Employment and Labour Law Seminar - June 13, 2013

1. Gowlings Employment and Labour Law Seminar
June 13, 2013
Anna Abbott
Bettina Burgess
P.A. Neena Gupta
Mark Josselyn
Bill MacGregor
R. Ross Wells
Chris Andree
Allen Craig
John Illingworth
Lesley Love
Jordan Smith
Phil Wolfenden
Edward Trevvett

2. 2
June 13, 2013Employment and Labour Law Seminar

3. 3
I Spy…How Far Can Employers Go
at Work and Online in Monitoring
Employees?
Presented By:
Bettina Burgess

4. 4

5. Forms of Monitoring
5
• Computer tracking software
• Cyber spying on social networking sites
• Video surveillance
• GPS
• RFID’s
• Naked eye observation
• Audio Recordings
• Physical searches

6. Applicable Laws: Statute
Federal: Personal Information Protection and Electronic
Documents Act (“PIPEDA”)
• Only applies to federally regulated employers
“Personal Information” is broadly defined as:
“information about an identifiable individual, but does not include
the name, title or business address or telephone number of an
employee of an organization”
Information collected through any form of monitoring constitutes
personal information so long as it can be attributed to an
individual
6

7. Applicable Laws: Statute
British Columbia and Alberta: Personal Information and
Protection Act
Quebec: An Act Respecting the Protection of Personal
Information in the Private Sector
• Applies to the collection of employee information
• May collect personal information without the consent of the
employee if it is reasonably necessary to manage the
employment relationship
• Must be able to show that there is nexus between the
personal information and the duties performed by the
employee
7

8. Applicable Laws: Statute
Ontario and the Rest of Canada
• No applicable legislation for private sector,
provincially regulated employers
• Public sector employers are governed by
the Privacy Act and various municipal
privacy statutes
8

9. Applicable Laws: Statute
Privacy Commissions apply a 4 part test:
 Is the measure demonstrably necessary to meet a
specific need?
 Is it likely to be effective in meeting that need?
 Is the loss of privacy proportional to the benefit
gained?
 Is there a less privacy-invasive way of achieving the
same end?
9

10. Applicable Laws: Statute
Is the measure demonstrably necessary to meet a
specific need?
• Not acceptable: Monitoring employee activity only to
ensure productivity
• Acceptable: Safety, asset management, improving
efficiencies, protect against theft and vandalism, and
monitoring employee productivity
• Acceptable: Monitoring employee activity upon
receipt of substantial evidence of serious misconduct
10

11. Is it likely to be effective in meeting that
need?
• Surveillance must be effective in
achieving purpose
• Ex. Video surveillance used to ensure
adherence to safety protocol but images
are not precise enough to pick up use of
equipment
11

12. Is the loss of privacy proportional to the benefit gained?
 Surveillance that collects more information than
is necessary or is overly privacy-invasive will not
satisfy this test
 Ex. Key stroke monitoring which collects
personal passwords and banking information as
well as what confidential information the
employee was sending to third parties
12

13. Is there a less privacy-invasive way of achieving the
same end?
 If another less privacy-invasive means of putting
an end to the misconduct or other problem
would have achieved the same goal, the
surveillance method used will not be permitted
 Ex. If simply confronting the employee would
have been sufficient to prevent the employee
from excessive computer use, there is no need
to surreptitiously monitor his computer use
13

14. Applicable Laws: Contract
Unionized Work Place
• Privacy rights of workers are governed by the collective
agreement either explicitly or in the good faith dealing provision
• Most union cases deal with employees who have been
disciplined based upon misconduct discovered through the use
of some form of surveillance
• The union worker typically grieves both the discipline and the
invasion of privacy
• Arbitrators use a similar test to that of the privacy commissions in
determining whether the employer went too far in the use of
monitoring activities and thereby breached the collective
agreement and the privacy rights of the union worker
14

15. Applicable Laws: Contract
Non-Unionized Workplace
• If an employer does not have a contractual right to engage
certain monitoring techniques either through written agreement
or policy, the employee may successfully sue for constructive
dismissal
Colwell v. Cornerstone Properties Inc.
• Employee successfully sued for constructive dismissal and
poisoned work environment when she discovered that her
employer had installed a video camera in her office with no
legitimate purpose
15

16. Applicable Laws: Tort
Intrusion Upon Seclusion: Jones v. Tsige
• Prior to Jones v. Tsige no court would definitively rule that there
was no tort of invasion of privacy, but conversely, no appellate
court would find that there was one.
• Superior Court of Justice, 2010: There is no free standing right to
privacy of common law. This is an area of law that should be
developed by statute.
• Court of Appeal, 2011: There is a tort of intrusion of seclusion
giving rise to common law protection of privacy rights.
16

17. Applicable Law: Tort
Test for Intrusion Upon Seclusion:
1. The defendant’s conduct must be intentional or reckless.
2. The defendant must have invaded, without lawful justification,
the plaintiff’s private affairs or concerns.
3. A reasonable person would regard the invasion as highly
offensive causing distress, humiliation or anguish.
Proof of harm is presumed – no need to prove economic loss
17

18. R. v. Cole - Employees Do Have a Reasonable
Expectation of Privacy
• An employee may have a reasonable, but
limited expectation of privacy when it comes
to computer use at work
• Qualification: This case dealt with Charter
rights that are not triggered in the private
sector
• Point to be taken from R. v. Cole: implement
very clear policies
18

19. POLICIES, POLICIES, POLICIES
• Do NOT rely upon your employee’s common sense – it goes out the
window when it comes to computer use and use of social media
• Courts and Tribunals expect you to educate and manage your
employees
• In all decisions dealing with employee privacy rights versus employer’s
rights to monitor where clear policies were present, employees were
highly criticized for not following them
• Where clear policies were absent, employers were highly criticized for
not having them in place
• Make the policies known to the employee – simply posting policies on
the company’s internet is not sufficient
• Consistently enforce the policies or they become meaningless
19

20. What to Include in Policies
• No expectation of privacy – passwords do not equal private
• Types of monitoring that may be engaged
• The purpose for which monitoring may take place: maintain
integrity of systems, investigation of employee misconduct
• Information collected: whatever the employee has viewed,
created or downloaded
• Where information will be stored
• Who will have access to the information
• When and how it will be destroyed
• Company owns the data, even if personal to the employee
• Acceptable and unacceptable personal use
• Consequences for violating the policy
20

21. Other Best Practices
• Determine an appropriate goal or purpose before monitoring
employee computer use
• Remember that results from surveillance may not be reliable or
admissible evidence in court
• Consider all less privacy-intrusive alternatives and document
alternatives considered, and reasons for rejecting them
• Where appropriate, inform employees prior to implementing
surveillance
• Obtain consent where appropriate – policy acknowledgment
ideal
21

22. Other Best Practices
• Capture as little information as possible
• Limit access to senior executives/management
on a need to know basis only
• Ensure secure storage
• Destroy information as soon as it is no longer
needed
• Stay on top of the law – privacy law is
continually changing
22

23. 23
Thank You
Name Bettina L. Burgess
Tel: 519-569-4557
Email: bettina.burgess@gowlings.com
Montréal  Ottawa  Toronto  Hamilton  Waterloo Region  Calgary  Vancouver  Beijing Moscow  London

24. 24
AODA – Accessibility for Ontarians
with Disabilities Act
Presented By:
Anna Abbott

25. 25
Accessibility for Ontarians With Disabilities
Accessibility for
Ontarians with
Disabilities Act
Accessibility
Standard for
Customer Service
Integrated
Accessibility
Standards
Information and
Communications
Standards
Employment
Standards
Transportation
Standards
Built Environment

26. Application
Who has to comply?
If your organization (public, private and
not-for-profit organizations) has at least
one employee, and you provide goods,
services or facilities to the public or to
other organizations, then you are
subject to the regulations
26

27. Application
Who has to comply?
Classes:
• Government of Ontario and Legislative Assembly
• Large designated public sector organizations with 50+
employees
• Small designated public sector organizations with 1 to 49
employees
• Large organizations with 50+ employees
• Small organizations with 1 to 49 employees
Requirements and timelines for compliance
depend on class
27

28. The Integrated Accessibility Standards Regulation
• IAS adds to rather than replaces existing
OHRC obligations with respect to
accommodation
• “undue hardship” still alive
28

29. The Integrated Accessibility Standards Regulation
• Establishes accessibility standards and
introduces requirements for
• Information and Communications
• Employment
• Transportation
• Built Environment
• Establishes compliance framework for
obligated organizations
29

30. Information and Communication Standard
• Part II of the IAS
• Among other things, requirement to make internet
and intranet websites and web content accessible
in accordance with Web Content Accessibility
Guidelines (WCAG) 2.0
30

31. Information and Communication Standard
• Provide accessible formats and communications supports in a timely
manner and at a cost that is no more than the regular cost charged to
other persons, when a person with a disability asks for them. In effect
for large organizations on January 1, 2016.
• Make feedback processes accessible by providing accessible formats
and communications support when requested and notify the public
about the availability of accessible formats and communication support.
In effect for large organizations on January 1, 2015.
• Make public emergency information accessible when requested, if the
organization prepares emergency procedures, plans or public safety
information and makes the information available to the public. In effect
since January 2012.
31

32. Information and Communication Standard
WCAG 2.0 is an internationally accepted standard for
web accessibility which sets out guidelines for making
websites more accessible for persons with disabilities:
• Writing web content in clear language
• Providing alternative text for imagines
• Ensuring that website navigation can be done with keyboard
only
Each guideline has 3 levels of accessibility - A, AA, and AAA
32

33. Information and Communication Standard
Ex: if an employer had an explanatory video on its
website, the video will have to have close captioning
to accommodate individuals with hearing loss.
33

34. Information and Communication Standard
Obligated organizations (public sector organizations
and large organizations of 50+) shall meet the
requirements of the Information and Communication
Standard in accordance with the following schedule:
• January 1, 2014: new internet websites and web
content must conform with WCAG 2.0 level A
• January 1, 2021: All internet websites and web
content must conform with WCAG 2.0 Level AA
other than criteria 1.2.4 (captions) and 1.2.5 (pre-
recorded audio descriptions
34

35. Recommendations
• Be aware of timelines for compliance
• Meet with IT personnel
• Create project plan for website updates
• Assign responsibility for compliance
35

36. AODA Compliance Wizard
36
http://www.mcss.gov.on.ca

37. 37
Thank You
Name Anna Abbott
Tel: 416-369-7284
Email: anna.abbott@gowlings.com
Montréal  Ottawa  Toronto  Hamilton  Waterloo Region  Calgary  Vancouver  Beijing Moscow  London

38. 38
Ongoing Maintenance Responsibility
Challenges and Employer
Unknowns Associated with the
Absence of Liability Limitations
Presented By:
Allen V. Craig

39. Pay Equity 2013 – the Pay Equity Act’s Mandate
• The Pay Equity Act came into effect January 1, 1988 in an effort to purportedly
correct the part of the wage gap between men’s and women’s wages that is due
to undervaluing, and lower pay, of work mainly done by women.
• Pay equity is equal pay for work of equal or comparable value. It involves
comparing jobs usually done by women with different jobs usually done by men
in the same establishment of an employer. If a female job class is of equal or
comparable value to a male job class in the organization, the female job class
must be paid at least as much as the male job class.
• Pay Equity is not the same as equal pay for equal work, which means that if a
woman and a man are doing substantially the same jobs for the same
organization or company, they must receive the same wage unless the difference
in pay is due to differences such as seniority or merit.
39

40. The Pay Equity Act’s Mandate
• The Act applies to all employers in Ontario who have 10 or more employees.
Employers starting up new businesses with 10 or more employees, or who grow
to 10 or more employees, must immediately include pay equity in their
compensation (wage and benefit) practices.
• There are different pay equity plan posting and pay adjustment obligations
depending on the number of employees in an organization in Ontario.
40
Employer Size in 1987 Posting Date of Pay Equity Plans First Pay Equity Adjustment
500+ employees/
public sector
January 1, 1990 January 1, 1991
100 to 499 employees January 1, 1991 January 1, 1992
50 to 99 employees January 1, 1992 January 1, 1993
10 to 49 employees January 1, 1993 January 1, 1994

41. The Pay Equity Act’s Mandate
• Employers with 10 to 99 employees chose whether or not to post a plan.
Posting a plan allowed these employers to phase in pay equity
adjustments at one per cent of the previous year’s payroll per year.
Those who chose not to post a pay equity plan had to make all
adjustments on the first pay equity adjustment date and should have
posted a Notice of Requirement to Achieve and Maintain Pay Equity in
the workplace.
41

42. An Employer’s Responsibility to Maintain Pay Equity
• Employers have an ongoing responsibility not only to achieve but to maintain
compensation practices which provide for pay equity.
• The Pay Equity Commission has taken the position that employers should have a
maintenance committee in place for each pay equity plan and that this committee
should be reviewing the gender-neutral job comparison system on an annual
basis.
42

43. Maintenance Checklist
1. Monitor regularly
 temporary skills shortage
 other permissible differences
2. Monitor when specific events occur:
 adjustments to salaries
 settlement of a collective agreement
 change in value of female or male job class
 vanishing job classes
 changes to the representative group of male job classes
 changes in the gender predominance of jobs
 newly created jobs.
3. Monitor every two to three years:
 has the job comparison or evaluation system been reviewed to ensure that it is
consistent with what is currently known about gender-neutrality?
43

44. The “Random” Selection of Employers for
Compliance Audit Review
• The review audit process has in the past and
will continue in the future to target Ontario
businesses on a sector as well as regional
basis to ensure employers are achieving and
maintaining compensation practices that
comply with pay equity legislation.
44

45. 45
Template Letter to Employer re
2012 Monitoring Program

46. 46
Notice of Requirement

47. 47
Certificate of Posting

48. 48
2012 Monitoring Program
Questionnaire

49. 49
2012 Monitoring Program
Questionnaire

50. 50
Closing-No Further Investigation

51. Conclusion
• An Ontario employer’s responsibility to ensure compliance and ongoing
maintenance with the Act continues to be somewhat detailed and
onerous, let alone of significant cost to a corporation, should the
Commission/Tribunal determine that pay equity was not originally
complied with or maintained to date.
• Moreover, there is no period of limitation which would otherwise limit an
employer’s past financial liabilities for not having complied with the Act.
Accordingly, depending on an employers number of Ontario employees,
financial liability as well as interest may well be required to be calculated
back some 20+ years.
51

52. 52
Thank You
Name Allen V. Craig
Tel: 416-369-7343
Email: allen.craig@gowlings.com
Montréal  Ottawa  Toronto  Hamilton  Waterloo Region  Calgary  Vancouver  Beijing Moscow  London

53. 53
Is Your Employee’s Childcare Issue
Really Your Problem?
Presented By:
P.A. Neena Gupta

54. The Ground of Family Status
Employment
5. (1) Every person has a right to equal treatment with
respect to employment without discrimination
because of race, ancestry, place of origin, colour,
ethnic origin, citizenship, creed, sex, sexual
orientation, gender identity, gender expression, age,
record of offences, marital status, family status or
disability
OHRC: Policy and Guidelines on discrimination because of family status
54

55. The Ground of Family Status
“family status” means the status of being in a parent
and child relationship
55

56. The Ground of Family Status
• Raises complex and difficult issues for
employers related to the treatment of
caregivers in the workplace
• Accommodation of “family status” usually
relates to the needs of a caregiver
• childcare
• eldercare
56

57. Accommodation in Employment
The principle of accommodation applies to all
grounds under the Ontario Human Rights
Code, but accommodation in employment
most often relates to the following grounds:
• Age
• Creed (religion)
• Sex (pregnant women)
• Family status (care-giving responsibilities)
57

58. Family Status Accommodation
• Employers have a duty to consider whether
they can make adjustments to workplace
policies and procedures to accommodate
needs related to family status
• May include flexible scheduling, permitting
employees to take leaves of absence to care
for family members who are ill or have a
disability, or providing access to alternative
work arrangements
58

59. Legal Test for Accommodation
Step 1: Onus is on employee to prove “prima
facie” discrimination.
Step 2: Once proved, onus then switches to the
employer to prove that the requirement is a
bona fide occupational requirement (BFOR)
and that they attempted to accommodate to
the point of undue hardship
59

60. Legal Test for Accommodation
Step 2 breakdown:
• Purpose rationally connected to job
performance
• Honest and good faith belief that it was
necessary
• Standard reasonably necessary and
impossible to accommodate without undue
hardship
60

61. What is Undue Hardship?
Undue Hardship?
• Consideration under the Human Rights Code
• Cost
• Outside sources of funding
• Health and safety
61

62. Accommodation Process
Accommodation has a procedural aspect
and a substantive aspect
• If an employer fails to go through an appropriate
accommodation process, it will have breached the Code even
where it can show that it would not have been able to
accommodate the employee without undue hardship
62

63. Family Status: where we were then
Differing opinions:
1. Must result in serious interference with family
duty – if nothing extraordinary about
employee’s position, no discrimination (BC Court
of Appeal, Campbell River)
2. All protected Grounds should be treated the
same (Ontario Human Rights Commission, Federal Court of
Appeal)
63

64. Family Status: where we are now
• Canada (Attorney General) v.
Johnstone, 2013 FC 113 (January
2013)
• Canadian National Railway and
Denise Seely, 2013 FC 117 (February
2013)
• Devaney v. ZRV Holdings Ltd., 2012
HRTO 1590 (August 2012)
64

65. Canada (Attorney General) v. Johnstone
Facts:
• Fiona Johnstone was border services officer
working rotating shifts, husband also border
services officer
• Required fixed shifts to meet childcare needs
• Loss of benefits (pension, training,
advancement) as fixed shifts only available to
part time employees
65

66. Canada (Attorney General) v. Johnstone
Factors against CBSA:
• No individual assessment of Johnstone’s case
• Allowed accommodation for religious reasons,
but ignored Johnstone’s request
• Viewed family obligation as a choice
• Operational concerns were “impressionistic
assumptions” (inundated with requests, too
costly, destructive to 24 hour operations)
• No accommodation policy or training
66

67. Canada (Attorney General) v. Johnstone
Justice Madamin: “childcare obligations arising in
discrimination claimed based on family status must be
one of substance and the complainant must have tried
to reconcile family obligations and work obligations”
Factors for Johnstone:
• Tried to arrange care with family, and was
successful for some shifts
• Daycare hard to find outside regular hours
• Husband also worked shifts
• Provided options to CBSA
67

68. Canada (Attorney General) v. Johnstone
Held:
• Discrimination on the basis of ‘family status’ will
be made out where an employers rule
“interferes with an employee’s ability to
fulfill a substantial parental obligation in a
realistic way”
• CBSA discriminated against Johnstone by
failing to accommodate her childcare
responsibilities
68

69. Canada (Attorney General) v. Johnstone
Held:
• CBSA failed to justify that variable shift policy
was a BFOR
• Awarded lost wages, pension contributions,
$15,000 general damages, $20,000 for wilful
reckless conduct of CBSA
69

70. CNR and Denise Seely
Facts:
• Long time employee with CN as freight train
conductor residing in AB, on laid off status
• Recalled for temporary work in BC
• Employment terminated when she failed to
report because of childcare responsibilities
70

71. CNR and Denise Seely
Factors against employer:
• Never responded to request for accommodation
• Did not provide details of job including duration,
accommodation, working conditions
• Did not follow its own extensive accommodation
policy
• Put employee in situation of choosing between
employment obligations and childcare duties
71

72. CNR and Denise Seely
Factors for employee:
• No immediate family nearby
• Daycare during standard hours only
• Husband away 14 to 24 hours at a time
• Requested accommodation
72

73. CNR and Denise Seely
Held:
• CN discriminated against Seely on the ground
of family status and failed to provide reasonable
accommodation
• Compensation for loss of wages and benefits,
$15,000 for pain and suffering and $20,000 for
reckless conduct by CN
73

74. Eldercare: Devaney v. ZRV Holdings Ltd.
Facts:
• Architect employed with company from 1982 to
termination of employment in 2009
• Substantial care responsibilities for ailing
mother
• Employer would not allow flexible work
schedule
74

75. Eldercare: Devaney v. ZRV Holdings Ltd.
Factors against employer:
• Attendance policy unreasonable/too strict
• No performance issues
• Failure to engage in dialogue with employee
75

76. Eldercare: Devaney v. ZRV Holdings Ltd.
Factors for employee:
• Mother on waiting list for care home, care not
available on 24 hour basis
• Required income for her care
• Available by phone and email
• Hired by client on project because of good job
76

77. Eldercare: Devaney v. ZRV Holdings Ltd.
Held:
• company's strict attendance policy requiring Devaney to
work out of the company's office had an adverse impact
on him as a result of his family responsibilities. By failing
to engage in a dialogue with Devaney about his needs,
the employer contravened the Code.
• adversely impacted on the basis of a
requirement imposed by his or her status as a
caregiver. (If an adverse impact is deemed to relate
merely to an employee's preference or choice, no prima
facie case will be established)
• Awarded $15,000 in general damages
77

78. Accommodation Process
Employee obligations in accommodation
process
1. Make reasonable effort to find outside resources
2. Advise employer of need for accommodation
3. Provide employer with sufficient information
4. Provide suggestions for accommodation
5. Allow employer reasonable time
78

79. Accommodation Process
Employee obligations in accommodation
process
6. Co-operate with employer
7. Facilitate implementation of accommodation
8. Advise employer if needs change
9. Accept reasonable accommodation
79

80. Accommodation Process
Employer obligations in accommodation
process:
1. Determine if employee requires accommodation
2. Consider all possible accommodations
3. Discuss options with employee
4. Respond within reasonable time
5. Keep written record
6. Maintain confidentiality

81. Accommodation Process
Employer obligations in accommodation
process:
7. Request information
8. Consider employee’s accommodation suggestions
9. Follow-up with employee
10. Modify accommodation if required
11. Explain to employee why accommodation impossible
81

82. Accommodation Policy
Contents of Policy:
• Statement of Commitment by management
• Objectives
• Request for Accommodation (who, how, contents)
• Provision of Information (medical information)
• Privacy and Confidentiality
• Accommodation Planning (contents of
accommodation plan, timelines, goals, accountability)
• Undue Hardship (basis of assessment, recourse,
implementation)
82

83. Recommendations
• Be proactive with general planning and
preparation
• Accommodation policy
• Training for managers and supervisors
• Employee education
• Acknowledge and accept that you have a
positive duty to accommodate an employee to
the point of undue hardship
• Be proactive and sensitive when dealing with
specific problems
83

84. Recommendations
• Engage in dialogue with employee re needs
• Assess on an individual basis
• Be wary of inflexible work hours and rigid
attendance management policies
• Document the process
• Apply policies and procedures consistently
• Gather evidence of undue hardship
• Policies must be reasonable
84

85. 85
Thank You
Name P.A. Neena Gupta
Tel: 519-575-7501
Email: neena.gupta@gowlings.com
Montréal  Ottawa  Toronto  Hamilton  Waterloo Region  Calgary  Vancouver  Beijing Moscow  London

86. 86
Accommodating Disabilities
Presented By:
Jordan M. Smith

87. Overview
1. Refresher – Basic Principles
2. Case Discussion – Hamilton-
Wentworth District School Board
87

88. 88
Key Principles
• “The onus is on the respondent to establish that it could not
accommodate the applicant without undue hardship.”
• “The evidence establishes that the respondent met the
procedural component of the duty to accommodate in that the
respondent was aware of and actively pursued its duty to
consider alternate work. The respondent diligently undertook its
responsibility to investigate accommodation and proposed job
options to address the applicant's functional limitations.”
• Process is important – even when you have a reasonable guess what
the likely outcome will be

89. Key Principles
• “The substantive component of the duty to accommodate
requires me to assess the sufficiency of the respondent's
accommodation efforts and, if accommodation was not
achieved, whether there were reasonable and valid
reasons why those efforts failed to yield appropriate
accommodation.”
• “accommodation is not a question of mere efficiency”
• “it will always seem demonstrably cheaper to maintain the
status quo and not eliminate a discriminatory barrier”
• The Tribunal will expect some measure of economic pain
and inconvenience before it will support a finding of undue
hardship.

90. Right to Information
• In order to offer suitable accommodation, you need to
know what the employee’s restrictions are.
“the duty to accommodate places obligations on the employee
seeking accommodation as well. An employee who seeks
workplace accommodation has a duty to co-operate in the
accommodation process by providing her employer with a
reasonable amount of information about her physical and/or
mental work restrictions and disability-related needs so that the
employer can assess whether and how the employee’s needs
may be accommodated without undue hardship.”

91. Employee Obligations
• “To facilitate the search for an accommodation, the
complainant must do his or her part as well.
Concomitant with a search for reasonable
accommodation is a duty to facilitate the search for
such an accommodation. Thus in determining
whether the duty of accommodation has been fulfilled
the conduct of the complainant must be considered.”
• When you get to the Human Rights Tribunal, which
party is going to come across to the adjudicator as the
more reasonable one?

92. Hamilton-Wentworth District School Board
• 6 year employee of the School Board
• Supervisor, Regulated Substances, Asbestos
• Developed an anxiety disorder in the fall of 2001. “Her disability
was a reaction to the highly stressful nature of her job, and her
fear that, in making a mistake about asbestos removal, she could
be held personally liable for a breach of the OHSA.”
• Went on LTD until April, 2004, at which time she was assessed
as capable of gainful employment, but not able to return to her
previous position. Her Doctor’s note stated:
- “Ms. Fair would not be able to function in a job which entailed responsibility
for health and safety issues, nor any duties which would leave her at risk for
personal liability. Outside these limitations and restrictions, Ms. Fair is
otherwise capable of gainful employment.”

93. Hamilton-Wentworth District School Board
• [30] When the respondent eventually requested that the applicant
submit to an examination from the respondent’s own expert, the
Disability Management Co-ordinator attempted to influence the expert’s
report in the following ways.
• [31] She sent a letter to the respondent’s expert, requesting that he
“identify REAL (emphasis in original) limitations/restrictions, fitness to
return to work, separate from preference.” She advised that OTIP had
approved the applicant’s pre-absence position, which was not accurate.
She advised that the applicant had a “skewed sense of entitlement” and
characterized the applicant as “extremely manipulative” and an
“extremist.”
• [32] In my view, this letter demonstrates that the respondent was not
attempting to obtain objective clarification of the applicant’s limitations
but was intended to encourage the expert to conclude that the applicant
was not worthy of accommodation.

94. Hamilton-Wentworth District School Board
• Tribunal went on to find that the School Board had
numerous positions available which it could (read
should) have offered the Applicant.
• In other words, the School Board was found to have
failed to meet both its procedural and substantive
obligations.
• Didn’t follow the correct process, and the solutions it
came up with were insufficient.
94

95. REMEDY
• Ordered Reinstated to “suitable alternative employment”, one
“which is at or equivalent to the PASS level 6” which she was
previously at (in other words – at the same pay level)
• Back pay from June 26, 2003 until the date of reinstatement
(March 2013)
• Reinstatement of years of service with OMERS and payment of
pension contributions/costs
• Retroactive CPP payment
• Payment of out of pocket medical and dental
• Compensation for “tax consequences”
• $30,000 for “injury to her dignity, feelings and self-respect”
95

96. 96
Thank You
Name Jordan M. Smith
Tel: 519-575-7519
Email: jordan.smith@gowlings.com
Montréal  Ottawa  Toronto  Hamilton  Waterloo Region  Calgary  Vancouver  Beijing Moscow  London

97. 97
Dealing With the Bully
in the Workplace
Presented By:
John Illingworth and Phil Wolfenden

98. 98
Workplace Bullying Defined
Workplace bullying covers a broad spectrum of problematic behaviours.
Workplace bullying can include:
• harassment or poisoned work environment
• physical violence, sexual violence and threats of violence
• Reprisals
Violence vs. Harassment
The Occupational Health and Safety Act defines workplace harassment as engaging in a course
of vexatious comment or conduct against a worker, in a workplace – behaviour that is known or
ought reasonably to be known to be unwelcome
• Typically offensive, embarrassing, humiliating or demeaning
• May intimidate, isolate or even discriminate against the targeted individual

99. 99
What Isn’t Bullying?
A supervisor's conduct in discharge of his or her normal
supervisory/managerial duties is not normally bullying, even where it
has "unpleasant consequences" for the employee.
For example, a fair but blunt and unflattering assessment of an
employee’s performance and reasonable demands that he or she
fulfill the work expectations or risk discipline is NOT bullying.
Unless…the message, the means of delivery, or the time and place
are ill-suited to the individuals and the circumstances.

100. 100
What Isn’t Bullying?
Most commonly, people will misconstrue normal work activity and
management action as “bullying” where:
• they are not accustomed to direction, or to direct
communications
• there has been no preparation for the communication
• they are particularly sensitive, feel isolated or insecure
• they feel vulnerable at work, due to recurring work issues
• the manner (or time and place) in which the message is
delivered is unnecessarily abrupt, dismissive, or inconsiderate of
the person’s feelings

101. 101
The Important Recent Cases
Boucher v Walmart – $1.46 Million in Damages Awarded for Walmart’s Failure to
Prevent and Address Workplace Bullying
Shakur v. Mitchell Plastics – slapping another employee did not amount to just cause
for dismissal.
Re City of Kingston – Precedent setting decision in which Arbitrator Newman sets out
the criteria to evaluate on a dismissal arising from violent threats.
Re Quality Meat Packers Limited – 2013 case upholding discharge for violence.
Re Ivestia Financial Services Inc. – OLRB does not have jurisdiction to address
reprisal complaints under the OHSA for harassment in the workplace. Board adopts
decision in Re Ludlow Technical Products.

102. 102
Where are we going?
• Is there a disconnect between arbitrators and the Courts?
• How do employers balance their obligations under the OHSA
and exposure to quasi-criminal liability with the reluctance of
decision-makers to uphold termination for cause?
• Does the OHSA do enough to address workplace harassment?

103. 103
Thank You
Name: John Illingworth Philip J. Wolfenden
Tel: 519-575-7507 Tel: 416-369-7355
Email: john.illingworth@gowlings.com Email: phil.wolfenden@gowlings.com
Montréal  Ottawa  Toronto  Hamilton  Waterloo Region  Calgary  Vancouver  Beijing Moscow  London

104. 104
Cross-Border Employment, Labour
and Immigration Issues
Presented By:
Edward Trevvett (Harris Beach PLLC),
Chris Andree, Bill MacGregor and
Lesley Love

105. 105
• Discrimination Laws
• Termination Issues
• Changes to Terms of Employment
• Restrictive Covenants
• Drug and Alcohol Testing
• Health Care Provision
• Immigration Issues – Employer Obligations
Agenda – Discuss US Legal Differences

106. Discrimination Laws
• Generally, US and Canadian workers enjoy similar protections from
employment discrimination, but there a few key differences that may
catch employers accustomed to one set of employment laws by
surprise.
• The grounds for protection are generally more expansive in Canada
than in the US (e.g., Canada provides access to benefits for same sex
partners and recognizes the right to marry between partners of the
same sex). In the US, however, some states have unusual protections
(e.g., NY law protects victims of domestic violence).
• In the US discrimination law is enforced by both an administrative
agency and state and federal courts.
• Canadian damages are modest by US standards. Canadian law focuses
more on providing the position and wages that were denied by an
employer's discriminatory practices, rather than awarding large punitive
settlements which is normal in the US.
106

107. Changes to Terms of Employment
• In the US, absent an existing written agreement or
statutory rights (e.g., minimum wages, overtime pay),
employment is generally at will.
• Terms of employment are subject to modification
without new/separate consideration and without prior
notice.
• Continued employment is valid consideration to
impose changes in the US.
107

108. Termination From Employment
• In the US, there is generally no statutory notice of termination or
pay in lieu of notice.
• In the US employment is generally "at will" and notice of
termination by an employer is required only by contract or
company policy.
• Severance plans and policies are quite common in the US.
• Usually, severance plans require that the severed employee
execute a release of claims as a prerequisite to receiving
severance payments.
108

109. Restrictive Covenants
• Like Canadian courts, in the US, courts will enforce
non-solicitation covenants that are reasonable (given
the business interest to be protected) in time and
geographic scope.
• In many states non-competition covenants are
enforceable.
• This is a state-specific issue in the US.
109

110. Drug and Alcohol Testing
• Active alcoholism and drug addiction are not
recognized as disabilities in the US and do not require
any accommodation.
• Recovery, however, is protected.
• Workplace drug and alcohol testing are very popular
in the US and testing is regularly used in relation to
reasonable suspicion and workplace injuries.
• Pre-employment drug and alcohol testing is also very
common in the US.
110

111. New Employer Obligation to Provide
Health Care in the US
• March 23, 2010: The Patient Protection and
Affordable Care Act, “PPACA,” more
commonly referred to as the Affordable Care
Act, “ACA,” was passed.
• Majority of law takes effect January 1, 2014;
including significant employer penalties for
non-compliance.
• On December 28, 2012, the IRS released its
much-anticipated proposed regulations
governing the PPACA.
111

112. Employer Requirements – Health Care
(The Pay of Play Mandate)
• Large employers (50 or 100 employees depending on state) will be
required to offer their full-time employees (and their dependents)
"minimal essential" health benefit coverage that provides a minimum
value and is affordable to the employee or pay a penalty if any full-
time employee receives a federal subsidy to purchase insurance
through a health exchange.
• Penalties flow when a subsidy is received and the employer either
does not offer or does not properly offer coverage or the coverage is
offered but the government standards of minimum value and
affordability are not met.
• A new complex measurement and stability period for benefit provision
will apply.
112

113. 2014 Play-or-Pay Employer Penalties
• 4980H(a) Penalty: “Large employers” will be required to offer “minimum
essential coverage” to 95% of their full-time employees and their
dependents or face a penalty of $2,000 for each full-time employee in
excess of 30 employees per year
Number of full-time employees for the year – 30 x $2,000 = penalty
• 4980H(b) Penalty: “Large employers” that offer “minimum essential
coverage” to their full-time employees and their dependents may still face
a penalty if the coverage was not “affordable” or failed to meet a
“minimum value” threshold. Penalty is equal to the lesser of: (a) monthly
penalty of 1/12 of $3,000 multiplied by the number of full-time employees
who receive government subsidized coverage through the exchange, and
(b) the 4980H(a) penalty.
• Both penalties are triggered by a full-time employee receiving government
subsidized coverage through the exchange
113

114. Immigration Issues/Employer Obligations
in Termination Cases
• Do employers need to advise the government of a termination?
• To effectuate a bona fide termination of an H-1B employee, the employer is
obligated to: (1) give clear notice of termination, (2) offer return transportation
to the employee’s home country (but not required to pay for relatives or
moving possessions), (3) write to USCIS advising them that the worker is no
longer employer by petitioner and request withdrawal of the H-1B petition.
• Unless other workers are based on the same underlying LCA, employer can
also withdraw the LCA.
• No obligation to report terminated L-1 employees, O-1 employees, or TN
employees .
• Foreign nationals in F-1 student status or J-1 exchange visitor status (with
work authorization) are registered in the SEVIS database, and their respective
sponsors are required to update the SEVIS system with details about their
employment status, including termination.
114

115. Immigration Issues/Employer Obligations
in Termination Cases
• Does the employer need to pay for the
foreign employee to relocate back home?
• Employer is obligated to tender return
transportation cost to terminated H-1B
worker. This rule does not apply if the
worker quits or if the H-1B status has run its
full course.
115

116. Immigration Issues/Employer Obligations
in Termination Cases
• What about effect on permanent resident applications that
are pending?
• Termination of H-1B employment has no legal effect on
pending PR applications. However, since the PR application
is likely based upon an offer of employment from the
company which terminated the H-1B worker, it is likely that
the green card process with that sponsoring company will
grind to a halt.
• If the worker has obtained both an approved labor
certification application and an I-140 PR petition, they can
preserve the priority date, marking their place in line in their
particular green card category (advanced degree or
bachelor’s degree queues known as EB-2 and EB-3).
116

117. 117
Cross Border Sales and Entry of Technicians
• Can sales personnel enter as business visitors?
• Issues with cross border territories
• After-sales support: Need to consider this for sales
into the U.S., or for sales/leasing of
equipment/machinery/software by U.S. businesses to
Canadian purchasers
• Contractual language must support entry of after-sales
service personnel (otherwise, need a work permit)

118. 118
Cross Border Sales and Entry of Technicians
• Specific language in sales agreement is needed to
support:
• Entry of personnel to install, commission or provide
training relating to equipment or machinery or
software
• To allow entry for warranty period work (and
beyond)
• To allow third parties to provide the after-sales
service (instead of only the vendor’s personnel)

119. 119
Moving Personnel Across the U.S. / Canada Border
• Business visitor v. Work Permit activities
• Need to assess purpose of entry
• For work permits, look first to NAFTA Professional (TN) Category
• Second option: intra-company transferee (L-I) category
• Intra-company transferee work permit option allow for the transfer of
managerial or specialized personnel
• You can maximize entry and immigration options depending on the
ownership structure between Canadian and U.S. entities
• Special rules for start-ups

120. Moving Personnel Across the U.S. / Canada Border
• Choice of Port of Entry matters
• Criminality and admissibility issues
• Overcoming criminality
• Non-citizens crossing the border
• Permanent resident or work permit holder employees or service providers
• Entry visa requirements
• Processing options for work permits
120

121. 121
Recent Canadian Immigration Developments
• TFWP and recent scrutiny
• Tightening of Labour Market Opinion rules
• A-LMO suspended
• Outsourcing questionnaire
• Increased compliance requirements and penalties
• Age of children / dependents to change
• Affect on recruiting and on current Foreign Workers
• Revised Permanent Resident categories
• CEC and skilled worker changes

122. 122
Thank You
Name: Edward A. Trevvett Name: Christopher M. Andree
Tel: 585-419-8643 Tel: 519-575-7505
Email: etrevvett@harrisbeach.com Email: chris.andree@gowlings.com
Name William R. MacGregor Name: Lesley A. Love
Tel: 519-575-7528 Tel: 519-569-4562
Email: bill.macgregor@gowlings.com Email: lesley.love@gowlings.com
Montréal  Ottawa  Toronto  Hamilton  Waterloo Region  Calgary  Vancouver  Beijing Moscow  London

123. 123
Top Eleven Employment Law
Developments
Presented By:
R. Ross Wells, Mark Josselyn and
P.A. Neena Gupta

124. 124
A rose by any other name would smell as
sweet …..
• Written contracts between companies operating foster and group
homes for children with behavioural and developmental
disorders
• Both parties acknowledged that:
• Individual an independent contractor and not an employee
• Individual responsible for CPP remittances
• Individual not entitled to any benefits
• Individual able to conduct any other business or activity for
profit

125. 125
A rose by any other name would smell as
sweet …..
• Federal Court of Appeal looked at reality of work relationship:
• Level of control exercised by the employer over the worker’s
activities;
• Whether the worker provides his or her own equipment and hires his
or her own helpers;
• Degree of financial risk assumed by the worker;
• Degree of responsibility for investment and management assumed
by the worker; and
• The worker’s opportunity for profit in the performance of his or her
task.

126. 126
1392644 Ontario Inc. (Connor Homes) v.
Canada (National Revenue) (Fed. C.A.)
Importance of Decision
• Paperwork and intent of parties not determinative
• The situation must reflect independence
• Employer may be liable for unpaid EI premiums
• Status issues very controversial in US and similar factors may apply
here in Canada

127. Employee has to mitigate
• Employee worked for 33 years with Employer and its
predecessor
• Employer laid him off under mistaken belief regarding
rights under ESA, 2000
• Recalled Employee upon being advised of error
• Employee declined to come back to work
127

128. Employee has to mitigate
• New management had implemented a new program --
Steps to Success with “missionary-like zeal”
• Employee clearly uncomfortable and disagreed with
certain aspects of marketing program
• Court found that Employee ought to have taken the
opportunity to mitigate, despite change in location
• Employee’s erroneous layoff did not justify failure to
mitigate with Employer
128

129. Chevalier v. Active Tire
2012 ONSC 4309
• Employee has obligation to mitigate with Employer,
even after layoff
• Clear that employers do not have right to layoff just
because ESA provides for layoff
• Layoff has to be in contractual document or common
industry practice
• Nonetheless, even after error, employer entitled to
invite employee to come back if genuine error and not
in bad faith
129

130. 130
Emails that go astray and contain legal
advice
• A non-performing employee accidentally cc’d on an e-mail between the
company’s Director of Operations and the company’s lawyer.
• Requested advice on potential termination
• Despite efforts to recall the e-mail, the employee read the e-mail and
provided copy to her lawyer
• The employee took position that she was constructively dismissed

131. 131
Emails that go astray and contain legal
advice
Decision
• E-mail was privileged solicitor-client communication and the inadvertent
disclosure did not waive privilege;
• Still unfair to the employee to preserve privilege
• Without email, the employee would be at a significant disadvantage in
establishing the context for the action.
• Therefore, the solicitor-client privilege was waived.

132. 132
Fernandes v. Marketforce Communications
(Ont. S.C.J.)
Importance of Decision
• Including the wrong person on an e-mail is an understandable mistake
that happens to everyone.
• This case is a useful reminder of the potential consequences of such a
mistake.
• The case is just an interim decision: stay tuned for more

133. 133
Laptops, Privacy, child pornography
R. v. Cole
• School computer technician found possession of child pornography on
school laptop of teacher
• Sexually explicit images of an underage student.
• Laptop confiscated by school board officials who copied the temporary
internet files onto another disk and gave the disk to police
• Police reviewed the disk without a warrant.
• School policy indicated supervisors had full access to computer
• School board an arm of government – therefore, heightened Charter
protection

134. 134
Laptops, Privacy, child pornography
R. v. Cole, SCC 2012
• Court ruled: police should have obtained warrant before viewing
• Private-sector employer would not be subject to Charter
• Critical that there be clear policies regarding employer’s right to access
and review computers
• Data always owned by employer
• Employees should understand no expectation of privacy in company-
issued computer and other electronic (e.g. smart phone) equipment

135. 135
Termination language strictly construed
• Employer terminated without cause
• Employee’s contract states “he would receive six months’ notice or pay
in lieu upon termination.”
• Employer had drafted contract
• Employee finds work within two weeks
• The Employer paid the three weeks statutory requirement and refused
to pay the balance

136. 136
• Employer argues unfair to allow employee to receive a windfall profit
• Purpose of notice to permit employee to find another job and obligation
should cease at that time
• Court of Appeal found the damages are liquidated and therefore are not
subject to mitigation.
• Justice Winkler stated that “there is nothing unfair about requiring
employers to be explicit if they intent to require an employee to mitigate
what would otherwise be fixed or liquidated damages”.
Termination language strictly construed

137. Stevens v. Sifton Properties
13(b) The Corporation may terminate
your employment without cause at any
time by providing you with notice or
payment in lieu of notice, and/or
severance pay, in accordance with the
Employment Standards Act of Ontario
137

138. Stevens v. Sifton Properties
13 (c) You agree to accept the notice or
payment in lieu of notice and/or severance
pay referenced in paragraph 13(b) herein,
in satisfaction of all claims and demands
against the Corporation which may arise
out of statute or common law with respect
to the termination of your employment with
the Corporation.
138

139. 139
• Employers and Human Resources professionals should remember that
a duty to mitigate is not implied in an employment contract.
• The duty to mitigate must be explicitly and clearly set out in the
employment agreement.
• The parties are expected to clearly set out their intentions in the
language of the contract in order to provide certainty and closure on
termination.
• Ambiguity resolved against employer
Bowes v. Goss Power Products Ltd.,
2012 ONCA 425

140. Restrictive covenants even harder to enforce
• Employee received over $5 million when he sold his
interest in company
• Employee agreed to work for purchaser and received
shares in new entity
• Employee signed a non-competition clause that ran
24 months from the date he disposed of his shares in
new company
140

141. Restrictive covenants even harder to enforce
• Court recognized that non-competes in sale context
treated differently than pure employment
• Clause needed to be reasonable in scope, geographic
ambit (all of Canada) and time
• Court of Appeal ruled that clause unreasonable
because of the way the time limit was defined
141

142. Martin v. ConCreate USL LP
2013 ONCA 1840
• Court did not like uncertainty of the time limit
• Sale of shares required consent of lenders
and company
• Not clear if Martin could ever get rid of shares
142

143. Martin v. ConCreate USL LP
2013 ONCA 1840
• Martin permitted to operate competitive
business within months of receiving $5 million
• Martin’s new company obtained over $32
million in business
• Purchaser company went bankrupt
• Case will not be appealed
143

144. Overtime class actions given green light
Employee alleges on behalf of 5,000
others:
• overtime policy imposes more restrictive
conditions than the minimum standards
of the Code;
• record-keeping systems not accurate;
• Poor managerial practices for monitoring
Claims $350 million in damages!
144

145. Fulawka v. Bank of Nova Scotia
• Banks argued shouldn’t be class action
• Factual situations vary from branch to
branch; manager to manager
• Court of Appeal found:
• Sufficient common issues in terms of
liability to proceed as a class action
• SCC refused to hear appeal
145

146. 146
Star Choice Television Network Inc. v. Tatulea
Importance of Decision
• Patience is a virtue
• Employer carefully documented its proposals for accommodation and
requests to meet
• Employer warned worker that failure to meet would be cause for
termination
• Employee failed in its obligations and therefore, termination justified

147. 147
When does the obligation to reinstate end?
• Supervisor, Regulated Substances, Asbestos developed generalized
anxiety disorder because of work-related stress
• Medically cleared to work, provided it did not involve asbestos removal
• Sought other positions, which Employer failed to consider or offer her
• Application made in 2004; liability decision released in February 2012
• Parties unable to agree on remedy and HRTO released remedy
decision in early 2013

148. 148
When does the obligation to reinstate end?
• Pay loss of wages, CPP and pension loss from June 26, 2003 until
date of reinstatement (over 8 ½ years)
• Reinstatement to suitable alternative employment including
adjusting her length of seniority (and provide up to 6 months of job
training)
• Could not involve personal liability for health and safety similar to
the potential liability caused by working in asbestos.

149. 149
When does the obligation to reinstate end?
• Out of pocket expenses for dental and medical expenses
• Pay adverse tax consequences
• Pay applicant $30,000 as compensation for the injury to her dignity,
feelings and self-respect;
• Interests (pre and post judgment)

150. 150
Fair v. Hamilton-Wentworth School District,
2013 HRTO 440
• Until Fair, very few cases where HRTO ordered reinstatement over
objection of employer
• Aggressive approach to remedies
• Significant efforts must be made to accommodate employee,
including into a different position if available
• Demonstrate efforts to be flexible, creative
• Cannot use overall cost-cutting as an excuse
• Large employers particularly vulnerable

151. 151
How long can you be liable for disability
benefits?
• 55-year old employee with 24 years of service is dismissed without
cause
• Given ESA minimum notice and benefits (approx. 8 weeks + 24 weeks)
• Employee mitigates – but lower pay and no disability coverage.
• Employee became disabled 15 months after termination.
• Employee sues original employer – would have had disability benefits at
his original employer

152. 152
How long can you be liable for disability
benefits?
• 22 months of notice at common law
• 22 months of benefits (including disability benefits)
• Therefore,
• Gets difference between wages before and wages at new job
• Gets disability benefits
• Gets $90,000 in costs

153. 153
Brito v. Canac Kitchens, 2012 ONCA 61
• Disability benefits during common law period a very
real risk
• Deal with it in employment templates, i.e. upon
termination, STD and LTD will be extended only for
ESA notice period
• Settle cases and ensure that claims to disability
benefits explicitly released

154. Workplace Bullying costs Employer
• 42-year old retail employee with excellent ten-
year service record
• Earned $52,000 per year
• Refused to backdate missed bakery logs
while she was away for training because she
thought improper
154

155. Workplace Bullying costs Employer
• Store manager accused of deliberately trying to
humiliate employee
• Forcing her to count skids in front of co-workers to
prove she could count
• Being called a “****” idiot or “are you an **** idiot?”
• Punched in the arm by assistant manager
• Alleges six months of sexual and mental harassment
during May to December 2009
155

156. 156
Workplace Bullying Costs Employer
• Employee did not look for other work and unemployed
4 years later
• Employer paid employee exactly what was required
under valid contract – 2 weeks per year of service
when she left
• 2 ½ week trial on the tort claims

157. 157
Boucher v. Wal-Mart Canada Ltd.
October 2012
• Jury took 2 hours to deliberate
• Ruled constructive dismissal
• Awarded $200,000 for mental distress
• Awarded $1,000,000 for punitive damages
• Did not find sexual harassment
• Being appealed on the basis “perverse”, “shockingly
unreasonable” and “out of whack with previous
awards”

158. 158
Thank You
Name: R. Ross Wells Name: P.A. Neena Gupta
Tel: 519-575-7513 Tel: 519-575-7501
Email: ross.wells@gowlings.com Email: neena.gupta@gowlings.com
Name Mark Josselyn
Tel: 613-786-0148
Email: mark.josselyn@gowlings.com
Montréal  Ottawa  Toronto  Hamilton  Waterloo Region  Calgary  Vancouver  Beijing Moscow  London

159. 159
Questions?
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160
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