Gowlings Employment & Labour Law Group and Grand River Personnel address key areas of interest for HR in 2015 including: The Good, The Bad & The Ugly (legal developments from 2014), AODA, investigations, disability, retirement, leadership/culture and employee engagement and more.

1. The Good, The Bad and the Ugly
U t iUncertain
Top Legal Developments – 2014-2015
P.A. Neena Gupta
Robert Salisbury and Katia DiabRobert Salisbury and Katia Diab
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2. Privacy: McIntosh v. Legal Aid Ontario
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3. Privacy: McIntosh v. Legal Aid Ontario
• Employee of LAO Reddick accessed McIntosh’s• Employee of LAO, Reddick, accessed McIntosh s
personal information, contained in LAO file.
• Reddick threatened to disseminate the information.
• McIntosh initiated an action against LAO and Reddick
personally, alleging violation of privacy rights.
• Reddick did not defend the action.
3

4. Privacy: McIntosh v. Legal Aid Ontario
• Jones v. Tsige, 2012: Intrusion upon seclusiong , p
• One who intentionally intrudes, physically or
otherwise, upon the seclusion of another or his
i t ff i i bj t t li bilit tprivate affairs or concerns, is subject to liability to
the other for invasion of his privacy, if the invasion
would be highly offensive to a reasonable person.
• Reddick had improperly accessed the plaintiff’s
private information and provided it to her ex-boyfriend.
• IS THIS A GOOD CASE FOR EMPLOYERS?
4

5. Privacy: McIntosh v. Legal Aid Ontario
Employers have a duty to protect theEmployers have a duty to protect the
confidential information belonging to
customers. This duty is one that needs to
be clearly and explicitly communicated to
employees. Employers need to train (and
d t t i i ) b t fid ti litupdate training) about confidentiality.
5

6. Social Media: United Steelworkers of America,
Local 9548 v. Tenaris Algoma Tubes Inc.g
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7. Social Media: United Steelworkers of America,
Local 9548 v. Tenaris Algoma Tubes Inc.g
• Male grievor went on Facebook and complainedg p
about female co-worker - suggested “violent and
humiliating sex” act.
X l d b t th ti d b t• X learned about the posting and became very upset.
• Posts not “private”.
• Tenaris had a standard workplace violence human• Tenaris had a standard workplace violence, human
rights and harassment policy and also part of
Collective Agreement.
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8. Social Media: United Steelworkers of America,
Local 9548 v. Tenaris Algona Tubes Inc.g
• Company fired worker; worker grieves.p y ; g
• Held: Grievance denied. Grievor’s conduct
constituted physical and sexual threats, contrary to
Bill 168 th C ’ d f d t d thBill 168, the Company’s code of conduct and the
Company’s Workplace Harassment Policy.
Reinstatement would be contrary to the goals
established by such policies.
IS THIS A GOOD CASE FOR EMPLOYERS?• IS THIS A GOOD CASE FOR EMPLOYERS?
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9. Social Media: United Steelworkers of America,
Local 9548 v. Tenaris Algona Tubes Inc.g
“ …progressive discipline is not appropriate in…progressive discipline is not appropriate in
every case. Some offences are so serious that
they warrant discharge. An employee does not
il t f l h tnecessarily get one free sexual harassment
before he loses his job.”
Laura Trachuk – Sole Arbitrator
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10. William Osler Health System and ONA and Dr. G
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11. William Osler Health System and ONA and Dr. G
• The grievor, a nurse, claims she was sexuallyg , , y
harassed by Dr. G.
• Hospital agrees and strips Dr. G of his privileges, so
th t h t ti f th k lthat he cannot practice from the workplace.
• Dr. G applies to the hospital to have his privileges
restored.restored.
• Hospital argues that the arbitrator does not have
jurisdiction to determine Dr. G’s privileges at the
h it lhospital.
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12. William Osler Health System and ONA and Dr. G
• Arbitrator concludes that the question is not toq
determine Dr. G’s medical privileges, but to determine
how close (and under what conditions) Dr. G should
work in relation to the grievor given his prior conductwork in relation to the grievor, given his prior conduct
and all other relevant information, including efforts he
has made to remedy his prior misconduct.
• Arbitrator treats matter as a health and safety issue.
IS THIS A GOOD CASE FOR EMPLOYERS?• IS THIS A GOOD CASE FOR EMPLOYERS?
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13. Confidentiality: Jan Wong v. The Globe and Mail Inc.
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14. Confidentiality: Jan Wong v. The Globe and Mail Inc.
• Jan Wong is an award-winning author who hadJan Wong is an award winning author who had
previously worked with The Globe and Mail.
• In her 2012 autobiography, Wong indicated that she
ff d f d i d th t i 2008 hsuffered from depression and that in 2008, her
previous employer “caved” and paid her “a big pile of
money to go away.”y g y
• Her settlement agreement required confidentiality.
• Was that a breach?
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15. Confidentiality: Jan Wong v. The Globe and Mail Inc.
• The Globe and Mail sued for every cent paid to her.y p
• Labour arbitrator ruled that Wong had to pay The
Globe and Mail everything back!
• The decision was very carefully drafted to avoid
mentioning how much money involved.
• IS THIS A GOOD CASE FOR EMPLOYERS?
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16. Confidentiality: Jan Wong v. The Globe and Mail Inc.
Regardless of jurisdiction -- courts andRegardless of jurisdiction courts and
tribunals recognize that without giving
confidentiality clauses some teeth --
nobody would ever settle for fear of
creating a precedent.
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17. Termination: Kimball v. Windsor Raceway Inc.
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18. Termination: Kimball v. Windsor Raceway Inc.
• Plaintiff, Kimball expressed his intention to retire after, p
his 65th birthday.
• Kimball did not retire.
• Shortly after Kimball was placed on an indefinite layoff
and provided with certain entitlements under the ESA
• At that time Kimball was a long service employee• At that time, Kimball was a long service employee.
• Kimball brought a claim for wrongful dismissal
claiming 24 months notice.
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19. Termination: Kimball v. Windsor Raceway Inc.
Held:
• Kimball is entitled to receive statutory severance pay.
• If the dismissed employee has no intention to look for
work, but has instead decided to retire, the very
purpose for which reasonable notice is required to be
given is absent. That is a factor that may well begiven is absent. That is a factor that may well be
relevant in assessing what constitutes reasonable
notice in this case.
• IS THIS A GOOD CASE FOR EMPLOYERS?
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20. Termination: Kimball v. Windsor Raceway Inc.
• Employees’ future intentions factor into aEmployees future intentions factor into a
determination respecting reasonable notice
entitlements.
• Ask all employees about their careerp y
intentions/plans, not just the older worker.
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21. Mental Stress: Decision No. 2157/09
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22. Mental Stress: Decision No. 2157/09
• Worker diagnosed with an adjustment disorder due tog j
mistreatment by co-worker.
• Worker’s claim for benefits was denied by the WSIB.
• Worker’s disorder as a result of mistreatment did not
constitute a “traumatic and unexpected event” as
required by subsections 13(4) and (5) of the WSIA.required by subsections 13(4) and (5) of the WSIA.
• Worker challenged these subsections as being
unconstitutional.
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23. Mental Stress: Decision No. 2157/09
Held:
• Restrictions on mental stress were unconstitutional.
• Worker entitled to benefits.
• IS THIS A GOOD CASE FOR EMPLOYERS?
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24. Mental Stress: Decision No. 2157/09
Employees may now be eligible for WSIBEmployees may now be eligible for WSIB
benefits for the effects of harassment in
the workplace.p
If the WSIB covers general harassment andIf the WSIB covers general harassment and
mental distress, employee cannot sue for
those types of damages in court.
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25. Severance: Paquette v. Quadraspec
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26. Severance: Paquette v. Quadraspec
• Following termination of his employment, Paquetteg p y , q
sought the court’s declaration that he was entitled to
severance pay pursuant to the ESA if Quadraspec’s
global payroll exceeded $2 5 millionglobal payroll exceeded $2.5 million.
• Held: A company’s global payroll is to be considered
when determining entitlements to severance pay
pursuant to the ESA.
IS THIS A GOOD CASE FOR EMPLOYERS?• IS THIS A GOOD CASE FOR EMPLOYERS?
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27. Investigations: B.C. Ferry Services Inc. v. B.C. Ferry and Marine
Worker’s Union
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28. Investigations: B.C. Ferry Services Inc. v. B.C. Ferry and Marine
Worker’s Union
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29. Investigations: B.C. Ferry Services Inc. v. B.C. Ferry and Marine
Worker’s Union
• The Queen of the North sank - Employer investigatedQ p y g
the accident.
• The Grievors refused to answer any questions about
h t h d h d i di t l b f th id twhat had happened immediately before the accident
unless the information would be kept confidential.
• The Grievors were suspended without pay for theirThe Grievors were suspended without pay for their
refusal to cooperate in the investigation.
• Union argues that a grievor's silence, standing alone,
i t j t d bl f di i liis not a just and reasonable cause for discipline.
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30. Investigations: B.C. Ferry Services Inc. v. B.C. Ferry and Marine
Worker’s Union
• Employer had “legitimate public purpose" in learningp y g p p p g
what had occurred.
• At arbitration, and on the review of that award, it was
f d th t BC F i ’ d t t k f ll di lfound that BC Ferries’ duty to make full disclosure
outweighed the employees’ right to remain silent.
• IS THIS A GOOD CASE FOR EMPLOYERS?
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31. Investigations: Recent Events
Ghomeshi DalhousieGhomeshi Dalhousie
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32. Investigations
THE BASIC PRINCIPLE:
The duty to investigate is a “means” by which the
employer ensures that it is achieving the Code-
mandated “ends” of operating in a discrimination-
free environment and providing its employeesfree environment and providing its employees
with a safe work environment.
Laskowska v. Marineland of Canada Inc., 2005
HRTO 30
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33. Investigations: Scaduto v. Insurance Search Bureau
• Mr. Scaduto’s employment with ISB was terminatedp y
for poor performance.
• At the termination meeting, Mr. Scaduto alleged, for
th fi t ti th t h b li d h b ithe first time, that he believed he was being
scrutinized unfairly because he was gay.
• ISB did not investigate Mr. Scaduto’s allegations asISB did not investigate Mr. Scaduto s allegations as
his employment had already been terminated.
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34. Investigations: Scaduto v. Insurance Search Bureau
• Held: Mr. Scaduto was not discriminated against andg
there was no duty to investigate the allegations raised
at the time of termination:
Th i t ti f th C d i l• There is no contravention of the Code simply
because there was a failure to investigate a
complaint of discrimination where there is no
finding of discrimination.
IS THIS A GOOD CASE FOR EMPLOYERS?• IS THIS A GOOD CASE FOR EMPLOYERS?
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35. Investigations: legislative requirement, OHSA
• Obligations: preparation and implementation ofg p p p
workplace policies re violence and harassment.
• Workplace violence program must include procedures
ffor:
• controlling risks, summoning immediate assistance
when workplace violence occurs or is likely towhen workplace violence occurs or is likely to
occur, reporting and investigating incidents or
complaints of workplace violence.
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36. Disability: Galuego v. Spectrum Health Care
• Applicant , a PSW, refused to attend an in officepp , ,
meeting to discuss work related problems with
supervisor.
S i f d t l hi th h d l f• Supervisor refused to place him on the schedule for
appointments until he did so.
• Doctor’s note indicated he had “mental stress.”Doctor s note indicated he had mental stress.
• Applicant alleged he was constructively dismissed
and brought a complaint re discrimination and
i lreprisal.
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37. Disability: Galuego v. Spectrum Health Care
• Regarding the Applicant’s claims of mental stress, theg g pp ,
Tribunal stated:
Suffering from stress can turn into, or be
l t d t t l di bilit b t it i trelated to, a mental disability, but it is not a
disability in and of itself.
• IS THIS A GOOD CASE FOR EMPLOYERS?
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38. Employment Standards Act changes – Not good!
Old New (January 1 2015)Old
$10,000 cap on ESA cases.
New (January 1, 2015)
No cap on ESA cases.
6 or 12 month limitation period.
Temporary help agencies liable
f l i
24 month limitation period.
Temporary help and employer
for wage claims.
Minimum wage hikes had to be
ifi ll l t d ( d
Temporary help and employer
client jointly liable for wage
claims.
specifically regulated (and
therefore subject to more
scrutiny).
Minimum wage automatically
linked to CPI.
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39. Thank You
P A N G t R b t S li b K ti Di bP.A. Neena Gupta Robert Salisbury Katia Diab
519-575-7501 519-575-7520 519-575-7534
neena.gupta@gowlings.com robert.salisbury@gowlings.com katia.diab@gowlings.com
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@GowlingsHR@ g
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