The employee in this case was an educational assistant who was accused of striking a grade 5 student in class. The school confronted the employee with the allegations, and then suspended her pending an investigation by the Children’s Aid Society. The investigation exonerated the employee and she was reinstated. However, she was so devastated by the accusations that she was diagnosed with major depression, having been unable to function since the allegations surfaced. She was avoiding children and places like schools and playgrounds, and had started experiencing flashbacks of sexual and emotional abuse that she experienced as a child.

The employee applied for traumatic mental stress benefits, claiming that she experienced an acute reaction to the sudden and unexpected accusations, which she said amounted to a traumatic event within the definition of the Workplace Safety and Insurance Act, 1997 (the “Act”). Whereas in the past the WSIAT would have denied the employee’s claim because the stress she experienced did not result from a traumatic event that posed a risk of physical harm to her, in this case the WSIAT found that a real or implied threat to a person’s well-being is not required to find entitlement to traumatic mental stress benefits. An employee need only establish that the event giving rise to the traumatic mental stress is clearly and precisely identifiable, is objectively traumatic and is unexpected in the normal or daily course of the worker’s employment, all of which were established in this case.

Implications for Employers

This decision is clearly significant for employers because it expands the scope of compensable events, thereby potentially increasing the number of claims and types of situations that would lead to a successful claim for traumatic mental stress benefits. Successful claims normally increase the employer’s cost statement, reduce rebates or increase employers’ annual premiums. However, claimants seeking traumatic mental stress benefits have a high evidentiary burden to meet, that is they will have to show that an objective but unexpected event in the workplace resulted in a psychological condition that was so sever, it amounted to traumatic mental stress as it is prescribed by the Act. In addition, an increase in the number of WSIB claims should be accompanied by a decrease in lawsuits for traumatic mental stress, as entitlement to WSIB benefits is granted in lieu of an employee’s entitlement to file a civil claim against the employer.

Our lawyers can assist employers in addressing claims for traumatic mental stress benefits and providing advice on the implications employers may face as a result of such claims.

Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.

A recent decision of the BC Court of Appeal, in Giza v. Sechelt School Bus Service Ltd, dealt with two (2) interesting issues where an employer provides working notice to an employee that is inadequate in terms of lawful reasonable notice, and the employee quits in response.  Specifically, the BC Court of Appeal addressed the following questions:

1. If an employer provides inadequate working notice of termination, does that automatically give rise to an action for “constructive dismissal”  - a unilateral and fundamental change to the employment relationship – where the employee is entitled to resign and then sues for wrongful dismissal; and
2. If employees are required to work during an inadequate notice period provided by the employer, does the employee lose the right to sue for wrongful dismissal if he quits before the notice period expires?

According to the BC Court of Appeal, the answer is “no” to both questions.

The key facts of the Giza case were that Mr. Giza’s employer elected to dismiss him, after five (5) years of service, by providing him with five (5) weeks of working notice.  Upon receiving his termination notice, Mr. Giza left work permanently. 

There was no dispute that the amount of notice given to Mr. Giza was inadequate given his age (62) and 5 years of service. 

The BC Court of Appeal found that the provision of inadequate notice, though a breach of contract, did not, in its own right, give rise to a constructive dismissal entitling Giza to quit his employment and sue for wrongful dismissal.  The failure to provide reasonable notice was not a fundamental change that terminated the contract of employment.  Other changes to the employment relationship, or serious misconduct, would have been required to constitute a constructive dismissal. As such, Giza was still obliged to work during the notice period provided to him and, if he desired, sue for wrongful dismissal at the end of the notice period once the employment relationship in fact ended.  In the circumstances, Giza simply quit his employment.  

Despite the resignation, Giza did not lose his right to sue for wrongful dismissal.  The court held that his cause of action for wrongful dismissal arose before he resigned and the instant the employer provided inadequate notice to him.  Nevertheless, there were consequences tied to his refusal to working during the five (5) week notice period.

What the Court did was award Giza six (6) months of pay in lieu of notice due to his wrongful dismissal, but deducted five (5) weeks from the award because he could have and should have worked during this period, but for his resignation, without cause.  

The Giza decision is an interesting one that should prove helpful to employers in Ontario that prefer to terminate employment by providing working notice, however, it is important for employers to understand their legal obligations when providing working notice to employees in order to maximize value and reduce liability.  Working notice should be provided in writing, with a specific termination date and should be structured so that there are no changes to the employee’s terms and conditions of employment during the working notice period.  Additionally, if employees are provided a reasonable opportunity to search for new employment during the notice period this increases the employee’s chances of obtaining a new position before the working notice period expires which can significantly reduce or eliminate any further obligations owed by the employer, even where the working notice was inadequate.

The lawyers at CCP can assist employers in assessing whether working notice is appropriate and in creating flexible termination arrangements to reduce employer liability.

Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.

Context

In August of 2006, Sheehan, a company selling tractor trucks out of its parking lot, hired an external contractor to expand their parking lot.  To facilitate the contractor’s paving work Sheehan employees were instructed to move multiple trucks to another part of the parking lot.  Unfortunately, during the move a Sheehan employee backed over his coworker with a 25-foot truck unit causing him a serious pelvic injury that rendered him unable to work for a few months. 

Sheehan was charged under Section 25(1)(c) of the Act which requires that prescribed health and safety measures are carried out in the workplace and that more specifically under Section 56 of the Industrial Establishment Regulation they were faulted for not providing a signaler  “[w]here the operator of a vehicle, mobile equipment, crane or similar material handling equipment does not have a full view of the intended path of travel.”

Sheehan was successful at the Trial Court but the Crown appealed and the decision was overturned by a Summary Conviction Appeal Court (“SCAC”) Judge of the Ontario Court of Justice who entered a conviction against the company. 

Sheehan appealed the SCAC conviction to the Ontario Court of Appeal.  In addition to making the statement that the OHSA does not mandate that employers create an entirely risk-free workplace, the Court of Appeal also engaged in a helpful clarification of Section 56 of the Industrial Establishment Regulation.  

The Court of Appeal found that the Regulation’s Section 56 when read as a whole only applied to vehicles in the context of material handling equipment and that to read otherwise would be far more broad than the legislature intended.  The Court of Appeal applied logic and common sense rather than accepting the Crown’s interpretation of the Regulation which the Court commented would have gone  so far as to make the regulation applicable to passenger cars in shopping centres, plazas and office building parking lots.   The court went on to define “material handling” in the context of industrial establishments as usually;

(1) undertaken in an interior or enclosed setting, such as a factory or plant; (2) extends over short distances; and (3) forms part of a broader industrial process involving the movement of materials or products for such purposes as supply, manufacturing, installation, warehousing, shipment and sale.

In applying their definition to the Trial Judge’s findings the Court of Appeal concluded that the “material handling” characteristics did not apply to Sheehan’s truck unit.  The Court of Appeal specifically found that the unit did not have the capacity to handle materials, it was an item offered for sale to the public, it would be used to transport goods on public highways over considerable distances when sold and that no evidence was presented to suggest it was used or contemplated to be used for material handling activity by the Company. 

Costs of this Appeal were awarded against the Crown in the amount of $18,000. 

The CCP team has considerable experience assisting employers with responding to inspector’s orders, dealing with accident investigations, responding to charges under the Occupational Health and Safety Act and ensuring the safety of your workplace.   Consider consulting the lawyers at CCP to help alleviate your workplace’s occupational health and safety concerns.

Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.

“Full Appreciation Test” and Cases where Summary Judgment may or may not be Appropriate

The OCA began its analysis by reminding the legal profession that the purpose of the amendments to Rule 20 was to eliminate unnecessary trials, not to eliminate all trials. Summary judgment will not be the appropriate mechanism in all disputes, but only in circumstances where the motion record is sufficient to ensure that a just result could be achieved without a full trial. The Court listed three types of cases that would be appropriate for summary judgment:

1. Cases where the parties agree that the case could appropriately be dealt with on summary judgment (the Court, however, maintains its discretion to refuse summary judgment where it disagrees with the parties).
2. Cases where claims or defences are shown to be without merit or where the claim or defence has no chance of success; and
3. Cases where the trial process is not required “in the interests of justice”. To determine whether a case falls into this category, the motion judge must ask whether the full appreciation of the evidence and issues that is required to make dispositive findings can be achieved by summary judgment, or can this full appreciation only be achieved by way of a trial?

In determining whether to grant summary judgment or to proceed to a full trial, the motions judge must ask the following question: Can the full appreciation of the evidence and issues that is required to make dispositive findings by achieved by way of summary judgment, or can this full appreciation only be achieved by way of trial?

According to the OCA, a case will likely require a full trial where:

• There is a voluminous record
• Multiple findings of fact are required
• Contentious factual issues are present
• A number of witnesses will be called
• There is an absence of documentary evidence to allow a motions judge to assess credibility of witnesses

Conversely, a Court may be more willing to entertain a motion for summary judgment where:

• It is document-driven
• There are limited contentious factual issues
• The record can be supplemented with limited oral evidence or discrete issues.

Importance of Case

While the OCA’s decision brings some well-needed clarity to Ontario’s summary judgment rules, it remains to be seen how lower courts will apply and interpret the “full appreciation” test advocated by the OCA. Now that judges have greater tools at their disposal to determine whether a full trial is necessary, it is likely we will see a greater number of summary judgment motions as claimants “test the waters” to see whether the Courts will in fact exercise their power to dismiss a case at a preliminary stage, after taking into account a “full appreciation” of the evidence before them.

From an employer’s perspective, we expect to see more employees taking advantage of summary judgment motions in wrongful dismissal actions in order to recover damages more quickly and without the legal costs that would be incurred in a full blown trial process. For a recent example of the considerations on summary judgment in the wrongful dismissal context, please see our November 24, 2011 blog where we reviewed two recent summary judgment decisions. While these decisions pre-date the Court of Appeal’s decision in Combined Air Mechanical Services Inc. we believe that the motion judges applied much of the same reasoning in coming to their respective decisions.

For more information on the summary judgment process or how it may impact your current wrongful dismissal litigation, please contact one of the lawyers at CCP.

Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.

In Jones, Jones and Tsige were both employees of the Bank of Montreal (“BMO”).  Tsige,  in a relationship with Jones’ former husband, accessed Jones’ personal BMO bank records a whopping 174 times over four years to obtain information about her financial situation, without Jones’ knowledge. Jones became suspicious, filed a complaint with BMO and filed a civil law suit against Tsige, asserting that her privacy rights were violated.

The trial judge followed the consensus in Ontario and found that there is no free-standing right to privacy at common law. The Court of Appeal disagreed. It reasoned that the internet and digital technology have accelerated the pace of technological change exponentially, causing personal data to be particularly vulnerable. The common law, the Court found, is capable of evolving to respond to problems caused by the current expansion of technology and the exposure of personal data, and now is the right time to recognize an independent tort that would protect an individual’s right to privacy.

In making its determination, Ontario’s top court found that Tsige’s conduct was intentional or reckless, that  she invaded Jones’ private affairs or concerns without lawful justification, and that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or aguish.   Jones did not need to show that she suffered actual damages, as the tort is meant to protect hurt feelings, embarrassment or mental distress rather than economic interest.   The Court held that damages will typically be “symbolic” or “moral”, and capped at $20,000.00.  However, the Court left open the possibility of aggravated and punitive damages awards in exceptional cases. The Court awarded $10,000.00 in damages to Jones.

What does this mean for employers?

Although in its decision the Court stated that “recognizing this cause of action will not open the floodgates”, employers may see an increase in claims for “breach of privacy” where employers/co-workers have  viewed private e-mails and other private documents sent on work computers using a work e-mail account, surveillance at and outside the workplace and the requirement of medical records by employers in certain situations until courts better define which actions fall within the parameters of the new tort.   We also predict that “breaches of privacy” claims will make their way into wrongful dismissal actions in increasing numbers as a way of supporting a claim for punitive damages.

 In our April 19, 2011 blog we summarized the Court of Appeal’s decision in R. Cole where the Court of Appeal considered an employee’s reasonable expectation of privacy when using an employer’s computer equipment for personal enjoyment.   In that blog we recommended that employers have a clearly worded policy on technology use that confirms that employees should not have an expectation of privacy when using the employer’s computers, internet or work e-mail.    The Jones decision emphasizes the importance of communicating expectations in written policies so that employees understand what they should and should not expect in terms of maintaining their privacy in the workplace.    Employers who take steps to define the reasonable expectations in the workplace will not only be better equipped to defend against these claims in the future but will also be well positioned to argue that they should not be held vicariously liable for employees who breach policies by accessing or otherwise violating the privacy rights of other employees.  

We would encourage you to contact one of the lawyers at CCP if you have any questions about this new tort and how it may affect your organization.

Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.

Top Labour and Employment Cases of 2011

1. R. v. Cole – The Ontario Court of Appeal weighs in on an employee’s reasonable expectation of privacy in the workplace where private information is stored on the employer’s computer equipment used by the employee in the course of employment.  Continue Reading
   
2. Ontario (Attorney General) v. Fraser – The Supreme Court of Canada rejects the notion that “freedom of association” enshrined in the Charter requires labour legislation be interpreted as providing traditional or any particular model of collective bargaining.    Continue Reading
   
3. Chem-Trend Limited Partnership v. Mason – On January 12, 2012, the Supreme Court of Canada dismissed Chem-Trend’s application for leave to appeal the Ontario Court of Appeal’s decision that a global restrictive covenant preventing a former employee from working for or soliciting business from Chem-Trend’s customers was unenforceable as an unreasonable restraint of trade.  Continue Reading
   
4. Love v. Acuity Investment – ­ Short service does not always mean a shorter common law notice period.  The Court of Appeal awarded a senior vice president with 2.5 years’ service 9 months’ salary in overturning the trial judge’s award of 5 months.  Continue Reading
   
5. Blue Mountain Resorts Limited v. Ontario  - The Ontario Divisional Court imposes an obligation on employers to report critical injuries of  “non-workers” (in this case a guest) to the Ministry of Labour where the injury has occurred in any part of an employer’s premises that can be considered “the workplace” (in this case the resort’s guest swimming pool).   Leave to appeal to the Ontario Court of Appeal was granted in December 2011.  Continue Reading
   
6. Di Tomaso v. Crown Metal – The Ontario Court of Appeal confirms that there is no “hard cap” on the amount of common law notice a court can award a dismissed employee regardless of the character of employment.  Continue Reading
   
7. Brito et al v. Canac Kitchens – Failing to continue disability coverage during the common law notice period assessed by the courts results in 200K award to a former employee who became disabled during the notice period.   Continue Reading
   
8. Kingston (City) v. Canadian Union of Public Employees – Discharge for just cause is an appropriate response where an employee utters a death threat and accepts no responsibility for her actions notwithstanding 28 years’ service with the employer in the post-Bill 168 workplace.  Continue Reading
   
9. British Columbia (Workers’ Compensation Board) v. Figliola – The Supreme Court of Canada takes a strong stand against parties “re-litigating” issues in holding that human rights tribunals do not have jurisdiction to “review” decisions of other tribunals.  Continue Reading
   
10. North Bay General Hospital v. Ontario Nurses Association – An investigation report prepared by a law firm retained only for the purpose of investigating does not attract solicitor-client privilege.   Continue Reading

Top Legislative Changes

1. Bill 160, which received Royal Assent on June 1, 2011, represents a significant overhaul of Ontario’s health and safety and workplace safety and insurance systems.   The new legislation calls for increased worker training and the creation of programs and policies in the area of health and safety.  Continue Reading
   
2.  New WSIB policies on work reintegration and NEER.  Continue Reading
   
3.  Accessibility for Ontarians with Disabilities Act (AODA).  In June 2011 the Integrated Accessibility Regulation was passed by the government which will require most employers to have accessible workplaces for people with disabilities through the entire cycle of employment.  In addition, effective January 1, 2012, all employers in Ontario will be required to have individualized emergency response plans for employees with disabilities.  Continue Reading
   
4. Family Caregiver Leave (Employment Standards Act).  Introduced in late 2011, this legislative amendment, if passed, will grant employees in Ontario with up to eight (8) weeks of unpaid leave to care for family members and relatives suffering from a serious medical condition. Continue Reading

Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.

Some of us have had the pleasure of knowing and working with Bonni for over 20 years as her career has developed.  Bonni was at the forefront of pay equity implementation and compensation design when such was first introduced in Ontario, and Bonni continues to be recognized as an expert in this area.  Bonni also spent a number of years developing expertise in U.S. human resources, which has been of great benefit in assisting U.S. clients in establishing Canadian operations and understanding the important differences in employment practices and legislation. 

Since Bonni became the principal consultant at our affiliated business, The Employers’ Choice Inc., in 2002, as well as the Managing Director, she has repeatedly demonstrated her human resources acumen.  She recognizes the importance of human resources providing “bottom line” benefit to workplaces in tangible and intangible ways, as well as the need to develop and train the human resources team or those with such responsibilities to continuously improve the work experience.  In this regard, Bonni has effectively developed a human resources needs assessment process that assists organizations in identifying workplace structure and system development needs to meet strategic business objectives, as well as employee expectations. 

Whether it be compensation implementation or redesign, staff coaching/training, workplace restructuring or the development of policies to guide the culture of an organization, Bonni has assisted many clients in developing and implementing systems or programs to meet their business goals.  In doing so, Bonni has demonstrated her ability to provide appropriate and unique solutions to the workplace issues faced by clients as opposed to an “off the shelf” or “cookie cutter” approach.  As a result, she has developed enduring relationships with client representatives who see her as their trusted advisor in managing workplace change or implementing new systems/programs. 

And, along the way, Bonni has worked hard to develop young professionals and connect others in the human resources profession so that ideas and opportunities can be shared in a collaborative and supportive manner.  This has recently included the development and delivery of practical training programs to human resources professionals such as compensation design basics, effectively using Excel and social networking in the field.  Apart from her extensive teaching and speaking in the field, Bonni’s commitment to the profession is also demonstrated by her frequent blogging and development of the “EO List” website. 

The HR Summit will hold a recognition and Gala Awards event on January 31, 2012.  As one of three finalists for this prestigious honour, Bonni is clearly a winner at our end.

Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.

The employer’s involvement with the EI process begins with the issuing of the ROE.  While there are various reasons to issue an ROE, we are focused here on the two most common: dismissal without cause, and dismissal with cause.  While there are also different ways to complete an ROE, and different codes that employers can use, the most prejudicial of these codes is “M – Dismissal”, properly used for dismissal with cause.  This is because, according to section 30(1) of the Employment Insurance Act, an employee who has “… lost any employment because of their misconduct or voluntarily left any employment without just cause” is prohibited from receiving any EI benefits.  Accordingly, any time an employer terminates someone’s employment for cause, they invariably get contacted by the HRSDC asking for more information about the reasons for dismissal, and inquiring as to whether the employer wants to participate in the benefits entitlement process. This is where the employer must be wary.

Many employers want to demonstrate that they have acted appropriately, or feel the need to justify their actions having dismissed an employee for cause; still others don’t want to see the employee receive benefits they believe he or she does not deserve, and therefore decide to participate in EI reviews and hearings.  Others believe that they are legally required to participate in the hearing process.  In almost every instance, we advise our clients that it is not worth participating in EI proceedings and, in fact, participation can be detrimental if there are other proceedings that could arise from the dismissal. Contrary to some employers’ understanding, companies are not legally obligated to participate in EI hearings.

The reason we advise clients to decline participation in EI adjudication is simply for their own protection.  In EI adjudication there is a separate standard for determining whether an employee has “lost any employment because of their misconduct”; a standard that is not the same as, and rarely aligns with, the employer’s onus to prove just cause at common law in a wrongful dismissal action.  Worse, because of a legal concept called “issue estoppel”, any determinations made by the EI adjudicators may prevent the employer from making argument or adducing evidence in relation to just cause in another proceeding.

This means that an employer who participates in the EI adjudication process and presents evidence may be stuck with the findings of the EI adjudicator(s) in the event of a separate common-law action for wrongful dismissal.  Given the separate and different standards of proof required, and the lack of control an employer can exert over the process in the EI adjudication, it is simply not worth it for employers to participate.

Instead, we generally advise clients to fill out the ROE accurately in the case of a just cause termination but advise, either in the “comments” section of the ROE or to any HRSDC representative making inquiries, that the employer is not taking any position and will not participate in any decision relating to EI benefits.  For the purposes of EI, “issue estoppel” only arises when the employer participates in the adjudication process.  So, by dealing with it this way, but without participating, the employer preserves its right to make any and all arguments and adduce any evidence in the event it has to defend a separate wrongful dismissal claim.

If you are not sure how to properly and accurately complete an ROE, or need assistance dealing with the HRSDC or EI issues, the CCP team can help you comply with your legal obligations without exposing your organization to unnecessary risk.

Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.