launched a claim to the HRTO alleging discrimination on the basis of family status.
  16. 16. 16 Fact Situation No. 4, cont’d 1. What are the issues? 2. Would it make any difference if Clair was providing care to her ailing mother? 3. If Clair’s mental health issues result in the complaint not being heard for many years, would this impact upon the remedies?
  17. 17. 17 List of Cases for Fact Situations Fact Situation #1 (Carleton 911) Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799 Brito v. Canac, 2012 ONCA 61 Honda Canada Inc. v. Keays, 2008 SCC 39 [2008] 2 SCR 362 Kelly v. Norsemont Mining Inc., 5 C.C.E.L. (4th) 169 (BCSC) Middleton v. Highlands East (Municipality), 5 C.C.E.L (4th) 289
  18. 18. 18 List of Cases for Fact Situations, cont’d Fact Situation #2 (Zero Dark Flirty) Stevens v. Sifton Properties Limited, 2012 ONSC 5508 Machtinger v. HOJ Industries Ltd., [1992] 1 SCR 985 Wright v. The Young and Rubicam Group of Companies (Wunderman), 2011 ONSC 4720 (CanLII) Middleton v. Highlands East (Municipality), 5 CCEL 4th 289 ONSC Hussain v. Suzuki Canada Ltd., 209 A.C.W.S. (3d) 101 Lowndes v. Summit Ford Sales Limited, 2006 CanLII 14 (ONCA)
  19. 19. 19 List of Cases for Fact Situations, cont’d Fact Situation #2 (Zero Dark Flirty), cont’d Rienzo v. Washington Mills Electro Minerals Corporation, 2005 CanLII 44668 (ONCA) Baranowski v. Binks Manufacturing Co., [2000] O.J. No. 49 Bernier v. Nygard International Partnership, 2013 ONSC 4578 (CanLII) Bullen v. Proctor & Redfern Ltd. (1996), 20 CCEL (2d) 36 Thomson v. Bechtal Canada Ltd. (1983), 3 CCEL 16 (Ont. HC)
  20. 20. 20 List of Cases for Fact Situations, cont’d Fact Situation #3 (Life of Bye) 671122 Ontario Ltd. v. Sagaz Industries Canada Inc. [2001], 2 SCR 983 1392644 Ontario Inc. (Connor Homes) v. Canada National Revenue, 2013 FCA 85 (CanLII) Jones v. Tsige, (2012) ONCA 32 (CanLII) R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34 McKinley v. BC Tel, 2001 SCC 38 [2001] 2 S.C.R. 161
  21. 21. 21 List of Cases for Fact Situations, cont’d Fact Situation #4 (Inland Security) Attorney General of Canada v. Fiona Ann Johnstone, 2013 F.C. 113 Health Sciences Association of British Columbia v. Campbell River, [2004] BCJ No. 922, 2004 BCCA CNR v. Seeley, 2013 F.C. 117 (CanLII) Devaney v. ZRV Holdings Ltd., [2012] OHRTD No. 1571 (CanLII) Sharon Fair v. Hamilton-Wentworth District School Board, 2012 HRTO 350 (CanLII)
  22. 22. 22 Thank You Montréal Ottawa Toronto Hamilton Waterloo Region Calgary Vancouver Beijing Moscow London