In this presentation, Colleen Verville, Shawna Vogel, Joe Hunder, Adrian Elmslie, Fausto Franceschi, and Alison Walsh discuss the recent changes in labour and employment laws relating to HR practices. Foreign Workers under NAFTA Non-NAFTA Foreign Workers R. v. Cole, 2012 SCC 53 ADM Measurements Ltd. v. Bullet Electric Ltd. Heil v. Canada Safeway Limited

1. Update on Current HR Issues
1

2. North American Free Trade Agreement
(NAFTA)
Presented by: Colleen Verville
Partner
2

3. What is NAFTA?
• The North American Free Trade Agreement is a Treaty between
Canada, Mexico, and the United States designed to encourage
greater trade between the three countries;
• Chapter 16 of NAFTA facilitates the temporary entry into
Canada for selected categories of American and Mexican
business persons and workers;
• Foreign workers covered by NAFTA do not need to obtain a
positive labour market opinion from Human Resources and
Social Development Canada, which currently takes
approximately fourteen (14) weeks to obtain and could be
longer.
3

4. What are the Four NAFTA Categories?
The NAFTA program is open to four different categories of
foreign workers (Chapter 16 NAFTA):
1. Business Visitors (no need for a work permit);
2. Professionals;
3. Intra‐Company Transferees; and
4. Traders and Investors.
4

5. Business Visitors (Appendix 16.03 A.1)
• To qualify as a Business Visitor, an American or Mexican
citizen must enter Canada to perform duties international in
scope and therefore related to one of the following:
1. Research and Design:
 Technical, scientific and statistical researchers conducting
independent research or research for an enterprise located in the USA
or Mexico
2. Growth, Manufacture and Production:
 Harvester owner supervising a harvesting crew
 Purchasing and production management personnel conducting
commercial transactions for an enterprise located in the USA or
Mexico
5

6. Business Visitors (Appendix 16.03 A.1) Cont’d
3. Marketing:
 Market researchers and analysts conducting independent research or
analysis or research or analysis for an enterprise located in the USA or
Mexico
4. Sales:
 Sales representatives and agents taking orders or negotiating
contracts for goods or services for an enterprise located in the USA or
Mexico but not delivering goods or providing services
 Buyers purchasing for an enterprise located in the USA or Mexico
5. Distribution:
 Transportation operators transporting goods or passengers to Canada
from the USA or Mexico
 Customs brokers providing consulting services regarding the
facilitation of the import or export of goods
6

7. Business Visitors (Appendix 16.03 A.1) Cont’d
6. After‐sales Service:
 Installers, repair and maintenance personnel, and supervisors
possessing specialized knowledge essential to a seller’s
contractual obligation, performing services or training workers
to perform services, pursuant to a warranty or other service
contract incidental to the sale of commercial or industrial
equipment or machinery, including computer software,
purchased from an enterprise located in the USA or Mexico,
during the life of the warranty or service agreement.
7

8. Business Visitors (Appendix 16.03 A.1) Cont’d
7. General Service
 Professionals engaging in a business activity at a professional level in a
profession set out in Appendix 1603.D.1
 Management and supervisory personnel engaging in a commercial
transaction for an enterprise located in the USA or Mexico
 Financial services personnel (insurers, bankers or investment brokers)
engaging in commercial transactions for an enterprise located in the
USA or Mexico
 Public relations and advertising personnel consulting with business
associates, or attending or participating in conventions
8

9. Source of Income Principle Place of Residence
and Accrual of Profits Not in Canada
• The Business Visitor’s primary source of income, principal
place of business and accrual of profits must remain in the
United States or Mexico.
• The Business Visitor cannot directly enter the Canadian labour
market and must be entering Canada on behalf of a business
enterprise located in either USA or Mexico.
9

10. No Work Permit
• Business Visitors are the only NAFTA applicants who are
exempt from having to obtain a work permit as they are not
entering the Canadian labour market.
• Business visitors can stay in Canada for up to six (6) months.
10

11. What does the Business Visitor need to Provide
to the Canadian Border Officer?
• The Business Visitor must provide the following to the
Border Officer at the Canadian Port of Entry:
a) Proof that they are seeking entry for one of the business purposes
listed in 1 to 7 above;
b) Proof of American or Mexican citizenship;
c) Proof that the primary source of remuneration is outside of
Canada;
d) Proof that actual residence is outside of Canada;
e) Proof of accrual of profits remain outside of Canada;
f) Evidence demonstrating that the proposed business activity is
international in scope; and,
g) Letter from Canadian company they are doing business with
attesting to the above.
11

12. Who else does not need a Work Permit to
come to Canada?
• In addition to the Business Visitors, the following Applicants may not need
a work permit if they fall into one of the following categories:
– Foreign athletes and coaches
– Aviation accident or incident investigators
– Civil aviation inspectors
– Clergy
– Convention organizers and administrative staff
– Crew members
– Emergency service providers
– Examiners and evaluators
– Expert witnesses or investigators
– Family members of foreign representatives
– Foreign government officers
12

13. Who else does not need a Work Permit to
come to Canada? Cont’d
– Foreign representatives
– Health‐care students (foreign students such as: hospital residents or
students on a fellowship program)
– Judges, referees and similar officials
– Military personnel (if receive an Order to enter Canada under Visiting
Forces Act)
– News reporters, film and media crews
– Performing artists such as: foreign based bands, street performers,
foreign circus, world wrestlers and their essential staff (however, none
of them can perform in a bar or restaurant without a work permit)
(They also cannot perform on a movie, TV or Broadway without a work
permit)
– Public speakers (as long as they are not here more than 5 days at a
time)
13

14. Professionals
14

15. Professionals (Appendix 1603.D.1)
• Certain American and Mexican professionals may enter
Canada to provide pre‐arranged professional services. To
qualify for this category, applicants must have a job offer from
a Canadian employer in one of the 63 recognized occupations
set out in 1603, D1, which includes the following categories:
– General
– Medical/Allied Professionals
– Scientists
– Teachers
15

16. General
• Accountant ‐ Baccalalaureate or Licenciatura Degree; or C.P.A., C.A., C.G.A.
or C.M.A.
• Architect ‐ Baccalalaureate or Licenciatura Degree; or state/province
license
• Computer Systems Analyst ‐ Baccalalaureate or Licenciatura Degree; or
PostSecondary Diploma or PostSecondary Certificate and three years
experience
• Disaster Relief Insurance Claims Adjuster (claims Adjuster employed by an
insurance company located in the territory of a party, or an independent
claims adjuster) ‐ Baccalalaureate or Licenciatura Degree, and successful
completion of training in the appropriate area of insurance adjustment
pertaining to disaster relief claims; or three years experience in claims
adjustment and successful completion of training in the appropriate areas
of insurance adjustment pertaining to disaster relief claims
• Economist ‐ Baccalalaureate or Licenciatura Degree
16

17. General Cont’d
• Engineer ‐ Baccalalaureate or Licenciatura Degree, or state/provincial
license
• Forester ‐ Baccalalaureate or Licenciatura Degree, or state/provincial
license
• Graphic Designer ‐ Baccalalaureate or Licenciatura Degree, or
PostSecondary Diploma or PostSecondary Certificate, and three years
experience
• Hotel Manager ‐ Baccalalaureate or Licenciatura Degree in
hotel/restaurant management; or PostSecondary Diploma or
PostSecondary Certificate in hotel/restaurant management, and three
years experience in hotel/restaurant management
• Industrial Designer ‐ Baccalalaureate or Licenciatura Degree; or
PostSecondary Diploma or PostSecondary Certificate, and three years
experience
• Interior Designer ‐ Baccalalaureate or Licenciatura Degree; or
PostSecondary Diploma or PostSecondary Certificate, and three years
experience
17

18. General Cont’d
• Land Surveyor ‐ Baccalalaureate or Licenciatura Degree; or
state/provincial/federal license
• Landscape Architect ‐ Baccalalaureate or Licenciatura Degree
• Lawyer (including Notary in the Province of Quebec) – LL.B., J.D., LL.L.,
B.C.L. or Liceniatura Degree (five years); or membership in a
state/provincial bar
• Management Consultant ‐ Baccalalaureate or Licenciatura Degree; or
equivalent professional experience as established by statement or
professional credential attesting to five years experience as a management
consultant, or five year experience in a field of specialty related to the
consulting agreement
• Mathematician (including Statistician) ‐ Baccalalaureate or Licenciatura
Degree
• Range Manager/ Range Conservationalist ‐ Baccalalaureate or Licenciatura
Degree
18

19. General Cont’d
• Research Assistant (working in a post‐secondary educational institution) ‐
Baccalalaureate or Licenciatura Degree
• Scientific Technician/Technologist – Possession of (a) theoretical
knowledge of any of the following disciplines: agricultural sciences,
astronomy, biology, chemistry, engineering, forestry, geology, geophysics,
meteorology or physics; and (b) the ability to solve problems in any of
those disciplines to basic or applied research
• Social Worker ‐ Baccalalaureate or Licenciatura Degree
• Sylviculturist (including Forestry Specialist) ‐ Baccalalaureate or
Licenciatura Degree
• Technical Publications Writer ‐ Baccalalaureate or Licenciatura Degree; or
PostSecondary Diploma or PostSecondary Certificate, and three years
experience
• Urban Planner (including Geographer) ‐ Baccalalaureate or Licenciatura
Degree
• Vocational Counsellor ‐ Baccalalaureate or Licenciatura Degree
19

20. Medical/Allied Professional
• Dentist – D.D.S., D.M.D, Doctor en Odontologia or Doctor en Cirugia
Dental; or state/provincial license
• Dietician ‐ Baccalalaureate or Licenciatura Degree; or
state/provincial license
• Medical Laboratory Technologist (Canada) / Medical Technologist
(Mexico and the United States) ‐ Baccalalaureate or Licenciatura
Degree; or PostSecondary Diploma or PostSecondary Certificate, and
three years experience
• Nutritionist ‐ Baccalalaureate or Licenciatura Degree
• Occupational Therapist ‐ Baccalalaureate or Licenciatura Degree; or
state/provincial license
• Pharmacist ‐ Baccalalaureate or Licenciatura Degree; or
state/provincial license
• Physician (teaching or research only) – M.D. or Doctor en Medicina;
or state/provincial license
20

21. Medical/Allied Professional continued
• Physiotherapist/Physical Therapist ‐ Baccalalaureate or Licenciatura
Degree; or state/provincial license
• Psychologist – State/provincial license; or Licenciatura Degree
• Recreational Therapist ‐ Baccalaureate or Licenciatura Degree
• Registered Nurse ‐ State/provincial license; or Licenciatura Degree
• Veterinarian – D.V.M., D.M.V. or Doctor en Veterinaria; or
state/provincial license
21

22. Scientists
• Agriculturist (including Agronomist) ‐ Baccalaureate or Licenciatura Degree
• Animal Breeder ‐ Baccalaureate or Licenciatura Degree
• Animal Scientist ‐ Baccalaureate or Licenciatura Degree
• Apiculturist ‐ Baccalaureate or Licenciatura Degree
• Astronomer ‐ Baccalaureate or Licenciatura Degree
• Biochemist ‐ Baccalaureate or Licenciatura Degree
• Biologist ‐ Baccalaureate or Licenciatura Degree
• Chemist ‐ Baccalaureate or Licenciatura Degree
• Dairy Scientist ‐ Baccalaureate or Licenciatura Degree
• Entomologist ‐ Baccalaureate or Licenciatura Degree
• Epidemiologist ‐ Baccalaureate or Licenciatura Degree
• Geneticist ‐ Baccalaureate or Licenciatura Degree
22

23. Scientists Cont’d
• Geologist ‐ Baccalaureate or Licenciatura Degree
• Geochemist ‐ Baccalaureate or Licenciatura Degree
• Geophysicist (including Oceanographer in Mexico and the United States) ‐
Baccalaureate or Licenciatura Degree
• Horticulturist ‐ Baccalaureate or Licenciatura Degree
• Meteorologist ‐ Baccalaureate or Licenciatura Degree
• Pharmacologist ‐ Baccalaureate or Licenciatura Degree
• Physicist (including Oceanographer in Canada) ‐ Baccalaureate or
Licenciatura Degree
• Plant Breeder ‐ Baccalaureate or Licenciatura Degree
• Poultry Scientist ‐ Baccalaureate or Licenciatura Degree
• Soil Scientist ‐ Baccalaureate or Licenciatura Degree
• Zoologist ‐ Baccalaureate or Licenciatura Degree
23

24. Teachers
• College ‐ Baccalaureate or Licenciatura Degree
• Seminary ‐ Baccalaureate or Licenciatura Degree
• University ‐ Baccalaureate or Licenciatura Degree
24

25. Professionals require a Work Permit
• These applicants must also apply for and obtain a work permit.
These professionals usually apply for their Canadian work permits at
a Canadian port of entry, but could do it in advance by making an
application to a Canadian Visa office. The work permit is usually
granted for one (1) year; however there is no limit on the number of
extensions granted under this category.
• When applying, the applicant will need to provide the Canadian
Border Officer (or Canadian Visa office), the following:
– Proof of American or Mexican citizenship
– Proof of professional degrees, diplomas or related accreditations, and/or related experience
– Proof of holding all applicable licences for the occupation
– Resume
– Employment Offer and Employment Agreement from Canadian employer detailing the
professional duties the applicant will be providing to the Canadian corporation
– Document checklist, Citizenship and Immigration form
– Photocopies of passport pages
– Pay applicable fee of $150.00
25

26. Intra‐Company Transferees
26

27. Intra‐Company Transferees
• The applicant must be working for an American or Mexican company that is
directly related to the Canadian company as a parent company, branch or
subsidiary relationship.
• Intra‐company Transferees must have been employed full‐time with an
American or Mexican company hold for at least one year in an executive,
senior managerial or specialized knowledge position within the last three
years and must be entering Canada to assume a similar position.
• Intra‐company Transferee applicants like professionals need to apply for
work permits. Work permits are generally granted for an initial period up to
three (3) years. Applicants can apply for extensions of two (2) years at a
time, up to a maximum.
• This is the only NAFTA category that has a “cap” that limits the overall
length of time that a foreign worker may hold a work permit. The total
period of stay for a person employed in an executive or managerial
capacity is seven years. The total period of stay for a person employed in a
position requiring specialized knowledge is five years. Applicants are
eligible for a new work permit after one year has passed after the time cap.
27

28. Intra‐Company Transferees require a Work Permit
• In order for the Intra‐company Transferee to obtain the work
permit, they need to show the Canadian Border Officer, if they apply
at a Canadian port of entry, or send to a Canadian Visa office, the
following:
– Proof of American or Mexican citizenship
– Confirmation has been employed with the American or Mexican company for one
year, continuously within the last three years before making the application
– Wage and Tax statements proving paid in the USA or Mexico in the last year
– Organizational chart showing the corporate relationship between the USA or
Mexican company and Canadian company
– Employment Agreement with USA company or Mexican company (proof of work
for one year in the last three years)
– Document checklist, Citizen and Immigration Canada form
– Photocopies of passport pages
– Use of a Representative form
– Current employment contract to work as Intra‐company Transferee
– Resume
– Letter from employer, confirmation of employment
– Pay fee of $150.00
28

29. Traders and Investors
29

30. A. Traders
• In order to qualify as a Trader, an American or Mexican citizen
must enter Canada to be involved in substantial trade in goods
or services.
• To be considered substantial trade, more than 50 percent of
the total volume of international trade conducted must be
between Canada and the United States or Mexico. Traders
must be employed in a supervisory or executive position or in
one that involves essential skills that are vital to the
effectiveness of the firm’s Canadian operations.
30

31. Traders require a Work Permit
• These applications are rather complex. Traders need to apply to a Canadian
Visa office before traveling to Canada. Initial work permits given are for
one (1) year. And extension up to two (2) years is then usually granted.
• Traders must provide the following:
– Proof of American or Mexican citizenship;
– Proof that the enterprise in Canada the Trader is coming to has American or
Canadian Nationality (this has been defined to mean that the individual or
corporate persons owns at least 50% (directly or by stock) in the entity
established in Canada, must hold American or Mexican citizenship);
– Trade is primarily between USA or Mexico and Canada; and
– The Trader is working in a managerial or executive capacity. Alternatively, the
Trader could be working to provide Essential Skills and services (define have
qualifications that are vital to the success of the Canadian Enterprises
operations).
31

32. B. Investors
• Investors must have made, or be in the process in making, a
substantial investment in an enterprise in Canada and intend
to enter Canada to develop and direct the enterprise.
• There is no minimum investment to qualify. Rather, the
application is assessed based on the circumstances and nature
of the business. The amount an applicant invests will be
weighed against the total value of the current enterprise, or
against the total amount needed to establish the new
enterprise. As with Traders, Investors must also be in a
supervisory or executive role by directing, controlling, and
guiding employees.
32

33. Investors require a Work Permit
• Like Traders, these applications are complex and should be
sent to a Canadian Visa office for approval prior to travelling to
Canada. The Investor will need to provide the following:
– Proof of American or Mexican citizenship;
– Proof that the Investor made or is in the process of making a
substantial investment in an enterprise in Canada;
– The enterprise in Canada in which the Investor is coming has American
or Mexican Nationality; and
– The Investor is seeking entry solely to develop and direct the
enterprise in Canada.
33

34. We Need Foreign Workers Now
Presenter: Shawna Vogel
Partner
34

35. We Need Foreign Workers Now
General Rule – prove no Canadian can fill the job unless
exception applies
•NAFTA WORK PERMITS
‐ Professional
‐ Intracompany Transferee
•GATS WORK PERMITS
‐ Professional ‐ limited
‐ Intracompany Transferee – same rules
4178217_1 35

36. A. LMO and A‐LMO
1. Key Elements
• Advertise position
• Qualify candidates
• Apply for and obtain Labour Market Opinion
Confirmation (“LMO”)
• Obtain work permit
4178217_2 36

37. 2. Changes ‐ A‐LMO – Accelerated LMO
• 10 day processing
• Advertising and all other requirements still apply –
post issuance VERIFICATION
• Only applies if positive LMO issued to employer in last
2 years
• Positions – NOC O, A, B (management, professional,
technical)
4178217_2 37

38. 3. Changes – Wages under LMO
• New Rule – must pay (i) same wage to TFW as to
Canadian employees, and (ii) median wage (or up to 5% ‐
15% variance)
4178217_2 38

39. B. Alberta 7 Occupation Pilot Project
Focus on semi‐skilled worker
• Steamfitter/pipefitter
• Welder
• Estimator
• Heavy duty equipment mechanic
• Carpenter
• Ironworker
• Millwright and industrial mechanic
• Estimator
4178217_2 39

40. C. New
• Compliance Requirements
• AB Pilot project for working‐age dependent children of
skilled workers
4178217_2 40

41. D. Tips
1. Passport expiry
2. Medical, TRV, Criminality
• Delays due to need of medicals (where employee has
been in “medically‐required country for 6 months in
last year)
• Delays (and change of venue of application) because of
nationality (and not residence) of employee
• Criminal record – be prepared
4178217_2 41

42. R. v. COLE, 2012 SCC 53
Presenter: Fausto Franceschi
Partner
42

43. Background
• Richard Cole was a high school computer science teacher in
Ontario who was given a work‐issued laptop computer.
• He was permitted to use the laptop for incidental personal
purposes.
• While performing maintenance activities on Cole’s laptop a
school board technician found a hidden folder containing nude
photos of a grade 10 female student which Cole had copied
from the school’s network. The technician notified the school
principal who directed the technician to copy the photos onto
a CD.
43

44. Background
• The principal seized the laptop from Cole and copied the
internet browsing history (which contained a large amount of
pornographic images) from it onto a second CD and handed
over the laptop and the CD’s to the police who without a
warrant reviewed their contents and created a mirror image of
the hard drive for forensic purposes.
• The police decided it was not necessary to obtain a search
warrant because the laptop was school property.
• Cole was charged with possession of child pornography.
44

45. The School’s Policy on Computer Use
• The school had an Acceptable Use Policy which regulated
access to the school’s computer network. The policy provided
that the school “may monitor all student work and email
including material saved on laptop hard drives. Users should
NOT assume that files stored on network servers or hard
drives of individual computers will be private”. This policy also
applied to staff.
45

46. The School’s Policy on Computer Use
• The School Board also had a policy applicable to teachers
governing the acceptable use of school information
technology. The policy provided that “all data and messages
generated on or handled by board equipment are considered
to be the property of the [school]”. The policy also allowed
limited “incidental personal use” of information technology,
prohibited the posting or accessing of certain inappropriate
content (such as sexually explicit material), and provided that
while email was considered private the School Board could
open email in certain circumstances, such as if inappropriate
use was suspected.
46

47. Issue
• Whether the evidence found on the laptop could be admitted
at trial or whether it was obtained by way of an unreasonable
search and seizure contrary to section 8 of the Charter.
47

48. Supreme Court of Canada
• Cole had a privacy interest in his personal information on the
computer.
• Just as Canadians have a reasonable expectation of privacy in
their own personal computers, they also have a privacy
interest in their work computers “at least where personal use
is permitted or reasonably expected”.
48

49. Supreme Court of Canada
• When used for personal use, such computers, regardless of
where they are located “contain information that is
meaningful, intimate, and touching on the user’s biographical
core”.
• However, in light of the school’s workplace policies and
because the computer was school property, Cole had a
“diminished expectation of privacy” in comparison to the
privacy interest he would have had in his own personal
computer.
49

50. Supreme Court of Canada
• Even though there was a diminished expectation of privacy,
the police still violated Cole’s section 8 Charter rights.
• But the evidence was not excluded because the Court found
that the conduct of the police was not an “egregious breach of
the Charter” given that the law governing privacy interests at
the time this occurred (2006) was “still unfolding”.
• The police also recognized and respected Cole’s privacy
interests in certain, private material on the laptop (i.e. pictures
of his wife).
50

51. Supreme Court of Canada
• The Court also emphasized Cole’s diminished privacy interest
in the computer and the fact that the material would have
been discovered if the police had obtained a warrant.
51

52. Implication for Employers
• The Court expressly stated that because Cole was not
challenging the actions of the school, it would leave “for
another day the finer points of an employer’s rights to monitor
computers issued to employees”.
• Where personal use of a work computer is permitted or
reasonably expected, employees will have an expectation of
privacy in personal information stored on the computer.
52

53. Implication for Employers
• All of the circumstances including the employer’s computer
use policies will be considered in determining whether there is
a diminished expectation of privacy.
• If there is a breach of an employee’s expectation of privacy,
then any evidence obtained by the breach may not be
admissible in a lawsuit or a grievance arbitration.
• Employers should consider having an Acceptable Computer
Use policy.
53

54. United Food and Commercial Workers,
Local 401 v. Alberta (Attorney General),
2012 ABCA 130
Presenter: Fausto Franceschi
Partner
54

55. Facts
• Arose out of a strike in 2006 by the UFCW at Palace Casino
located at West Edmonton Mall.
• Both the UFCW and Palace Casino video taped and
photographed picket line activities.
55

56. Facts
• UFCW posted signs in the area of the picket line stating that
images of persons crossing the picket line could be placed on
its website www.casinoscabs.ca.
• Complainants to the Commissioner under the Personal
Information Protection Act (“PIPA”) included employees and
officers of the employer as well as members of the public.
• Notwithstanding the warning, the Union did not actually post
recordings of any of the complainants on its website.
56

57. Facts
• UFCW conceded that the photos and videos were “personal
information” under the PIPA.
57

58. Issue
• Does the UFCW have a constitutionally protected right to
collect and use images of persons crossing the picket line?
58

59. Findings
• An adjudicator under PIPA concluded that the UFCW did not
have the right to collect and use the recordings other than for
use in an investigation or legal proceeding, or to provide
information to the police and that the use for any other
purpose without consent was contrary to PIPA.
• Adjudicator’s decision set aside on judicial review by Alberta
Court of Queen’s Bench judge as the decision violated the
Union’s constitutional rights of freedom of expression under
the Charter of Rights.
59

60. Alberta Court of Appeal
• The Union’s attack on the legislation was three pronged:
1. Recordings of the picket line were done for “journalistic
purposes” and therefore it’s completely outside the ambit of
PIPA as PIPA does not apply to the collection, use or disclosure
of personal information for journalistic purposes.
60

61. Alberta Court of Appeal
2. Alternatively, the recordings of the picket line were done
in anticipation of legal proceedings as PIPA allows the
collection of such information without consent for the
purposes of an investigation or legal proceeding which is
reasonably anticipated.
3. If the recordings were not otherwise permitted, the
UFCW argued that PIPA is too sweeping in its reach and
therefore violates the Charter.
61

62. Alberta Court of Appeal
• S.2(b) of the Charter provides:
Everyone has the following fundamental freedoms:
…
(b) freedom of thought, belief, opinion and expression,
including freedom of the press and other media of
communication.
62

63. Alberta Court of Appeal
• PIPA would preclude the union from using the disputed images
for:
– Placing the images in a newsletter and strike leaflets.
– Dissuading people from crossing the picket line.
– Acting as a deterrent to violence.
– Creating material for use as a training tool for union members.
– Providing material to other unions for educational purposes.
– Supporting morale on the picket line with the use of humor.
– Generally achieving a resolution to the labour dispute favourable to
the union.
63

64. Alberta Court of Appeal
• Does PIPA therefore inhibit the Union’s freedom of
expression? If so, is that restriction demonstrably justified in a
free and democratic society?
• Labour picketing is an expressive activity.
• Recording and distributing images of those crossing the picket
line serves to inform members of the public of the strike and
to discourage or even intimidate people into suspending their
relationships with the employer.
64

65. Alberta Court of Appeal
• Cross the picket line and risk that a wider audience of friends,
neighbours, business associates and other members of the
public may see the crossing of the picket line. Recording the
picket line therefore also has an expressive purpose.
• The Attorney General argued that the Union’s use of the
images amounted to “threats”.
• CA states “strikes are not tea parties” and that so long as there
is no promotion of violence or other illegal activity, a
reasonable amount of psychological pressure may be brought
to bear on all those involved.
65

66. Alberta Court of Appeal
“Dissuading people from crossing the picket line, enhancing
morale of the strikers, deterring violence and threats, and
achieving a favourable end to the strike are all legitimate
purposes supported by the right to free expression.
Persuading people to think or act in a certain way is a direct
purpose of free expression”.
66

67. Alberta Court of Appeal
• The Court concluded that the government was not able to
justify the infringement of free expression arising from PIPA.
The Court said:
“While the protection of personal information is important, it is no more
important than collective bargaining and the rights of workers to organize.
It is also no more important than the right of the union to communicate its
message to the public. On the other hand, the privacy interest being
protected here is minimal. The persons who were videotaped were in a
public place, crossing an obvious picket line in the face of warning signs
that images were being collected. The privacy expectations were very low.
Protecting that low expectation of privacy does not warrant the significant
stifling of expression that resulted form the Adjudicator's order”.
67

68. Alberta Court of Appeal
• The legislature was directed to amend PIPA to bring it in line
with the Charter.
• Decision appealed to the SCC.
68

69. Consequences of Decision
• Outlines the importance of a union’s right to freedom of
expression in exerting pressures during a labour dispute.
• Impacts the ability of individuals to control personal
information about their activities in public places.
• SCC decision will deal with balancing privacy rights versus
freedom of expression.
69

70. ADM Measurements Ltd. v. Bullet
Electric Ltd.
Implied Fiduciary Duties and Post
Employment Restrictions
Presenter: Alison Walsh
Associate
70

71. The Parties
• The Plaintiff:
– ADM Measurements Ltd.: company servicing oil
and gas companies in northern Alberta.
• The Defendants:
– Greg Young: ADM’s former manager;
– Bullet Electric: company competing with ADM
started by Young.
71

72. Fiduciary Relationship
• A fiduciary relationship can arise in two circumstances:
• 1. Fiduciary by Contract; and
• 2. Fiduciary as a Key Senior Manager.
72

73. Implications of Wrongful Termination
on Fiduciary Obligations
• Specific Contract Terms – when an employer wrongfully
dismisses an employee, the employer is said to have
repudiated the contract and can no longer enforce the
contracts benefits (Globex Foreign Exchange Corp. v. Kelcher,
2011 ABCA 240)
• Common Law Fiduciary Obligations – fiduciary duties end
when an employer wrongfully dismisses a fiduciary; a fiduciary
employee is only expected to serve the interests of the
employer as long as the employer maintains clean hands (ADM
Measurements Ltd. v. Bullet Electric Ltd., 2012 ABQB 150)
73

74. Take Home
• Reasonable restrictive covenants and fiduciary duties are
enforceable when an employee is terminated for cause or with
reasonable notice or the employee resigns.
• A wrongfully dismissed employee may be released from the
terms of restrictive covenants previously agreed to with the
employer or implied common law fiduciary duties.
74

75. Heil v. Canada Safeway Limited
Keeping Releases Enforceable
Presenter: Adrian Elmslie
Partner
75

76. Introduction
76

77. Facts
• Night shift warehouse manager.
• Injured as a result of a slip and fall while at work.
• Employer conducted an investigation after the fall which raised three
concerns:
– Video of the Complainant’s fall did not support the Complainant’s
claim that he had hit his head;
– The employer had since learned that the Complainant went on
vacation when he was off work as a result of the injuries he allegedly
suffered from the slip and fall; and
– Surveillance video indicated that the Complainant had been making
prank phone calls to the warehouse superintendent in the middle of
the night.
77

78. Facts
• Supervisor and HR Representative interviewed the Complainant.
• Two days later Complainant was called into a second meeting during which
he was informed that his employment was terminated for cause.
• The Complainant was provided with a letter which advised him the
employer was prepared to offer him $4,500 in return for a release.
• The Complainant was given 7 days to accept the offer.
• The Complainant consulted with a lawyer (the cost of which was covered
under an Employee Assistance Plan) and asked a number of follow up
question about when he would receive money that was owing to him.
78

79. Facts
• On the morning of the deadline, Complainant left a voicemail with the
employer indicated that did not intend to sign a release and would be
consulting with the Human Rights Commission.
• At 2pm that same day the Complainant signed and faxed the release to the
employer with the phrase “signed under duress” under the signature line.
That same afternoon the Complainant filed a human rights complaint
against the employer.
• The employer then applied to have the complaint dismissed based on the
fact that the Complainant had signed a release.
79

80. Decision – The Enforceability of Releases
80

81. General Principles
• A Release is to be presumed valid and binding only if the validity of the
Release is not reasonably put in issue or the issue is conceded by the
complainant.
• If the validity of the Release is put into issue and there is some reasonable
basis to believe the issue is “triable,” then the Commission has the
jurisdiction to determine the validity of the Release.
• The criteria that the Human Rights Tribunal will use to determine the
validity of a Release is the same as would be applied by any court of
competent jurisdiction.
81

82. General Principles
Criterea / Considerations that can affect enforceability
1. Language of the release
2. Unconscionability
3. Undue influence
4. Independent legal advice
5. Duress
6. Knowledge of rights
7. Other considerations: lack of capacity, mutual mistake, fraud, etc.
82

83. Decision
The Tribunal Considered three challenges:
• Duress
• Unconscionability
• Undue Influence
83

84. Duress
Requirements:
1) Pressure amounting to compulsion of the will of the victim;
and
2) Pressure exerted must be illegitimate.
Pressure ≠ Duress
Mere Stress or Unhappiness ≠ Duress
84

85. Duress
Argument of duress rejected:
1) The Release was read to the Complainant at the termination meeting
and it was clear that the Complainant would receive any amounts
owed to him (i.e wages earned / pension benefits) regardless of
whether or he signed the Release.
2) The termination letter clearly stated that it was the payment of the
lump sum of $4,500 which was subject to the signing of the Release,
not outstanding wages and the issuing of the ROE.
3) Evidence of actual economic duress was weak. The Complainant was
worried about his financial future generally, but he was not facing
severe and immediate economic issues at the time he signed the
Release.
85

86. Duress
4) Complainant was provided access to legal counsel, obtained
independent legal advice and was alive to his legal rights.
5) Complainant had adequate opportunity (7 days) to weigh his options.
6) Complainant did not take any steps to avoid the Agreement.
86

87. Unconscionability
Four Elements required:
1) A grossly unfair and improvident transaction;
2) Victim’s lack of independent legal advice or other suitable advice;
3) Overwhelming imbalance in bargaining power caused by victim’s
ignorance of business, illiteracy, ignorance of the language of the
bargain, etc.; and
4) Other party’s knowingly taking advantage of this vulnerability.
87

88. Unconscionability
Unconscionability argument was rejected:
• $4,500 was not improvident considering the full context of the
offer;
• Complainant had access to legal advice; and
• There were potential grounds for a termination for just cause.
88

89. Undue Influence
Two types:
1) Presumed ‐ arises normally from a special dependency
relationship between the parties e.g. solicitor and client,
parent and child, guardian and ward, etc.
2) Actual ‐ requires proof of actual undue influence by the party
alleging undue influence.
89

90. Undue Influence
Undue influence argument rejected:
• The amount of time between the meeting where the
Complainant was accused of wrongdoing, his termination and
the signing of the Release negated the argument that there
was undue influence.
90

91. Result
• Complainant failed to demonstrate that the release was
unenforceable.
• Complaint dismissed.
91

92. Lessons Learned
92

93. Best Practices
• Make sure the terms of the release and the conditions under which it is
requested are clear.
• Make sure that the release covers all claims that could arise from a
termination of employment.
• Do not threaten to withhold benefits or entitlements already owed
contingent on the signing of a release.
• Provide the employee with an opportunity to consider the offer and seek
advice.
93

94. Best Practices
• Encourage or remind the employee to seek advice.
• Be careful and thoughtful when answering any follow up
questions from the employee.
• Do not use “strong arm” or pressure tactics to get the
employee to sign a release.
94

95. The preceding presentation contains examples of the
kinds of issues companies dealing with HR issues could
face. If you are faced with one of these issues, please
retain professional assistance as each situation is
unique.

96. Thank you for Joining Us
Colleen Verville 780.423.7103 e: colleen.verville@fmc‐law.com
Shawna Vogel 780.423.7335 e: shawna.vogel@fmc‐law.com
Joe Hunder 780.423.7354 e: joe.hunder@fmc‐law.com
Adrian Elmslie 780.423.7364 e: adrian.elmslie@fmc‐law.com
Fausto Franceschi 780.423.7348 e: fausto.franceschi@fmc‐law.com
Alison Walsh 780.423.7147 e: alison.walsh@fmc‐law.com
96