2015 EMPLOYMENT & LABOUR LAW CONFERENCE/media/Files/Insights/Events...DLA Piper (Canada) LLP AGENDA...

Toronto | Friday, May 8, 2015

2015EMPLOYMENT & LABOUR LAW CONFERENCE

www.dlapiper.com

DLA Piper (Canada) LLP is part of DLA Piper, a global law firm operating through various separate and distinct legal entities. For further information please refer to the Legal Notices section at www.dlapiper.com.

DLA Piper (Canada) LLP

AGENDA Employment & Labour Law Conference

Friday, May 8, 2015

Welcome

8:00 a.m. - 8:30 a.m. Breakfast/Registration

8:30 a.m. - 9:15 a.m. Introduction and Presentation Special Guest Speaker- The Honourable Kevin Flynn Minister of Labour

9:15 a.m. - 9:25 a.m. Welcome Remarks - Sam Schwartz, Toronto Office Managing Partner

Individual Presentations - Session I

9:25 a.m. - 10:35 a.m. The Changing Nature of Employment: Independent Contractors and What You Need to Know

The Future of Workplace Legislation in Ontario: Changes to the Employment Standards Act, 2000 and the Upcoming Review

Breaking Up is Hard to Do: The Reality of Post-Employment Obligations in 2015

Family Status Discrimination

Questions?

Refreshment Break

10:35 a.m. – 10:45 a.m. Refreshment Break

Cross Country Checkup: Recent Developments in Canadian Employment Law

10:45 a.m. - 11:40 a.m. British Columbia Update: Recent Developments on the Left Coast

Western Update: Recent Developments on the Prairies

Ontario Update: Recent Developments on the Home Front

Québec Update: Recent Developments from La Belle Province

Federal Update: Recent Updates from Parliament Hill

Individual Presentations - Session II

11:40 a.m. - 12:35 p.m. Hot Topics in US Labour and Employment

The Increasing Importance of Social Media in Employment

Ouch, That Hurts!: Increasing Damages Awards in Employment Litigation

How to Bullyproof your Workplace

Questions?

Lunch

12:35 p.m. - 1:30 p.m. Lunch

Meet The Experts

1:30 p.m. - 2:30 p.m. 1. Update on the AODA

2. Successful Strategies for Mediation

3. Conducting Investigations

4. Tax Issues 101 for Employers


Table of Contents

About DLA Piper (Canada) LLP - Firm Profile ................................................................................................ Tab 1 Team Biographies .............................................................................................................................................. Tab 2

Wendy-Anne Berkenbosch Karen Bock Leslie Frattolin Pablo Guzman Richard Nixon Richard Press Michael Richards Samuel Schwartz Michael Sheehan Brittany Taylor Adrienne Woodyard

Employees and Independent Contractors: What You Need to Know in 2015 ............................................. Tab 3 The Future of Workplace Legislation in Ontario: Changes to the Employment Standards Act, 2000 and the Upcoming Review ................................................................................................................................. Tab 4 Breaking Up is Hard to Do: The Reality of Post-Employment Obligations in 2015 ..................................... Tab 5 Family Status Discrimination ............................................................................................................................ Tab 6

Cross-Country Check-Up: Updates in Employment Law Across Canada ................................................... Tab 7

British Columbia Update ................................................................................................. Tab A

Western Update ............................................................................................................. Tab B

Ontario Update .............................................................................................................. Tab C

Québec Update ............................................................................................................. Tab D

Federal Update ............................................................................................................... Tab E

Hot Topics in US Labour and Employment ..................................................................................................... Tab 8 The Increasing Importance of Social Media in Employment ......................................................................... Tab 9

Ouch, That Hurts!: Increasing Damages Awards in Employment Litigation .............................................. Tab 10

How to Bullyproof Your Workplace .................................................................................................................. Tab 11

Meet the Experts ................................................................................................................................................. Tab 12

Feedback Form .................................................................................................................................................. Tab 13

Notebook ............................................................................................................................................................. Tab 14

DLA Piper (Canada) LLP 1

FIRM OVERVIEW

Effective April 17, 2015, Davis LLP combined with DLA Piper LLP (US) and has adopted the name

DLA Piper (Canada) LLP. The firm will operate as an integral part of DLA Piper’s global platform and

brand.

With over 260 Canadian lawyers delivering services in more than 50 practice areas, DLA Piper

(Canada) LLP provides unparalleled value to our clients by combining the deep resources of a global

firm with the highest level of personal service in the business.

Our mission and vision is to be Canada’s premiere entrepreneurial full-service law firm known for its

leading edge specialties and comprised of lawyers who achieve results that exceed expectations

through commitment to our clients and ourselves.

Strength of Expertise

As a full-service, international law firm, DLA Piper (Canada) LLP is strong in all of the traditional areas

of legal practice and also offers clients the knowledge base of our broad array of innovative practice

groups and integrated specialties. Across the firm, our lawyers continuously cultivate commercial and

government relationships to facilitate the conduct of business and identify new business opportunities

for our clients.

With unrivalled Canadian experience representing organizations across all markets, DLA Piper

(Canada) LLP is at the forefront of legal practice including:

Commercial real estate and leasing, construction, municipal and environmental law.

Corporate/commercial law, banking and finance, international trade and business transactions,

infrastructure and project finance, insolvency and financial restructuring, taxation, intellectual

property and information technology law.

Complex litigation, alternative dispute resolution, administrative regulation and government

relations, employment and labour relations, and human rights law.

Our practice groups are coordinated into cross-disciplinary teams of specialists capable of directing

formidable resources to particular areas of law, specific industries, and selected nations or regions as

required.


Our Services

Our core services that meet the legal and business needs of our clients include:

Corporate

Employment

Environment

Finance

Intellectual Property and Technology

International Trade, Regulatory and Government Affairs

Litigation, Arbitration and Investigations

Projects, Energy and Infrastructure

Real Estate

Restructuring

Tax

Transportation

Our core sector teams include:

Banking and Financial Services

Education

Energy

Forestry

Government Contracting

Health Law

Hospitality and Leisure

Insurance

Life Sciences

Media, Sports and Entertainment

Mining

Technology


Recognition

Our commitment to sensible and strategic legal counsel has garnered us a solid reputation for

excellence and ethical practice. Our practitioners receive consistent recognition in ranking

publications, including:

Best Lawyers in Canada 2015 – directory lists 56 of the firm's lawyers across 36 practice areas as

leaders in their field.

Chambers Global 2015 – Our lawyers continue to rank highly in the leading international directory,

and the firm’s practice area recognition increased by almost 30% over 2014.

The Canadian Legal Lexpert Directory 2014 recognizes 34 of our partners and counsel as leading

lawyers in various areas of practice.

Martindale Hubbell – peer review rankings have 12 of our lawyers rated as AV® Preeminent™

(highest level of professional excellence) and 52 as BV® Distinguished™ (a widely respected mark

of achievement).

Benchmark Canada 2015 – named 11 litigation lawyers as Litigation Stars.

Chambers Global sources were quoted as saying, “Their consistent and customer-oriented approach

runs right through the organisation.”

Helping Clients Succeed

Clients can feel confident knowing that our services are of the highest calibre and integrity. We take

pride in our services, our people and our clients. We do what it takes to take care of them and their

needs. Our peers have noticed, and have shared their opinions with you and the global legal arena to

assure you of our solid commitment to you.

DLA piper (Canada) LLP lawyers and professional staff embody an entrepreneurial spirit that yields a

business environment totally focused on client satisfaction. Our approach—alerting clients of

economic and political developments so that they remain informed and compliant, presenting them

with relevant and strategic business opportunities and helping initiate corresponding activities,

leveraging our relationships to introduce clients to potential business partners, independently

developing new commercial structures, and successfully handling conflict resolution—adds

measurable value to our clients’ businesses.


Our Business Plan

DLA Piper (Canada) is a full-service law firm that capitalizes on its existing competencies and

resources. We foster a client-focussed culture where client’s needs drive the way we deliver services

and the capabilities and skills we cultivate. We have positioned ourselves to be able to participate in

high-end transactions without being dependent on the transaction market.

All of our strategic decisions are based on the principal that the client’s interest is first, the firm’s

second and the individual last. One of the foundations of our success is our unwavering commitment

to integration and teamwork within and across all of our offices for the benefit of our clients. A key

strategic focus has been on creating a virtual law firm environment for our lawyers through the

deployment of technologies which have created tremendous efficiencies both from a service delivery

and economic perspective for our clients.

Personal Service, Worldwide Reach

With deep roots in Canadian and international business communities, our extensive connections are

used to help you keep pace with fluctuating global economies and evolving trends. We keep you

informed and compliant of relevant economic, political and legal developments, help identify and

initiate strategic business opportunities and manage conflict resolution. And of course, you always

receive this added value with a level of service that is second to none.


Wendy-Anne Berkenbosch Partner

[email protected]

1201 Scotia Tower 2 10060 Jasper Avenue, Edmonton, AB, T5J 4E5, Canada

T: +1 780 429 6810 F: +1 780 702 4396

Wendy-Anne Berkenbosch is a partner and a member of the firm’s

Employment law group. Wendy-Anne advises employers on labour,

employment, administrative and human rights law issues. She also

has expertise working with regulated health professions in Alberta.

Wendy-Anne regularly assists clients and other lawyers by providing

research and analysis and by drafting comprehensive opinions, oral

arguments and written submissions for all levels of court in all areas

of the law.

Wendy-Anne also practises in the area of environmental law. Her

experience includes advising clients regarding potential

environmental risks and liability, supporting the defence of

environmental prosecutions and assisting in the application process

for environmental regulatory approval.

PUBLICATIONS

Ouch, That Hurts! Increasing Damages Awards, 19 Nov 2014

2014 Employment and Labour Law Conference Presentations - Vancouver, 08 Oct 2014

2014 Employment and Labour Law Conference Presentations - Edmonton, 08 Oct 2014

PROFESSIONAL MEMBERSHIPS

Member, Law Society of Alberta

Member, Canadian Bar Association

Second Vice President, University of Alberta Alumni & Friends of the Faculty of Law Association

OTHER ACTIVITIES

Guest Lecturer, University of Alberta, DHYG 326: Law and Dental Hygiene

CREDENTIALS

Education

LL.B (with Distinction), University of

Alberta, 1999

B.A. (with Distinction), The King's

University College, 1995

Admissions

Alberta

Languages

English



Karen R. Bock Partner

[email protected]

Suite 6000, 1 First Canadian Place PO Box 367, 100 King St W, Toronto, ON, M5X 1E2, Canada

T: +1 416 365 3523 F: +1 416 777 7444

Karen Bock is a partner in the Employment Group at the firm's

Toronto office. Karen has a general management-side labour and

employment law practice.

Karen advises public and private-sector employers on matters, such

as employment standards, arbitrations, wrongful dismissal actions,

human rights complaints, workplace safety and insurance matters.

Karen received her LL.B. from the University of Toronto in 2000.

Previously, she earned her B.A. (Hons.) from the University of

Winnipeg. She also earned an M.A. and Ph.D. in English Literature

from Brown University, and taught for some years at Wesleyan

University in Connecticut.

PUBLICATIONS

Potter v. New Brunswick Legal Aid Services Commission:

Supreme Court Expands Reach of Constructive Dismissal, 31

Mar 2015



Member, Law Society of Upper Canada


RECOGNITIONS

Osgoode Society for Canadian Legal History Prize

COMMUNITY INVOLVEMENT

Board Member, Street Haven at the Crossroads

CREDENTIALS

Education

LL.B., University of Toronto, 2000

Ph.D., English Literature, Brown

University

M.A., English Literature, Brown

University

B.A., English Literature, (with Honours),

University of Winnipeg

Admissions

Ontario

Languages

English



Leslie Frattolin Associate

[email protected]


T: +1 416 941 5391 F: +1 416 369 5218

Leslie Frattolin is an associate in the Employment Group at the

firm's Toronto office.

In developing her labour and employment practice, Leslie provides

advice and transaction support in all the areas of employment,

labour, occupational health & safety and human rights & disability

law. As counsel to both national and international organizations,

Leslie represents clients with respect to various labour and

employment issues including:

the hiring and termination of employees;

the defence of wrongful dismissal claims, grievances and human

rights complaints;

the defence of claims for disability benefits;

the preparation of employment agreements and independent contractor agreements; and

the application of employment standards legislation, workplace safety and insurance legislation,

occupational health and safety legislation and human rights legislation.

Leslie joined the firm in 2008 as a student and returned as an associate following her call to the bar in June

2010. Leslie earned her Bachelor of Arts degree in Economics from Lakehead University in 2006 and

received her J.D. from Osgoode Hall Law School in 2009. While attending law school, Leslie was awarded

the Osgoode Centennial Entrance Scholarship for academic excellence.

PUBLICATIONS

Ontario Human Rights Tribunal Finds Paying Disabled Employee $1.25 an Hour is Discrimination, 29

Sep 2014




Member, Human Resources Professional Association of Ontario

CREDENTIALS

Education

J.D., Osgoode Hall Law School, 2009

B.A., Economics, Lakehead University,

2006

Admissions

Ontario

Languages

English



Pablo Guzman Partner

[email protected]

Suite 1400, McGill College Tower 1501 McGill College Avenue, Montréal, QC, H3A 3M8, Canada

T: +1 514 392 8406 F: +1 514 392 8376

Pablo Guzman is a partner in the firm's Montréal office. Pablo is a

litigator and practises in the areas of corporate law, employment,

franchise and and commercial contracts, and the enforcement of

creditors’ rights. He routinely counsels clients in the drafting, review,

management and enforcement of contracts and security instruments

in his areas of practice.

Pablo often provides strategic counsel to boards and C-level

executives on complex litigation and compliance with business-

related legislation, including Québec’s Consumer Protection Act, the

Charter of the French Language, the Civil Code of Québec, the

Competition Act and privacy legislation. His litigation practice also

includes acting as defence counsel in several competition law class

proceedings pursuant to the Civil Code of Québec and the

Competition Act.

He has appeared before the Québec, Superior and Appeal Courts

and provincial, federal and international administrative and arbitration tribunals.

Pablo was born in El Salvador, Central America and moved to Canada in 1976.

He obtained a B.A. in Political Science at Université du Québec - Montréal in 1989, specializing in

international relations.

He received his Bachelor of Laws degree from the Université de Montréal in 1992.

PUBLICATIONS


Understanding the New Temporary Foreign Worker Program, 24 Sep 2014


Member, Mexico-Canada Chamber of Commerce

Member, Canada-Chile Chamber of Commerce

Member, Lord Reading Society (an association of English speaking litigation attorneys)

CREDENTIALS

Education

LL.B., Université de Montréal, 1992

B.A., Université du Québec à Montréal,

1989

Admissions

Québec

Languages

English

French

Spanish



Richard J. Nixon Partner

[email protected]


T: +1 416 365 3521 F: +1 416 777 7420

Richard J. Nixon is a senior partner specializing in employment and

labour law practising in Toronto. He provides strategic advice to

major employers in the nuclear energy, telecommunications, public

accounting, auto parts, oil and gas, construction, consumer products

and retail industries.

Richard is a trusted advisor on a broad range of employment and

labour matters. He has a proven track record of successfully

representing employers before Canadian courts, labour relations

boards, human rights tribunals, arbitration boards and other

tribunals.

For many years, Richard was a popular lecturer for the Advanced

Program in Human Resources Management at the Rotman School

of Management at the University of Toronto. Richard is a member

of the Advisory Board and a lecturer at the Osgoode Hall Law

School Professional Development HR Law for HR Professionals.

Richard is also frequently invited to chair and speak at conferences on labour and employment law.

EXPERIENCE

Richard represents many large Canadian employers including:

Rogers Communications

Candu Energy

KPMG LLP

Imperial Oil

City of Hamilton

Nike

CREDENTIALS

Education


M.B.A., University of Western Ontario,

1975

B.A., Economics, University of Western

Ontario, 1973

Admissions

Ontario

Languages

English



Fellow, The College of Labor and Employment Lawyers

Board of Directors, Canadian Breast Cancer Foundation

Human Resources Professional Association of Ontario

Lecturer, Advanced Human Resources Management - HRPAO Program at the Rotman School of

Management, University of Toronto

Lecturer, The Osgoode Certificate in HR Law for HR Professionals program sponsored by Osgoode

Hall Law School, York University

Co-chair, professional development seminar on "Reducing Workers'' Compensation Costs", Institute of

Chartered Accountants of Ontario

Law Society of Upper Canada

Canadian Bar Association

RECOGNITIONS

Canadian Legal Lexpert Directory (Employment Law - Management), Repeatedly Recommended, 2006

- Present

PLC Which Lawyer? (Labour and Employment - Canada, Ontario), 2011

Best Lawyers in Canada (Labour and Employment Law), 2006-Present

BV® Distinguished Peer Review Rated by Martindale-Hubbell


Richard Press Partner

[email protected]

Suite 2800, Park Place 666 Burrard St, Vancouver, BC, V6C 2Z7, Canada

T: +1 604 643 6444 F: +1 604 605 3595

Richard Press is a partner in the firm’s Employment Group. His

practice focuses both on advocacy and strategic planning with

respect to employment and labour matters, as well as related

administrative tribunal work, such as human rights, health and

safety, workers compensation and employment standards.

As an advocate, Richard has appeared before provincially and

federally appointed arbitrators, the British Columbia courts, the

provincial and federal labour boards, and various tribunals.

He is a strong proponent of preventative legal measures. He

advises clients in that regard on employment and consultant

agreements, employee policies and procedures (governing, among other matters, overtime compensation,

discrimination, bullying and harassment, internet and social media, alcohol and drug use, and health and

safety), proprietary asset and confidential information protection, compensation and benefit packages, and

collective bargaining.

PUBLICATIONS

Canada’s New Employees’ Voting Rights Act: Important Changes Coming to Federal Union Certification

Process, 26 Feb 2015

Topping Up Maternity and Parental Leave Plans: Does Your Plan Discriminate?, 30 Dec 2014




Member, Canadian Bar Association (Employment and Labour Subsections)

Member, Law Society of British Columbia

Past contributing member to the Employment Standards Tribunal Digests

CREDENTIALS

Education


B.Sc., McGill University, 1990

Admissions

British Columbia



Michael S. Richards Partner

[email protected]


T: +1 416 941 5395 F: +1 416 777 7427

Suite 2800, Park Place 666 Burrard St, Vancouver, BC, V6C 2Z7, Canada

T: +1 604 643 2919 F: +1 604 687 1612

Michael S. Richards is a partner specializing in employment law in

Toronto. Michael was called to the bar in both Ontario and British

Columbia and has represented clients before various levels of

courts in both provinces, before administrative tribunals, at

arbitrations, in mediation and at other negotiations, including

collective bargaining.

After graduating from the University of Toronto, Michael returned to

British Columbia where he was the law clerk to Madam Justice Jo-

Ann Prowse of the British Columbia Court of Appeal. Michael

articled in the Vancouver office and was called to the British

Columbia Bar before transferring to the Toronto office where he has

practised since early 2001.

Michael’s practice in employment law includes providing advice to

both national and international organizations on a daily basis and representing clients with respect to

various labour and employment issues including:

The recruitment, hiring and termination of employees.

Providing advice with respect to group terminations and business closures.

The successful and cost effective defence of wrongful dismissal claims, grievance and human right

complaints.

The preparation of employment, consulting and independent contractor agreements including the

provision of advice with respect to the enforceability of non-solicitation, non-competition and

confidentiality agreements.

The negotiation and interpretation of collective agreements.

The interpretation and application of employment standards legislation, workplace safety and insurance

legislation, occupational health and safety, and human rights legislation.

Finally, Michael’s practice also includes privacy law and advising businesses in Ontario with respect to their

obligations under privacy legislation, including performing privacy audits and assisting clients in the

development of privacy policies compliant with applicable legislation.

CREDENTIALS

Education


B.Comm., (Honours), The University of

British Columbia, 1996

Admissions

Ontario

British Columbia

Languages

English


PUBLICATIONS/PRESENTATIONS

2015 OARTY Conference - Bridging the Gap - Grand Bend, 05 Jun 2015

2014 Lexpert Privacy Law and Data Protection Conference - Toronto, 27 Nov 2014


2014 Annual Canadian Association of Counsel to Employers Presentation - Montreal, 13 Sep 2014

The Six-Minute Labour Lawyer 2014 Presentation - Toronto, 06 Jun 2014

2012 Annual Canadian Association of Counsel to Employers Presentation - St. John’s, 22 Sep 2012


Member, Law Society of British Columbia



Member, Ontario Bar Association

Member, British Columbia Bar Association

Member, Advocates Society

RECOGNITIONS

Lexpert’s Litigation Lawyers to Watch, 2014

Lexpert Rising Stars: Leading Lawyers Under 40 in Canada, 2013

Lexpert's Litigation Lawyers to Watch, 2011


Samuel Schwartz Office Managing Partner

[email protected]


T: +1 416 369 5278 F: +1 416 777 7423

Samuel Schwartz is the Managing Partner of the Toronto office. He

is qualified as a lawyer in both Ontario and Alberta and practises in

the areas of corporate/commercial, corporate finance structuring

and securities including merchant banking and public and private

company transactions.

His diverse client base includes Canadian and foreign companies

involved in biotechnology, life sciences and computer hardware and

software.

Sam has been regularly retained to assist established as well as

start-up companies in accessing capital markets both in Canada and

the United States.

In addition, he has been frequently requested to assemble

professional teams of accountants and specialty counsel to assist

Canadian companies in their business development efforts

worldwide.

EXPERIENCE

Acted for Appvion, Inc. on its US$60 Million receivables

securitization.

Acted as Canadian counsel to Appvion, Inc. and its Canadian

subsidiary, Appvion Canada, Ltd. in the completion of a $435

million senior secured credit facility.

Acted as Canadian counsel to Appvion, Inc. and its Canadian subsidiary, Appvion Canada, Ltd. in the

closing of its $250 million aggregate principal amount of Second Lien Secured Notes on a private

placement basis.

CREDENTIALS

Education

J.D., Osgoode Hall Law School of York

University, 2010

LL.B., Osgoode Hall Law School of

York University, 1972

M.A., Political Science, York University,

1969

B.A., University of Toronto, 1967

ICD.D, Certified Director Institute of

Corporate Directors - 2006

STEP, The Society of Trust and Estate

Practitioners, 1998

Certified as a Trade-mark Agent in

1977, renewed 2006

Admissions

Alberta

Ontario

Languages

English




Former Board Member, Mount Sinai Hospital Foundation

Member, National Board of the Canadian Friends of the Hebrew University of Jerusalem

Member, National Campaign of Canadian Cancer Society

Honorary Member (for life), Board of Governors, York University

Former Member of the Executive Committee, Board of Governors, York University

Former Chair of the Academic Resources Committee, York University

Former Chair of the Vice-President''s Research and Innovation Initiative, York University

Former Member of the Senate, York University

Former Member, Board of Trustees-Endowment Fund, Jewish Federation of Greater Toronto

ADDITIONAL INFORMATION Sam is a director of several corporations, including a large paper manufacturing and distribution company,

and a private equity company.


Michael J. Sheehan Partner

Global Co-Chair, Employment Group

Chair, US Employment Group

[email protected]

203 North LaSalle Street, Suite 1900, Chicago, Illinois, 60601-1293, United States

T: +1 312 368 7024 F: +1 312 251 5854 M: +1 312 375 0567

1251 Avenue of the Americas, New York, New York, 10020-1104, United States

T: +1 212 335 4955 F: +1 212 335 4501

Michael Sheehan is a nationally known employment litigator with

extensive courtroom experience, having tried dozens of cases to

verdict across the country.

Michael's litigation experience includes prosecuting and defending

unfair competition litigation involving large scale raiding, inevitable

disclosure of trade secrets and breach of non-compete agreements.

He provides strategic counseling on protecting employee mobility

and trade secrets. He investigates and defends Sarbanes-Oxley

whistleblower cases, and handles NASD litigation, including raiding

cases and employment matters.

EXPERIENCE

Michael has been lead counsel and successfully litigated and

defended companies against large scale wage and hour class

actions, including: Sundjaja v. Commercial Insurance Agency (litigated and resolved an

overtime/misclassification class action, purporting to cover all commercial insurance underwriters in

California, for the named plaintiff's unit only); Keeler v. AIG Domestic Claims (litigated and resolved a

misclassification class action, purporting to cover all claims adjusters in California, for limited class of

named plaintiff's workers' compensation division only); Kinney v. AIG Domestic Claims (defending

objections and appeal of prior class settlement); Abrantes v. 21st Century (litigated and resolved a

misclassification class action, purporting to cover all information technology employees in California, for

select units only); and Colman v. AIG Domestic Claims (litigated and resolved a misclassification class

action, purporting to cover all claims adjusters in California, for the limited class of plaintiff's construction

defect unit only).

CREDENTIALS

Education

Wake Forest University School of Law

(1984) J.D.

Hillsdale College (1981) B.A., cum

laude

Admissions

Illinois

New York

Ohio


Michael obtained one of the largest awards ever in a non-compete/raiding case—$20 million—for a

multinational insurance company; successfully defended a sexual harassment case before a jury; won a

directed verdict in a national origin discrimination trial; won a judgment notwithstanding the verdict motion in

federal court in Atlanta in an ADEA retaliation case for a large international insurance carrier; and, as a

corporate plaintiff, won a $6 million award from a jury in a trade secret case in Colorado. One of his most

recent jury trials was a victory versus the EEOC in a Title VII religious accommodation case. In the New

Jersey Supreme Court, Michael successfully argued a case that definitively set the statute of limitations

under the Law Against Discrimination at two years.

PUBLICATIONS

Courts confirm: Dodd-Frank whistleblowers must report to the SEC, Dodd-Frank whistleblower

protections do not extend to conduct outside the US, 20 Nov 2013

PRESENTATIONS AND SEMINARS

Can New Jersey employers with independent contractors rest easy after Sleepy's?, 11 Mar 2015

Employment Law Update, New York, 29 Oct 2014

Employment Law Update, Chicago, 21 Oct 2014

Emerging Trends and Practical Advice on Global Whistleblowing, 19 Nov 2013

COURTS AND FORUMS

Supreme Court of Ohio

United States District Court for the Northern District of Ohio

Supreme Court of Illinois

United States District Court for the Eastern District of Wisconsin

United States District Court for the District of Arizona

United States District Court for the Western District of Michigan

United States Court of Appeals for the Third Circuit

United States Court of Appeals for the Sixth Circuit

United States Court of Appeals for the Seventh Circuit

United States Court of Appeals for the Eighth Circuit

United States Court of Appeals for the Eleventh Circuit

Supreme Court of the United States

RECOGNITIONS

Chambers USA has recognized Michael for his practice in labor and employment, of which he is

"particularly praised for his litigation expertise." Sources have described him as "a strategic thinker, really

able to think through how to handle a matter and come up with the right solution for the company."

Michael has also been named among the Top Lawyers in Illinois by American Lawyer Media.


Brittany Taylor Associate

[email protected]


T: +1 416 365 3504 F: +1 416 369 5208

Brittany Taylor is an associate in the firm's Toronto office and is a

member of the Employment Group.

Brittany’s experience includes working with senior counsel to

represent employers in a broad range of employment and labour law

matters, including grievances, arbitrations, human rights complaints,

unjust dismissal complaints and wrongful dismissal actions.

Brittany also has experience appearing before Small Claims Court,

as well as drafting claims, defences and motion materials in Small

Claims Court actions. Brittany has also assisted employers to draft

and implement policies in accordance with the Accessibility for

Ontarians with Disabilities Act, 2005.

Brittany obtained her Honours Bachelor of Arts degree with

distinction from the University of Western Ontario with a double major in English and Classical Studies in

2007. She worked as a legal assistant in the insurance industry for two years before attending Western’s

Faculty of Law, obtaining her Juris Doctor with distinction in 2012.

Brittany joined the firm in 2011 as a student and articled at the firm. She returned as an associate following

her call to the bar in June 2013.

PUBLICATIONS

New Minimum Wage Requirements and Significant Changes to Workplace Laws Coming to Ontario

with Passing of Bill 18, 07 Nov 2014

Are You in Compliance with Mandatory Workplace Posting Requirements in Ontario?, 27 Aug 2014


Member, Ontario Bar Association



Member, Advocates’ Society

CREDENTIALS

Education

J.D. (with distinction), University of

Western Ontario, 2012

B.A. (Honours) (with distinction),

University of Western Ontario, 2007

Admissions

Ontario

Languages

English


RECOGNITIONS

Miller Thomson LLP Award in Labour Law, 2012

Stringer LLP Award in Labour Law, 2012

J.G. McLeod Scholarship in Family Law, 2012

Law Society of Upper Canada Prize, 2012

Canvasback Publishing Prize in Administrative Law, 2011


Adrienne Woodyard

[email protected]


T: +1 416 365 3414 F: +1 416 369 5233

Located in the firm’s Toronto office, Adrienne Woodyard is a

member of the firm’s tax law group.

Adrienne’s practice is primarily focused on tax. She advises clients

regularly on tax compliance issues and how to manage the audit

process, and acts as their advocate in disputes with the Canada

Revenue Agency and the Ontario Ministry of Finance. Where

disputes cannot be resolved at the administrative level, she litigates

on clients’ behalf in the Tax Court of Canada and the Federal Court

of Appeal. Adrienne also represents clients who wish to participate

in the Voluntary Disclosures Program, an amnesty program

designed to allow taxpayers to correct errors or omissions in their

past tax returns. She has extensive knowledge of income tax, GST /

HST, retail sales tax and excise tax matters, and serves on the

editorial board of the Tax Litigation Journal, published by Federated

Press.

Adrienne also advises clients on domestic and cross-border tax

matters as well as estate and wealth preservation planning

strategies. Her clients are engaged in a variety of business, real estate and investment activities, and

include multinational corporations, privately held and owner-operated enterprises, estates and trusts,

entrepreneurs, executives and other individuals.

Adrienne obtained her law degree from Queen’s University, where she received the McDougall-Watson

Memorial Award for her work with the Queen’s Legal Aid Society and was an editor of the Queen’s Law

Review. She was called to the Ontario bar in 2000. Prior to attending Queen’s, Adrienne studied English

and Psychology at Wilfrid Laurier University, and was awarded the Lieutenant Governor’s Academic Medal

for achieving the highest average in her graduating class.

She has been quoted and has written extensively on various tax matters, including transfer-pricing, Canada

Revenue Agency challenges to charitable donation programs and the tax treatment of damage awards.

CREDENTIALS

Education

Osgoode Hall Law School Intensive

Trial Advocacy Workshop

Canadian Institute of Chartered

Accountants In-depth Tax Course

Arbitration and Mediation Training

Institute Certificate

LL.B., Queen's University, 1998

Wilfrid Laurier University (1994) B.A.

Admissions

Ontario

Languages

English


PUBLICATIONS

Directors and De Facto Directors in the Eyes of the CRA, 20 Mar 2015

CRA Leaks Famous Donors' Information, 27 Nov 2014


Editorial Board, Tax Litigation, Federated Press

The Advocates'' SocietyCanadian Tax Foundation

Canadian Tax Foundation

Ontario Bar Association

Law Society of Upper

Canada AIDSBeat Organizing Committee 2005, 2006

RECOGNITIONS

McDougall-Watson Memorial Award, Queen's Legal Aid Society

Queen's University Entrance Scholarship

Lieutenant Governor's Academic Medal, Wilfried Laurier University,

Alumni Bronze Medals, Wilfrid Laurier University

J. Campbell Scholarship, Wilfrid Laurier University

OTHER ACTIVITIES

Copy and design editor of McDonald & Hayden LLP's in-house newsletter, The Advisory

Associate Editor, Queen's Law Journal 1996 - 1998

EMPLOYEES AND INDEPENDENT

CONTRACTORS:

WHAT YOU NEED TO KNOW IN 2015

Presented by Richard J. Nixon

Toronto Employment and Labour Law Conference

Friday, May 8, 2015

INTRODUCTION

� The classic distinction between an employee and an independent contractor is becoming blurred

� Relationships between organizations and individuals exist on a continuum

� Notice clause in an agreement with an independent contractor may not be sufficient

� An organization that fails to provide an independent contractor with reasonable notice of termination may be liable for damages and applicable employment benefits

2DLA Piper (Canada) LLP

Employer - Employee Independent ContractorThird Category

EMPLOYEE VS. INDEPENDENT CONTRACTOR

� The “four-fold” test

1. who retains control over the work? 2. who owns the tools?

3. does the individual have a chance to profit?

4. does the individual have a risk of loss?

� The “integration” or “business organization” test


ENDING THE RELATIONSHIP

� Statutory obligations

� Employment Standards Act, 2000

� Minimum notice of termination of one week for each year of service up to a maximum of eight weeks

� Common law obligations

� Reasonable notice

� 0-24 months’ notice


WHAT DO THE COURTS HAVE TO SAY?

� The distinction between an employee and an independent contractor is not as clear as it once was

� Parties’ intentions are not determinative

� The agreement between the parties is not determinative

� The substance of the parties’ relationship determines whether an individual is an employee or an independent contractor


BRAIDEN V LA-Z-BOY

� In 1981 Braiden was employed by La-Z-Boy as a customer service manager

� In 1987 Braiden was advised in that his employment was at an end

� Braiden signed Independent Sales & Marketing Consultant's Agreement

� 60 days’ notice of termination

� No extra consideration paid to Braiden

� Braiden incorporated a company and paid his own EHT and WSIB premiums

� La-Z-Boy terminated the Agreement on 60 days’ notice

� Braiden brought an action for wrongful dismissal and claimed damages


BRAIDEN V LA-Z-BOY

Trial Decision

� Braiden won

� Relationships between organizations and individuals exist on a continuum

� The fact that the Agreement was between Sales Inc. and La-Z-Boy did not matter

� Mr. Braiden found to be an employee and entitled to 20 months’ notice


BRAIDEN V LA-Z-BOY

Court of Appeal Decision

� Braiden won

� Court of Appeal found that:

� Braiden worked exclusively for La-Z-Boy;

� Braiden was subject to La-Z-Boy’s control;

� Braiden’s compensation consisted solely of commissions from La-Z-Boy; and

� Braiden was a crucial element of La-Z-Boy’s business.

� Notice provision in Agreement could not be relied on because no consideration flowed from La-Z-Boy to Braiden


RENNIE AND VIH HELICOPTERS

� In 1993 Rennie was hired by VIH Helicopters as a helicopter maintenance engineer

� In 1996 Rennie signed an independent contractor agreement with Blue Stone, who contracted out Mr. Rennie’s services

� After 15 years of service, VIH gave 14 days’ notice as required under the agreement

� Mr. Rennie filed a complaint under s. 240 of the Canada Labour Code for unjust dismissal


RENNIE AND VIH HELICOPTERS

Adjudication under the Canada Labour Code

� Rennie wins

� True relationship between the parties was that of employer-employee

� Rennie entitled to damages for unjust dismissal in an amount equal to 14 months’ notice

Federal Court of Canada

� Rennie loses

� Rennie cannot claim to be an employee only when it suits him

Federal Court of Appeal

� Rennie wins

� Courts should be deferential on judicial review applications


SO WHAT?

THE IMPLICATIONS OF GETTING IT WRONG

� Income Tax Act

� Canada Pension Plan

� Employment Insurance Act

� Workplace Safety and Insurance Act, 1997

� Employer Health Tax Act

� Employment Standards Act, 2000

� Common law


TAKEAWAYS

� The classic distinction between an employee and an independent contractor is no longer as clear as it once was

� Organizations should not rely completely on the notice clause in an agreement with an independent contractor

� Organizations should consider giving more notice than is required under the agreement with an independent contractor



THANK YOU!

Richard J. NixonPartner, Toronto416.365.3521

[email protected]

DLA Piper (Canada) LLP | 1

EMPLOYEES AND INDEPENDENT CONTRACTORS:

WHAT YOU NEED TO KNOW IN 2015

By Richard J. Nixon and Jennifer Saville

Introduction

Organizations are increasingly retaining the services of individuals in a capacity other than as employees

in order to increase the organization’s flexibility and obtain special expertise on an as-needed basis. In

addition, individuals are increasingly establishing their own businesses and contracting-out their services.

This shift has resulted in many organizations retaining the services of independent contractors rather than

hiring employees.

Historically, organizations have been subject to statutory and common law duties in relation to their

employees which have not been applied when organizations retain independent contractors. Case law

over the past ten years suggests that the classic distinction between employees and independent

contractors is becoming blurred. Relationships between organizations and individuals lie on a continuum:

the employer-employee relationship lies at one end of the continuum and the independent contractor

relationship lies at the other end of the continuum. However, between these two extremes lies a third

category of relationship where reasonable notice is also required in order to terminate the relationship.

The implications of this “third category” are significant. If an organization fails to provide an individual with

reasonable notice of termination, even if the organization did so on a mistaken belief that the individual

was an independent contractor, the organization may be liable for damages and applicable employment

benefits. Organizations need to be careful about how they end their relationship with individuals, even

where the organization believes the individual is an independent contractor. In many cases, it may be a

mistake for an organization to rely solely on the notice provision in their agreement with an independent

contractor to determine the reasonable notice to which an individual is entitled.


Determining Whether the Individual is an Employee or Independent Contractor

Employees and independent contractors often provide the same or very similar services. The distinction

between the two can be difficult to discern. The classic “four-fold” test is set out by Lord Wright in the

English case of Montreal v Montreal Locomotive Works Limited.1 The “four-fold” test requires that the

court or tribunal consider:

1. the extent to which the organization retains control over the work performed by the

individual;

2. whether the organization owns the tools used by the individual in the performance of the

work;

3. whether the individual has a chance of profit as a result of the performance of the

individual’s work; and

4. whether the individual has a risk of loss as a result of the performance of the individual’s

work.

To the extent that the organization (1) retains control over how the work is performed by the individual, (2)

the organization owns the tools used by the individual in the performance of the work, (3) the individual

has a chance to profit and (4) the individual has a risk of loss, an employment relationship will be made

out. In contrast, to the extent that (1) the organization does not retain control over how the work is

performed by the individual, (2) the organization does not own the tools used by the individual, (3) the

individual has a chance at profit and (4) the individual has a risk of loss, an independent contractor

relationship will be made out.

The “four-fold” test continues to form the basis for modern day determination of whether an individual is

an employee or independent contractor. In addition, Lord Wright’s inquiry into the “ownership” of the

1 Montreal v Montreal Locomotive Works Limited, [1947] 1 DLR 161 (Privy Council) (“Montreal Locomotive”).


business was one step in the evolution of what is now known as the “integration” or “business

organization” test. This test was first articulated by Lord Denning in the English case of Stephenson,

Jordan and Harrison Ltd v MacDonald and Evans:2

One feature which seems to run through the instances is that, under a contract of service, a man is employed as part of a business, and his work is done as an integral part of the business; whereas, under a contract for services, his work, although done for the business is not integrated into it, but is only accessory to it.

The Supreme Court of Canada, in 671122 Ontario Ltd v Sagaz Industries Canada Inc, has emphasized

that there is no one conclusive test that can be universally applied to determine whether an individual is

an employee or an independent contractor and that the total relationship of the parties must be

considered.3 The question to be determined in each case is whether the individual who has been

engaged to perform the services is performing them as an individual in business on the individual’s own

account. Moreover, the Supreme Court emphasized that the intention of the parties, while relevant, is not

determinative in assessing whether an individual is an independent contractor or an employee.4

Generally, the “employee vs. independent contractor” tests that have been developed and used in Ontario

with respect to various statutes and at common law are quite similar. However, decision makers continue

to emphasize that just because an individual is not an employee for the purposes of one piece of

legislation, this does not definitively answer the enquiry of whether the individual is an employee or

independent contractor for the purposes of a different piece of legislation or area of law.

In all cases, the substance and not the form of the relationship will be determinative of the issue. A court

or tribunal must determine the status of an individual on a case-by-case basis. The court or tribunal will

examine all of the facts within the context of the overall nature of the relationship between the individual

performing the services and the organization for whom the services are performed.

Ending the Workplace Relationship

2 Stephenson, Jordan and Harrison Ltd v MacDonald and Evans, [1952] 1 TLR 101 (Court of Appeal).

3 671122 Ontario Ltd v Sagaz Industries Canada Inc, [2001] 2 SCR 983.

4 Prue v MNR, 2011 TCC 9 (Tax Court of Canada) (“Prue”); Smith v MNR, 2011 TCC 20 (Tax Court of Canada)

(“Smith”). See also “When are Independent Contractors Really Employees?” written by Richard J. Nixon, Daniel

Black and Nadine Côté, May 2011.


The distinction between employees and independent contractors is important because employees and

independent contractors are treated differently in Ontario’s numerous employment and labour statutes.

For example, the application of Ontario’s Employment Standards Act, 2000 (the “ESA”) is restricted to

employment relationships. As such, employers must comply with the obligations set out in the ESA when

terminating the employment relationship with an employee, but not when terminating the relationship with

an independent contractor.

Statutory Obligations

The ESA establishes basic employer obligations and employee rights in the workplace, including

requirements on termination of employment. Section 57 of the ESA requires, at a minimum, notice of

termination of one week for each year of service up to a maximum of eight weeks. In addition to the

minimum notice requirements, s. 64 of the ESA entitles employees to severance pay in certain

circumstances. One such circumstance is where the employer’s payroll is $2.5 million or more. If an

organization fails to comply with the ESA, even if the organization did so on the mistaken belief that the

individual was an independent contractor, the organization may be subject to sanctions under the ESA.

These sanctions are described below.

Common Law Obligations

In addition to statutory obligations, there are several implications at common law that arise when

terminating the employment of an employee, rather than terminating the relationship with an independent

contractor. In addition to the minimum notice requirements under the ESA, courts imply an obligation on

an employer to provide reasonable notice of termination of an employment relationship, subject to the

terms of an employment agreement. The length of reasonable notice varies depending on the age, length

of service, position, compensation and availability of alternate employment for the employee. Reasonable

notice of termination for an employee is typically anywhere from 0-24 months. If an organization breaches

its duty to provide reasonable notice, an employee can bring an action against the organization and

recover damages for wrongful dismissal.


At one time it was clear that this implied obligation did not apply to the termination of a relationship with

an independent contractor. Depending on the terms of the independent contractor agreement, an

organization could terminate its contract with an independent contractor by providing notice of only a few

days, as opposed to the weeks or months of notice to which employees are often entitled at common law.

When terminating an agreement with an independent contractor, the general practice was to read the

agreement and see if there was a termination clause that set out the notice of termination period. If there

was no such clause, the independent contractor was still entitled to notice of the termination of the

contract that was reasonable in the circumstances. An independent contractor’s entitlement to

“reasonable notice” was often much less than an employee’s entitlement to “reasonable notice”. Recent

case law suggests that this is no longer the case.

What Do the Courts Have to Say about Reasonable Notice?

The distinction between an employee and an independent contractor is not as clear as it once was. Even

where an organization enters into an agreement that explicitly contemplates that the individual is an

independent contractor, courts have increasingly found that it is the substance of the relationship, and not

the parties’ intentions, that determines whether an individual is an employee or an independent

contractor. Not only does this make it difficult for an organization to know what obligations it owes to an

individual, but it exposes an organization to liability in circumstances where it characterizes an individual

as an independent contractor and is subsequently found to be wrong by a court or tribunal. Two recent

cases bring these concerns to light: Braiden v La-Z-Boy Canada Ltd5 and Rennie and VIH Helicopters

Ltd, Re.6

Braiden v La-Z-Boy Canada Ltd

In August 1981, Mr. Braiden began working for La-Z-Boy Canada Limited (“La-Z-Boy”) as a customer

service manager at the company’s Waterloo factory. His duties were to respond to sales staff and retail

dealers who sold La-Z-Boy furniture. Five years later, in June 1986, Mr. Braiden became a sales

5 Braiden v La-Z-Boy Canada Ltd, [2006] OJ No 2791; Braiden v La-Z-Boy Canada Ltd, 2008 ONCA 464.

6 Rennie and VIH Helicopters Ltd, Re, [2013] CLAD No 75; Rennie and VIH Helicopters Ltd, Re, 2014 FC 22;

Rennie and VIH Helicopters Ltd, Re, 2015 FCA 25.


representative trainee with La-Z-Boy. As a sales representative trainee, Mr. Braiden received a salary and

commission. Mr. Braiden worked from a home office, sold products at prices established by La-Z-Boy,

serviced a geographical territory established by La-Z-Boy, paid for his own expenses, including that of his

vehicle, and regularly reported to and had his performance reviewed by La-Z-Boy’s national sales and

marketing manager.

In August 1987, Mr. Braiden was advised by La-Z-Boy that his employment was at an end. Effective

August 30, 1987, Mr. Braiden would become a commissioned sales representative for La-Z-Boy. As a

result, La-Z-Boy ceased paying Mr. Braiden a salary. Instead, Mr. Braiden’s compensation was based on

commissions alone. All other aspects of Mr. Braiden’s employment remained the same as when he had

been a sales representative trainee.

In 1995, La-Z-Boy decided that it would enter into annual written agreements with its sales

representatives. La-Z-Boy prepared an “Independent Sales & Marketing Consultant’s Agreement” which

La-Z-Boy required all its sales representatives to sign (the “Agreement”). This Agreement contained a

significant and new notice provision, which stated:

[E]ither party can terminate the Agreement, without cause, on 60 days’ notice in writing to the other.

The Agreement made no changes to Mr. Braiden’s job responsibilities, the way in which he did his job, or

his compensation. Mr. Braiden signed the Agreement and executed similar agreements annually from

1996 to 2003.

In 1997, La-Z-Boy required Mr. Braiden to incorporate a company and to pay his own EHT and WSIB

premiums. As a result, Mr. Braiden established Gordon Braiden Sales Inc. (“Sales Inc.”). Beginning in

1998 the annual Agreement was between La-Z-Boy and Sales Inc., rather than between La-Z-Boy and

Mr. Braiden.


In 2003, La-Z-Boy, relying on the notice provision in the Agreement, terminated Mr. Braiden’s contract on

60 days’ notice. Mr. Braiden subsequently brought an action for wrongful dismissal and claimed that he

was properly an employee of La-Z-Boy and was therefore entitled to common law reasonable notice.

Trial Decision

There were two main issues at trial. First, what was the nature of the relationship that existed between the

parties at the time of termination? Was Mr. Braiden an employee or an independent contractor? Second,

what was the consequence of Sales Inc., rather than Mr. Braiden, entering into the annual Agreements

after 1997?

In deciding the first issue, the trial judge began by noting that the label of “independent contractor” in the

Agreement was not determinative. Instead, the substance of the relationship was the deciding factor. The

trial judge went on to explain that relationships between organizations and individuals exist on a

continuum. The employer-employee relationship lies at one end of the continuum and the independent

contractor relationship lies at the other end. In addition:

Over the years there has evolved in the consideration of the relationship of employer/employee and the status of independent contractor, a third category of relationship where reasonable notice is required, in order to terminate[.] …

7

The trial judge went on to cite from the British Columbia Court of Appeal, which described relationships in

the workplace

… “as existing on a continuum for purposes of determining if notice of termination is required". The employee/employer relationship exists at one end of the continuum and the independent contractor status at the other. The determination of requirement for notice is determined by where, upon the continuum, one is located and whether the relationship bears more resemblance to the employer/employee or independent contractor status.

8

Applying this analysis to Mr. Braiden, the trial judge found that an employer-employee relationship existed

between Mr. Braiden and La-Z-Boy.

7 Braiden v La-Z-Boy Canada Ltd, [2006] OJ No 2791 at para 38.

8 Braiden v La-Z-Boy Canada Ltd, [2006] OJ No 2791 at para 39.


In relation to the second issue, the trial judge recognized that from 1998 to the time of termination the

Agreements were between Sales Inc. and La-Z-Boy and, in that sense, there was no direct relationship

between Mr. Braiden and La-Z-Boy. Nonetheless, the trial judge refused to attach significance to what the

trial judge viewed as the “technical structure” of the arrangement. All of the Agreements recognized the

ongoing participation of Mr. Braiden as a necessary “principal” of Sales Inc., La-Z-Boy relied on Mr.

Braiden’s presence as Sales Inc.’s principal, and the Agreements were entirely dependent on Mr.

Braiden’s personal involvement. The trial judge found that Sales Inc. was used, at La-Z-Boy’s insistence,

simply as a vehicle to transfer financial obligations from La-Z-Boy to Mr. Braiden.

Ultimately, given the extent of La-Z-Boy’s control over Mr. Braiden’s functions and activities, the trial judge

held that an employer-employee relationship existed between La-Z-Boy and Mr. Braiden and that, in light

of Mr. Braiden’s length of service (23 years), his age (53 years old), and the difficulty he could expect to

encounter in finding comparable employment, the reasonable notice period was 20 months.

Court of Appeal Decision

La-Z-Boy appealed the decision to the Ontario Court of Appeal and argued that there was no employer-

employee relationship between La-Z-Boy and Mr. Braiden. La-Z-Boy reiterated the argument that La-Z-

Boy’s employment relationship with Mr. Braiden was terminated in 1987 when Mr. Braiden became a

sales agent for La-Z-Boy. After 1997, La-Z-Boy’s only relationship was with Sales Inc. and Sales Inc. was

an independent contractor. Consequently, La-Z-Boy argued that it was entitled to end the contractual

relationship it had with Sales Inc. on 60 days’ notice, as set out in the Agreement.

The Court of Appeal dismissed this argument and concluded that where an individual is providing

services pursuant to an agreement, the fact that the individual is paid through his or her corporation is not

determinative of whether an employment relationship exists. The Court of Appeal found that La-Z-Boy

used the Agreements to secure the personal services of Mr. Braiden, as sales agent, even though the

Agreements in the later years of the relationship were with

Mr. Braiden’s corporation.


Following the Supreme Court of Canada’s decision in Sagaz, the Court of Appeal reiterated that there is

no one conclusive test that can be universally applied to determine whether an individual is an employee

or independent contractor. The question “whose business is it?” lies at the heart of this analysis. In the

Court of Appeal’s view, given the findings of the trial judge, the answer to that question could only be that

Mr. Braiden was carrying on the business of La-Z-Boy:

Mr. Braiden worked full-time and exclusively for La-Z-Boy;

Mr. Braiden was subject to La-Z-Boy’s control, not only as to the products sold but also as to the

territory in which they were to be sold and the promotional methods he was to use;

Mr. Braiden’s financial compensation consisted solely of his commissions from

La-Z-Boy; and

The group of sales agents of which Mr. Braiden was a member was the central method by which

La-Z-Boy distributed and sold its products and was a crucial element of

La-Z-Boy’s business organization.

Accordingly, the Court of Appeal found that there was no basis to interfere with the trial judge’s

determination that the relationship between La-Z-Boy and Mr. Braiden was that of employer-employee.

Regarding what reasonable notice Mr. Braiden was entitled to, the Court of Appeal found that Mr. Braiden

would have been entitled to a minimum notice period of eight weeks under the ESA, which is less than

the 60 days’ notice Mr. Braiden was entitled to pursuant to the Agreement. Nevertheless, the Court of

Appeal found that the notice provision in the Agreement was unenforceable because there was no

consideration given for the Agreement. The Court of Appeal commented that a new notice provision in a

contract is “a tremendously significant modification of the implied term of reasonable notice”, one that

requires consideration flowing from the organization to support it.9 A promise to do something that a party

to a contract is already bound to do is not consideration, and there was nothing to show that any fresh

9 Braiden v La-Z-Boy Canada Ltd, 2008 ONCA 464 at para 48.


consideration flowed to Mr. Braiden in exchange for his giving up the right to reasonable notice at

common law.

Ultimately, the notice provision in the Agreement was unenforceable and La-Z-Boy was not entitled to rely

on the 60 day notice provision when La-Z-Boy ended the working relationship with Mr. Braiden.

Therefore, Mr. Braiden was entitled to reasonable notice of termination at common law, and the trial

judge’s order of 20 months’ notice was upheld. The Court did suggest, however, that had La-Z-Boy

provided fresh consideration for the Agreement, the 60 days’ notice provision may have constituted

reasonable notice.

Implications of the Court of Appeal’s Decision in Braiden v La-Z-Boy Canada Ltd

This decision clearly demonstrates the court’s movement away from acknowledging a bright line between

employees and independent contractors. Even where agreements explicitly state that the individual is an

independent contractor, organizations have to be extremely careful when ending their agreements with

independent contractors. It is no longer sufficient to simply rely on the notice provisions in an agreement

with an independent contractor. Rather, the organization should consider what “reasonable” notice would

be in the circumstances, in the event that the individual is later found to be an employee. In order to rely

on the notice provisions in an agreement with an independent contractor, the organization should clearly

communicate the notice provisions to the individual and ensure that the individual appreciates that the

individual is giving up his or her legal rights to common law reasonable notice. The organization should

also ensure that there is consideration flowing from the organization to the individual for the individual’s

forfeiture of these rights.

In the Braiden case, it is questionable whether the courts would have found that Mr. Braiden was an

employee, had he not been an employee of La-Z-Boy prior to entering into the Agreement and becoming,

at least in La-Z-Boy’s mind, an independent contractor. The court may have come to a different

conclusion had Mr. Braiden first been retained by La-Z-Boy as an independent contractor.


Rennie and VIH Helicopters Ltd, Re

In 1993, Mr. Rennie was hired by VIH Logging Ltd., the predecessor to VIH Helicopters Ltd. (“VIH”), as a

helicopter maintenance engineer. When he was engaged, Mr. Rennie worked as a sole proprietor under

the name “Matt Rennie Engineering”. In September 1996, VIH sent a letter to Mr. Rennie requiring that he

incorporate to carry on providing services for VIH. In response to this request, Mr. Rennie’s father

incorporated Blue Stone Engineering Ltd. (“Blue Stone”). Blue Stone entered into a Consulting

Agreement with Matt Rennie Engineering, pursuant to which Matt Rennie Engineering agreed to “carry

out and provide services” to Blue Stone at a rate of $250.00 per day. Blue Stone then contracted out Mr.

Rennie’s services to VIH and invoiced VIH at that hourly rate, plus GST. Thereafter, payment for Mr.

Rennie’s services was made to Blue Stone. The contract between Blue Stone and VIH specifically stated

that Mr. Rennie was providing the engineering services as an independent contractor.

After 15 years of service, VIH terminated their work relationship with Mr. Rennie pursuant to the contract

which provided:

VIH can terminate the contract with 14 days’ notice.

Mr. Rennie subsequently filed a complaint under s. 240 of the Canada Labour Code for unjust dismissal.

Adjudication under the Canada Labour Code

The main issues before the adjudicator was whether Mr. Rennie was an employee or an independent

contractor and, if so, whether Mr. Rennie had been unjustly dismissed contrary to

s. 240 of the Canada Labour Code.

Once again, the Sagaz10

case was followed and the adjudicator made the following findings of fact:

Mr. Rennie received training from VIH and worked under the direction and overall supervision of

VIH’s maintenance supervisor;

10

671122 Ontario Ltd v Sagaz Industries Canada Inc, [2001] 2 SCR 983.


Payment for Mr. Rennie’s labour was based on an hourly rate and not a contract price, and the

wage rate was set by VIH;

VIH provided Mr. Rennie with tools, including coveralls, gloves, transportation to job sites and

specialized tools;

Except for one instance, Mr. Rennie’s sole income was from VIH; and

The work Mr. Rennie did was an integral part of VIH’s business.

In spite of these facts, VIH claimed that Mr. Rennie should be estopped from claiming that

Mr. Rennie was an employee. VIH argued that in previous court proceedings, and for income tax

purposes, Mr. Rennie held himself out as an independent contractor. To prove this, VIH wanted to admit

into evidence two affidavits used in previous family law proceedings between

Mr. Rennie and his ex-wife. These affidavits confirmed that during the family law proceedings, Mr. Rennie

and his father-in-law had characterized Mr. Rennie’s services as an independent contractor.

The adjudicator found these two affidavits to be inadmissible. The adjudicator noted that, as a matter of

law, the Canada Labour program is not obligated to follow conclusions or determinations of the Canada

Revenue Agency or other government departments as to whom, in a given case, should be regarded as

an employee or an independent contractor. Consequently, an individual may be classified as an

employee for one purpose but not for another.

Ultimately, the adjudicator held that the true relationship between the parties was that of employer and

employee, and that Mr. Rennie was entitled to damages for unjust dismissal in an amount equal to 14

months’ notice.

Federal Court of Canada

VIH filed an application for judicial review and the Federal Court of Canada overturned the adjudicator’s

decision. The Federal Court found that the adjudicator should have accepted VIH’s defence that Mr.


Rennie was estopped from claiming that Mr. Rennie was an employee of VIH and should have admitted

into evidence the two affidavits from the family law proceedings.

The Federal Court was critical not only of the adjudicator’s decision, but of Mr. Rennie’s behaviour,

noting:

When it suited Matthew Rennie from a compensation, an income tax, or a spousal support perspective, he took the position with VIH, Revenue Canada, the British Columbia courts, and his former spouse, that he was self-employed. After his relationship with VIH ended, it suited him to say that he was an employee of VIH entitled to damages for unjust dismissal pursuant to the provisions of the Canada Labour Code.

11

The Federal Court emphasized that Mr. Rennie could not claim to be an employee only when it suited

him. Because he had previously held himself out as an independent contractor, Mr. Rennie could not now

turn around and claim that he was not an independent contractor for the purposes of the Canada Labour

Code. The Federal Court overturned the adjudicator’s decision and the case was sent back to the

adjudicator to be decided in accordance with the Federal Court’s reasons.

Federal Court of Appeal

Mr. Rennie appealed to the Federal Court of Appeal, which ultimately upheld the adjudicator’s decision.

The Federal Court of Appeal found that even if the adjudicator had admitted the affidavits into evidence,

the two affidavits were not sufficiently material to render the hearing before the adjudicator procedurally

unfair. The adjudicator had access to the relevant evidence necessary to determine the issues before

him.

The Federal Court of Appeal was deferential to the adjudicator’s decision. Because this was a judicial

review of an administrative body, the Federal Court of Appeal emphasized that it was not the role of the

court to substitute its own decision for that of the adjudicator. Rather, the court’s role was to determine

whether the adjudicator’s decision had been reasonable. On the facts before it, the Federal Court of

Appeal saw no reason to interfere with the adjudicator’s decision.

11

Rennie and VIH Helicopters Ltd, Re, 2014 FC 22 at para 1.


Implications from the Federal Court of Appeal’s Decision in Rennie and VIH Helicopters Ltd, Re

The Federal Court of Appeal did not address the Federal Court’s concern that Mr. Rennie could

characterize his relationship with VIH to best suit himself in the circumstances. The decision leaves open

the possibility that an individual is not estopped by the individual’s words or conduct from asserting that

the individual is an employee when it best suits the individual, and asserting that the individual is an

independent contractor when it best suits the individual in other circumstances.

So What? The Implications of Getting it Wrong

The risks and liabilities of mischaracterizing an employee as an independent contractor are high. The

Canada Revenue Agency, the Ontario Ministry of Finance, Employment Standards Officers and the

Workplace Safety and Insurance Board (“WSIB”) can audit an organization at any time to ensure that the

organization is compliant with the organization’s statutory obligations. In addition to an organization’s

statutory obligations, there are several implications at common law in Ontario that arise when

organizations are found to have employed employees, rather than retained independent contractors.

A. Income Tax Act

The Income Tax Act (“ITA”) sets out, among other things, the federal income tax obligations of individuals

and the withholding and remittance obligations of organizations that pay remuneration to individuals. The

ITA requires every person paying at any time in a taxation year salary, wages or other remuneration to

deduct or withhold and remit a portion of this amount to the Receiver General (ss. 153(1)). This obligation

applies to companies paying salary, wages and other remuneration to employees, but not does apply to

remuneration paid to independent contractors.

If an organization fails to withhold and remit a portion of an employee’s remuneration, even if the

organization fails to do so due to a mistaken belief the individual was an independent contractor, the

organization may be liable to pay the amount that ought to have been withheld. The organization may


also be liable to a penalty of up to 20% of the amount that should have been withheld (ss. 227(8)) and

may be required to pay interest on the amounts owing (ss. 227(8.3)).

Every person who fails to withhold and remit a portion of an employee’s remuneration is guilty of an

offence and is liable on summary conviction to a fine of $1,000 to $25,000 and may also be subject to

imprisonment for up to 12 months (ss. 238(1)). The directors of the organization may be held jointly and

severally liable with the organization for the amount that ought to have been withheld and remitted, along

with any penalty or interest relating to the failure to withhold and remit the amount owing (ss. 227.1(1)).

Any officer, director or agent of the organization who directed, authorized, assented to, acquiesced in or

participated in the commission of the offence is a party to and guilty of the offence and is liable on

conviction to the punishment provided for the offence whether or not the organization has been

prosecuted or convicted (s. 242).

B. Canada Pension Plan

The Canada Pension Plan (“CPP”) establishes a social insurance program that provides basic benefits

when a contributor to the plan retires or becomes disabled. Every employer paying remuneration to an

employee employed by the employer in pensionable employment is responsible for making the required

deductions from the employee’s remuneration and remitting these deductions, along with the employer’s

contributions, to the Receiver General (ss. 21(1)). An employer’s obligation to withhold and remit the

employee’s contribution and to remit the employer’s contribution to the CPP program applies only to

remuneration paid to employees, not to independent contractors.

If an employer fails to make the required withholdings and remittances pursuant to the CPP, even if the

employer failed to do so because of the mistaken belief the individual was an independent contractor, the

employer may be liable for all amounts that ought to have been withheld or remitted, plus a penalty of up

to 20%, plus interest on the amounts owing. Moreover, every employer who fails to withhold and remit the

contributions required under the CPP is guilty of an offence and, in addition to any other penalty, is liable

on summary conviction to a fine of not more than $5,000 or a fine and imprisonment for not more than six


months (ss. 41(1)). Directors of the employer, at the time when the failure occurred, are jointly and

severally liable with the organization to pay the amount owing and any interest or penalties (s. 21.1)

C. Employment Insurance Act

The Employment Insurance Act (“EIA”) provides employment insurance benefits available to individuals

who have lost their employment, or who are unable to work for reasons such as an illness, pregnancy or

to care for a seriously ill family member with a significant risk of death. The benefits provided pursuant to

the EIA are funded by premiums paid by employers and employees.

Employee premiums must be withheld from the remuneration paid by employers and employers must

remit 140% of the employee premiums. Every employer paying remuneration to a person they employ in

insurable employment must deduct the employee’s premium from the employee’s remuneration and remit

it, along with the employer’s premium, to the Receiver General (ss. 82(1)). Insurable employment is

defined to include employment in Canada by an employer, under a contract of service, whether the

earnings of the employed person are calculated by time, piece or otherwise (s. 5). As such, an employer’s

obligation to withhold and remit employment insurance premiums applies only to remuneration paid to

employees, not independent contractors.

If an employer fails to make the required deductions and remittances pursuant to the EIA, even if the

employer failed to do so due to a mistaken belief the individual was an independent contractor, the

employer may be liable for all amounts that ought to have been deducted and remitted, plus a penalty of

up to 20%, plus interest on the amounts owing. Every employer who fails to deduct and remit the

premiums required under the EIA is also guilty of an offence and is liable on summary conviction to a fine

of not more than $5,000 or a fine and imprisonment for not more than six months (ss. 106(1)).

Directors of the employer, at the time the failure occurred, are jointly and severally liable with the

organization to pay the amount owing and any interest or penalties (s. 83), and any officer, director or

agent of the organization who directed, authorized, assented to, acquiesced in or participated in the

commission of the offence is a party to and guilty of the offence and is liable on conviction to the


punishment provided for the offence, whether or not the organization has been prosecuted or convicted

(s. 107).

D. Workplace Safety and Insurance Act, 1997

In Ontario, the Workplace Safety and Insurance Act, 1997 (“WSIA”) establishes an insurance

compensation scheme for employers and workers in respect of accidents at work and occupational

diseases. Depending on an employer’s classification under WSIA, an employer has numerous obligations

under WSIA, including:

paying premiums or benefits for claims;

reporting workplace accidents and occupational diseases; and

returning workers to work once they have recovered, in whole or in part, from their injuries.

The application of WSIA is generally restricted to employment relationships. Consequently, an employer

that retains an independent operator is not required to pay insurance premiums or benefits on behalf of

that independent operator. WSIA defines an “employer” as a person having in his, her or its service,

under a contract of service, another person engaged in work in or about an industry. A “worker” is defined

as a person who has entered into or is employed under a contract of service or apprenticeship.

“Independent operator” is defined as a person who carries on an industry pursuant to which WSIA applies

and who does not employ any workers for that purpose.

If an employer fails to pay WSIA premiums into the insurance plan or pay the benefits provided to

workers, even if the employer failed to do so on the mistaken belief that the individual was an

independent contractor, the organization may be required to pay WSIB premiums in relation to the fees

paid to such independent contractors. In addition to being required to pay WSIB premiums on a

prospective basis, the employer could also be liable for retroactive WSIA premiums, plus interest and

penalties.


Employers who are guilty of offences under WSIA are liable on conviction to a fine of up to $25,000 or

imprisonment for up to six months or both, for an individual, or a fine of up to $100,000 for an

organization.

E. Employer Health Tax

The Employer Health Tax, pursuant to the Employer Health Tax Act (“EHTA”), is a payroll tax imposed on

employers in Ontario. An employer must remit a tax to the Ontario Minister of Finance that is calculated

on the basis of a percentage of the employer’s total Ontario remuneration, subject to an exemption on the

first $450,000 of Ontario payroll each year. This exemption is eliminated for private-sector employers with

annual Ontario payrolls over $5 million (ss. 2(1) and 2(2)). An organization’s obligation to pay tax under

the EHTA applies only to remuneration paid to employees, not independent contractors.

If an employer fails to make the required remittances pursuant to the EHTA, even if the employer failed to

do so due to a mistaken belief the individual was an independent contractor, the employer may be subject

to various sanctions. The Ontario Minister of Finance may bring an action in court for the recovery of the

amount owed (ss. 20(1)(a)) or may register a lien against the employer’s real property and personal

property in regards to any tax or instalment payable or required to be remitted under the EHTA (ss. 23(1)

and 23(2)). Moreover, every person who contravenes or fails to comply with the EHTA is guilty of an

offence and on conviction, when no other fine is provided in the EHTA, is liable for each day or part day

on which the offence occurs or continues to a fine of not more than $5,000.

If an employer who is an organization is guilty of an offence under the EHTA, any officer, director or agent

who directed, authorized, assented to, acquiesced in, or participated in, the commission of the offence is

guilty of the offence and on conviction is liable to the punishment provided in the offence, whether or not

the organization has been prosecuted or convicted (s. 36).

F. Employment Standards Act, 2000


The ESA establishes numerous basic employer obligations and employee rights in the workplace, such

as the minimum wage, vacation time and vacation pay, overtime pay, public holidays and public holiday

pay, requirements during recognized leaves of absence and requirements on termination of employment.

The application of the ESA has been restricted to employment relationships. As such, organizations must

comply with the ESA when employing employees, but not when retaining independent contractors.

If an employer fails to comply with the ESA, even if the employer did so on the mistaken belief the

individual was an independent contractor, the employer may be subject to sanctions under the ESA. A

person who contravenes the ESA, its regulations, or a decision, requirement or order made under the

ESA is guilty of an offence and, on conviction, is liable to a fine up to $50,000 for an individual and

imprisonment for a term of up to 12 months or to both (s. 132). If the person is a corporation, fines can be

up to $500,000 depending on the number of prior convictions.

In certain circumstances, the directors of an employer may be held jointly and severally liable for unpaid

wages to employees up to a maximum of six months unpaid wages (ss. 81(7)). Moreover, a director of an

organization found guilty of an offence may be liable to a fine up to $50,000

(s. 136) and any officer, director or agent of the organization or a person acting or claiming to act in that

capacity who authorizes or permits the contravention or acquiesces in it is a party to and guilty of the

offence and is liable on conviction to the fine or imprisonment provided for the offence, regardless

whether the organization has been prosecuted or convicted of the offence

(s. 137).

G. Damages at Common Law for Wrongful Dismissal

In addition to legal consequences under employment-related statutes, there are several implications at

common law that arise when hiring employees rather than retaining independent contractors. Courts

imply various duties into the employment relationship that are not implied into the independent contractor

relationship. For example, employees have an implied duty of confidentiality and loyalty to their employer.

Independent contractors may not have any such implied duty and often provide services to competitors.


In addition, the work product of employees made in the course of their employment belongs to the

employer. However, the work product of an independent contractor typically belongs to the independent

contractor, unless a contract specifically provides otherwise.

Furthermore, courts imply an obligation on employers to provide reasonable notice of termination of an

employment relationship, subject to the terms of an employment contract. Reasonable notice of

termination for an employee is usually between 0-24 months. Therefore, the implied reasonable notice

required to terminate the organization’s agreement with an employment relationship may greatly exceed

the notice required to terminate an independent contractor. If employees do not receive reasonable

notice, employees may bring an action against the organization and claim damages for wrongful

dismissal.

Takeaways

The classic distinction between an employee and an independent contractor is no longer as clear as it

once was. Case law continues to suggest that an individual can be classified as an employee under

labour and employment legislation, but as an independent contractor under other legislation, such as the

Income Tax Act.

Organizations should be careful about terminating their relationships with independent contractors and be

cognizant that the individual may be entitled to common law reasonable notice. Importantly, organizations

should not rely completely on the notice clause in the agreement of an independent contractor. To

minimize exposure and liability, organizations should consider whether the notice provision under the

agreement would constitute “reasonable notice” at common law.

Where an organization wishes to terminate its agreement with an independent contractor, organizations

should maintain their position that the individual is an independent contractor in order to rely on and

exercise the right to terminate the agreement pursuant to the notice provision in the agreement.

Practically speaking, organizations may want to consider giving more notice than is required under the

agreement. For example, if the agreement states that either party can give seven days’ notice of


termination, the organization should strongly consider giving more notice, such as eight weeks’ notice.

This will give the individual ample notice of termination and may limit the risk of the individual bringing an

ESA claim or a wrongful dismissal claim and claiming that the individual was an employee and was

entitled to common law reasonable notice.

THE FUTURE OF WORKPLACE LEGISLATION IN ONTARIO:

CHANGES TO THE EMPLOYMENT STANDARDS ACT, 2000 AND THE UPCOMING REVIEW

Presented by Leslie Frattolin and Brittany Taylor

Toronto Employment & Labour Law Conference

Friday, May 8, 2015

INTRODUCTION

� Stronger Workplaces for a Stronger Economy Act, 2014(Bill 18)

� Amendments to:

� Occupational Health and Safety Act (the “OHSA”)� Employment Standards Act, 2000 (the “ESA”)� Workplace Safety and Insurance Act, 1997 (the “WSIA”)� Labour Relations Act, 1995 (the “LRA”)

� The Ontario government’s “Changing Workplaces” consultations - review of the ESA and the LRA


REVISED DEFINITION OF “WORKER” UNDER THE OHSA

3

� The OHSA used to define “worker” as:

“a person who performs work or supplies services for monetary compensation”

� Expanded definition of “worker” under Bill 18

� “Worker” now includes: � Persons performing work or supplying services for monetary compensation;

� High school students volunteering as part of a work experience program;

� Persons performing work or supplying services without compensation as part of an approved post-secondary program (i.e. co-op programs);

� Persons receiving training but who are not considered employees under the ESA because they fall within a specific exclusion set out in the ESA (i.e. unpaid internships); and

� Other persons as may be prescribed who perform work or supply services to an employer for no monetary compensation.


NEW MINIMUM WAGE REQUIREMENTS UNDER THE ESA

� Links all future minimum wage increases directly to the Consumer Price Index for Ontario

� The minimum wage rate will be announced in April of each year, and will come into effect as of October 1st of that year

� Minimum wage in Ontario is currently set at $11.00 and will increase to $11.25 as of October 1st, 2015

� Don’t get caught!


CHANGES TO THE MONETARY CAP AND TIME LIMITS ON CLAIMS FOR UNPAID WAGES

5

� The $10,000 cap on the recovery of unpaid wages has been eliminated on a going forward basis (after February 20, 2015)

� As of February 20, 2015, the time limit for filing claims under the ESA, and the period of time for which an employee will be able to seek recovery of unpaid wages, was increased from six months to two years.


NEW COMPLIANCE MEASURES UNDER THE ESA

� The Poster:

� “What You Should Know About The Employment Standards Act”

� Self-Audits:

� Effective May 20, 2015, employment standards officers can order employers to conduct self-audits and prepare a report documenting any issues of non-compliance with the ESA


NEW REQUIREMENTS FOR TEMPORARY HELP AGENCIES AND EMPLOYERS

Amendments to the ESA

� Temporary help agencies and employers will be held jointly and severally liable for certain employment standards violations, including:

� failure to pay regular wages;

� overtime pay;

� public holiday pay; and

� premium pay

� New recordkeeping and record retention requirements

� records must be retained for a period of three years


NEW REQUIREMENTS FOR TEMPORARY HELP AGENCIES AND EMPLOYERS

Amendments to the WSIA

� New Subsection 83(4) will allow the creation of regulations dealing with workers of temporary help agencies

� Employers who participate in an experience and merit rating program may face liability for temporary help agency workers who are injured while performing work for the employer:

� WSIB may deem total wages paid to the worker by the temporary help agency to be paid by the employer

� WSIB may attribute injury and accident cost to the employer

� WSIB may increase employer’s premiums

� Employer may be obligated to notify the WSIB of the injury within a specified time period


CHANGES TO THE CONSTRUCTION INDUSTRY PROVISIONS UNDER THE LABOUR RELATIONS ACT, 1995

9

� As of May 20, 2015, the “open period” in the construction industry will be shortened from three months to two months

� What is the open period?

� a trade union may apply to represent an existing bargaining unit, and

� employees may apply for decertification of the existing union.


THE “CHANGING WORKPLACES” CONSULTATIONS

� Public consultation process on labour and employment standards

� Upcoming public consultations will examine:

� The increase in non-standard working relationships such as temporary jobs, part-time work, and self-employment;

� The rising prominence of the service sector;

� Globalization and trade liberalization;

� Accelerating technological change; and

� Greater workplace diversity.


QUESTIONS?


THANK YOU!

Leslie FrattolinAssociate, Toronto

[email protected]

Brittany TaylorAssociate, Toronto

[email protected]

CAN: 18710105.6 DLA Piper (Canada) LLP | 1

THE FUTURE OF WORKPLACE LEGISLATION IN ONTARIO:

CHANGES TO THE EMPLOYMENT STANDARDS ACT, 2000 AND THE UPCOMING REVIEW

By Leslie Frattolin and Brittany Taylor1

Introduction

The past year has brought significant changes to Ontario’s workplace legislation. Ontario’s workplace,

and workforce, is ever-evolving: private sector services now account for more than half of employment in

Ontario, and non-standard employment (which includes part-time, temporary, self-employment and job

sharing) has grown almost twice as fast as standard employment since 1997.

To meet the changing nature of Ontario’s workplace, the provincial legislature introduced Bill 18, Stronger

Workplaces for a Stronger Economy Act, 2014 (the “Act”), which received Royal Assent on November 20,

2014. The new legislation amends a number of Ontario labour and employment statues, including the

Employment Standards Act, 2000 (the “ESA”), the Labour Relations Act, 1995 (the “LRA”), the

Occupational Health and Safety Act (the “OHSA”) and the Workplace Safety and Insurance Act, 1997

(the “WSIA”). Many of the amendments are significant and affect employers of all sizes and in all

industries. This paper will provide a brief overview of the changes and review of the changes still to come.

1. Revised Definition of “Worker” under the OHSA

Before the introduction of the Act, the OHSA defined the term “worker” as “a person who performs work or

supplies services for monetary compensation”. The Act amends the OHSA and expands the definition of

“worker” to include:

Individuals who are currently included as workers under the OHSA, that is, persons performing

work or supplying services for monetary compensation. This part of the definition retains the

current language in the OHSA.

High school students volunteering as part of a work experience program authorized by the school

board.

Persons performing work or supplying services without compensation as part of an approved

post-secondary program (i.e. co-op programs).

1 With special thanks to Jennifer Saville, Student-At-Law.


Persons receiving training but who are not considered employees under the ESA because they

fall within a specific exclusion set out in the ESA. This exclusion captures some unpaid

internships.

Such other persons as may be prescribed who perform work or supply services to an employer

for no monetary compensation.

This expanded definition extends the rights given to workers under the OHSA to students and other

unpaid workers, including the right to know about workplace hazards and the right to refuse unsafe work.

Employers who run internships or co-op programs at their workplace should ensure that they meet the

new requirements under the OHSA. For example, employers who are required to provide workplace

training to workers must ensure that this training is now given to co-op students and other unpaid

workers.

2. New Minimum Wage Requirements Under the ESA

The Act prescribes a new annual minimum wage review and links all future minimum wage increases

directly to the Consumer Price Index for Ontario as published by Statistics Canada. The minimum wage

rate will be announced in April of each year and will come into effect as of October 1st of that year. For

example, minimum wage in Ontario is currently set at $11.00 and will increase to $11.25 as of October

1st, 2015. Unless employees have jobs that are exempt from the minimum wage provisions under the

ESA, employers must pay their employees at least the minimum wage in Ontario.

Employers should be mindful to stay up to date with the yearly wage increases, if any, and ensure that

their employees are being paid accordingly. Employers who fail to do so may be subject to claims for

unpaid wages before the Ministry of Labour.

3. Changes to the Monetary Cap and Time Limits on Claims for Unpaid Wages

Under the ESA an employee is permitted to make a claim to the Ministry of Labour for unpaid wages.

Before the Act was introduced, the ESA prescribed a $10,000 cap on the recovery of unpaid wages

through orders to pay issued by the Ontario Ministry of Labour.

As of February 20, 2015, the $10,000 cap on the recovery of unpaid wages through orders to pay issued

by the Ontario Ministry of Labour was eliminated on a going forward basis. The cap will no longer apply

for wages that become due after February 20, 2015. However, the cap will remain in effect for wages that

became due before February 20, 2015.


In addition to removing the monetary cap on orders to pay wages, the period of time for which an

employee will be able to seek recovery of unpaid wages has been increased. As of February 20, 2015,

the time limit for filing claims under the ESA was increased from six months to two years.

The elimination of the $10,000 cap for unpaid wages claims and the ability to claim wages going back two

years significantly increases an employers’ exposure to claims for unpaid wages. The amendments may

result in an increase of unpaid wage claims and are likely to result in unpaid wage claims for higher

amounts. Employers should ensure that they maintain adequate employment records that they rely on in

the event that an employee brings a claim for unpaid wages to the Ministry of Labour.

4. New Compliance Measures

Currently, all Ontario employers are required to post the latest version of the “What You Should Know

About The Employment Standards Act” poster in at least one conspicuous location in the workplace, such

as in the staff lunchroom (the “ESA Poster”). The Act requires that as of May 20, 2015, all Ontario

employers must not only post the latest version of the ESA Poster, but provide a copy of the ESA Poster

to all current employees by June 20, 2015. Each newly hired employee must receive a copy of the ESA

Poster within the first 30 days of commencing employment.

In addition, effective May 20, 2015, employment standards officers will have the authority to order

employers to conduct comprehensive self-audits and to prepare a report to the employment standards

officer documenting any issues of non-compliance with the ESA.

5. New Requirements for Temporary Help Agencies and Employers

As of November 20, 2015, the Act will introduce new requirements for temporary help agencies and the

employers who utilize the services of temporary help agencies. Notably, both temporary help agencies

and employers will now be held jointly and severally liable under the ESA for certain employment

standards violations. These violations include the failure to pay temporary help agency workers regular

wages, overtime pay, public holiday pay and premium pay.

The Act also imposes new recordkeeping and record retention requirements under the ESA. Both

temporary help agencies and their employer clients are now required to record the number of hours

worked by each temporary health agency worker and retain these records for a period of three years.

In addition, the Act introduced a significant amendment to the WSIA which could result in certain

employers that use the services of temporary help agencies becoming responsible for the WSIB

premiums and related accident costs of an agency’s temporary workers. The Act amends Section 83 of


the WSIA by adding in a new subsection (4), which allows the Lieutenant Governor in Council to make

regulations dealing with workers of temporary help agencies and the employers that retain their services.

This includes the ability of the Lieutenant Governor in Council to make regulations:

giving the Workplace Safety and Insurance Board the power to:

o where a temporary help agency worker sustains an injury while performing work for the

employer, deem the total wages that are paid in the current year to the temporary help

agency worker by the temporary help agency for work performed for the employer to be

paid by the employer;

o attribute an injury suffered by a temporary help agency worker while performing work for

the employer and the accident costs arising from the injury to the employer;

o increase or decrease the amount of the employer’s premiums based upon the frequency

of work injuries or the accident costs or both; and

requiring that, where the temporary help agency worker sustains an injury while performing work

for the employer, the employer notify the Board of the injury.

As of the date of writing, Subsection 83(4) is not yet in force. Once Subsection 83(4) is in force, any

regulations made pursuant to this subsection would only impact employers who participate in an

experience and merit rating program under Section 83 of the WSIA.

6. Changes to the Construction Industry Provisions under the LRA

The labour laws under the LRA pertaining to the construction industry will also be affected by the Act.

Notably, the Act shortens the window from three months to two months in which a new union can displace

an existing union or in which employees may apply to decertify an existing union.

The Act provides for a two-month “open period” during which:

a trade union may apply to the Labour Relations Board for certification as bargaining agent of any

employees in a bargaining unit, and

employees may apply to the Labour Relations Board for a declaration that a trade union no longer

represents the employees in the bargaining unit.

These changes will become effective on May 20, 2015.


7. Upcoming Review of the ESA and the LRA

In February 2015 the Ontario government announced a public consultation process on labour and

employment standards – the “Changing Workplaces” consultations. This spring, Ontario will launch public

consultations to examine how the ESA and the LRA should be amended to meet the needs of Ontario’s

changing workplaces. The province has appointed two Special Advisors, C. Michael Mitchell and the

Honourable John C. Murray, to lead and coordinate upcoming public consultations to examine the

following workplace issues:

the increase in non-standard working relationships such as temporary jobs, part-time work, and

self-employment;

the rising prominence of the service sector;

globalization and trade liberalization;

accelerating technological change; and

greater workplace diversity.

The public consultations will include regional consultations, targeted stakeholder meetings and an

opportunity for employers and other stakeholders to provide written submissions. Following the

consultations, the advisors will provide the Ministry of Labour with a written report outlining conclusions

and recommendations.

Employers are encouraged to participate in these public consultations and review and provide

commentary on any consultation papers and recommendations that are published. Dates and locations of

the consultations will be posted on the Ministry of Labour’s website.

Conclusion

The evolving nature of Ontario’s workplaces has led to significant changes to workplace legislation in the

past year. Employers should ensure that their workplace policies are up-to-date with, and reflect, those

changes that are now in force. Going forward, employers should continue to monitor these changes and

may want to get involved with the ongoing Changing Workplaces consultations in order to help shape

Ontario’s workplace legislation.

BREAKING UP IS HARD TO DO:

THE REALITY OF POST-EMPLOYMENT OBLIGATIONS IN 2015

Presented by Karen Bock


Friday, May 8, 2015

POST-EMPLOYMENT OBLIGATIONS: Where are we in 2015?

� What are they?

� Why would you want them?

� What do you have to do to get them?

� How do you enforce them?

� How do you get around them?


WHAT ARE POST-EMPLOYMENT OBLIGATIONS?

� Typically, these are contractual obligations which an individual owes to a former employer

� aka “restrictive covenants” because they restrict what the former employee can do for a period of time after the employment has ended

� Most common post-employment obligations:

� confidentiality

� non-competition

� non-solicitation


WHY WOULD YOU WANT THEM?

� To protect your know-how, confidential information, client relationships, competitive advantages, etc.

� 2013 survey: Former employees breach confidentiality and non-disclosure agreements 47% of the time, taking company information before they leave!

� To prevent or hinder a competitor from benefiting after you have invested significant resources in attracting, hiring, and retaining your employees

� To prevent your employees from leveraging the relationships they have built (on your dime) with your clients, customers, contractors and employees by soliciting them on behalf of your competitors


WHAT DO YOU HAVE TO DO TO GET THEM?

� First, understand: As a matter of public policy, Canadian courts do NOT like to enforce post-employment obligations (except for confidentiality obligations)

� Shafron v. KRG Insurance Brokers (2009): the general rule is that restrictive covenants are contrary to public policy and therefore void (Supreme Court of Canada)

� In order to persuade a court to enforce a restrictive covenant, you have to be able to establish that the covenant is reasonable in all respects.


SO WHAT’S “REASONABLE”?

� The restrictive covenant must go no further than is necessary to protect the employer’s legitimate business interests.

� It must be reasonable in:

� duration

� geographic scope; and

� all other aspects, including scope of activity that is restricted.

� Over-reaching is fatal; better to have an enforceable covenant that covers less territory and is in effect for a shorter period of time than to have no protection at all.


SO WHAT’S “REASONABLE”?

� The covenant cannot unduly restrain the employee from using his/her skills to earn a living.

� The covenant cannot be ambiguous in any regard.

� “Greater Vancouver”… won’t work.

� Prohibition on engaging in any of the activities the former employer has interests in… won’t work.

� The former employee has to know EXACTLY what s/he can’t do.

� The courts won’t help: no judicial “fixing” of a covenant is allowed!


NON-COMPETE vs. NON-SOLICIT

� A non-compete covenant is almost NEVER enforceable.

� The smart money is on a non-solicit!


EMPLOYEE vs.SHAREHOLDER/OWNER

� A restrictive covenant entered into by an employee is less likely to meet the “reasonable” requirements.

� A restrictive covenant entered into as part of a sale of a business is more likely to be enforceable against the former owner or shareholder:

� Payette v. Guay Inc.


TIMING (AND CONSIDERATION) MAY BE EVERYTHING

� When can/should you seek a restrictive covenant from an employee?

� At the time of hiring?

� When a significant promotion is offered?

� At termination?

� To be enforceable, the employee must receive “consideration” in exchange for agreeing to the restrictive covenant,…

…and not just any consideration will do!

� And the employee must be given time to seek advice


WILL LINKEDIN BE THE DEATH OF RESTRICTIVE COVENANTS?

� Is an employee who updates her employer information on LinkedIn effectively soliciting clients / customers / employees of her former employer?

� maybe…

� Can you restrict what a former employee posts on his LinkedIn page?

� maybe…


ONCE YOU HAVE THEM, HOW DO YOU ENFORCE THEM?

� Stay Alert!� If you don’t act quickly once you are aware of a breach, an

otherwise enforceable covenant will become unenforceable.

� Send a demand letter to the former employee (and to his/her new employer

� Seek an injunction to prevent the former employee from continuing to breach the covenant

� Document everything:� losses you suffer because of the breach, both those that can be

quantified in money and especially those that can’t� costs of enforcement


WRONGFUL DISMISSAL AND ENFORCEABILITY

� If the employee is “wrongfully dismissed” the dismissal may invalidate an otherwise enforceable restrictive covenant

� in Québec, an employee who is terminated without “serious reason” is not bound by his/her restrictive covenant

� Alternatively, an employee who complies with a restrictive covenant (even if it was legally unenforceable) may be awarded a longer notice period in a wrongful dismissal action

� Take-home point?: If you want to enforce your restrictive covenants, Canadian courts expect you to pay for the privilege.


HOW DO YOU GET AROUND THEM?: THE OTHER SIDE OF THE COIN

What do you do if you want to hire an employee who is subject to a restrictive covenant?

� First: do your diligence! Make your offer of employment conditional on the employee confirming s/he isn’t subject to a restrictive covenant.

� If candidate is bound by a restrictive covenant, review it and determine whether it is likely to be enforceable or not (consult your lawyer!)


HOW DO YOU GET AROUND THEM?: THE OTHER SIDE OF THE COIN

� Develop a strategy in case the former employer seeks to enforce the covenant:

� can/should the employee seek permission from the former employer to take your job?

� will you continue to employ the employee?

� Risk of claim against you as the new employer:

� inducing breach of contract

� interference with contractual relations


ALTERNATIVES TO TRADITIONAL RESTRICTIVE COVENANTS

� If the employee is a fiduciary employee, consider whether a restrictive covenant is necessary

� Garden leave or consulting arrangement vs. termination

� Clawback or forfeiture of deferred compensation� Levinsky v. Toronto Dominion Bank

� Golden handcuff provisions� Woodward v. Stelco (Ontario)� Nortel Networks v. Jervis (Ontario)

� Repayment obligation� Rhebergen v. Crestron Veterinary Clinic (BC)


TIPS FOR EMPLOYERS

� Use restrictive covenants sparingly and only to protect identifiable and legitimate business interests

� Tailor the restrictive covenant to the individual and her actual activities

� Draft carefully! (Get legal advice…)

� Don’t overreach

� Review restrictive covenants before each promotion, change of job or increase in compensation, and update the covenant as appropriate

� Consider interaction between restrictive covenant and termination provision

� Consider alternatives to restrictive covenants


THANK YOU!

Karen BockPartner, Toronto416.365.3523

[email protected]



BREAKING UP IS HARD TO DO:

POST-EMPLOYMENT OBLIGATIONS IN 2015

By Karen R. Bock

In a perfect world, employees would never resign or have to be terminated. They would have long and

satisfying careers in which they remained productive and loyal to employers whose businesses would

always be successful.

In the imperfect world we all inhabit, however, employees do resign or are terminated, with or without

cause. In this imperfect world, employers quite reasonably worry about what employees will do after

employment ends with the knowledge they have gained working in the employer’s business. Employers

seek to protect their businesses by restricting what a former employee can do with the knowledge she

has gained during the course of her employment about the employer’s business, clients, customers and

employees.

Generally, employers try to use “restrictive covenants” to protect their interests. These restrictive

covenants can be part of an initial employment agreement or a separate agreement signed by the

employee before starting employment, during employment, or at the end of the employment relationship.

However, if restrictive covenants are not carefully drafted and tailored to the employer’s specific business

and the employee’s specific role in that business, they are not be worth the paper on which they are

written.

Restrictive covenants come in three basic varieties:

confidentiality agreements

non-solicitation agreements

non-competition agreements

A restrictive covenant prohibits an employee from doing something that would otherwise be lawful for the

employee to do.

A confidentiality agreement (also known as a “non-disclosure agreement”) restricts an employee or

former employee from using his former employer’s confidential information in the employee’s subsequent

employment.

A non-solicitation agreement restricts an employee from soliciting her former employer’s clients,

customers, distributors, suppliers and/or employees.


A non-competition agreement restricts an employee from competing with his former employer’s

business.

Courts are reluctant to enforce broadly-worded restrictive covenants that effectively prevent an employee

from working in the field or business in which the employee is trained and experienced. In order to

enforce a restrictive covenant, the court will analyze the covenant to determine whether it is reasonably

necessary in the circumstances to protect an employer’s legitimate business interests. And just as with

termination provisions, the court will look to see that the employee has received consideration for

agreeing to the restrictive covenants that will limit her abilities to engage in certain activities after her

employment ends. Therefore, ideally, restrictive covenant agreements should be signed by the employee

at the time the employee is hired, before the employee actually commences work. The employer may

also seek to include restrictive covenants as conditions to a promotion or significant increase in

compensation. Alternatively, an employer can seek to obtain the employee’s agreement to restrictive

covenants at the time of termination, as part of termination package.

1. Confidentiality Clause

Confidential information is information in which your business has a proprietary interest that the business

is entitled to protect. Generally, if the information is in the public domain or if it is information of which

your competitors are aware, it is not confidential and you are not entitled to protect it.

However, information that is not readily available to the public or your competitors, such as customer

records, marketing plans, business strategies, financial data, and trade secrets (for instance, recipes,

formulas, programs, designs, etc.), can constitute confidential information.

You are not entitled to protect an employee’s “know-how”, the skills, abilities and experience an employee

gains in the course of her employment.

You can protect your business’ confidential information by including carefully drafted non-disclosure

provisions in employment agreements, or by supplementing employment agreements with separate non-

disclosure agreements.

When drafting non-disclosure provisions or confidentiality agreements, you should ensure that

“Confidential information” is clearly and explicitly defined to include the kinds of information and trade

secrets crucial to your business.

1) Non-Solicitation Clause


A non-solicitation clause restricts an employee from communicating with the clients, customers,

distributors, suppliers and/or employees of her former employer in order to entice them to take their

business to her new employer.

In most cases, a carefully crafted non-solicitation clause provides sufficient protection for a former

employer while still permitting the employee to remain in his chosen line of work and use his knowledge,

skills and experience. Because non-solicitation clauses are narrower in scope than non-competition

clauses, they are more likely to survive legal challenges.

2) Non-Competition Clause

A non-competition clause restricts an employee from acting in any way that could constitute competition

with her former employer’s business interests. In essence, the employee is prevented from working in the

same line of business as her former employer for the duration of the non-competition period.

Canadian courts are extremely reluctant to enforce non-competition clauses, since they can have the

effect of forcing the employee to remain in the original employer’s employ in order to earn a living in her

chosen field. Non-competition clauses have little chance of being upheld except in the context of a sale

of a business or in rare circumstances where the nature of the former employer’s business indicates that

if the employee is permitted to compete, the former employer’s business will be seriously jeopardized.

Enforceability: The Basic Test

In Canada, our courts have made it clear that there is an important public interest in discouraging such

“restraints on trade”, and in maintaining free and open competition. However, our courts have also

recognized that there is an important public interest in permitting parties to make agreements and to hold

the parties to the terms of those agreements.

These two distinct public interests meet and clash in restrictive covenants in the employment context. A

non-solicitation clause, for instance, restrains an employee from soliciting trade from a client of his former

employer. At the same time, the employee knowingly agreed to and accepted the terms of that restraint.

In the face of these conflicting or competing public interests, our courts have developed a three part

enquiry to determine if a restrictive covenant is reasonable, and thus should be enforced.1

Step 1: Does the employer have a proprietary interest entitled to protection?

1 Elsley v. J.G. Collins Insurance Agencies, [1978] 2 S.C.R. 916 (S.C.C.)


Does the employer have a legitimate interest in confidential and proprietary information?

The employer is not entitled to restrain an employee’s right to use generic skills or

information gained through the employment relationship.

Does the employer have a legitimate interest in its clients, customers, suppliers,

distributors and/or employees, particularly where the departing employee’s relationships

with those clients, customers, suppliers, distributors and/or employees is of such a “close

and personal” nature that it is legitimate to expect that any solicitation by the departing

employee would be successful?

Does the departing employee, armed with the specialized skills and knowledge gained

through his employment with the employer, pose such a risk to the employer’s business

that a non-competition agreement is reasonable in the circumstances?

Step 2: Are the temporal or geographic features of the clause reasonable, or too broad?

Is the temporal dimension of the restrictive covenant reasonable to protect the employer’s

legitimate business interests?

Is the geographic dimension of the restrictive covenant reasonable to protect the

employer’s legitimate business interests?

Step 3: Is the covenant against competition generally, and not limited to prescribing solicitation of former clients of the former employer?

In general, a Canadian court will not enforce a non-competition clause if a non-solicitation clause would

adequately protect an employer’s interests.2

In Canada, it’s important to get the covenant “right”; unlike the courts in some jurisdictions in the United

States, Canadian courts won’t “fix” or “blue-pencil” a covenant that the court thinks is too broad or

ambiguous, even if the result is that an employer’s legitimate interests will be significantly damaged.

Alternatives to Traditional Restrictive Covenants

Given the difficulty of enforcing traditional non-competition and non-solicitation provisions, it is not

surprising that employers have developed other strategies for incenting employees to restrict their

activities post-employment.

Garden Leave

2 Lyons v. Multari, (2000), 7 C.C.E.L. (3D) 15 (Ont. C.A.)


One way to retain control over an employee’s activities after termination of employment is not to

terminate. During the garden leave, the employee remains employed by the employer and continues to

receive salary payments and benefits coverage but does not attend at work or provide any services to the

employer. A condition of the garden leave is that the employee cannot accept employment with another

employer or otherwise engage in activities that would breach his/her obligations of loyalty and good faith

to the employer.

Garden leave can apply to a resignation or a termination by the employer. In either case, the employee

must agree to the terms of the garden leave. Garden leave can result from a provision in an employee’s

employment agreement that requires the employee to provide a period of notice before the employee’s

resignation becomes effective. To be effective and enforceable as garden leave, the agreement should

provide the employer with the discretion to require the employee not to provide active services and be cut

off from access to information and the company’s systems during the resignation notice period.

While garden leave can be a very effective way to restrict an employee from competing with or soliciting

the clients or employees of the current employer, it can also be costly, since the employee continues to

receive full salary and benefits during the garden leave/resignation notice period.

Although there is not much case law on the enforceability of garden leave provisions, the Ontario

Superior Court has recently enforced a six-month garden leave provision without going into the public

policy considerations that are usually considered when an employer tries to enforce a traditional

restrictive covenant.3

Consulting Relationship

In appropriate circumstances, an employer may offer a departing employee a consulting arrangement that

takes effect when the employee’s employment ends as a way to transition the employee out of the

business while keeping the employee from accepting work with a competitor. The consulting

arrangement should contain provisions that prevent the consultant from competing with the employer or

offering services to competitors of the employer. If the consulting agreement is properly drafted, the

employer may have no obligation to require the former employee to provide actual services to the

employer. However, the former employee is unlikely to agree to the consulting agreement unless there is

a guarantee of payment to the consultant whether or not services are provided.

As with any consulting agreement, the employer will want to ensure that the consultant is actually an

independent contractor, and not simply an employee who is being called a “consultant”.

3 Blackberry Limited v. Marineau-Mes, 2014 ONSC 1790


Clawback or Forfeiture of Deferred Compensation

A long term incentive plan can include provisions which result in the clawback or forfeiture of awards

under the plan if the employee works for a competitor during a specified period following the termination

of employment.4

Golden Handcuffs

Woodward v. Stelco (Ontario)5

Woodward was employed by Stelco beginning in 1959. In 1986, he was offered and signed a

“Retirement Benefits Contract” which stipulated if and when Woodward retired, Stelco would pay him a

special retirement benefit in consideration for his agreement not to compete with Stelco or work with a

competitor. When Woodward breached his covenant not to compete, Stelco ceased payment of the

special retirement benefit. Woodward sued.

The Ontario Court found that the Retirement Benefits Contract was not a “restrictive covenant”. It did not

prevent Woodward from engaging in conduct that was competitive with Stelco. Rather, the Contract

stated that if Woodward competed without Stelco’s consent he would forfeit the otherwise lifetime monthly

retirement benefit.

Nortel Networks v. Jervis (Ontario)6

In this case, Nortel included a post-employment non-competition provision in a stock option plan. Jervis

agreed that if he competed with Nortel within one year of executing options, he would have to repay

Nortel any profit he made on the exercise of those options. As in the Stelco case, the Court found that

this was not a “restrictive covenant” that prohibited Jervis from competing; it simply exacted a price from

Jervis if he chose to compete. The Court held that where a former employee is required to forego a

benefit if he or she chooses to compete, that is not a restraint of trade.

Rhebergen v. Crestron Veterinary Clinic (BC)7

Rhebergen was a recently credentialed veterinarian who entered into an employment agreement with an

establish vet who had a practice among dairy farms in an area where there were very few vets. The

employment agreement contained an unusual non-competition clause: if Rhebergen set up a veterinary

4 Levinsky v. The Toronto-Dominion Bank, 2013 ONSC 5657

5 Woodward v. Stelco Inc. 1998 CanLII 17686 (ON CA).

6 Nortel Networks Corp. v. Jervis [2001] OJ No. 12 (ON SC)

7 Rhebergen v. Creston Veterinary Clinic Ltd., 2014 BCCA 97 (BC CA).


practice within 25 miles of the Creston Veterinary Clinic she would have to pay Creston a certain amount

depending on when she set up that practice.

After 14 months of working for Creston, Rhebergen told Creston that she intended to quit and set up her

own vet business in the same town. Under the terms of her employment contract, she had agreed not to

terminate the employment agreement for 3 years, so Creston terminated her employment for cause.

Ultimately, the BC Court of Appeal took a different approach from the Ontario courts in the Stelco and

Nortel cases. The BC Court of Appeal held that the non-competition clause in Rhebergen’s employment

agreement was a restraint of trade. However the Court also held that the clause was enforceable against

Rhebergen: it was neither ambiguous nor unreasonable in the circumstances.

Restrictive Covenants: Other Recent Cases of Interest and Lessons for Employers

1. Enforceability of Restrictive Covenants in Ontario: H.L. Staebler Company v. Allan8

Mr. Allan and Mr. Kienapple worked for H.L. Staebler Company in Ontario as commercial insurance

salesmen. Their employment agreements contained restrictive covenants which stated that for two years

after the termination of employment, they would not “conduct business” with any of Staebler’s clients or

customers who Allan and Kienapple handled or services at the date of termination.

Allan and Kienapple resigned and almost immediately began to work for a competitor of Staebler,

Stevenson & Hunt Insurance Brokers. On behalf of Stevenson & Hunt, they solicited clients they had

serviced at Staebler. Staebler sued to enforce the restrictive covenants, and brought a motion for an

injunction to prevent Allan and Kienapple from soliciting Staebler’s clients on behalf of their new

employer. By the time Staebler managed to get the injunction, 118 clients of Staeblers had transferred

their business to Stevenson & Hunt.

At trial, the employer was successful…

The trial judge held that the restrictive covenant in issue was reasonable in scope and duration, and was

no more restrictive than was reasonably necessary to protect Staebler’s business interests. The trial

judge found that the restrictive covenant was a “hybrid” clause, a combination of a non-solicitation and

non-competition clause. While it did prevent Allan and Kienapple from “conducting business” and not just

soliciting, it did not prevent Allan and Kienapple from contacting Staebler clients whom they had not

handled or serviced at Staebler.

8 H. L. Staebler Company Ltd. v. Allan (2008) 92 O.R. (3rd) 107. No. 399 (Ont. C.A.)


The trial judge ordered that Allan, Kienapple and Stevenson & Hunt pay Staebler damages in the amount

of almost $2 million.

But at the Court of Appeal, the employer lost…

The Ontario Court of Appeal rejected the notion of a “hybrid” restrictive covenant, and found that the

restrictive covenant Allan and Kienapple signed was a non-competition clause. It had no geographical

limit and contained no limit on the type of “business” which Allan and Kienapple were prohibited from

conducting. The absence of a geographical limit combined with the blanket prohibition on conducting

business rendered the restrictive covenant overly broad and unenforceable.

In reaching its decision, the Court of Appeal took into account the nature of the positions Allan and

Kienapple held with Staebler. They were two of ten commercial insurance salespeople working for

Staebler, and did not play an exceptional role in the business. They were not managers, directors or key

employees, and were not fiduciaries in relation to Staebler. Although they had close personal

relationships with their clients, this was common in the industry. The Court of Appeal also took note of

the fact that other Staebler salespeople were subject to much less broad restrictive covenants. In sum,

the Court of Appeal concluded that a suitably restricted non-solicitation clause would have been

reasonable in all the circumstances.

Although Staebler appealed the Court of Appeal’s decision to the Supreme Court of Canada, the

Supreme Court dismissed the appeal without a hearing.

The Lesson for Employers

Don’t overreach: don’t use a non-competition clause when a non-solicitation clause is

enough.

Recognize that a non-solicitation clause is almost always enough in the eyes of a court.

Make sure to include both a time-limit for the restrictive covenant, and a geographic

scope. Where a geographic scope is difficult to specify (for instance, because business

is conducted electronically and/or remotely), the restrictive covenant should state this

explicitly.

Include specific and express language directed at the employer’s and the individual

employee’s circumstances. Include express justifications of any “exceptional

circumstances” and an acknowledgement by the employee in relation to those

circumstances that a breach of the restrictive covenant will cause severe harm to the

employer, requiring a specified from of remedy within a delineated period of time.


3) Don’t Look to the Court to Fix Your Mistakes: Shafron v. KRG Insurance Brokers (Western) Inc.

9

Morley Shafron sold his insurance agency to KRG Insurance Brokers Inc., and joined KRG as a broker in

Vancouver. In 1988, Shafron entered into an employment agreement with KRG which included a non-

competition clause. The non-competition clause prohibited Shafron from being involved in the business

of insurance brokerage in the “Metropolitan City of Vancouver” for a period of 3 years after the termination

of his employment with KRG for any reason except termination by KRG without cause. Over the next 14

years, Shafron’s employment agreement was renewed on numerous occasions, but the non-competition

clause remained essentially unchanged.

In 2001, Shafron left to KRG to work for another insurance company at an office in Richmond, B.C. A

significant number of Shafron’s clients followed him from KRG to his new employer.

KRG sued Shafron to enforce the non-competition agreement. KRG also argued that Shafron had

breached his fiduciary duty to KRG and his duty of confidentiality to KRG.

At trial, Shafron was successful…

The trial judge found that Shafron was not a director, senior manager or a “key employee” of KRG and

therefore owed no fiduciary duties or obligations to KRG. The trial judge also found that there was no

evidence that Shafron had breached any duty related to confidential information.

When it came to the non-competition clause, the trial judge found that it was unenforceable because,

among other things, the area defined within the restrictive covenant was neither clear not certain. As a

result of this ambiguity, the non-competition clause was unreasonable. In coming to this conclusion, the

judge started from the proposition that there was no legal or judicial definition of the phrase “Metropolitan

City of Vancouver”. The trial judge also found that the area covered by this phrase, whatever it meant,

was wider than necessary to protect KRG’s legitimate interests. Finally, the judge held that, at 3 years,

the temporal length of the restrictive covenant far exceeded what was reasonably necessary to protect

KRG’s reasonable interests.

KRG found help from the B.C. Court of Appeal, but…

The B.C. Court of Appeal did not disagree with the trial judge that the phrase “Metropolitan City of

Vancouver” was unclear and ambiguous. However, the Court of Appeal was prepared to try to “fix” that

ambiguity by applying the doctrine of “notional severance”. In essence, the Court of Appeal “read down”

the ambiguous phrase at issue to make it unambiguous and thus enforceable. The Court of Appeal

9 Shafron v. KRG Insurance Brokers (Western) Inc. [2009] S.C.J. No. 6 (S.C.C.)


decided that the phrase “Metropolitan City of Vancouver” must have been intended to mean the City of

Vancouver and something more. The Court of Appeal considered whether the phrase should mean “the

Greater Vancouver Regional District”, but decided that this definition would give the non-competition

clause an unreasonable reach. A reasonable interpretation was to construe the phrase to include the City

of Vancouver and the municipalities directly contiguous to it, including Richmond, the University of British

Columbia endowment lands and Burnaby.

The B.C. Court of Appeal then referred the case back to the B.C. Supreme Court for an assessment of

damages owing to KRG based on the 3-year restrictive covenant to which Shafron had agreed.

And finally the Supreme Court of Canada had its say…

The Supreme Court upheld Shafron’s appeal of the B.C. Court of Appeal’s decision.

The Supreme Court unanimously confirmed that in order for a restrictive covenant to be enforceable, it

had to be unambiguous.

The Supreme Court also made it very clear that parties could not look to the courts to “fix” ambiguous

terms in their restrictive covenants. The doctrine of “notional severance”, the Supreme Court indicated,

has no place in the interpretation of restrictive covenants in employment contracts. There was no

evidence that KRG and Shafron would have agreed unquestioningly to the geographic scope at which the

B.C. Court of Appeal had arrived in “reading down” the phrase “Metropolitan City of Vancouver”.

According to the Supreme Court, applying the doctrine of notional severance to terms of a restrictive

covenant in an employment agreement simply amounts to a court rewriting the covenant in a manner the

court finds reasonable. It is the responsibility of employers, not the courts, to draft reasonable restrictive

covenants. Employers should not be encouraged to draft overly broad restrictive covenants, secure in

the knowledge that the court will sever the unreasonable parts or read down the covenant to what the

court considers reasonable. The Supreme Court stated:

“The restrictive covenant is sought by the employer. The obligation is on the employee.

Having regard to the generally accepted imbalance of power between employers and

employees, to introduce the doctrine of notional severance to read down an

unreasonable restrictive covenant to what is reasonable provides no inducement to an

employer to ensure the reasonableness of the covenant and inappropriately increases

the risk that the employee will be forced to abide by an unreasonable covenant.” (para

41.)


In the case of Shafron’s non-competition clause, the Supreme Court also refused to apply the principle of

“blue-pencil severance”, or removing part of a contractual provision, to delete the word “Metropolitan”

from the phrase “Metropolitan City of Vancouver”. The Court stated that there was “no evidence that the

parties would have ‘unquestionably’ agreed to remove the work “Metropolitan” without varying any other

terms of the contract or otherwise changing the bargain” they had made (para. 50).

The Supreme Court upheld Shafron’s appeal, and the restrictive covenant which had been part of

Shafron’s employment agreement with KRG for 13 years was of no force or effect. Shafron is free to

compete with KRG.

The Lesson for Employers:

Make sure that all the terms of your restrictive covenants are clear and unambiguous:

o use legally recognized terms, like municipalities, regions, counties or provinces,

to define geographic scope; and

o be duly diligent and check that the terms of existing restrictive covenants remain

current and clear (if the legal terms for a geographic area change, consider

updating the restrictive covenant accordingly the next time you offer the

employee fresh “consideration” in the form of a salary raise or other

compensation).

Include an express “severability” provision in your restrictive covenants, which allows a

court to “sever” distinct provisions which are found to be unenforceable.10

And once again, don’t overreach: the court will not “fix” a restrictive covenant that the

court finds applies for too long a period of time to be reasonable, or a geographic area

that is larger than necessary to protect an employer’s interests. It’s better to have an

enforceable non-solicitation clause that lasts for at least 6 months, than reach for a 12-

month clause that in the end provides no protection at all.

4) Can You Get By Without Restrictive Covenants?: RBC Dominion Securities Inc. v. Merrill Lynch Canada Inc.

11

10

A “severability” provision states that certain identified clauses in an agreement are each separate and distinct covenants, severable one from the other, and that if any such covenant or covenants is determined to be invalid or unenforceable, such invalidity and unenforceability attaches only to the invalid or unenforceable covenant or covenants, while all the other covenants that form part of the agreement continue in full force and effect. 11

RBC Dominion Securities Inc. v. Merrill Lynch Canada Inc. [2008] S.C.J. No. 56 (S.C.C.)


RBC Dominion Securities Inc. and Merrill Lynch Canada Inc. are competitors in the investment brokerage

business, and both had offices in the city of Cranbrook, B.C. In November of 2000, virtually all of the

investment advisers at RBC in Cranbrook, including the branch manager, Don Delamont, left to go work

for Merrill Lynch, leaving only two very junior investment advisors and two administrative staff at RBC’s

office.

The departing employees gave RBC no notice of their resignation. In addition, during the weeks before

they left, the departing employees surreptitiously copied RBC’s client records and transferred them to

Merrill Lynch. As a result of the departure of the employees, RBC’s Cranbook office all but collapsed,

and was able to retain only 15% of its previous clients.

The departing employees were not subject to any restrictive covenants.

RBC sued Merrill Lynch and the former RBC employees, claiming compensatory, punitive and exemplary

damages on the following grounds:

against the former employees:

o breach of fiduciary duty,

o breach of an implied contractual term of employment not to compete unfairly

upon leaving RBC’s employ;

o breach of an implied contractual term of employment to give reasonable notice of

resignation; and

o misuse of confidential information.

against Merrill Lynch and its Cranbrook manager:

o breach of duty in tort for inducing RBC’s employees to terminate their contracts

of employment without notice and to breach their contractual obligations not to

compete unfairly;

against all the defendants: actions in tort for conspiracy and conversion (the latter relating

to the removal of documents known to be the property of RBC).

At Trial, RBC was successful…

The trial judge held that the former RBC employees were not fiduciaries of RBC, and thus did not owe a

duty of loyalty as fiduciaries to RBC. However, the trial judge also held that the employment contracts of


the former RBC employees did have implied terms which required reasonable notice of resignation and

which prohibited unfair competition with RBC after the termination of employment. In relation to

Delamont, RBC’s former branch manager, the trial judge found that Delamont had breached his

contractual duty by coordinating the departure of the employees who left and by failing to inform RBC

management of the impending departure of the employees.

The trial judge determined that the appropriate period of notice the former employees should have given

RBC was 2.5 weeks, and ordered the former employees to pay RBC an aggregate amount of $40,000.

The trial judge also held that all of the defendants had competed unfairly with RBC and were thus liable

for RBC’s loss of profits, including future loss of profits that occurred after the 2.5 week notice period

ended. The defendants were ordered to pay compensatory damages of $225,000 with respect to this

unfair competition.

In addition, the trial judge ordered the defendants to pay RBC $330,000 in punitive damages for the

conversion of RBC’s client records.

The largest award of damages was made against Delamont personally. He was ordered to pay almost

$1.5 million, based on five years of lost business and the collapsed operations of the Cranbrook branch.

The trial judge found that the branch manager had an implied contractual duty of good faith towards his

employer which included retaining his employer’s employees.

At the B.C. Court of Appeal, the damages owing to RBC were reduced…

The B.C. Court of Appeal quashed the damages for unfair competition and the $1.5 million award against

the former RBC branch manager.

The Court of Appeal explained that in the absence of a contractual non-competition clause, fiduciary duty

or misuse of confidential information, an employee has no duty not to compete with a former employer.

RBC’s employees had the right to consider other offers of employment while still employed with RBC, and

were allowed to prepare for their departure by contacting clients and even preparing client lists which they

take with them to their new employers.

However, the Court of Appeal agreed that the former employees did breach an implied term in their

employment contracts when they took RBC’s client records and gave them to Merrill Lynch. The Court of

Appeal also noted that Delamont was not a fiduciary, and was thus not distinguishable from the other

former RBC employees in terms of the duties owed to his employer. As a result, the Court of Appeal

overturned the $1.5 million dollar award against the former branch manager.


The Court of Appeal also agreed that the former employees breached their obligation to provide

reasonable notice of their resignation, and awarded RBC damages for lost profits during that 2.5 week

period. RBC was also awarded punitive damages for the conversion of RBC’s client records. In the end,

the damage award against the defendants was reduced from $2 million to a about $370,000.

At the Supreme Court of Canada, Delamont did not fare as well,…

The majority of the Supreme Court agreed with the B.C. Court of Appeal that the former RBC employees

were not subject to an implied term of employment that they would not engage in “unfair competition”. In

the absence of a non-competition agreement or a non-solictitation agreement, the former employees

were free to compete with RBC and solicit RBC’s clients.

The $1.5 million award against Don Delamont, the former branch manager, however, was reinstated by

the Supreme Court. By organizing the mass defection of the other employees from the Cranbrook branch

he managed, Delamont breached an implied duty of good faith to his employer. By his own admission,

Delamont’s duties as branch manager included recruiting and retaining investment advisors. In

organizing the departure of the RBC investment advisors, Delamont had breached that duty.

With respect to the other former employees, the Supreme Court agreed with the Court of Appeal that

RBC was only entitled to damages for lost profits for the 2.5 week notice of resignation period.

The Lesson for Employers:

In the absence of an enforceable restrictive covenant prohibiting competition and/or

solicitation, a non-fiduciary employee is free to compete with her former employer or to

solicit clients of her former employer.

Employees have an obligation to give notice of resignation, although in most cases such

notice will be brief, and employers can claim damages against employees who fail to

provide notice. Therefore, consider including a term in the employment agreement

specifying the required notice for resignation.

Employees owe an implied duty of confidentiality to their employers. However, this duty

does not extend to the identity of clients, or to client lists created by the employee,

particularly in businesses like investment advising where continuity of contact is part of

the service clients expect and require. If you want to protect such information, require the

employee to sign a confidentiality agreement that expressly defines “confidential

information”.


Orchestrating a group of employees to leave their employer may breach an implied term

of an employee’s employment agreement, even if the employee is not a fiduciary, if the

consequences are devastating to the employer.

Conclusion

As these cases demonstrate, the common law provides some protection to an employer with respect to

the activities of a former employee, at least when that former employee breaches his duty of good faith in

particularly egregious ways. However, all levels of court in RBC Dominion Securities clearly confirmed

that a non-fiduciary employee is not restricted from competing with her former employer or from soliciting

her former employer’s clients.

In short, the best way to protect your business from former employees is to require the employee to agree

to clear, unambiguous and reasonable restrictive covenants. When crafting such restrictive covenants, it

is crucial to remember that one size does not fit all. In order to meet the “reasonable” test, restrictive

covenants must be tailored to fit the employer’s business and the employee’s role in that business. As

the Shafron case demonstrates, you only get one chance to get it right, and getting it wrong means losing

all the protection the restrictive covenant was intended to provide.

FAMILY STATUS DISCRIMINATION:

OR THE RIGHT TO LEAVE

WORK EARLY TO TAKE

YOUR KID TO HOCKEY

PRACTICE

Presented by Karen Bock and Richard Press


Friday, May 8, 2015

OVERVIEW

1. What is “family status”?

2. What is family status discrimination?

3. Implications for employers

4. Take away thoughts


WHAT IS FAMILY STATUS?

� In Ontario:

“family status” means the status of being in a parent and child relationship

� In Alberta:

“family status” means the status of being related to another person by blood, marriage or adoption

� In B.C. and Federally:

No definition. May extend to family connections between siblings, in-laws, uncles or aunts, brothers and sisters, nephews or nieces, and cousins.


WHAT IS FAMILY STATUS?

� Includes nature of the relationship and specific identity of family members.

� Nature of relationship:

�For example, employee is a single mother.

� Specific identity:�For example, employee’s child becomes notorious.


WHAT IS FAMILY STATUS

DISCRIMINATION?

� The law is in flux.

� Older view: No discrimination unless a substantial obligation impacted

�No family status right if need extra 30 minutes to pick up children from school

�Unless, children are disabled or it is a special school

� Newer view: Any parental obligation triggers family status obligations

� Family status right if need extra 30 minutes to pick up children from school



DISCRIMINATION?

Older view:

Health Sciences Assn. of B.C. v. Campbell River and North Island Transition Society (2004, BCCA)

“prima facie case of discrimination is made out when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of the employee.”

� Requires complainants to prove family responsibilities to be extraordinary or unusual.



DISCRIMINATION?

� Campbell River is seen by academic commentators as:

�Treating family status as secondary to other protected grounds of discrimination

�Setting too high a burden on complainants

�Too restrictive

� Campbell River has not been followed in other jurisdictions - (including Ontario).



DISCRIMINATION?

Newer view

Canadian National Railway Co. v. Seeley 2014 FCA 111

Johnstone v. Canada (Border Services) 2014 FCA 110

�Federal Court of Appeal rejects Campbell River.

�Creates a four part test to determine if family status discrimination



DISCRIMINATION?

� The four part test:

1. Employee must have a parental obligation to a child.

2. Employee’s obligation must engage legal responsibilities to child (as opposed to a personal choice).

3. Employee must have made reasonable efforts to meet childcare obligations through reasonable alternative solutions.

4. Workplace rule causes more than trivial or insubstantial interference with employee’s childcare obligations



DISCRIMINATION?

�Factual Background:

�Both Seeley and Johnstone involved employers refusing to accommodate mothers who requested relief from work schedule or assignment that interfered with childcare obligations.

�Both cases involved usual childcare obligations (eg. neither employees’ child was disabled or special needs)



DISCRIMINATION?

� Policy rationale:

� Test for finding prima facie family status discrimination should be substantially the same as for other enumerated grounds in human rights legislation

� Human rights law protects “needs” (not “preferences”) and an individual’s “immutable or constructively immutable characteristics”

� Types of childcare obligations contemplated by “family status” must have an immutable or constructively immutable characteristic



DISCRIMINATION?

� Limits to Seeley and Johnstone:

� Childcare obligations at issue are those which a parent cannot neglect without engaging legal liability

� Voluntary family activities, such as family trips and participation in extracurricular sports, do not have this immutable characteristic, since they result from parental choices rather than parental obligations


IMPLICATIONS FOR EMPLOYERS

� Bob’s daughters have a hockey tournament out of town.

� To get there on time he needs to leave work at 4:00 pm

� His shift ends at 5:00 pm.

� He has to drive them because his spouse is working.

� You need Bob to help with some reports, but likely you could get those done tomorrow.

Can you refuse Bob’s request to leave work early?



� Doug’s daughter complains that at the Christmas party your CEO sexually harassed her.

� Doug is not a good worker, but he has been with the company for 26 years and is four years away from retiring with a full pension.

� You investigate and find there is no basis for the allegations.

� The CEO is outraged and says the company must fire Doug.

Is firing Doug discrimination?



� This summer there is room to hire 20 students. These are coveted positions.

� Your employees ask if you would agree to give their kids preference in hiring.

� There is no business reason not to give the kids of your employees preference.

Can you provide the children of your employees preference in hiring?

Can you create a quota for employee children and another for everyone else?



� Your company has a strict no nepotism policy. You will not hire relatives of employees.

� An employee’s son applies for a position.

� He is a good candidate, but the position for which he applied has his father as his supervisor.

Can you refuse to hire the son?



� Jane has been working the same schedule for eight years.

� Jane says she needs a schedule change because she has to look after her mother who is beginning to suffer from dementia.

� Jane says she does not know what her new hours will be as her mother’s needs change daily.

� Jane says that she will report to work when she can.

How do you handle this?



� Gus runs a not-for-profit as his personal piggy bank.

� Gus’ two daughters work for the not-for-profit.

� One month before the annual meeting, Gus gives both his daughters a 25% raise. The other employees get 5%.

� A new board comes in and Gus is removed.

� You are hired to clean up the mess left behind.

Can you reverse the 25% raise Gus gave to his daughters?


TAKE AWAY THOUGHTS

� Employers

�Should consider carefully employee requests for accommodation on basis of family status

�Need to continue to adapt to changing family-based needs of employees

�Cannot ignore employees’ competing duties to their families

�Should be reasonable and flexible in deciding whether to approve or deny requests (or suggest another alternative)

� If applicable, must determine what accommodation measures may be possible without “undue hardship”


THANK YOU!

Richard PressPartner, Vancouver

[email protected]


Karen BockPartner, Toronto

[email protected]

CROSS COUNTRY CHECK-UP

BRITISH COLUMBIA UPDATE

Doing Things Differently Since 1871

Presented by Richard Press


Friday, May 8, 2015

DOUBLE DIPPING

� Are short/long term disability benefits deductible from pay in lieu of notice - the legacy of Waterman

� Morris v. ACL Services Ltd., 2014 BCSC 1580

� Gill v. Williams Lake and District Credit Union 2014 BCSC


WHAT YOU DON’T KNOW…..

� New Policy Guidelines for Police Information Checks in British Columbia

� In the past, common for police information checks to include:

� information about mental health issues

� information about “adverse police contact”

3

� Now differentiate between police information checks related to people who are applying to work or volunteer with “vulnerable” persons as opposed to prospective employees who are not.


YOU CAN TEACH AN OLD DOG NEW TRICKS

� BC Teacher’s Federation v. British Columbia

� Legislation removing ability of teachers to bargain class size and composition


SPOT THE EMPLOYEE

� McCormick v. Fasken Martineau DuMoulin

� Guess who’s not an employee after all!


THANK YOU!

Richard PressPartner, Vancouver

[email protected]


CROSS COUNTRY CHECK UP

WESTERN UPDATE

Presented by Wendy-Anne BerkenboschToronto Employment and Labour Law Conference

Friday, May 8, 2015

SPORTS AND SHOPPING

� Connor McDavid

� Our very first Nordstrom (sadly, it’s in Calgary)


ALBERTA PROVINCIAL ELECTION

� Progressive Conservative government since 1971

� Provincial election held on May 5

� And the winner is ?????


LEGAL UPDATE: HUMAN RIGHTS

� Employee received termination notice with offer of 2 weeks’ severance pay

� Termination notice required acceptance of offer as “full and final settlement of any and all claims for compensa tion with respect to the termination of your employment”

� Did employee waive right to file human rights complaint?


LEGAL UPDATE: FAMILY STATUS

� Employer refused to place employee on straight day shifts

� Mere fact of having family or experiencing change in family status does not give rise to special entitlements; employee must establish threshold discrimination

� Employer rule imposed burden on employee not suffered by other employees who did not share her family status

� No proof of undue hardship


LEGAL UPDATE: EMPLOYMENT STANDARDS

� “Greater benefits” clause

� Employer had policy requiring employees to use vacation time rather than banked overtime

� Application of policy prevented employees from taking vacation in one unbroken period, which violates ESC

� “Basket of benefits” approach cannot be applied to extinguish rights under ESC


THANK YOU!

Wendy-Anne BerkenboschPartner, Edmonton

[email protected]


ONTARIO UPDATE

RECENT DEVELOPMENTS ON THE HOME FRONT

Presented by Brittany Taylor

Toronto Employment & Labour Law Conference

Friday, May 8, 2015

Legislative Changes

� Bill 18 - Stronger Workplaces for a Stronger Economy Act, 2014

� The Accessibility for Ontarians with Disabilities Act, 2005

� As of January 1, 2015

� Accessible feedback process� Training� Accessible Websites

� As of January 1, 2016� Accessible formats and communication supports� All remaining requirements under the Employment Standards


CASES OF INTEREST

1) Directors Imprisoned for Violation of OHSA

� New Mex Canada Inc. - Two directors plead guilty to charges under the OHSA and received 25 days jail time after safety violations led to the death of a warehouse worker

� Employer fined $250,000 + 25% victim fine surcharge

2) Termination Provision in Employment Contract Void

� Termination provision in employment contract provided that employee entitled to “minimum period of notice prescribed by applicable legislation, or by being paid salary in lieu of such notice”

� Did not specifically provide for continuation of benefits

� Termination provision offended the ESA - employee entitled to common law reasonable notice

Miller v ABM Canada Inc, 2014 ONSC 4062


CASES OF INTEREST

3) Class Action Brought by Former Employees Certified

� 521 call centre employees sought to certify a class action against their employer, IQT, Ltd.� 242 of the former employees had already filed complaints with the Ministry of

Labour

� 140 former employees did not file complaints, but were assessed by the Ministry of Labour

� 139 employees did not file complaints or were not the beneficiaries of Ministry of Labour orders to pay

� Those employees who did file complaints were precluded from advancing a claim for wrongful dismissal, but could pursue other claims (negligence, conspiracy, etc.)

� Those employees who did not file complaints but were assessed by the Ministry of Labour were not precluded from advancing a claim for wrongful dismissal

Brigaitis v IQT, Ltd c.o.b. as IQT Solutions, 2014 ONSC 7DLA Piper (Canada) LLP 4

THANK YOU!

Brittany TaylorAssociate, Toronto

[email protected]


QUEBEC UPDATE:

RECENT DEVELOPMENTS FROM LA BELLE PROVINCE

Presented by Pablo Guzman

Employment and Labour Law Conference Toronto

Friday, May 8, 2015

Jurisprudence

Québec (Commission des normes du travail) v. Asphalte Desjardins inc., 2014 SCC 51 (CanLII)

� This is a decision of the Supreme Court of Canada that clarifies the obligations of Québec employers in the context of employee resignations.

� Daniel Guay was a project manager for Asphalte Desjardins inc., a paving company.

� His job involved access to confidential information such as price lists and the details of the company’s tenders for government contracts.



� Guay was employed intermittently by Asphalte Desjardins from 1994 to 2008.

� On Friday, February 15, 2008, Guay provided his employer with his letter of resignation as he had been offered a position with a competitor.

� The letter specified that he intended to terminate his contract of employment in three weeks’ time on March 7, 2008.



� Management was unable to convince Guay to remain with the company.

� His contract was terminated by the employer on February 18, 2008.

� The date announced in his termination letter was March 7, 2008.

� Guay therefore claimed an indemnity equivalent to the remainder of the three week notice period stipulated in his letter of resignation.



� The Supreme Court maintained that employers are not permitted to renounce the notice period provided by an employee without compensating the employee.

� In cases like that of Guay, where an employer does not wish the employee to work during the notice period, the employer will be required to provide notice of termination or pay in lieu thereof.



Key points to retain from this decision:

� The notice period stipulated by the employee cannot be unilaterally imposed on the employer.

� The employer may deny the employee access to the workplace, but will be required to provide notice of termination or pay in lieu thereof.

� An employer is not required to provide notice where an employee resigns without notice and merely offers to continue working for a period of time.


Commission des normes du travail v. Compagnie d'assurances Standard Life du Canada, 2014 QCCQ 4523 (CanLII)

� The Commission des normes du travail (CNT) claimed, on behalf of an employee, a sum of $2301 for unpaid vacation.

� The employer argued that compensation, pursuant to articles 1672 and following of the Civil Code of Quebec, should be effectedbetween the sum of $2301 and the amount owing to the employer for salary advances due under a repayment agreement.

� The CNT maintained that the employer’s cross-demand should have been filed in a separate court file.


Commission des normes du travail v. Compagnie d'assurances Standard Life du Canada, 2014 QCCQ 4523 (CanLII)

� According to the Court of Quebec, compensation is permitted in thiscase since:

� The defense of legal compensation has been recognizedrepeatedly by Quebec courts.

� Quebec’s An Act Respecting Labour Standards permitsdeductions from an employee’s wages if the employee consentsthereto in writing (art. 49 para. 2).

� The employee had consented to a deduction under the repaymentagreement.


Legislation

� Bill no 42 : An Act to group the Commission de l’équité salariale, the Commission des normes du travail and the Commission de la santé et de la sécurité du travail and to establish the Administrative Labour Tribunal

� Sponsor: Sam Hamad, Minister of Labour, Employment and Social Solidarity

� Presented at the 41st Legislature, 1st Session (Sitting held on April 15, 2015)


� The bill “groups the activities” of the Commission de l’équité salariale (CES), Commission des normes du travail (CNT), and the Commission de la santé et de la sécurité du travail (CSST).

� It renames the CSST the Commission des droits, de la santé et de la sécurité du travail (CDSST).

� It establishes the Administrative Labour Tribunal (ALT), which willassume the responsibilities of the Commission des lésions professionnelles (CLP) and the Commission des relations du travail(CRT).

� The ALT will sit in four divisions:

� the labour relations division;

� the occupational health and safety division;

� the essential services division; and

� the construction industry and occupational qualification division.


Take Note!

2015 Audit Program of the Commission de l’équité salariale(CES)

� “The CES, on its own initiative, is currently carrying out investigations of employers who were required to carry out a pay equity review no later than December 31, 2010 and who have not yet done so.” [Translation of the original French text]


THANK YOU!

Pablo GuzmanPartner, Montréal

514.392.8406 [email protected]


FEDERAL UPDATE: RECENT DEVELOPMENTS FROM PARLIAMENT HILL

Presented by Leslie Frattolin


Friday, May 8, 2015

Amendments to Canada Labour Code:Holiday Pay

� Bill C-45

� Received Royal Assent on December 14, 2012

� Effective March 16, 2015, amendments to calculation of holiday pay came into force:

� Calculation of holiday pay now a general rule:

� 1/20th of the wages earned in the four-week period immediately preceding the week in which the general holiday occurs, excluding overtime pay

� Employee must be employed for a minimum of 30 days to receive holiday pay


Amendments to Canada Labour Code:Union Certification Provisions

� Bill C-525

� Received Royal Assent: December 16, 2014

� Coming into Force: June 16, 2015

DLA Piper (Canada) LLPThis is a sample footer 3

UPDATE ON UNJUST DISMISSAL COMPLAINTS

DLA Piper (Canada) LLPThis is a sample footer 4

� Siglov v. DHL Express (Canada) Ltd.

� employee was terminated in accordance with the terms of his employment agreement which provided for notice of termination and severance

� adjudicator decided that he was without jurisdiction to hear the unjust dismissal complaint since the dismissal was without cause in accordance with a contract of employment

� Take Away!

� Employers can significantly limit their potential liability by having a valid employment contract in place that complies with the notice and severance requirements under the Canada Labour Code

THANK YOU!


Leslie FrattolinAssociate, Toronto

[email protected]

US LAW:

THE EXPANDING

DEFINITION OF “EMPLOYER”

Presented by Michael Sheehan


Friday, May 8, 2015

The Expanding Definition of “Employer”

Common Employer Joint Employer

Today, our employment laws no longer respect corporate formalities



1977• Court willing to “lift the corporate veil” where closely related companies “form

essentially one trading enterprise.” Manley Inc. v. Fallis, (1977) (Ont.C.A.).

2001• Common employer doctrine is based on common control – not over the

employee but among the related corporations themselves. Downtown Eatery (1993) Ltd. v. Ontario, (2001) (Ont.C.A.).

2008

• Traditional franchisor-franchisee relationship does not necessarily make franchisor an employer, at least where franchisee is responsible for own hiring/firing and otherwise operates independently. Coffee Times Donuts Incorporated v. Toshi Enterprises Ltd., (2008) (O.S.C.D.C.).

2011• Human Rights Tribunal of Ontario will generally not dismiss ab initio a franchisor

from an employment discrimination claim against it and its franchisee. S.B and Subway Franchise Systems of Canada, Ltd, (HRTO 2011).

Historically, joint employment occured when separate business entities simultaneously share control and supervision of a worker.

Control

and

Supervision

Control

andSupervision



Now, the historical test of direct and actual control is being altered in the US.

5

The Department, NLRB, and the EEOC now propose to find joint employment with any one of these factors:

� indirect control over working conditions;

� unexercised potential control working conditions; or

� industrial realities suggest another entity essential to remedy




WHAT DOES THIS

LOOK LIKE IN

THE REAL

WORLD?

In CNN America, Inc., the NLRB held that CNN was a joint employer of its subcontractor’s employees. �CNN’s Washington bureau hired TVS (an outside

company) to run the cameras in its studio;�TVS provided video and audio technicians to run CNN’s

broadcast feed;�CNN paid TVS on a cost-plus basis; and

�CNN supplied all equipment used by TVS technicians.



WHAT DOES THIS

LOOK LIKE IN

THE REAL

WORLD?


In the McDonald’s wage cases, union-backed employees claim the McDonald’s franchisor should be considered a joint employer.

�Employees claim a variety of wage violations;

�They allege the franchisor provides software that calculates employee-to-sales ratios and instructs franchisees to reduce staffing when sales drop;

�They cite this as evidence of control by the franchisor that creates an employment relationship with the franchisor.


Financial Exposure

Public Image


Why is this important?

9

Stay out of counter party’s personnel decisions1

Manage/supervise the counter party, not its employees2

Avoid dictating their employment policies or practices3

Don’t become their HR Dept. (for records, benefits, or payroll)

4

Parent companies face the highest risks5

What to Do Next


THANK YOU!

Michael SheehanPartner, Chicago1.312.368.7024

[email protected]


THE INCREASING IMPORTANCE OF SOCIAL MEDIA IN EMPLOYMENT

Presented by Pablo Guzman & Michael Richards

Toronto Employment and Labour Conference

Friday, May 8, 2015

BLURRED LINES BETWEEN WORK AND PERSONAL LIFE

Best Practices

Clarify the distinction between work and personal use

� Prevent and minimize the risks of improper social media use

Create and Update Employer Policies

� Social media policies

� Confidentiality policies

� Computer and internet use policies


BRING YOUR OWN DEVICE POLICIES

BYOD Programs

� Advantages: productivity, efficiency, data integrity, inevitable

� Risks: mixing personal information of both the employee and employer


BRING YOUR OWN DEVICE POLICIES

5 Steps to a successful BYOD Program

� Step 1: Requirement Documentation

� Step 2: Technology Selection

� Step 3: Policy Development

� Step 4: Security

� Step 5: Support


FIRED FOR OFFENSIVE TWEETS OR FACEBOOK POSTS

Jurisprudential Tendencies

� Public dimension of social media posts

� Dismissing arguments suggesting that social network comments are private

� Penalties proportional to the misconduct


TORONTO PROFESSIONAL FIREFIGHTERS ASSOCIATION, LOCAL 3888 V. CITY OF TORONTO (ONTARIO 2014)

Facts� Toronto firefighter, Lawaun Edwards, was dismissed for posting 3 allegedly offensive

tweets

� Tweet 1: “…would swat(ting) her in the back of the head be considered abuse or a way to reset the brain?”

� Tweet 2: Edwards used the word “sweetie” when referring to a female colleague

� Tweet 3: Edwards used the terms “Paki store” and “n$%$er store”

Arguments� The city: just cause, violation of employer policy, poisoned work environment,

tarnished employer reputation

� The union: no misconduct, not warranting discipline, taken out of context


TORONTO PROFESSIONAL FIREFIGHTERS ASSOCIATION, LOCAL 3888 V. CITY OF TORONTO (ONTARIO 2014)

Decision

� The “swat on the back of the head comment” was inappropriate, but did not contribute to a poisoned work environment

� “Sweetie,” is not objectionable from the perspective of an objectively minded person

� The “n-word” was not inappropriate, racist or derogatory when taken in context

� No distinction in dealing with Twitter exchanges as opposed to Facebook posts


UNITED STEELWORKERS OF AMERICA, LOCAL 9548 V. TENARIS ALGOMA TUBES INCORPORATED (ONTARIO 2014)

Facts

� Crane operator dismissed for posting “vicious and humiliating” comments about a co-worker on Facebook, including references to violent and humiliating sexual acts

� Co-workers among the employee’s Facebook friends

� No privacy settings used

� Victim was identifiable

� Comments were deleted 10 hours after the posting

Union arguments

� Facebook and social media not specifically addressed in the company’s workplace policies

� Inadequate investigation



Decision� “The point of posting on Facebook is to ‘share’ one’s views with other people. It is an

act of publicity…This is not ‘off duty’ conduct because it was directed at poisoning X’s work environment.”

� “It is obvious that the policies would include threats and harassment via Facebook and that discipline and discharge is a potential response to threats or harassment. I do not find, therefore, that the fact the policies do not refer to social media or the possibility of discipline to be a mitigating factor.”

� “A statement is an opportunity for an employee to tell the employer what happened. It can be useful to get it in writing but there is no requirement that it be in writing unless a company’s own policy says so. In this case, the company had the posts and they speak for themselves. They were on the grievor’s Facebook and he admitted they were his. The company did not need to ask the grievor if he had been provoked because there could be no excuse for saying such awful things.”



Decision

� Progressive discipline not always appropriate

� Risk of recidivism

� Absence of social media reference in employer policies not a mitigating factor

� Termination of employment was justified


SYNDICAT DES TRAVAILLEURS ET TRAVAILLEUSES V. CENTRE DE SANTÉ ET DES SERVICES SOCIAUX DE SEPT-ÎLES (QUÉBEC 2014)

Facts

� Hospital employee dismissed for comments published on Facebook

� “Work tomorrow.. Can’t /$%ing stand it… I really need to find a new job. I can’t /$%ing stay there much longer. A bunch of $/$holes. A hospital full of %/$%heads.”

At issue

� Should the statements made by the employee that were accessible to the 229 friends listed on her Facebook account be considered public remarks?

� Can the damage caused to the reputation of the hospital by the employee’s Facebook comments be anticipated/estimated?

� Did the employee’s Facebook comments cause irreparable damage to the relationship between she and her employer?

� Is this a case where the employer is justified in proceeding directly to termination?



Decision

� “By posting the remarks on Facebook to the attention of all those who had access [to her profile]…it is clear that the employee committed misconduct that warrants a serious disciplinary sanction.”

� “This leads me to conclude that, in this case, termination was a severe but a fair and reasonable measure, given the consequences of the fault of the employee on her relationship with her employer. The employer was justified in not opting for progressive discipline in this case.”



Factors the arbitrator considered

� The impact on the work environment

� The potential impact on recruitment (difficult to measure)

� The lack of regret demonstrated at the first available opportunity

� The risk of recidivism

� The fact that the bond of trust had been irreparably broken

� The fact that no mitigating circumstances were introduced into evidence that would justify a less severe sanction

� The fact that the employee’s comments rendered her reintegration at the hospital impossible


USE OF SOCIAL MEDIA IN HIRING

Legislation

� Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA)

� Québec’s Act Respecting the Protection of Personal Information in the Private Sector (ARPPIPS)

Legal Principles

� Consent

� Collection that is reasonable or legitimate in the circumstances

� PIPEADA and implied consent

Risks for Employers

� Inaccuracy of information

� Collecting more information than needed

� Overreliance on consent


EMPLOYERS’ USE OF SOCIAL MEDIA IN HIRING-CHECKING SOCIAL MEDIA PROFILES OF JOB APPLICANTS?

Best Practices

� Collect written, informed consent from the individual being checked

� Don’t wait until after a social media background check to evaluate compliance with privacy legislation

� Don’t assume it will only retrieve information about one, targeted individual, and not multiple individuals

� Don’t perform a social media background check from a personal account to avoid privacy laws

� Don’t attempt to avoid privacy obligations by contracting a third party to undertake social media background checks

� Don’t perform a check under the assumption that individuals will never know about it


EMPLOYERS’ USE OF SOCIAL MEDIA IN HIRING-CHECKING SOCIAL MEDIA PROFILES OF JOB APPLICANTS?

Alternatives to social media checks in hiring

� Acquiring the desired information by other, more traditional means such as more rigorous self-disclosure obligations and interview processes

� Utilizing other formal checks which offer more accurate, relevant and targeted information such as criminal record, reference or credit checks

� Limiting social media checks only for shortlisted job contenders

� Performing checks only after a job offer has been extended to the candidate, conditional on the results of the check


CONCLUSION

THANK YOU!

Pablo GuzmanPartner, Montreal

[email protected]

Michael S. RichardsPartner, Toronto

[email protected]



THE INCREASING IMPORTANCE OF SOCIAL MEDIA IN EMPLOYMENT

By Pablo Guzman and Michael Richards with the assistance of Jay Gupta

I. INTRODUCTION- WHAT IS SOCIAL MEDIA AND ITS BENEFITS AND DISADVANTAGES FOR EMPLOYERS?

Definition

Social media can be defined as:

i. user generated content that is shared over the Internet; and

ii. technologies that promote engagement, sharing, and collaboration.1

Most of us think of social media as Facebook, Twitter, LinkedIn, YouTube, blogs, Flickr, Pinterest, and the

like. However it is defined, there is no question that social media has become part of everyday life for

most people. As a result, the majority of employees today will have some contact with one or more social

media platforms on a daily basis. This may include having a Facebook or LinkedIn profile, posting

comments, videos or pictures on Twitter, YouTube or Flickr or keeping a personal blog where he or she

keeps a journal or expresses his or her opinions in a public or semi-public setting.2

The benefits of social media for employers3

Social media is increasingly being used by employers to:

i. advertise and promote the employer’s brand, products, and services;

ii. advertise themselves to candidates for employment;

1 The Social Media Guide, “50 definitions of Social Media”, online: The Social Media Guide

http://thesocialmediaguide.com/socialmedia/50-definitions-of-social-media 2 You Are What You Tweet. Perks & Perils of Social Media, by Pablo Guzman and Tatha Swann, with the assistance of Brittany

Tipton. 2013 Employment & Labour Law Conference. Edmonton. 3 Id.

http://thesocialmediaguide.com/socialmedia/50-definitions-of-social-media


iii. obtain information about candidates for employment that can be used to verify information on

applications and screen candidates; and

iv. obtain information about existing employees for use in workplace investigations, discipline, and

litigation.

The Disadvantages of Social Media for Employers4

When social media is utilized by employees, either at work or off duty, many potential risks arise,

including:

i. loss of productivity at work;

ii. creation of a poisoned work environment;

iii. leaks of confidential information;

iv. insubordination by criticism or derogatory comments about the employer or its management; and

v. damage to an employer’s reputation.

II. BLURRED LINES BETWEEN WORK AND PERSONAL LIFE

Best Practices to clarify this distinction5

Employers should take steps to clarify the distinction between work and personal life in preventing and

minimizing the risks of improper social media use by employees by creating policies that specifically

address the use of social media by employees.

Create and Update Employer Policies6

4 Id.

5 Id.


Employers should update their social media, and confidentiality and computer and internet use policies to

ensure that they restrict and regulate employee use of social media.

Social Media Policy7

Social media policies should contain provisions that:

i. set out a broad definition of what constitutes social media, and consider adding a non-exhaustive

list of sites that the policy covers;

ii. explain to whom and when the policy applies, and whether different employees are subject to

different provisions or policies;

iii. state that social media use attracts special policies because social media content is or may easily

become public, anonymity is unlikely, and content is often impossible to retract;

iv. clearly state that personal/non-work use of social media is subject to the policy;

v. limit or restrict employees’ use of social media during work hours;

vi. prohibit employees from adding, modifying or deleting content on the employer’s social media

pages or applications without express authorization and require review and approval by

management before any changes are made to such content;

vii. prohibit employees from making any statement or posting any content on behalf of, in the name

of, or using the logo or brand name of, the employer, without express authorization. Consider

encouraging, or obligating, employees to post disclaimers with any online opinions which may be

construed as the opinion of the employer;

6 Id.

7 Id.


viii. prohibit employees from posting any disparaging or inaccurate content about the employer, its

customers, management or other employees and require employees to report any such content

to a supervisor;

ix. prohibit employees from posting any content that would violate the employer’s other policies,

including sexually explicit, illegal, harassing, or discriminatory content, and confidential

information. Consider listing the policies that continue to apply to social media content;

x. prohibit the violation of laws such as those surrounding human rights, defamation, privacy, and

copyright or other IP laws;

xi. prohibit employees from posting photos or videos that include images of the employer’s premises,

employees, or customers without express authorization;

xii. warn that an employee’s use of social media through employer owned devices or networks may

be monitored, recorded, used, and disclosed to ensure compliance with the employer’s policies

and for other legitimate business reasons;

xiii. set out consequences. Warn employees that failure to comply with the social media policy will be

grounds for discipline, up to and including termination of employment; and

xiv. provide a contact person within the company from whom employees can obtain further

information, or who has the authority to review potential social media content.

Confidentiality Policy8

The purpose of a confidentiality policy is to prevent an employee from sharing confidential and proprietary

information that the employee obtains during the course of their employment with third parties both during

and after their employment. Employers should review their confidentiality policies to ensure that they

8 Id.


expressly cover disclosure of the employer’s confidential and proprietary information through social media

websites and applications.

Computer and Internet Use Policy9

The purpose of a computer and internet use policy is to protect the employer’s right to access and

monitor information stored on company-owned equipment, services or websites which may also be used

by employees for personal use. Employers should review their computer and internet use policies to

ensure that these policies are broad enough to include employee use of social media. In particular, an

employer should ensure that these policies:

i. expressly include social media websites and applications in the list of company-owned devices or

networks that the employer has a right to access and monitor;

ii. warn that an employee’s use of social media through company-owned devices or networks may

be monitored, recorded, used and disclosed to ensure compliance with the employer’s policies

and for legitimate business reasons; and

iii. warn the employee that failure to comply with the computer and internet use policy will be

grounds for discipline, up to and including termination of the employee’s employment for just

cause.

Education and Training10

In order to clarify the blurred lines between work and personal life regarding social media, it is important

to educate and train employees on how social media can affect the employment relationship as well as

9 Id.

10 Id.


the employer’s business and reputation. Employers should consider holding training sessions designed

to:

i. explain what social media is and the risks it poses to the employer;

ii. draw employees’ attention to new employment policy provisions designed to address and

minimize these risks; and

iii. obtain written confirmation from employees that they understand the risks associated with social

media and agree to abide by company policies put in place to address these risks.

In order to ensure that new employees are educated and trained, and existing employees are kept up to

date on the employer’s policies, education and training sessions should be held on a regular basis, which

may be annually or semi-annually.

III. BRING YOUR OWN DEVICE POLICIES

BYOD Programs

A BYOD program involves employees using their own mobile electronic communication devices to carry

out work for their employer through remote access to the organization’s intranet.11

Canadian firms lead the world in BYOD: More than 75 per cent of Canadian businesses support

employee-purchased smartphones and tablets in the workplace.12

One goal of a BYOD program is to enable the employee to be more productive and efficient by selecting

a device that best fits his/her preferences and work purposes, while at the same time ensuring data

integrity and protecting the organization’s information from leakage or loss.13

11

BYOD White Paper,Ontario Information and Privacy Commission. Ann Cavoukian, Ph.D. BYOD: (Bring Your Own Device) Is Your Organization Ready? 12

Nestor E. Arellano 05 Apr 2013, “Canadian firms leading world in BYOD: Study,” Computing Canada, accessed at: www.itworldcanada.com/article/canadian-firms-leading-world-in-byod-study/47616 13

BYOD White Paper,Ontario Information and Privacy Commission. Ann Cavoukian, Ph.D. BYOD:


BYOD, where a device is used for both personal and work purposes, means that two kinds of personal

information will flow through the device. On the one hand, the device will most likely process and have

access to the personal information of the clients of the organization. On the other hand, the device will

also most likely process and contain personal information about the employee to whom the device

belongs as well as perhaps close associates of the employee. A privacy-aware strategy that considers

the needs of the employee and the organization is required to ensure that the use of new and powerful

mobile devices is possible, while at the same time protecting both the employee and the organization.14

Essential Elements of a BYOD Strategy Policy15

i. Information security;

ii. Data protection;

iii. Confidentiality issues;

iv. Ownership issues – both of the device and of the information contained on the device;

v. Information regarding any tracking/monitoring and the limits therof;

vi. Procedures upon termination of employment;

vii. Guidance regarding how to assess security of Wi-Fi networks; and

viii. Acceptable and unacceptable behaviour.

5 Steps to a successful BYOD Program16

Step 1: Requirement Documentation:

(Bring Your Own Device) Is Your Organization Ready? 14

Id. 15

Workplace Privacy. Ontario and Québec Issues. Power point presentation by Pablo Guzman and Michael Richards. Employment and Labour Law Conference. 16

BYOD White Paper,Ontario Information and Privacy Commission. Ann Cavoukian, Ph.D. BYOD: (Bring Your Own Device) Is Your Organization Ready?


Not all users are alike — start segmenting users and identifying groups with common needs such

as: what systems do they use or how mobile do they need to be?

Engage your Privacy Office from the outset to ensure their participation in this project.

Step 2: Technology Selection

How do you want to manage your users and their data access? While a MDM system provides a

minimum level of control, other options like Virtual Desktops or on-device software may be used

to enhance security and data privacy.

Make sure your corporate environment supports WLAN device connectivity and management.

Step 3: Policy Development

Policies need be created by a delegation of company resources, not just IT. Key participants

would include: HR, Legal, Security and Privacy.

End-users need clear and concise communication on an acceptable-use policy, before entering a

BYOD program.

Step 4: Security

MDM technology is only effective if policies are established, implemented and supported.

While traditional IT security standards may be the starting point, mobility will have its own set of

unique capabilities that need to be addressed.

Step 5: Support

The non-standardized nature of BYOD users will increase the frequency of support calls. Process

and capabilities need to be established early to ensure success.


IV. FIRED FOR OFFENSIVE TWEETS OR FACEBOOK POSTS

The Unfortunate Case of Kaitlyn Walls17

An interesting case making international headlines surfaced in the US this week. Kaitlyn Walls, a 27-year-

old single mom in Texas was about to start a job at a local daycare. Before leaving for work on her first

day on the job, she posted the following comments on her Facebook wall: “I start my new job today but I

absolutely hate working at daycares… Lol it’s all good. I just really hate being around a lot of kids."

Before her employment even officially started, the employer caught wind of the post and terminated

Walls’ employment.

Jurisprudential Tendencies in Ontario and Québec18

Arbitrators have developed a tendency holding that social media postings have a public dimension.

Furthermore, arbitrators have dismissed arguments suggesting that social network comments are private,

off-duty activity with no bearing on the workplace.

As with the case of any workplace infraction, the penalty imposed must be proportional to the misconduct

and arbitrators look to both mitigating and aggravating factors in determining whether dismissal is

appropriate.

i) Toronto Professional Firefighters Association, Local 3888 v. City of Toronto (October 14, 2014)19

In a recent decision, an Ontario arbitrator reinstated a firefighter who was fired for posting “tweets” that

his employer judged sexist, racist and harmful to his reputation. Holding that two of the tweets were not

17

Facebook Privacy Settings. This is how to get fired from your job before it even starts. April 28, 2015 CBS. 18

LancasterHouse. Discharge & Discipline. Dismissal too harsh a penalty for firefighter’s offensive tweet, arbitrator rules. March 23, 2015, eAlert NO. 205. 19

Id.


inappropriate, and that the dismissal was too harsh a penalty, the arbitrator overturned the dismissal and

substituted a 3 day unpaid suspension.

Facts

A Toronto firefighter, Lawaun Edwards, filed a grievance after being dismissed for posting 3 allegedly

offensive tweets. The tweets involved an exchange between Edwards and another firefighter named

Dean Somerset and targeted the Toronto Fire Services’ (TFS) recent attempt to integrate women

firefighters into their ranks.

Edward’s objectionable exchange of tweets proceeded as follows:

Somerset first made a remark about a woman’s overuse of the word “like”;

(Tweet 1) Edwards: “would swat(ting) her in the back of the head be considered abuse or a way

to reset the brain?”;

Somerset: “maybe foreplay?”;

Edwards: “intelligence and a vocabulary is sexy. Saying ‘like’ that amount of times means you

have none”;

Following the commencement of an investigation into the tweets, the City suspended Edwards with pay

pending the outcome of the investigation. During the course of the investigation, other tweets of Edwards

were put under scrutiny, including one in which he used the word “sweetie” when referring to a female

colleague (Tweet 2).

In another tweet Edwards used the terms “Paki store” and “nigger store.” It should be noted that Edwards

is a black male (Tweet 3).

At the end of the investigation, Edwards’ employment was terminated.


Arguments

The City maintained that it had just cause to dismiss Edwards as the tweets violated various TFS policies,

contributed to a poisoned work environment and tarnished the reputation of the City and TFS.

The union on the other hand, argued that Edwards’ comments did not amount to misconduct or, in the

alternative, that the misconduct did not warrant discipline. They argued that a reasonable person would

not find Edwards’ comments problematic when examined in their full context and that the tweets were

made off-duty.

Decision

The arbitrator found that the “swat on the back of the head comment” was inappropriate, but that it did not

contribute to a poisoned work environment, given that Edwards was not discussing anyone in particular in

the workplace and none of his co-workers responded negatively to the tweet.

Regarding the tweet that utilized the word “sweetie,” the arbitrator found that an objective minded person

would not find it objectionable.

Furthermore he held that Edwards’ use of the “n-word” was not inappropriate, racist or derogatory when

taken in context.

Having found that only the “swat of the hand” comment warranted discipline, the arbitrator judged that the

dismissal was excessive. Of note is the fact that the arbitrator declined to find that Twitter exchanges

should be dealt with differently than Facebook posts.

ii) United Steelworkers of America, Local 9548 v. Tenaris Algoma Tubes Incorporated (Ontario

2014)20

Facts

20

Workplace Privacy. Ontario and Québec Issues. Power point presentation by Pablo Guzman and Michael Richards. Employment and Labour Law Conference.


A crane operator was discharged for posting “vicious and humiliating” comments about a co-worker on

Facebook, including suggesting that a violent and humiliating sex act be inflicted upon her.

Other co-workers were among the employees’ Facebook friends.

The employee had not used any privacy settings to limit the reach of the comments.

Though the colleagues’ name was not used, she was clearly identifiable based on a reference to a

personal characteristic and nickname.

The comments were deleted 10 hours after the posting.

Union arguments

The union argued that Facebook and social media were not specifically addressed in the company’s

workplace policies and that the policies do not state that discipline or discharge are possible results of

misuse of social media.

They also argued that the company’s investigation into the matter was not adequate since a written

statement was not obtained from the grievor.

Decision

The arbitrator however maintained that:

“the point of posting on Facebook is to “share” one’s views with other people. It is an act

of publicity…This is not “off duty” conduct because it was directed at poisoning X’s work

environment.”

“It is obvious that the policies would include threats and harassment via Facebook and

that discipline and discharge is a potential response to threats or harassment. I do not


find, therefore, that the fact the policies do not refer to social media or the possibility of

discipline to be a mitigating factor.”

Concerning the inadequacy of the investigation, the arbitrator responded that:

“A statement is an opportunity for an employee to tell the employer what happened. It can

be useful to get it in writing but there is no requirement that it be in writing unless a

company’s own policy says so. In this case, the company had the posts and they speak

for themselves. They were on the grievor’s Facebook and he admitted they were his. The

company did not need to ask the grievor if he had been provoked because there could be

no excuse for saying such awful things.”

The Arbitrator ruled that:

Progressive discipline is not appropriate in all cases;

There was a risk of recidivism;

Absence of specific reference to social media in employer policies was not a mitigating factor;

Termination of employment was justified given these factors and the company’s responsibility to

maintain a harassment free workplace

iii) Syndicat des travailleurs et travailleuses v. Centre de santé et des services sociaux de Sept-

Îles 2014 T.A. 69921

Facts

A member of the hospital’s support staff was dismissed for comments published on Facebook.

21

Id.


She posted the following disrespectful comments about her employer and her colleagues: “Work

tomorrow.. Can’t /$%ing stand it… I really need to find a new job. I can’t /$%ing stay there much longer. A

bunch of $/$%ers. A hospital of %/$%.”

At issue

i. Should the statements made by the employee that were accessible to the 229 friends listed on

her Facebook account be considered public remarks?

ii. Can the damage caused to the reputation of the hospital by the employee’s Facebook comments

be anticipated/estimated?

iii. Did the employee’s Facebook comments cause irreparable damage to the relationship between

she and her employer?

iv. Is this a case where the employer is justified in proceeding directly to termination?

Decision

The arbitrator held that:

“ By posting the remarks on Facebook to the attention of all those who had access [to her

profile]…it is clear that the employee committed misconduct that warrants a serious

disciplinary sanction.”

“This leads me to conclude that, in this case, termination was a severe but a fair and

reasonable measure, given the consequences of the fault of the employee on her

relationship with her employer. The employer was justified in not opting for progressive

discipline in this case.”

Factors that the arbitrator took into consideration included:


i. The impact on the work environment;

ii. The potential impact on recruitment (difficult to measure);

iii. The lack of regret demonstrated at the first available opportunity;

iv. The risk of recidivism;

v. The fact that the bond of trust has been irreparably broken;

vi. The fact that no mitigating circumstances were introduced into evidence that would justify a less

severe sanction;

vii. The fact that the employee’s comments rendered her reintegration at the hospital impossible.

V. EMPLOYERS’ USE OF SOCIAL MEDIA IN HIRING- CHECKING SOCIAL MEDIA PROFILES OF

JOB APPLICANTS?

Legislation

Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA), sets out the ground

rules for how private-sector organizations collect, use or disclose personal information in the course of

commercial activities across Canada including in Ontario. 22

In Québec, the province adopted An Act Respecting the Protection of Personal Information in the Private

Sector (ARPPIPS), which has been deemed “substantially similar” to PIPEDA, which means that it apples

in Québec instead of PIPEDA in most cases.23

22

Doing Business in Canada. Privacy Law. Gowlings. https://www.gowlings.com/services/dbic/?p=15

https://www.gowlings.com/services/dbic/?p=15


Legal principles

Under both Acts, there is a general obligation to obtain consent to the collection, use, and/or disclosure of

the information.24

An organization may collect personal information only for the purposes that would reasonably be

considered appropriate or legitimate in the circumstances. Thus, a standard applies even to the

consensual collection of information that employers subject to the legislation must meet.25

In both Alberta and British Columbia, provincial legislation permits employers to collect, use or disclose

“personal employee information” without the consent of the employee if it is reasonably required for the

purposes of establishing, managing or terminating an employment relationship. However, both PIPEDA

and ARPPIPS do not have similarly explicit provisions regarding employer access to personal information

for the purposes of hiring. Nonetheless PIPEDA permits a certain reliance on implied consent in such

circumstances. The collection of personal information from social media sites, and its use in the hiring

process by employers falls within these legislative regimes.26

Risks for employers27

There are three main risks associated with such data collection and use. Firstly, there is a greater risk of

inaccuracy with social media-sourced information. Mistakes abound, whether it is in identifying the profile

associated with the correct candidate, determining the validity of such profiles (risk of imposters or

hackers), and the room for human error associated with multiple contributors adding content at any time

(mislabeled photographs, outdated content etc.). This is particularly legally problematic, as under privacy

legislation, employers have a duty to ensure that personal information collected is accurate, and current.

23

Id. 24

You Are What You Tweet. Perks & Perils of Social Media, by Pablo Guzman and Tatha Swann, with the assistance of Brittany Tipton. 2013 Employment & Labour Law Conference. Edmonton. 25

Id. 26

Doing Business in Canada. Privacy Law. Gowlings. https://www.gowlings.com/services/dbic/?p=15 27

You Are What You Tweet. Perks & Perils of Social Media, by Pablo Guzman and Tatha Swann, with the assistance of Brittany Tipton. 2013 Employment & Labour Law Conference. Edmonton.


Secondly, there is the risk of collecting much more information than intended or needed. Since social

media content usually pre-exists and does not contemplate the hiring scenario, and is contributed by

multiple parties, it is not a narrow source, nor can it easily be filtered. Additionally, the first look on an

individual’s Facebook or LinkedIn profile displays fields that may contain one’s involvement in political or

social organizations, religious institutions, information identifying the applicant’s place of origin,

personality traits or aptitudes, personal life goals or aspirations and a host of other information largely

irrelevant to the particular employment purposes of hiring. From a human rights perspective, some of the

information found could be related to a ‘prohibited ground’ of discrimination. Should negative hiring

decisions follow or appear to follow from the unintended collection of this sort information, human rights

offences and damages could apply. Thus, from a hiring perspective, the less an employer knows about

these areas of a candidates’ life, the lower the risk of attracting human rights litigation. The narrower the

source, the lower the risk.

Finally, there is the risk of over-reliance on consent. As mentioned above, even if consent is given to

screen social media content, the collection must still be reasonable or legitimate in the circumstances.

Both Acts also allow for withdrawal of consent at any time. Certain information in a social media profile

that is not related to employment would likely not qualify for collection without consent. This risk also

entails a subsidiary risk of inadvertent collection of third party personal information to which no consent is

given.

Third party searches28

Some large organizations attempt to reduce these risks by having the social media search conducted by

someone who will not be involved in the hiring decision.

The person doing the search removes references to the prohibited grounds of discrimination, and passes

on the rest of the information to the people who will be making the hiring decision.

This shields the decision makers from knowledge that should not be used in their hiring decision.

28

Id.


Information that is already public29

Articles 7(1)(d) and 7(2)(c.1) of PIPEDA and article 1 of ARPPIPS allow for collection and use of personal

information by an organization without knowledge and consent of the individual if the information is

already publicly available as specified by law or regulation. Article 1(e) of the Regulations Specifying

Publicly Available Information references public availability in the social media content as follows: “(e)

personal information that appears in a publication, including a magazine, book or newspaper, in printed or

electronic form, that is available to the public, where the individual has provided the information.”30

It remains unclear how subsection (e) and its provincial counterparts will fully apply in the social media

context. Until such time as these questions are answered, private employers might do well to err on the

side of caution and avoid reliance on ‘public availability’ provisions outside situations expressly

contemplated in their narrow wording.

Best Practices31

It is instructive to outline some best practices for employers utilizing social media as a tool in hiring:

i. Collect written, informed consent from the individual being checked.

ii. Don’t wait until after a social media background check to evaluate compliance with privacy

legislation;

iii. Don’t assume it will only retrieve information about one, targeted individual, and not multiple

individuals;

iv. Don’t perform a social media background check from a personal account to avoid privacy laws;

29

Id. 30

Regulations Specifying Publicly Available Information, SOR/2001-7, s 1(e). 31

You Are What You Tweet. Perks & Perils of Social Media, by Pablo Guzman and Tatha Swann, with the assistance of Brittany Tipton. 2013 Employment & Labour Law Conference. Edmonton.


v. Don’t attempt to avoid privacy obligations by contracting a third party to undertake social media

background checks;

vi. Don’t perform a check under the assumption that individuals will never know about it.

Alternatives to social media checks in hiring32

Employers should think seriously about whether a social media check is necessary. Could the

information be acquired by other, more traditional means such as more rigorous self-disclosure

obligations and interview processes?

Does the employer already utilize other formal checks which offer more accurate, relevant, and targeted

information such as criminal record, reference, or credit checks?

There are also practices that reduce the frequency of social network background checks, and thus their

attendant risks. Once again, thought should be given as to whether the check is truly necessary for the

specific position. Employers might only utilize social media checks for serious job contenders who have

made a ‘short list’ in the hiring process.

Also, the employer may be wise to perform a check only after a job offer has been extended to the

candidate, conditional on the results of the check.

32

Id.

OUCH, THAT HURTS!

INCREASING DAMAGES AWARDS

Presented by Wendy-Anne Berkenbosch and Richard Nixon


Friday, May 8, 2015

INTRODUCTION

� In addition to damages for payment in lieu of reasonable notice, wrongfully terminated employees may be entitled to aggravated damages or punitive damages.

� Employers may also be on the hook for increasing damages in the human rights context.

� The damages awards keep going up and up…


NOTICE PERIODS

� Employers who apply the “one month per year of service rule of thumb” do so “at their own peril”.

� There is no 24 month upper threshold for reasonable notice; as the workforce ages, expect reasonable notice periods to increase.


DAMAGES: UP, UP AND AWAY?

� The pendulum has swung towards higher damages, particularly in regard to aggravated and punitive damages.

� This trend is not only limited to the Courts; other decision makers are also prepared to impose significant financial penalties on errant employers.


PUNITIVE DAMAGES

� Intended to punish the employer to deter future conduct.

� Not compensatory.

� Awarded where the employer’s conduct is harsh, vindictive and malicious.

AGGRAVATED DAMAGES

� Intended to compensate the employee.

� Awarded when the circumstances of dismissal are insensitive, demeaning or humiliating.


TREND: INCREASING DAMAGES

� Following the Supreme Court’s decision in Honda v Keays, many thought that increased damages were less likely to be awarded.

� Recent cases suggest that these damages are far from dead…


TREND: INCREASING DAMAGES

� It used to be that large punitive awards tended to be jury awards and appellate courts would significantly reduce or eliminate punitive awards.

� Now, judges are prepared to impose significant punitive awards, and appellate courts seem more willing to uphold them.


RECENT DECISIONS OF INTEREST

TIPPLE V CANADA (ATTORNEY GENERAL) (2012, FCA)

� $250,000 award for loss of reputation upheld on appeal.

� Damages for loss of reputation are available where:

� employee’s reputation is damaged by public knowledge of false allegations relating to termination;

� employer fails to take reasonable corrective steps; and

� damage to employee’s reputation has impaired his or her ability to find new employment.


WALSH V MOBIL OIL CANADA (2013, ALTA CA)

� Employee suffered serious gender discrimination over several years.

� There is no statutory limit on the amount of damages available for mental distress, injury and loss of dignity.

� The employer’s unfounded position that the employee was terminated for cause throughout the litigation was a factor the court considered when assessing damages.


THE CITY OF CALGARY V CUPE LOCAL 38 (2013, ALTA ARBITRATION BOARD)

� Employee was repeatedly sexually assaulted by a senior employee.

� Manager’s solution was to install an extension on the employee’s desk to make it more difficult to approach her from behind.

� Employee provided stills from a spy camera she installed evidencing the assaults, but the manager said it was “inconclusive”.


THE CITY OF CALGARY V CUPE LOCAL 38 (2013, ALTA ARBITRATION BOARD)

� Employee suffered significant psychological problems as a result of the assaults.

� The Arbitration Board awarded over $800,000 in general damages and loss of income because the employer’s failure to respond resulted in life-altering adverse impacts.

� No punitive damages because significant compensatory damages already awarded.


BOUCHER V WAL-MART CANADA CORP (2014, ONT CA)

� Jury awarded the largest punitive award in an employment case in Canada; award reduced on appeal.

� Manager was mentally abusive towards the employee: criticizing, demeaning and humiliating her in front of other staff.

� Employee reported abusive conduct to senior management, but no action was taken.


BOUCHER V WAL-MART CANADA CORP (2014, ONT CA)

� Wal-Mart had all the necessary policies in place:

� Open Door Communication Policy

� Prevention of Violence in the Workplace Policy

� Harassment and Discrimination Policy

� Wal-Mart was held liable for failing to address bullying and harassment in the workplace; the manager was also held personally liable for his conduct.


BASTIEN V PRO-HAIRLINES (2014, ONT LRB)

� Employee fired in retaliation for raising safety concerns.

� In addition to damages for lost wages totalling nearly $17,000.00, the Board also awarded aggravated damages of $7,500.00 for mental distress.

� Court held that aggravated damages are appropriate where the employer violates a statutory prohibition.


OUCH!

� Human rights damages for injury to dignity: $75,000

� Loss of reputation: $250,000

� General damages: $125,000

� Aggravated damages: $85,000 to $200,000

� Punitive damages:

� $450,000 - $550,000 awards upheld on appeal

� $1,000,000 jury award reduced to $100,000


PRACTICAL CONSIDERATIONS FOR THE WORKPLACE

� Include clear termination clauses in employment contracts:

� Ensure compliance with employment standards legislation.

� Consider tailoring the clauses to the particular circumstances.

� If using a formula, include a maximum amount.

� Address rights and entitlements in the event of termination.



� Think carefully before asserting just cause:

� Do not maintain allegations of just cause unless you can actually back it up.

� Do not take steps that will damage an employee’s reputation in the community.

� Maintain employee’s respect and dignity during the termination process and thereafter.



� Investigate employee complaints:

� If you receive a complaint, treat it seriously!

� Employee allegations of harassment, discrimination and abuse should be investigated thoroughly and promptly.

� Institute sound investigative and other workplace policies.

� It is not enough to have good policies on paper; you have to follow through.


THANK YOU!

Wendy-Anne BerkenboschPartner, Edmonton

[email protected]


Richard NixonPartner, Toronto416.365.3521

[email protected]

18661828.1 DLA Piper (Canada) LLP | 1

OUCH, THAT HURTS! INCREASING DAMAGES AWARDS

By Wendy-Anne Berkenbosch and Matylda Makulska

1. Introduction

In recent years, there has been a notable increase in the quantum of damages being awarded in

employment-related claims. In addition to damages for payment in lieu of reasonable notice, wrongfully

terminated employees may be entitled to punitive or aggravated damages. Increasing damages are also

being awarded in the context of human rights complaints. In a number of recent cases, employees have

been awarded record setting damages. Clearly, the pendulum has swung towards higher damages,

particularly in regard to aggravated and punitive damages. Employers should take note: latest decision

and award trends seem to indicate that Canadian courts and tribunals are prepared to impose significant

financial penalties on errant employers.

2. Notice Periods

It is well established that employers have an obligation to give employees notice of termination,

unless there is just cause for immediate dismissal. Where there is no just cause for dismissal, employers

must provide their employees with reasonable notice or payment in lieu thereof. The critical question to

be asked when an employee has been dismissed is: what is the length of the reasonable notice period?

To determine the amount of reasonable notice, courts will evaluate each case individually, having regard

to the character of employment, the length of service of the employee, the age of the employee and the

availability of similar employment, also known as the Bardal factors.1 However, there have been some

recent developments in the way in which courts now assess reasonable notice periods.

(a) Is 26 Months the New Threshold?

The generally accepted upper threshold of reasonable notice in Canada has traditionally been 24

months. However, in the recent Ontario Superior Court case of Hussain v Suzuki Canada Ltd,2 a 35 year

employee was awarded 26 months' reasonable notice. The case involved a 65 year old Assistant

Warehouse Supervisor who had worked for Suzuki continuously for nearly 36 years. The employee had

1 Bardal v Globe & Mail Ltd, [1960] OJ No 149 (Ct. J).

2 [2011] OJ No 6355 (SC).


lost his job due to corporate restructuring as a result of economic hardship. The court noted that the

employee’s skills were general skills obtained on the job and were less marketable than skills that are the

product of a definable trade, and that the employee was near the end of his working years. Although each

of the Bardal factors on their own were not exceptional, the court held that the combination of factors

amounted to exceptional circumstances that warrant a 26-month notice period.

Employers ought to take note: there is no cap on the amount of reasonable notice to which an

employee may be entitled, since each case must be considered on its own merits. If a court finds that

“exceptional circumstances” exist in any given case, an employer could be on the hook for a large sum of

money, totalling more than 24 months reasonable notice.

(b) The Old “Rule of Thumb”

Traditionally, there was a “rule of thumb” applied in employment law. According to this rule, a

terminated employee was entitled to one month of reasonable notice per year of service. Although the

rule has the benefit of being predictable, certain and easy to apply, it is clear that there is no longer a true

“rule of thumb” for determining how much notice an employee is entitled to upon termination. The courts

have made it clear that each case is to be assessed based upon its own particular circumstances. The

Ontario Court of Appeal in Minott v O’Shanter Development Company Ltd3 held that the rule of thumb

approach suffers from two deficiencies: “it risks overemphasizing one of the Bardal factors, length of

service, at the expense of the others; and it risks undermining the flexibility that is the virtue of the Bardal

test.”4 As such, it is clear that there is no single measure to determine the amount of reasonable notice

that an employee is entitled to.

More recently, the Saskatchewan Court of Appeal in Capital Pontiac Buick Cadillac GMC Ltd v

Coppola5 held that the rule of thumb was no longer supported by the majority of cases. Furthermore, the

court stated that “while employers may wish to use the one month’s notice per year of service rule of

thumb as a guideline in their day-to-day decision-making given its apparent facility, they do so at their

3 [1999] OJ No 5 (ONCA).

4 Ibid at page 21 (QL).

5 2013 SKCA 80.


own peril because the rule is not supported by the jurisprudence and is inconsistent with Bardal.”6 As

such, employers should resist the temptation of identifying an easy way to calculate notice periods. At

common law, calculating notice periods requires a contextual analysis taking into account several factors,

with each case determined on its merits. There are no hard and fast rules.

3. Trend: Increase in Damages Awards

In 2008, the Supreme Court of Canada in Honda Canada v Keays7 redefined the law of damages

in the context of employment. In particular, the court held that extending the notice period was not an

appropriate way to compensate for manner of dismissal, and that punitive damages were restricted to

cases of wrongful acts that were so harsh, malicious and reprehensible so as to justify punishment and

denunciation. As a result of this case, it was thought by many that extended awards and punitive

damages were effectively no longer available in wrongful dismissal cases. However, recent cases

suggest that aggravated and punitive damages are far from dead. Importantly, this trend of increased

aggravated and punitive damages is not limited only to wrongful dismissal claims, but also arises in the

context of Human Rights Tribunals. Also of significance is the fact that previously, large punitive awards

tended to be jury awards, and appellate courts, for the most part, had either significantly reduced or

eliminated punitive awards. As the cases below demonstrate, judges are now prepared to impose

significant punitive awards, and appellate courts are increasingly willing to uphold them.

The object of punitive damages is to punish an employer in order to deter future unfair conduct.

Punitive damages are not aimed at compensating the employee. These damages are exceptional and are

awarded only when the employer’s conduct is deserving of punishment because it is harsh, vindictive,

reprehensible and malicious.8 In the employment context, aggravated damages may be awarded to

compensate an employee when the circumstances of dismissal are insensitive, demeaning or humiliating.

Employers are held to an obligation of good faith and fair dealing in the manner of dismissal.9 Aggravated

6 Ibid at para 22.

7 2008 SCC 39.

8 Ibid at para 68.

9 Boucher v Wal-Mart Canada Corp, 2014 ONCA 419 at para 67.


damages are compensatory in nature (not punitive), and are awarded when the plaintiff’s actual injuries

have been aggravated by the defendant’s behaviour.10

The following cases provide some sobering examples of recent awards.

In Higginson v Babine Forest Products Ltd and Hampton Lumber Mills Inc,11

the employee

worked for the employer for 34 years prior to the termination of his employment. He had worked as an

electrical supervisor in a sawmill where the closure was imminent. The employee took the position that his

employer’s allegations of just cause for termination were an attempt to avoid providing him with

reasonable pay in lieu of notice. The allegations of just cause failed and the employee was granted 24

months’ notice, with some deduction for failure to mitigate. A jury awarded the employee $236,000 in

compensatory damages for wrongful dismissal and $537,000 in punitive damages. This was the highest

award of punitive damages in a Canadian wrongful dismissal case at the time, until Boucher v Wal-Mart12

(discussed further below).

The Federal Court of Appeal in Tipple v Canada (Attorney General)13

addressed the issue of

damages when the employee experienced loss of reputation arising from the suggestion that his

employment was terminated due to misconduct. The adjudicator awarded approximately $1.4 million in

damages to the former employee, including: nearly $690,000 for lost wages, $110,000 for lost

performance bonus, $110,000 for lost benefits, $125,000 for psychological injury, $250,000 for loss of

reputation and over $45,000 for obstruction of process. The adjudicator found that the employer’s actions

had contributed to the employee’s damages, and the employer had not taken steps to minimize the

damage to his reputation that they should have taken. On judicial review, the Federal Court set aside the

award of damages for psychological injury, loss of reputation, and obstruction of process. The court

believed the employee was entitled to moral damages, but felt that the amount was too high and sent the

matter back to the adjudicator to be reassessed. On appeal, however, the Federal Court of Appeal

accepted that the employee’s reputation was damaged by false accusations related to his termination and

restored the $250,000 award for loss of reputation. In doing so, the Court of Appeal held that damages for

10

Lewis Klar, Tort Law, 4th ed (Toronto: Thomson Canada Limited, 2008) at 121.

11 2010 BCSC 614.

12 Supra note 9.

13 2012 FCA 158.


loss of reputation stemming from a wrongful termination are available where: (a) the employee’s

reputation is damaged by public knowledge of false allegations relating to the termination; (b) the

employer fails to take reasonable corrective steps and offers no reasonable excuse for such failure; and

(c) the damage to the employee’s reputation impaired his or her ability to find new employment.14

A self-represented litigant in Kelly v Norsemount Mining Inc15

achieved a significant punitive

damage award of $100,000. The employee alleged that he was dismissed because he insisted on

compliance with securities regulations. The employer, on the other hand, alleged the employee was

dismissed for cause on the basis of fraud and incompetence. The employer maintained those allegations

for seven years, and threatened to bankrupt the employee in an attempt to dissuade him from pursuing

his legal rights. In awarding punitive damages, the British Columbia Supreme Court held that the

employer breached its duty of good faith and conducted itself both at the time of termination and

afterwards in a manner that could be described as harsh, vindictive, reprehensible and malicious. The

court further determined that since the general damages award was relatively small, an additional and

significant award of punitive damages was necessary to effectively deter the employer.

Interestingly, in Morgan v Herman Miller Canada Inc,16

the Human Rights Tribunal of Ontario

awarded damages of $70,000 to a former employee, despite finding that no discrimination had occurred.

The Tribunal determined that the employee had not established on a balance of probabilities that he was

assigned menial and demeaning tasks because of his colour. The employer eventually terminated the

employee alleging just cause on the basis that the employee’s “campaign of misinformation” caused

unnecessary alarm amongst co-workers. The Tribunal held that the employer’s decision to terminate the

employee’s employment was made as a reprisal for expressed concerns about harassment and

discrimination. As such, the employee was awarded 14 months’ lost wages and $15,000 as damages for

injury to dignity, feelings and self-respect. It was further ordered that the employer have its human rights

policies reviewed and its managers trained in their application. In addition, the individual manager

14

Ibid at para 16. 15

2013 BCSC 147. 16

2013 HRTO 650.


responsible for the termination was directed to undergo human rights training (despite the fact that the

manager was no longer with the employer).

The British Columbia Human Rights Tribunal decision of Cassidy v Emergency Health

Services Commission (No 5)17

is particularly significant in the context of damages, not for the size of the

award, but for the fact that the individual manager was held jointly and severally liable. The employee,

who had multiple sclerosis, worked as a paramedic. As a result of his disability, he was not able to

manually palpate a pulse. The Tribunal found both the employer and the manager liable for failing to

accommodate the employee after his suspension from duty. Not only did the manager fail to support the

employee in his search for accommodation, the Tribunal also noted that the manager took steps intended

to thwart the employee’s efforts to be accommodated and actively sought to keep the employee out of an

ambulance. This conduct justified a finding of personal liability against the manager. As such, the Tribunal

awarded $22,500 for injury to dignity, feelings and self-respect, as well as damages for lost wages and

benefits. These damages were payable jointly and severally by the employer and the manager. This

means that both parties were responsible for the full amount of the obligation.

In Walsh v Mobil Oil Canada,18

the employee filed a complaint with the Alberta Human Rights

Commission alleging discrimination on the basis of gender over a period of several years. The employee

was initially hired as a junior map clerk, and although she received several promotions while working for

the employer, she also faced serious gender discrimination. Neither her pay scale nor her designations

kept pace with her actual responsibilities, her abilities, her education, or the pay and designations of her

male peers. When the Alberta Human Rights Tribunal dismissed the employee’s first complaint, the

employer terminated her employment claiming it had cause to do (this claim was later rejected by the

Court of Queen’s Bench). The exclusive focus of the Alberta Court of Appeal in this decision was about

remedy. In considering the appropriate award for general damages, the court noted that in Alberta there

is no statutory limit on the amount of damages available for mental distress, injury and loss of dignity

flowing from discriminatory conduct. The Court of Appeal upheld the lower court’s award of $25,000, but

reasoned that the award was on the low end of what was appropriate in the circumstances, given the

17

2013 BCHRT 116. 18

2013 ABCA 238.


wilfulness of the employer’s conduct, the duration of the conduct, the damaging impact on the employee,

and the untenable position that the employer maintained throughout the litigation that the employee was

terminated for cause.

In Tl’azt’en First Nation v Joseph,19

the Federal Court gave further direction about when it is

appropriate to award aggravated and punitive damages. The employee was employed by the First Nation

for more than 30 years prior to his dismissal. After the employee sent a letter to the executive director

criticizing his management style, the executive director began to target the employee with unsupported

claims of fraud and mismanagement. As a result of the threatening and harassing conduct, the

complainant’s health deteriorated to the point that he was compelled to take medical leave. While on

medical leave, the executive director proceeded to widely distribute accusations of criminal wrongdoing,

insubordination and sexual assault of another employee. The employee was then fired without notice.

With regard to aggravated damages, the Federal Court reasoned that the adjudicator awarded the

aggravated damages flowing from the manner in which the employee was dismissed, and that $85,000

was entirely justifiable given the heavy handed conduct in this case. With regard to punitive damages, the

court further reasoned that $100,000 was justifiable as the employer’s conduct was reprehensible,

dishonest, malicious, deliberate, despicable, deceitful and in bad faith.

The Ontario Court of Appeal recently rendered a decision in Pate Estate v Galway-Cavendish

and Harvey (Township)20

where it held that significant punitive damages were appropriate. The case

involved a building inspector who was dismissed without notice. The employer alleged that the employee

kept permit fees. The employee was criminally charged and eventually acquitted. It was later determined

that the employer had withheld exculpatory evidence from the police, and the court concluded that had

this evidence been provided to the police, the former employee would not have been criminally charged in

the first place. Although the trial award of punitive damages was reduced from $550,000 to $450,000, this

is the second largest punitive damages award to survive review by an appellate court in the employment

19

2013 FC 767. 20

2013 ONCA 669.


law context.21

This case is significant not only because of the size of the award, but also because the

original award was by a trial judge and not a jury. The Supreme Court of Canada refused leave to appeal.

In keeping with the trend of damages awards increasing, in IBM Canada Limited v Waterman,22

the Supreme Court of Canada confirmed that employers may not deduct earned pension benefits from

wrongful dismissal damages. The employee had been a long-time member of IBM’s defined benefit

pension plan and had a fully vested interest in the plan when he was terminated without cause with two

months’ notice. Both his employment contract and the plan were silent on employee rights and

entitlements in the event of termination without cause. The Supreme Court determined that the private

insurance exception applied in this case, which provides that payments from private insurance are not

typically deductible from damage awards. Furthermore, the contract of employment did not contain any

general bar against receiving full pension entitlement and employment income. The court also considered

broader policy objectives and, in particular, was concerned that allowing the deduction would create an

economic incentive for employers to dismiss their pensionable employees before other employees.

Though this case holds that pension payment should not typically be deducted from wrongful dismissal

damages, the Supreme Court has left open the possibility for employers to expressly stipulate in the

employment agreement that wrongful dismissal damages and pension benefits will not be paid

simultaneously. Since this case was decided in 2013, it has already been applied in several decisions.23

In The City of Calgary v CUPE Local 38,24

an employee of the City of Calgary’s Roads Division

was repeatedly sexually assaulted by a senior employee, including repeated fondling while she was at

her desk. When the employee reported the assaults to her manager, his solution was to install an

extension on the employee’s desk to make it more difficult to approach her from behind. At a meeting with

the manager, the employee described the assaults and provided stills from a spy camera she had

installed, however, the manager found the evidence to be inconclusive. She subsequently went on a

21

The largest punitive jury award in an employment law case to survive appeal was in McNeil v Brewers Retail Inc, 2008 ONCA 405. The jury awarded $500,000 in punitive damages and the Ontario Court of Appeal upheld the award. 22

2013 SCC 70. 23

Morris v ACL Services Ltd, 2014 BCSC 1580; Lethbridge Industries Ltd v Alberta (Human Rights Commission), 2014 ABQB 496; and Liu v Everlink Services Inc, 2014 HRTO 202. 24

2013 CanLII 88297 AB GAA.


stress-related medical leave of absence and was hospitalized twice for contemplating suicide. An

independent medical examination concluded that the sexual assaults and their aftermath were the

primary causal factors of the employee’s psychological difficulties and would require extensive treatment

to improve her functioning. The Arbitration Board awarded the employee $125,000 in general damages,

as well as over $700,000 for damages for loss of income, on the basis that the city’s failure to respond to

the situation resulted in a serious and life-altering adverse impacts. Interestingly, the Board declined to

award punitive damages, observing that punitive damages are only awarded when the compensatory

damages are insufficient to accomplish the purpose of retribution, deterrence and denunciation, and in

this case, significant compensatory damages were already awarded.

The decision of Kelly v University of British Columbia (No 4)25

is significant, as the British

Columbia Human Rights Tribunal awarded the complainant $75,000 in damages for injury to dignity,

which is more than double the previous highest award for this type of injury set in 2008.26

The

complainant was a medical resident at UBC Medical School. He suffered from ADHD and had a non-

verbal learning disability. After failing his first rotation in the residency program, he disclosed his

disabilities and was asked to see a psychiatrist. In 2007, the complainant was dismissed from the family

medicine residency program for unsuitability. In making the award for injury to dignity, the Tribunal noted

the following factors: the effect of the termination on the complainant’s ability to fulfill his lifelong dream of

practising medicine; the humiliation and embarrassment he experienced when he was forced to seek

employment in medicine-related fields; the impact on his personal life; and the fact that he was in a

vulnerable position in that he was a student who had a disability. This case may signal the court’s

increasing willingness to increase this kind of damages award in the future.

In Boucher v Wal-Mart,27

the jury awarded the largest punitive award in an employment law case

in Canada, however, this award was subsequently reduced on appeal. The former employee complained

that her relationship with her immediate supervisor turned sour after an incident in May 2009 in which she

refused to falsify a temperature log. The employee alleged that this caused the manager to be mentally

25

2013 BCHRT 302. 26

The previous highest damages awarded for injury to dignity was $35,000, awarded in Senyk v WFG Agency Network (BC) Inc, 2008 BCHRT 376. 27

Supra note 9.


abusive towards her, criticizing, demeaning and humiliating her in front of other staff. When the employee

complained of her supervisor’s conduct to Wal-Mart’s senior management, she was told that her claims

were unsubstantiated. Wal-Mart did not take any action against the supervisor. At trial, the jury found that

the employee had been constructively dismissed and awarded $1 million in punitive damages and

$200,000 in aggravated damages as against Wal-Mart, and $100,000 for intentional infliction of mental

suffering and $150,000 in punitive damages as against the supervisor personally. The Ontario Court of

Appeal reduced the punitive damages against the supervisor on the basis that since the other damages

were so high, the compensatory award carried a strong punitive element. As such, the supervisor’s

punitive damages were reduced to $10,000 and Wal-Mart’s punitive damages were reduced to $100,000.

Although the Court of Appeal reduced the portion of the award representing punitive damages, it upheld

other aspects, leaving the employer liable for a large sum of money. Employers ought to be aware that

failing to address bullying and harassment in the workplace could lead to a claim for constructive

dismissal and may itself constitute conduct causing mental distress that can give rise to an award for

aggravated damages.

In Bastien v 817775 Ontario Limited c.o.b. Pro-Hairlines,28

the Ontario Labour Relations Board

ordered the employer to pay aggravated damages, in addition to lost wages, after firing an employee in

retaliation for raising safety issues. The employee worked in a hair salon. While in the process of

unplugging her cellphone charger from the power bar used generally to plug in her hairstyling equipment,

the employee suffered a serious electrical shock. Although the employee’s doctor recommended that she

required a week off work, the employer refused to grant the leave and instead directed that she work

reduced hours. The employer took no steps to address the hazardous situation. The employee filed a

health and safety complaint in respect of her employer, at which point the employer terminated her. The

Board found that the employee was dismissed in retaliation for raising safety concerns and awarded lost

wages. The Board also awarded aggravated damages for mental distress, stating that such damages are

appropriate where the employer violates a “statutory prohibition.”29

The Board stated that “the awarding of

aggravated damages for employer conduct…is called for all the more where that conduct is violative of a

28

2014 CanLII 65582 (ON LRB). 29

Ibid at para 27.


statutory norm designed the protect workers - a vulnerable group whose relationship with employers is

one of unequal balance of power.”30

The employer was ordered to compensate the employee by way of

aggravated damages in the amount of $7,500 by reason of her dismissal contrary to Ontario’s

Occupational Health and Safety Act.

As we can see, while all of these cases have different facts, the result is often the same: courts

are increasingly willing to punish employers for what the court views as poor conduct in the course of the

employment relationship and following termination.

30

Ibid at para 35.


4. Practical Considerations for the Workplace

The cases explored in this paper help to illustrate the extent to which Canadian courts and

Tribunals are prepared to award extensive damages against errant employers. The old “rule of thumb” no

longer applies, and employers should not think that previous maximums awarded by courts will protect

them from further liability. However, there are steps employers can take to limit potential damages that

may be awarded against them.

As a starting point, employers should include clear and concise termination clauses in their

employment contracts, limiting notice periods or payment in lieu of notice. In order to increase the

enforceability of these clauses, employers should consider tailoring those clauses to the circumstances.

For instance, in the case of a lower level employee, the minimum amounts set out in employment

standards legislation may be appropriate. However, in the case of a higher level employee, consider

using a formula for calculating notice periods that includes a maximum amount payable. In addition, in

cases where a departing employee signs a release following termination, it is important that the release is

clear and concise, and that the employer is forthright when presenting it to the employee.31

Where a court

is satisfied that the release is drafted using simple plain language and it was clearly explained to the

employee, it is likely that an employer can limit liability for any future claims raise by the former employee.

The importance of setting out each party’s entitlement in the employment contract cannot be

understated. For instance, as stated previously, in IBM Canada Limited v Waterman,32

the employment

contract was silent on rights and entitlements in the event of termination without cause. Though this case

held that pension payments should not typically be deducted from wrongful dismissal damages, the

Supreme Court left open the possibility for employers to expressly stipulate in the employment contract

that wrongful dismissal damages and pension benefits would not be paid simultaneously.

Following the termination of an employee, employers should think carefully before asserting just

cause. Allegations of just cause should not be maintained throughout litigation, unless an employer is

prepared to fully substantiate those claims. Otherwise, a court may consider this as a factor when

31

Marquardt v Strathcona County, 2014 AHRC 3. 32

Supra note 22.


assessing the damages awarded to the former employee. For instance, in Walsh v Mobil Oil Canada,33

the fact that the employer maintained throughout the litigation that the employee was terminated for

cause, even though this was entirely unfounded, was a factor in the court determining that the lower

court’s damages award was on the low end of reasonable. Further to this point, employers ought not to

take steps that have the effect of damaging an employee’s reputation in the community. As seen in Tipple

v Canada (Attorney General),34

the Federal Court of Appeal accepted that the employee’s reputation was

damaged by false accusations relating to his termination, and awarded $250,000 for loss of reputation.

In addition, employers must not underestimate the importance of investigating employee claims

thoroughly and promptly. It is essential for employers to have an investigative process; not only can it

identify potential situations giving rise to a need for action or accommodation at an early stage, but it can

also lead to an effective resolution of workplace issues. Workplace investigations relied upon by

employers in subsequent civil or human rights proceedings will be subject to intense scrutiny. As we have

seen, in City of Calgary v CUPE Local 38,35

the Arbitration Board awarded over $800,000 in damages,

largely due to the city’s failure to respond to the employee’s complaints. In that case, the employee was

sexually assaulted several times by her supervisor, both before and after she made her initial complaint.

Employers must take note: if you receive a complaint, treat it seriously!

It is clear that having a sound investigative policy in place is an important step in minimizing

potential damages claims, however, it is not enough to merely have good policies on paper. The entire

workforce needs to know what the policies mean, and, if there is a breach, that management will react

quickly and competently. The case of Boucher v Wal-Mart36

is instructive on this point: despite the fact

that Wal-Mart is a large sophisticated organization, it was still held liable for the misconduct of an

employee. Wal-Mart had all the necessary policies in place: the Open Door Communication Policy, the

Prevention of Violence in the Workplace Policy and the Harassment and Discrimination Policy. The

employee testified that despite these policies, she was subject to harassment which led her to quit her

job. As such, employers ought to be aware that failing to address bullying and harassment in the

33

Supra note 18. 34

Supra note 13. 35

Supra note 24. 36

Supra note 9.


workplace could lead to a claim for constructive dismissal and may itself constitute conduct causing

mental distress that can give rise to an award for significant damages.

5. Conclusion

It is likely that the trend of courts and tribunals increasing damages awards will continue.

Employers must take the potential for these awards into account while striving for best practices in the

difficult circumstances of terminating an employee. The message that is being conveyed by the courts is

that employers ought to ensure that employees are treated appropriately during the course of

employment and at the time of termination. Otherwise, the employer could be on the hook for a large sum

of money.

HOW TO BULLYPROOF

YOUR WORKPLACE

Presented by Michael S. RichardsPrepared with the assistance of Katherine Ruta


Friday, May 8, 2015

BEFORE WE START…

�What is Bullying/Workplace Harassment?

� Can be words or actions� Vexatious or inappropriate� Knew or should have known was unwelcome

� Not legitimate performance management


THE LEGAL RISKS

�Reprisals under Occupation Health and Safety

�Worker’s Compensation

� Litigation

� Constructive dismissal� Aggravated damages� Punitive damages


OCCUPATIONAL HEALTH AND SAFETY

Ljubja v Aim Group Inc. (2013)

� Screamed and yelled at by supervisor in front of others

� Approached HR and was told would not be punished for making a formal complaint

� Shortly after complaint was made, the employee was terminated.

� Specifically told the reasons were not due to work performance issues.

� Obligation to “develop and maintain” a harassment policy means no retaliation for making a complaint


WORKER’S COMPENSATION

� Last year’s Decision No. 2156/09 had the practical effect of making workers compensation claims for bullying more accessible.

� The claimant had been a nurse at the same hospital for 28 years. For 12 of them she was subjected to yelling and demeaning comments by a doctor she worked for. The comments were made around other employees.

� The claimant was diagnosed with an adjustment disorder with mixed features of anxiety and depression which her doctors attributed to workplace stressors.

� The Board found the injuries compensable workplace injuries.



BOUCHER V WAL-MART CANADA CORP.

� Eight-year employee with regular promotions

� Refused to alter the reading on a temperature log as instructed by her supervisor

� Was unfairly disciplined and then subjected to repeated verbal abuse by her supervisor

� In front of other employees, managers and customers

� Wal-Mart paid $200,000 in aggravated damages, $100,000 in punitive damages as well as damages for constructive dismissal and $140,000 in legal costs


PREVENTION


POLICY DEVELOPMENT

� Develop a policy that is meaningful but attainable to follow through on for you organization. Key components:

1. Define Workplace Harassment/Bullying

2. How complaints are made and to whom

3. Flexibility for handling the complaint appropriately

4. Other legislated requirements

5. Reviewed and updated regularly


TRAINING AND AWARENESS

� Regularly

� Review of policy

� Commitment to remaining “bully-free”

� Provide examples of acceptable/unacceptable conduct

� Yelling/profanity

� Addressing performance issues

� Open/closed discussions

� Treatment of less confident individuals

� What to do if you witness inappropriate behaviour


VISIBILITY

� Complaints amongst co-workers

� Supervisors and HR need to be seen

� Social events

� Common areas


IMPLEMENTATION

� Consistent application

� Employee perception


PERFORMANCE REVIEWS

� Standard cycle and format

� Structured and scheduled meetings

� Honest and complete feedback

� Training/guidance in delivering feedback

� When to give and not to give informal feedback


THANK YOU!

Michael RichardsPartner, Toronto416.941.5395

[email protected]



BULLYPROOFING YOUR WORKPLACE

By Michael S. Richards and Katherine Ruta, Articling Student

Introduction

The recent inquiry into the Jian Ghomeshi scandal concluded that the CBC failed to provide its

staff a workplace free from disrespectful and abusive behaviour. The independent investigator hired by

CBC to conduct an investigation into the circumstances surrounding allegations made against Ghomeshi

concluded in a report that Ghomeshi’s behaviour violated CBC standards and was “considered to create

an intimidating, humiliating, hostile or offensive work environment”.1 The report also concluded that

management failed to take steps in accordance with its own policies and therefore condoned the

behaviour.2 This report could form the basis for liability of CBC in claims by employees that are sure to

unfold as a result of these conclusions.

Employers have long understood their obligation to provide a workplace free from harassment

and discrimination based on prohibited grounds, however, in recent years the obligation on employers to

protect employees from any type of harassment has emerged. Where employers fail to do so, an

employee may have recourse against his/her employer before an administrative body (such as the

Ontario Labour Relations Board) or the courts. In addition, workers’ compensation schemes may

compensate those with provable injuries caused by bullying thereby affecting premiums paid by

employers. Where an employee is seeking compensation for harm suffered from bullying in the

workplace, an employer’s workplace harassment policy and any steps taken in an attempt to resolve the

issue will be subject to scrutiny. Slowly but surely a legal obligation is being created for employers to

“bully-proof” their workplaces if they wish to avoid liabilities that could arise from any mistreatment of

employees.

1 “CBC inquiry concludes management mishandled Jian Ghomeshi”, CBC News (16 April 2015) online:

<www.cbc.ca/news” 2 Ibid.


In addition to the potential legal risks, bullying in the workplace may create a number of hard-to-

measure costs including increased sick time, reduced productivity and higher turnover. Employers who

succeed in bully proofing their workplace may also avoid or reduce these hard to measure and intangible

costs.

The Legal Risks: Bullying and Harassment at the OLRB, WSIB and in the Courts

The law in Ontario, and in many other provinces, has evolved to include the requirement for

employers to develop and maintain effective anti-bullying or workplace harassment prevention policies. In

Ontario, the requirement is found in the Occupational Health and Safety Act ( the “OHSA”). Unlike the

parallel requirement under the Human Rights Code, the requirement under the OHSA stops short of

placing an obligation on employers to provide a harassment free workplace. As a result, in Ontario, the

OLRB, the Workplace Safety and Insurance Board (WSIB), and the courts have all grappled with what, if

any, legal course of action is available for employees experiencing bullying or harassment at work, and

the extent to which employers are liable.

There is no doubt that legislative and judicial tolerance for bullying is stretched thin. The OLRB

accepts that bullying and harassment is a workplace safety issue. Disciplinary actions resulting from

employees complaining that workplace harassment policies were not followed may be considered an

unlawful reprisal under the OHSA. The WSIB, for its part, has removed a large barrier for claimants

seeking compensation for prolonged bullying or harassment at work. Finally, the Court of Appeal, in its

decision in Boucher v. Wal-Mart Canada Corp.3, signalled that employers would not be let off the hook if

they fail to enforce their policies effectively. Wal-Mart was ordered to pay $300,000 in damages for

mishandling a bullying complaint

The Ontario Labour Relations Board (the “OLRB”)

Prior to the enactment of Bill 168 in 2009 (the Occupational Health and Safety Amendment Act

(Violence and Harassment in the Workplace)) it was difficult, if not impossible, for an employee to seek

3 Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419 [Wal-Mart].


enforcement of the OHSA for the harassment of employees by managers or colleagues. In a 1996

decision the OLRB dealt with whether a work refusal because of sexual harassment, and subsequent

reprisal, could be construed as an unlawful reprisal for the enforcement of the OHSA. At that time, the

OLRB concluded that the OHSA was better suited to deal with physical rather than psychological injuries

and declined to inquire into the complaint.4

When the amendments to the OHSA came into effect in 2010, the Board once again had to

consider what role it would play, if any, in adjudicating complaints of workplace harassment and whether

a claim that an employee had been reprised against for making a complaint of workplace harassment was

a claim that the employee had been reprised against for exercising a right under the OHSA. In Conforti v

Investia Financial Services Inc. (2011)5, the OLRB struggled with what, if any, liability might arise out of

the obligation under the OHSA to develop and maintain a workplace harassment policy. The applicant

alleged that he had been discharged for making a harassment complaint and argued this was an unlawful

reprisal. The OLRB noted that the applicant made no allegations that the employer had not fulfilled their

obligation to create a policy with respect to workplace harassment as required by the OHSA.

After engaging in a lengthy discussion around statutory interpretation, the OLRB noted that the

legislature must have considered the issue in detail when crafting Bill 168. The OLRB concluded that the

OHSA only required an employer to put a workplace harassment policy and program in place and to

provide a worker with information and instruction as appropriate. The OLRB found there were no specific

rights granted to a worker with respect to workplace harassment, and that it did not have the authority to

adjudicate upon the practical application of a policy that otherwise complied with the OHSA. In the end,

the OLRB simply declined to inquire into the complaint on the facts, but left the door open by suggesting

that if the OLRB did have jurisdiction over these kids of complaints it should scrutinize applications at the

outset.

4 Musty v Meridian Magnesium Products Ltd., [1996 OLRB] Rep 964.

5 Conforti v Investia Financial Services Inc., [2011] OLRB Rep 549.


In 2013, however, the OLRB reconsidered this position and concluded that the OHSA protected

employees who were alleging that they had been reprised against for making a complaint of workplace

harassment. In Ljuboja v Aim Group Inc.6 there was an incident where an employee was belittled by his

supervisor; he was screamed and yelled at. The employee approached human resources about the

incident and was told that reporting it would not result in a reprisal against him. However, shortly after

making a formal complaint he was informed that he was being terminated and was advised the

termination was not the result of performance issues. The employee alleged that he was terminated

because he made a complaint of workplace violence and workplace harassment.

Once again, the OLRB went through the provisions of the OHSA that place an obligation on

employers to create and maintain a workplace harassment policy. The OLRB recalled that in Conforti it

did not dismiss the ability of the OLRB to hear alleged reprisal complaints arising out of workplace

harassment complaints all together. The OLRB went on to conclude that the meaning of the phrase

“…develop and maintain a program to implement a policy…”7 within the legislation must include a

requirement to ensure that the policy is carried out and complied with. It would completely undermine this

requirement to permit an employer to terminate a worker for making a complaint of workplace

harassment. As a result, terminating a worker because they have made a workplace harassment

complaint would be terminating the worker because they sought enforcement of the OHSA or were acting

in compliance with the OHSA; namely, seeking to have their employer comply with its obligation to enable

the worker to make the workplace harassment complaint.

The OLRB did maintain its position, however, that the OHSA places no obligation on employers

to provide a harassment free workplace or to provide any specific type of investigation or outcome to a

harassment complaint. The only inquiry the OLRB will make into the underlying allegations of harassment

is whether the employer terminated, or otherwise penalized, the worker for having filed the workplace

6 Ljuboja v Aim Group Inc., [2013] OLRB Rep. 1298.

7 Occupational Health and Safety Act, RSI 1990, c 0.1, s 32.02(1) [OHSA].


harassment complaint. Lastly, the OLRB will exercise its discretion to inquire into an alleged reprisal for

filing a workplace harassment complaint on a case by case basis.

Assuming the Board follows the decision in Ljuboja, going forward, it provides reasonably clear

guidance for employers with respect to their obligations under the OHSA. Employers are not tasked with

providing a harassment free workplace or guaranteeing any particular outcome of a harassment

complaint. They are however, required to develop, maintain and communicate meaningful harassment

policies and programs and they cannot terminate or reprise against an employee for making such a

complaint.

The Workplace Safety Insurance Board (the “WSIB”)

Last year, the WSIB issued an important decision for those who suffer injuries as a result of

sustained bullying or harassment at work. The decision is also worthy of employers’ attention since

worker compensation claims can impact premiums paid to the WSIB by employers. In Decision No.

2156/098, the WSIB found that the distinction between thresholds for physical and psychological injuries

in the Workplace Safety and Insurance Act (WSIA) was discriminatory. This decision had the practical

effect of making workers compensation claims for bullying more accessible.

In this case, the employee was a nurse at the same hospital for twenty-eight years. For twelve of

those years she was subject to ill treatment by a doctor who she worked with. This included yelling and

making demeaning comments in front of both colleagues and patients. It all culminated in an incident

when the employee attempted to carry out her duties in the clinic where she worked, but the doctor

continually and repeatedly interrupted her talking with patients, told her to “shoo” and closed the door on

her heals. The employee felt the doctor was interfering with her ability to perform her job and brought her

concerns to the team leader the next day. In response, the team leader advised the employee that her

responsibilities would be significantly reduced.

8 Decision No 2157/09, 2014 ONWSIAT 938.


The employee was unable to continue working. She sought medical and psychiatric treatment.

The employee described feeling pushed around, battered, humiliated, and discredited. She was

diagnosed with an adjustment disorder with mixed features of anxiety and depression, which her doctors

attributed to workplace stressors. The employee filed a claim for mental stress with the WSIB.

The WSIB found that the provisions of WSIA dealing with mental stress put an extra burden on

employees seeking to claim compensation for psychological harm. The WSIA required that mental stress

arise out of a sudden and unexpected traumatic event. Further, mental stress claims are limited to acute

reactions in these situations. Claimants with physical injuries are not required to show that the injury was

caused by a sudden or traumatic event, and would also be entitled to benefits where the injury arose

gradually over time due to the nature of the work they performed. The WSIB declined to apply the

provisions creating the extra hurdle to the employee, and determined that she had a compensable work

place injury.

This decision should signal the level of responsibility placed on employers to avoid and

appropriately handle bullying in the work place. The WSIB has acknowledged that sustained harassment

or bullying over time can result in compensable psychological injuries. If employers do not want to see

their premiums increase, and also have employees with a decision in hand that links bullying in their work

place to a compensable injury, it would be advisable to ensure the organization has in place a program

that effectively addresses bullying and harassment.

The Courts

Last year the Ontario Court of Appeal released an important decision condemning Walmart’s

handling of an ongoing bullying problem in one of their locations. The decision shows the extent to which

the courts will examine the steps taken by employers when dealing with bullying and harassment

complaints in assessing their liability, and the financial ramifications for those found liable.


In Boucher v Wal-Mart Canada Corp9., the plaintiff was a valued Wal-Mart employee for eight

years. Since the beginning of her employment, she received regular promotions and eventually accepted

a transfer to Wal-Mart’s Windsor store as an assistant manager. Although she initially enjoyed a good

working relationship with her manager, relations between them became problematic after an incident in

which she refused to alter a temperature log because the manager feared this oversight would reflect

poorly on him in the store’s upcoming evaluation. She was subjected to a disciplinary coaching session.

Because she felt she had been unfairly disciplined, and because she had been subjected to profane and

disrespectful language when he spoke to her, the plaintiff decided to use Wal-Mart’s Open Door

Communication Policy.

The plaintiff and one other assistant manager met with the District People Manager to speak

about their concerns with the manager. In breach of the policy, the manager was made aware of the

meeting. From the day the manager found out about the meeting he subjected the plaintiff to an

unrelenting and increasing torrent of abuse. The plaintiff met with senior management because nothing

had been done to address her complaints. The management team said they would investigate. After a

period of time Wal-Mart’s management team told the plaintiff that they had investigated her complaints

and found them unsubstantiated. They also told her that she would be held accountable for making these

unsubstantiated complaints. The court noted that little evidence was led at trial that the Wal-Mart

investigators sought information from other assistant managers who had witnessed the manager’s

abusive conduct. The plaintiff eventually quit after a particularly troublesome incident.

The plaintiff filed suit against the manager personally as well as against Wal-Mart for constructive

dismissal. At trial, the jury awarded $200,000 in aggravated damages against Wal-Mart and $1,000,000 in

punitive damages. The jury awarded $250,000 in damages against the manager, $100,000 for

intentional infliction of mental suffering and $150,000 in punitive damages.

On appeal, the punitive award against the manager was reduced to $10,000, however, the

damages for intentional infliction of mental distress were upheld. In reviewing the award against Wal-

9 Wal-Mart, supra note 3.


Mart on appeal, the Court upheld the $200,000 award of aggravated damages, criticising Wal-Mart for not

taking adequate steps to bring an end to the manager’s conduct, not taking the plaintiff’s complaints

seriously, and for failing to enforce its workplace policies. In lowering the jury’s punitive damage award

against Wal-Mart from $1,000,000 to $100,000 the court noted that Wal-Mart was already liable for

significant compensatory damages, its misconduct lasted less than six months, and the employer did not

profit from its wrong. In total Wal-Mart was on the hook for $300,000 to the plaintiff plus the costs and bad

press associated with the lawsuit.

What is notable here, other than the monetary penalties, is the Court’s assessment of an

employer’s work place policies, and the steps taken (or lack thereof) in enforcing them. This decision

sends a strong message to employers to ensure their anti-bullying and workplace harassment policies are

being implemented and carried out effectively. Leaving the rather unfortunate set of facts in the Wal-Mart

case aside, it also suggests that employers need to carefully consider their policies to ensure they are not

setting the bar too high for themselves. If courts are going to review employers’ policies against actions

taken by the employer, it is important the create procedures that set reasonable standards and practices

that are both fair and attainable.

Preventive Measures: Bully-Proofing the Workplace

There is probably no limit to the number of strategies that could be proposed for preventing

workplace harassment/bullying. Since you don’t want to read this paper forever, however, we have

settled on five (5) areas that we hope will have application to a broad variety of workplaces. We have also

tried to avoid recommending or proposing a particular culture and instead have focused on principles that

should apply regardless of a particular workplace culture.

1. Policy Development

To protect against liability, employers need to ensure that they have sound policies. In Ontario,

British Columbia and Quebec these policies are required in most workplaces. The policy should reflect


the applicable legislative definition of workplace harassment/bullying. In Ontario, workplace harassment

is defined as:

Engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.

10

In Quebec, “Psychological Harassment is defined as:

vexatious behaviour in the form of repeated conduct, verbal comments, actions or gestures: that are hostile or unwanted; that affect the employee’s dignity or psychological or physical integrity; and that make the work environment harmful.

11

Finally, in British Columbia, WorkSafeBC has defined bullying to include

… any inappropriate conduct or comment by a person towards a worker that the person knew or reasonably ought to have known would cause that worker to be humiliated or intimidated, but excludes any reasonable action taken by an employer or supervisor relating to the management and direction of workers or the place of employment.

12

The Policy should address how complaints are made and who they are made to. The ability to

request or require the complaint be made in writing should be preserved. Consideration should be given

to how the reporting will work if the person to whom the report is to be made is the alleged bully and

harasser.

To the extent possible, the Policy should ensure there is flexibility for handling the complaint in an

appropriate way. This will generally involve having an option for an informal resolution mechanism at one

end of the spectrum and a full investigation – potentially with an external independent investigator – at the

other end of the spectrum.

The Policy will also need to cover off any legislative requirements with respect to record keeping

and timelines and should be reviewed on a regular basis to ensure it is up to date and not in need of

revision.

10

OHSA, supra note 7 at s 1. 11

An Act Respecting Labour Standards, CQLR c N01.1, s 81.18. 12

WorkSafebC, OHS Policies for Bullying and Harassment (British Columbia, 2015), online: www.2worksafebc.com

http://www.cnt.gouv.qc.ca/en/lexicon/index.html%23default_35

http://www.2worksafebc.com/


Employers should also be keenly aware of the risks of developing a policy that overstates its

obligations and as such should create both realistic and effective policies to address workplace bullying

and harassment.

2. Training and Awareness

Employers should ensure that they are providing training on their anti-bullying/workplace

harassment policy on a regular basis. We recommend that such training be provided at least once a

year. The training should involve a review of the policy and of the organization’s commitment to

remaining “bully free”. It should provide employees with examples of acceptable and unacceptable

behaviour and focus on identifying harmful behaviours. Consideration should be given to addressing:

- when and how often yelling occurs in the workplace;

- when and how often is profanity used;

- when performance issues have to be addressed is this done appropriately and without an

audience;

- are less confident individuals treated differently;

- when are issues open for discussion and when are they not and how is this made clear.

Employers should also ensure that the organization’s stance on workplace harassment/bullying is

made clear all the time. Policies should be posted in a prominent area and advertisements that the

workplace is harassment or bully-free should be posted.

Awareness also involves employees knowing what to do when and if they witness inappropriate

behaviour.

3. Visibility


Although most workplace harassment/bullying cases involve a supervisor and subordinate

relationship there are many less serious but still time and resource consuming ones that involve incidents

amongst co-workers. Often these incidents come to a head at social events or in common areas.

Common areas can help staff connect and build trust that will make the organization stronger. They can

also become a battlefield and poison the work environment if an employee uses that space to assert

themselves in a negative way. Social events can produce the same results. Many employers see social

events as a way to foster better working relationships by providing fun and engaging events outside of

work. However, just like common areas, social events also have the potential to give rise to bullying by

providing a forum for bullies to victimize their colleagues. Close attention should be paid to the kind of

culture that is created by these spaces and events. The attendance and visibility of supervisors and

human resources in these spaces and at these events can go a long way towards defusing and

preventing these incidents.

4. Implementation

Once the policy is in place and the training has been conducted there needs to be a clear

response to complaints made. If complaints are not addressed in accordance with the policy then

employers risk undermining all of the work done to this point. As complaints and the resolution of them is

a confidential matter, it is not always possible to demonstrate that you are handling complaints

appropriately. As a result, you may want to consider other methods of gathering feedback on how the

organization’s treatment of complaints is perceived such as employee surveys and open door/coffee chat

discussions with HR.

In addition, organizations should ensure policies and procedures are enforced top to bottom and

that no one is exempt. The Ghomeshi scandal provides one extreme example of a problematic

environment that can result when policies are not implemented properly. Due to his success, Ghomeshi

was considered a “god” and this status he was given created a culture of complicity regarding his


misconduct.13

Regardless of whether an employer has policies and procedures in place this kind of

culture discourages people from reporting incidences they might otherwise report.

5. Performance Reviews and Feedback

The last step in bully-proofing your workplace is also a big step towards protecting your self from

unjustified complaints. There are two key elements that should be addressed regarding performance

reviews and feedback: (i) the formal performance review process and (ii) on the spot, informal feedback.

(i) The Formal Performance Review Process

A standard cycle and format should be established for performance reviews. Supervisors should

be encouraged and held accountable for taking this process seriously. The importance of giving honest

and complete feedback cannot be overstated. In many workplace harassment complaints the employee

provides their history of performance reviews – which show them to be a fine or even above average

employee – to demonstrate that their supervisor’s conduct towards them was harassment and not

legitimate performance management.

Where possible avoid allowing a simple rank or rating system without an explanation. If you do

require an explanation, require it in all cases, not just where a needs improvement or below average

rating is given. Where possible, ask managers to provide specific examples of good or bad performance

and provide suggestions for change or improvement.

When reviews are delivered, they should ideally be done with a representative from human

resources or another manager present. These meetings should be structured and are an opportunity for

both the manager and employee to address concerns at work. Managers should give balanced feedback,

providing examples of both good and poor performance or behaviours. Employees should be given an

opportunity to share their perspective without judgement - this should be documented - particularly if no

concerns are raised. Dates should be set for follow up if there are areas of concern.

13

Sheryl Johnson “Improving the Health of your Workplace Culture: Poor Culture can be Liability” HR Professional, March/April 2015, at p 12.


(ii) Informal Feedback

Providing on the spot feedback can be both useful and threatening depending on the context and

the approach. Without forethought, managers may not communicate their feedback in an ideal manner

causing the employee to feel threatened. Feedback should never be given without due consideration to

how it will be perceived by the employee. Negative feedback should always be delivered discretely and

without an audience if possible. Furthermore, the purpose of the feedback should be to improve

performance not to discipline or shame the employee. If discipline is warranted, it should be delivered

formally and in an appropriate way, not off the cuff through a verbal dressing down.

Where resources permit, employers should ensure that proper training and support is given to

management in order to ensure that any feedback given by them is both effective and administered

properly. One way to ensure this is to have management and senior employees undergo training on how

to communicate, listen, express and manage more effectively.14

Conclusion

Workplace harassment and bullying will continue to be an issue for employers. Allegations are

now being made frequently in wrongful dismissal cases that the terminated employee was harassed or

bullied to justify claims for additional damages. In order to prevent these types of claims and to have the

best defence available in the event they arise, employers have to do more than simply have a policy, they

need to be proactive and take steps to make their workplace bully free.

14

Jennifer Loh, “The Role of Human Resource Departments in Addressing Bullying Behavior” Bullying in the Workplace: Causes Symptoms, and Remedies Edited by John Lipinksi and Laura M. Crothers, at 265.


MEET THE EXPERTS

Update on the AODA:

Jane Sleeth, Optimal Performance Inc.

Successful Strategies for Mediation:

Bernard Morrow, B.A., LL.B., LL.M., Morrow Mediation

Conducting Investigations:

Derek Rostant, CPA, CA.IFA, CBV, Partner, KPMG LLP

Tax Issues 101 for Employers:

Adrienne Woodyard, Partner, DLA Piper (Canada) LLP

BERNARD MORROW

B.A. LL.B. LL.M. C. Med 45 St. Clair Avenue West, Suite 901

Toronto, Ontario M4V 1K9 P: 416-924-7400 F: 416-652-7405 [email protected]

www.morrowmediation.ca

Bernard Morrow is the principal of Morrow Mediation, a Toronto area based full service alternative dispute resolution (ADR) firm. Bernard has been successfully providing fair and balanced dispute resolution services at a sensible price since 1994.

In addition to conducting his ADR practice, Bernard was appointed the Complaints Resolution Commissioner for the Law Society of Upper Canada for a two year term commencing April 1, 2014. The Commissioner performs an ombuds role, independently reviewing complaints against lawyers and paralegals that have been closed by the Law Society to ensure they were handled appropriately and the results were reasonable. The Commissioner’s role is a part-time commitment and a perfect complement to Bernard’s ongoing private dispute resolution practice.

Practicing as a litigator in the early 1990’s, Bernard was initially drawn to the ADR field by a desire to achieve more efficient client-centred resolutions to disputes. This led him to take considerable training in mediation and ADR consulting both in Canada and the U.S., making him a more complete advocate and awakening a passion for the field of conflict resolution.

His mediation experience includes providing services to the Financial Services Commission of Ontario and the Information and Privacy Commissioner/Ontario (IPC), as well as conducting a variety of mediations as a private practitioner and as a member of the Ontario Mandatory Mediation Program Roster - Toronto/Ottawa and the Toronto Construction Association Roster of Mediators. Bernard has conducted more than 1000 mediations. His areas of focus as a mediator include commercial breach of contract cases, employment disputes (including wrongful dismissals), human rights, partnership dissolutions, construction disputes and personal injury cases.

Bernard’s arbitration skills have been built on a strong foundation. Between February 2002 and July 2013, he served as an adjudicator with the IPC, adjudicating more than 300 appeals over that time. In his role at the IPC, he adjudicated complex access to information appeals and issued binding written decisions.

Prior to joining the IPC, Bernard worked for two years as Legal Counsel and Senior Facilitator with Ontario’s Dispute Resolution Office where he developed and delivered ADR-focused training programs, facilitated complex poisoned workplace interventions, and designed and convened large-scale consulting projects involving public and private sector stakeholders.

He has designed and delivered several of his own training programs, including an advanced negotiation course for the University of Toronto’s School of Continuing Studies and a certificate program in ADR for the Seneca College of Applied Arts and Technology.

Bernard obtained his B.A. in political science in 1982 and his LL.B. in 1985, both from the University of Western Ontario. In 1988, he was awarded his LL.M. by the London School of Economics and Political Science in London, England, in the areas of labour, employment law and human rights. He was called to the Ontario Bar in 1988. In May 2013, Bernard was awarded the Chartered Mediator (C. Med) designation by the ADR Institute of Canada, Canada’s only professional designation for practising mediators.

Bernard has completed extensive skill and theory based ADR training with such organizations as Canadian Dispute Resolution Corporation (Toronto, Canada), CDR Associates (Boulder, U.S.), Transformative Justice Australia (Sydney, Australia) and the Society of Ontario Adjudicators and Regulators (Toronto, Canada).

Bernard served as Chair of the Ontario Bar Association’s ADR Section Executive in 2008-2009 and remains active in the ADR Section’s activities. He is a member of the ADR Institute of Ontario, the Human Resources Professionals Association and the Forum of Canadian Ombudsman.

http://www.morrowmediation.ca/1/post/2013/12/law-society-appoints-bernard-morrow-as-complaints-resolution-commisioner.html

TIPS FOR SUCCESS AT MEDIATION*

Think Mediation First

o Self-determination

o Confidentiality

o Cost control

o Risk management

Prepare for Mediation

o Mediator selection – facilitative v evaluative styles; substantive knowledge; tenacity

o Venue – neutral v non-neutral site

o Develop a plan with counsel – clarify roles, level of participation, use of joint session v

caucus

Practice Timely Information Exchange

o Help opposing sides understand your story

o Leverage supporting evidence to build negotiation power

o Evaluate the relative strength of all sides to the dispute

o Conduct a risk assessment

Use the Mediation Brief to Tell Your Story

o Clear and concise

o Plain language

o Timely delivery

Bring the Right Person to the Table

o Good faith bargaining begins with knowledge and full authority

o Avoid the constraints of limited or no authority

o Rule 24.1.11(2) of Rules of Civil Procedure: phone access to decision-maker where

approval required

Client Conduct at Mediation

o Be curious

o Be mindful

o Be open to movement and persuasion

o Be realistic

* Prepared for DLA Piper (Canada) LLP Toronto Employment & Labour Law Conference 2015, May 8, 2015 ©Bernard Morrow, 2015.

Derek Rostant is a Partner in KPMG LLP and the service line leader of KPMG Forensic Inc.

Derek holds a Bachelor of Commerce, is a Chartered Accountant, a Trustee in Bankruptcy, a

Chartered Business Valuator, and is certified as a specialist in the field of investigative and

forensic accounting by the Canadian Institute of Chartered Accountants (CA•IFA), 2000. He

has a broad range of experience in financial investigations and the quantification of economic

loss in over in well over a 1,000 files, and has been qualified as an expert in various courts over

thirty times.

Derek is a past Chair of the Board of the Alliance for Excellence in Investigative and Forensic

Accounting (the specialist group of the CICA in the area of forensic and investigative

accounting) and is currently an instructor at the University of Toronto’s Diploma in Investigative

and Forensic Accounting program.

Derek has extensive experience conducting internal investigations, and has done so in over 30

countries.

Derek Rostant CPA, CA.IFA, CBV

Senior Vice President, KPMG Forensic Partner, KPMG llp Bay Adelaide Centre 333 Bay Street, Suite 4600 Toronto, Ontario M5H 2S5 T 416-777-3685


Adrienne Woodyard

[email protected]


T: +1 416 365 3414 F: +1 416 369 5233

Located in the firm’s Toronto office, Adrienne Woodyard is a

member of the firm’s tax law group.

Adrienne’s practice is primarily focused on tax. She advises clients

regularly on tax compliance issues and how to manage the audit

process, and acts as their advocate in disputes with the Canada

Revenue Agency and the Ontario Ministry of Finance. Where

disputes cannot be resolved at the administrative level, she litigates

on clients’ behalf in the Tax Court of Canada and the Federal Court

of Appeal. Adrienne also represents clients who wish to participate

in the Voluntary Disclosures Program, an amnesty program

designed to allow taxpayers to correct errors or omissions in their

past tax returns. She has extensive knowledge of income tax, GST /

HST, retail sales tax and excise tax matters, and serves on the

editorial board of the Tax Litigation Journal, published by Federated

Press.

Adrienne also advises clients on domestic and cross-border tax

matters as well as estate and wealth preservation planning

strategies. Her clients are engaged in a variety of business, real estate and investment activities, and

include multinational corporations, privately held and owner-operated enterprises, estates and trusts,

entrepreneurs, executives and other individuals.

Adrienne obtained her law degree from Queen’s University, where she received the McDougall-Watson

Memorial Award for her work with the Queen’s Legal Aid Society and was an editor of the Queen’s Law

Review. She was called to the Ontario bar in 2000. Prior to attending Queen’s, Adrienne studied English

and Psychology at Wilfrid Laurier University, and was awarded the Lieutenant Governor’s Academic Medal

for achieving the highest average in her graduating class.

She has been quoted and has written extensively on various tax matters, including transfer-pricing, Canada

Revenue Agency challenges to charitable donation programs and the tax treatment of damage awards.

CREDENTIALS

Education

Osgoode Hall Law School Intensive

Trial Advocacy Workshop

Canadian Institute of Chartered

Accountants In-depth Tax Course

Arbitration and Mediation Training

Institute Certificate

LL.B., Queen's University, 1998

Wilfrid Laurier University (1994) B.A.

Admissions

Ontario

Languages

English


PUBLICATIONS

Directors and De Facto Directors in the Eyes of the CRA, 20 Mar 2015

CRA Leaks Famous Donors' Information, 27 Nov 2014


Editorial Board, Tax Litigation, Federated Press

The Advocates'' SocietyCanadian Tax Foundation

Canadian Tax Foundation

Ontario Bar Association

Law Society of Upper

Canada AIDSBeat Organizing Committee 2005, 2006

RECOGNITIONS

McDougall-Watson Memorial Award, Queen's Legal Aid Society

Queen's University Entrance Scholarship

Lieutenant Governor's Academic Medal, Wilfried Laurier University,

Alumni Bronze Medals, Wilfrid Laurier University

J. Campbell Scholarship, Wilfrid Laurier University

OTHER ACTIVITIES

Copy and design editor of McDonald & Hayden LLP's in-house newsletter, The Advisory

Associate Editor, Queen's Law Journal 1996 - 1998

2015 Employment & Labour Law Conference - Toronto


FEEDBACK FORM

Thank you for attending our annual Employment & Labour Law Conference today.

Our goal is to make our conference as informative and relevant to participants as possible. Please take a few minutes to

complete the following survey. Please note that this survey is anonymous and we appreciate your honesty.

All comments will be used to assist in the planning of future events.

About You

What industry are you in? Please state:

Rating the Presentation Topics

The Changing Nature of Employment: Independent Contractors and What You Need to Know Presented by Richard Nixon

Outstanding Very Good Good Fair Unsatisfactory

Presentation Content:

Relevancy of Topic:

Comments:

The Future of Workplace Legislation in Ontario: Changes to the Employment Standards Act, 2000 and the Upcoming Review Presented by Leslie Frattolin and Brittany Taylor



Relevancy of Topic:

Comments:

Breaking Up is Hard to Do: The Reality of Post-Employment Obligations in 2015 Karen Bock



Relevancy of Topic:

Comments:



Family Status Discrimination Presented by Karen Bock and Richard Press



Relevancy of Topic:

Comments:

British Columbia Update: Recent Developments on the Left Coast Presented by Richard Press



Relevancy of Topic:

Comments:

Western Update: Recent Developments on the Prairies Presented by Wendy-Anne Berkenbosch



Relevancy of Topic:

Comments:

Ontario Update: Recent Developments on the Home Front Presented by Brittany Taylor



Relevancy of Topic:

Comments:

Québec Update: Recent Developments from La Belle Province Presented by Pablo Guzman



Relevancy of Topic:

Comments:



Federal Update: Recent Updates from Parliament Hill Presented by Leslie Frattolin



Relevancy of Topic:

Comments:

Hot Topics in US Labour and Employment Presented by Michael Sheehan



Relevancy of Topic:

Comments:

The Increasing Importance of Social Media in Employment Presented by Pablo Guzman and Mike Richards



Relevancy of Topic:

Comments:

Ouch, That Hurts!: Increasing Damages Awards in Employment Litigation Wendy-Anne Berkenbosch and Richard Nixon



Relevancy of Topic:

Comments:

How to Bullyproof Your Workplace Presented by Mike Richards



Relevancy of Topic:

Comments:



Meet The Experts

At this year’s conference, we used a break out format with our Meet the Experts sessions. Please comment on whether you enjoyed the format of the sessions and whether more than one topic was of interest to you.


Update on the AODA Presented by Jane Sleeth

Successful Strategies for Mediation Presented by Bernard Morrow

Conducting Investigations Presented by Derek Rostant

Tax Issues101 for Employers Presented by Adrienne Woodyard

Comments:

Rating the Presentation Topics:

Strongly Agree

Somewhat Agree

Neutral Somewhat Disagree

Strongly Disagree

Receiving the Save The Date alert one month in advance was adequate notice:

The online invitation process was easy to follow:

The Toronto Board of Trade was a convenient location with easy access:

The materials provided are a good resource:

The conference room set-up was comfortable:



Overall Perception

Exceed your Expectations

Meet your Expectations

Below your Expectations

Did your overall experience at today’s conference

Yes No

Is it likely you will attend the event next year?

Are you likely to refer this event to a business colleague:

Comments/Suggestions:


NOTES:


NOTES:


NOTES:


NOTES:


NOTES:


NOTES:


NOTES:


NOTES:

Date post:	27-Jul-2020
Category:	Documents
Upload:	others
View:	0 times
Download:	0 times