Employment Outline Law 567 History of Employment Regulation -
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diff b/w market for human labour and other commodities: contracting for work of another human being shift from ensuring employer‟s rights protected employees o reason: early labour legislation to combat fact that there was a finite supply of labour (min hrs), control price of labour (max wages) & mobility industrial revolution: rise of freedom of k but ineq of bargaining power b/w E‟er and E‟ee was ignored tf E‟ee didn‟t have freedom of k (b/c full labour marker, dec E‟ee‟s freedom of k) today, golden thread throughout employment law is the cts desire to facilitate the existing system of work organization and to reflect society‟s moral vision of how work relns ought to be considered, w/ a view to the the protection of the e‟ee, cognizant of the power imbalance (reluctant to enforce restrictive covenants, covenants, harsh terms).
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1 Issue: Issue: is there an E’ee? Is the individual in an employment relationship w/ the E‟ee? Must first be sure that the e‟ee is in an employment relationship relat ionship before applying any employment law concepts (if not an e‟ee, is it a indep (or dep) k‟er?) nd
2 Issue: What is the jurisdiction that regulates the employment law relnship?
Provincial? Ontario Employment Stds Act, Ontario Human Rights Code Provincial: statutory notice is much greater under ESA, ESA provides big ger severance pay-outs than CLC, vast majority of e‟ers are under provincial provi ncial ctrl, property and civil rights. - Note: federally incorporated companies are still w/in prov jurisdiction
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Fed? Canada Labour Code, Canadian Human Rights Act
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Canada Labour Code – Code – e‟ees e‟ees below a certain level have just cause protection (like a union) and can‟t be terminated w/out just cause unless pt of legitimate downsizing. Fed govt ctrls commernce, e‟ment relns for fed undertakings and businsses. Pt III Canada Labour Code (CLC): formed from Industrial Di spute Investigation Act, lists specific areas that came under fed ctrl. Std hrs, wages, vacations, and holidays.
Constitutional Jurisdiction
Constitutional jurisdiction over employment regln is generally provincial unless the worker is a federal worker and tf subject to federal jurisdiction In USA Fed govt has residual jurisdiction over labour and employment regln , fed govt can legislate over labour l abour and employment issues and only if a statute is silent can state law come in, if conflict Fed wins. Thought Canada was same until Snider. [1925] 2 DLR 5 (PC) [No more residual fed J] Toronto Electric Commissioner v Snider [1925] Facts: Federal Industrial Disputes Investigation Act questioned, questioned, was an attempt to prevent strikes and lockouts, Fed govt appointed conciliation boards to deal w/ industrial disputes, an employer tried to block this, claimed fed govt had no constitutional jurisdiction to regulate here. Held: parl couldn’t regulate k’s of a particular trade or business since those k’s were w/in the property and civil rights dimension, dimension, tf e’ment falls under und er prov juris. Parl COULD regulate: 1) business activities taking place across the whole country, & 2) emergency sitns affecting the whole country. This sitn wasn’t 1 or 2 .
Reference re: Industrial Relations and Disputes Investigations Act [1955] SCR 529
Case confirmed the power to reg fed undertakings lies w/ the fed govt, tf fed can reg employment relnship if it’s in relation to a fed undertaking
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summary of this in northern telecom cases: 1) parliament has no authority over labour cases in a general or residual fashion , exclusive competence or authority is the rule; 2) by way of exception, parliament can assert exclusive jurisdiction over federally regulated enterprises or undertakings; 3) primary federal competence can prevent provincial law from regulating/enacting regulation (employment regulation for federal undertakings is removed from the provincial sphere and moved into fed sphere); 4) ? of whether an undertaking is fed or prov deps upon the nature of its operation ; 5) to determine the nature of its operation(TEST), one must look at the normal or habitual operations of the business as those of a going concern, tf the question is whether the nature of the operation and the normal operations of the business can be characterized as a federal undertaking Generally speaking, fed undertakings are those of natl importance, ie banking, radio, tv, airlines, railways, some trucking (long-route intra prov), military, navigation, shipping Note: there are are lots of e‟ers that have pts of their business fall under fed and pts under prov EXAM ANALYSIS: IS THIS EMPLOYER FEDERALLY OR PROVINCIALLY REGULATED?
(1) Generally, Parliament has no authority over labour relations, provincial authority and competence is the rule (2) Except in cases where the industry or e mployer is federally regulated (See s.2 of Canada Labour Code for a list of enumerated examples of federal works) (3) Enumerated industries list is not exhausted, sometimes an industry that is analogous and may be considered to be a federal area (new technology) or an industry t hat is an integral part t o a federal undertaking a. TEST: Northern Telecom – Telecom – installation, installation, were installers federally regulated? i. Look at the operation that is the core federal undertaking ii. Look at the operation which has engaged the employees in question iii. Make a judgement as whether or not the operation of the subsidiary is vital, essential or integral to the core federal undertaking b. This is an analysis that is practical in nature and that ignores the nature of the company‟s set-up, set -up, it looks at the factual nature of the undertaking and disregards the legal technicalities (4) If it is a federally regulated emplo yer, then the Canada Labour Code applies C. INTRODUCTION TO EMPLOYMENT STANDARDS STATUTES AND THE COMMON LAW OF EMPLOYMENT The Statutory underpinnings of regln of e’ e ’ment relationship & the implied terms of the employment contract statutory regulation; First concept: stat regln forms a floor of rights. Tf when considering what an employee‟s rights might be in a circumstance, want to look at the statute first. verbal contracts; and written contracts on top of statute, have employment k, both written and oral have implied terms in the employment k ( fundamental diff b/w employment k and k’s for sale for sale of house or other commercial k’s ) CL implied terms are implied into employment k‟s. o Conduct of the parties informs the i mplied terms, can modify them. o Are implied by law for policy rather than factual reasons or for the business efficiency that it brings.
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A. Who is an Employee? Who is an Independent Contractor? Who is an Employer?
3 types of employer relnships: employer emplo yer 1) employee relnship in this, the parties are bound by a written or implied k OF service eg: cheese store hires workers to make cheese 2) independent contractor relnship: eg: cheese shop hires roofing company to fix roof 3) dependent contractor v similar to indep k‟ers, except, dep k’er is actually dependent on a particular company for its k’s for service. Eg cheese shop has particular exclusive relnship w/ a cheese supplier and they only supply to that cheese shop Tests that have been developed: 1.
Control Test a. Does one party control the work or performance of the individual? i. Is actual control being exercised? ii. Is there the ability to exercise exercise substantial control? Is there the right to? 1. Ability to discipline or discharge someone 2. If there is control then it is an employment relationship iii. Is there ability to control how and when the work is performed? iv. Is there ability to dictate attendance at the workplace (at meetings) and to regulate the conduct of the employee at work (dress code, code of conduct) b. Stronger control more likely to be an employee relationship elected business representative Hokanson v. Sheet Metal Workers International Assoc., Local 280 (1985)(BC SC) – elected of a union was found to be an employee for wrongful dismissal purposes given that t he union had selected, controlled and dismissed him.
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Fourfold Test (Developed by House of Lords in 1946) a. Power of Selection of Candidates/Power to Hire b. Payment of Wages or Remuneration c. Right to Control the Method of Doing Work d. Right of Suspension or Dismissal Lord Thankerton attempted to codify a list of criteria which would Short v. J.W. Henderson Ltd.(1946) (HL) – Lord establish the existence of an employment relationship.
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Entrepreneur Test (1946 effort of Privy Council to develop a more reflective test) a. Whose business is it? i. Is this business for themselves or someone else? 1. Crucial point is whether there is a chance of profit and risk of loss b. Who owns the tools necessary to run that b usiness? Lord Wright approved a tell less restrictive than the Montreal v. Montreal Locomotive Works Ltd.[1947] (PC) – Lord Fourfold Test, this test focuses focuses on the question “whose business is it?” An employer not making the appropriate appropriate deductions for CPP and income tax is irrelevant in this determination.
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1952 – aka aka Integration Test) Organization Test (Lord Denning, 1952 – a. Is the individual employed as a part of the business? b. Is the work integral to the business? i. Is the work CORE or INCIDENTAL? Lord Denning established this test to recognize Stevenson, Jordan & Harrison Ltd. v. Macdonald [1952] (UK CA) – Lord that control is not necessarily the key determination of whether an indivi dual is an independent contractor or an ). It employee. This was adopted by the SCC in Co-operat Co-operat ors I nsur ance Agency Agency v. Kearn ey (1964) (1964) (SCC enlarges the Entrepreneur Test .
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Multi-Factor Test (applied today) (i) Extent of the Control (ii) Ownership of Tools or Equipment (iii) Risk of Loss (iv) Chance of Profit (v) Extent of the Integration (vi) How have the parties themselves defined the relationship (least important)
Threshold question: whether someone is an e’ee or a contractor? -
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e‟ee‟s are entitled to reasonable notice of termination if termination if the employment relnship has been severed, if its been severed by the e‟er. Indep k‟ers in contrast don‟t have any entitlements entit lements under statute or otherwise to notice when the relnship has come to an end, unless if there t here is a k that specifies a specific notice period (but these are onl y based in k, whereas the reasonable notice reqmt for e‟ees can be based i n k, but is fundamentally fundam entally based, even if the k is silent, in statute and CL). rd Dependent k‟ers however, k‟ers however, (this is where this 3 categ has been carved out) are entitled to reasonable notice of termination.
Sagaz v 671122 Ontario Ltd [2001] [2001] SCJ No 61 -
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no single test to det if worker is employee or indep k, factors include: whether worker provides own equipment or hires his own helpers , o o degree of risk and responsibility borne by worker, degree of responsibility for investment and management held by the worker, and o o worker’ opportunity for profit in the performance of his tasks factors combined give rise to pivotal question: “Is the person performing the services performing them as a person in business on his own account? Yes: contract is a contract for services (IC) o No: contract is a contract of service (E’ee) o Facts: Respondent (original supplier) suffered losses when it was replaced as Cdn Tire‟s synthetic car seat cover supplier. Was replaced b/c a bribe was paid b y a rival supplier‟s consultant to the head of Cdn Tire‟s automotive division. HELD (At SCC): Appeal allowed: CA erred in holding S. Inc vicariously liable to D Ltd. AIM Inc. wasn‟t an employee of S Inc. but an independent contractor for whose acts S Inc. couldn‟t be held vicariously liable in law
McKee v Reid’s Heritage Homes Ltd 2009 2009 ONCA 916 -
issue: was McKee an e‟ e‟ee of RHH or an indep contractor? (Held: was an e‟ee) Distinguishing b/w E‟ee and Dependent Contractors: Contractors : Legal principles applicable to distinguishing b/w employee and independent contractor apply o equally to the distinction b/w employees and dependent contractors. Tf dependent contractor category arises as a “carve -out” from the nonnon -employment category and doesn‟t affect the range of the employment category. Dep contractor st atus exists to safeguard contractors who are in a posn of economic vulnerability First step: is worker e’ee or k’er? (use Sagaz factors), if find worker is k‟er: o then second step : is k‟r k‟r is dept or indep?, indep?, here a worker‟s exclusivity is determinative, as it o demonstrates economic dependence (look at whether that k‟er works exclusively for the pri nciple or e‟er, and/or whether they are economically dependent on the principle
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Regina v Wyssen c.o.b. Jane Wyssen Enterprise s (Court of Appeal for Ontario) -
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Facts: respondent is a window cleaner, couldn‟t clean one window, contracted w/ C to do so, C fell to his death while cleaning the window. Respondent charged under s.14(1)(c) of Occupational Health and Safety Act w/ failing as an employer to ensure that the measures and procedures prescribed by the Act were carried out. Issue: does the Act apply to the employer of an independent contractor? Act applies to independent contractors as well as employees – in defn “employer” means “a person who employs one or more persons or contracts for the services of one or more workers” Intention of s.14(1) and (2) is to make a n employer responsible for safety in the workplace, the employers duty under the Act and regulations can‟t be evaded by contracting out performance of work to independent contractors. Have broad defn of e‟er to make sure that the legislatures intention is appreciated. In determining who is an e’er – look at, for whom does the e‟ee perform services, which corporate entity renumerates the e‟ee, which entity makes deductions?, which entity is involved in the decisions relating to job assignments, dismissal, and which entity employs the managers; which entity provides benefits like pensions, health benefits?
B. The Common Law of E’ment & the Verbal K (Implied Rights & Obligations in the E’ment Relationship) Changes to the Employment Relationship – Constructive Dismissal
No statutory defn of the concept of constructive dismissal in Ont, b/c its entirely a CL concept, but despite this, it is a triggering event for notice and severance under statutory obligations (in Ont, the ESA). Concept of constructive dismissal is based on an implied duty that employers won‟t implement a substantial change to an e‟ees work responsibilities or status w/out the e‟ees consent. All tests and defns for this found in the jurisprudence, most common defn; constructive dismissal is a substantial change in the terms and conditions of employment unilaterally imposed by the e‟er which amounts to a fundamental breach of the employment k , and permits the e’ee to treat him or herself as having been dismissed. Constructive dismissal is the e‟ee‟s right not to have the bargain changed, it‟s the equivalent at law of the e‟er terminating the e‟ee (if it‟s a termination w/out just cause, e‟ee has certain entitlements) 3 elements to constructive dismissal: o o o o
1) a change to the terms of employment 2) has to be a unilateral change, and the e‟ee can‟t agree to it 3) to a fundamental term or condition the change has to repudiate the terms of the employment k
test that’s applied when determining whether someone has been con structively dismissed, is a objective test: would a reasonable person in the same sitn as the e’ee, have considered that the essential terms of the employment k, were unilaterally and substantially altered by the e’ers actions (comes from Farber case) -
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the intention of an e‟er is generally irrelevant in this, bad faith on the pt of the e‟er in making the change doesn‟t have to be shown, also don‟t have t o show that the e‟er intended to make a substantial change to a fundamental term or condition the objective test is applied at the time the e‟ee had the change implemented e‟ee bears the onus, the e‟ee is arguing that the k has been repudiated, so the e‟ee has the onus to demonstrate that constructive dismissal exists two times when changes unilaterally can form the basis for constructive dismissal: 1) demotions or changes in job fns (change in the responsibility or responsibilities of the e‟ee) o demotion found to occur if an e‟ee is reqd to perform a position that involves less prestige and/or status. 2) in reln to changes in treatment (eg changes in compensation), &/or changes in the work envt o
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Farber v Royal Trust Co. , [1997] 1 SCR 846 -
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Facts: in a restructuring, respondent company decided to eliminate regional manager positions; appellant was a regional manager and tf has his posn eliminated, appellant was offered posn as manager at Dollard Branch (demotion). Dollard branch is least profitable in country, appellants income would be ~ cut in half (loss of prestige, and also had financial ramifiction ), tried to negotiate w/ respondent (refused to accept the offer), respondent refused to change its offer, appellant sued respondent for damages on the ground that he had been constructively dismissed o Note: e‟ee needs to resign from their employment to allege constructive dismissal and sue for this SCC: appeal should be allowed - found it was a significant enough change both in the P’s work fns that a demotion had occurred and a claim for constructive dismissal was justified respondents offer was constructive dismissal b/c it substantiall y altered the essential terms of the employment k, and at the time the offer was made, any reasonable person in the same sitn as the appellant would come to that concl
Schumacher v Toronto-Dominion Bank (1999) 173 DLR (4th) 577 (ON CA) [loss of prestige] -
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Facts: Schumacher worked for TD bank for 9 yrs, was in prestigious posn, in charge of lot s of people, bank hired Wright who was to be in charge of half of the duties Schumacher was currently in charge of (S wasn‟t told abt W‟s hire, was leaked) HELD: Schumacher hadn‟t resigned but had been constructively dismissed (resigned, then alleged he was constructively dismissed – bank tried to argue that S had resigned, that it wasn‟t a constructive dismissal): significant changes were imposed by the bank which substantially altered essential terms of S‟s k of employment, removal of significant pts of his job which wasn‟t agreed to by S represented a demotion or reduction in responsibilities, loss of bonus, a reasonable person in the respondents sitn would have felt that the essential terms of his employment k had been substantially changed, ct also relied on the fact that S hadn‟t been consulted
Note: -
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An e‟ee that‟s faced w/ a unilateral change in all cases has an obligation to signal his or her rejection to the terms, or they risk finding that they will be seen to have condoned or accepted the change Constructive dismissal can also take place in the change in the working condition; can include compensation (general guideline of 10%, greater than 10%, likely to find constructive dismissal); e‟ee is being sexually harassed, bullied, victimized, at work is potl change to allege constructive dismissal (b/c the work envt has changed); geographic transfers, cts have been prepared to accept that the location you work is a fundamental term, however w/ sr e‟ees, there could be a reqmt that you relocate, could also be provided by the employment k Cts will not be prepared to find a constructive dismissal based on speculation, change has to be imposed, e‟ee can‟t be speculating that it will occur NOTE: e‟ee must resign before initiating CD
Lowndes v Summit Ford Sales Ltd . [2006] 47 CCEI (3d) 198 -
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Facts: E‟ee worked at car dealership, had extensive responsibilities b/ w 1968-90, in 90 job duties significantly decreased but remuneration and job titles stayed same. Dealership didn‟t fire e‟ee for cause but instead terminated service and determined to pay him salary continuance payments over 24 mos in amt equal to 8.5 mos notice (Received these payments for 21 mos until a dispute arose regarding the repaymt of life insurance premiums paid by the appelants (Car dealership) for the benefit of the respondent (E‟ee). E‟ee brought action against dealership for wrongful dismissal Held: Ct suggests he may have CD claim on changes in responsibilities even though pay remained the same. Regarding mitigation, the question is, if you are terminated w/out just cause, you have a responsibility to try to find replacement income. Is there a duty if constructively dismissed? YES – duty applies equally to CD and WD.
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Evans v Teamsters Local Union No 31 [2008] SCJ No 20 -
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Facts: Evans dismissed by Union following hiring of new executive. After notice of dismissal, Evans informed Union that he was prepared to accept 24 mos notice of termination, granted through 12 mos continued employment and 12 mos salary in lieu of notice. Union disagreed, Evans was to return to employment to serve out the balance of the 24 mos notice period. Evans refused offer, was terminated. SCC: appeal dismissed – SCC concluded that their was no principled reason to distinguish b/w constructive dismissal and wrongful dismissal in evaluating the duty to mitigate Issue: whether an e‟ee who has been wrongfully dismissed is reqd to mitigate damages by returning to work for the same employer who terminated t he employment contract Since both wrongful dismissal and constructive dismissal were characterized by e-er imposed termination of the employment k w/out cause, there was no reason to distinguish b/w them when evaluating the need to mitigate. Reqmt to pay damages in lieu of notice was subject to the e‟ee making a reasonable effort of mitigate his damages by seeking alternative source of income. Assuming there were no barriers to employment, requiring an e‟ee to mitigate by taking temporary work w/ the dismissing e‟er was consistent w/ the notion that damages were meant to compensate for lack of notice, and not to penalize the e‟er for the dismissal itself Where the e’er offered the e’ee a chance to mitigate damages by returning to work for him, the issue was whether a reasonable person would a ccept such an opportunity . A reasonable person should be expected to do so where the salary offered was the same, working conditions weren‟t substantially different or the work demeaning and where the personal relnships weren‟t acrimonious. Here relnship b/w Evans and Union wasn‟t seriously damaged, terms of employment were the same, tf wasn‟t objectively unreasonable for him to return to mitigate E’er bears the onus of demonstrating both that an e’ee has failed to make reasonable efforts to find work and that work could have been found. Note: Once an e‟ee alleges constructive dismissal, you are essentially into a wrongful dismissal analysis Evans stands for the propositon that the analysis for the damages of breach are the same whether that breach has taken place b/c of a constructive dismissal, or if it’s a straight discharge When cts have claim of constructive dismissal: o 1) det the express (in k) and implied (by statute) terms of employment o 2) det whether the original terms have been breached by the change imposed by the e‟er unilaterally o 3) det whether the breach is a breach to a substantial term (whether the breach is fundamental), if it‟s a fundamental breach, then it gives the e‟ee the right to treat the k as having been terminated by the e‟er
Wronko v Western Inventory Services Ltd 2008 ONCA 327 -
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Facts: appellant (Wronko) worked for respondent for 17 yrs, signed k in Dec 2000 which provided for 2 yrs salary in the event he was terminated (w/out just cause). In Sept 2002, appellant was sent new k which reduced his entitlement on termination from two yrs pay to 30 weeks pay, appellant refused to sign new k and continued to object to the amended termination provision over the next 2 yrs (wrote to e‟er saying he didn‟t accept it). E‟er took the posn that this new provision would come into effect in 2 yrs time. Did so b/c if give a proper amt of advance notice of the change, and the e‟ee continues to work, e‟er has given reasonable notice of the change, and the e‟er has no l iability (a way to reduce liability for unilateral change). Appellants employment w/ respondent ended Sept 2 004 after respondent wrote to appellant advising him that the amended termination provision was now in effect. Appellant understood the employment to be terminated and didn‟t return to work. Sued for wrongful dismissal and wrongful dismissal damages. Appeal allowed (for Wronko): facts don‟t support concl that the appellant (Wronko) ended the employment relnship, respondents clear intention to terminate was evidenced when respondent wrote to appellant (“if you don‟t accept the change to k, we don‟t have a job for you”). Decision to terminate appellent in sept 2004 carried w/ it the consequence that the appellant was entitled to 2 yrs termination pay pursuant to the terms of his existing k. Issues: 1) whether the sept 13 2004 letter sent by Western constituted a termination of the employment relnship by the employer, if so; 2) what, if any, consequences flow from this termination?
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1) western terminated, email was an ultimatum. Reasonable person would read email to be termination . 2) unilateral change to k was provided to the e‟ee w/ reasonable notice. Tf as of sept 2004, e‟ee was bound to accept the change w/out further consequences to the e‟er three options available to an e’ee when an e’er attempts a unilateral amendmt to a fundamental term of a k of employment: 1) e‟ee may accept the change , either expressly or implicitly through apparent acquiescence, in o which case the employment will continue under the altered terms o 2) e‟ee may reject the change and sue for damages if the e‟er persists in treating the relnship as subject to the varied term. This course of action is a “constructive dismissal” o 3) e’ee may make it clear to the e’er that he or she is rejecting the new term. E’er may respond to this by terminating the e’ee w/ proper notice and of fering re-employment on the new terms. If e‟er doesn‟t do this and permits e‟ee to continue to fulfill his job reqmts, e‟ee is entitled to insist on adherance to the terms of the original k. this case falls w/in 3) w/ Wronko‟s response to the attempted change and Western‟s reaction to his o response. Tf wronko entitled to 2 yrs termination pay pursuant to the terms of his existing k. (westerns act of terminating wronko in sept 2004 (the email) constituted a wrongful dismissal that triggered the termination provision in his existing k) note: not a (typical) constructive dismissal case – was given an ultimatum b/c wronko continued to make it clear to the e‟er that he wasn‟t accepting the change, he wasn‟t found to have accepted the change, then ultimately when the e‟er gave the ultimatum: “accept the new k or fired”, they had terminated him w/ the conduct The Employment Contract (Sept 21)
A. The Common Law of Employment and the Verbal Contract (Implied Rights and Obligations in the Employment Relationship)
Concept of implied terms at CL: -
assumed employers dictate most of the terms of the k, tf, cts are skeptical of some of the express terms of the k, eg cts generally loathe to enforce harsh or one sided terms, will use the doctrine of unconscionability to relieve an e‟ee from a harsh or one-sided employment k. also, as a result of the power imbalance, employment k‟s are interpreted consistent w/ the doctrine of contra proferendum. Also, unless the k specifically states otherwise, it is assumed that the employment k is for an indefinite period of time.
key implied terms: -
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1) duty of fidelity aka duty of loyalty, imposed upon e’ees . This encompasses the duty of the e‟ee not to betray the e‟er or abuse their interests. Eg duty of loyalty found to be an implied obligation when the e‟ee is obliged not to disclose trade secrets of past e‟ers. This also governs other confidential information. Duty of loyalty is broader than that, also encompasses a duty to obey the e’ers dir ections. Also requires that an e‟ee perform his or her work to the best of their ability. Note: there is no duty imposed on the e’er vis a vis the e’ee. In her opinion this is a gap . 2) duty to exercise skill and care, duty imposed on the e’ee . This duty is impt and can be relied on if there are core mistakes going to the function of the job but at the end of the day, its quite watered down . When you think abt inefficiency or incompetence now, it s only in exceptional circumstances where poor performance will substantiate a dismissal . 3) duty to pay fair remuneration, duty i mposed on the e’er . If an employment k is silent on wages or salary, then the ct will imply (provided its not a volunteer arrangement (which would have to be very clear)) a fair wage rate. The threshold is reasonable compensation . 4) employer has a duty to provide work, imposed on the e’er . In general, the duty requires that t here is an obligation to provide work, in the following instances: 1) if the e’ee’s salary or remunation is commi ssion based or in any way piece-meal (so that the volume of work affects compensation), or 2) when the e’er makes fundamental change to the work that the e’ee has been doing unilaterally
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5) the duty to ensure a safe workplace, i mposed on e’er . In early days, meant that e‟er was required to take reasonable care that there were no dangers, etc. now this duty is rendered essentially obselete b/c of the very detailed health and safety legislation in ont and other provinces 6) duty to provide reasonable notice of dismissal (this is by far the most impt implied duty, along w/ the duty of loyalty). Every employment k has an implied term that the e‟er will provide the e‟ee w/ reasonable notice prior to the ending of e‟ment, if the dismissal is w/out cause, or the e‟er has to pay the e‟ee for that notice period. E‟er can k out of this, if they address notice of termination w/in the terms of the employment k (but must hit ESA min 8 wks for 20 yr e‟ee). in all CL jurisdictions, the employment can be terminated at any time, for any reason or for no reason. 7) the e’er may terminate the employment relnship for just cause . If e‟er terminates for just cause, they will no longer have obligations to that e‟ee. Note: e‟ers are free to modify any of these implied terms as long as they haven‟t been statutorily imposed through negotiation.
Dismissal For Cause – Summary Dismissal -
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there are two ways an e‟ee can be dismissed: 1) summarily dismissed – dismissed w/ just cause, or 2) the e’ee can be dismissed w/out just cause if dismissed w/ just cause, that e‟ee has no further rights under statute or at CL if e‟ee is terminated w/out just cause, the implied duty (unless there is something specific in the employment k), the e‟ee is entitled to reasonable notice of termination, or pay in lieu of the reasonable notice of termination onus is on the e‟er to prove on a balance of probabilities that just cause existed. E‟er is permitted to rely on ex post facto evidence. Eg terminate e‟ee b/c of allegations of theft at cheese factory, then later find out that e‟ee was also sexually harassing other e‟ees, can rely on both pieces of evidence in the just cause case. Concept of progressive discipline: v hard to move directly from misconduct to dismissal w/out using progressive discipline impt to note that the just cause allegations will be addressed in two ways: 1) substantive standpt: what are the allegations & does it constitute just cause, o 2) from a procedural standpt – how the e‟er goes about the termination. There is a quasi-natural o justice component to the procedural aspect – how can an e‟er be sure that it has just cause to terminate if it hasn‟t conducted a reasonable investigation into the matter & given e‟ee chance to explain? One event can constitute just cause: e‟ee assaulted other e‟ee, sexual harassment, theft Just cause can also be based on many incidents. In these cases the procedure is v impt.
McKinley v BC Tel [2001] 2 SCR 161 [Dishonesty] -
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Facts: Respondent said Appellant had been dishonest abt his medical condition and trtments available, alleged it had just cause for termination based on dishonesty. Held (at SCC): The appeal should be allowed (for the e‟ee). Although there may not have been a full disclosure of all material facts by the e‟ee concerning his treatment and medication, an analysis of the record as a whole leads to the conclusion that the appellant didn’t engage in dishonest conduct of a degree incompatible w/ his employment relnship , tf just cause warranting dismissal not proven. Whether an e‟er is justified in dismissing an e‟ee on the grounds of dishonesty is a question that requires an assessment of the context of the alleged misconduct. The test is whether the e’ee’s dishonesty gave rise to a breakdown in the employment relnshp. (could say just cause for dismissal exists where the dishonesty violates an essential condition of t he employment k, breaches the faith inherent to the work relnship (this is the duty of loyalty reference – breaches the duty of loyalty), or is fundamentally or directly inconsistent w/ the e‟ee‟s obligations to his or her e‟er (this is another way of saying breaches the duty of loyalty)) For the test, must det: 1) whether the evidence established the e‟ee‟s deceitful conduct on BoP; and o 2) if so, whether the nature and degree of the dishonesty warranted dismissal (2 is for jury to det, o is question of fact, must strike balance b/w severity of an e‟ee‟s misconduct and the sanction imposed – where theft, misappropriation or serious fraud found, the decisions support cause exists)
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Other reasons just cause could be found: -
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Just cause could be found w/ insubordination. An act of insubordination can constitute dismissal for cause if it constitutes a repudiation of the employment k . e‟ee has to have willfully disobeyed an unambiguous and unequivocal directive necessary to the fulfillment of t he e‟ers objectives. Directive has to be certain, reasonable, lawful. cts have found that insubordination exists in response to a failure to adhere to safety rules, if don’t follow an order to terminate another e’ee, failure to adhere to a specific protocol associated w/ doing your job. Conflict of interest: eg cheese factory makes special goats cheese, you start making goats cheese using their recipe (are diverging from the e‟ers interests). Incompetence (hard to sustain) Need 4 elements: o 1) established reasonable objective standards (expectations that the e‟ee must meet must be clear and reasonable); o 2) the e‟ee failed to meet the stds in 1); o 3) the e‟ee was warned that they weren‟t meeting the stds, and if they continued not meet the stds, their position would be in jeopardy; o 4) there must have been reasonable time afforded to the e‟ee to correct the deficiency or to meet the stds. Breach of an e’ers policy : For a breach of an e’ers rule or policy to constitute just cause , the e‟ee must be aware of the rule, the rule has to be reasonable, and the consequences of its breach have to be so severe that it fundamentally breaches the employment k . eg: retail client, std provision says that the e‟ee won‟t take their merchandise w/out paying for it. T ermination for someone who has taken stuff would be on the basis of theft as well as a breach of the policy. Eg: smoking i n the cheese shop, if the e‟ee does it once, the first strike doesn‟t necessarily mean that the e‟ee will be terminated. The penalty for the breach of the rule has to be reasonable and objectively proportionate to the seriousness of the misconduct. Dishonesty eg. McKinley, falsified expense reports, falsifying reports to clients to deceive, dishonesty abt qualifications at the time of hiring. Theft and fraud: has to be serious enough to meet test Sexual harassment **There is no such thing as “near cause” – just have just cause and no cause (eg: if poor performance, discipline e‟ee, then follow steps above to try to get to just cause) There is a duty at CL to warn: the CL has evolved to an approach where the e‟er has to warn the e‟ee that his or her job is in jeopardy and give the e‟ee an opportunity to correct their deficiencies If the e‟er condones a certain level of conduct, it then can‟t turn around and terminate on the basis of that conduct. Condonation is always going to be a question of fact, of establishing that the e‟er had knowledge of the things that were going on.
Kelly v Linamar Corp [2005] OJ No 4899 (SCJ) -
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Facts: K worked for L for 14 yrs, in Jan 2002, K arrested & charged w/ possession of child pornography. K was dismissed Jan 24, 2002. K brought action for damages for wrongful dismissal, e‟er alleged just cause. issue: when, if at all, an e‟er can prove just cause when terminating an e‟ee who has been charged w/, but not yet convicted of , a crime of moral turpitude, one which most members of the public would find to be repulsive and reprehensible, allegedly committed on his own time, off company premises by permitting himself to be placed in the position where he would be charged w/ possession of child pornography, which fact became almost immediately known to his management peers, co-workers and ppl who reported to him, and which ultimately became known to the general public when identity of e‟er was disclosed, Kelly has failed to discharge the duty he has to his e’er . E‟er had good reputation in community, which it protects, and e‟er is entitled to take reasonable steps t o protect such a reputation and the termination of Kelly was just such a step. The e’er has demonstrated just cause on more than BoP. P‟s claim for damages for wrongful dismissal is dismissed. Just cause was upheld. This case demonstrates the analysis that a ct is willing to take for misconduct outside of work . Note: would the cts reaction have been the same if the charge had been assault? (she doesn‟t so been) Note: this decision wasn‟t made lightly, but they had a duty to ensure his conduct didn‟t adversely impact work with general public.
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Poliquin v Devon Canada Corporation , 2009 ABCA 216 -
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Facts: Poliquin was employed by Devon, P was terminated on November 22, 2006. P brought action seeking damages for wrongful dismissal. Devon said P was di smissed for cause b/c P accepted free landscaping services at his personal residence from D suppliers in violat ion of D‟s Code of Conduct and used D‟s computer equipment and Internet access to view an d transmit pornographic and racist material in violation of the Code of Conduct. E‟ee had had one prior warning. Chambers Judge: concluded that the proportionality of D‟s disciplinary action in response to P‟s misconduct was a matter that required a trial. D now appeals that decision. CA: Chambers judge erred in the way he applied the contextual approach prescribed in McKinley P‟s actions were serious. E‟ees are expected to provide loyal and faithful service to e‟er and intensity of that obligation increases w/ the degree of responsibility attached to the e‟ee‟s posn – P was a sr supervisor P‟s solicitation and receipt of landscaping services in breach of the Code of Conduct constitutes a violation of an essential provision off his employment k, and is fundamentally inconsistent w/ his obligations to Devon, tf it amounts to the type of misconduct which in and of itself justifies dismissal for cause . Doesn‟t matter that P received many of the pornographic and racist emails, must consider this in context w/ the fact that as a sr supervisor he had certain obligations to set an appropriate std of behaviour. Emails were frequent, occurred over a year, P never asked the ppl sending them t o stop. Emails w ere sent to address containing Devon‟s name, tf potl to harm D‟s reputation. Also irrelevant that none of the e‟ee‟s complained, especially in light of the fact that a sr supervisor was sending the emails. Ct is entitled to take into account the misconduct cumulatively to det whether an e‟ee‟s dismissal was justified. Doesn‟t matter whether misconduct is similar or not. Held: there is no genuine issue of material fact requiring trial . It is plain and obvious that P‟s wrongful dismissal action can‟t succeed. Appeal is allowed and P‟s wrongful dismissal action is summarily dismissed. Held that just cause did exist. Note: case sends a strong message that breaches of policy will not be taken lightly. If the e’ees conduct is egregious and breaches policy, then its justified that an e’er will find that the there is just cause .
Common Law Reasonable Notice of Dismissal
Bardal v Globe & Mail Ltd (1960) 24 DLR (2d) 140 (HCJ) -
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Facts: P hired indefinitely, could be terminated by reasonable notice. Alleging wrongful dismissal Issue: what should be implied as reasonable notice in the circumstances of the k in question? Bardal factors: there is no catalogue at to what is reasonable notice in a particular class of cases. The reasonableness of the notice must be decided w/ reference to each particular case, having regard to: o the character of the employment, the length of service of the servant, o the age of the servant and o the availability of similar employment, having regard to the experience, training and o qualifications of the servant. Analysis is going to the question of how long is it reasonable until the e‟ee finds alternate employment
Cronk v Canadian General Insurance [1995] OJ No 2751 (Ont CA) [Weight of character of e‟ment] -
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Facts: P was employed as clerk by predecessor of D from April 1958 – April 1971 when she resigned to raise family, but cont‟d to work pt time in the e‟ers business. Was rehired by D i n March 1977 in full time posn of assistant underwriter (clerical). In 1993, P was terminated (offered a package of 9 mos notice). P brought action for wrongful dismissal, seeking damages based on notice period of 20 mos. Motions judge rejected D‟s submission that a calculation of the P‟s length of service should take into account only that period following her return to work in 1977 – v likely that ct is going to require you to consider the entire length of service (unless its explicit that prior service won‟t be considered in the k). Couldn‟t find a principled reason why that length of notice period should be reserved for more sr e‟ees. Motions judge granted judgement for P based on notice period of 20 mos (was overturned). D appealed. Held (at CA): appeal was allowed
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No error was made by motions judge in the calculation of the P‟s period of employment – period of notice should take into account the e’ee’s total service . Motions judge erred in departing from the principle that clerical workers are generally entitled to a shorter period of notice than sr management or specialized e’ee’s who occupy a high rank in the organization (b/c its harder to find similar alternative employment) – ct found that weakening this principle could weaken the e‟ers ability to predict the appropriate notice. In calculating notice period, have to balance the Bardal factors . While the character of the P‟s employment restricted her to the level of a clerical, non-managerial e‟ee, her age and lengthy faithful service properly qualified her for the maximum notice period in her category. Appropriate notice period was 12 mos. Issue: what weight should be given to the character of an e’ee’s occupation in setting the period of compensation to which the e‟ee is entitled when he or she is dismissed w/out cause? Purpose of reasonable notice is to give the e‟ee and opportunity to find other employment Dissent in part: Bardal approach is the correct approach, but t he application of these factors doesn‟t require that a clerical e‟ee automatically be placed in a category that has a lower range of notice than executive e‟ee‟s. This is placing undue emphasis on character of e‟ment. Should be more flexible (flexibility good). Note: For managerial e‟ees, traditionally, character of employment was given more weight Note: By this pt, a “rule of thumb” was starting to develop – 1 mos reasonable notice/yr of service Note: hasn‟t been specifically overturned but has been side stepped by future cts and decisions th
Minott v O’S hanter Development (1999), 168 DLR (4 ) 270 (OCA) -
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Facts: P worked for D for 11 yrs, after dispute, P took 2 days off w/out permission, got suspension, was fired when he didn‟t come back to work on day after suspension. P sued D for damages for WD. Held (at CA): appeal dismissed, P was wrongfully dismissed, might have been confused as to when his two day suspension started & given his work history, his refusal to report for work didn’t give D cause. Although the trial judge erred in principle in calculating the period of reasonable notice, her damage award based on 13 mos notice wasn’t unreasonable and was w/in the acceptable range Misconduct wasn‟t serious enough to justify dismissal for cause. Dismissal decn shouldn‟t be taken lightly. Have to be flexible w/ Bardal factors, factors aren’t exclusive , depending on case, may consider others Rule of thumb: 1 month of damages for every yr worked, w/ a upper limit (not strictly enforced) of 12 mos. Cronk implicitly rejects rule of thumb approach. Imposition of arbitrary 12 mos ceiling for all nonmanagerial e‟ee‟s detracts from the flexibility of the B ardal test and restricts the abilit y of cts to take account of all factors relevant to each case and of changing social and economic conditions. Note: here trial judge used the “rule of thumb” then grosses it up for M‟s personal circumstances = 13 mos Minott stands for the proposition that the ct says that there is no rule of thumb . Rule of thumb undermines flexibility that an e‟ee is entitled to when determining the appropriate notice period. Also this case stands for the fact that the bardal factors aren‟t exclusive, there could be other factors considered. Says that it may be appropriate to apply upper limits for particular classes of e‟ees (? – may not be?)
Bramble v Medis Health and Pharmaceutical Services (1999), 214 NBR (2d) 111 (CA) -
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Facts: appeal by D, Medis, from an award of damages to its e‟ee‟s for dismissal w/out cause. M argued that notice periods didn‟t reflect menial status of the e‟ee‟s jobs. E‟ee‟s were labourers in non -management and non-supervisory clerical posns. Trial judge found b/w 13-24 mos notice. One e‟ee had higher education. E‟ee w/ higher education was diagnosed w/ MS after termination, notice period based in pt on this (got 16). E‟ee‟s brought action for breach by M of its obligation to provide them w/ reasonable notice of termination. Held (at CA): appeal allowed in pt, notice period of e‟ee w/ higher education dec to 13 mos, med condition irrel. Other notice periods set by trial judge were reasonable (note that most (all?) were above 12 mos). **large pt of judgement challenges Bardal factors, esp proposition that jr e‟ee‟s have an easier ti me finding suitable alternate employment (challenges character of employment factor from Bardal) w/ working notice, ultimate issue: did the e‟er provide e‟ee a reasonable opportunity to find alt e‟ment? Tf weight given to working notice period will vary dep on quality of opportunity it gives e‟ee to seek alt posn. Here no weight was attached to working notice period Ratio: determined all to be 13 mos. Shorter notice periods on basis of posns approp in some cases but not bright line rule. Relevance of each factor det case by case. Primary objective of notice is to provide the e’ee w/ an opportunity to seek alt e’ment – not all Bardal factors will always be engaged.
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Lowndes v Summit Ford Sales Ltd [2006] 47 CCEL (3d) 198 -
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Facts: appeal from WD action, trial judge held respondent entitled to 30 mos notice of termination + 4 mos notice based on Wallace. Respondent worked for appellants car dealership for 28 yrs, at end was GM of dealership and director of at least one of t he appellants. Appellants offered severance package equal to 8.5 mos notice paid over 24 mos, respondent received payments for 21 mos until di spute arose. (HELD) CA: Although reasonable notice of termination must be det on case-specific basis, there is no upper cap, but generally only exceptional circumstances support base notice period a bove 24 mos. Trial judge failed to consider whether respondent had demonstrated exceptional circu mstances warranting a base notice period over 24 mos. This isn’t supported in this case, reduce base to 24 mos . CA didn‟t interfere w/ 4 mos inc in notice period per Wallace damages, tf total notice period was 28 mos Case is here for the proposition that the ct concluded in this case that there is an upper limit . Ct has confirmed that the CL ceiling for reasonable notice, barring exceptional circumstances, is 24 mos notice. Obviously this is saved for v long term e‟ees, but its likely that beyond this, reasonable notice not available.
Love v Acuity Investment Management Inc . 2011 ONCA 130 (CanLII) -
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Facts: on May 3 2005 appellant was dismissed w/out cause or notice, had worked for 2.53 yrs, was pt owner of the company. Appellant sued respondent for damages for WD. Trial: found appellant was dismissed w/out cause, was awarded 5 mos pay in lieu of notice. Appellant appeals notice period award. CA: allow the appeal concerning reasonable notice, substitute period of 9 mos . Trial judge put too much weight on the short length of service – e‟ee was a sr exec and pt owner Shouldn‟t matter that he didn‟t supervise others in this case Trial judge didn‟t consider Bardal factor of availability of o ther employment, b/c of his high annual salary & fact that he was pt owner, would be hard to find something similar, tf entitled to longer notice period This case stands for proposition that short service e’ee doesn’t necessarily mean short notice period .
A. The Common Law of Employment and the Written Employment Contract -
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Cts keep in mind that w/ k‟s of employment, e‟ees are in a v vulnerable position. Cts tend to interpret provisions in a way that is v narrow, placing lots of onus on e‟er, and always keeping fairness in mind. And second, look to the public policy behind these decisions. Same concepts apply w/ e‟ment k‟s: need offer , acceptance, consideration, but are applied in a diff context Duress: a breach of k that comes w/ attempt to enforce a k, eg sign new k right now or terminated for cause Power imbalance: places the person in a posn t o put undue influence on them Unconsionability: gives the power to the ct to refuse to enforce the k that is just so implausible to enforce (even though its not illegal), would be contrary to the public morality to enforce the k Test for unconsciounability: need o 1) an unequal bargaining power arising from ignorance, need, distress of the unequal party, o 2) the stronger party uses that power, o 3) the agreement reached is so substantially unfair to the unequal party, or so divergent to o the community stds of commercial morality, so much so that it needs to be set aside Just b/c e‟ees are vulnerable, this isn‟t enough to meet the first step, need to pt to something else. o Also along w/ fact that agreement is unfair, need to show the other party used it to their advantage
Variation to K: E‟ee must accept e‟ers attempt to vary the K either explicitly or implicitly. Can‟t unilaterally make a change and then force e‟ee to either accept it or quit. Proper course suggested is to terminate K by proper notice and to offer e‟ment on new terms. If e‟ee refuses to accept and e‟er persists, e‟ee may treat this as breach and sue for damages, or continue e‟ment and insist on original terms
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Principles of Interpretation of Employment Contracts
Nardocchio v CIBC , (1979), 41 NSR (2d) 26 (SCTD) -
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Facts: P was terminated w/ 3 mos pay in lieu of notice as written in k, worked at D bank from Oct 1966 – July 1978, had worked for D company for approx 1 year in the past before the 1966 -1978 period. P seeks damages for WD. D claims P‟s employment was terminated in accordance w/ an existing employment k. Terms of dismissal in k not injurious to public good (not unconscionable): reasonable & fair to a new e’ee Term is harsh, results from unequal bargaining power: terms of notice not unfair when k signed, may have become unfair as time went on & e‟ee became more experienced (hidden substratum agmt), but for principle of ineq of bargaining power, the principle wouldn‟t be applicable at time of execution of agreemt. Harshness: don’t think the terms of notice are reasonable and fair in the case of an e’ee who has given 12 yrs of service – what was fair in the early pt of employment might not be fair when she has developed new skills and experience. Concl reached by e’er wasn’t justified, treatment of P harsh P claims she didn‟t know what was in the k, didn‟t know what she was signing or understand it – no meeting of the minds. This shows that if you want to rely on these types of k‟s, have to v clearly bring these terms to the e‟ees attn (they could have done this under the substratum agmt too – how?) Concl: 3 mos notice provision is harsh term, unenforceable, reasonable notice in the sitn would be one year. Note: Even if k is presently lawful, but will eventually be in breach, cts won‟t enforce it, for public policy reasons, want to discourage ppl from entering into these types of agreements If k not enforceable, then fall back to CL reasonable notice (greater than ESA)
Note: CLC came into force after her termination, and would have applied to state those employed over 10 yrs couldn‟t be dismissed w/out just cause Francis v CIBC , [1994] OJ No 2657 (ONCA) -
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Facts: Francis got verbal offer, started working, then after g ot k, k eliminated his notice. Francis signed k. here k wasn’t enforceable b/c there was no new consideration . The first k (verbal) had an implied term of reasonable notice. Tf by signing the new k, was giving up his right to reasonable notice the reqmt by the bank of one months notice up to a max of 3 mos notice, irrespective of the length of e‟ment, is a significant modification of the implied term of reasonable notice & no new consideration here: the employment agreement was never referred to by the bank during the course of the P‟s employment, at the time of his various promotions and reviews, at t he time of his suspension from employment, or at the time of his termination. Tf the written k wasn’t binding on the P . in cases such as this, e‟ers are able to incorporate the terms of a std employment agreement into the original k of employment by saying in their offer of employment that the offer is conditional upon the prospective employee agreeing to accept the terms of the e‟ers std form of agreement, include copy w/ the offer letter. Note: Continued employment is NOT consideration. Tf they could have said, here are stock options, if want them, sign k. but ct said second k was void, tf left w/ implied term of CL reasonable notice.
Rasanen v Lisle-Metrix Ltd , [2002] O.J. No. 291 (SCJ) [Changed Substratum] [Demotion ≠ Δ‟d Substratum] -
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Facts: P brings action for damages for WD. P was hired April 8, 1985. The P and Mr. Medland negotiated terms of employment, incl term of one mos notice of termination of employment to max of 6 mos, except for dismissal w/ cause. P said he “reluctantly” agreed to notice provision b/c l iked other terms. P claims duties changed over time, as did pay, etc. P was terminated Jan 31, 1994 w/ 6 mos working notice. P claims the written termination provision in k limiting reasonable notice no longer prevailed at time of dismissal. Changed substratum doctrine: where, despite the presence of a clearly specified alternative to reasonable notice, the contractual notice period has been determined not to prevail, arises where over t he course of the period of employment, virtually all the impt terms of the agreement change, but the written k is never altered – disappearance of the whole of the substratum of the k (usually occurs b/c of significant promotion, not demotion – when promoted, terms get better, salary, benefits, severance. Tf cts say that when entering into new k, if haven‟t agreed to severance, then its reasonable CL notice based on sr posn. Tf since it‟s a demotion, not prepared to rewrite the notice period. If 6 mos was fair when at level A, then still fair at demoted level. Is this completely fair? – length of service inc, tf this ignores this (Jeff thinks this isn‟t right)
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Where an e’ee has been demoted or deprived of other entitlements, agmt must be based on a breach, not the changed substratum doctrine K of employment is a relational k that evolves over time. Incremental changes in the terms of employment are unexceptional and unsurprising. It can‟t be said that the substratum of an employment k is removed by anything short of fundamental changes. Here the changes were small and inconsequential, except for change in bonus structure, which isn‟t fundamental act to remove substratum of the k. no basis for claim. Held: There has been no breach of any fundamental term of the k and the k continued to govern the relnship throughout. (E‟ee didn‟t deem the changes to be a breach at the time, he condoned them). No substratum change here – changes small and incremental. Termination clause was found to be binding.
Substratu m: where virtu ally al l i mpt terms of K change, but wr itten K is never altered .
Schmidt v AMEC Earth & Environmental Ltd [2004] BCJ No. 1571 (SC) – [SUBSTRATUM FOUND] -
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Facts: S employed by D‟s till Sept 6, 2003. D‟s trying to rely on e‟ment k dated May 25, 1987 to limit amt of severance. P says agreemt has no application to the e‟ment arrangement, tf entitled to reasonable notice. Held: the agreement is no longer applicable (k was valid when signed), substratum disappeared Significant changes in employment can render an employment k unenforceable by the time of termination. The substratum of the employment k entered into at the time of hiring may have disappeared, or it may be implied that the k couldn‟t have been intended to apply to the posn ultimately occupied at termination Schmidt‟s position changed dramatically from the time he signed the agreement until he was terminated. From 1987 – 2003, the employer never made mention of the agreement. This case is different from Rasanen b/c here the changes in Schmidt‟s positions were neither small nor inconsequential – he received significant promotions w/ i ncreased responsibility. D‟s should have advised P that they intended to rely upon the termination provision set out in the Agreement when substantial changes in his emplo yment occurred – needed to bring it to his attn when they promoted him. This would have allowed him to consider the matter and negotiate the terms. If the D‟s wanted to rely on the provisions, t here should have been a ratification of the provisions as the nature of Schmidt‟s employment changed – or could have sent a notice saying that the original terms applied and provide attachment w/ it (if don‟t bring it to their attn enough, ct could find that there is no meeting of the minds). Or could give them increased severance, if e‟ee isn‟t prepared to accept it, then as per the terms of the old k, the old severance will apply. Ultimately is abt unfairness. Note: Was terminated when on vacation in the phillipines over the phone (this is a critical fact, offends ct) Substratum: each time he is promoted, in essence he has entered into a new k. When enter into a new k, then if don‟t agree otherwise, reasonable notice will be implied into k. substratum means that the underpinnings of the original k have been so eroded that they don‟t apply anymore. Has concept of consideration buried in it: old k gone, new k there, but no new consideration. Ct said that each of the promotions was a fundamental change original k didn‟t contemplate changes to his posn – nothing said the original k cont‟d to apply in promotion
Julie’s Beauty Shoppe v MacDonald , (1977), 37 NSR (2d) 565 (Co.Ct.) [Undue Influence] -
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Ratio: K wasn’t enforceable b/c there was no ad idem b/w the parties over wages, k left this out. (take case w/ grain of salt, ct trying to relieve e’ee, was forced to consent or would be fired. Inequitable) Facts: D entered into employment w/ P on Nov 20, 1973, was no written agreement at this time, oral agreement she would work at an hourly rate of 80 cents which would be inc periodically w/ min wage incs. In 1974 got written k halfway through training, k wasn‟t explained, basically sign it or e‟ment terminates. Concluded that Nov 1973 Agreement was not a binding k but an agreement to make an agreement. 1974 k: doesn’t include anything abt wages or salary , tf finds k isn‟t binding Undue influence: e‟er thrusted k upon D midway through training, sign or leave, ineq of bargaining power K’s that may be rescinded for undue influence fall into two categories: 1) those where there is no special relnship b/w the parties; 2) those where a special relnship exists In 1) undue influence must be proved as a fact and in 2) its presumed to exist o Here we have the special relnship of e‟er, e‟ee and she must consent to the bargain or be o terminated when nearly half her training has been co mpleted. The principles of equity and justice can‟t allow such a k to stand – judgement for D.
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Wronko v Western Inventory Services Ltd , supra -
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Facts: Wronko worked for Western for 17 yrs, original k had 2 yrs salary in event of termination, was sent new k w/ amended provision of 30 weeks, Wronko continued to object to the new provision, at end of 24 mos of cont‟d objection, e‟er says provision is now i n effect, Wronko treated it as constructive dismissal CA: appeal allowed, was a unilateral change, tf was constructively dismissed and is entitled to the 24 mos Hill v Peter Gorman Ltd : mere continuance by an e‟ee in e‟ment doesn‟t a mt in law to an acceptance by an e‟ee of a unilateral variation of his k. E‟ee is entitled to insist on the e‟er‟s adherence to the terms of t he k (e‟er could have terminated e‟ee‟s k & offered e‟ment on the new terms). In Hill didn‟t do that, was fatal. In this case, the e‟ee made it clear he didn‟t accept the new term, e‟er permitted the e‟ee to d ischarge his obligations under the original k, tf unless proper notice of termination is given, the e‟er is regarded as acquiescing to the e‟ee‟s posn. Since western didn‟t advise Wronko that his refusal to accept the new k would result in termination, and that re-employment would be offered on the new terms (here termination provision in first k would be triggered), instead it accepted that there would be no new agreement and e‟ee‟s employment continued on the existing terms, tf acquiescing to e‟ee‟s posn. Tf consequence of this is that e‟ee was entitled to 2 yrs termination pay pursuant to the terms of first k. westerns act of terminating wronko constituted wrongful dismissal that triggered the termination provision in the first k. Note: Case is inconsistent w/ CIBC decision What could the e‟er have done? Could have given him notice of the termination, tf not changing the k, are terminating him, then given him a new k w/ the new provision. BUT actually couldn‟t have done this b/c: they couldn‟t give him notice of termination, they had to give him a lump sum, tf they had no ability to do this. BUT, despite this having no application in this case, it has a more global problem, person could condone the change by silence. Wronko wasn‟t silent. Prob w/ this case is that it creates an issue for the e‟er who wants to change everyone‟s bonus plan, so e‟er tries to do it, but 10 ppl object, what ct is saying is to fire these ppl, then put the new k in front of them. Other prob is that it sort of extinguishes the concept that you can make changes by notice. **concept that an e‟er is making a fundamental change, look for distinction b/c wrongful dismissal/constructive?** distinction: he had 24 mos to get ready for this change, this seems reasonable. They could have terminated hi m in 24 mos, but can‟t say in 24 mos we are changing the term. Tf this case elims reasonable notice of a change . This is an artificial posn that forces e’ers to take extreme measures – would have to terminate everyone potentially if wanted to change something. Offer of new employment would be fresh consideration. Also puts e‟er in higher power i mbalance posn: says to other e‟ees that “this is what happens when they say no” – get terminated.
Contractual Notice of Termination/Severance Packages
Machtinger v HOJ Industries, [1992] 1 SCR 846 -
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Ratio: a termination clause that violates the ESA will be unenforceable. Facts: Mach had 2 k‟s w/ respondent, second k was for indefinite period, had 0 wks notice period; k b/w respondent & Lefebvre had 2 wks notice period. At termination got 4 wks (was ESA min in this case). In this case, is an attempt to k out of the ESA mins CL principle of termination only on reasonable notice is a presumption, rebuttable if k of e‟ment clearly specifies some other notice period, whether expressly or impliedly Min periods set in Act don’t operate to displace the presumption at CL of reasonable notice . If period of notice reqd by CL is longer than Act, CL will prevail. Ss.3 and 4 of Act make any attempt to k out of the min employment stds of the Act “null and void” – tf portions of the k‟s at issue here are null and void. In absence of valid k, have to imply a term that the e‟ee was entitled to reasonable notice. If an employment k fails to comply w/ the min stat notice provisions, then the presumption of reasonable notice will not have been rebutted, e‟ee can only be dismissed w/out cause if given reasonable notice of termination (note: cts don‟t like ESA min k‟s, may uphold for jr, but not sr likely e‟ee) HOJ clearly breached the ESA. When came time to dispute notice period, HOJ said that given that the e‟ees were prepared to sign a k that was lower than the ESA, then appropriate notice is the ESA. SCC said no, if you attempt to breach the ESA, then k is void, can‟t refer to that k in any way, even to demonstrate what the parties intentions were. Public policy agmt: they aren‟t going to encourage you to enter into illegal k‟s when the worse you are going to get is the min ESA. If enter into illegal k, get CL reasonable notice
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Veer v Dover Corporation (Canada) , (1999), 120 OAC 394 (ONCA) -
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Ratio: if provision in stock option agreement extinguishes e’ees benefit upon dismissal cts will assume to be the case absent language to the contrary and the end of lawful dismissal is the end of the reasonable notice period Facts: veer dismissed in 1993 w/out cause (although cause was alleged) after working t here for 40 yrs, was 61yrs old, and a sr exec, awarded 24 mos w/ damages from loss of stock options at trial. E‟er appeals arguing loss of stock options should be calc at date of judgement not when notice period expired Reasoning: Both types of termination contemplated in the option provision are lawful types of termination. Absent express language providing for it, can‟t conclude that the parties intended that an unlawful termination would trigger the end of the e‟ee‟s option rights. The agreement shouldn‟t be presumed to have provided for unlawful triggering events. The parties must be taken to have intended that the triggering actions would comply w/ the law in the absence of clear language to the contrary. There is no such language in these stock option agreements. Tf Veer had the 24 mos of reasonable notice reqd for his termination to exercise the rights under the stock option agreements . Appeal dismissed Note: Almost all companies that give out stock options are under option plans, which tend to have termination provisions in them. All have similar clause: as at the date we term your employment, all shares that are unvested become void, and you have 90 days to exercise any vested options. This clause is potentially problematic from the cts perspective in that it doesn’t have reasonable notice associated w/ it. Tf cts are saying that if you are going to take away that right, the date of termination, must mean “lawful termination”, which is the end of the notice period .
Roden v Toronto Humane Society , (2005), 259 DLR (4th) 89 (ONCA) [Repudiation – refusal to carry out instructns] **IMPT b/c at end says can k for as little as ESA, this might be in law in Ont now** -
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Facts: Roden worked from 1999-2002, as shelter manager, Mottram from 2000-2002. In 2002, roden wrote to Sheridan, director of animal services that she wasn‟t in favour of placing stray animals into the society‟s adoption program. Were told to carry out the instructions. Appellants refused . After june 7 2002 mtg, roden didn‟t return to work until j une 25 2002 except for june 13. Roden had mtg, was asked whether she was prepared to carry out her job fns as a sked, roden said no. in webster‟s opinion, t his demonstrated that she had withdrawn her services, was handed a termination letter. Same w/ mottram. Both appellants were provided w/ 2 weeks termination pay. Commenced WD actions. Trial: det both were dismissed for cause. TEST for Repudiation: Whether an e‟er is justified in terminating the employment relnship based on repudiation requires an assessment of the context of the e‟ees refusal, i n order to determine whether the e‟ee refused to perform an essential condition of the employment k or whether the refusal to perform job responsibilities was directly incompatible w/ his or her obligations to the employer Distinction b/w dismissal for misconduct and termination for repudiation: when an e’er claims to have dismissed an e’ee for cause based on serious misconduct, the e’er must pt to conduct that took place prior to dismissal. It is then for the ct to determine whether the conduct was sufficiently serious so as to constitute cause. Repudiation takes place when an e’ee refuses to perform an essential pt of his or her job duties in the futur e . In this sitn, e’er can accept the repudiation and treat the e’ment relationship as terminated b/c the parties no longer agree on the fundamental terms of the k. Held: Appellants refusal to do their job duties amounted to repudiation. CA agreed were dismissed for cause. Since appellants cause e‟ment relnship to end, they aren‟t entitled to damages for WD. Note: Where an e‟ee has a reasonable excuse for refusing to perfo rm, refusal may not constitute repudiation Note: This is a case where there was cause. Impt is that at the end of the case, the ct says, what would the person have got if there wasn’t c ause? K says ESA std, and ct said it was ok. Tf no lower cts would likely enforce it, but CA would. Tf Roden might be the law in Ont now, but don’t know b/c it’s a bit older. (Can K for as little as ESA – is allowed)
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Terms and Conditions of Employment – Handbooks, Manuals, etc. -
Written k‟s aren‟t always found in e‟ment agreements. Other docs (handbooks, etc) can form pt of the k Note: USA has diff concept – have an “at will” concept, can terminate at any point, don‟t have to give notice. Tf in USA, v impt when putting things on paper, v impt to state that its not an employment k. If the terms w/in the ancillary documents are favourable to the e‟ee, then generally cts are going to say the manual forms pt of the k. If unfavourable ct more hesitant to find the provision forms pt of the e‟ment k. will only find that its pt of it if a certain number of steps occur: o 1) terms are specifically brought to the attn of the e’ee, 2) The e’ee consents to the terms and the consent is documented (have to be able to prove that o you did that, and that the e‟ee has agreed to those terms). o 3) The e’ee receives/gives consideration ( creates some benefit to one or some trouble, prejudice or inconvenience to the other – continuation of e‟ment isn‟t enough). An e‟er can‟t unilaterally attach to an existing agreement a term diminishing an existing e‟ee right. When all eged consideration merely constitutes matters reasonably incidental to nature of e‟ment (vacation, pension), they may not suffice as new consideration. Consideration could mean giving book at time of e‟ment offer, or if later, then w/ stock options, etc. 4) if you want the e’ee to read it, then make it readable , needs to be reasonable to assume that o they read it, signing it isn‟t enough. This is true of the type of terms that we have been discussing, eg reasonable notice. But there are o other terms in the booklets like no smoking, see Dawson
ASM Corrosion Control Ltd v George , [2002] AJ No. 904 (Prov. Ct.) -
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Facts: action by e‟er against ex-e‟ee for reimbursement of expenses incurred by the e‟er for course. Clause in manual issued by e‟er reqd reimbursement when e‟ee chose to leave the e‟ment w/in 12 mos after course. Issues: 1) was the reimbursement provision in manual term of e‟ment? If not, action must be dismissed. 2) if was a term, was the provision unconscionable? If not unconscionable, then P‟s claim should be allowed Held: reimbursement provision was intended and known to be a term of the employment k reqd by the P and accepted by the D, including the 1996 amendment. Provision was clear and unambiguous, P ensured e’ees knew abt it, D worked there for almost 5 yrs after amendment, provision is pt of k . Rationale for unconscionability agmt: inequality of bargaining posn, an unconscientious use b y the e‟er of the upper hand for advantage, and a term of the em ployment k which is substantially unfair to the e‟ee in the weaker posn. Here D not in a weaker posn, P gained no advantage, not unfair or unconscionable P‟s claim is allowed Note: Jeff thinks that this case would be decided differently today – the clause was fair originally, but clause was changed (even though clause was upheld), not fair that if the e‟ee leaves 25 yrs later he has to pay back money for course. Could draft it fairly, eg leave after 1 yr, pay 100%, 2 yrs, pay 50%, etc. Ct has said that yes this can form pt of the k (problematic pt of case is amendment)
Dawson v FAG Bearings Ltd , [2008] OJ No 34305 (SCJ) -
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Facts: Dawson employed by FAG from 1991 – 2005 was terminated for cause – unsatisfactory work performance. Dawson claims no just cause and seeks damages for WD. After commencing employment , Dawson given copy of E‟ee Handbook w/ Prog Discipline Pol, applies to unsatisfactory work performance. Held: Did discipline policy form pt of employment k? – Dawson got verbal offer of employment. No suggestion that the offer contained some or all of the terms set out in Employee Handbook. Intro in Handbook also lends itself to the fact that its not pt of the k, says it contains general rules and guidelines which is inconsistent w/ it being contractual, and it will be revised from time to time meaning e’ees would have diff k’s. – tf Handbook not pt of employment k. Policy was administered inconsistently: not fair. Policy can‟t be used as a tool to discharge an e‟ee w/out reasonable notice or payment in lieu. At min, if want to rely on it, must be followed correctly: wasn‟t here. W/ long term e‟ees as here, the misconduct must be more serious to justify dismissal w/out cause. Tf was wrongfully terminated, entitled to 10 mos notice. Note: case goes to fairness - besides the inconsistency, the policy wasn‟t brought to attn well enough – but doesn‟t seem right that someone would have to approve policy – it isn‟t a fundamental enough change.
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Frustration of the Employment Contract – What is it and when does it apply? -
Frustration in e‟ment context is sitn where e‟er can treat the k as at an end w/out obligation - not after ONA Occurs when something happens and the e‟ee can‟t carry out their ob ligations anymore. The e‟er also must play no role in it. It must strike at the root/core of the k . this is a v difficult concept for e‟ers to evoke. Comes up in sitns of incarceration – this can be a frustrating event, but the question is how long? If in jail for 3 wks, likely not a frustrating event, really has to go to issue of FACTORS: Nature of posn, o Length of service prior to imprisonment, and o The ability of the e’er to get by w/out e’ee. o
Hare v Murphy Brothers Ltd , [1974] 3 All ER 940 (CA) -
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Facts: applicant employed by same e‟er for 25yrs. March 1971 e‟ee involved in brawl, charged w/ unlawful wounding, not connected w/ work, took place away from it. Applicant found guilty, sentenced to 12 mos imprisonment. E‟ee said that if he got sent to jail, his posn would be reconsidered. After release, asked to return, shortly thereafter, e‟er said they had no place for him. E‟ee claimed unfair dismissal. Held: passing of a sentence of 12 mos imprisonment had automatically terminated his k of e‟ment as from the date of the sentence since the sentence had rendered it impossible for the applicant to perform his pt of his k of e’ment having regard to the length of sentence, the posn the applicant held and the imptce to the e‟ers of getting someone else to do his job. W/ these factors, if it then appears the job has been effectively brought to an end, the k is frustrated. Tf k of e‟ment had been terminated in june 1971. Appeal dismissed. Denning: The sentence of 12 mos imprisonment frustrated the k of e‟ment. Even though it was “self induced”. Tf k of e‟ment brought automatically to an end when sentence was imposed.
Demuynck v Agentis Information Services Inc. [2003] BCJ No 113 (SC) -
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Facts: P was injured in slip and fall accident unrelated to e’ment in 1996 . Ceased working as a result of injuries and received STD and then LTD. Was terminated 13 yrs later – had been totally disabled for 66 wks, absent for 88. Offered 12 mos severance. P rejected and commenced wrongful dismissal action seeking 16-18 mos. D claimed K frustrated b/c not able to carry out duties in foreseeable future. Ratio: Dismissed P’s action. Ct must consider w hether incapacity is of such a nature that future performance would be impossible. Evidence here doesn’t a mt to permanent disability but is of sufficient duration to make further performance either impossible or radically different from that contemplated. K has been frustrated. Applying the Marshall range (of 18-24 mos disability as the limit of “temporary absence”), w/out the benefit of hindsight, puts the e‟ees disability well beyond the “temp absence” range i nto the “perm” categ. E‟ee exhausted her short and long term disability e ntitlements (the equivalent of sick pa y), didn‟t return to work for a yr after doing so, then worked only pt time for less than a yr. she provided no evidence she was working or capable of working at the time of trial, almost 5yrs later. Although evidence doesn‟t amount to a “permanent” in the sense of a lifelong disability, it is of sufficient duration, to make the “further performance” of the e‟ee‟s obligations under the k of e‟ment either “impossible” or “radically different” from those contemplated by the “agreed terms o f e‟ment”, according to Marshall test. Tf e‟ers plea of frustration of k supported, e‟ees claim must be dismissed. Marshall test is the factors they will look at, factors are: o A) The terms of the k, including sick pay provisions (b/c if e‟er provided e‟ee w/ benefits that o contemplated them being away from work for long period of time, how can k be frustrated?) o B) The nature of the e’ment. – eg if there are lots of ppl in that posn vs 1 C) The period of past e’ment o D) Nature of the illness or injury, how long it has already cont’d for, prospects of recovery o E) How long the e’ment was likely to last in the absence of sickness o Note: Jeff advises clients to not even think abt concept of frustration unless 3 yrs (of disability?)
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Ulnooweg Development Group Inc. v Wilmot [2007] NSJ No 172 (NSCA) -
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Facts: Wilmot and Ulnooweg entered into oral k of e‟ment in 1991. Wilmot was terminated in 2003 (almost 12 yrs). In 2002, Wilmot began to experience emotional difficulties resulting in long absences from work, missed 138 days from may 2002 – june, 2003. W sued, claiming she had been terminated w/out cause and was entitled to damages for wrongful dismissal. Issue: Was the e‟ment k frustrated? From Dartmouth Ferry, SCC, an e‟er can‟t dismiss an e‟ee for temporary absence due to illness. It is only when the absence extends to illness beyond the temporary time frame that a dismissal is legally justified. To determine whether the disability is permanent or temporary, the trial judge must make that evaluation on objective stds and not rely on the injured persons‟ subjective belief, although the latter is a factor to be considered. The Marshall analysis (above): the circumstances must be exami ned to determine whether “further performance of his obligations in the future would either be impossible or would be a thing radically different from that undertak en by him and agreed to be accepted by the e‟er under the agreed terms of his e‟ment?” Are the Δ‟d circumstances so fundamental to strike at the root of the relnshp? Here illness wasn’t sufficiently long term or permanent to constitute just cause To resist a claim for breach of k on account of wrongful dismissal by raising a defence of frustration, the defence must be evaluated at the time of the termination . It is then that the e‟er concl that the worker‟s illness was so enduring as to defeat the object of the e‟ment k ( Demuynck diff?). Question: does the incapacity prevent the worker from fulfilling the essential elements of the posn for a period of time sufficient to say, in a practical or business sense, that the object of their e‟ment relnship is frustrated? Projected disability of approx one year here didn’t constitute a “permanent” disability and 1yr isn’t outside the acceptable range of time for an absence in the circumstances of this case. K not frustrated. Appeal dismissed
ONA v Mount Sinai Hospital (2005), 255 DLR (4th) 195 (OCA) -
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Facts: nurse terminated b/c of frustration (disab), impt pt was the denial of severance pay under the ESA. Issue: constitutionality of s.58(5)(c) of the ESA (Ont) which creates exception to e‟er‟s obligation to pay severance pay to e‟ees whose k‟s of e‟ment frustrated due to illness or injury (under s15 of charter) The fact that e‟ees receive severance isn‟t consistent w/ providing compensation t o e‟ees who remain in the workforce, its consistent w/ compensating e‟ees for their past contributions to the e‟ers business during their yrs of service. By virtue of s58(5)(c) e‟ees whose e‟ment has been frustrated by disability aren‟t compensated for their yrs of service and investment in t he e‟ers business. This devalues their contribution and treats their yrs of service as less worthy t han others. S.1: Agmt that limiting e‟ees entitlement to severance pay only to sitns where it is appropriate is pressing & substantial legislative objective: the objective of the sev pay provisions is to “ease the financial needs of those who lose their jobs but who are likely to find alternative e‟ment albeit at a reduced compensation”. Ct doesn‟t think this is a pressing & substantial objective, but thinks A‟s fail at rat‟l connection Rational connection: no rational connection b/w the objective of granting severance pay to e‟ees who will rejoin the workforce and the law which denies severance pay to e‟ees whose k‟s have been frustrated due to illness or injury – reflects a stereotype abt the adaptability, industry and commitment to the workforce of persons w/ disabilities severe and enduring enough to frustrate their e‟ment. This generalization perpetuates and promotes the view that disabled individuals are less capable and less worthy of recognition and value as human beings and as members of Cdn society Section isn‟t minimally impairing. S.58(5)(c) can‟t be justified as a reasonable limit on s.15 Class notes: Agmt was that if can‟t work, and notice is abt giving you time to find more work, then shouldn‟t get notice. BUT union said that severance pay is different than notice pay. Severance isn‟t abt l ooking for other work, it‟s the equivalent of a statutory gold watch, is a backwards looking concept, is the thank you for all your yrs of service, tf shouldn‟t make a difference that she i s disabled at the time the k ends. Argued that this infringes s.15 of charter. Was successful at CA. In response, act was revised to say that in the event of frustration, e‟ee is entit led to both notice and severance, but if its truly a frustrating event, then not entitled to CL notice. Note: e‟ers now owe statutory entitlements of severance and notice upon frustration of k
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Topic: Restraint of Trade Doctrine in the E’ment Context An Introduction to Restrictive Covenants and Litigation on Restrictive Covenants: Most recent word on this topic is SCC‟s decision in Shafron. Collins is an earlier case.
Restrictive covenants found in: 1) agreements of purchase and sale; Most common is to find restrictive covenants in agreements of purchase and sale (first type of o document they are found in) which effectively prevents t he vendor from competing w/ the purchaser after the sale. o Impt that cts enforce this kind of clause b/c if there is no commercial way to guarantee that the person selling the business won‟t then go and compete w/ the person buying the business. Guarantees that the buyer will have the goodwill of the business after. 2) e’ment k’s But in e’ment k’s (second type of document they are found i n) the restrictive covenant merely o prevents the e‟ee from competing w/ the e‟er after. Have conflicts b/w CL concept of freedom of k – want parties to be able to commercially deal o w/ each other w/out interference, which is in serious conflict w/ the public policy thinking against restraint in trade. In the business context, the freedom of k is won out by the reasoning of public policy, but in the e’ment context, the restraint of trade wins. Why? Restraint of trade in e’ment context prevents the person from earning a livelihood . They are deemed prima facie unenforceable unless they are reasonable and necessary (between the parties and public at large) (Shafron added a new aspect to this: have to also be unambiguous). o The onus is on the party seeking to enforce the restrictive covenant to justify it as reasonable and necessary. The more onerous the clause, the higher the burden on t he party trying to enforce it. Only enforceable if its reasonable in the context and not injurious to the public. See in both Collins and Shafron that the ct says that the first thing you have to do is distinguish b/w the sale of a business and the e‟ment k. There is a much greater ability to k w/ the sale of a business. Also critical for sale of business is that there is no perceived inequality of bargaining. In the e‟ment context, first principles assume that there is an inequality in bargaining. In the e‟ment context, the e‟ee is paid for their services and the e‟er receives those services. Nowhere in that eqn do we need a restrictive covenant for that to work. Tf in e‟ment context, person seeking to enforce the restrictive covenant is going to try to look like a sale of business – threshold question is whether it’s a sale of business (both Shafron and Collins started as a sale of business – both owned the business first, sold it, then stayed as e‟ees – tf try to argue that its not e‟ment context, but is a lingering aspect of the sale of business) 3 types of covenants: 1) Non-disclosure: confidentiality – confidentiality is one of those terms which is usually placed in the agreement but doesn‟t have to be b/c it‟s a CL implied term. Often its in b/c e‟er wants to define what a trade secret and can define it more broadly than CL, and also to bring it to the e‟ees attn. 2) Non-compete: don‟t go and work for a competing business 3) Non-solicitation: a few categories 1) soliciting clients; 2) soliciting e‟ees Two trade areas worthy of protection are 1) trade secrets, and 2) client relations Cts are far more willing to enforce non-solicit and confidentiality than non-compete. Collins and Shafron set out several tests to determine when these clauses will be enforced: 1) Must show that the clause protects legit proprietary interests (necessary) 2) Must show reasonableness in terms of temporal length, spatial area covered, nature of activities prohibited 3) show what consideration is being offered 4) overall fairness/blanket clause: how much will it impair the e‟ees ability to earn a living? 5) are the terms clear and certain? There can be no ambiguity on impt terms. 6) is it reasonable in the publics‟ case ( Multari – will they have access to dentists?) 7) the shorter the timing, the more likely to be enforced, hesitant to enforce anything beyond 2 yrs. 8) look at the industry, the time to re-establish connections, until confidential info goes stale?
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Restrictive covenants and indep k‟ers: if there is restrictive covenant language in a k for an indep k‟er it will potentially inc the likelihood of a finding of e‟ment. If a true indep k‟er relnship, a ct may be more willing to enforce that covenant b/c of a perceived equality in bargaining power. Still not likely to have a non-compete clause enforced unless you can meet the basic tenants of necessity and reasonableness, far more likely to enforce confidentiality and non-solicit of customers. J.G. Collins Insurance Agencies Ltd v Elsley Estate , [1978] 2 SCR 916 [Earlier case, most recent word is Shafron] issue: whether a non-comp contained in a k of e‟ment is valid Elsley started own insurance company after working for JG Coll ins, had non-comp clause in k, question was whether Elsley solicited the business of former clients (approx 200 former clients switched to Elsley after he moved) A covenant in restraint of trade is enforceable only if it is reasonable b/w the parties and w/ reference to the public interest The validity of a restrictive covenant can be determined only upon an overall assessment, of the clause, the agreement w/in which it is found, and all the surrounding circumstances distinction b/w restrictive covenant in an agreement for the sale of a business and o ne in a k of e‟ment: a person seeking to sell his business might find himself w/ an unsaleable commodity if denied o the right to assure the purchaser that he, the vendor, wouldn‟t later enter into co mpetition. W/ k of e’ment, where an imbalance of bargaining po wer may lead to oppression and a denial of o the right of the e‟ee to exploit, following termination of e‟ment, in the public interest and in his own interest, knowledge and skills obt ained during e‟ment. Blanket restraints on trade in e‟ment context generally unenforceable, but protection has been afforded w/ respect to trade secrets, confidential info, etc. this case, doesn‟t fit into category of eit her sale or e‟ment, but together. But the agreement sued upon is the e‟ment agreement, tf the restrictive covenant must stand up to the more rigorous tests applied in the e‟er e‟ee context. In assessing the reasonableness of the clause w/ reference to the interests of the parties, several questions must be asked (Test – for non-compete clause ): 1) did Collins have a proprietary interest entitled to protection? (necessity test) This can only be o determined by considering the nature of the business and the nature and character of the e‟ment. Yes o 2) were the temporal or spatial features (or nature of the activities prohibit ed) of the clause too broad? (overall fairness – it must minimally impair the e‟ee‟s ability to earn a living. Are the terms clear and certain – no ambiguity on certain terms. If not clear, burden not met). Here: they aren‟t open to successful challenge – not too broad o 3) whether the covenant is unenforceable as being against competitio n generally, and not limited to proscribing solicitation of clients of the former e‟er (can‟t be contrary to the public interest) onus on e’er Whether a restriction is reasonably reqd for the protection of the covenantee can only be decided by considering the nature of the covenantee‟s business and the nat ure and character of the e‟ment. An e‟er couldn‟t have a proprietary interest in ppl who weren‟t actual or potl customers. But in exceptional cases (of which this i s one), the nature of the e‟ment may justify a covenant prohibiting an e‟ee not only from soliciting customers, but also from establishing his own business or working for others so as to be likely to appropriate the e‟ers trade connection through his acquaintance w/ the e ‟ers customers. This may indeed by the only effective covenant to protect the proprietary interest of t he e‟er. Simple non-solicitation clause wouldn‟t suffice (customers came w/out being solicited). Held: the covenant is no wider than reasonably reqd in order to afford adequate protection to Collins. Is reasonable and necessary. Non-solicit wouldn’t have protected After the party relying on the restrictiv e covenant has established its reasonableness as b/w the parties, the onus of proving that it is contrary to the public interest lies on the party attacking it. Public interest: unless it can be said that any and every restraint upon competition is bad, don‟t think that enforcement of the clause can be considered inimical to the public interest. Lots of insurance agents in Niagara Falls, there was nothing to suggest that the ppl in the area would suffer through the loss, for a limited period, of the services of Elsley. Clause is valid and enforceable in accordance w/ its terms.
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Tree Savers International v Savoy , 1992 ABCA [took confid info, owed fiduc duty (breached), no restrictive cov] Ratio: used confid info breaching their k’ual duty to give adequate notice. Was a key e’ee and owed fiduciary duty and breached duty of rendering faithful and loyal service by gathering info during work hours. Breached duty to not solicit customers . Facts: D‟s were e‟ees of one of the P‟s. D‟s gave 2 wks notice, then incorporated the D Trojan, and had Trojan compete w/ the P‟s. There was no restrictive covenant b/w any of the parti es but trial judge found that D‟s Savoy and Deringer stole trade secrets from the P‟s and broke fiduciary duties o wed to them. Both sides appeal. D‟s stole listing of telephone numbers. To have physically removed the list, leaving behind not even a copy, is most charitably described as a breach of some kind of fiduciary duty. D‟s wrongfully took customers from the P. taking of confidential information test from Coco v AN Cl ark : if the circumstances are such that any reasonable man standing in the shoes of the recipient would have realized that upon reasonable grounds the information was being given to him in confidence, then this should suffice to impose upon him the equitable obligation of confidence. In particular, where information of co mmercial or industrial value is given on a business-like basis and w/ some avowed common object in mind, such as a joint venture of the manufacture of articles by one party for the other, I would regard the recipient as carrying a heavy burden if he seeks to repel a contention that he was bound by an obligation of confidence. Trial judge found that there was a duty to keep the info confidential, this is upheld at CA. Towers Perrin et al v Cantin et al , (1999), 46 OR (3d) 180 (SCJ) [**note: would prob be decided diff today**] Facts: signed restrictive cov not to compete or solicit, agreed to confid f or 2 yrs. Resigned and secured 11 former clients as competitor. Argued cov too broad and uncertain and tf unenforceable. Ratio: injunction granted restraining them from soliciting and performing services for clients of former e’er. Covenant was reasonable and not a blanket restriction on freedom to compete. No power imbalance, clear it was for 2 yrs and w/ any client w/ who P had relnship . Cantin was consultant in P and C (property and casualty insurance) office, joined in 1989. In 199 9 Cantin resigned and joined KPMG‟s Toronto office for purpose of creating, managing and developing P and C practice in TO. At time of resignation Cantin was shareholder, bylaws contained two covenants, Towers is alleging that Cantin breached two covenants, or alternatively she breached her fiduciary duty. Based on the evidence, the P‟s haven‟t met the onerous std of proof. There was a proprietary interest which the P‟s are entitled to protect (para 43) KPMG was interested in Cantin for t he v reason the P‟s seek to enforce the non-comp: b/c she had valuable information gained while she was a p rincipal and shareholder of Towers, b/c she had gained influence over those clients, and b/c that information and influence could be used to the advantage of KPMG Cantin voluntarily accepted both the privil eges and the obligations entailed in becoming a shareholder which distinguishes this case from others. In t he e‟ee cases, the ct readily assumed that there was an imbalance of bargaining power. Where an imbalance exists, the ct is mindful of the possibility that it leads to oppression and a denial of the right of the e‟ee to exploit the knowledge and skills obtained during e‟ment. This isn‟t a consideration here. Her status as a shareholder was a benefit of her promotion as principal. She chose to aquire shares. In this sitn, no imbalance of bargaining power. The geographic implications of a covenant against competition must be considered in the context in which the P‟s and Cantin operated. Here clients included corporations in NA and Europe. It isn‟t ness to explicitly define it b/c its implicit in the defn of the “clients” w/ whom Cantin is prohibited from competing that the prohibition should extend to the geographic area in which those clients operated. Given the nature of the services rendered by an actuary and t he relnship b/w Cantin and the clients, w/out the prohibition against performing services for such clients even at the unsolicited request of the client, the strength of the covenant against competition would be significantly undermined. P‟s have established that the non-comp is reasonable b/w the parties. After det that the covenant is reasonable b/w the parties (onus on P), onus shifts to D’s to prove that the covenant is contrary to the public interest. To be reasonable in the interests of the public, the restraint must not be injurious to the public . Here there is nothing to suggest that the “clients” would suffer through the loss, for a limited period, of the services of Cantin in the P and C insurance business. When look at this case after Shafron and Staedler , would prob be decided differently (by CA). Know from Staedler that it would be a non-comp b/c it prevents the person from accepting the business, and know from Shafner that the ambiguity would result i t from being enforceable (geographic pt wasn‟t clear).
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Atlantic Business Interiors Ltd v Hipson (2005), NSJ No 33 (CA) Held: appeal is dismissed Facts: When a major customer transferred its business to a competitor which had hired one of its sales reps, the appellant (Atlantic) unsuccessfully sued competitor and salesman. Issues i n this appeal are the appellant‟s claims against the respondent salesman for breach of contract and fiduciary duty Trial judge correctly dismissed appellant‟s claim, found that Atlantic had a legitimate interest in protecting its goodwill interest in the ITI account. However the restrictive covenant in Atlantic’s e’ment k w/ Hipson was so broadly written as to be in restraint of trade, and tf unenforceable . It couldn‟t be written down and he found that the reference it contained to non-solicitation of customers to be unseverable. Reasonableness of the clause: Proprietary interest: Atlantic has a proprietary interest in the nature of goodwill w/ respect o to its trade association w/ ITI as it grew into one of Atlantic’s major customers. o Spatial and temporal limitations, were w/ in the mainland of NS, and for 12 mos: not unreasonable, but a simple non-solicitation clause would have worked in this case. Noncomp clause found to be unenforceable Fiduciary duty: a mere e‟ee will rarely be subjected to the duty of utmost good faith; an upper level exec will rarely escape it Trial judge: concluded that Hipson owed a fiduciary duty not to solicit the ITI account – Hipson didn‟t solicit, tf didn‟t breach duty. Trial judge was correct in det this. Hodgkinson “reasonable expectation” test to determine scope of fiduciary duty: where a weaker or reliant party trusts the stronger party not to use his power and influence against the weaker party, and the stronger party, if acting reasonably, would have known or ought to have known of this reliance, we can say that the stronger party had notice of the encumberance, and tf in using the power has accepted the duty. Although trial judge didn‟t mention the test, his analysis derives from the test. See test para 91. Lyons v Multari (2000), 50 OR (3d) 526 (CA) Facts: Multari worked for Lyons as dentist, k had non-competition clause of 3 yrs, 5 mi. Multari left Lyons in 1995. In 1996 Multari opened new o ffice 3.7 miles away. Trial judge upheld restrictive covenant . Proprietary interest was goodwill, or custom, or business association, which was capable of protection. Whether covenant was overbroad or restricted competition generally: wasn‟t. CA: appeal allowed – didn‟t uphold – non-solicit would have sufficed. CA: agrees w/ trial finding of proprietary interest and agrees it wasn‟t overbroad Is this an “exceptional case where a si mple non-solicitation clause won’t do”? – here the relnship b/w Lyons and Multari was one b/w equals. Lyons treated Multari well during their association. Despite this, this wasn‟t an “exceptional case”: Lyons had no proprietary interest in Windsor dentists who had never referred patients to him before (e‟er can‟t have a proprietary interest in ppl who weren‟t actual or potl customers). Although Multari was treated well, this worked to Lyons benefit too. Third, the role of Multari in Lyons practice was that of a normal associate, it didn‟t come close to the special role Elsley played in the insurance business. Also, non-competition clause not reqd to protect trade secrets, confidential information. Tf conclude that Lyons non-competition clause is unenforceable. Non-solicitation clause would have sufficed. Clause is overly broad, he didn‟t take trade secrets or confid info beyond names of referring dentists of patients he had personally treated. Note: will never enforce a non comp where a non solicit would suffice to protect e‟er w/ this case, ct asked: how many dentists were in this area? If you try to enforce a non-compete clause for a dr in a northern area, going to fail b/c of the public interest in accessing drs. Diff abt this case was that the ct asked: what is it abt this that‟s critical? Were fighting abt clients. The ct said that if the only issue to be protected is customers, then except for the uniqueness of the Collins sitn where ppl will follow, the ct won’t enforce a non-comp where a non-solicitation clause will suffice. Since in Lyons didn‟t have a non-solicit, only had a non-comp, P was unsuccessful. What has been drawn from this case is that cts won‟t enforce a non-comp except for sales ppl. (b/c sales ppl have great relns w/ clients). Porter had same ratio but Lyons is CA. What is problematic from the P‟s perspective is t hat a non-solicit in the real world is v difficult to enforce. B/c when solicit, 1 of 2 things is happening, either the clients are going w/ them, but want to go w/ them and work w/ them, so if the clause is upheld, then the client wouldn‟t be able to go w/ them. V difficult to prove the e‟ees departure caused economic loss. Can hire other e‟ees.
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RBC Dominion Securities Inc v Merrill Lynch Canada , 2008 SCC 54 [manager took most e‟ees (Abella fiduc-lite)] Facts: appellant (RBC), respondent (Merrill Lynch), in a move coordinated by branch manager of RBC, virtually all the investment advisors left RBC and went to Merrill Lynch, leaving only 2 jr investment advisors. No advance notice given to RBC, in weeks preceding e‟ee‟s departure, RBC‟s client records had been copied and transferred to Merrill Lynch. Trial judge said Delamont breached his implied duty of good faith on the fact that he failed to retain the e’ment services of the other investment advisors . SCC, McLachlin C.J.: The pleadings were adequate to support t he award of $1,483,239 against Delamont for loss of profits due to the near-collapse of the RBC office. Delamont b reached his managerial duty SCC agreed w/ trial judge that Delamont‟s liability for such a breach isn‟t restricted to losses associated w/ the period of notice he ought to have given The k of e‟ment ends when either the e‟er or the e‟ee terminates the e‟ment relnship, although residual duties may remain. An e‟ee terminating his or her e‟ment may be liable for failure to give reasonable notice and for breach of specific residual duties. Subject to these duties, the e‟ee is free to compete against the former e‟er. SCC, Abella (dissenting in part) (would dismiss the appeal): disagrees that Delamont breached an implied contractual duty of good faith in the manner of his departure. The majority says that in the absence of a non-competition clause or fiduciary relnship, Delamont had the legal right to leave RBC and to compete w/ his former e‟er. The finding that he nonetheless owed an elevated duty of good faith to RBC seems to me to be inconsistent w/ this legal conclusion. Although Delamonts discussion w/ co-workers ultimately influenced them into following him, the other investors acted voluntarily in deciding to leave. In this industry, competitive recruiting and sudden changes of e‟ee allegiance are commonplace. In this culture a damage award based on 5yrs is unreasonable. Also, award for lost profits has effect of punishing Delamont for leaving, since he was entitled to leave, hard to see how he could be punished. Note: In this case, the branch manager helped coordinate the move. SCC held that this manager wasn’t a fiduciary b/c he really didn’t have any significant power w/in RBC. But he had an obligation of good faith and loyalty, and w/ this would have to persuade the e’ees not to leave . Damages in this case were the lost profit for the breach. Pt of this was based upon the fact that they didn‟t give notice and pt on the breach of good faith and loyalty. Abella dissent: saying that the concept of good faith and loyalty is akin to creating a fiduciary-lite concept which is problematic b/c if he wants to leave, then why should he be obligated to persuade them to stay? Imperial Sheet Metal Ltd et al v Landry and Gray Metal Products Inc, 2007 NBCA 51 Facts: Respondent Landry worked for appellant (Imperial) for 20 yrs, was terminated, obtained e‟ment w/ Gray. Both companies in the same business. Case is abt a former VP of Sales and Marketing who is accused of using confidential pricing info to underbid his former e‟er on sales k‟s w/ the same customers. In e‟ment cases involving the interpretation of a restrictive covenant, the motion judge would approach the question of injunctive relief by looking at: o 1) the relative strength of the P’s case; 2) the matter of irreparable harm to the P; o 3) the matter of irreparable harm to the D; and o 4) any other relevant factors. o As a general rule, the std of serious issue continues to apply to e’ment law cases, save in three instances: 1) those cases involving a question of law, such as the interpretation of a contractual provision; 2) cases in which there has been oral cross-examination; and 3) cases where it is reasonable to predict that the request for injunctive relief will become moot by the time the matter goes to trial. If any one of these exceptions is applicable, the elevated std of prima facie case may be applied. That std translates into an inquiry as to the relative strength o f the P‟s case and isn‟t to be treated as a threshold test. Irreparable harm : refers to the nature of the harm and not its magnitude. What has to be established is “permanent” loss of market share before the agmt of irreparable harm becomes credible. Test: is a finding of irreparable harm to the P a condition precedent to the granting of injunctive relief and hence, a threshold test? If yes, then: what is the threshold test: “serious issue”, “prima facie case”, “BoP” or “conclusive proof”? motion judge & parties held that it wasn‟t a threshold test. Tf whether the case for irreparable harm to the P is weak or strong, still necessary to go to third step in analysis .
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HL Staebler Company Limited v Allan , 2008 ONCA 576 [“conduct business” in restrictive cov = non comp] Ratio: not a hybrid clause. Having something saying you can’t accept business is far more akin to a non-comp than non-solicit and should be held to stricter test of necessity and reasonableness and found clause failed b/c it didn’t have a geographic scope in it, it was overbroad and unenforceable going beyond what was necessary to protect proprietary interest. Facts: Allan and Kienapple (e‟ees) worked for HL, sold insurance to businesses. In 2003, e‟ees r esigned and started working for KWC in similar capacity. K‟s w/ HL had restrictive covenant (ct held it was a noncomp) that said that for 2 yrs after termination of e‟ment, e‟ees were not to “conduct business w/ any clients or customers of HL that were handled or serviced by you at the date of your termination”. HL sued for breach of covenant. Trial: found restrictive covenant to be enforceable. CA - Appeal allowed – covenant unenforceable E‟ees solicited clients In this case, no trade secrets or confidential info involved, its HL‟s “trade connections” that warrant protection Restrictive covenant at issue is a non-competition clause, not a hybrid . There is no evidence of “exceptional” circumstances that would justify a non-competition clause nor do they speak to the reasonableness of the limits of the restrictive covenant. Proprietary interest : HL had a proprietary interest in its book of business and it was entitled to protect that asset. No appeal is taken from this finding Temporal and spatial limits: 2 yr time, but no geographic limit. Also no limit on the type of work which the e‟ees are prohibited from doing. To preclude business or any sort goes well beyond protecting HL‟s “trade connections”. Tf disagrees w/ the trial j udge who found that the broad prohibition against “doing business” didn‟t taint the reasonableness of the restrictive covenant. Al so unreasonable b/c it‟s a blanket noncompetition clause. Tf overbroad and unenforceable. NOTE: Its one thing to say that the person can‟t go after the business, but to say that they can‟t accept the business, is limiting that clients choice. CA held that this was a non-comp, if they are going to go beyond simply not soliciting, then this is a non-comp and as a result, its held to the much stricter test. Most significant thing being that not only does the non-solicit have to have a temporal limitation, but also has to have a geographic limitation. Here said it was a non-comp w/ no geographic scope , tf failed. Shafron v KRG Insurance Brokers (Western) Inc , 2009 SCC 6 [Most recent word on restraint of trade topic] question: whether in an e‟ment k, the doctrine of severance may be invoked to resolve an ambiguous term in a restrictive covenant or render an unreasonable restriction in the covenant reasonable. Term “Metropolitan City of Vancouver” in restrictive covenant in Shafron‟s k w/ KRG has no legally defined meaning and is ambiguous. Severance when permitted takes 2 forms: o “notional” severance involves reading down a k‟ual provision to make it legal and enforceable (eg sometimes put in several non-comps of varying degrees) Notional severance isn‟t an appropriate mechanism to cure a defective restrictive covenant – b/c to do this would be to alter the terms of the agreement b/w the parties. “ blue pencil” severance consists of removing pt of the k ‟ual provision (crossing things out, eg the o offending pt of the clause) Blue-pencil severance may only be resorted t o in rare cases where the pt being removed is o trivial (non-controversial language – however, the only pts that are going to get to the cts are the controversial pts, tf b/c of this, blue-pencil will never occur), and not pt of the main purport of the restrictive covenant – tf ct refused to remove metropol b/c it would change the nature of the agreement. These circumstances aren‟t present in this case, tf the ambiguity can‟t be cured by severing the word “Metropolitan”. The general rule must be that a restrictive covenant in an e‟ment k found to be ambiguous or unreasonable in its terms will be void and unenforceable. SCC held that the CA hadn‟t read down the clause – did worse by actually substituting their own words If Hodge case is abt preventing parties from drafting k‟s that are illegal knowing that the worst o they will end up w/ is the ESA, then here, don‟t want to encourage e‟ers from drafting unenforceable non-comps b/c they know the worst they will get is a lesser non-comp. Tf ct says that if you don‟t draft it reasonably to start, they won‟t fix it at all.
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2nd issue: can rectification be invoked to resolve the ambiguity? – no, there is no indication that the parties agreed on something and then mistakenly included something else in the written k. the doctrine of rectification can‟t be invoked to rewrite the bargain b/w the parties. Shafron wasn‟t a fiduciary and he didn‟t abuse confidential info belo nging to KRG A restrictive covenant is prima facie unenforceable unless it is shown to be reasonable. If the covenant is ambiguous, in the sense that what is prohibited isn‟t clear as to activity, time, or geography, it isn‟t possible to demonstrate that it is reasonable. Tf an ambiguous restrictive covenant is by defn, prima facie unreasonable and unenforceable. Only if the ambiguity can be resolved is it then possible to determine whether the unambiguous restrictive covenant is reasonable. Necessary reqmts for rectification from Perf ormance In dustri es L td v Sylvan L ake Golf and Tennis Club , para 53: 1) the existence and content of the inconsistent prior oral agreement; 2) that the party seeking to uphold the terms of the written agreement knew or ought to have known abt the lack of correspondence b/w the written document and the oral agreeme nt, in circumstances amounting to fraud or the equivalent of fraud; and 3) “the precise form” in which the written instrument can be made to express the prior intention. here no prior oral agreement shown, no rectification . Note: Focus in this case is on the focus of clarity and ambiguity Non-comp clause signed said he would stay out of the insurance business for 3 yrs in the metropolitan city of Vancouver. However metropolitan city of van doesn’t exist. Lower ct said it was ambiguous and struck it down. CA held it was ambigious but the parties must have meant something beyond the city of van, and said what they meant, substituted it in, said it was enforceable on that basis, said he was in breach, and awarded damages. SCC said it was ambiguous and tf the clause must fail . In repeating the tests in Collins, SCC emphasized, this issue (other than whether something was a sale of a business/for e‟ment), that for the determination o f reasonableness, the geographic and temporal scope must be unambiguous – if you don‟t get the clause described correctly, it fails. Ambiguous clause is prima facie unenforceable.
Notional severance: reading down clause in a way to make it legal. Prevented for 4 yrs anywhere in world, if not enforceable then 2 yrs in NA, or, blue pencil severance, strike out offending language. Other - Fiduciaries: -
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In Canada, certain e‟ees are fiduciaries: meaning that during and after the e‟ment, the e‟ee owns a duty to the e‟er to not put their interest ahead of the e‟er. This duty is one that is made up of good faith, loyalty and trust. Seminal case for this is decision in O’Mally (quoted in Aquafor ) In O’Mally, 2 individuals were mapping an area, w/ the purposes of selling the map to the company. At the v last moment, they went into business for themselves and sold the map themselves to the countries. In this case, ct held they were fiduciaries, owed a fiduc duty to former e’er and breached this by taking that opportunity away from e’er . Also probably could have said they breached confid info too (didn‟t go this route in this case), but they were the only ones that know abt the map, so really its confid info belonging to the company. As the law has developed, fiduciaries are normally sr officers or directors who has access to company info regarding long term business plans or sr customer relns. There is some case law that stands for the proposition that you can be a fiduciary for a specific purpose – eg may not be a sr e‟ee, but if you are the only person that deals w/ the Loblaws account, and noone else, then you are a fiduciary for that purpose. Tf Elsley, if there hadn‟t been a non-comp, would have been a fiduciary. A fiduciary can compete w/ a former e‟er, just can‟t do so unfairly. Tf can‟t use confid info like in O’Malley, and can‟t solicit clients, or e‟ees. Case law, used to stand for the proposition that you could solicit clients as long as you didn‟t use client lists, as if info is in head, can use it, but modern case law has said that you can‟t solicit clients regardless of whether you have memorized the client list. There is even some case law that suggests that a fiduciary wouldn‟t be able to accept business from clients, but majority of case law suggests that you can. See Aquafor below.
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Aquafor v Whyte, Dainty and Calder , 2010 ONSC 2733 [Fiduciary & Don‟t have to wait till left e‟er to plan] Whyte and Dainty are professional engineers, worked for Aquafor, in 2003, left and started own engineering firm, they didn‟t have a non-competition agreement To determine whether an e’ee is a fiduciary, the cts look at various indicators to see whether the e’ee has discretionary powers or whether the e’er is somehow vulnerable to the actions of the e’ee. – e’ees were fiduciaries. Here there was no breach of fiduciary duty w/ respect to the notice given , nor a breach of the general e‟ee duty to give reasonable notice. Fail ure to give reasonable notice isn‟t it self a breach of fiduciary duty. In planning to establish caldor – did so on own time, didn’t use company resources, etc. mere planning isn’t a breach of fiduciary duty, w ould be unrealistic to have them wait until leaving to plan Although a fiduciary isn‟t precluded from competing w/ hi s e‟er after he leaves, he must not do so unfairly. Soliciting clients is considered unfair as it prevents the e‟er from solidifying its relnships w/ those clients or otherwise dealing w/ the fiduciary‟s departure. A fid uciary will tf be restricted from soliciting the e‟er‟s clients for a reasonable time after departure. Concluded that he wasn‟t satisfied that t he Aquafor clients that ended up at Calder did so as a result of Mr. Whyte and Dainty soliciting their work. Tf ct said that the fact that clients followed them didn‟t matter in the absence of a non-comp. basic rule is that if the person is a fiduciary, will likely enforce a non-comp as long as its reasonable Basic rule is that if the person is a fiduciary, will likely enforce a non-comp as long as its reasonable . Note, this is the same ratio as in Atlantic v Hipson decision Litigation on Restrictive Covenants and Injunctions To get interim injunction, must meet RJR test (below). Used to be that the permanent loss of clients constituted irreparable harm. b/c how do you calculate over a lifetime what a client would be worth. The most significant change is in this area of the law, which is why most of these cases aren’t done in an i njunctive setting. Tf if can‟t demonstrate irreparable harm, can‟t get injunction, and are left w/ litigation. First eg of this is Nesbitt v Lange . Nesbitt said they were going to suffer perm loss b/c clients will leave, but judge said that the question of whether its going to be a perm market loss isn‟t the proper question, the question is whether the harm is irreparable to the company. Judge found that the assets that were managed by the departing e‟ees were 2.6% of the tota l assets, tf while this isn‟t insignificant and may represent a permanent loss, it wasn’t irreparable. Also said that investment business is highly regulated, firms keep d etailed records, tf its not irreparable, can figure out what the damages are. Said that balance of convenience also favours the D‟s b/c the bank would go on w/out the e‟ees. In BMO v Ord , this same idea is adopted. Always difficult to prove irreparable harm b/c e‟ees will move around. -
RJR MacDonald Inc. v Canada (AG), [1994] 1 SCR 311 Metropolitan Stores 3-stage test to apply when considering application for a stay or an interl injunction. o 1) is there a serious question to be tried? o 2) if you don’t receive remedy will you suffer irreparable harm? o 3) balance of convenience between public interest and litigant – who will get hurt the most? (the balance of convenience must favour the applicant). For 1), standard is whether the applicant can satisfy the court that “the claim isn‟t frivolous or vexatious; in other words, that there is a serious question to be tried”. Threshold for “serious question to be tried” is low . Once 1) satisfied, go to 2 and 3. For 1) A prolonged examination on the merits is not necessary. 2 exceptns. 1) when the result of the interlocutory motion will in effect amt to a final determination of the action. In this case, a more extensive review on the merits must be undertaken, then when the 2nd and 3rd stages of the test are considered and applied the anticipated result on the merits should be borne in mind. 2) when the question of constitutionality presents itself as a simple question of law alone. Here don‟t have to consider the 2nd and 3rd tests since the existence of irreparable harm o r the location of the balance of convenience are irrelevant inasmuch as the constitutional i ssue is finally determined and a stay is unnecessary. For 2), only issue is whether a refusal to grant relief could so adversely affect the applicants‟ o wn interests that the harm couldn‟t be remedied if the eventual decision on the merits doesn‟t accord w/ the result of the interlocutory application. “irreparable” refers to the nature of the harm, rather t han its magnitude. For 3), this pt is described as “a determination of which of the t wo parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits”.
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Nesbitt Burns Inc. v Lange , 2000, 16 CCEL (3d) 317 (ONSC) Facts: D‟s all employed by P until 2000, when they took up e‟ment w/ Merrill Lynch. When Lange left, the rest of her team went w/ her. Almost immediately, Lange contacted her clients to tell them of her move. Applying RJR test: There is a serious issue to be tried , there is an issue as to whether Lange had such a posn w/in the P that she could be fixed w/ fiduciary duties to the P. Also issue as to whether D‟s had in their possn at any pt, confidential information of the P and whether they used any such information in their contacts w/ clients of the P. Also issue as to whether the manner of contacting clients in which the D‟s engaged is improper solicitation. Irreparable harm : the damage may be occasioned to the P from the alleged activities of the D‟s is capable of being calculated. Also, no doubt that Merrill Lynch has the resources to pay an a ward of damages if one is obtained by the P. Tf damage doesn‟t appear to be irreparable. P hasn‟t satisfied t he necessary reqmt that it will suffer irreparable harm if t he injunction isn‟t granted. Balance of (in)convenience: favours the D‟s Held: P’s motion for an interlocutory injunction is dismissed. see Fiduciary notes above Kohler Canada Co v Porter , 2002 CanLII 49614 (ONSC) [Step 1 of RJR: Strong prima facie case vs serious issue] Facts: Porter was employed by Kohler from 1988 -2002 when he resigned to take job w/ D . Kohler seeks injunction restraining Porter from working for Mansfield on the grounds that this is a breach of his e‟ment agreement w/ Kohler. In 2001, Porter who had never been asked to sign an e‟ment agreement before then, was asked to sign one, it contained confidentiality clause and non-competition clause. Only no-compete clause at issue here. For first pt of RJR test, the higher std of “strong prima facie case” should be ap plied in cases involving the enforcement of e‟ment k‟s in restraint of trade. Note: this is an exception to the general rule of “serious issue to be tried”, which is “when the result of the interlocutory motion will in effect amt to a final determination of the action”. Enforcing the restrictive covenant in t his case would prevent Porter from working in the only field in which he has any experience since university. T he covenant restrains competition for 1 yr, and it would take as least 1 yr for the action to come to trial, tf granting the injunction sought will amt to a final determination of the action. 2nd and 3rd factors in RJR test should also be applied in motions for injunctions to enforce noncompetition clauses. Concludes that the RJR test applies in this case, subject to the heavier onus of strong prima facie case on the first branch. All 3 components of the test are to be applied . Strong prima facie case: non-competition clause is unenforceable – Elsley test not met. Although Kohler had a proprietary right to protect, problem w/ clause is its breadth and the extent to which its unnecessary to protect the legitimate interests of Kohler. 1 yr, but geographic limit is North America. This extends beyond the area in which the e’ee had contact w/ customers of the e’er – too far. Also unenforceable b/c it goes beyond what is necessary to protect the legitimate business interests of Kohler. Non-solicitation clause would have sufficed . Irreparable harm: (note: given finding against Kohler in respect of the strong prima facie case, it isn‟t necessary to deal w/ irreparable harm or balance of convenience, but di d so anyway) if Kohler had been able to establish a strong prima facie case on the merits, test for irreparable harm would have been met Balance of convenience: enforcing the non-competition clause would result in economic harm and emotional distress for Porter and family. Large power imbalance present when Porter presented w/ k after already being employed and was asked to sign i t. Also there wasn‟t any consideration for the k. Kohler large company, amt of damage to them by Porter working for Mansfield small vs a mt of damage to Porter by not being able to work (large). BoC favours Porter. P‟s motion dismissed. BMO Nesbitt Burns Inc v Ord , 2007 CanLII 24673 (ONSC) [Step 1 of RJR: Strong PF case vs serious issue] Facts: In 2007, Ord and Wolpert left BMO to join RBC. Nesbitt seeks order restraining D‟s from directly or indirectly soliciting any of BMO‟s clients b/c D‟s are in breach of k‟ual obligatio ns to BMO. BMO also seeks order restraining D‟s from using confidential information to solicit clients. Where the alleged breach of restrictive covenants (non comp or non solicit) or fiduciary duty are asserted in an attempt to restrict a person‟s ability to engage in their chosen vocation the higher std of strong prima
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facie case should be applied . Where the allegation relates to breach of CL duties regarding use of confidential information to compete, the test is serious issue b/c it involves protection of e’ers rights as opposed to restraint of trade . BMO hasn‟t established a strong prima facie case that Ord owed a fiduciary duty to BMO. Ord wasn‟t involved in the management decisions concerning BMO‟s overall operations. Wasn‟t pt of upper management w/ the kind of sr responsibilities necessary to find that he occupied a fiduciary posn. Despite this, BMO still established there is a serious issue to be tried in respect of Ord‟s alleged breach of the duty of good faith and fidelity (w/ regards to solicitation of clients, failure to give 1 wks notice, and whether Ord used confidential info after resignation). Wolpert (other D): stronger test reqd b/c based on non-solicitation provision. Can‟t conclude that BMO has a strong prima facie case that the non -solicitation provision is enforceable (tf don‟t have to do irreparable harm or balance of convenience tests). But has established serious issue to be tried w/ respect of Wolpert‟s conduct surrounding his resignation from Nesbitt and e‟ment w/ Dominion. Dominion (other D): test to be met is serious issue. Dominion assisted D‟s in contacting clients, serious issue test met. Irreparable harm: easy to quantify the harm, not irreparable in this case . Balance of convenience: tips in favour of the D and not granting the injunction Nesbitts motion dismissed
Imperial Sheet Metal Ltd et al v Landry and Gray Metal Products Inc , 2007 NBCA 51 [key e‟ee test] Appeal dismissed Respondent Landry worked for appellant (Imperial) for 20 yrs, was terminated, obtained e‟ment w/ Gray. Both companies in the same business. Case is abt a former VP of Sales and Marketing who is accused of using confidential pricing info to underbid his former e‟er on sales k‟s w/ the same customers. A former e’ee is entitled to exploit freely the general skills and knowledge acquired as a result of the e’ment relnship, so long as that knowledge is a product of his or her memory and unaided by the e’ers documentation. – not the case anymore (see notes) Under fair competition, there is nothing inherently wrong in a former e‟ee approaching the e‟ees of the former e‟er in the hope of enticing them t o accept e‟ment w/ a competitor, including the former e‟ee who had established a competitive business. This is true so long as the former e‟ee isn‟t seeking to induce his or her former colleagues to breach their e‟ment k‟s. There are 2 approaches to the classification of fiduciary e‟ees: 1) narrower approach - “key” e‟ee test from Canaero. 2) broader approach - “vulnerability” test. Key e’ee test is the only one that is consistent w/ the SCC‟s decision in Canaero. Who is a key e’ee? – one who exerts a great deal of ctrl over the affairs of the e‟er. It is the substance of the relnship that is critical. Key e’ee is: 1) an integral and indispensable component of the management team that is responsible for o guiding the business affairs of the e‟er; 2) necessarily involved in the decision making process; and o 3) tf has broad access to confidential information that if disclosed would significantly impair the o competitive advantages that the former e‟er enjoyed. These e‟ees fall w/in the categories: “top management”, “sr management” or “key management”. Wrongful Dismissal and E’ment Standards Litigation
Dismissal w/out cause: in the absence of labour code, discrimination, H R Code, terminating someone during a pregnancy leave (absence of statutory protections), we have the right to terminate an e‟ee as long as we give reasonable notice (are obligated to do this). But the vast majority of ppl terminated in canada don‟t get reasonable notice, get pay in lieu of. Know this is the case b/c CL implies a term of reasonable notice in every k. also know we can limit this obligation by putting it in the k, and can limit it as much as ESA. If don‟t provide this notice, then expose ourself to an action in wrongful dismissal. Most terminations are w/out notice. This is partly b/c things move v fast in business world, if make decision to terminate someone, don‟t want them to be around for more time, don‟t want the person to continue to have access to the computer systems, confidential info, etc, don‟t trust them anymore. Another reason, is that for larger employers w/ payroll larger than 2.5 million, they have an obligation to provide statutory severance . This is relevant to whether one can give notice is that b/c you
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can’t give stat severance by way of working notice, it must be by way of a cheque. Know that, in accordance w/ the case law, if an e‟er gives a cheque for 24 mos, this includes the statutory severance. But if are given 24 mos working notice, and have 30 yrs experience, are still o wed 6 mos severance. Tf e‟ers want to give some of this money by pay in lieu of. (?) tf since one requires you to put a cheque in ones hand, can‟t give working notice. Stat severance is a diff concept, stat notice is a forward looking concept, is to assist you in looking for o work. Stat sev is a backwards looking concept. Can‟t give the gold watch by way of working notice, can‟t say here is an extra 4 weeks work to thank you, have to give a cheque. There is a case which basically says that if an e‟er gives pay in lieu of, then don‟t have to pay stat sev on top, as long as the cheque is given for more than the pay in lieu of. tf if going to give working notice, have to leave enough money to pay afterwards to satisfy stat sev. Tf most e‟ers won‟t do this. If give someone working notice, severance is calc at the end of their e‟ment, tf if give 2 yrs working notice, then have to give an extra 2 weeks of stat sev. o This is limited to Ontario** need to have a company that has payroll of either 2.5 mill w/in any of the two fiscal yrs prior to the termination. Or take the last 4 weeks of payroll and times it by 13 to get to 2.5 million. The other was is that if a company has fired more than 50 ppl in the last 2 mos (gets triggered upon firing person 51). Is only available for ppl that have more than 5 yrs service, and… So when it working notice still used? Mass closures. Large downsizings. Love v acuity case : quote “the payment in lieu of notice is seen as an attempt to compensate for the e‟ers breach of the k of e‟ment, not as an attempt to comply w/ the implied term of the k. If you pay in lieu of notice and give the person everything they are entitled to, then ok…. For exam, be careful if say that if you give notice or pay in lieu of notice, then ok. Can‟t get a release in exchange for working notice, b/c what if the e‟ee says no and doesn‟t sign the release? Eg sitn is sign release or get 12 mos notice. If e‟ee says no, then owe 12 mos. Then say… Get your stat sev, the fact that you quit during the notice period doesn‟t stop you from getting stat sev. The fact that you mitigated doesn‟t matter. This is another reason why you can‟t give stat sev by way of working notice. Distinction b/w stat sev and notice creates probs To get to the notice period, know that its an extremely contextual exercise. Saw Minott v O’Shanter case, where judge said that they wanted a rule of thumb that says 1 month per yr of service, and then take that number up or down based on the contextual aspects, eg sr e‟ee move up, if lots of available e‟ment, move it down. CA said no, struck this down and said no rule of thumb , b/c its an inflexible rule, doesn‟t consider the unique circumstances of each case, each persons sitn has to be evaluated on its own merits, and other prob w/ rule of thumb was that it overemphasized as a factor, the length of service. Instead the CA adopted a multi factor test that had been said in Bardal. *remember that these are factors that are looked at when there i s no reasonable notice in the k* Since Bardal, there has been a number of other factors the cts will look at. whether the e’ee was lured from different e’ment . This case law developed from the concept that if the e‟ee was lured from secure e‟ment, then is terminated a yr later w/out a notice period in the new k, then by looking at the bardal factors, probably wouldn‟t have a v long notice period. Originally before the Wallace case, this concept was only available until abt 5 yrs of service, then it would fade away. After Wallace, the SCC sort of smashed this, In Wallace, the e’ee had been employed for 17 yrs w/ united GG when term, so when made the agmt that he was lured there, the ct took into account the previous notice period When looking at the concept of luring, note that it‟s a spectrum, can have significant luring, or o insignificant, eg recruiters, etc will be strong. As opposed to one of the e‟ees which called and said that there was a job available and you should apply, isn‟t strong. Also need to be lured from previously secure e‟ment. Can kill a lure in one of two ways to demonstrate that the person wasn’t lured or by demonstrating that the e’ment wasn’t secure . Representations: eg this is e‟ment for life, etc. these kind of representations can have an effect on the notice period. Used to be that up till the decision in Keays that the e‟ees conduct itself can have an effect on the notice period. There is still this impact, but its latent. Previously if the e‟er acted v badly, then would get this much notice, then this much for the e‟er s bad faith – know the notice period has been supplemented. But now, if are a really bad e’er and do something awful, ct won’t say that it impacts the notice period, but ct will award at a higher notice period . Ct will be more likely to award higher costs, etc. but is now more of a latent issue. Used to be that there was a concept that there was a diff in the notice period b/w clerical and management e‟ees. Used to be that if it was a clerical e‟ee, the max notice they could get was 12 mos. This was at a time where the max notice at law that could be gotten was 24 mos (which is still the same today). Reason behind
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this was that there was less sr management jobs then blue collar. Also, there was the concept that there was a greater stigma to be terminated from a management job than non management. This all came to a head in company, where Macpherson J ruled that Cronk who was an e‟ee in her midCronk v Cdn Gen I nsurance 50‟s, clerical posn, high school education, was terminated after 25 yrs, company offered her 9 mos. At trial, Macpherson rejected concept that there should be a distinction b/w clerical and sr management. Got his own stats to show that its not harder for sr management to find jobs. Awarded her the higher notice period of 20 mos. CA was upset w/ fact that he got his own statistical studies so set it aside for that reason. Also said that need to have certainty in the system, but didn’t specifically say that clerical e’ees should get less but this was the effect of the decision. Since then, have seen a slow creeping up of the notice period, may have to do w/ age factor as well. So while its fair to say that there is some gap, its not like it used to be. Eg case: Detomaso v Crown Metal , ONCA 469, e‟ee was an unskilled, 62 yr old e‟ee w/ 33 yrs service, earning hrly wage, ct said 22 mos was right. So compare that to cronk, and can see that much of the barrier is gone. But this is completely contrary to the concept that there is a glass ceiling. Literally is no glass ceiling. Most of the barriers are the amts at issue, if talking abt a 40k salary and extra few mos is small, then v difficult to go to trial. But fair to say that barrier is largely gone. In terms of the upper limit, in Lownes decision (v summit ford), CA said that except in exceptional circumstances, the notice period isn‟t going to be longer than 24 mos. Haven‟t seen a single case since lownes that has gone above 24 (5 yrs later) Love v acuity : sr exec, sr vp, 50 yrs old, w/ 2.53 yrs of service at time of termination, earned approx 633k/yr. trial judge awarded 5 mos notice and emphasized the relatively short service of the e‟er. CA overturned this (which is rare, ct doesn‟t like overturning the notice, tend to show lots of deference to desn related to how much notice), but in this case adopted the multi factor test and found 3 errors in trial judges decision, first they overemphasized short service as a factor, he underemphasized the character of e‟ment, didn‟t take into account how difficult it would be to find a similar job and didn‟t consider the availability of similar e‟ment. Ct substituted 9 mos as the notice period. Not huge diff, impt is fact that you have to take into account all factors. So when looking at notice periods, what are we looking for? – precedents, wrongful dismissal databases where can put the factors in and it will give an avg. Working notice: when talking abt this, means that we are giving the person notice in advance, if they leave during the notice period, then don‟t owe them any more notice subject to any stat sev. Often companies will give a salary continuance, which means that if you get another job, then will pay up 50% of whats left. The 50% encourages you to mitigate, if e‟ee is really good and gets a job that pays the same amt of money, then can get the same money plus the 50%. Often doesn‟t work that way, so have to negotiate something like the 50% only gets triggered if get a job that pays at least 70% of the current salary. Other option is lump sum. If getting pay in lieu, the e‟er has to place the e„ee in the posn he would have been in if they had been given working notice. Can’t continue LTD beyond the term of the notice period. There are lots of insurers out there that say that LTD has to end immediately upon the notice of termination. ESA says that you have to continue everything during the stat notice period – this includes everything. So then insurer will continue, but only for the stat notice per iod. Why? Insurer doesn‟t really care abt the health and dental or life insurance. LTD is a real prob though, b/c are concerned that you will have a nasty accident tripping over the tv. Prob is that the case law says that the e‟er has to provide those benefits, and if the insurer won‟t then if there is an accident, then the e‟er has to step into the shoes of the insurer (good eg is egan v alcatel , where the e‟ee becomes disabled during the notice period), brito case is good eg too, brito case is a case wher e the e‟ee is terminated but immediately a month later finds another job. But the new job didn‟t provide disability benefits. 14 mos into the notice period, brito gets throat cancer and doesn‟t work again. Judge awards 22 mos – this means that the disability occurred during the notice period, if he had been working, he would have stopped working and gone onto disability, and only reason he didn‟t was because he was terminated w/out notice. Tf on the 14th month, don’t owe him the salary anymore, owe him what the disability would have owed until age 65 . When we are looking at w/out notice terminations, its critical to look for things like, what otherwise would have occurred during the notice period that this person is going to miss. Stock options: Can buy stocks, but need to be there on the day they vest. If aren‟t there on the option day, then lose the right. But if the option plan is abt a gold watch plan? case law almost always focuses on the rights that haven‟t vested, or have vested and haven‟t been exercised . tf this means no new options, but unless there is something v explicit in the language, have to allow the e‟ee to vest their options. Can look at the history, if the e‟ee every yr sold their options on the day that they vested, if don‟t have that history, then ct will normally ask what the midpt is b/w right to vest & when you would have sold and take that.
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Mitigation Every award of damages is subject to the obligation to mitigate unless the k says otherwise. This is an implied term of the k. Best way to mitigate damages: find another job. Mitigation is critical b/c the first question you want to ask someone, is what are your job prospects? From defence side : in mitigation, want to see income tax documents to see what you‟ve earned, mitigation documents are usually the most impt documents in a not for cause case. Want to know whether the person has mitigated. As e‟er, the case law says that the e‟er has no obligation to offer the e‟ee outplacement. But if you are going to give them anything other than a lump sum, then offering outplacement makes it more likely that they will trigger the 50% clause. If e‟ee refuses to use the outplacement counseling, then may have an agmt to make abt failure to mitigate. What income can be taken into account w/ failure to mitigate? 1) big issue is w/ disability benefits. If an e‟ee is on disability at the time of termination, does the o e‟er get to take into account what they owe… depends, if its STD, and the e‟er is 100% funding those benefits, then the policy reason behind that is yes b/c they want to encourage e‟ers to fund these ki nds of plans and knowing that t hey won‟t have to pay severance on top of t hat does this. If e‟ee goes on disabilit y while on notice, then won‟t have to fund (?). if 100% funded by e‟er, then won‟t have t o pay both, just have to pay the severance. If the e‟ee contributes to the pre miums, even 1 iota, then the e‟er doesn‟t get to take advantage of those payments b/c its parti ally the e‟ees money. b/c if its funded by the e‟ee, then its not taxable. If the e‟er pays for it, then they have to tax it. 3rd category, if the e‟ee or the e‟er doesn‟t pay it, then the e‟er doesn‟t get to take the benefit – if the e‟er is simply paying the premiums to an insurer (almost all short term plans are self-insured). If the e‟er is merely paying the premiums, then they don‟t get to reduce the payments. 4th categ: if at the beginning of the e‟ment relnship the e‟ee and e‟er have agreed that the e‟er is going to pay for the benefits in some way, that means that the e‟ee has contributed to the plan (Eg by taking less vacation), then they can‟t decrease it. **Main question to ask is: has the e‟ee paid for the plan. o Une‟ment insurance: since the e‟ee contributes to that, e‟ers aren‟t entitled to a deduction. Same thing w/ pension. But technically can‟t really be receiving pension at the same time as being employed, but where those cases have arisen, e‟ers not entitled to take the benefits.
**notes on ESA – see pg 17 of pdf A. Wrongful Dismissal Litigation Mitigation
Michaels v. Red Deer College , [1976] 2 S.C.R. 324 (redacted) It is for a wronged P to prove his damages, burden is on him to establish on BoP what his loss is. Damages put him in the posn he would have been in had there been proper performance by D A wronged P is entitled to recover damages for the losses he has suffered but the extent of those loses may depend on whether he had taken reasonable steps to avoid t heir unreasonable accumulation (miti gation). If it is the D‟s posn that the P could reasonably have avoided some pt of the loss claimed, its for the D to carry the burden of that issue. D has to show that the P either found, or, by exercise of proper industry in the search, could have procured other e‟ment of an approximately similar kind reasonably adapted to his abilities, and that in absence of such proof the P is entitled to recover the salary fixed by the k (D has the onus of demonstrating both that an e’ee has failed to make reasonable efforts to find work and that work could have been found ). Red Deer College v Michaels case said that the D bears of onus to show that they failed to mitigate. While the law talks abt the option to try to mitigate, this is a difficult concept to say that the person didn‟t try to look for work. Is a narrow defence, its not good enough to show that the person didn‟t look for work, have to show that they didn‟t look for work, and if they had, they would have found it – v difficult to show that the person would have found a job. Especially since the person doesn‟t have to accept a lower paying job – have to show that the person would have
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found an equivalent job. Other prob is that the e‟er would have to demonstrate that if there is no equivalent work, that they could retrain. If the e‟er can show the failure to mitigate, then the ct can reduce. Some k‟s of e‟ment will be explicit, can show that this isn‟t subject to failure to mitigate, but needs to be explicit – graham v marlow case For it not to be subject to mitigation, need explicit language: eg the P will be paid 12 mos salary in a lump sum, w/in 1 week . Simply saying it will be a lump sum doesn‟t mean the implied term of mitigation has been o overthrown, need the time pt , because how can it be subject to mitigation if its being paid 1 week later. Evans v. Teamsters Local Union No. 31, [2008] SCJ No. 20 (redacted) Bastarache J: question: whether an e‟ee who has been wrongfully dismissed is reqd to mitigate damages by retur ning to work for the same e‟er who terminated the e‟ment k evans was dismissed in 2003 after being employed for 23 yrs given that both wrongful dismissal and constructive dismissal are characterized by e‟er imposed termination of the e‟ment k (w/out cause), there is no reason to distinguish b/w them when evaluating the need to mitigate in some circumstances it will be necessary for a dismissed e’ee to mitigate his or her damages by returning to work for the same e’er. Assuming there are no barriers to re-e’ment, requiring an e’ee to mitigate by taking temporary work w/ the dismissing e’er is consistent w/ the notion that damages are meant to compensate for lack of notice and not to penalize the e’er for the dismissal itself. In the absence of conditions rendering the return to work unreasonable, on an o bjective basis, an e’ee can be expected to mitigate damages by returning to work for the dismissing e’er . When an e‟er offers the e‟ee a chance to mitigate da mages by returning to work for him or her, the issue is whether a reasonable person would accept such an opportunity. The critical element is that an e’ee “not be obliged to mitigate by working in an atmosphere of hostility, embarrassment or humilation”. Consider non-tangible elements of the sitn: work atmosphere, stigma and loss of dignity as well as nature and conditions of e‟ment, the tangible elements Wallace damages should never be subject to mitigation, are exempt The reasonableness of the e‟ees decision not to miti gate will be assessed on an objective std In this case, the relnship b/w Evans and the union wasn‟t seriously damaged and, given t he that the terms of the e‟ment were the same, it wasn‟t objectively unreasonable for him to return to work to mitigate his damages. Appeal dismissed. Obligation to stay in the job to mitigate: decision in Mifsud v MacMillan Bathurst , where you may be reqd to stay to mitigate if the salary is the same, the working conditions aren‟t substantially different and the work isn‟t demeaning, and the personal relationships aren‟t acrimonious. In Mifsud said those factors weren‟t met. (also in 20 yrs, not one case has found all those factors in one place, until Evans decision, b/c if one thing off, eg salary wasn‟t the same, then failed) * Evans is an extraordinary case w/ extraordinary facts - keep these in mind In Evans, he had already been terminated, but they asked him to come back to work it out, in the exact same posn earning the exact same salary, and Evans admitted that it wouldn’t have been demeaning to return (it would have been v easy for the e‟ee to say that it would be embarrassing). Then to make it worse, he said that he would come back if at the end of the 24 mos notice period, his wife gets his job. Ct said, that you have to look at if from an objective std to look at whether a reasonable person in that posn would accept the offer, but the most critical factor is that you not be obligated to mitigate in an atmosphere of hostility, humility or embarrassment . Tf since the e‟ee admitted it wouldn‟t be embarrassing, its unique and Jeff doesn‟t think this opens t he door to saying that e ‟ees have to come back to mitigate. Belton v. Liberty Insurance Company of Canada , (2004), 72 O.R. (3d) 81 (redacted) (ONCA) Belton v liberty insurance : is a public policy case, ct said that on constructive dismissal, we want to discourage litigation, one way to do this is to let the person try the new posn. Tf ct said that if you say that “I have been constructively dismissed, but I‟m prepared to try this out for a certain time period, and if at the end I don‟t like it, I‟m leaving, and its at that pt that I will consider myself constructively dismissed” then at the pt when they consider themselves constructively dismissed is when the notice period begins. If they stay, then they have condoned the change. Want to encourage the ppl to try it out w/out placing themselves in a litigation disadvantage.
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Ratio: if something is done to your workplace, posn is changed, demotion of some sort, fires someone you report to, etc., the principle used to be that if you allowed it to happen then you condoned that behaviour or you stayed to mitigate. Belton says you do not need to, you can stay and try it out and if you later leave you won‟t be deemed to condone the changes nor that you were staying to mitigate. You test the waters w/out forgoing any rights. This promotes stability and harmonious relnships if e‟ees are allowed to try something out knowing they won‟t be punished for doi ng it. The day they leave is when severance is due. Need to make e‟er aware that you consider it CD and are trying it out. trial: found that the appellants refusal to acknowledge LICC‟s right to amend their co mmission schedule was a repudiation of an essential term of their e‟ment k justifying termination, and that they failed to mitigate damages. CA: appeal allowed the appellants‟ right to reasonable notice of termination of the PAGIC agreement remained unaffected by their refusal to sign the LICC agreement. The appellants were under no obligation to accept the LICC agreement, and their refusal to do so can‟t be considered just cause for LICC terminating the PAGIC agreement under which they were employed. The appellants had no obligation to acknowledge LICC‟s right to change the compensation schedule, and that their failure to do so didn‟t constitute a repudiation of th eir agreement w/ LICC. Even if LICC‟s action is characterized as simply amending the compensation plan of the PAGIC agreement, the appellants‟ refusal to acknowledge LICC‟s right to make these changes to the compensation plan didn‟t justify their dismissal and they are entitled to reasonable notice. Since LICC breached its obligation to provide reasonable notice of such termination to the appellants, the appellants, as the successful innocent parties, are entit led to all reasonable presumptions in calculating their losses. Burden is on LICC to prove the appellants had failed to mitigate their damages.
Merrill Lynch Canada Inc. v.Soost 2010 ABCA 251 (redacted) issues: in addn to damages for one yr‟s notice period, can a trial judge award significant damages for the mere fact of an e‟ee‟s dismissal, or for the stigma that that dismissal brings? Or for the e‟er thereafter competing w/ the ex-e‟ee for the clients, before the ex-e‟ee has got a new job? Respondent was dismissed by e‟er, found new job about 3 weeks later w/ a lesser e‟er, many clients didn‟t follow him, his income dropped drastically. Appeal is for an award of 1.6 million in addn to a year‟s pay in lieu of notice ($600,000) which was paid for damage to his reputation and book of business or goodwill , which wouldn‟t be compensated for by a n award of damages in lieu of notice In ordinary circumstances, damages b/c of dismissal w/ neither reasonable notice nor pay in lieu can‟t exceed what pay in lieu would have been. The damages will be less, if the dismissed e‟ee mitigated his or her loss (or should have) by getting a new job. Exception to this rule is from Keays v Honda 2008 SCC 39. Honda says that when dismissing an e‟ee, an e‟er has a duty not to use methods which are unduly unfair or insensitive. The unfairness or insensitivity must be in the methods used, not in the mere fact of dismissal. Honda damages aren‟t an automatic enhancement of all “wrongful dismissal” damages. Honda damages are limited to compensating loss and aren‟t punitive. Its confined to a bad manner of dismissal, not for dismissal itself. Economic loss from being dismissed doesn‟t fall w/in Honda damages. Held: the second damage award of 1.6 million has no basis in law: it purports to compensate for matters which the law doesn‟t recognize as compensable, and it lacks a factual basis. It appears to also contain an element of double counting for the lack of reasonable notice ; that has already been compensated for by the award of $600,000. The extra 1.6 mill can‟t stand. Appeal allowed. Remedies (a) Damages for Wrongful Dismissal
Special Damages: general damages are to put the person in the posn they would have been in had they been given working notice. Whenever thinking abt calculating these damages, always keep in mind the tax implications. Ct will gross up the amt to reflect the fact that you missed the tax amt. tf are putting you in the posn you would have been in had those amts been taxed.
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Veer v. Dover Corporation (Canada) (1999), 120 O.A.C. 394 (ONCA) (redacted) Dover appeals, trial judge determined that Veer had been dismissed by Dover w/out cause and awarded him damages equivalent to 24 mos notice together w/ damages for the loss of hi s stock options. Appeal dismissed Veer dismissed by Dover after working there for more than 40 yrs. Stock option reasonable notice: the respondent’s rights under these stock option agreements were alive until the end of the reasonable notice period reqd for his lawful termination Trial judge didn‟t err in calculating the damages for the lost stock options as of the date of judgement. Alcatel Canada Inc. v. Egan , (2006) 206 O.A.C. 44 (OCA) (redacted) **LURING CASE** Alcatel appeals trial finding of 9 mos notice period and damages of $87,967.45 for wrongful dismissal based on 20 mos of e‟ment. Was terminated w/out notice and w/out cause. Two Alcatel e‟ee‟s (friends of Egan) induced Egan to leave her 20 yr secure e’ment position at Bell to go to Alcatel. Alcatel e‟ees were given $8000 bonus for this. Question is whether Alcatel induced Egan to leave her e‟ment w/ Bell Inducements are properly included among the considerations which tend to lengthen the amt of notice reqd. There is a need to safeguard the e‟ee‟s reliance and expectation interests i n inducement sitns. But not all inducements carry equal weight. Case by case basis. Appeal dismissed. Cross appeal by Egan for disability benefits: where an e‟ee would otherwise have qualified for disability benefits during the reasonable notice period, but the application is denied on the basis that coverage was wrongfully discontinued by the e‟er, the e‟er must be liable for the value of the disability benefits that would otherwise have been payable. Egan was enti tled to the continuation of all forms of compensation, including e‟ee benefits, during the reasonable notice period. Para 30, trial judge erred in awarding E gan her full salary for the entire notice p eriod – she was overpaid salary and underpaid disability benefits. Cross appeal allo wed. One is: whether the e’ee was lured from different e’ment . This case law developed from the concept that if the e‟ee was lured from secure e‟ment, then is terminated a yr later w/out a notice period in the new k, then by looking at the bardal factors, probably wouldn‟t have a v long notice period. Originally before the Wallace case, this concept was only available until abt 5 yrs of service, then it would fade away. After Wallace, the SCC sort of smashed this, In Wallace, the e‟ee had been employed for 17 yrs w/ united GG when term, so when made the agmt that he was lured there, the ct took into account the previous notice period When looking at the concept of luring, note that it‟s a spectrum, can have significant luring, or insignificant, eg recruiters, etc will be strong. As opposed to one of the e‟ees which called and said that there was a job available and you should apply, isn‟t strong. Also need to be lured from previously secure e‟ment. Can kill a lure in one of two ways to demonstrate that the person wasn’t lured or by demonstrating that the e’ment wasn’t secure Brito v. Canac Kitchens , 2011 ONSC 1011 (CanLII) (redacted) P was dismissed w/out cause from Canac after nearly 24 yrs of service, was given the statutory minimum payment of 31.79 wks of service. Canac contests the length of P‟s w/out cause notice period, his mitigation efforts, and his entitlement to benefit coverage claims This ct gave P notice period of 22 mos, and further fixed the P‟s tot al annual case compensation at $71,000.00. P is entitled to “be made whole” for the period July 15, 2003 (date of dismissal) to Nov 6, 2004 (the date when he became disabled). T his results in entitlement of nearly 16 mos at $5916.67 per month less statutory deductions and less P‟s earnings from new job. Onus on Canac to show that P failed to mitigate his potl damages by purchasing a replacement disability policy. Canac hasn‟t done so. Insufficient evidence was shown that comparable coverage would have been available. P is awarded $5916.67 per month from Nov 6 – May 15, 2005 plus LTD benefits from March 4, 2005 – March 5, 2007 in addn to the STD benefits of $9078.94. Merrill Lynch Canada Inc. v.Soost, [2010] (redacted) see above
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(b) Punitive and Aggravated Damages / Wallace Damages Damages that don’t ness relate to the notice period: aggravated damages and punitive damages Punitive is to show the cts displeasure Aggravated: is a compensatory nature, purpose is to take into account intangible injuries. These aren‟t actual economic injuries that arise from a breach of k, the primary one is mental distress damages. Usually when the e‟er alleged cause and di dn‟t prove it, the e‟ee would be awarded notice and punitive damages to punish them (this used to be the case). Then had the decision in Vorvis where SCC said that the punitive damages aren’t available from the e’ers conduct on termination . Tf the manner in which the e‟ee was fired, can‟t in and of itself give rise to an award of punitive damages, it needs to arise from some separate actionable wrong. Eg: if e‟ee is terminated and allege cause, not going to get punitive, but if in termination meeting the e‟er beats up e‟ee, there is an assault, so this separate action can give rise to puniti ve damages. But really what this meant is that the ct really left cts w/ no real way to punish bad e‟ers. Then had decision in Wallace , in which corporation fired Wallace w/out cause, but then went out into the market place and told everyone they fired him for cause, and he wasn‟t able to work again. Said that ppl should have a right to fire ppl whenever they want, BUT will impose a duty of good faith onto e’ers in the manner in which they carry out the dismissal (breach results in adding to the notice period) . No one test, but must approach the termination in good faith, w/ honesty and sensitivity . If failed to do this, and acted in bad faith, then this will result in an extension of the notice period. Gave egs in the Wallace decision of what would attract this: terminating for cause when it didn‟t exist, o terminating upon return from sick leave (Jeff has probs w/ this, b/c then when do they terminate?), but the one they really find problematic is the economic hardball – using the economic power of the e‟er to oppress the negotiations, eg not going to get a reference letter if don‟t accept reduced notice period, escorting e‟ees out of office in the presence of other e‟ees, having the e‟ee find out they were terminated by seeing the newspaper article for their posn, etc. Problems w/ this concept: o 1) that it was an extension of the notice period, which is a k’ual concept . So if the notice period was extended, had question of what happened to the e‟ee who mitigates their damages, can they mitigate bad faith? Ct said no, and that this was a k‟ual extension, but it wasn‟t subject to mitigation. 2) wasn’t fair economically – was a rich vs poor concept that was horrendously unfair. Eg love case, o vs detomaso w/ 633k vs 33k annual salary, both have bad faith, if extend the notice period, then love gets much more then detomaso. Get a rich vs poor distinction which isn‟t what the SCC intended. In Honda, Keays was a plant level e‟ee, had CFF. Keays was terminated for ultimately refusing to see the company dr. o Lower ct was v angry at Honda, extended notice period by 9 mos (had worked for 15 yrs), then got punitive damages, and fees. CA reduced punitive damages award. SCC changed both the award and the way we look at these kinds of damages. Said that while they o couldn‟t terminate him for cause, it wasn‟t unreasonable for them to be asking for drs notes and wasn‟t unreasonable for them to be suspicious of the notes, didn’t justify a punitive damage award . The separate actionable wrong that justified the punitive damage award was a breach of HR code. Note that the judge didn‟t have the jurisdiction to make the award for the breach of the HR code b/c this was under the HR tribunal, can still find that it‟s a separate actionable wrong. SCC said that its not sufficiently serious behaviour to justify punitive damage award (but didn‟t say that it couldn‟t be breached on a HR breach). Also, said that effectively the Wallace award was for the same thing as the punitive damage award – was punishing Honda twice. Then said that it wasn‟t serious enough for Wallace damages – wasn‟t the bad faith. Most impt thing abt this going forward was the ct said that there still was a duty of good faith, but weren’t going to do this by an extension of the notice period. Instead, if the e’ee has suf fered damage from the failure to terminate in good faith, then they will receive an award of aggravated damages arising from the manner of dismissal . This is impt b/c, under this new concept, have to demonstrate that you actually suffered harm to get these damages. o If notice period gets extended by 6 mos b/c of bad faith, then during those extra 6 mos, if stock options vested, e‟ee got them – didn‟t make sense.
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Vorvis v. Insurance Corporation of British Columbia , [1989] 1 S.C.R. 1085 (redacted) [need sep actionable wrong] Facts: 54 yr old lawyer worked for less than 9 yrs prior to termination. Pension plan vesting at 10 yr mark – had made contributions, on termination received contributions only plus interest. Claimed punitive damages for mental distress alleging offensive conduct, argued term ought to be implied into K that e‟er couldn‟t frustrate pension rights by WD. Ratio: not possible to imply term, as contrary to intention of parties. Conduct was offensive and any injury caused however didn‟t arise out of dismissal a nd didn‟t aggravate damage. Aggravated awarded in WD where acts were also independently actionable (separate tort) and punitive onl y then and when deserving of punishment b/c of vindictiveness. SCC considered the issue of whether damages related to the manner of dismissal can increase the notice period upon which damages for wrongful dismissal are based and declined to recognize an increase Damages for wrongful dismissal are confined to damages for breach of the implied obligation on the e’er to give reasonable notice. Unless the manner of termination increased the time reqd to find new e’ment and hence the notice period, damages for manner of dismissal must be grounded in an independent cause of action Wallace v. United Grain Growers , [1997] 3 S.C.R. 701 [No sep actionable wrong, breach of GF, inc notice period] Facts: P had been headhunted from secure job of 2 5 yrs on promise of secure job until retirement. Success for 14 yrs then abruptly fired. No cause and was in bad faith. Sued for WD, mental distress, compensatory and aggravated damages, forced to see a psychiatrist. E‟ers alleged cause Ratio: owed 24 mos on Bardal but no punitive. Bad faith – creation of Wallace damages – factors that add to length of RN such as bad faith and reduced job alternatives, being lured from previous. Hold e’ers to obligation of good faith and fair dealing in manner of dismissal, breach of which will be compensated for by adding to length of notice period . Iacobucci J (Lamer, Sopinka, Gonthier, Cory, Major): Wallace worked for United for 14 yrs, was discharged (w/out cause), was originally told he was dismissed w/ cause, termination and w/ cause allegations created emotional difficulties Issue: when, if ever, can the manner of discharge impact on the notice period upon which damages for wrongful dismissal are based? Trial: Wallace awarded damages based on a 24 mos notice period and aggravated damages. CA: Substituted 15 mos reasonable notice period and o verturned the award of aggravated damages. SCC: upheld trial and CA judgement that there was no fixed-term k until retirement Damages for mental distress: from Vorvis , CA held that any award of damages beyond compensation for breach of k for failure to give reasonable notice of termination “must be founded on a separately actionable course of conduct” . Here, CA found there was insufficient evidence to support a finding t hat the actions of United constituted a separate actionable wrong, SCC agrees. However, SCC notes that in circumstances where the manner of dismissal has caused mental distress but falls short of an independent actionable wrong, the e’ee isn’t w/out recourse - can extend the period of reasonable notice to which an e’ee is entitled . Tf although recovery for mental di stress might not be available under a separate head of damages, can still recover. Punitive damages: purpose is to punish the D. SCC doesn‟t think trial and CA erred in refusing to award punitive damages. UGG didn‟t engage in sufficiently “harsh, vindictive, reprehensible and malicious” conduct to merit condemnation by such an award. Reasonable notice: SCC would restore trial judges amt of 24 mos notice. o Bad faith conduct in the manner of dismissal is another factor that i s properly compensated for by an addn to the notice period o b/c of the nature of the e‟ment relnship, to ensure that e‟ees receive adequate protection, e‟ers ought to be held to an obligation of good faith and fair dealing in the manner of dismissal, the breach of which will be compensated for by adding to the length of the notice period in the course of dismissal, e‟ers ought to be candid, reasonable, honest and forthright w/ their e‟ees o and should refrain from engaging in conduct that is unfair or is in bad faith by being, eg, untruthful, misleading, or unduly sensitive. Depending on the circumstances of the case, not all acts of bad faith will be equally injurious and o tf the amt by which the notice period is extended will vary. These damages aren‟t available in any case. Must examine the nature of the bad faith conduct and its impact.
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From Addis: a dismissed e‟ee isn‟t entitled to compensation for injuries flowing from the fact of the dismissal itself, but the manner (para 103) o There is no reason why the scope of compensable injuries in defamation sitns shouldn‟t be recognized in the context of wrongful dismissal from e‟ment. Terminated e‟ees are vulnerable, should be protected by encouraging proper conduct and preventing all injurious losses which might flow from acts of bad faith or unfair dealing on dismissal, both tangible and intangible. McLachlin J (dissenting in part) (La Forest, L‟Heureux-Dube) An award of damages should be confined to factors relevant to the prospect of finding replacement e‟ment, tf notice period should only be inc for manner of dismissal if this i mpacts on the e‟ees prospects of ree‟ment. Thinks the law has evolved to permit recognition of an implied duty of good faith in termination of e‟ment (Iacobucci didn‟t think this). Tf would uphold 24 mos notice period, and also award for mental distress on the basis of breach of the k‟ual obligation of good faith in dismissing an e‟ee. o
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Keays v. Honda Canada Inc. (2006), 274 DLR (4th)(C.A.) (redacted) Ratio at SCC: Honda had right to be suspicious but not to terminate. What happened wasn‟t serious enough to extend notice. The punitive are there for the same basis of Wallace and we want to discourage double dipping for same events, so they set aside completely the punitive damages as must be reserved for most egregious. While there is a duty to terminate in good faith, it will no longer be punishable by extension of o notice period. You can be awarded aggravated in manner of dismissal if: 1) you demonstrate that something has happened to you (harm, humiliation) 2) damages are based on harm caused not the income of individual o much harder after Honda to get damages for manner of dismissal, need evidence of damage. Facts: P e‟ee at Honda plant w/ serious CFF. Sees specialist who gives Honda a clear note saying he has a serious problem and would need this many da ys off per month. Absences start to exceed t his. Honda wants his to see their dr, he hires lawyer who wants to know what is going to happen at the appmt, Honda says stop asking or you will be fired, is fired.Keays terminated after 14 yrs e‟ment in 2000, sued for wrongful dismissal. Trial judge found he was entitled to notice period of 15 mos, which was inc to 24 mos w/ Wallace damages for the manner of dismissal. Also was awarded punitive damages of 500k plus costs w/ a 25% premium. CA: upheld findings of wrongful termination as well as the regular damages and Wallace damages. Ordered that costs premium be reduced and punitive dec to 100k. SCC would allow appeal in pt, regular damage award should be maintained, but Wallace, punitive damages and costs premium should be set aside. Damages resulting from the manner of dismissal must then be available only if they result from the circumstances described in Wallace, where the e‟er engages in conduct d uring the course of dismissal that is “unfair or is in bad faith by being, for eg, untruthful, misleading or unduly insensitive” There is no reason to retain the distinction b/w “true aggravated dama ges” resulting from a separate cause of action and moral damages resulting from conduct in the manner of termination. Damages att ributable to conduct in the manner of dismissal are al ways to be awarded under the Hadley principle. Moreover, in cases where damages are awarded, no extension of the notice period is to be used to determine the proper amt to be paid. The amt is to be fixed according to the same principles and in the same way as in all other cases dealing w/ moral damages. Tf is the e‟ee can prove that the manner of dismissal caused mental distress that was in the contemplation of the parties, those damages will be awarded not through an arbitrary extension of the notice period but t hrough an award that reflects the actual damages. Damages for conduct in the manner of dismissal are compensatory; punitive damages are restricted to advertent wrongful acts that are so malicious and o utrageous that they are deserving of punishment on their own. Conduct meriting punitive damages awards must be “harsh, vindictive, reprehensible and malicious” as well as “extreme in its nature and such that by any reasonable std it is deserving of full condemnation and punishment”. The facts of this case demonstrate no such conduct. Creating a disability program such as the one under review in this case can‟t be equated w/ a malicious intent to discriminate against persons w/ a particular affliction Wallace damages will be available when the manner is dismissal caused mental distress that was in the
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contemplation of the parties Piresferreira v. Ayotte and Bell Mobility Inc. , 2010 ONCA 384 (redacted) Ayotte: manager pushed her, at trial, was awarded negligent infliction of mental suffering. CA said that e‟ment area was confined w/ in k law, didn‟t want to introduce tort law, didn‟t want concept of negligence introduced. Tf the concept of negligent infliction of mental suffering is never available in the e’ment context . For intentional infliction of mental suffering (same tort, just that you meant it), is available in the e’ment context, but to prove it is v difficult, b/c to win have to show that you intended the type of harm that the person actually suffered. Ct said that the D may have meant to push her, but he couldn‟t have understood that pushing her would lead her to never work again. As a result, ct held that there was no valid claim for intentional infliction of mental suffering. Ratio: we will never allow against the e’er the tort of negligent infliction of mental suffering b/c we are injecting negligence into e’ment law where it has no place and where e’ees have contractual rights of protection thorugh notice and aggravated damages. Further erred in finding tort was established – need to show e’er knew and intended harm or should have foreseen – he could never have foreseen she would never work again . appeal allowed in pt, would find that the trial judge erred by finding the tort of negligence was available against an e‟er and supervisor for conduct in the course of the respondent‟s e‟ment, by finding that the tort of iins had been made out and in assessing the damages for battery. General da mages would be attributed under the framework in Honda v Keays. Rejects allegation that P failed to mitigate her damages and would maintain the 12 mos wages the trial judge awarded in lieu of reasonable notice, but set aside the additional lost wages she awarded as tort damages. Set aside damages to P‟s partner for loss of guidance, care and companionship. At time of incident, P was e‟ee of Bell for 10 yrs, was under supervision of Ayotte. A became verbally abusive of team members, particularly P, was a harsh, loud aggressive manager. Battery: A pushed P, aftermath was that P didn’t return to work . Bell offered P a meeting w/a rep to work through differences b/w P and A, or alternatively that A could report to a diff supervisor and not A. P declined (Sept 27 2005). Later Bell told P that A had been relocated and P could return to work, but P refused (March 9 2006). Bell then said that A was retiring at end of month and P could return, P declined (Sept 11 2006). On Sept 21 2006, Bell told P that they considered her to have resigned effective Sept 19 2006. P began seeing psychiatrist in Nov 2005, said she was totally disabled from work, symptoms in Drs opinion related to the assault and what she perceived as a betrayal and injustice on the pt of Bell (Dr Heney). Other psychiatrist, Dr Basson treated her from July 2006 – Sept 2007, symptoms triggered by assault followed by failure to apologize and Bell‟s failure to apologize and take concrete steps to remove A from posn of authority and supervision over P. Negligent infliction of mental suffering: accepting that Bell‟s Code of Business Conduct was pt of the e‟ment k, a breach of k‟ual duty can‟t be the basis for the recognition of a CL tort. For concurrent tort liability to be available, there must be a CL duty of care that would exist even in the absence of the specific k‟ual term which created the corresponding k‟ual obligation. T he trial judge erred in basing the std of care on a k‟ual obligation. Honda: general rule is that damages in a wrongful dismissal action are confined to the los suffered from the e‟ers failure to give proper notice and that no damages are available for the mental suffering the e‟ee may have suffered unless the parties contemplated at the ti me of the e‟ment k that a breach of the k might cause the P mental distress. The principle enunciated in Honda is directed to mental suffering as a consequence of the manner of termination, as opposed to mental suffering that results from mistreatment during t he e‟ment relnship. The duty proposed in this case is much more expansive than that contemplated (and rejected) in Wallace .a general duty to take care to shield an e‟ee during the entire course of his or her e‟ment from acts in the workplace that might cause mental suffering is more expansive than a duty to act fairly and in good faith during just the termination process, which would only apply at the time of termination and to the manner of termination. Wheras this duty would apply it the course of e‟ment as well as to its termination. In a case where the e‟ers allegedly tortuous behaviour includes the termination of the e‟ee, compensation for mental distress is available under the framework in Honda. In a case where the e‟er doesn‟t terminate the e‟ee, the e‟ee who is caused mental distress by the e‟er‟s abusive conduct can claim constructive dismissal and still have recourse to damages under Ho nda. Recognition of the tort in the e‟ment relnship
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isn‟t necessary, in the dismissal context, t he law already provides a remedy in respect of the loss complained of here. In a case where the e‟ee suffers mental distress from e‟er conduct that wouldn‟t provide the grounds for a claim of constructive dismissal. Is unnessary and undesirable to expand the cts involvement in such questions. Unnessesary because it the e‟ees are sufficiently aggrieved, they can claim constructive dismissal. Undesirable b/c it would be a considerable intrusion by the cts into the workplace, it has a real potl to constrain efforts to achieve increased efficiencies and the postulated duty of care is so general and broad it could apply indeterminately. Tf tort of negligent infliction of mental suffering not available in e‟ment context Iins: trial judge erred in law by concluding that the second element of the tort, the reqmt that the conduct be calculated to produce harm, was established. Applied the wrong test, should have used Prinzo. Tf no iins Damages for assault and battery: damages for battery aren‟t limited to what the D intended or foresaw, it is still necessary that the damage be caused by the battery. The trial judges findings that all the damages were caused by the battery b/c the damages collectively resulted from the battery and other acts i s both unreasonable and inconsistent w/ her other findings. P suffered no psych harm, no phys injury or other i ll effect from the push. The subsequent events didn‟t inevitable flow from the battery. Damages of $15,000 Damages for wrongful dismissal: there was a clear evidentiary foundation for the trial judges finding of Bell‟s bad faith in the constructive dismissal of P.
Mulvihill v. Ottawa (City ) , [2008] O.J. No. 1070 (OCA) (redacted) Mulvihill case: just b/c an e’er alleges just cause, doesn’t mean that Wallace damages occur . Ct said that if the e‟er originally alleges just cause in good faith, they actually believe they have it, it should be encouraged to drop it once its been discovered that they don‟t have cause. In mulvihill, they withdrew, ct wants to encourage this. Public policy reason is that if they don‟t allow someone to w/draw it once they have realized its wrong, it means more trials, cts want to encourage parties to resolve their problems. Not allowing them to w/draw it doesn‟t encourage this. In the old system, if you alleged cause, didn‟t matter if you w/drew, were still going to get hit by Wallace. Mulvihill was dismissed, originally for insubordination, she sued claiming wrongful dismissal. At outset of trial, city w/drew the just cause defence and paid her 3 mos salary in lieu of notice. The city believed that was the amt it was reqd to pay pursuant to the severance provisions of the k. Trial awarded 4.5 mos in lieu of notice, plus 5.5 mos of Wallace damages and 50k in costs. City is appealing the Wallace damages and costs. Issue on appeal is whether the trial judge erred in awarding Wallace damages – appeal allowed The k provided that on termination w/out cause, severance is to be paid in accordance w/ a formula based on yrs of service The mere fact that cause is alleged, but not ultimately proven, doesn’t automatically mean that Wallace damages are to be awarded. So long as an e’er has a reasonable basis on which to believe it can dismiss an e’ee for cause, the e’er has the right to take that posn w/out fear that failure to succeed on the pt will automatically expose it to a finding of bad faith To det whether Wallace damages are warranted, must consider all the circumstances – an allegation of cause is but one of those circumstances. The fact that in this case the city abandoned the just cause defence at the outset of trial can’t be taken as evidence of bad faith or unfair dealing at the time of dismissal . E‟ers must be free to abandon a position based on cause w/out fear that abandonment will automatically lead to liability for Wallace damages. Fact that dismissal occurred when she was on sick leave: the legal std against which conduct is to be measured for the purposes of Wallace damages isn‟t whether an e‟er made a mistake but rather whether the e‟er engaged in unfair or bad faith conduct. A mistake isn‟t conduct that can be said to be unfair or bad faith. Tf dismissing while on sick leave didn‟t constitute a basis for the award of Wallace damages. Pate v. Galway-Cavendish (Township), 2011 ONCA 329 (CanLII) (redacted) *Malicious prosecution case* Pate decision: is significant b/c it‟s a recent case where they terminated the e‟ee but they reported his conduct to the police, alleged that he had been stealing. Based on the report, he was charged w/ a crime. When it got to trial, it only came out on the stand that the individual had a number of reasons that demonstrated that he hadn‟t stolen. Also came out that the e‟er was aware of these reasons but didn‟t tell the police. As a result, the charging police officer admitted on the stand that if he had known those things he never would have charged
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him. Impt b/c malicious prosecution is a tort that basically means that you charge someone for the crime improperly, there are a number of things that have to be proven: have to prove that the matter has ended successfully in your favour, have to prove that the matter was brought improperly. But there is a category where you can sue a third party if the info that has been provided to the police is false, and this is what leads them to charge. Critical is that the ct said that its easier for the e‟er to be found guilty of malicious p rosecution than the e‟ee b/c they have a greater obligation to be truthful to the police. Be alive to concept of malicious prosecution. Pate dismissed after 9 yrs w/out notice, was told that discrepancies had been found w/ respect to permit fees that had been paid to him but not remitted to the township. Pate wasn‟t given particulars nor provided w/ an opportunity to respond, was told it wouldn‟t be remitted to the police if resigned immediately, didn‟t resign, was remitted and charged laid. In cri m trial, Pate was acquitted. Sued for wrongful dismissal and malicious prosecution. Trial: town conceded P was wrongfully dismi ssed, agreed on 12 mos notice period, trial judge dismissed claim for malicious prosecution but awarded 4 mos addl damages for Wallace, 75k for general and aggravated damages for iimd and social and economic damages, 7.5k for special damages and 25k for punitive damages. Pate appeals finding of no malicious prosecution , and award of 25k for punitive damages. Appeal allowed, set aside order dismissing malicious prosecution claim and award of punitive damages and order new trial concerning both issues Beaven failed to disclose info the police which would have resulted in no charges being laid – aggravated damages as a result of this, para 24 B. Class Actions One or more representative P‟s sue on behalf of larger grp of ppl. Advantages found in inc efficiency of legal system, cases that have common questions of fact and law, avoiding the same witnesses testifying over and over in diff proceedings, avoids issues of indiv claims not worth cost of litigation not being able to be litigated. The most impt is the change of behaviour it can bring, the vastness of the suit having a larger effect.
Each province has class action legislation, in Ont, the Class Proceedings Act. Basic test for a successful certification of a class action (expensive process, all tests must be met): 1) The pleadings must disclose a real cause of action 2) There must be an identifiable class of t wo or more persons that would be represented by the representative P (big issue), the more t he better 3) Claims or defences have to raise common issues (big issue) that would make it more efficient to litigate through a class. Doesn‟t have to be that the common issue has to be the only issue of litigation or that it would resolve the litigation, it just has to help the litigation along. 4) A class proceeding would be the preferable proceeding, advancing goals of CP A (Access to justice, judicial economy, modification of behaviour) (may be other ways, class action has to be better) 5) A representative P has to fairly and adequately represent the class, produce a plan for proceeding and notifying class members and can‟t have a conflict w/ the other class members. In Ont, you can proceed w/ a class action for HR claims although commonality and preferable procedure will be hard to meet. Can sue in cts for HR claims if connected to another type of claim, not for discrimination alone . If terminated first can sue for WD and claim there was a discriminatory purpose for why i t was done. Webb v. K-Mart , [1999] O.J. No. 2268, [2005] O.J. No. 3306, [2005] O.J. No. 449 (redacted) Facts: Kmart merged w/ zellers and the bay, resulted in 31 stores closing, w/ 3000-4000 e‟ees who had been employed for indefinite terms whose e‟ment k‟s could be said to contain an implied term that, absent cause, termination would only be upon reasonable notice or pay in lieu thereof. D argued the assessment of the individual settlements would overwhelm the common issue. **whole thing failed, D moved to de-certify, ct refused and nothing has come of it. Eg by e‟ers how class action doesn‟t work when you need an indiv assesment Ratio: the common issue was, were they all dismissed w/out proper notice? They were decertified and will now have mini trials under ct supervision and assess notice period that each person is entitled to receive and if greater than ESA will get that. Turned out the mini hearings were more expensive and many e’eers weren’t awarded anything greater than already offered. Is it sufficient that the class is defined in a way that it is capable of later determination as to who is or who isn‟t in the class
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Purpose of the class defn is: 1) it id‟s those persons who have a potl claim for relief against the d; 2) it defines the parameters of the lawsuit so as to id those persons who are bound by its result, 3) it describes who is entitled to notice pursuant to the act. Tf the class defn ought not to be unduly narrow nor unduly broad. The class was defined properly in this case Common issue: here, common issues are, that the class members were all employed by the named corporations, that they were all employed under k‟s of indefinite duration, that t hey were all terminated b/w march 2 1998 and Sept 2 1998 and that all of their e‟ment k‟s didn‟t specify an amt of notice reqd on termination. The ct restated them as follows: 1) whether the class members k‟s of e‟ment reqd the D to provide them w/ reasonable notice of termination and/or pay in lieu of notice, if dismissed w/out just cause, and 2) whether the class members were so dismissed A class can be defined in part by the use of exceptions, but a “common issue” has to be just that – the ppl that were let go for cause should be excluded. Conclude that using the Class Proceedings Act, and in particular a reference type of adjudication of individual claims is the preferable course, and that rather than being cumbersome, expensive and prejudicial, it is likely to be simple and expedious, less expensive than normal litigation, and not prejudicial to anyone In this case, the common interests of the class members, the commercial realit ies of the sitn and the broad objectives of the Ont Act outweigh any concerns expressed over extra territorial involvement of the Ont Ct. An order shall issue certifying this action as a class action. A judgement shall issue declaring that the class members were dismissed w/out just cause and were entitled to reasonable notice of termination and/or pay in lieu of notice, w/ the issue of compensatory damages, if any, to be det on an individual basis on a reference. Class notes This was the first time that there had been an agmt that termination of e‟ees could proceed on a class basis The common issue that existed was that were these ppl terminated w/out just cause and were they entitled to reasonable notice. After this, it falls apt b/c the assessment of what an e‟ee is entitled to upon termination is an individual assessment. So the e‟ees suggested that after they would have individual hearings after. Class ended up getting certified but t he mini hearings were more expensive than what these e‟ees were entitled to, so the costs of the hearing exceeded what the e‟ees were entitled to. So a few hearings happened then the case went off the rails This case represents a fail in trying to use class proceedings to try and a ssert rights – didn‟t create a precedent for other e‟ment lawyers trying to use class actions for trying to deal w/ grps of e‟ees.
(same facts as above) Webb v. 3584747 Canada Inc ., [2005] O.J. 449 (redacted) wants a motion to decertify the class action. Motion to decertify was dismissed. Commonality test: underlying question is whether allowing the suit to proceed as a representative one will avoid duplication of fact finding or legal analysis. Thus an issue will be “common” only where its resolution is necessary to the resolution of each class member‟s claim. It isn‟t essential that the class members be identically situated vis a vis the opposing party. Nor is it necessary that common issues predominate over non common issues or that the resolution of the common issues would be determinative of each class members claim. However the class members‟ claims must share a substantial common ingredient to justify a class action. Determining whether the common issue justifies a class action may require the ct to examine the significance of the common issues in reln to individual issues. In doing so, the ct should remember that it may not always be possible for a representative party to plead the claims of each class member w/ the same particularity as would be reqd in an individual suit The common issues defined in this case and the subsequent finding against the D on them both significantly moved this litigation forward by putti ng firmly in place for each of the class members the presumption restated by Iacobucci speaking for the majority in Machtinger, that as e‟ees, these class members were all entitled to reasonable notice. Also, those determinations on the common issues fundamentally changes the subsequent individual proceedings from mini-trials of all issues to assessments of damages, thus materially improving the posn of the class members. Claims are all relatively small, so would be preferable for a lawyer to take on many to make it worthwhile Claims are spread across Canada, but are all similar claims, tf consistency in treatment and in eventual awards, if any, would be impt for justice Judicial economy in the cts has been achieved b/c they have been saved by 1000 or so trials. Concl that the process for hearing individual clai ms should be varied, to provide for the appmt of a number -
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of individual referees, to do individual hearings in the geographical areas where the individual claimants reside or more importantly where they had worked for K-mart. Corless v. KPMG, [2008] O.J. No. 3092 (redacted) P brings action that this be certified as a class action, and for an approval of a settlement agreement, judge grants the relief requested Commenced class action for unpaid overtime hours Compensation for overtime is a complicated le gal and factual manner. Under the various e‟ment stds statutes across the country, not all e‟ees are eligible for compensation for overtime pay, and if an e‟ee is eligible, it is a factual matter whether the e‟ee is entitled to the overtime pay. Where certification is sought for the purposes of settlement, all the criteria for certification still must be met. However, compliance w/ the certification criteria is not as strictly reqd b/c of the different circumstances associated w/ settlements. criterion for certification has been satisfied To approve a settlement of a class proceeding, the ct must find that in all the circumstances the settlement is fair, reasonable, and in the best interests of those affected by it. In determining whether to approve a settlement, the ct, w/out making findings of facts on the merits of the litigation, examines the fairness and reasonableness of the proposed settlement a nd whether its in the best interests of the class as a whole having regard to the claims and defences in t he litigation and any objections raised to the settlement. See para 38 for factors to consider when considering the approval of negotiated settlements. Found that the settlement agreement is fair, reasonable, adequate and in the best interests of the Class Approval of counsel fee: the fairness and reasonableness of the fee awarded in respect of class proceedings is to be determined in light of the risk undertaken by the solicitor in conducting the litigation and the degree of success or result achieved. In determining the reasonableness of the fee, t he ct will consider: a) the ti me expended by the lawyer, b) the legal co mplexity of the matters to be dealt w/, c) the degree of responsibility, etc, para 43 The counsel fee is approved, its fair and reasonable compensation in all the circumstances. Overtime claim cases: both banks had policies stating that you must have prior approval to work OT and if you didn‟t get it, no one was going to give you approval afterwards (allegation). CLC states if you work OT you are entitled to get it (applies to banks)
Fresco v. Canadian Imperial Bank of Commerce , [2009] OJ No. 2531 (SCJ) (redacted) [no common issue] Ont judge rejects $600 million class action by bank employees over unpaid overtime Judge found that “the action lacks the essential element of commonality ”, tf refused to certify action. The circumstances of each individual‟s purported overtime work differ sufficiently that th e affected e‟ees don‟t form a class and can only sue the bank individually The cornerstone of Fresco‟s claim is the alleged illegality of the CIBC Policy and, in particular, the preapproval reqmt. Judge found the policy isn‟t ill egal, and that at any rate the determination of its legality will not materially advance any class member‟s claim for unpaid overtime wages. Any losses suffered weren‟t caused by an allegedly illegal polic y, but rather by a failure independent of that Policy to compensate for overtime hrs worked that were reqd or permitted. Fresco‟s real compliant isn‟t that t he policy is illegal, but that the Policy was applied in an il legal manner so as to permit or require class members to work unpaid overtime. This isn‟t a case where questions of systemic wrongdoing can be resolved w/out exami ning the individual claims, thereby defeating the purpose of a class action . The flaw in this case is that instances of unpaid overtime occur on an individual basis. The action didn‟t satisfy the pt of the test for certification that “the claims of the class members raise common issues”, lacks the element of commonality Fresco v. Canadian Imperial Bank of Commerce , [2010] OJ No. 3762 (Div. Ct) (redacted) [no common issue] federal workplace “overtime class action” case Held: there were no common issues among the 31,000 current and former retail bank e’ees that would justify certification of the proceeding as a class action. CIBC’s policy requiring pre-approval
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for overtime didn’t violate the Canada Labour Code. 5 part test must be met in Ont to obtain certification – see case the P alleged the pre-approval violated s.174 of the Canada Labour Code certification was refused b/c the class action lacked the essential element of commonality Justice Joan Lax decn: nothing was wrong w/ the overtime policy b/c it‟s the right of the e‟er to ctrl its business, … the ability to authorize overtime is one of the legal criteria used to assess whether or not an e‟ee is considered managerial and exempt from the hours of work provision of t he Code this isn‟t a case where questions of a systemic wrongdoing can be resolved w/out examining the i ndividual claims, thereby defeating the purpose of a class action. In contrast, the central flaw in t his case is that instances of unpaid overtime occur on an individual b asis. Appeal ct desn (Ont Divisional Ct): Held: there was no basis to interfere w/ Justice Lax’s desn – common issues criterion wasn’t met No error in determination that the policy was lawful Assessing the legality of the pre-approval reqmt, e ven if common to all class members would not advance the litigation b/c it wouldn‟t assist in determining whether CIBC had liability for unpaid overtime; if such liability existed it occurred independently of the policy No evidence to show systemic wrongdoing by the bank that could be established on a class-wide basis Dissent: in Sach‟s view, the judge below failed to apply the applicable law to the common issues question: o For an issue to be “common” it must be demonstrated that its resolution is a necessary ingredient to each class member‟s claim. However its not necessary that common issues predominate over non-common issues or that the resolution of t he common issues would be determinative of each class member‟s claim. An issue can constitute a substantial ingredient of each clai m “even if it makes up a v limited aspect of the liability question and even though many individual issues remain to be decided after its resolution” The following common issues were appropriate for certification: the legality of the banks overtime o policy, whether there existed a duty to prevent unpaid overtime and record all hours worked, whether the bank breached the e‟ment k and was unjustly enriched, and what remedies would be available in the event of wrongdoing and how they could be assessed Class notes: Fresco alleged that CIBC had a systemic policy of discouraging overtime claims . What we know from the legislation is that if you work a certain number of hrs, and that threshold differs by province and federally, then anything over those hrs is overtime and are entitled to OT pay. In this case the representative P was saying that ppl work more than the reqd hours all the time but the bank discourages them from claiming. There is a process for claiming OT under the Canada Labour Code, in the same way as there is provincially. None of these e‟ees went to HRSDC (fed way), instead they brought this class action. The 2009 decision is the original decision on certification, decided by Justice Lax. Lax found that no systemic policy of discouraging OT existed, and that at the certification phase, you did have to prove that that issue existed – need that cause of action and need to have that support for your cause of action. And also, the P‟s agmt that the OT was denied, they also made the claim that the banks OT policy was illegal Lax concluded that in some sitns an individual manager may be encouraged to discourage an e’ees OT claim, but there was no evidence of a systemic failure. Goes on to say that if there had been that common issue, then the class action would have been preferable way – banks didn’t like this, they said the preferable way is the Code way (HRSDC) Divisional ct concludes that the appeal is dismissed. The panel concludes that there was no error in concluding that the common issues criterion wasn’t met. The P had failed to show any evidence of a systemic practice of unpaid OT or a systemic practice of discouraging OT claims and there was no common experience w/ respect to OT work, but not paid. So appeal dismissed. Representative P sought leave to appeal to the CA. At the same time have a class action proceeding w/ Scotia bank (below) -
Fulawka v. Bank of Nova Scotia , 2010 ONSC 1148 (redacted) [found common issue] [goes againg CIBC] Ont Superior Ct certified class action against the Bank for over 5000 e‟ees for $300M in unpaid OT The action is based on alleged breach of k, violation of the Canada Labour Code and unjust
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enrichment Common issues: do exist, there was an onus on the bank that e‟ees were paid for OT that they were permitted or reqd to work. Unlike in Fresco, there is evidence in this case that the failure to pay OT was attributable to systemic conditions, as opposed to purely individual circumstances. Judge disagreed w/ banks submissions that the decn in Fresco conclusively decided that entitlement to OT is an inherently individual determination, and that there was no evidence that the issue was systemic: the e’ees worked OT to complete the ordinary duties of their e’ment, Scotia’s system put the onus on the e’ee to obtain prior authorization and didn’t expressly allow for approval after the fact. V diff to predict when OT would be reqd, pre-approval reqmt described as “Catch 22”. Balance of power in the workplace is such t hat the protection of the e‟ee against working unpaid hrs should be the paramount concern. Concl: evidence provides a basis in fact to ask whether Scotia owed duties to the class to put policies and procedures in place to prevent OT from being worked w/out compensation and to properly record all hrs of OT worked, whether pre-approved or not. There is a basis to ask whether those duties were breached. The answers to these common issues don‟t depend on individual findings that have to be made w/ respect to each individual claimant. The answers will significantly advance the action.
Fulawka v. Bank of Nova Scotia [2011] OJ No. 2561 (Div. Ct) (redacted) appellate ct upholds certification of class action for unpaid OT, ct ruled that there are sufficient common issues to allow the action to proceed on a class-wide basis rather than requiring that it be litigated on an individual basis fulawka argued that scotia created a work envt that encouraged and reqd e‟ees to work beyond their scheduled hrs, while its pre-authorization policy made it impracticable or generally impossible for e‟ees to be paid for OT worked Justice George Strathy struck out pts of t he claim that sought to directly enforce Canada Labour Code, holding that the code sets out its own min stds, contains its own enforcement mech and doesn‟t give rise to a civil cause of action, but didn‟t strike out action based on breach of k since the Code can inform that duties owed by scotia to its e‟ees under the e‟ment k. For the common issue pt, found that there were sufficient common issues to justify a class acti on – there was evidence of systemic wrongs giving rise to common issues, the resolution of which would advance the claims of every class member. Ont div ct dismissed Scotia’s appeal Class notes: this one was certified, found that there was some evidence of a systemic wrong which gave rise to issues, scotia had a policy which reqd prior approval for OT. The common issue was this policy that the ct found failed to reflect the realities of the workplace by putting the onus on the e‟ee to get prior approval for any OT work. Policy also showed Scotia‟s alleged failure for making a system for tracking OT ct found that there was no CL entitlement to OT pay, but the statutory right to OT pay was implied into the k of e’ment – so here is the ct again implying terms into a k that aren’t expressly set out . This decn is being appealed McCracken v. Canadian National Railway Company , 2010 ONSC 4520 (Can LII) (redacted) class action claiming $300 million for OT certified against CN rail (note these claims, banks and CN rails, are for claims in federally-regulated workplaces) lawsuit alleges breach of k, violation of the Canada Labour Code, and unjust enrichment In certifying the action, Justice Paul Perell of Ont Superior Ct rejected the e‟ers two main agmts: 1) that the ct lacked jurisdiction b/c the claim was purely statutory and had to be enforced through the process, administered by inspectors and referees established in the code , and Ct concluded that it had concurrent jurisdiction to enforce claims for unpaid OT. The general rule o is that if the Act provides a right and a remedy, the statutory scheme is exclusive, but the general rule would give way if the scope and language of the Act indicated that the legislature didn‟t intend the Act‟s remedy to be exclusive. o For certification, the applicant must establish that a class proceeding would represent a fair, efficient and manageable procedure that is preferable to any alternative for advancing t he claim – class action would be the preferable procedure vs the process mentioned above, b/c it would provide access to justice and judicial economy for a mass mistake in an efficient and manageable
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way. 2) entitlement to OT could only be established on a case by case basis b/c the particular duties carried out by each FLS differed, such that there was no common issue capable of being determined on a class wide basis breach of k formed a reasonable cause of action – although no express or implied term requiring OT be paid, code stds formed pt of e‟ment k claim based on unjust enrichment allowed t o proceed: CN was enriched, the class members suffered a deprivation and there was no juristic reason why C N should be permitted to retain the benefit of the unpaid hrs of work in concluding that cts have concurrent jurisdiction to enforce claims for wages owing under the Canada Labour Code, this disagreed w/ ruling in Fulawka which said that it is well settled that where a statute creates a liability not existing at CL and provides for its own remedy, the ct has no jurisdiction to enforce a claim under the statute. Overwhelming weight of the authority is that Pt III of the Code doesn‟t create a civil cause of action and that the ct has no jurisdiction to enforce it. Descn in CN case appears to fall b/ w Fresco (no common issue) and Fulawka (common issue found) – while the judge certified the class action, principally on the basis that the determination of a company wide std to define a “manager” was common to all class members and would substantially ad vance the litigation, he also refused to certify a number of i ssues that were proposed by the Ps, holding, as did Justice Lax in Fresco, that they depend “on the individual status of the first line supervisor … no basis for commonality”. Ruling differs from Fulawka also b/c in Fulawka the claim based on negligence was allowed to proceed, and it was held that it wasn‟t plain and obvious that the bank didn‟t have a duty of care to “design, implement and enforce OT policies and procedures on a system wide basis to prevent abuses”, but in CN, concluded that overriding policy considerations preclude a claim based on tort of negligence. Class notes: here is was a question that it was essentially a cut off pt – at a certain level, don‟t get OT, question: was that line drawn in the right place, did it properly exclude those ppl that don‟t have a right to OT under the CLC? CN is basically in the same posn of sorting out how its going to make individual assessments if the conclusion is that they were entitled to OT. Tf interesting to see if it goes the way of kmart or if there is a meaningful resolution that can come out of this CN is also being appealed -
B. Pre-Trial Remedies (Summary Judgment) Have to ask the question: is the workplace unionized? Does this issue fall w/in a provincially or federally regulated workplace? if federally reg workplace, the e‟ee has an option of filing an unjust dismissal complaint. o o Diff b/w this and bringing a wrongful dismissal claim in ct is that an unjust dismissal is adjudicated by an arbitrator and that case law looks a lot like labour arbitration then civil judge made law looks like, o but major diff is that in an unjust dismissal complaint, remedy can be that the e’ee is ordered back to the workplace , tf can be reinstated as a remedy, which can‟t occur w/ civil. Then if are bringing an action, have to det if are bringing it under small claims ct, under … 76, or as a regular action. All of these have diff procedural obligations that flow from the d ecision that you make. There is a pre-trial remedy that i s moving for summary judgement – can move for summary judgement to get the issue judged summarily – the issue gets judged in a shortened truncated fashion. Is now possible to hold a mini trial w/in a summary judgement proceeding if the judge deems it necessary. The one area for using this, is where the only issue to be determined is the appropriate level of reasonable notice. Summary judgement now is more effective, trio of cases all at the CA level that give guidance on the scope of this mini trial concept w/in summary judgment. Is likely that they are going to uphold the judges ability to hold this mini trial and to assess things like credibility and if so, summary judgment is going to become a more robust way of assessing cases that essentially have a limited or narrow issue to be decided. Ensures judicial resources are being used in proper way. Will change the way some e‟ment cases are litigated if so.
Ducharme v. Cambridge Stamping Inc. (2008) 67 CCEL (3d) 132 (Ont SCJ) (redacted) In e’ment law, summary judgement is now being used in notice cases . Where the only issue is notice and no issue of just cause, summary judgments can be an effective tool for P’s counsel to get a determination as to what the notice period is. Where there is no genuine issue of fact in dispute.
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Cronk determined it appropriate to consider bardal analysis in summary judgment but where facts in dispute should be left for trial. There was no issue in this case as the D didn’t contradict the P’s facts, motions judge entitled to assume record contains all the evidence the parties will present if there is a trial. Facts: P was employed by Cambridge for 5 yrs and 11 mos and his e‟ment was terminated w/out just cause. P claims equivalent of 5.25 mos notice, or the appropriate notice period as determined by the ct, or seeks judgment for statutory termination and severance pay D argues that summary judgement beyond the statutory amt s shouldn‟t be granted as the appropriate CL notice period is a triable issue Summary judgement may only be granted where there is no genuine issue for trial. The role of a motions judge on such a motion is centred on the threshold question of whether a genuine issue exists requiring a trial. Where the evidence demonstrates that the re is no genuine issue of fact which requires a trial for its resolution, and that a trial is unnessesary, the foundation for summary judgement is established Conclude that there is no general rule that would preclude a judge from granting summary judgement in a wrongful dismissal action where the issue is the determination of the period of reasonable notice. It remains open to the ct to grant judgement where the moving party establishes that there is no genuine issue of fact that would require a trial for its resolution In this case, the summary judgment motion disclosed no issue of fact, genuine or otherwise – no dispute as to any essential facts Concl that appropriate period of reasonable notice was 5 mos – most significant factor was the age of the P (55 yrs old) and the character and duration of the e‟ment
Camaganacan v. St. Joseph's Printing Ltd. , 2010 ONSC 5184 (Can LII) (redacted) P seeks summary judgment under Rule 20.01 in a wrongful dismissal action, P asserts there are no issues which require a trial, D says there are issues which require a trial Concl: there are no issues that require a trial – summary judgement used to det notice period of 16 mos P employed by D for 18.5 yrs, 50yrs old when terminated w/out cause, given 27 weeks pay in lieu of notice E’ment Law in Corporate Transactions Structure of a Corporate Deal · 1) Letter of intent o In many situations we have parties that will sit down and talk to one another, put something in writing and don't really communicate with council --> tell the lawyer they have something they want to do --> often in a letter of intent --> hammering out the contents of the letter of intent can often take a considerable amount of time before the deal starts going o The basic principles of contract law come into place --> have to decide whether what the parties discuss is a binding contract 2) Due diligence · o Important in the e‟ment context o Means typically spending a lot of time reviewing documents o One of the most important aspects of the transaction because there are a number of e‟ment and labour concerns --> the purchaser is the one who does t he due diligence --> what happens usually is that the purchaser will send out to their contacts that they are doing due diligence --> put a due diligence request --> send to purchaser then sends to vendor --> the purchaser will need full disclosure of all matters by the vender · 3) Agreement of purchase and sale o Purpose is to record the terms on which the parties agree to conclude the business relations b etween them o The three parts are 1) Representations and warranties · § basically the vendor's reps and warranties in the disclosure of the vender's employees and such --> often the most negotiated part because they serve to allocate the risk between the parties and they are often given by the vender but on occasion will be given by the purchaser § What happens is that the purchaser and vender will schedule certain aspects of the reps and warranties --> the purchaser will ask the vender t o disclose all contracts
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--> the purchaser will not want anything to harm it going forward so they will ask for a rep § It is important that the purchaser know whether or not there are termination provisions in the e‟ment contract that will be enforceable down the road § The negotiations serve as an extension of the purchaser's due diligence 2) Covenants § The parties typically agree to engage in certain conduct or refrain from doing so in the period between signing the purchase of agreement and the closure § What we look for is to ensure the covenant in the agreement that restricts the vender from operating in ways that are not in the ordinary course § The other covenant that is pretty important --> important in an asset sale --> the vender will often want to ensure that their employees are being hired so what will happen is that the vender will ask that the purchaser shall offer e’ment in writing and in a form acceptable to the vender that will offer e’ment to all employees in a way that is substantially similar to their current e’ment 3) Indemnifications § If the vender didn't disclose that they didn't have a rich severance policy and that policy floats through the deal and now the purchaser needs to downsize and fire 6 execs that are subject to this policy --> the purchaser will go to the vender for the indemnification of this § The purchaser will ask the vender to rep that they don't have any bonus policies or severance policies and the like and what you would typically include any written or oral ar rangements --> down the road an exec looks at the severance policy and says they are subject something --> so they will go back to vender and say this isn't right because they said it didn't exist --> want to be indemnified for this cost that they have to pay § Very general and very broad
4) Closing o At this point the transfer of title and the effective closing --> employees are now employees of the purchaser 5) Post-closing o Period of time following the closing date where certain things take place, such as payroll, getting everyone signed up to appropriate benefit plans if it is an asset agreement o E‟ment lawyers typically not involved in this unless there is a shortage in house of a HR perspective
Share Purchase vs. Asset Purchase · The sale of a company’s assets transfers those assets to a completely different company and because contracts cannot be transferred the e’ment contracts are ended but the change of shares is merely a change of shareholders and the company exists as it did before the share transfer · The labour and e‟ment issues that arise are differing depending whether it is a transfer of shares or assets Share Purchase Transaction o Change of ownership of the shares of the company will not affect the identity of the owner o The owner will still be held to any e‟ment contracts that are in place o The purchaser just steps into the shoes of the vender o All the contracts stay the same o From a practical perspective this means that all employees liabilities, obligations and whatnot will also flow to the purchaser without change unless there are specific agreements in the agreement o f purchase and sale Asset Purchase Transaction o In contrast, the asset purchase will typically result in a change in the identity of the employer o Occurs when the corporate transaction closes and the vender no longer continues the relationship o Your e‟ment relationship with the vender is terminated o But ESA ensures that the sale of business does not interrupt the employees business for statutory reasons o Because the identity of the employer changes an offer of e’ment is required o Very important than an offer of e‟ment to any of the employees that the purchaser wants to hire is handed over o Deemed termination at common law
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Any claim of damages in lieu of notice in termination will be against the vender because the sale of business is what caused the end of the e‟ment contract · If the purchaser does not hire back an employee, the vender is responsible for the costs of termination The employee is not obligated to accept an offer of e‟ment from the purchaser and that is the case even if the offer of e‟ment is on substantially similar terms and conditions of e‟ment but claim to damages will be lessened because of the duty to mitigate · The offer of e’ment is of substantially similar terms and agreements --> employee rejects --> only can get ESA minimums because he or she fails to mitigate damages and is being unreasonable · If it is not substantially similar, the employee rejects offer and the vender terminates e‟ment, employee entitled to common law stuff unlike above · It is really important as a vender to ensure that the purchaser covenants to offer non-unionized employees substantially similar terms of e‟ment --> often the vender will say that they want to see the form of offer of e‟ment well in advance of purchase of sale · The purchaser can elect not to offer e‟ment or to only offer e‟ment to some or most--> will either be given notice of termination by vendor or continue to be employees of the vendor if the vendor continues to operate The purchaser offers and e‟ment, the employee accepts Indemnification · The vender will want it clearly identified that anything will be disclosed by purchaser at times of closing · You want to ensure that as a vendor, if these employees accept and become the employee of the purchaser, that they are responsible to all costs relating to that employee
Worker's Compensation · Basically the purchaser in an asset deal, because of the way the legislation reads the purchaser could end up responsible in an asset deal for worker's compensation o They will require vendor to produce a purchaser's certificate · In a share deal you can't get the certificate but in an asset deal you can and you should --> if you close and you don't have it if there are employees with worker's compensation claims it can add up o It can be made as a condition of closing in the agreement for a purchaser's certificate Human Rights · Share transaction --> stepping into the shoes of vendor --> as purchaser can get a dec in price or whatever · In terms of asset deal --> will typically take assets free of any liability arising under the Code o If there is an outstanding human rights obligation post-closure, the vendor will typically take it · If there are employees who require accommodation you, as the purchaser, want to be aware of that so that you are not breaching anything in place for employees · The other thing that comes up --> the purchaser has to be very careful about decision making process --> if the selection criteria relates directly or indirectly to the prohibited grounds under the Code it is going to become an issue later --> if the vendor can prove that the purchaser didn't take certain employees because of certain things it could be an issue · If you are asking your client about what employees you want to take on, you want to ask why it doesn't want to hire particular employees and if t hey are inactive employees you want to say what the risk is for not taking those employees Pay equity · You can actually be held responsible for things that go all the way back to 1993 · Purpose of Ontario Pay Equity Act is to address related job discrimination · The Act establishes the grps it covers and you have to have something in place in accordance with the Act · If you are acquiring a company that clearly has a group that is covered by the Act and the vendor doesn't have an equity plan and they are at your door you can potentially be at risk to be held for liability Occupational Health and Safety · Obligations have become more stringent in the past few years · Shared purchase --> step into shoes of vendor in terms of everything related to health and safety
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Asset purchase --> consideration should be given wh ether the purchaser is running the same kind of operation as vendor, whether it will be at same location o If the assets are being transferred and being operated in the same manner as the vendor then it is probably the case that any orders will still be applicable to the purchaser · The concern which prompted such directed the Minister of Labour can order same directives TOPIC: HUMAN RIGHTS IN E’MENT legislative underpinning in e‟ment stds regime has been somewhat std over the past few yrs e‟ment stds act form the rights that the e‟ee has ESA purports to apply to every category of e‟ee, but then makes stds for certain categories of e‟ees. Eg lawyers are exempted from OT, same w/ drs, professional engineers, etc. ESA is complex: need to know 4 things: 1) that ESA covers e’ees in Ontario, and forms that floor of rights, tf if drafting an e‟ment k and o there is a provision of 1 wks vacation, that is unlawful by virtue of ESA which says that after working for 1 yr, get 2 wks vacation; 2) E’er can’t retaliate: also need to understand in the context of protected leaves of absence from o work, e‟ees have certain rights w/ respect to pregnancy leaves, etc, there is also, in connection w/ the protected leaves of absence, is connection against reprisals, eg e‟ee takes a parental leave, and e‟er treats that e‟ee adversely b/c they have taken a protected leave of absence, that would be actionable under the ESA, not lawful for an e’er to retaliate against the e’ee for exercising their rights ; o 3) there is a machinery under the ESA for the litigation of complaints , that goes to the ministry of labour, there is an e‟ment stds branch, gets engaged when e‟ee files a complaint, tf if want to advise e‟ee, want to be familiar w/ this area of redress b/c the justice is swifter, is a speedier avenue; 4) there is termination AND severance pay obligations under the ESA , have heard a lot abt CL o reasonable notice, this w/ the statutory severance and termination pay in the following way: if an e’ee has been terminated , provided they aren‟t exempt from termination pay, they are entitled to roughly 1 weeks pay/yr of service. Tf 8 yr e‟ee entitled to 8 wks termination pay. If an e’ee has been employed for more than 5 yrs and the employer has a payroll of 2.5million or more in Ontario, than that e’ee is also entitled to severance pay. Under the statute, they are two distinct concepts. Sev pay is a wk for every yr of service, prorated for partial yrs up to a max of 26 yrs. This amt is in addn to the termination pay obligation. While termination pay can be provided w/ advance notice, sev pay has to be paid on the next pay period. E‟ment stds amt is subsumed w/in the overall calculation provided that is told to the e‟ee. In many workplaces, the floor of rights set by the ESA mins are exceeded by the terms and conditions w/in that particular workplace. If this is the case, eg you have an entitlement to 4 wks vacation, which is in excess of min. This is considered a greater right or benefit under the act, so the technical components of the act wouldn‟t apply to whatever is in excess of the Act. This can be an express term or an implied term. Impt to know that in pt 3 of Canada Labour Code (CLC), termination and severance pay is diff for fed reg e’ees and isn’t as generous . The protection around certain elements of the rights or entitlements are diff under the CLC. This brings us back to how impt that threshold is b/w whether e‟ee is fed or prov reg. One of the other choices that e‟ees are increasingly having to make when assessing how to assert their rights is whether to proceed singularly or not. o Class action is one or more P‟s can sue together. Advantages: more efficient, for P‟s w/ a common fact of law, can have same witnesses; also the costs o are shared amongst the class. Also, all the P‟s get something, so if there are limited funds, everyone gets a bit vs the first P off the block being the only one to get something. Also deterrence factor. Each cdn province has different class action legislati on o Hurdle in class actions is certification. Test for a successful certification see above, pg 42 o Primary difference b/w class actions and other litigations is the certification, and also, once a class o action is initiated, can‟t settle w/out a ct action While the P doesn‟t have to prove its case at the certification pt, it does have to prove that it has a case o – if there is no case, it won‟t get certified As of right now, no HR cases have gone class action way in Canada, but have in US, so may be matter of time.
A. General Introduction to Human Rights in the Workplace
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Previously would go to a commission who would decide whether you got a hearing, challenge w/ this system was that it would take a really long time. And given the imptce in the protection in the HR Code, critics considered this to be unacceptable. If the workplace is federally reg, are going before the Cdn HR commission, and ultimately maybe the Cdn HR tribunal – so is still a commission based system. But for the most pt, is likely going to be for provincially regulated clients, so will focus on the Ont system. But still have to ask as a threshold question, whether its provincially or federally regulated.
Ont System: Now e‟ee has right to go to the tribunal on their own and complain. Significant b/c don‟t have that vetting fn, also significant from the procedural fashion, b/c t he Ont HR tribunal assigns mediators to its cases, get ppl w/ personal experience adjudicating. There are two impt components of litigating in front of the tribunal : o 1) there are no cost consequences , so unlike civil litigation, if you bring a frivolous action, there are cost consequences; in the tribunal system, regardless of w ho prevails, there are no cost awards that are made. So from a financial perspective, there is less risk associated w/ bringing a HR complaint. 2) you can, as an applicant, represent yourself , which can‟t be done before the ct. tf from a cost o perspective, its more cost efficient. The HR Code guarantees equal treatment w/in the workplace and freedom from harassment on the basis of protected grounds (Section 5 of HR Code). Protected grounds means that there are certain characteristics or certain attributes that the Ont HR Code has determined is worthy of protection. o Protected grounds: race, ancestry, place of origin, colour, citi zenship, creed (Religion), disability, sex, sexual orientation, age, marital status, family status, same sex partnership status. Other key provisoions: 7(2) establishes freedom from workplace sexual harassment, o 7(3), freedom from sexual solicitation, o 8, freedom from reprisals (no retaliation for someone who is asserting a right under the HR code) o Impt to note that the concept of harassment (discrimination is diff from harassment, but legislators have set it out as protection of both on the basis of the protected grounds). The protection against discrimination in the workplace and the protection against harassment in the workplace has to be related to the protected grounds. Eg work in cheese factory and are leafs fan and are harassed b/c of this, there is no protection in HR code for this, but i f are harrased b/c of gender, creed, country of origin, this i s prohibited. o Interesting b/c there are lots of companies, organizations, etc that have respectful workplace codes, so the e‟ee you are assisting may have entit lement to protection in the workplace that is different from the code, eg policy could say no personal harassment, if so, perhaps this leafs harassment if sustained over time, perhaps could form the basis of a complaint of personal harassment but won‟t be the basis of a claim under the HR code. Question of what is discrimination? – differential treatment. In some respects seems l ike a really easy concept to identify but is actually a complicated concept, b/c really at the heart of the concept of discrimination is that there is a distinction that imposes different burdens or diff obligations on a person b/c they belong to a particular grp or b/c they exhibit certain characteristics . All discrimination is defined by reference to the effect on the complainant, and not by reference to the motive of the wrongdoer. Doesn’t matter if you didn’t intend to discriminate. And there is no reqmt that there be any deliberate, intentional or even careless conduct – is abt concluding that there is a discriminatory impact . Is impt to view discrimination as a flexible concept b/c views of what constitutes unlawful discrimination are constantly evolving. Once of the early defns of discrimination was in Andrews v Law Society – discrimination may be described as a distinction, whether intentional or not, based on grounds based on certain characteristics of the individual or grp which has the effect of imposing burdens, disadvantages of the grp, not imposed on others, or which withholds or limits access to opportunities, benefits, available to other members of society This defn shows that there has to be an impact on the individual alleging discrimination o Want to prevent ppl drawing stereotypical conclusions abt ppl on the basis of personal o characteristics
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Ultimately distinctions based on prohibited grounds are unlawful, but in order to put a compelling case forward, having an impact is impt – need the withholding of opportunity, etc, for someone to generally file a complaint
There are generally 3 categories of discrimination : 1) direct discrim, eg placard on door of firm saying “irish need not apply” 2) adverse affect discrimination, most commonly encountered, is indirect, occurs when an apparently neutral rule of policy has a discriminatory effect on a grp defined w/ reference to the prohibited grounds, eg if ran own airline and reqd that all pilots have to be 6 ft tall, adverse effect discrimination b/c likely that there are less women that are 6 ft tall then men, 3) concept of systemic discrimination, idea is that it‟s a combination of a number of rules, policies, practices and assumptions that operate to cause a discriminatory effect. Impact is on the exclusion from the workplace
Simpson sears case: [Duty to accommodate born] [Motive not reqd to sustain complaint of adverse effect discrim] - decided in 1985, Justice Macintyre for the first t ime, said that there was direct discrim, and adverse effect discrimination. Rule was that all e‟ees had to work on Friday nights and Saturdays – was face neutral, applied to all. But one of the e‟ees had adopted a religion where she couldn‟t work sundown Friday, and Saturday (Sabbath), ct held that this rule constituted adverse effect discrimination on the basis of creed (religion) . - Issue was, w/ cases of direct discrimination, if there was a rule, eg no irish need apply, and that was found to be direct discrim, the rule would be struck down , and the workplace wouldn‟t be able to have that rule since its discriminatory. The only way that a directly discriminatory rule can stand in t he workplace, is if the e‟er proves o that it‟s a bona fide occupational reqmt – have to prove that its necessary for the job. - Difference was if it was adverse discrimination, then the rule wasn’t struck out but rather, the defence the e‟er would have to meet was de monstrating that the individual couldn‟t be accommodated to the point of undue hardship - threshold was “undue hardship”, and it had to meet the overall reasonablness reqmt. - Tf can see that the determination as to whether something constituted direct discrimination or adverse effect, actually impacted the remedy. In Simpson Sears , ct held that this rule was adverse effect discrimination, so they didn‟t strike the rule, but held that the e‟er had a duty to accommodate the individuals which were adversely affected. This is where the duty to accommodate was born . Was a CL concept, wasn‟t originally introduced through legislation, but has been woven in to legislation. So in this case, sears had to accommodate o‟malley. Sears case also held that motive wasn’t required to sustain a complaint of adverse discrimination b/c purpose of HR law is to elim discrim , but punish ppl that made the wrong choices, also b/c some respondents do discrim for improper motive, but the effective enforcement of the codes‟ protection would be impossible if had to prove motive.
In 1990, TD bank implemented drug and alcohol policy that decided that it was going to drug test all e‟ees. Was challenged on the basis that it discriminated against drug addicts. Agmt was made that ppl that have a drug addiction are disabled, so are discriminating against disabled. Cts couldn‟t decide whether a mandatory drug testi ng policy was discriminating against e‟ees directly, or was it adverse effect discrimination b/c all e‟ees have to undergo the drug testing but only those that are addicts are going to fail. Yet the distinction was crucial, b/c one results in the rule being struck down completely so none of the bank tellers have to go through the test, or it becomes a question of accommodating an affected grp – the grp that would test positive. Issue was unresolved, so they brought into relief, a question that scholars had been writing abt, but bank didn‟t appeal to SCC b/c likely that they wouldn‟t win. So question was left open until Meorin case. What is Discrimination? The unified test for discrimination prohibited by HR legislation (from Meiorin ) BFOQ (bona fide occupational qualification defence) – test: to be a BFOQ, such as mandatory reqmt at a fixed age), has to be imposed, honestly, in good faith and in the sincerely held belief that such a limitation is imposed in the interest of adequate performance of the work involved, w/ all reasonable dispatch, safety, and
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economy and not for extraneous reasons, aimed at objectives that would defeat the purpose of the code . In addn, it must be related, in an objective sense, to the performance of the e’ment concerned, in that it is reasonably necessary to assure the efficient and economical performance of t he job w/out endangering the e’ee, his fellow e’ees and the general public . (last sentence is most impt)
British Columbia v BCGSEU [1999] 3 SCR 3 Issue: 1) the test applicable to s.13(1) and (4) of the BC HR Code, 2) whether on this test, Meiorin has established that the govt violated the code Men and women must have equal ability to meet the standard, if not, discrimination could be present and e‟ers must justify their std Held: Meiorin has demonstrated that the govts aerobic std is discriminatory and the Govt has failed to establish that it’s a BFOR. Appeal allowed There was no credible evidence that the prescribed aerobic capacity was necessary for either men or women to perform the work of a forest firefighter satisfactorily. Distinction between direct and adverse effect discrimination no longer present 3 step test, an e’er may justify the impugned std by establishing on the BoP : o 1) that the e’er adopted the std for a purpose rationally connected to the performance of the job; 2) that the e’er adopted the particular std in an honest and good faith belief that it was o necessary to the fulfillment of that legitimate work-related purpose ; and 3) that the std is reasonably necessary to the accomplishment of that legitimate work-related o purpose. To show that the std is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual e’ees sharing the characteristics of the clai mant w/out imposing undue hardship upon the e’er . Meorin has discharged the burden of showing the std discrimi nates against her as a woman – women generally have lower aerobic capacities. Next burden shifts to govt to demonstrate that the aerobic std is a BFOR (use test to do so) Steps 1 & 2 of test fulfilled by govt. Govt didn‟t estab it would suffer undue hardship if had to accomm M. Note: Real issue was not whether what happened was discrimination, ct accepted that std was unacceptable b/c it was developed based on averaging and there was no evidence that firefighters had to be able to meet the std. std was unacceptable b/c it wasn‟t possible for a woman to meet. Impt pt abt this case is that it rejects the disctinction b/w direct and indirect or adverse effect discrimination, b/c 1) distinction is artificial, 2) unrealistic, and in today‟s day in age, if an e‟er wants to discriminate, isn‟t going to do it directly, will do it indirectly, 3) there are different remedies, there is no basis for diff results, are talking abt discrimination here, 4) mclachlin also indicated that it was a questionable assumption that the grp affected was always minorities, tf at the end of the day, the size was irrelevant, 5) didn‟t want adverse effect discrimination to legitimize systematic discrimination – even if one individual was accommodated, it could still result in systematic discrim, 6) approach of making this disctinction was inconsistent w/ higher HR legislation, should be interpreted liberally, 7) approach was inconsistent w/ the charter, s15. Tf distinction rejected, and melded into a unified test Duty to accommodate HR Legislation, when considering undue hardship you consider: 1) costs, (v high threshold) 2) outside sources of funding, 3) health and safety reqmts. (plays larger role than cost, but need causal connection b/w accommodation & risk) Duty to accommodate was introduced in Simpson Sears case and since then has become an integral component of the analysis Duty to accommodate is a reqmt that has to be exhausted to the point of undue hardship. Analysis in Meiorin is whether or not the employer can accommodate up to the point of undue hardship. This requires the e‟er to modify work rules, practices, and reqmts in order to meet the needs of individual e‟ees who would otherwise be subjected to unlawful practices and be unlawfully discriminated against. Duty applies to existing e‟ees and potential e‟ees. Tf when thinking abt the hiring process, an agmt can be made that a
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potl e‟ee may have to be accommodated even before they become an e‟ee. Eg in this area is pre-e‟ment testing like physical testing. Duty to accommodate and the threshold of what constitutes undue hardship is i nfused by the circumstances. Tf duty to accommodate may be elevated for actual e’ees rather than potential . Duty requires an e‟er to demonstrate that it couldn‟t have accommodated an e‟ee w/out undue hardship. If the e‟er can establish this, then its esta blished the affirmative defence to an allegation of discrimination. Central Alberta dairy pool significance: provide a broader demonstration of what has to be accommodated. This is in contrast to the HR legislation which basically provides that you were limited to health and safety issues, financial costs, and outside sources of funding. Essentially t he statute created a much more limited concept of what can properly be considered in the dut y to accommodate question. Central Alta expanded this concept and said in the CL concept, can consider other things . Tf in HR cases, have tension b/w what the proper scope is. Can see that it‟s a proper view to take a more expansive view t o what should be considered. E’er bears the onus of showing that the e’ee was acco mmodated to a point of undue hardship – this is shown on a case by case basis. Size of the e‟er is generally a persuasive factor in determining whether the duty has been met. Larger e‟er w/ large workforce, will have harder time showing duty has been met, smaller e‟er may have more success arguing that an accommodation that‟s costly does in fact reach the undue hardship threshold. Also impt to note that one of the statutory considerations is cost, but that threshold is an extremely high threshold, in v few instances will the cost of accommodation be found to have triggered the undue hardship threshold. Safety considerations may have a larger role to pay in the accommodation threshold than cost . Question of health and safety considerations involves a determination of the risk that‟s involved in a particular accommodation. Here its impt that an e‟er can‟t use an agmt in respect of health and safety considerations as a blanket excuse to creating an accommodation. Rather there has to be a causal connection b/w the accommodation itself and potl risk either to that individual or to other individuals in the workplace. Duty to accommodate is a joint responsibility (e’er has onus but e’ee must cooperate) – e‟er will be reqd to establish that its been accommodating to the point of undue hardship so that a policy won‟t be discriminating, but also have reqmt that e‟ee cooperate. The std isn‟t the perfect accommodati on, eg e‟er has an e‟ee who suffers from disability, duty has been triggered, if there is an acco mmodation that‟s requested, or is clear to the e‟er that‟s reqd, the e‟ee has a duty to participate in that process. Not necessarily the perfect or ideal soln, but is a reasonable soln. Duty to accommodate can be extinguished by the e‟ees failure to cooper ate in that process.
Ontario (Human Rights Commission) v Ford Motors (2002), 22 CCEL (3d) 112 (SCJ) Roosma and other worker were member of a church that reqd them to observe a Friday Sabbath. Tried to not work Friday‟s but Union and Ford weren‟t able to arrange anything. Is the union a party to the discrimination? A union may cause of contribute to the discrimination by participating in the formulation of the o work rule that has the discriminatory effect o n the complainant. Here the union shares the obligation to take reasonable steps to remove or alleviate the discriminatory effect. A union may be liable for the failure to accommodate religious beliefs of a n e‟ee if the Union o impedes reasonable efforts of an e‟er to accommodate. Here the unions duty arises only when its involvement is reqd to make the accommodation possible and no other reasonable alternative resolution of the matter has been found or could reasonably have been found. Ford wasn’t able to accommodate – would have had effect on worker morale by upsetting seniority rules, also contributes to increased repairs reqd due to mistakes. No reason to reverse the decision below. Note: this decision wouldn‟t happen today. Strong dissent by Law, narrow contruction of defences, broad interpretation of prohibitions on discrimination. Accomodating 2 absences for 20 nights a yr w/ workforce of 1250 e‟ees doesn‟t meet undue hardship. Sulz v British Columbia (Minister of Public) 2006 BCCA 582 [E‟ees harassed in workplace could go to ct, BCCA] Facts: RCMP officer was subject to harassment from another e‟ee, she developed major depressive disorder and as a result took a medical discharge and then resigned. Internal investigation concl there was inapprop discrim on basis of gender but at the point he had retired and no action could be taken
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Ratio: E’ees harassed in workplace could bring complaints to ct and get potntlly higher damage awards than tribs. BCCA upheld $950,000 damages which wouldn‟t have got in BCHRT. Found RCMP vicar liab. Sulz case included to demonstrate what happens when accommodation goes off the rails. Is a worse case scenario for e‟er and e‟ee. Shows the damages and the relnship b/ w the conduct and the e‟ers failure and those damages.
Hydro-Quebec v Syndicate des employees [2008] SCJ No 44 [std for undue hrdshp ≠ impossibility: i s undue hrdshp] ct considers the interaction b/w the e‟ers duty to accommodate a sick e‟ee and the e‟ees duty to do his or her work facts: P had numerous mental and physical i llnesses and had missed 960 days in 7.5 yrs – dr recommended she shop work and would be unlikely to work on a regular basis. Was terminated for frustrating k. appeal allowed, Superior cts judgment dismissing the application for JR of the arbitration award affirmed arbitrator dismissed the grievance, he was of the opinion that the e‟er could terminate its k of e‟ment w/ the complainant if it could prove that at the time it made that administrative decision, the c was unable, for the reasonably foreseeable future, to work steadily and regularly as provided for in t he k the conditions suggested by the union‟s expert to accommodate the e‟ee would create undue hardship to t he e‟er, many things were beyond e‟ers ctrl issue at SCC is the interpretation and application of the undue hardship std std for proving undue hardship: what is reqd is not proof that it is impossible to integrate an e’ee who doesn’t meet a std, but proof of undue hardship, w hich can take many forms the purpose of the duty to accommodate is to ensure that persons who are otherwise fit to work aren‟t unfairly excluded where working conditions can be adjusted w/out undue hardship the purpose of the duty to accommodate isn ‟t to completely alter the essence of the k of e‟ment though the test isn’t whether it was impossible for the e’er to accommodate the e’ees characteristics. The e’er doesn’t have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so w/out undue hardship, to arrange the e’ees workplace or duties to enable the e’ee to do his or her work in a case involving chronic absenteeism, if t he e‟er shows that, despite measures taken to accommodate the e‟ee, the e‟ee will be unable to resume his or her work in the reasonably foreseeable future, the e‟er will have discharged its burden of proof and established undue hardship test for undue hardship: if the characteristics of an illness are such that the proper operation of the business is hampered excessively or if an e‟ee w/ such an illness remains unable to work for the reasonably foreseeable future even though the e‟er has tried to accommodate him or her, the e‟er will have satisfied t he test the e‟ers duty to accommodate ends where the e‟ee i s no longer able to fulfill the basic obligations associated w/ the e‟ment relnship for the foreseeable future the duty to accommodate must be assessed as of the time the e’ee was effectively denied an additional measure. Undue hardship resulting from the e’ees absence must be assessed globally starting from the beginning of the absence, not from the expiry of the three-year period (quote from McGill case which overturned CA) Hydro quebec case: is a most recent pronouncement of the SCC on the scope of an e‟ers duty to accommodate. In this case, the complainant was the e‟ee had physical and psychological conditions, had a high record of absence from work, almost 1000 days in 7 yr period. At the time the e‟ee was terminated from her e‟ment, she had been absent for 5 mos. Dr had recommended that she stop working for an indefinite period, and the e‟ers psychiatric assessment concluded that the e‟ee wouldn‟t be able to work on a regular and continuous basis w/out continuing to have absenteeism issues. So the e‟er determined it would be appropriate to terminate her e‟ment on that basis. E‟ee filed grievance (unionized context), alleged termination was unjustified. Grievance dismissed. B/c it was an arbitrators desn, review was JR, went to superior ct in QC, motion for JR dismissed, went to QC CA, found that the e‟er hadn‟t established that it was impossible to accommodate, and that the duty to accommodate had to be assessed when the decision to terminate was made. Tossed around the word “impossible” here – e‟er had to prove that it was impossible to accommodate – much higher threshold. Other thing the ct suggested was that you weren‟t looking at the totality of the e‟ment relnship but were looking at the 5 month period to det whether the e‟er had met its duty to accommodate. Case was appealed, SCC considered the issue. Ct allowed the appeal. Notable abt this desn is that
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1) the ct clarified that the CA test of “impossibility” was erroneous, lower ct had erred in stating that the std the e‟er had to meet was impossibility, and it reinforced that the e‟ers duty was on the basis of the undue hardship std; 2) e‟ees shouldn‟t be prohibited from participation in t he workplace b/c of the association w/ a particular grp or b/c of a particular characteristic, the duty is in respect to inclusion in the workplace, rules should foster an inclusive workplace. More specifically in respect of a disability that results in an absence from work, ct considered when you meet the threshold of undue hardship in these circumstances – at what pt are you not discriminating in terminating. Std is, if an e’ee isn’t able to return to work for the reasonably foreseeable future, then the e’ers duty to accommodate is likely extinguished and the k of e’ment has likely been frustrated. Eg e‟ee in car accident, and its reasonable that they will return soon, not frustrated. Case is also impt from the perspective of disability and absence. 3) decision also impt when considering what period of time you are looking at when assessing the duty to accommodate – necessary to do so on a global basis. Not just looking at what happened most recently, are looking at the whole picture to assess the reasonableness of the actions and whether or not the e‟er has met the duty to accommodate.
Litigating Human Rights Issues: An Introduction to the Human Rights Adjudication System
Board of Governors of Seneca College of Applied Arts and Technology v Bhadauria [1981] 2 SCR 181 issue: should this ct affirm the recognition by the ONCA of a new intentional tort P made 10 separate applications to the D college for a teaching position, was never given an interview. She claimed there was discrimination against her b/c of her origin (East Indian) and that the College was in breach of a duty not to discriminate againt her and also in breach of s.4 of the Ont HR Code Ratio: discrimination doesn’t constitute tort b/c OHRC provides protection and an avenue to address issue. Open to complainant to pursue rights under Code but not w/ civil action on basis of discrimination tort. Appeal allowed Note: the post 2009 steps for litigation are much simpler and premised on the idea that everyone has a right to a hearing w/ a prima facie case. Seneca College : Beduria has applied to Seneca 10-11x, was never granted an interview, argued this was on basis of ethnicity. Brought tort action. SCC concluded that there was no tort of discrimination. Ipmt abt this case is that this was the case upon which the foundation was built that there was no tort of discrimination, so there was no basis for a civil action to remedy a discriminatory breach or conduct. Tf stood for the proposition that you couldn’t sue b/c you had been discriminated against – wasn’t a civil action. Policy reasons what there was an administrative tribunal set up to deal w/ these issues, tribunal is an expert, ct wasn‟t. When revisions took place in the HR system in Ont, as pt of these revisions, Seneca Coll ege v Bedur ia has been overturned from the perspective that its possible to sue in civil ct for discriminatory conduct under the HR code, provided that its plead w/ another proper civil action .
*After had a surge of HR complaints, expected 2500 complaints in 09, 3500 filed, avg time is 352 days from filing to hearing – quicker than old model but slower than expected, issue of resources, not enough decision makers. Commission holds more of a research role now, act as intervenors. Tribunal has a broad range of damages it can award: special damages (loss of income), general damages (had $10,000 cap under old system, gone now and cover compensation for violation of HR‟s), can also award reinstat ement which the cts cannot, formal apologies, introduce anti-discrimination policies – non financial remedies are broad. Bill 107: Act to Amend OHRC – tribunal alterations as discussed – eliminated commission investigative authorities, no longer have formal carriage of complaint, assumed individuall y by complainant – direct access to tribunal. There are no HR recourses available when you have a crim conviction for which a pardon hasn‟t been granted or if charged w/ an offence (in Ont), can refuse to hire on that basis alone. In BC conviction has to be causally connected. Age: used to be def‟d more narrowly as over 18 and under 65 (can‟t discrim based on age in that category) but doesn‟t mean they don‟t have rights under CL and ESA just no HR protection. As a result many companies reqd
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retirement at 65. First case to test this: McKinley v UofGuelph (stated in Greater Van ), had a mandatory retirment policy and 8 profs and 1 librarian brought complaint saying policy and provision in OHRC that exempted violated the equality provisions in the Charter . CA found University wasn‟t a govt agency so no Charter protection and upheld mandatory retirement and provision in HRC. Agreed OHRC violated Charter but held justified under s.1 as reasonable limit on equality rights due to the need to protect young e‟ees, policy of organization, pension, structuring, tenure. Audmax Inc v Ontario (Human Rights Tribunal) 2011 ONSC 315 (CanLII) Saadi dismissed from e‟ment 6 wks after hired, was a Bengali-Canadian Muslim woman who is legally blind, Saadi is alleging she was discriminated against and harrased during the course of her e‟ment b/c of her race, colour, ancestry, place of origin, etc (creed and sex), and that this pattern of conduct culminated in her dismissal based on those same discriminatory grounds E‟er says she had been dismissed for cause Adjudicator concluded there had been discrimination, audmax seeks JR of t he decision Dress code not discriminatory – it may be that the dress code was to some extent subjective and a reflection of personal taste, but that doesn‟t make it discriminatory Adjudicator made ir rati onal decision by concluding that discrimination had occurred w/ respect to the dress code, he ought to have considered whether the dress code, or the e’ers enforcement or interpretation of it, conflicted w/ what the e’ee was reqd to wear as pt of her religion Impt b/c decision highlights need for both procedural and substantive fairness w/in the tribunal process. In this case, the tribunals written reasons were deficient, ct concluded that the written reasons could lead to a finding that the decision itself was unreasonable. Is impt b/c the tribunal adjudicators are being put to a level of scrutiny as a result of their written reasons, and this could result in a finding that the decision itself was unreasonable. So impt to draw from this case that the ct is reinforcing the importance of reasons in determining the underpinning of the decision on its merits . In addn, ct found that the tribunals reasons were so inadequate that they failed to provide the parties w/ the min reqmts of procedural fairness, so the reasons weren‟t adequate to explain the basis for the decision or to permit meaningful appellate review, tf breached principles of procedural fairness and nat justice. Ct also not pleased that the tribunal had failed to advise an unrepresented e‟er of its options i n terms of obtaining a video recording from an absent witness. Also considered tribunals approach was unreasonable when it failed to consider late evidence by the unrepresented e‟er. Impt to know that the st d of review for a decision of an expert tribunal like the HR tribunal, is reasonableness. Decisions of an expert tribunal like an expert tribunal have to be afforded the highest degree of deference, and the question is does the decision fall w/in the possible range of outcomes. Is a v deferential standard. Impt t hat even on a v deferential std, there were deficiencies that all flowed from the written reasons. Tf pt b/c if receive decision from HR tribunal, that the reasons provide a basis to understand the decision and provide a basis for JR if necessary. The deficiency in reasons can be felt from a substantive and procedural perspective . Stokes v St Clair College of Applied Arts and Technology 2010 ONSC 2133 [Post HR Revisions] Stokes sought damages for failure by his supervisor k to accomomodate his medical condition, stokes also claimed against strausser saying he knew of his medical condition & had last say on how stokes was treated case gives summary of law as it stands post revisions in HR system. Gives understanding of the scope of the ability to argue a breach of the HR code as pt of other civil litigation. Practical imptce is that you will not routinely have allegations of discrimination and harassment included, and these require a di fferent analysis and a different perspective then the assessment of just cause, etc that termination may have. Also means that cts can award damages for HR breaches on t heir own, so adds to the damages that can be claimed in a wrongful dismissal suit. Discrimination in E’ment based on Prohibited Grounds - Protection in Human Rights Legislation Discrimination in hiring process Is impt to remember to be aware that potl e‟ees do have protection under the HR code. E‟ers aren‟t able to make decisions abt hiring on the b asis of prohibited grounds. Questions connected to the prohibited grounds are legally impermissible. In some narrow circumstances there may be an agmt that there is a BFOR associated w/ one of those grounds. Eg questions of religion if going to work for catholic school bd, this may be permissible. But generally speaking, questions around the protected grounds are off limits. Other way this comes up is in pre-e‟ment testing. Eg drug and alcohol testing, psychological testing, etc. If
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on the BFOQ std can establish that its necessary for the performance of the job, its probably permissible, but the question needs to be “does it give the e’er information abt a protected ground” . If it does and the e‟er makes a decision using that information, the decision could be impugned later as discriminatory. Eg e‟ee doesn‟t pass on basis of skill and decision made, likely ok, but if doesn‟t pass on basis of age and decision made, probably not ok. When an e‟ee is employed, there are variety of protected grounds and discrimination on the basis of a protected ground will constitute unlawful discrim if its not justified as a BFOQ.
Discrimination in e’ment on the Basis of: Age Age used to be defined under the HR code as “18-65”, couldn‟t claim under HR code if not in that range. As a result, many organizations had mandatory retirement policies. Tf many unions used th is as a component in their collective agreement, was a trade-off, as an e‟er would agree to seniority provisions, better pay etc, but the e‟er has the certainty that it would end at some pt, eg age 65. Mandatory retirement policies were v common, but then e‟ees started challenging them. McKinley v University of Guelph : (dealt w/ in Greater Van case, below), McKinley challenged the retirement policy along w/ others, argued that the mandatory retirement policy that applied at age 65 violated s.15 of the charter and s.9 of Ont HR Code. Note at this time, age was defined as 18-65, so HR commission decided not to hear the case b/c all complainants over 65. So matter went before the cts. Majority found that universities not pt of govt, tf not subject to charter, but went to on to say that if they were subject to the charter, whether it violated the charter. All concluded that the mandatory retirement policies violated s.15. Issue was whether it was saved by s.1. Majority found that the objectives were pressing and substantial, policies were rationally connected and the measures impaired as little as possible – tf saved by s.1. Talked abt the effect of mandatory retirement policies on the organization of the workplace and the access to opportunities for younger workers.
Greater Vancouver Regional District Employees' Union [2001] BCJ No. 2026 (BCCA) (redacted) Prowse JA (majority): Agrees w/ the majority of arb panel that there is an onus on a govt e’er whose mandatory retirement policy has been found to be in breach of s.15(1) of the charter to justify its policy under s.1 of the charter. (doesn‟t think that McKinley stands for the proposition that all govt mandatory retirement policies that don‟t violate prov HR legislation are tf justified under s.1 of the Charter) Facts: E‟ee hired, two days before commencing work, its discovered that he is 65, so was terminated according to the e‟ers mandatory retirement policy. Was a unionized context, matter went to arbitration, arbitrator struck down mandatory retirement policy as bein g contrary to the charter. Appeal to BCCA by e‟er is dismissed. CA holds that the mandatory retirement policy was discrimi natory and wasn‟t saved under s.1 of the Charter. Ct notes that the decision of the SCC in McKinley doesn‟t stand for the proposition that all mandatory retirement policies don‟t violate, or that all will be saved under s.1, rather that the onus was on the e’er to prove that it didn’t v iolate or was saved . Ct said that these policies undermine human dignity, mandatory retirement policies discriminate on the basis of age w/out regard to individual circumstances w/out regard to individual circumstances, capacity or merit. Also says that if that is what McKinley stands for, then perhaps its time for SCC to reconsider (this case was 11 yrs after McKinley). In 2005, Ont HR code amended to change the defn of age (Bill 211), code now defines age as being over t he age of 18, tf cap of 65 now eliminated, tf its possible to bring an agmt regarding discrimination based on age for workers over 65. Impt to note, that despite the change to the defn of age, Ont HR code amendment retains provisions in the ESA ensuring that the continuation of benefits like disability, insurance, health benefits to e‟ees 65 or older will continue to be at the e‟ers discretion. Tf impt to understand what is the factual underpinning that supports an e’ees view that they have been discriminated on the basis of age – if has to do w/ benefits, then may not have been discriminated against. At end of the day, mandatory retirement policies are discriminatory under the code, and can only be saved if it‟s a BFOR . Espey v. London (City) [2008] OHRTD No. 415 (redacted) Issue: does the mandatory retirement age of 60 for suppression firefighters violate the Ont HR Code? Complainant alleges mandatory retirement age constitutes discrimination in e‟ment on the basis of age that hasn‟t been justified by the respondents
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City concedes its discriminatory but say that they have met their onus to justify the provision as a bona fide occupational reqmt In Dr. Wisenberg‟s view, age remains the best indicator of risk in the popln i n general, unless a patient has a calcium score of zero, indicating no coronary artery calcium on a CT scan. Calcium scoring testing or myocardial perfusion imaging better than age. But t hese methods haven‟t been proven w/ firefighters, age remains the best indicator. To prove mandatory retirement is reasonable and a bona fide occupational reqmt, respondents must prove (Meorin test) First two steps of Meiorin met – b/c of increasing risk of cardiac events w/ a ge, and the effects of o a cardiac event on the work of a firefighter, mandatory retirement is rationally connected to the work of a firefighter to protect health and safety. Its also evident that this std was adopted in good faith to promote the work-related purpose of p rotecting health and safety. Third step: found it was satisfied b/c 1) the medical evidence led established that increasing age o contributes to the increasing risk of a cardiac event, the increased risk of a cardiac event while firefighters are responding to an emergency was particularly high, and safety consequences of such an event while on duty to public, individual and co-workers was grave; 2) there was no individualized testing that would allow a better assessment than age, 3) mandatory retirement as a method of dealing w/ the risks to firefighters and to the public, was negotiated by the union, was in the collective agreement, and continued to be supported by the union. Tf there was focus placed on the unions participation in agreeing to the policy. Tf no violation of the code, provision was reasonably necessary and modifying that std would cause the e’er undue hardship . Respondents have met their burden of proof to justify the prima facie discrimination on the basis of age, based upon the combination of various factors that apply in the circumstances of this case. Article 17 is necessary to accomplish its health and safety purposes and that modifying it would cause undue hardship. Complaints dismissed . Note: Tribunal left open the question of an individual firefighter still being able to come forward where the medical evidence demonstrated that they were an extremely low risk – tf left open fact that accommodation of an individual may be required. See Baker case (next).
Baker v. Cambridge (City) 2011 HRTO 1167 (reacted) This case deals w/ the issue that wasn‟t decided in Espey: where an individual firefighter initiates a request for an exception to the mandatory retirement date based on his or her individual risk of cardiac events and medical evidence suggests an extremely low or negligible risk of cardiac events in that individual, accommodation may be reqd Facts: Respondent had mandatory retirement at age 60 (“mandatory retirement poli cy”) but in response to applicants request to continue working past 60, respondent put in place policy where could continue working if took a test and passed (“accommodation policy”) – applicant refused to take the test and didn‟t propose any alternatives, tf was reqd to retire at 60 – had duty to cooperate, see below Concl: the respondent has met its onus to prove that its accommodation policy, which requires that an individual firefighter who wishes to continue working after the mandatory retirement at 60 successfully complete a fitness test, is a BFOR. Tf respondent didn‟t discrim against the applicant on the basis of age in violation of the Code in requiring him to demonstrate that he was fit to perform the work of a suppression firefighter as a condition of the continuation of his e‟ment after the mandatory retirement at 60. Respondent didn‟t challenge that the differential treatment of those over 60 was prima facie discrim contrary to s.5 of the Code, respondents main agmt is that the accommodation policy is a reasonable and BFOR, and tf the reqmt that the applicant successfully complete the test represented a reasonable effort to accommodate the applicant up to the pt of undue hardship To determine if the accommodation policy is a BFOR (meiorin test): passed test In Central Okanagan School District No 23 v Renaud (2 SCR 970, 1992), SCC held that an individual e‟ee seeking accommodation has a duty to cooperate in the identification and implementation of reasonable accommodation measures – here applicant refused to cooperate The applicant‟s duty to cooperate includes an obligation to make clear his objections to the proposed policy Concl: the accommodation policy doesn’t violate the Code, respondent has met its burden of proof to justify the prima facie discrim on the basis of age, respondent has established that the accommodation policy is reasonably necessary to ensure its health and safety objectives and that modification of the policy would create undue hardship
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Tribunal considers the accommodation policy, and concludes that the city had met its onus to prove that its accommodation policy (fitness test), was a BFOR. As a result, the city didn‟t discriminate against the applicant on the basis of age when it reqd him to demonstrate that he was fit to do the work as a condition of his e‟ment past the age of 60. Reinforced this concept that individualized testing itself may be discriminatory or unlawful, and it can‟t be a foil for otherwise unlawful conduct, but i t also may be a method by which an e‟er can accommodate an e‟ee under the code. Ultimately in this case, given the impact of age on fitness, b/c of this evidence, the use of fitness tests was valid in this circumstance and it was reasonably necessary for the cit y to adopt a policy for e‟ees over the age of 60 who wanted to work to submit to tests as a pt of the accommodation process.
Family Status (largely ignored area of HR protection until recently)
B. v. Ontario (Human Rights Commission) 2002 S.C.C. 66 (redacted) facts: Mr A fired in sept 99 from D Ltd, firm owned by 2 bros, Mr C and Mr B. B and C were bros to Mrs A and uncles to the daughter of Mr A and Mrs A. Mr A‟s daughter accused Mr B (her uncle) of sexually molesting her as a child (daughter had been i n therapy for some time and could recall being molested but not the identity). Ont CA desn: concluded discrim had been established SCC ratio: grounds of marital and family stat us are broad enough to encompass circumstances where the discrimination resulted from the particular identity of the complainant‟s spouse or family member. Focus is on the harm to the individual. The termination had nothing to do w/ his individual merit or qualifications but b/c he was married to Mrs A. Awarded damages. Its clear that the terms “marital status” and “family status” encompass discrimination clai ms based on the particular id of a complainant‟s child or spouse Note: This is the first case that has a more expansive defn of family status. Prior to this, family status was limited, and the only other significant case was, where a woman who worked at a bank who was married to a bank robber, woman was terminated. She was successful. Ct notes that the termination had nothing to do w/ A‟s qualifications, merit, etc, was solely linked to the allegation his wife made against B. Tf this case kickstarted the consideration of what constitutes discrimination on the basis of family status. Case law is v divided on this issue. Big question is the kind of accommodation that‟s necessary based on someone‟s sitn – eg someone saying that they can‟t work the night shift b/c of child, does this trigger the e‟ers duty to accommodate and the family status protection? Are essentially two lines of jurisprudence that have emerged. One line: a prima facie case of discrimination can be made out that an act by an e‟er that affects o those w/ familial obligations can be discriminatory. (this view mainly from tribs + big workplaces) Other line: more restrictive approach, basically says that most ppl at some pt in their lives have o familial obligations, may not be to your own children, may be to spouses, etc, and to accommodate everyone‟s familial needs is impossible and unreasonable, so t he e‟ers duty to accommodate on the basis of family status o nly transcends the every day balancing b/w family and work that most cdns have. Eg family has special needs child and there are additional accommodations that the parent has that o ther parents don‟t have – this parent may have a more successful argument that their family status requires accommodation. (views more from provs) Impt to know the distinction b/w these two approaches and the evolution of the case law. Need to wait to see what it going to emerge as the proper view. She thinks t he more narrow approach is going to emerge b/c broad approach is unworkable. Sex (This area has also undergone evolution): discrimination grounds can often overlap (exam), Meiorin was discrimination based on sex and there are often a multitude of HR grounds being clai med. May see a family status and sex complaint, time off to care for son – would cts grant to man?
Janzen v. Platy Enterprises Ltd [1989] 1 S.C.R. 1252 (SCC) (redacted) [duty to investigate born] Issues: is sexual harassment sex discrimination? Yes, discrim on the basis of sex may be defd as practices or attitudes which have the effect of o limiting the conditions of e‟ment of, or the e‟ment opportunities available to, e‟ees on t he basis of a characteristic related to gender Common to all descriptions of sexual harassment is the concept of using a position of power to o import sexual reqmts into the workplace thereby negatively altering the working conditions of e‟ees who are forced to contend w/ sexual demands
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Sexual harassment in the workplace may be broadly defd as unwelcome conduct of a sexual nature that detrimentally affects the work envt or leads t o adverse job-related consequences for the victims of t he harassment – it is an abuse of power Is the respondent liable (the e‟er)? This issue settled in Robichaud v Canada, yes, statute requires that e‟ers be held liable for the o discriminatory acts of their e‟ees where those actions are work related. Tf on the basis of Robichaud, respondent, Platy, must be held liable for the actions of the cook. Cooks actions fall w/in the “course of his e‟ment” – e‟ers are liable for any action of their e‟ees which is work related Facts: Janzen and Govereau employed as waitresses at Platy, J alleged was sexually touched, manager was informed and he didn‟t take any steps to end the behaviour, J resigned from e‟ment. G was subjected to same treatment by e‟ee, and both the manager and the e‟ee that she had complained abt started verbally harassing and being verbally abusive. J and G filed complaint w/ HR commission, Commission found they had been subjected to sexual harassment and were victims o f discrimination on the basis of sex. Commission found e‟er was liable as well. Ct of QB upheld. Manitoba CA reversed, held that sexual harassment wasn‟t discrimination on the basis of sex so the e‟er couldn‟t be liable. Case ap pealed to SCC. SCC clarified and confirmed that sexual harassment is discrimination on the basis of sex . Ct also dismissed agmt that this e‟ee that had allegedly perpetrated the harassment, that he wasn‟t acting in the course of his e‟ment, b/c all his behaviour had taken place in the workplace, ct concluded that his opportunity to harass the female e‟ees was directly related t o his e‟ment posn, used his posn of authority accorded to him by the e‟er to take advantage of the female e‟ees. Was the responsibility of the e‟er to ensure that his e‟ees actions didn‟t constitute a violation of the HR code and that he didn‟t abuse the power that he held over the other e‟ees. Ct held that the e‟er didn‟t meet that std b/c the e‟er took no steps once the e‟ees actions were complained of and as a result clearly t he e‟er was liable for the acti ons of that e‟ee. This case is impt b/c there was confusion as to whether sexual harassment was discrim on the basis of sex. Also makes it clear that an e’er isn’t going to be able to argue that it was an e’ee acting on their own that engaged in that conduct and that an e’er would be liable for harassment b/w e’ees, as a result, the duty to investigate was born . Tf no longer ok for an e‟ee to make a complaint and for an e‟er to do nothing. Even if the complainant can‟t establish that they were subjected to discrimination, if an e‟er does nothing, that in and of itself can be a violation b/c an e‟er has an obligation to provide a discrimination free workplace. If it doesn‟t investigate a complaint, won‟t satisfy the reqmt that its met that obligation. (is the beginning of an obligation to do something abt complaints)
Simpson v. Consumers' Association of Canada [2001] O.J. No. 5058 (OCA) (redacted) Respondent was dismissed from posn as exec director of the appellant association in Jan 93. Issue on appeal is whether there was just cause for dismissal based on several incidents of conduct which the appellants say amted to sexual harassment of female e‟ees and created a sexually infused office envt Ont CA: disagrees w/ the concl reached by trial judge that the respondent’s conduct didn’t warrant dismissal, appeal allowed - Conduct of the respondent is sexual harassment warranting dismissal CAC had no sexual harassment policy (these policies were the norm) Trial judge failed to consider objectively Si mpson‟s admitted conduct towards female e‟ees, in t he context of assessing whether that conduct can be considered acceptable for the exec di rector in charge of all staff in an organization. As a result, trial judge made errors of fact and law It would be artificial and contrary to the purpose of controlling sexual harassment in t he workplace to say that after-work interaction b/w a supervisor and other e‟ees can‟t constit ute the workplace for the purpose of the application of the law regarding e‟ment related sexual harassment. It is an error to ignore the supervisory role of an e‟ee and treat him as one of the e‟ees No sexual culture existed in the workplace before simpson came on Simpson should have implemented a sexual harassment policy and shouldn‟t benefit from its absence Respondent‟s sexual conduct w/ the e‟ees affected the careers of several who resig ned or were dismissed The 6 incidents amounted to just cause for dismissal, appeal allowed CA said that there were numerous errors of fact and law made, but of primary importance was the error of finding that these events took place outside the workplace . CA found that three of the instances took place at meetings of the e‟er or at meetings at hotels, found that this fell w/in the defn of workplace, and that there were a number of social components of these meetings that were also considered to be the “workplace”. Ct also concluded that the trial judge had erred in determining that these ppl were friends and found that the posn of authority that t he ppl enjoyed vis a vis the other e‟ees, that he couldn‟t later argue
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that this was consensual – was a power im balance, they weren‟t friends. CA articulated concern abt the power imbalance and said that this imbalance creates concern abt events of a sexual nature. Is going to be a problem for the e‟ee and e‟er. CA rejected agmt of prevailing sexual cult ure which meant that the P wasn‟t going to be held accountable for his behaviour . Also fact that there wasn‟t a policy in place didn‟t allow this conduct to occur, and director was in the posn to implement a policy, tf he shouldn‟t benefit b/c of its absense. Also concluded that he used his posn to engage in this behaviour, and the P‟s conduct when viewed objectively and in its totality, was found to warrant a discharge. This case also examines the investigation. Ct notes that the P was given a fair opportunity to respond to the allegations. Of importance is the reqmt that in an investigation, we know that an e‟ee be allowed to provide a full response.
Fleming v. Ricoh Canada Inc. [2003] CanLII 2435 (ON S.C.) (redacted) Issue: whether the dismissal was w/out just cause E‟er has a duty to protect its e‟ees from sexual harassment. If there is sexual harassment th e duty requires that the e‟er act to end the abuse and to alleviate the impact upon the e‟ment envt The most prudent e‟er has a sexual harassment policy, and its incorporated into the terms of e‟ment E‟er who responds quickly and effectively to a complaint o f sexual harassment may avoid liability or not be liable to the same extent as an e‟er who fails to take such steps. Procedural steps may be sacrificed in t he face of the need for an immediate response Facts: Ricoh had a sexual harassment policy, was a term of flemings e‟ment. When fleming started, sexual atmosphere already present, let it continue. Fleming was of the view that he walked into this envt, he didn‟t create it. Ricoh policy was widely disseminated and the e‟ees knew abt it. Ratio: Fleming was terminated for just cause, his behaviour was of a willful misconduct, or willful neglect of duty, that isn‟t trivial, and hasn‟t been condoned by the e‟er. Fleming isn‟t entitled to severance nor termination pay pursuant to ESA Disability Jeppensen v. Ancaster (Town) Fire (2001), 39 CHRR D/177 (Ont HR case) (redacted) [Failed to accommodate] Facts: Jeppensen was volunteer firefighter, wanted to be full time firefighter, but vision i mpairment prevented him from gaining e‟ment (couldn‟t drive ambulance). He sought accommodation from the respondent for the full time positions and was unsuccessful Concl: respondents discrim against J on the basis o f disability, they failed to accommodate him by permitting him to perform firefighting and fire prevention duties only, when they were able to do so w/out incurring undue hardship. They tf infringed his rights under the code. Although meiorin removed the distinction b/w adverse effect and direct discrim, Ont Code kept it in s.11 and 17, tf how is meirin to be applied in the face of meiorin? (para 112) Issue is whether the reqmt imposed by the respondents that all full time e‟ees be legally qualified to operate an ambulance is prima facie discrimination – finds that it is, para 132 The relevant time period for evaluating the respondents conduct is from Nov 1997 when J first sought accommodation through to late 1998 when he abandoned his request for e‟ment Ratio: never explored abilities of what they could do to accommodate, just outright said no. When looking at number of firefighters, no persuasive evidence all full time were reqd to substitute for driving. Wouldn’t have suffered undue hardship to have one firefighter who couldn’t drive. Where you apply policy w/out exploring accommodation, often will find breach. Religion Protected ground under the Ont HR Code is creed – which is somewhat broader than religion. Creed means dealing w/ an established belief system, objectively held . Still apply Meiorin test. Differences when looking at religion : 1) am I talking abt a creed? Is this in fact a religion, a recognized system? Or is it a political system? When talking abt creed, some sitns are obvious, eg catholism, Judaism, etc., but what becomes more difficult is new religions. One established set of circumstances is a sitn involving an individual who was a prof, who had a strongly held belief w/ respect to the plight of the palistinian ppl. Problem arised b/w prof and york u. prof said york was discriminating against him on the basis of his creed. Ultimately, it was found to not be a creed but rather to be a strongly held political belief system.
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2) What is discrimination, whether we are discriminating against someone on the basis of? question often is, when is it that ppl w/ strongly held beliefs collide and what does that mean? Eg, case w/ shoppers drug mart worker, around xmas time, but up poinsettias, person was asked to put up poinsettias, e‟ee said it was a Christian based plant, and went against his beliefs. Manager said if refused, was fired. Ended up being fired, ultimately HR bd said that it was pt of a belief, was reasonable, e‟ee could be easily accommodated, there were other things he could do. This is a collision of the religious world and the secular world. This is an eg of what we are looking for. Is whats being done potentially going to cause someone to have to compromise in some way their objectively held religious beliefs? 3) what would be considered reasonable accommodation? is a question that arises from the Autocom case. This case involved, Mr. Markovic, who was pt of eastern European Christian church, celebrates xmas on jan 7. Statute provides holidays that you can‟t k out of, xmas and good Friday, anyone who works gets that holiday off w/ pay regardless of whether or not you are Christian. But other members of other religio us grps don‟t have their holidays recognized in that statute. Markowitz argued that he should get those t wo days off w/ pay. E‟er put a new policy in place, then went before adjudicator to see whether it breached. Opponent in this case was really the Ont HR commission. At first the commission took the posn that must give two days off w/ pay, then said had to give days off but had options. E‟er said that their obligation wasn‟t to give ppl paid days off, but it was to accommodate them. E‟er said that those two holidays that started as Christian holidays, have effectively become secular – secular pause days. There is no direct discrimination, aren‟t just given to christians, are given to all. Tf the only thing that can be said by others is that they aren‟t getting their own holidays off. Tf no obligation to give those days off, but to accommodate, and way to do this is to give a menu of options that effectively deals w/ each persons circumstances. Pg three of the decision sets out the menu. Sets out a menu b/c not every one of the circumstances is going to work for all ppl, key is to provide a broad enough range of options such that all can be accommodated. Ultimately the tribunal accepted the e‟ers position, b/c really they are trying to accommodate, and don‟t have to do it as the commission has argued, as a time off w/ pay. Its abt creating an accommodation that meets the need as opposed to what the e‟ee wants.
Markovic v Autocom Manufacturing , 2008 HRTO 64, (case was sent by email) [Oblig of e‟er to accom relig holi] M celebrates xmas on Jan 7, alleged A discriminated against him on the basis of creed by failing to pay him when he took time off for Orthodox xmas after M made complaint, A developed a policy for responding to requests to take time off for religious holidays. Question of law concerns whether this pol icy meets autocom‟s obligations to accommodate such requests under the HR Code and the appli cable jurisprudence Although Christmas and Good Friday ori ginated in western Christian observances, they are now considered secular pause days, tf schedule of work based on holidays recognized under the ESA is secular in nature and non-discriminatory on its face, but a work calendar which permits christians time off to celebrate xmas and GF, but which requires work on holy days of other religions is discriminatory in effect An e‟er that provides an e‟ee w/ options for achieving the time off through scheduling changes (that don‟t result in loss of pay) can satisfy its duty to accommodate religious differences. The “problem” is the need for time, soln is the enabling of time. Don‟t have to give two days of paid leave to mirror the public holidays on xmas and GF, short of undue hardship. Although dialogue and negotiations might have to occur w/ the e‟ee and e‟er , this is inherent in the nature of the accommodation process Duty to accommodate doesn‟t require autocom to provide up to 2 days of paid leave at the option of an e‟ee, unless undue hardship is shown Concl: by providing a process for e’ees to arrange for time off for religious observances through options for scheduling changes, w/out loss of pay, Autocom’s menu of options is appropriate and consistent w/ the code and the jurisprudence Occupational Health and Safety and Workers' Compensation Discussion of occupational health and safety/workers' compensation issues relevant in the e’ment relationship Purpose of OHSA: no particular purpose statement contained w/in OHSA, cts have been consistent in saying that the purpose is to set minumum health and safety regulations in Ont, and is the main legislative vehicle in Ont, is a “remedial public welfare statute” – means that its going to be given a broad and liberal interpretation by the cts, tf when there is a labour relations issue raised, will see reference to this, cts will rarely accede to a narrow interpretation. Expansive interpretations given to particular provisions under the act
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Concept of the internal responsibility system: this concept means a system w/in an organization wherein every workplace party has a responsibility and role in e nforcing health and safety and ensuring health and safety stds in the workplace. Tf its expected that the workplace parties will ensure that the min stds are met or exceeded. Lots of regulators push activity in resolving health and safety issues back to the workplace parties. Usually issue an order saying you are offside, workplace party has to fix it Arising from the internal responsibility system are the three main rights of health and safety : 1) the right to know – the right to be informed of potl health and safety hazards and how they are o going to be remedied, o 2) the right to participate (in health and safety in the workplace), o 3) the right to refuse unsafe work (will find this right in every piece of legisltn across the country) OHSA will not apply to a private resident, or a servant, etc of the private resident, eg a nanny, housekeeper, gardener, these circumstances may not attract OHSA. OHSA also has limited application to farming activity, presently limited to farms where there are paid workers, the traditional family farm remains exempt. Federal workplaces also not under OHSA, is covered by pt 2 of the Canada Labour Code. Workers: for occupational health and safety reasons, doesn‟t matter if you are an e ‟ee or an indep k . Hook is “for monetary compensation” – tf if you are a volunteer, OHSA doesn‟t apply. Eg Habitat for Humanity not covered by OHSA. If aren‟t being paid at the time the accident occurs, then its questionable whether the OSHA will apply. Blue Mtn case that will before the CA soon, Christmas eve 2007, guests staying in resort, one drowned in a pool, person who is deceased isn‟t a worker, ministry of labour not notified, ~3mos later, ministry of labour worker doing audit, learns abt death, says that it should have been reported, section has a reporting reqmt that where there is a fatal accident to a person, have to report. Blue mtn is concerned b/c along w/ obligation to report is obligation to hold the scene, which is to not move anything until Ministry of Labour investigates. Labour relns bd says no, the act says “person”, tf have to report. Issue is t hat under the case right now, have to hold the scene every time a critical accident occurs to a person b/c the act applies, tf in gym classes in schools, if someone breaks arm, have to hold the scene Supervisor: whether you are a supervisor is dep on a number of factors, and it can include ppl like lead hands. Cts will look at who has actual authority over health and safety issues . Tf the obligations that o attach to a supervisor would apply. o Also apply if you aren’t present in the workplace all the time . Just b/c you aren‟t there, if you still have authority and are carrying out that authorit y, can be a supervisor under the act. o Also, in large organizations, someone could be highly placed and not necessarily directing front line work all the time, that person could still be considered a supervisor. o Cumultative: If someone has overall managerial responsibilities, can hire and fire, determined who was on a particular crew, met w/ superintendent, was pt of the chain of command, tf have lots of operational or hands on authority w/in t he workplace, etc, can be considered a supervisor. Tf supervisor can apply to a wide variety of ppl . Employers: is someone who employs one or more workers or contracts for the services of one of more workers. Tf are an e‟er if you employ workers or are in the indep k relnship. Whyson case, CA, defn of e‟er is intentionally broad, is intentionally meant to cover all these circumstances, this is still good law. Constructor: (there are diff terms given to this role in other legislation in other jurisdictions), constructor is a person who undertakes a project by themselves or for an owner, or for more than one e‟er. The constructor has arguably the broadest duties that can be imposed under the OHSA. Eg think abt a new subdivision of construction, constructor responsible for entire project. eg doing construction work, hire contractors, electricians, etc, and the work is being performed at the same time, there is a significant risk that the owner would take on the constructor role and be responsible for everything happening on the project. Constructor can be the one who was making the decisions at the time, there won‟t be a mechanical application of the defn of constructor, there will be a detailed and contextual analysis of what is actually happening on site. Cts will look at what is happening in practice and this will be what determines who is the constructor of a particular project. Workplace: under the OHSA, is defd w/ reference to a worker, tf i ncludes any building, factory, etc, but al so includes vehicles, farm equipment, etc. Blue Mtn decision comes back in at this pt b/c what the labour relns bd said was that it was reasonable o for determining what is a workplace, that the entire blue mtn property was a workplace and that locations w/in that entire space wouldn‟t cease to be a workplace just b/c workers would move in and out of it during the day. Tf application to other places, eg city of Toronto, does that mean that the entire city is a workplace? – could create a potentially absurd consequence.
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Rights and obligations and specific reqmts placed on a workplace party : are contained in every act, in OHSA in s.25-32. Workers are expected not to work in a manner that will endanger any worker. o There are circumstances where a worker will be prosecuted, Wheelen and Campbel working as pt of tree cutting crew, were tasked w/ cutting down danger trees (by powerlines, etc), Campbell was head of crew, was doing the cutting, Wheelen was more jr member, was picking up what fell. Was supposed to be using guide lines (so trees fall in particular spot), but was using notch and drop method, imprecise method, wind comes, tree falls where it isn‟t supposed to, hits power line, Wheelen electrocuted, was triple amputee, etc. Cambell is charged and prosecuted for his actions, he argues that you can‟t convict him b/c he was operating w/in a system by the e‟er that was so deficient under health and safety, have to show that he was operating w/in a fning and robust health and safety system – ct rejects this agmt, no condition precedent, if this were to be the case, then wouldn‟t be able to hold the worker responsible where their colleague needs them the most. Is a confirmation of the internal responsibility system – if the worker himself could have worked safely, should have. Unless the worker has an immediate hands on role in the accident, seems unlikely that the ministry will take action against the worker, they look generally at those above them in the workplace. Note: defns of the workplace roles aren‟t mutually exclusive, can be a supervisor and a worker. Supervisors also have communication duties, are expected to inform workers of any hazards w/in the workplace. Are expected to take every precaution reasonable for the protection of workers w/in the workplace – is a basket clause. Ministry uses this particular provision to enforce against supervisors. Ministry of labour today is enforcing a lot more against supervisors than in days past. E‟ers have the broadest duties under the act – are two full sections of duties under the act. They also have the basket clause – that the e‟er should take every reasonable precaution for the protection of workers in the workplace. Who is going to be considered an e‟er has been dealt w/ by the cts recently. Constructive duties only exist only if there is a constructive project underway.
Joint Health and Safety Committee: threshold for this is where there are twenty or more workers employed by a workplace. issue w/ indep k‟ers. United case, drivers and operators were all indep k‟ers, w/ indep k‟ers had ~120 ppl. After an o accident, ministry of labour prosecutes company for failing to have a joint health and safety committee, company says that they didn‟t have more than 20 ppl. CA says that everybody counts for the purposes of the joint health and safety committee threshold . Reason was b/c it wasn‟t in question that United was an e‟er as defined by the act, and it wasn‟t in question that indep k‟ers were workers for the purpose of the act. T f b/c they were an e‟er, then it makes sense that they were employed, tf the ct said that they were employed for the purpose of t he threshold. But question that isn‟t addressed was “were they regularly employed at the workplace”. CA doesn‟t say what the workplace was, just simply includes them for the count. Thinks CA intentionally ducked this question Committee: reqmts depending on size of workforce – 2, or 4 ppl if more than 15 (?) ppl. Only current e‟ees can be on the committee. In terms of management, less strict, expectation is that management will work at the facility, but not as strict. Typically have more than the min, especially if the workplace is unionized. Generally need at least one certified worker – means that they have gone through a training course on the Act, are also expected to get a pt 2 certification which is hazard recognition. Upshot w/ having a certified member is that the expectation is that the worker certified member be involved in investigations, etc. Fns and duties of the committee: o main fn: resolve H&S issues in the workplace by iding hazards & making recommendations. o Expected to meet every 3 mos, have to produce minutes, often posted in t he workplace. Is an expectation that the workplace would be inspected, has to be inspected by a worker member. o Legal reqmt in Ont is that this happen monthly, but if this is impractical, then its expected that at least pt of the workplace be inspected once a month such that the entire workplace be inspected yearly. o Bill 160, once enacted will allow either the management or worker cochair to make recommendations w/out requiring the consensus of the committ ee (have to reasonably try to get consensus). Upshot of getting a recommendation is that the timetable and reqmt to respond remains unchanged. Committee needs to be given the reqd time to perform its functions, eg time off work to go to o meetings, resources to produce minutes – this falls back to the e‟er. If an e‟er gets a report in respect of health and safety, there is an obligation to produce that report for o the committee. While workers are doing work for the committee, are reqd to be paid.
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At workplaces where there isn‟t 20 or more workers: yes, when more than 5 but less than 20, have a health and safety representative. Bill 160, is introducing a new training reqmt for health and safety reps – previously there wasn’t . Canada labour code has a provision for a policy health and safety committee – threshold is if there are more than 300 workers, are expected to have this policy committee. This is different than under provincial legislation
The Right to Refuse Work: this right exists in every jurisdiction in Canada. Are di fferences in diff places though. In Ont, the worker has the right to refuse work where the worker has “reason to believe” Note: impt is the words, “reason to believe” – these words have been held to mean that it‟s a very subjective test, tf as long as the worker has reason to believe, then they can refuse. Tf worker is entitled to be wrong, if its not borne out by investigation, then the worker isn‟t entitled to discipline. Have the right to refuse on the basis of workplace violence. Amendments to OHSA – can‟t refuse on the basis of workplace harassment for the purposes of healt h and safety. How a work refusal occurs in practice is that there is no magic word, all they have to do is raise a health and safety concern and say that they are refusing . Expectation is that once the worker has identified that they are refusing is that they will immediately identify that to their e‟er. E’er then has to investigate (duty born in Janszen) – rare to not investigate, is advised that e‟ers investigate. Is called stage 1 workplace refusal. Stage 1: e‟er investigates & either makes changes as result of complaint, or says its not likely to endanger. Stage 2: the worker continues to refuse. It changes to a more objective test here , the worker has to have reasonable grounds to believe. Upshot of this change is that it opens the door for discipline where there hasn‟t been a reasonable application of the right to refuse work, although it‟s a thorny process to discipline in these circumstances. For stage 2, ministry of labour comes to investigation, don‟t actually have to attend the workplace, o simply conduct an inquiry usually. If t he inspector finds that its likely to endanger, then issue orders. If not likely to endanger, put this in report and its expected that the worker will return to work. While the investigation is occurring, expected that t he worker will stay near the workplace so they can participate in the investigation. Other worker can perform the refused work, but they have to be told that its refused work. The refusing worker can be assigned alternate work, and they are expected to be paid. If the danger that they are complaining of is part and parcel of their ordinary work, then can‟t refuse, eg firefighter can‟t refuse to go into burning building. Under Canada labour code, is more broader , can‟t refuse when refusal will put another worker into danger. Anti-reprising provisions: can‟t as an e‟er impose any kind of financial or negligent consequence against someone who has sought to enforce their rights under the OHSA. If a w orker feels that they have been reprised against, have a few options. If it‟s a unionized workplace, aggrieved worker can proceed by grievance, or file a co mplaint. If non union, then only option is to file a complaint w/ the labour relns bd. There is no timeline for filing a complaint, so a worker is free to make the reprisal allegation at any time, however, if the matter is proceeding before the bd, the bd will inquire into the reasons for delay, will require the application to explain the delay and depending on what they hear, can choose not to hear it, will do so if there has been a lapse of 12 mos. Reason they do this is b/c if you are a respondent in a reprisal allegation, you have the burden of proof, if as the respondent you are unable to fully cleanse yourself of the all egation, then the applicant will be successful. Damages that are typically awarded will include compensation from the date of the complaint right up to the date of the decision, which can be a long time, could be over a years wages, plus there are other damages as well. Enforcement: there are govt e‟ees whose sole responsibility it is is to enforce occupational health and safety, can enter a workplace at any time w/out warrant and begin to audit. In ont, inspectors given v broad powers, are able to operate any material they want or order someone to operate it, can order the production of documents, interview ppl, etc. Limitations on their power, are few, aside from if they are investigating for the purpose of prosecution limits, limitations generally based on location, can‟t enter a d welling that is used as a workspace. Inspectors come in and inspect, if they find something that they believe is in contravention of the act, are empowered to issue orders. Orders typically says that t here is something in contravention, do n‟t say how the e‟er is supposed to comply, simply says to fix it. E‟er is expected to tell them when they are in compliance.
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Ability to issue stop work orders: where they believe that the breach gives rise to an imminent danger to workers. If inspector decides to issue this order, t hey can stop a particular activity from oc curring, they can decide to shut down a piece of equipment, or they can shut down a workplace entirely (common in the construction sector). The stop work order means that you can’t do any work, save and except for giving out remedial measures, until the ministry of labour lifts the order . If get an order and don’t like it, can appeal it to the ministry of labour . Must appeal w/in 30 days, bd has no discretion to extend time limit. Even w/ appeal, unless seeking stay/suspension, still have to comply w/ it. o To det if suspension granted, ask many ?s, main factor: if suspending the order will endanger H&S. o Will also look at whether there will be prejudice to the e‟er if they have to comply – this generally doesn‟t give much credence to the bd, don‟t care that you have to spend lots of money to comply. o Also look at whether your appeal has any merits, is it a strong case. o Also, bd generally gives lots of deference to ministry of labour inspectors, who have seen t he site, won‟t second guess the inspector at this pt in the proceeding, will do so after a hearing on the merits Hearings occur once you get to dealing w/ the order – v few go to hearing, end up being resolved by the bd. There is a prohibition against obstruction, have to provide all info reqd and can‟t knowingly provide false information. Fact that you have an obligation not to obstruct shouldn‟t be conflated w/ an obligation to cooperate – don‟t have to turn over everything, just have to not obstruct. Prosecution is the last resort. There are max penalties set out under the act in Ontario. Possibility of incarceration for individuals is rare, is t he exception not the rule. Every act across the county will have a limitation period, in Ont its 12 mos. Charges in this area are strict liability offences, it is an obligation on the prosecution to prove the offence beyond a reasonable doubt, then defence is due diligence. However there are some mens rea offences w/in the act, eg knowingly providing false information, prosecution would have to prove knowledge. In 2004, provisions of CC related to crim negligence were extended to cover workplace , was a result of the mine disaster in NS where miners were killed. Amendments allowed organizations to be convicted of criminal negligence where certain actions or inactions could be proven. o For crim negligence, the crown will have to prove the actions of one or more than one representative of the organization has breached the crim code duty to ensure the safety of those performing work in a wanton or reckless way . This goes beyond simply not abiding by a health and safety statute. o Beyond the wanton and reckless disregard, there must be a marked departure from the std of an ordinary and prudent person . Tf crown also have to prove that someone w/ executive authority was responsible for the part of the organization involved or was willfully blind, and that willful blindness or failure to act was the marked departure. Generally speaking, if you are paying some attn to your obligations under the statute, that would make o it v difficult for a crim negligence charge to be made or to be successful b/c it would be hard to prove the marked departure and wanton and reckless disregard. Since 20 04 there have been a number of bill c-45 prosecutions (this was the bill that amended the CC). Successful one was i n QC, Fantini case (not successful), Transpave (was successful). Only case that has provided some il lumination was QC case, Scrocca, had purchased in the 70‟s, an excavator and didn‟t do an ounce of maintanence in over 30 yrs, excavator ends up crushing a worker. Is convicted, t ried to argue that he didn‟t know that this was going to result in the potl for someone to be killed. Ct said that intention was irrelevant, it is a reasonable person standard. Got sentence of 2 yrs less a day and was allowed to serve it at home. Modest penalty in the circumstances.
Other recent amendments to the act: bill 168, came into effect june 15, 2010. These are amendments to the act that relate to workplace violence or workplace harassment. Here what is reqd is that e‟ers make policies w/ respect to workplace violence and harassment and prepare the procedures to support those policies and train workers in them. Workplace violence addresses the physical risks in the workplace and requires e‟ers to take actions to prevent workplace violence (is defd). Workplace harassment (defd), upshot is that the harassment for the heal th and safety act doesn‟t have to be linked to a protected ground, all this means is that the policies that are reqd for HR procedures are going to need policies that provide for these complaints. Bill 168 amendments is that it incorporated provisions to address domestic violence. There have been no prosecutions in do mestic violence since amendments. Also in amendments is the obligation on the e‟er to provide information abt a person w/ a history of violent behaviour. This isn‟t defd, so not clear on what it means, will leave e‟ers struggling abt in what circumstances they have to disclose information. (see below also)
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Bill 160: at end of 2009/start of 2010, many high profile construction accidents in ont. Committee came back w/ 46 recommendations, bill 160 is the first legislative step to implementing some of those changes. o Significant thrust of bill 160 is to move the responsibility for prevention from the Workplace Safety and Insurance Bd to the minister of labour, tf means that you have the same organization that is responsible for providing advice and guidance is t he one prosecuting. other significant change by bill 160 deals w/ reprisals. Was found that alleged reprisal complaints o were rarely prosecuted. Now a ministry of labour inspector is permitted to bring the complaint directly to the olrb if the ministry believes there has been a reprisal and the worker consents. After this occurs, it appears the ministry is out of the proceedings. Problem: after making the complaint w/ the bd, the worker is left on their own subject to any support that may be provided by the worker advisor. This will likely require a legislative change, legislation for this hasn‟t been passed but is on the horizon. o Other change under this bill is the change on the health and safety committees to allow the recommendation to be made by one of the co-chairs.
Occupational Health and Safety Act Bill 168 OHSA Amendments bill adds pt III.0.1 (Violence and Harassment) to the Occupational Health and Safety Act s.32.0.1 reqs an e‟er to prepare policies w/ respect to workplace violence and workplace h‟ment and review policies annually s.32.0.2 reqs an e‟er to develop of program to implement the workplace violence policy, program must include measures to ctrl risks of workplace violence id‟d in the risk assessment that is reqd under s.32.0.3, to summon immediate assistance when workplace violence occurs, and for workers to report incidents of workplace violence. The program must also set out how the e‟er will deal w/ incidents and complaints of workplace violence s.32.0.3 reqs an e‟er to assess the risks of workplace violence and to r eport results of the assessment to the joint health and safety committee or to health and safety rep or workers if none s.32.0.4, if e‟er is aware or ought to be aware that domestic violence that is likely to expose a worker to physical injury may occur in the workplace, e‟er must take every reasonable precaution to protect the worker s.32.0.5 clarifies e‟er duties in s.25 and supervisor duties in s.27 and worker duties in s.28 apply, as appropriate, w/ respect to workplace violence s.32.0.6 reqs an e‟er to develop a program to implement the workplace harassment policy, program must include measures for workers to report incidents of workplace harassment and set out how the e‟er will deal w/ incidents and complaints of workplace harassment bill also amends s.43 of Act which deals w/ a workers right to refuse work bill adds s.55.1 and .2 to the act authorizing inspectors to make orders requiring policies under s.32.0.1 and assessments and reassessments under 32.0.3 to be in writing or to be posted in the workplace are certain exceptions based on the number of e‟ees
COS 2008 Corporate Criminal (Transpave) [first corporate conviction in 2008 under these amendments] bill c-45 amended the CC, making it easier to convict organizations of “crim negligence” under the CC worker crushed by machine which had its light curtain system disabled by a pen cap, had been disabled for most of 2004 and 2005. Transpave plead guilty to a charge of crim neg causing death machine safety or hazard awareness training wasn‟t provided to the worker or others and company had no inspection system to confirm whether guarding systems were operational, member of management noted the light curtain guarding system was disabled but took no steps to address sitn $100,000 penalty imposed on transpave, plus $10,000 victi m assistance surcharge to convict an organization of crim neg, 2 steps: 1) crown must prove BARD that the actions of a single representative (e’ee, p’ner, k’er, agent of o the org) breached the CC duty in a wanton or reckless way o 2) after the breach of duty is established, crown must show that a sr officer w/ operational or executive authority, either failed to act or insulated themselves from obtaining the knowledge to act. The crown has to prove a marked departure from what would reasonably be expected of a sr officer w/ obligations to protect workers and the public R. v. Scrocca Summary ( Nov. 2, 2011)
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Facts: QC judge convicted an e‟er of crim neg causing death as a result of the death of a landscaping worker who was killed when a backhoe that hadn‟t been properly maintained for 30 yrs failed to brake and pinned the worker against a wall, convicted on basis of CC provisions regarding crim neg causing death not 04 amdments Doesn‟t matter that there was no law or regulation requiring him to maintain the backhoe or that the brakes had been working fine previously, “his intentions, what he knew or didn‟t know, are irrelevant. In the matter of crim neg, the criminal wrongdoing involves the failure to envisage a risk that a reasonable person would have recognized”. Despite fact that there were no laws, he had the duty, to ensure that it can be used w/out risk of endangering the safety of anyone else” This isn’t a case where someone has been convicted under the new OH&S provisions, on the contrary, the judge stated “s.217.1 doesn‟t create an offence, but confirms that obligation imposed on anyone who is responsible for any work to take the necessary measures to ensure the safety of others. It facilitates proving charges of crim neg against companies and organizations as the meaning of the t erm “every one” extends the scope of this provision.
R. v. Fantini [2005] OJ No. 2361 (redacted) Facts: sentencing of fantini for failing t o ensure that safety measures and procedures reqd by a regulation under the OH&S Act were adhered to. Regln provided no one would enter a trench unless the trench had a 45 degree slope to prevent its collapse, workers had to wear headgear and footwear. Fantini charged when t rench collapsed on worker and killed him. Trench wasn‟t at proper angle and worker didn‟t have correct gear on F fined 50k. Purpose of fine for regulatory offences was to send the message that extreme care had to be taken in the construction industry. F was 67, w/ no prior record & was small k‟er – otherwise more severe conseqs Charge of crim negligence causing death against F w/drawn by the crown Blue Mountain Resorts Ltd. v. Bok [2011] (redacted) 2011 ONSC 3057 Blue seeks JR of a decision of the Ont LR Br, which upheld, on appeal, an order of the respondent B in his capacity as an inspector under the OHSA Order related to occurrence where guest drowned in pool Under s.51(1), must notify inspector immediately when a person is killed or critically injured from any cause at a workplace Inspector concl that a “person” included a guest, and “workplace” included an unsupervised swimming pool E‟er failed to notify an inspector of the fatal injury to a person Bd upheld the inspector‟s order Issues before bd: whether the word “person” means “worker” and whether the unsupervised swimming pool was a “workplace”. Person isn‟t defd in act. Workplace defd in s.1: means any land, premises, location or thing at, upon, in or near which a worker works. Person is to be construed in its ordinary meaning, not as synonymous w/ “worker” which is defd. Bd concl that pool was a workplace, and didn‟t cease to be a workplace b/c the e‟ee in question moves from that area of his or her workplace to another area of the same workplace Bd concl that the drowning triggered the reporting obligation b/c it involves a “person” who was killed from any cause at a “workplace” Std of review is reasonableness Applicant and intervenor raise concerns abt practical application of t he reporting reqmt flowing from the interpretation of the meaning of “workplace” to i nclude all 750 acres of the entire resort On a plain reading of the section, any event resulting in death or critical injury, even if occurring in circumstances having no potl nexus w/ worker safety, is reportable so long as they occur in a workplace. For purposes of triggering the reporting obligation and ensuring a sufficient reach to deal w/ incidents having a possibility of genesis in working conditions, the section, as interpreted by the bd has a potl to reach beyond the ambit of the purposes of the statute After critical accident or death at a workplace, can‟t disturb the scene, implicatio ns of this absurd if workplace given the meaning the bd gave it Applicant argues that the proper construction of the term “workplace” is one which requires the physical presence of a worker at a place where a worker works at the time at which an occurrence w/ a guest or other person takes place. The swimming pool would have been a workplace had an e‟ee of the applicant been on site going about his work at the time of the incident, but since one wasn‟t present, wasn‟t a workplace – flaws w/ this, para 26, defn rejected
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Ct isn‟t persuaded that the bd reasonably concluded that the whole of t he blue mtn resort is a workplace. This defn goes further than was necessary to dispose of this appeal Here guest drowned in swimming pool. The swimming pool is a place where one or more workers work. The absence of a worker at the pool at the time of the occurrence doesn’t diminish the fact that it is a workplace, concl reached by the bd isn’t unreasonable, application dismissed
Topic: Human Rights in E’ment A. Discrimination and the Hiring Process B. Drug and Alcohol Testing in the Workplace
Ontario has no privacy legislation as it relates to e‟ees. Tf when talking abt this from an Ont perspective, all the challenges to this legislation has occurred under the Ont HR perspective. One of the grounds under the Ont HR code is disability, which has a v broad defn. It includes both actual alcohol and drug dependency. Is impt b/c recreational drug and alcohol abuse isn‟t a protected ground, are only protected if have a dependency on drugs and alcohol or are perceived to have that dependency. This triggers the duty to accommodate of the e‟er up to the pt of undue hardship. The cases have been divided largely in two areas. 1) non safety sensitive envt , 2) safety sensitive posns . Test: prima facie discriminatory. Have to draw a distinction b/w drug and alcohol testing. Up till now, only alcohol testing measures accurately (science changing).
If the person has drugs in their system, or if there is reasonable cause to believe t hat the person is abusing drugs and alcohol, or if the person is coming back or is subject to some kind of rehabilitation program, whether they are coming back from time off relating to something drug or alcohol related, then there is a greater ability to do something drug or alcohol test related. Drug and alcohol testing is prima facie discriminatoy. E’ers can justify provided they meet the Meiorin test. Testing should be limited to determining actual impairment of e‟ers ability to perform essential duties of j ob. Testing that has no demonstrable relnship to job safety and performance has been found to be violation of e’ee rights . Must be an objective basis for believing that performance would be impaired by dependency and w/ respect to specific e‟ee, objective basis for believing issues like erratic behaviour could be related to drug/alcohol use and that risk could affect safety of co-workers and public. Drug testing: will never be permissible for pre-e‟ment b/c it doesn‟t demonstrate actual impairment. Random drug testing likely never permissible under cdn law. Possible to drug test in 2 sitns: 1) post incident; 2) reasonable cause Alcohol testing: diff as it can measure actual impairment but still not permissible for pre-e‟ment. On the job only when link established b/w impairment and job fn. Random alcohol testing permissible due to actual impairment but only acceptable in safety sensitive posns.
Mandatory self disclosure time period must be reasonable and will be considered PF violation. Key is that result shouldn‟t be automatic termination, but needs to be process of accommodation determined on case b y case basis. Canadian Human Rights Commission v Toronto [1998] 4 FC 205 (CA) Facts: TD had a policy that sr execs would submit to drug testing as pt of an annual medical evaluation and any new e‟ees would be tested upon acceptance of e‟ment a nd present e‟ees would be tested on a random basis – may be tested if poor job performance, unusual behaviour, etc. If neg test, notified and end of matter. If po s test, notified and second test conducted and reqd to attend rehab assessment. If 2 nd pos, enter a treatment plan and if refused would be terminated. Concl that the banks policy constitutes a prohibited discriminatory practice w/in the meaning of the act. The policy constitutes dir ect discri min ation and that it fails to qualify as a BFOR b/c the bank failed to establish that its policy is “reasonably necessary” The bank‟s policy reveals whether an e‟ee has been exposed to illegal drugs w/in a certain time frame. Such information reveals nothing about an e‟ees ability to perform their job. Macdonald JA: agrees w/ Robertson that the pol icy prima facie discriminates against drug dependent e‟ees, but disagrees that it is direct discrimination, thinks that its indirect (shows difficulties b/w direct and indir discrim)
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Decision arose b/c govt of Canada was putti ng pressure on the banks, had to crack down on money laundering. Policy introduced that all new e‟ees had to submit to drug and alcohol testing w/in 48 hrs of being hired, if refused were dismissed. Canadian civil liberties argued that this was discrimination on the basis of disability. (2000) (ONCA) [confirms Meiorin test will apply to discrim cases under OHRC] Entrop v Imperial Oil (2000) **statement of the law continues to be Entrop case** Appellant, Imperial, instituted an alcohol and drug testing policy for its e‟ees, main question on appeal on appeal is if the provisions of the policy discrim on the ground of handicap or whether they are bona fide fide occupational reqmts Determining whether a workplace rule violates the code is a two-stage process . 1) the complainant must show the workplace rule is PF discriminatory on a prohibit ed ground . o 2) If a PF case of discrimination made out the burden shifts to e‟er to justify the rule (w/ Meiorin) o Ont‟s code gives an e‟er 2 separate defences to a pri ma facie case of handicap discrimination: under s.11 (applies to direct discrim), discrim), an e‟er may justify a workplace rule that has the effect of discriminating a gainst a person or grp of persons on a prohibited ground ground by showing that the rule is a BFOR; or under s.17 (applies to adverse effect discrim), an e‟er may justify a prima facie faci e case of handicap discrimination by showing that a complainant is incapable of performing the essential duties of the job. After Meiorin, have 3 step test to justify a prima facie case of discrimination (Tf e‟er can rely on both to justify). If t he test is is met, the workplace rule is a BFOR. The significance of eliminating distinction b/w direct and adverse effect discrim and of the 3 step justification for a PF discriminatory workplace rule is that now the rule itself must accommodate individual differences differences to the pt of undue hardship. It if does, the rule is a BFOR. If it doesn‟t, the rule is discriminatory. CA agrees that the drug testing provisions of the policy violate t he code but disagrees w/ the bd and the divisional ct on random alcohol testing (diff b/w alcohol and drug testing, pos alcohol test denotes impairment, pos drug test doesn‟t). tf thinks that random alcohol testing for safety sensitive positions, although discriminatory, can be justified providing the sanctions for a positive test are individually tailored. Automatic termination of e‟ment for all e‟ees after a single positive test is broader than necessary. In some cases it may be justified but in others the e‟ees circumstances may call for a less severe sanction. Imperial failed to demonstrate why it couldn‟t tailor its sanctions to accommodate accommodate individual capabilities w/out incurring undue hardship Pre-e‟ment Pre-e‟ment drug drug testing: testing: a positive test doesn‟t show future impairment or even likely future impairment on the job, yet an applicant who tests positive only one isn‟t hired Random alcohol testing, testing, though reasonable for e‟ees in safety sensitive jobs, will not satisfy the t hird step of the meiorin test unless imperial oil has met its duty to accommodate the needs of those who test positive – positive – dismissal in all cases is inconsistent w/ imperials duty to accommodate Requiring an e‟ee to disclose a past substance abuse problem, no matter how far in t he past, is an unreasonable reqmt, expert evidence cut off pts for disclosure are 5 -6 yrs of successful remission for a person w/ a previous alcohol abuse problem and 6 yrs of successful remission for a person w/ a previous drug abuse problem Imperial failed to meet the third step of the meirin test (for justifying the 2 yrs + 5 yrs reqmt), tf provisions for mandatory disclosure, reinstatement and reassignment reassignme nt can‟t be justified as BFORs Facts: Entrop is an alcoholic in the early 80‟s, confronts the problem and achieves recovery in 84. Is a long standing e‟ee of imperial oil, is promoted to a more sr posn in 87, working in a more safety sensitive area of imperial imperial oil. In th 91, entrop was celebrating his 7 year of being alcohol free, this is the same yr they implement the policy. Policy targeted e‟ees in safety sensitive posns. Policy had key features: 1) If you wish to quali fy and remain in safety sensitive posn, have to complete a medical examination, a negative test for drugs and alcohol and a signed acknowledgement. 2) at work, were prohibited to have any illicit drugs or alcohol or their elements. elements. 3) e‟ees could be subject to random drug and alcohol testing, and if caught w/ drugs or alcohol, would be subject to automatic dismissal. 4) e‟ees w/ current or past substance abuse problem had to disclose this to management. If had history (no mention of how long ago) would be transferred to non safety sensitive posn. Entrop revealed his past, was transferred to a less desirable posn, non safety sensitive, at same rate of pay. Could go back to old posn after having been alcohol free for 14 yrs. Policy was clearly lacking in flexibility. Points (from class): 1) alcohol and drug dependency is a disability, e‟ers have an interest in promoting promoti ng safe workplaces, tf are allowed to say that you cant use or be under the 2) e‟ers have influence of drugs or alcohol at work. But not entitled to demand that e‟ees not use drugs or alcohol outside of work.
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3) drug and alcohol testing is PF discrim and needs to be justified w/ Meiorin (when entrop was argued, meiorin hadn’t been decided, but when entrop was decided, so was mei orin, so it was incor in ). W/ this, becomes hard to justify in pt 1 re non safety sensitive jobs. Step 3, must takes into account t he duty to accommodate to meet. 4) drug testing use is v limited, only allowed in limited circumstances b/c it doesn‟t test impairment impairment (sci progressing) 5) after accident or incident testing where there is reasonable cause to suggest that t here may be use may justify use of a drug test as long as its only one element among others. 6) post reinstatement drug testing (after leaving b/c of drug test result) is ok if its part of a larger assessment 7) random drug testing unless as pt of rehab i sn‟t ok b/c it onl y establishes past use. 8) alcohol testing is a reliable method for testing impairment, in, can do it in safety sensitive settings where its difficult to supervise e‟ees. w/ random alcohol testing, is reasonable to do it in a random setting, if they have advance notice of the testing, (means that they have notice that they may be subject to alcohol testing at any time), tf can do it if its advance notice and the e’ee has measures to accommodate e’ees that test positive , 9) negative repurcussions are per se illegal, 10) if there is a substance abuse problem, e‟ers can place special ctrls on e‟ees for a certain time when they are reinstating them to safety sensitive posns. Issues: 1) what constitutes a drug or alcohol disability? 2) what is a safety sensitive posn or industry? 3) is drug or alcohol testing in non safety sensitive posns ever allowed? 4) when is it reasonable cause for post incident testing? What is reasonable cause? 5) is pre e’ment or e’ment or random drug testing ever permitted? When thinking abt whether it’s a safety sensitive posn: posn: ask what work is the person performing? What is the nature of the equipment that the e’ee operates ; want to look at the nature of the material that the e‟ee handles (is it a lot of fissionable material); what are the consequences that this conduct could have on the public and other supervision) – how how bad could it get? (all those come from a e’ees if something goes wrong (regardless of the amt of supervision) – case). Jeff would expand this list and add, what abt the person that is inspecting all this? Inspecting the equipment, or inspecting the person who is performing the safety sensitive job? Is that person in a safety sensitive posn? If he isn‟t able to catch these issues then who will? Question could be: If I don‟t do my job well, what bad things could happen? (what are the possible consequences of me not doing my job well?)
Milazzo v Autocar Connaisseur Inc , 2003 CHRT 37 Milazzo is a case involving the trucking company. Unique pt abt this case is that, if are an interprovincial trucker driving in the US, US has much more robust drug testing, tf if are driving in the US, have to comply. Individual is caught by the test, test, is fired, claims he isn‟t addicted. He claims it‟s a perceived discrimination. In this case its found not to be a perceived discrimination. He lost, but so did the company on the broader policy. Found the testing was a bona fide way to promote road safety, especially given the need to comply w/ US law, but found that the testing policy was discriminatory as it relates to disabled e‟ees as it relates to auto termination. Tf he was found not to have been discriminated against, but the policy itself was found to be breaching. Weyerhause Co v Ontario , 2007 OJ No 640 Chornyj brought complaint to Ont HR Commission against applicant, appl icant, Weyerhauser alleging that W‟s substance implairment std which requires pre-e‟ment pre-e‟ment drug testing was discriminatory and that W‟s decision to w/draw its conditional offer of e‟ment after e‟ment after he tested positive for mj discriminated against him on the ground of disability or perceived disability W seeks JR of the April 27 decision of the tribunal which held that it had jurisdiction over the subject matter of the complaint and to review W‟s policy of prepre-e‟ment testing e‟ment testing for safety sensitive purposes. W asks ct for order of prohibition to prevent tribunal from hearing the complaint C was recreational user of mj, tf inconsistent for C to claim he was discrimin on the ground of actual disab Applying kellog analysis to this case, find that tribunal erred in finding C had a tenable claim of discrimination on the ground of perceived disability, and tf it was unreasonable the tribunal refused to dismiss his complaint o Evidence doesn’t support concl that W perceived C as being disabled, perceived dishonest Consequences of positive drug test less severe in this case than in Kellogg, in K, positive test resulted o in automatic dismissal, here those who have a positive drug test are able to continue their e‟ment if e‟ment if they satisfy a number of conditions – conditions – conditions conditions don‟t indicate that W subjectively perceives any person w/ a positive drug test to be disabled by drug dependency Tf in the particular circumstances of this case, there was no tenable basis for the tribunal to find o C could proceed w/ his complaint of discrimination disc rimination on the ground of perceived disability. disabil ity. W’s
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std is clearly not prima facie discriminatory on the ground of perceived disability. Its plain and obvious W didn’t treat C as if he were disabled by drug dependency. Application allowed
Critical question: question: did the e‟er e ‟er have to prove that there was an actual problem of substance abuse in the workplace as a precondition to being able to adopt a national policy of drug testing? Union took position that they had to prove a problem. E‟er took the position that they were in a safety sensitive industry, so didn‟t have to, testing was allowed. Policy in this case was limited to post incident and for cause testing for safety sensitive positions. (is a much more narrow focus). Arbitrator accepted that this was a much more safety sensitive industry, but industry, but the e‟er was reqd to id those posns that were safety sensitive. T his case adopts a defn from an earlier case as to what is a safety sensitive posn – posn – when when normal operations post a substantial risk to the public . Arbitrator also found that there was evidence that the e‟ee was drug dependent, t f was discriminatory. b/c was zero t olerance, when you catch someone, you must believe, by their nature that that individual is drug dependent. Held that the mere existence of drug dependency itself wasn‟t prima facie discrimination. So yes while its discriminatory, the existence of this test doesn‟t mean that the e‟er thinks that t hat those who fail have a drug or alcohol dependency. dependency.
Alberta (HR and Citizenship Commission) v Kellogg, Brown and Root , 2007 ABCA 426: concl: the chambers judge erred in law a nd made a palpable and overriding error in finding that KBR perceived Chaisson to suffer from drug addition Facts: KBRs hiring policy stated that all persons seeking non-unionized positions at KBR to take and pass a post-offer/pre-e‟ment post-offer/pre-e‟ment drug test before being hired. If e‟ee failed, he wouldn‟t be hired, but would be eligible for consideration 6 mos after the date of the failed test. Chaisson failed the test, had smoked mj 5 days earlier Issues at CA: does the KBR drug testing policy discriminate against casual cannabis users like C on the basis of perceived disability? If so, does the KB R drug testing policy provide appropriate accommodation to the extent reqd by HR legislation?, If both answers are yes, it the policy a BFOR? C isn’t drug addicted, nor was his termination based on the perception by any KBR e’ee that he is drug addicted, tf the only basis on which the KBR policy would be discriminatory against casual mj users would be if the effect of the policy is to perceive anybody testing positive as drug addicted and tf disabled and to impose restrictions, penalties or differential treatment on those persons based on the perceived disability. Found that the drug testing policy didn’t discriminate based on perceived disability KBRs appeal is granted
This case doesn‟t refuse to follow entrop b/c entrop is dealing w/ a much broader policy. Fair to say that t hey take a far more lenient approach to drug testing than they did in the entrop case. Privacy in the E’ment Relationship E’ment Relationship most impt: understanding the legislative framework and principles privacy in the wrongful dismissal context – context – blood blood tribe case, solicitor-client privilege concepts we think of from a historical concept when thinking of privacy are things like bodily integrity and personal integrity, right to be free from search and seizure. seizure. From privacy perspective, where privacy has come into its own is during the information age, and taken its place as a crucial right. Today main things in privacy front are: surveillance, email monitoring, typing pattern recognition, voice recognition, GPS in company cars can always al ways track where the individual is. When t hink of privacy, noone has more private information than e‟ers, other than than mbe govt – govt – e‟er e‟er has health info, sexual orientation (spousal information), have lots of personal information Are talking abt 4 interests we are protecting in privacy context: 1) corporal (bodily intergrity, bodily searches), o 2) territorial (your right to privacy in your home, locker, purse), o 3) temporal (right to privacy in off duty ho urs, o 4) informational (information abt sexual orientation, home address, etc). o Note: there is no privacy legislation in Ont relating to e‟ers and e‟ee rights. But there are others, PIPPA (relating to protection of medical i nformation), etc.
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Tf why doesn‟t Ont have privacy legislation? legislation ? – core core problem: jurisdictional problem, issue is that the original legislation that is passed is federal, and it‟s PIPEDA, which is a statute that governs both e‟ment information e‟ment information and commercial information, tf it technically should cover everything. It covers covers fed e‟ers and e‟ees, but it doesn‟t govern provincial. Why? b/c fed govt ctrls matters relating to fed affairs, but not provincial, tf fed govt passed PIPEDA, o and basically said to the provs that if you don‟t put your own legislation in place by a certain certain date, PIPEDA will apply to you. Ont didn‟t, most other provs did. Tf PIPEDA took effect on the fed side, but feds have no right to govern e‟eee‟ee-e‟er relns, so there is no privacy legisltn for that in Ont. Role of the charter: know the SCC affirmed the fundamental right to privacy, but s.8 only protects against unreasonable search and seizure. But charter doesn’t apply to CL disputes between private parties . Some privacy rights stem from HR legislation, indirectly deals w/ privacy, won‟t be talking a bt this today. (some of this legislation is provincial) Invasion of privacy has been slow to emerge as a tort. QC civil law recognizes the invasion of privacy, also recog in BC, Alta
PIPEDA: Covers personal information, defd under s.2 of that act: is information abt an identifiable individual, but doesn‟t include the name, title, title , business address or telephone number of an e‟ee of an organization. T hose last pieces of information are known as the business card exception (tf e‟ers can hand out your business busin ess card, that information is common knowledge and necessary for you to do your job). An organization can collect and disclose di sclose personal information only for purposes that a reasonable person would consider are appropriate in the circumstances. Tf i s a reasonableness test. Two core ideas for privacy: consent and reasonableness E‟ers subject to PIPEDA reqd to comply w/ 10 safeharbour principles : 1) accountability – e‟er o – e‟er must take responsibility for the personal information in their ctrl, have to designate persons to be responsible for it, eg banks have a chief privacy officer, and they have to have a privacy policy that explains to their e‟ees what the policy polic y is, then an external privacy policy is from a consumer perspective that explains to consumers. 2) identifying purpose – an o – an e‟er must id the purpose for which the information is collected before the collection. This should be communicated to ppl who are the subjects in advance. And you should only collect that information specified. the knowledge knowledge and consent of e‟ees are reqd in advance when collecti ng personal 3) consent – the o information, except where inappropriate (eg where seeking the consent would defeat the purposes in advance). In some cases, some provinces, consent can be i mplied (not necessarily the case in PIPEDA), the fact that an e‟ee is working for an e‟er is impli ed consent. Makes it less onerous. Egs of where there are consent exceptions : investigations, publicly available information, emergencies, litigation exception, sub peona, national security, defence of Canada, where the obligation is reqd by law, eg need SIN number to prove that you are reqd to work by law 4) only want to collect for the extent necessary for the purposes identified, and have to only o collect it through fair and lawful means, and can’t obtain consent through deceptive means 5) limiting use, disclosure and retention – information o information may only be used for the t he purpose for which it was collected, tf once the information is no longer needed it should be destroyed. 6) accuracy – the o the information shall be as accurate and complete as possible, and further to that end, this also means that we need to be constantly updating it to ensure the information stays accurate, tf if ones spouse changes, need to update. As pt of this, one of the most significant pts of the legislation, is t he right of the e‟ees to access their information and ensure its accurate. Is accurate. Is a v powerful right and is a right that has become a significant litigation tool as well. security safeguards should be implemented to keep personal information s afe. Eg 7) safeguards – security o computer software, locks on cabinets, access to information rooms limited. Also, not just safeguarding it when you have it, but also when you are disposing of it . o policies respecting the organization of information should be available and open, 8) openness – policies want everyone to be able to understand what those policies are
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9) individual access – individuals should be advised of all personal information held about them, have the right to access the information and challenge it, ensure its accurate and complete. Have to be able to respond to those inquiries quickly and at little to no cost 10) challenging compliance – individuals should be able to challenge the processes themselves, o the manner in which it is being done. Should be able to deal w/ these things though individual mechanisms. PIPEDA has a statutory regime for making complaints, there is a privacy commissioner, if have a complaint, can file a complaint w/ the appropriate privacy commissioner. PIPEDA can also initiate their own complaint. The commissioner can investigate and w/in a year must report back to the parties w/their findings. Following the commissioners report, note, the privacy commissioner has no actual power, just give recommendations, recommendation doesn‟t have to be followed, but i f recommendation isn‟t followed, complainant can file a complaint in the federal ct to seek damages, compliance, etc. The cts have the broader remedial power including the power to award damages. Think abt what impact this could have w/ regards to drug and alcohol testing – in the HR context, there is potentially the ability to use this act as well (PIPEDA), sometimes PIPEDA has been used to attack drug and alcohol testing o
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Personal Health Information Protection Act (PHIPA) this is the only thing really that has been introduced in ont in response to the fed legislation sets rules on how personal health info may be collected used, disclosed and maintained by a health information custodian (HIC). HIC includes anybody that has your health care information w/in their ctrl, pharmacies, drs, PHIPA prevents HICs from disclosing health information to organizations outside the individuals circle of care (who is treating you), it prohibits them from releasing it w/out express consent. In particular, it prohibits them from releasing it to your e‟er w/out your express consent. PHIPA has fairly limited application in e’ment law, really only when an e‟er is receiving personal health information from a HIC When an e‟er gets personal health info from a HIC, can only use it for the purpose for which it was disclosed A. Privacy in the E’ment Relationship Privacy Legislation - PIPEDA a. Electronic surveillance (e-mail monitoring, video surveillance, etc.) In most cases, the law stands for the proposition that you are onl y able to conduct video surveillance outside the workplace, where you have strong suspicion to d oubt the veracity of the e‟ee Reasonable test: ensuring the decision to do surveillance is reasonable, its done in a reasonable manner, etc Why do we do it? E‟ee productivity issues, workplace liability issues, may be experiencing theft, vandalism, violence issues in the workplace, e‟ees work late so have cameras in the parking lots, eg email and email monitoring where e‟ers may be concerned for vicarious liabilit y for harassment, defamation, same goes for CR infringements, it sitns where e‟ees injure one another, breaches of confidentiality where a person may send confidential info out via an email, some companies know when a USB recordable stick is going into a computer b/c are concerned abt breach of confidentiality, e‟ers concerned abt damage to e‟ers network via viruses, etc. Negatives in monitoring: damages the trust relnship, morality issues, can be an expensive process to monitor, loss of productivity (is reason why may be monitoring) No expectation of privacy policies: don‟t generally stand, can‟t assume that person isn‟t going to only do workplace related items, is highly workplace specific, eg ppl who work long hours, can‟t reasonably expect that they won‟t do anything personal on their computers Should note that in the arbitral context, arbitrators have found repeatedly that t here is a right to privacy in the workplace, but there is no such right in the law of tort (no CL right)
Eastmond v Canadian Pacific Railway , [2004] FC 852 (TD) [4 pt test to det whether use of cameras is reasonable] CPR installed video cameras in the mechanical facility area, Eamond alleged it was a violation of PIPEDA To determine whether CP’s use of cameras was reasonable in this case, 4 pt test (by priv commissioner): 1) Is the measure demonstrably necessary to meet a specific need? o o 2) Is it likely to be effective in meeting that need?
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3) Is the loss of privacy proportional to the benefit gained? 4) Is there a less privacy-invasive way of achieving the same end? o Based on the factors, the privacy commissioner didn‟t believe a reasonable person would consider those circumstances sufficient to warrant taking such an intrusive measure - overturned at Fed Ct for surveillance cameras, arbitrators have drawn a bright li ne b/w surreptitious collection of information and collection of information by cameras whose locations are known, where e‟ees and others are told recordings are being made and the use of those recordings. Arbitrators have generally condemned the use of surveillance cameras to record the productivity of workers Concl on this case: a reasonable person woul d consider CP’s purposes for collecting by recording the images of CP e’ees and others on video camera appropriate in the circumstances . In this case: collection not surrepticious, e‟ees know; its brief (cameras move), low zoon; collection not limited to CP e‟ees; collection isn‟t to monitor productivity; recorded images are kept locked up and only accessible b y managers and police, and if not reqd, recordings destroyed w/in appropriate time frame (96 hrs) Loss of privacy minimal, loss of privacy proportional to the benefit gained, alternatives weren‟t cost effective or would be disruptive of its operations (security guards, fencing, etc) Issue 2: was consent reqd?: CP can collect w/out knowledge and consent b/c CP benefits from the exemption provided in para 7(1)(b) of PIPEDA. Recording is never viewed unless there is an incident, and asking for consent to collect the info would compromise the availability of the info for the purpose of investigation o o
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Poliquin v Devon Canada Corp , [2009] AJ No 626 (CA) Facts: Devon was dismissed for having landscaping services done b y the company at his personal residence and for using company computers for racist and pornographic emails, and for forwarding a few emails on (latter prohibited by code of conduct), Devon was applying for summary judgement saying he was WD Impt to situate a document like the code of conduct in the larger workplace context, e‟ers have the right to set the ethical, professional and operational stds for their workplaces. E’ees have no reasonable expectation of privacy in their workplace computers. E’ers are allow ed to limit e’ees personal use of workplace computers, Poliquin did this w/ code of conduct . Many adverse consequences could flow from use of workplace computer for po rnographic or racist purposes, as a result, e‟ers is entitled not only to prohibit use of its equipment and systems for pornographic or racist purposes, but also to monitor an e‟ees use of the e‟ers equipment and resources to ensure compliance – significant risks justified policy, e‟er has right to set ethical stds, as they could suffer ramifications. Ask whether there is a reasonable expectation of privacy and a nexus b/w comments made and actions taken. Balance e‟ees right to privacy w/ duty of loyalty and fidelity to e‟er. Devon‟s wrongful dismissal action can‟t succeed b. Accessing Employee Medical Information When an e‟ee is absent from work for medical reasons, upon request, will have to provide medical information and the e‟er is allowed to ask for the information, but the request has to be reasonable. Eg e‟er not allowed to know what is specifically wrong w/ the e‟ee, but how long is the e‟ee likely to be away, etc. Also have to ensure the information isn‟t used for any other purposes other than why i ts gathered Can request it to determine if the illness is bona fide, to access the impact of the illness on the e‟ees future attendance and to assess how likely they are to be away in the future, evaluate whether the e‟ee is fit to return to work, for the purposes of accommodating an illness Onus is on the e‟er to explain why the information that has already been provided isn‟t adequate. Need to outline the specific information reqd and it must be related to the job duties.
PIPEDA Case Summary #2004-269 – exception to consent reqmt in PIPEDA Facts: P had lots of health problems, requested accommodations for them, transfers, modifications in duties, e‟er became suspicious, hired private investigation firm to conduct surveillance on the P, e‟er used tape as evidence P has misrepresented his physical state Company relied on para 7(1)(b) and 7(2)(d) to collect and use personal info w/out consent and knowledge Principle 4.3 states that the knowledge and consent of the individual are reqd for the collection, use or disclosure of personal information, except where inappropriate . Para 7(1)(b) is exception to this. Para 7(2)(d) is an exception to the reqmt for consent to use, allows an organization to use personal info w/out knowledge or consent, only if it was collected under 7(1)(b).
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No doubt that e‟er collected personal info w/out e‟ees knowledge and consent, issue was whether para 7(1)(b) was applicable. For 7(1)(b) to apply, number of factors must be considered : 1) an organization must have substantial evidence to support the suspicion that the relationship of trust o has been broken, 2) must be able to show that it has exhausted all other means of obtaining the information that it o requires in less privacy-invasive ways, and 3) must limit the collection to the purposes to the greatest extent possible o Assistant commissioner accepted the company’s reliance on para 7(1)(b) and 7(2)(d) to collect and use personal info w/out knowledge and consent. The company had reasonable and probable cause to believe that he was violating his e’ment k, and was having difficulty in obtaining accurate info from him w/ his knowledge and consent . Assistant commissioner recommended that company develop policies and practices that are privacy conscious for future instances, taking into account: video surveillance is a last resort, decision to undertake video surveillance should only be made at highest level, must collect personal info in accordance w/ the act
Impt that an e’er must have substantial evidence to support the suspicion that that relnship of tr ust has been broken (that the e‟er doubts the veracity), must have shown that it has exhausted all other means available (eg here tried to get info from dr, got independent medical) and must limit the collections to the purposes reqd to the greatest extent possible. Here they caught the e‟ee doing things that he claimed he couldn‟t do. Privacy in Wrongful Dismissal Context
Canada (Privacy Commissioner) v Blood Tribe , [2008] SCC 44 [Priv commissioner doesn‟t get sol-cl docs] Facts: e‟ee terminated after which she requested to see her personal e‟ment info b/c she suspects they used it inaccurately to discredit her, resulting in di smissal. E‟er denies request and she files complaint to privacy commissioner. Commissioner orders production in broad terms – they provided except those covered by solicitor client. Applied for JR who found privacy commissioner could co mpel documents over which s-c applied. E‟er appealed and FCA set aside lower ct, vacating production order. Went to SCC. Ratio: there is a limit under PIPEDA for e‟ee personnel file, commissioner isn‟t an officer of the ct and doesn‟t occupy posn of independence and authority as ct. solicitor client privileged documents aren‟t appropriately contained w/in the scope of disclosure under PIPEDA. concl: the right of the individual or organization that is the target of the complaint to keep solicitor client confidences confidential must prevail. The privacy commissioner doesn’t occupy the same position of independence and authority as a ct . General words of a statutory grant of a uthority to an ombudsman or regulator, including words as broad as those in s.12 PIPEDA, don‟t confer a right to access solicitor -client documents, even for the limited purpose of determining whether the privilege is properly claimed. That role is reserved for the cts. Express words are necessary to permit a regulator or other statutory official to “pierce” the privilege. Such clear and explicit language doesn‟t appear in PIPEDA. Appeal dismissed (agreed w/ Fed CA) a courts power to review a privileged document in order to determine a disputed claim for privilege doesn‟t flow from its power to compel production. Rather it derives from its power to adjudicate disputed claims over legal rights. The privacy commissioner doesn‟t have this power .
At SCC, commissioner wasn‟t really able to say why they needed the information, so SCC took it as an agmt that they were asking for routine access to privileged information. Cts aren‟t entitled to privileged documents unless the privilege is waived. In this case, from the privacy perspective, i f documents are disclosed to the commissioner, the documents could be made public b/c the commissioner has the power to do that. Has implications for solicitor-client privilege. Privacy commissioner acknowledged that there were ways around this – could have questioned, or could have filed their own application to compel documents Privacy and the Development of the Tort of Invasion of Privacy at Common Law – v slow to emerge in cdn law. An indep right to privacy is only recognized in 4 provinces and is actionable w/ proof of damage to willfully and w/out claim of right, violate the privacy of another. Ont doesn‟t have such legln.
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Shred-Tech Corp v Viveen , [2006] OJ No 4893 (SCJ) [Debate abt whether there is a tort of inv of priv] Facts: D‟s are formed e‟ees and suppliers of the P. P retained an investigative agency to examine the activities of the D‟s in establishing a competing business. P‟s are alleging, breach of fiduciary duty, interference w/ k‟ual and/or economic relns and breach of confidence. D‟s deny allegations and claim P is trying to prevent competition. During litigation, D‟s received disclosure of investigative report and other info provided to P by investigative agency, D’s allege the investigator obtained info w/out their consent, and made a video and audio recording w/out their consent on their premises – alleging invasion of privacy, trespass and breach of confidence. D‟s want to make use of the information to pursue complaints to regulatory bodies – this is granted w/ res pect to some of the D‟s. There is debate as to whether there exists a tort of invasion of privacy: this ct is of the view that recognition of such a tort in law is the logical result of the acknowledgement of privacy rights. There must be a remedy for a breach of any right. Concl: there is a public interest in allowing the complaint to proceed against the investigators . Somwar v McDonald’s Restaurants of Canada Limited (2006) (SCJ) [not settled law re no tort of inv of priv] Facts: McDonalds did a credit check on the individual In this case, ct was deciding whether the P had any chance of success. Ct didn‟t allow the motion to dismiss, but what is impt, was that they said that it wasn‟t settled law in Ont that there is no tort of invasion of privacy – expressed willingness to recognize tort but j urisprudence hasn‟t developed much beyond this point. Jones v Tsige, [2011] OJ No 1273 [Concl: no tort – THIS CASE WAS APPEALED, waiting for desn] issue: is there a tort for invasion of privacy? Facts: tsige assessed and reviewed jones private banking records, j ones alleges tsige has committed a tort – invasion of privacy – and that she has breached a fiduciary obligation. Concl: there is no tort of invasion of privacy and no fiduciary obligation
Impt is that the judge relies v heavily on the fact that there is a statutory remedy under PIPEDA that the individual could have relied on. Tf found that this wasn‟t an area of law that requires judge-made schemes, have a statute. Note: Jones case isn‟t an e‟ment case, Jones was a client of the bank, Tsige was the bank e‟ee, is a commercial case more likely. Tf this instance is definitely covered under PIPEDA and Jones has remedy under this. If it was an e‟ment case though, there would be no remedy for her. Tf void in Ont in reln to e‟ee side of things. Biometrics/New Technology and Impact on Employee Privacy - the process of identifying or verifying someone‟s identity by accessing a database that stores uniqu e identifiers like fingerprints, digital e ye, facial and voice recognition, keystroke dynamics. Threats to privacy arise not only from the positive identification that biometrics provide, but the ability of 3rd parties to access and link it to other information, resulting in secondary uses w/out consent. Case law finds biometrics allowable on basis of managing e‟ment relnship and not for marketing business as tech leader. Arbitrators follow the proportionality principle, the more intrusive the impact on privacy, the greater the business rationale that mu st be demonstrated – demonstrated for reasonable purposes, surveillance itself conducted reasonably, and there were no less intrusive means available or had been exhausted.
Turner v Telus Communications Inc , [2005] FCJ No 1981 e-speak technology used by telus, requires e‟ees to participate in an enrollment process that results in t he generation of a voice template/voice print, which is stored by Telus under substantial security, presumably for as long as the provider remains an e‟ee of T elus or continues to work in a capacity the requires access to espeak. E‟ee applicants wouldn‟t consent to use of t his technology. From report, para 22: in considering the appropriateness of making a privacy-invasive measure a job reqmt, the purposes for introducing the measure must be looked at in the context of the reasonable person test – would a reasonable person consider it appropriate for TELUS to collect your voice print to access e-speak applications in these circumstances? Voice characteristics are undoubtedly personal information, they are to wards the lower end Taking into account factors including: the degree of sensitivity associated w/ voice prints as personal information; the security measures implemented by T elus; the bona fide business interests of T elus as established on the evidence to which the collection of voice prints is directed; the effectiveness of the use of voice prints to meet those objectives; the reasonableness of the collection of voice prints against alternative
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measures of achieving the same levels of security at a comparable cost and w/ comparable benefits; and the proportionality of the loss of privacy as against the costs and operational benefits in the light of the security that telus provides; concl: the collection of the voice print information would be seen by a reasonable person to be appropriate in the circumstances and against the security measures taken by Telus Has telus met its consent obligations under PIPEDA? Exception to consent, ss7(1)(a), collection is clearly in the interests of the individual and consent can‟t o be obtained in a timely way Sitn is w/in 7(1)(a), where consent is sought from a large number of ppl, who provide it, and a small o number don‟t, can‟t conclude that parliament intended the small minority to be able to paralyse action by the e‟er – tf in circumstances such as these, an organization, may collect personal information w/out the consent of individuals where the collection is clearly in the interests of those individuals and their consent can‟t be obtained in the timely way applications dismissed
Wansink v Telus Communications Inc , [2007] FCJ No 122 (Fed CA) e-speak case above, appealed to Fed CA satisfied s.5(3) PIPEDA – personal info can only be collected for purposes reasonable person would consider approp in the circumstances. Telus informed e‟ees, safeguards. (but had to obtain consent prior unless exceptional circumstance) Ratio: s.7(1)(a) protection – no consent if collection clearly in interests of individual and consent can‟t be obtained in timely way. Didn‟t violate s.5(3). Degree of sensitivit y of voice prints, security measures, business interests, effectiveness in meeting interests, reasonableness against alternatives, proporti onality of loss of privacy against costs and operational benefits. privacy rights under PIPEDA aren‟t absolute, their amplitude is to be determined through a balancing process, whereby, in a case such as this one, the private interests of the e‟ees and the business interests of t he e‟er are to be considered in order to define the permissible limits of intrusion in an e‟ees privacy Concl: implementation of e-speak doesn’t violate provisions of pipeda in view of the fact that consent to the collection of voice characteristics was actually sought by telus and that no disciplinary measure has yet been taken by telus. Appeal dismissed Damages
Landry v Royal Bank of Canada , 2011 FC 687 is an application for an order to pay damages under s.14 and 16(c) of PIPEDA by Landry (applicant), following disclosure of information concerning her personal accounts at RBC branch. Applicant is asking for an order awarding $50,000 for injury to the applicant‟s reputation, honour and dignity; $25,000 for moral prejudice, pain and suffering, and; $25,000 i n exemplary damages From Randall v Nobodys Fitness centre : an award of damages under s16 of PIPEDA isn‟t to be made lightly, such an award should only be made in the more egregious sitns. Damages are awarded when the breach has been one of a v serious and violating nature such as video-taping and phone-line tapping For damages to be awarded, the alleged injury must result directly from the misconduct (Stevens v SNF Maritime Metal Inc) From Nammo: under 16(c), the awarding of damages is d iscretionary The applicant suffered an injury in this case, but she contributed to her own misfortune by attempting to conceal under oath the existence of her personal accounts even though sh e was obliged to disclose their existence. Taking into account the contributory fault of t he applicant and the serious breach committed by the respondent‟s e‟ee and its subsequent cover -up, the ct finds that the applicant suffered humilation under para 16(c) and the respondent‟s negligence warrants the applicant being compensated but doesn‟t give rise to exemplary damages, damages of $4500 w/ interest and costs are to be paid to the applicant by respondent
Landry case is a complaint to the privacy commissioner. Is a case of a classic eg of improper access to information. Not really an e‟ment case, complainant is involved in divorce proceedings.
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