An employment law panel discussion was held on April 29th, 2015 to discuss three fact situations: 1. Pat was terminated after announcing a gender transition. The company provided severance per Pat's contract. Pat may have remedies for discrimination. 2. Mary was subjected to harassment and humiliation by her boss until resigning with disability benefits. If facts are proven, Mary has remedies including damages. 3. Gary left his job and two technicians were later hired by Gary's new employer. The old employer argues Gary breached duties and the new employer induced breach. Key issues are whether contractual clauses are enforceable and if know-how use can be enjoined.

1. Employment and Labour Law:
Panel Discussion – April 29th, 2015
SEMINARS | 2015

2. Employment / Labour Law Panelists
Mark Josselyn
Elisa Scali
Patrick Glaude
2

3. Fact Situation #1
PINK IS THE NEW BLACK
Pat has always been teased by his co-workers for his
flamboyant sense of fashion but the treatment has escalated to
ridicule since he announced that he identifies himself as
female and is in the process of undergoing a gender
reassignment.
When Pat complained to management his supervisor Ivan
responded that Pat’s “lifestyle choices and endless medical
appointments” were causing too much stress in the workplace
and causing hardship to those who had to “take up the slack”.

4. Fact Situation #1, cont’d
Ivan provided Pat with a severance package representing five
weeks’ base salary in recognition of his five years on the job
relying upon the language in Pat’s hiring letter which stated:
“Please note that employees may be terminated at any time
without cause upon being provided with the minimum period
of notice or salary in lieu of notice prescribed by the
applicable legislation.”
This same language is used by the company across the
country where the annual payroll is five million dollars although
the Ontario payroll is only two million dollars.

5. Fact Situation #1, cont’d
QUESTION:
What remedies are available to Pat?

6. Fact Situation #2
THE BEAST OF BANK STREET
Mary Butcher began her career with Mega-Mart in the late 90’s and by 2008
had been promoted through several levels to that of Assistant Store
Manager.
Her boss, Hugh Jogre, was always a bit of a bully but the relationship
significantly soured after Mary refused to assist with the backdating of
certain internal records.
Jogre began an escalating campaign of ridicule and sexism in front of her
colleagues which Mary brought to the attention of management. When
Jogre learned of the complaint he increased the level of abuse and the
public beratings. On one occasion he pounded on his chest like a wild
beast and taunted Mary that he could certainly outlast a “f*!$ing idiot like
you”.

7. Fact Situation #2, cont’d
Mary complained to senior management who investigated the
matter after which Mary was advised that her complaints were
unfounded and that she would be held accountable for the
unsubstantiated allegations and for undermining the authority
of the Store Manager.
Having won this round, Jogre humiliated Mary in front of a
group of employees by requiring her to count aloud to 10
“without removing her socks”.
Mary finally gave up, and tendered her resignation. She
successfully applied for long term disability benefits as a result
of workplace stress.

8. Fact Situation #2, cont’d
QUESTION:
If Mary can establish these facts at trial,
what remedies are available?

9. Fact Situation #3
THE HUNGRY GAMES
Up and Down Co. and High Low Inc. are two elevator
companies who aggressively compete for market share. Both
companies market a modernization program in an attempt to
persuade customers to upgrade their existing equipment.
Up and Down recently lost its Maintenance and Service
Supervisor, Gary Otis, to High Low. Gary was in charge of two
dozen service technicians but largely uninvolved in customer
sales, pricing and bidding.
Upon leaving, Gary was careful to return all company
documentation and property and there is no evidence of his
soliciting any customers or employees.

10. Fact Situation #3, cont’d
In the months following Gary’s departure, two of the Service
Technicians of Up and Down responded to an advertisement
placed in a trade journal and were subsequently hired by High
Low.
The former employer asserts that Gary has been induced by
High Low to breach his contractual and fiduciary obligations to
Up and Down and as well that he should be enjoined from
using his specialized “know how” acquired while working at Up
and Down.
The relevant portions of his former employment contract read
as follows:

11. Fact Situation #3, cont’d
A. You shall not during the term of your employment hereunder and
for a period of one year from its termination, either directly or
indirectly, individually or in partnership carry on or be engaged in
or concerned with or interested in, in any capacity whatsoever
(including that of principal, agent, shareholder, employee, lender
or surety) any person, firm, association, syndicate, or company
engaged in or concerned with or interested in the conception,
designing, development, fabrication, construction, modernization,
maintenance, marketing, distribution, advertising, franchising or
sale of products or services similar to those conceived, designed,
developed, fabricated, constructed, modernized, maintained,
marketed, distributed, advertised, franchised or sold by Up and
Down Co. in the course of your employment with Up and Down
Co. within the Province of Ontario.

12. Fact Situation #3, cont’d
B. You shall not for a period of one year from the
termination of your employment, directly or
indirectly, solicit, attempt to solicit or service any
client, prospective client or employee of Up and
Down Co. then existing or contemplated by Up
and Down Co. within 12 months prior to the
termination of your employment.

13. Fact Situation #3, cont’d
QUESTION:
What are the issues and what will be the result?
1. Is Gary Otis a fiduciary and has he breached any fiduciary
obligations?
2. Are the contractual provisions enforceable?
3. Can any unenforceable provisions be severed?
4. Is the migration of the Service Technicians unlawful?
5. Can the former employer enjoin the use of know how?

14. Thank You
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Mark Josselyn
Mark.josselyn@gowlings.com
Elisa Scali
Elisa.scali@gowlings.com
Patrick Glaude
Patrick.glaude@gowlings.com