Management Lawyers

Invasion of Privacy in the Workplace Could Lead to Liability for Snooping Employees

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Recently, the Ontario Court of Appeal recognized a new tort related to privacy rights, that is, “intrusion upon seclusion”. 

Human Rights Tribunal Heeding Clear Direction from Supreme Court

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The Tribunal’s decisions following Figliola demonstrate that the Tribunal will not allow its processes to be used to effectively review decisions of other tribunals even if the other tribunal was not as expert on human rights issues or had a different adjudicative process. 

human rights

Taking a Hard Line on Termination Entitlements Ends Up Costing More

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Employers should be wary of taking unreasonable positions in an attempt to avoid paying an employee what they are likely entitled to.  This can end up being even more costly.

employment law,  wrongful dismissal litigation

Compliance deadline for the Customer Service Standards under AODA just a few short weeks away

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January 1, 2012 is the deadline for compliance with the Customer Service Standard under the Accessibility for Ontarians with Disabilities Act, 2005 (“AODA”).

aoda

When is a lay-off actually a termination?

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Employers in Ontario must be cautious before implementing “temporary” layoffs.

employment law,  wrongful dismissal litigation

The Ministry of Labour taking an active role to combat workplace violence and harassment

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Just over a year ago, the workplace violence and harassment provisions were added to the Occupational Health and Safety Act. Although there have only been a few cases that deal directly with these new provisions, from the period of June 15, 2011 to March 31, 2011 the Ministry of Labour has reported that there were 600 orders issued pertaining to workplace violence and 1,100 orders issued related to workplace harassment.

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It’s Party Time: Planning a Safe and Liability Free Office Holiday Party

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As we roll into December, many employers will be hosting an office holiday party for their employees. While these events are a great way to thank employees for their hard work in the past year, they can also open up employers to serious liability.

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Supreme Court of Canada Rules in Favour of Postal Workers in Pay Equity Human Rights Decision

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The claim was filed 28 years ago by female employees of Canada Post with the Canadian Human Rights Tribunal (the “Tribunal”), alleging discrimination due to discrepancies in pay between workers in clerical positions, which were female dominated, compared with those in the male dominated postal operations group. 

In a 2005 decision, Tribunal awarded the workers $150 million in damages plus interest. The Tribunal’s decision was overturned by the Federal Court in 2008 and this was upheld by the Federal Court of Appeal. The Supreme Court overturned the Federal Court of Appeal’s decision on Thursday.

employment law

Changes to Privacy Legislation: Impact on Employers’ Handling of Employee Information

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The federal government has re-introduced legislation to amend the Personal Information Protection and Electronic Documents Act (PIPEDA).  Bill C-12, Safeguarding Canadians’ Personal Information Act, which was introduced on September 29, 2011, had been previously introduced in Parliament in 2010, but failed to be passed into law because of the intervening federal election.

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Credibility Key in Avoiding Aggravated/Punitive Damages

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The employee complained that he had experienced constant verbal harassment at work during the course of his seven year employment. The verbal abuse experienced by the employee included nicknames and comments regarding his sexual preferences, mental capacity and Palestinian background. Although the trial judge found the comments to be “reprehensible”, in the final analysis, the trial judge held that they were not severe enough to constitute a separate actionable wrong in the form of intentional infliction of nervous shock.

SCC Weighs in on Costs Awards in Human Rights Complaints

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In a recent decision of the Supreme Court of Canada, the Court dealt with the issue of awarding legal costs in a human rights complaint.  This decision provides a good reminder to employers and employees of the significance of legal costs in such proceedings.  Read about this decision and the practical implications in our Latest Update.

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OLRB Does not Have “Superpowers,” Divisional Court Holds

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Ontario’s Divisional Court has overturned a decision by the Ontario Labour Relations Board (the “OLRB”), in which the OLRB took jurisdiction as arbitrator over a grievance in the construction industry under section 133 of the Act.

Section 133 provides that, “despite the grievance and arbitration provisions in a [construction industry] collective agreement,” a party may refer a grievance to the OLRB, instead of to a private arbitrator under the collective agreement.

Although the collective agreement’s time limits for referring a grievance to arbitration had expired several months before the union applied to the OLRB pursuant to section 133, the OLRB found that it could take jurisdiction over the grievance.  The OLRB has, over several decades, issued decisions which either broadly or strictly interpreted its power to take jurisdiction over a grievance under similar circumstances.

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Employer Hit Hard for Discontinuing Disability Benefits Shortly After Termination

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Employers who only provide the minimum amounts required by employment standards legislation after termination are gambling. Sometimes this approach can result in cost savings, but it can also end in a costly damages and legal costs award as occurred in the case of Brito v. Canac Kitchens. Read our Latest Update for more information about the case, and what to do to protect your organization from such awards.

employment law,  wrongful dismissal litigation

Don’t Miss our 25th Annual Employers’ Conference

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New: Preview VIDEOS for This Year’s Seminars

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A New Way to Deal with Frivolous Human Rights Complaints Quickly and Cost Effectively

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Among the amendments to Ontario’s human rights system in the past few years was the creation of a summary hearings procedure under Rule 19A of the Human Rights Tribunal (the “Tribunal) Rules of Procedure.  This can save employers time and money as it provides a formal mechanism to dismiss frivolous claims early on in the process.

In summary hearing, there are two main issues that the Tribunal will examine: (1) whether the allegations can be reasonably considered to amount to a violation of the Code, or (2) whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights have been violated.

human rights

Human Rights Tribunal finds undue hardship test met

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In a recent application to the Human Rights Tribunal of Ontario, the Tribunal found that an employer facing an economic downturn including mass lay-offs had met the test of undue hardship and did not have to accommodate an employee returning to work from disability leave.

The applicant was laid off on the eve of his return to work following a lengthy medical leave. At the time of the layoff, the company was experiencing a company-wide downsizing due to major financial trouble. The employer reduced its staff from 31 to 17 during this period. The length of service of the other terminated employees was comparable to the applicant.

human rights

Ryan Conlin and Landon Young both presented at the first annual Health, Safety & Environment Conference and Trade Show

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Ryan Conlin and Landon Young both spoke at the first annual Health, Safety & Environment Conference and Trade Show at the Metro Toronto Convention Centre on September 27^th and 28^th 2011.

Landon Young spoke to attendees about what to expect when an occupational health and safety inspector visits an employer’s premise.  Among his recommendations, Landon emphasized the importance of cooperation with the Inspector, how to respond to onerous orders and how to handle Inspectors’ post-accident investigations.

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Joe Morrison Speaking at the Infonex Human Resources Management for First Nations

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Joe Morrison will be presenting at two sessions during the Infonex Human Resources Management for First Nations Conference on September 15.

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Ontario Ministry of Labour Blitz to Focus on Personal Protective Equipment

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The Ontario MOL has announced a safety inspection blitz in October regarding personal protective equipment (PPE).

workplace safety

Don’t Miss our 2011 Annual Employers’ Conference!

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Labour & Employment Law Update 2011

workplace safety

Jurisdiction Over First Nations’ Employment and Labour Issues: Is it Federal or Provincial?

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Jurisdiction over employment in First Nations and aboriginal employers can be a complicated issue.  Until recently, different courts seemed to take different approaches.  If a federal court was deciding the issue, a broad approach was typically taken. 

employment law

Kelly McDermott quoted in the Globe and Mail

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Stringer Brisbin Humphrey’s Kelly McDermott was quoted in the Globe and Mail today commenting on time theft and internet use by employees at work. 

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Human Rights Tribunal Discourages Unnecessary Naming of Personal Respondents in Applications

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In Sterling v Wendy’s Restaurant, the applicants (a former Wendy’s employee and his wife), named 14 personal respondents, who were members of management and fellow co-workers, in a human rights application alleging workplace discrimination.

The Tribunal removed all the personal respondents from the proceeding. The Tribunal held that the applicant had not established a compelling reason for the inclusion of the personal respondents. There was no issue as to the restaurant’s ability to respond to or remedy the alleged Human Rights Code infringement and it accepted being deemed liable for the conduct of its employees.

human rights

Business Visitor Status - What Every International Organization Needs to Know

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The Conservative Government has expanded its efforts to crackdown on individuals who are abusing Canada’s immigration system. For Canadian companies that are affiliated to or do business with a company or companies located in another country, this political change means that travelling to and from Canada for business is going to be more difficult for your employees.  Learn about this development in our Latest Update.

immigration

Pay in Lieu of Notice by Salary Continuance Deemed Implicit Right

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The Ontario Superior Court of Justice recently ruled in Bowes v. Goss Power Products Ltd., that a fairly standard termination provision in an employment contract implied the right to provide pay in lieu of notice by salary continuance.  The employer wanted to rely on this right so as to set off any mitigation by the employee during the notional notice period.

employment law,  employment standards,  wrongful dismissal litigation

Immigration Law Update: Limits on Pool of Skilled Workers in Canada

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The Federal Skilled Worker program enables eligible workers in one of twenty-nine eligible occupations to apply to become permanent residents in Canada. In a press release dated June 25th, 2011, the Department of Citizenship and Immigration announced that between July 1, 2011 and June 30, 2012, a maximum of 500 Federal Skilled Worker applications in each of the 29 eligible occupations will be processed.  This is half of the 2010 quota.

immigration

Recent Update from the Minister of Labour on Bill 160

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As we mentioned in our SBH Update, a significant change under Bill 160 is the removal of the Injury & Disease Prevention function of the WSIB, which will now be the responsibility of the Ministry of Labour and the Chief Prevention Officer (soon to be appointed).  The Minister of Labour announced in a recent open letter to the Interim Prevention Council, that he anticipates that these amendments will come into force by April 1, 2012.  This includes the powers related to training programs and to the designation of Health and Safety Associations.

workplace safety

Releases Protect Employers From Human Rights Complaints

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It is a good practice for employers to have employees sign a full and final release when their employment is terminated in order to avoid future law suits arising from the employment relationship. Recent cases of the Human Rights Tribunal of Ontario illustrate a trend in the jurisprudence toward dismissing human rights applications by employees who have signed a release. Read about these decisions and tips to make your release enforceable in our latest update

human rights

You Have and ESA Inspector at the Door!

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Don’t miss our comprehensive, half-day training seminar at the Sheraton Toronto Airport on Thursday, September 22.  

employment law,  employment standards

WSIB loss of Earnings Benefits still offset against Wrongful Dismissal Damages in Ontario

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In a recent decision, Jensen v. Schaeffler Canada Inc., the Ontario Superior Court of Justice reduced an employee’s pay in lieu of notice award for wrongful dismissal by the amount of WSIB loss of earnings received during the notice period.

ontario law,  workers compensation,  wrongful dismissal litigation

Get ready for the new AODA Employment Standard Regulation

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The new Integrated Accessibility Standards regulation (the “Integrated Regulation”) was enacted on July 1, 2011.  This is the second regulation under the Accessibility for Ontarians with Disabilities Act (the “Act”).  It includes the Employment Standard, the Information and Communication Standard and the Transportation Standard.

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Multiple Notice Extensions Invalidated Notice of Termination

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Over a period of five months, Crown Metal Packaging Canada LP provided Mr. Di Tomaso with five notices of termination, containing four extended termination dates.  Each notice was provided only days before the termination of the notice period in each respective notice.

employment law,  employment standards

Allison Taylor Speaks to Canadian @HRReporter About Managing Disabled Employees

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Allison Taylor Speaks to Canadian @HRReporter About Managing Disabled Employees

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New WSIB Work Reintegration and NEER Policies Effective July 15

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The WSIB has released the final versions of its new Work Reintegration and revised NEER policies.  You can find them on the WSIB’s website.  They come into effect on July 15th. 

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Integrated Accessibility Standard under the AODA effective on July 1, 2011

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The Integrated Accessibility Standard is the second regulation to be enacted under the Accessibility for Ontarians with Disabilities Act. The first standard, the Customer Service Standard, has applied to public sector organizations since January 1, 2010 and will apply to private sector organizations with one or more employees on January 1, 2012.

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A Few Key Revisions Made to Bill 160 Before it Passed

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A revised Bill 160 was passed on June 1st. Notable changes to the Bill include an increase in the role of the Chief Prevention Officer, a position created by the Bill.  The Chief Prevention Officer is to be appointed by the Minister of Labour for a renewable five year term.  Earlier drafts of the Bill gave the Ministry of Labour authority over the content and implementation of training programs and the certification requirements for members of joint health and safety committees.  These responsibilities instead have been given to the Chief Prevention Officer.

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Court Enjoins Unlawful Canada Post Worker Picketing

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In an urgent motion heard on June 16, 2011, the Ontario Superior Court of Justice ordered Canada Post Workers’ union, the CUPW, to refrain, for a period of 10 days, from preventing, blocking, or obstructing any person from entering the a key Ottawa mail sorting facility on foot.

labour relations

Mayor Ford to privatize police janitorial jobs in ongoing campaign to contract out

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Mayor Rob Ford is planning to privatize many police janitorial jobs in his ongoing campaign to contract out city services.  He notified the heads of CUPE Local 79 and Local 416 in a letter on June 15, 2011 that the City of Toronto plans to make adjustments to the manner in which custodial services are provided to the City, in particular he warned that the Toronto Police Services Board had requested that the City look into private options.  This is Mayor Ford’s second major step in his plan to cut the City’s workforce. Just last month, City Council had a vote in favour of contracting out garbage collection in the West end of the City.

labour relations

Conservative Majority to Appoint 2 New Supreme Court Justices

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The CBC News reports that Supreme Court of Canada Justices Ian Binnie and Louise Charron have announced they will retire on August 30, 2011.  With the newly elected, Conservative majority government, Canadians will no doubt watch the nomination and selection process with greater interest.

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Ontario Court of Appeal Rules Non-Competition Clause Unenforceable

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Employers will be disappointed to hear the results of a recent decision in which the Ontario Court of Appeal declared the restrictive covenant in an employment contract, unenforceable. Read about this decision and tips to ensure your contracts are enforceable in our Latest Update.

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Supreme Court issues Decision in Fraser

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In a long awaited ruling, the Supreme Court of Canada has issued its decision in Ontario (Attorney General) v. Fraser. In 2002 the Ontario Government passed the Agricultural Employees Protection Act, 2002 (the “AEPA”).  The UFCW, among others, challenged the AEPA as unconstitutional because it permits farm workers to form employee associations and gives them certain rights to bargain collectively, but they continue to be excluded from union representation under the Ontario Labour Relations Act, 1995.

labour relations

Court Rules no Class Action for Constructive Dismissal

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The Ontario Superior Court of Justice has refused to permit a group of former Allstate Insurance employees to sue Allstate for constructive dismissal in a class action.  The group of former sales employees alleged that they were constructively dismissed when the company rolled out a new, company-wide model for product distribution and agent compensation.  Because the policy affected the entire group, the plaintiffs argued it was appropriate to deal with their case by way of a class action.

employment law

Quebec Introduces Incentives With New Work-life Balance Certification

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The government of Quebec has recently introduced new incentives for businesses to promote work-life balance, through its “work-family balance certification” initiative.  Public sector and private sector employers as well as other groups in Quebec may apply for Quebec’s work-family balance certification, which consists of a rating from one to four depending upon the amount of points awarded to the employer. Employers will receive points for, among other things, providing flexible work schedules, day-care arrangements and a compressed work week.

employment law

Court finds employee did not condone changes after 15 months

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The Ontario Superior Court has ruled that an employee who continued to work for 15 months following a change in his terms and conditions of employment had not condoned the change and could claim damages for constructive dismissal.  Read more about this surprising decision and key lessons for employers to learn in our Latest Update.

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The Enemy Within: Protecting Your Business and Confidential Information from Departing Employees

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Don’t miss our May 16 Webinar:

employment law

There’s an OH&S Inspector at the Door!

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Don’t Miss our May 5th Seminar at the Sheraton Toronto Airport:  

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Don’t miss our April 14 Seminar

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Effective Management of Long-Term Disabled Employees: How to Navigate the Legal Minefield.  Please join us at the Delta Toronto Airport West: http://www.sbhlawyers.com/events.php?id=51

human rights,  workers compensation

TTC an “Essential Service”

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Responding to a request from Toronto’s City Council, Ontario has passed Bill 150 which bans strikes and lockouts by TTC employees. First reading of the bill was in February of this year and it passed yesterday, March 30, 2011, by the government of Ontario. The new act, The Toronto Transit Commission Labour Disputes Resolution Act, 2011 (the “Act”), outlines new collective bargaining rules that must be followed when the parties are unable to negotiate an agreement.

labour relations

Tony Dean Panel Report Proposes Sweeping Reforms to Ontario OH&S Law

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The Expert Panel appointed to conduct a detailed review of the entire occupational health and safety system has released its highly anticipated report.  Read more about the Panel’s key recommendations and potential impact on the enforcement regime in our latest Update.

workplace safety

WSIB RETURN TO WORK DECISIONS: ARE THEY BINDING ON THE HUMAN RIGHTS TRIBUNAL?

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The Boyce decision establishes that at least in some instances injured workers are free to attempt to concurrently pursue Human Rights Code remedies against their employer even if the WSIB has ruled in the employer’s favour with respect to whether work is suitable.

human rights,  workers compensation

Alberta Human Rights Tribunal Awards Employee $650,000

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After 19 years of protracted litigation, the Human Rights Tribunal of Alberta has now awarded a former employee of Mobil Oil Canada $650,000 in damages.   Read our recent Update.

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Attend our 24th Annual Employers’ Conference

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Labour & Employment Law Update 2010

Join us at our upcoming conference on November 4, 2010 at the Toronto Congress Centre.

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Order your copy Today

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Our own Allison Taylor, along with Peter Wilson, have co-authored the 3rd edition of their book, “The Corporate Counsel Guide to Employment Law.”

This resource provides a focused and disciplined overview and guide with respect to employment law. This practical text addresses the material legal constraints, issues and requirements of employment law, helping you with everything from hiring to termination.

For more information or to order your copy, visit Canada Law Book here.

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Significant Changes to the Human Rights Tribunal’s Rules

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Kelly McDermott and Jeremy Schwartz

Effective July 1, 2010, the Human Rights Tribunal of Ontario has made significant changes to its rules of procedure, and corresponding forms and practice directions. 

The changes may fundamentally alter the way applications are handled at the Tribunal.  Employers and other respondents in particular will be happy to learn that the new rules will likely increase efficiency and fairness in their favour.

To learn more, view our UPDATE.

human rights

June, 2010

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The U.S. Labour Department has recently commenced an initiative to require employers to prepare and adopt compliance plans to ensure they do not violate wage, job safety and equal employment laws.  The announcement was accompanied by an expression of the desire by Labour Secretary Seth Harris that his department foster a “culture of compliance” amoung employers, as opposed to a complaint-driven system in which the employers are “caught” not complying.  The intent is for employers to prepare written plans designed to prevent violations of workplace laws, including plans to address safety hazards in the workplace. 

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Join us at the 11th Annual Employment Law Conference

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Learn the Latest!

Join us at the 11th Annual,  Ontario Employment Law Conference, on June 2, 2010 at the Pearson Convention Center, Brampton.  This event is hosted by First Reference, with presentations by the lawyers at Stringer Brisbin Humphrey.

Follow this link for more information or to register: http://www.firstreference.com/conference/index.asp

ontario law

Court Certifies Overtime Class Action

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The Ontario Superior Court of Justice has ruled that representative plaintiff Cindy Fulakwa can proceed with her class action against Scotiabank on behalf of a class of more than 5,000 sales staff who worked in retail branches of Scotiabank from 2000 to the present. 

employment standards,  ontario law

Can Courts Force Businesses to Stay Open?

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The Supreme Court of Canada (”SCC”) recently weighed in on an interesting point of law: to what extent can the courts force a business to stay open? 

The business in this case was the famous Wal-Mart store located in Jonquiere, Quebec that was the first Wal-Mart to unionize in North America.  Five months after certification, the company decided to shut down its store and terminate the employment of 190 workers on the same day the parties’ first collective agreement dispute was referred to arbitration by Quebec’s labour minister.

labour relations

Plaintiffs May Think Twice Before Filing Suit Under New Rules

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On January 1, 2010 the rules governing civil actions in Ontario are to undergo sweeping changes. One notable change is the expansion of the small claims court jurisdiction from $10,000 to $25,000. The changes are supposed to improve access to justice and reduce the cost of litigation for all parties.

wrongful dismissal litigation

Battle of the Press Releases: WSIB and CFIB Wage PR War Over Alleged Mismanagement

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The Canadian Federation of Independent Business (”CFIB”) appears to have ruffled the feathers of the WSIB.  In a combative September 3, 2009 press release, the CFIB blasted the WSIB for recent financial market losses and called for an independent review of the Board as a result of what the CFIB called “…blatant mismanagement and monopolistic complacency“.   The CFIB even compared the WSIB’s situation to the recent high profile public scandals involving E-Health and the Ontario Lottery and Gaming Corporation.

workers compensation

EI Ruling May Lead to Increase in Employees Taking Parental Leave

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An Employment Insurance Board of Referees has decided that both parents of newborn twins qualified separately for 35 weeks of employment insurance parental benefits.

employment insurance

Medical Dishonesty Disentitles Employee to ESA Notice

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Employees who engage in medical dishonesty may find themselves disentitled to ESA termination and severance pay.

The ESA provides that employees who are guilty of “willful misconduct” or “willful neglect of duty” are not entitled to statutory notice of termination or severance pay.  These are typically treated as very high standards.  The key is that the conduct must be serious, and it must be willful.  In other words, failing to meet production standards will not usually be sufficient to disentitle an employee from statutory notice and severance pay, unless the employee was failing intentionally.

employment standards

CIBC Unpaid Overtime Class Action to be Appealed

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In a recent SBH Update we discussed a case where a $600 million class action lawsuit against CIBC for unpaid overtime was denied certification.  Not surprisingly, this decision is being appealed to the Ontario Divisional Court.

employment standards

Employee Entitled to Package Given by Mistake

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In a case that can only be described as a cautionary tale, an employer was ordered to pay 5 months pay in lieu of notice to an employee to whom it had intended to pay only 3 weeks ESA termination pay.  This case should serve as a reminder to employers to carefully review termination letters before they go to employees.

employment standards,  wrongful dismissal litigation

Living Organ Donors to Receive Job-Protected Leave

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Ontario has passed legislation amending the Employment Standards Act, 2000 to provide up to 13 weeks of leave of absence without pay for employees who undergo surgery in order to donate organs to other persons.  The new leave will come into force upon proclamation on a future date.

employment standards

Ministry Announces Safety Blitz Aimed at Young Workers

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A new month, a new blitz!  In keeping with its practice of conducting new health and safety “blitzes” every month, the Ministry of Labour has announced that its inspectors will be focussing on the protection of young and new workers during the month of June.

employment standards,  workplace safety

Welcome to SBH’s New Website

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Welcome to SBH’s new website!  Our goal is to provide a useful resource for employers to keep up to date on legal developments.  You may also register online for our seminars through this site.

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