ONTARIO COURT AWARDS DAMAGES UNDERHUMAN RIGHTS CODEDecember 9, 2013

Number 1488— By Brenda Bowlby, LL.B., LL.M. © Hicks Morley Hamilton Stewart Storie LLP.

Reproduced with permission.

Employee EntitledIn what appears to be the first decision under s. 46.1 of the Ontario Human Rights CodeTo Sue for Bonus(“Code”), which permits courts to award damages for violations of Code rights, thePayments ThreeOntario Superior Court of Justice has awarded damages for infringement of Code rights inand a Half Yearsan amount of $20,000. (Prior to the changes enacted to the Code in 2008, courts wereAfter Employerunable to make damages awards for the infringement of Code rights.)Made Its Decision 3

These damages were awarded against an employer found by the Court to have

terminated the employment of the plaintiff at least in part because of her disability (anQ & A . . . . . . . . . . . . . . 4ailing back). The case, Wilson v. Solis Mexican Foods Inc.,1 provides yet another

cautionary tale for employers.Progress ofLegislation The plaintiff, who was employed as a business analyst, commenced her employment in

December 2009 and was dismissed without cause 16 months later with only two weeks’Alberta . . . . . . . . . . . . . 5 notice in accordance with the Employment Standards Act, 2000. The reason for the

dismissal given by the employer was that the company had been “organizationallyNew Brunswick . . . . . 6 restructured” (i.e. it had been sold) and her job had become redundant.

The evidence before the Court disclosed that the plaintiff had received a satisfactoryNewfoundland andperformance review in November 2010, that a few weeks later she disclosed to theLabrador . . . . . . . . . . . . 7Human Resources Manager that she had back problems, and that a few days after this

disclosure the Human Resources Manager met with senior management who shortlyPrince Edwardthereafter concluded that the plaintiff might not be “suited” to be an employee with theIsland . . . . . . . . . . . . . . . 8company. This sequence of events proved to be critical in the Court’s judgment.

Did You Know . . . 8 In March 2011, the plaintiff booked off sick and provided a medical note stating that she

was required to be off work until further notice. A subsequent gradual return to work

plan proposed by her doctor was rejected by the employer on the basis that theWhen Can aemployer wanted the plaintiff to return to work only after she had had a “completeManager Sue therecovery” and could perform all duties. The employer also expressed concern about theUnion fordoctor’s accommodation proposal which involved the plaintiff performing her duties in aDefamation —combination of sitting, standing and walking. The plaintiff remained off work. At no pointAnd Win? . . . . . . . . . . 9prior to the termination of her employment did the employer advise the plaintiff of the

pending sale of the business.Recent Cases . . . . . . 10

1

LABOUR NOTES 2

Ultimately, a letter was sent by the employer to the plaintiff on May 19, 2011, eight days after the company was sold,

advising the plaintiff that her employment was being terminated due to an organizational restructuring and providing

her with two weeks’ notice. The plaintiff commenced a wrongful dismissal action alleging that the termination had

occurred because of her ongoing back ailment. In addition to damages for wrongful dismissal, she asked for damages

for the breach of her human rights, pursuant to section 46.1 of the Code.

Based on the evidence, the Court concluded that upon learning about the plaintiff’s back problems, senior management

had decided that they wanted to get rid of the plaintiff. It also noted that the employer had failed to cooperate in the

temporary accommodation of the plaintiff through a gradual return to work. The Court commented that the employer,

having managed without the plaintiff for a period of time while she was off sick, used the restructuring as “the excuse

it needed to rid itself of the plaintiff for once and for all.” It held that the plaintiff’s disability was at least part of the

reason for the decision to dismiss her.

Having found that the plaintiff had been dismissed without reasonable notice, the Court awarded notice in the amount

of three months.

With respect to the plaintiff’s human rights claim, the Court noted that any decision to terminate an employee which

is, in whole or in part, made on the basis of a disability is discriminatory and contrary to the Code. It concluded in this

case that, for the reasons recited above, the plaintiff’s ongoing back problem was a significant factor in the employer’s

decision to terminate her.

The Court justified the award for damages for the infringement of the plaintiff’s rights under the Code based on the

following considerations:

[90] First, in this case, the plaintiff lost “the right to be free from discrimination” and experienced

“victimization”. Second, the defendant’s breach of the statute is serious. The defendant orchestrated the

dismissal and was disingenuous at various times both before and during termination.

[91] As Aston J. wrote in Dwyer, supra, at para. 50:

When dismissing employees, employers are under a duty to act fairly. They are required to be

candid, reasonable, honest and forthright.

Telling an employee they are valued while making them overcome various obstacles so that they do not

return temporarily and then terminating them permanently when the time is ripe, does not meet that

standard.

While this appears to be the first wrongful dismissal claim in which damages have been awarded under the Code, it will

certainly not be the last.

Consequently, in order to proactively defend against such claims, employers must ensure that they treat employees

fairly. In this regard, the following factors should be noted:

● Accommodation of disabilities and other Code-related rights must be taken seriously. The fact that an employee has

unrelated performance issues is not an excuse for failing to provide accommodation. Affording a graduated return to

work opportunity to employees who have been off because of a disability is a reasonable accommodation which

must be provided unless doing so would be an undue hardship to the employer.

● Care must be taken to ensure that employee performance assessments are based on standards of performance that

are legitimate, defensible and consistent with the expectations placed on all other employees doing similar work.

When concerns arise about an employee’s competence or attitude, these cannot be ignored or soft-pedalled but

must be addressed with the employee in a complete (that is to say, in clear words that accurately describe the

concerns) and timely manner. Failing to do so will lead the employee — and potentially any adjudicator who

subsequently reviews the situation — to infer that the employee’s performance had been acceptable, contrary to

what the employer now asserts.

LABOUR NOTES 3

● As a result, if the employee is subsequently disciplined or dismissed for the incompetent performance that has been

previously condoned for a period of time, the employee may look for a reason why she or he is now being the subject

of such discipline or dismissal. If the employee has a Code-related issue going on in his or her life, the employee

might infer that the employer’s actions were the result of discriminatory motivations. If the employee is dismissed, a

claim for human rights damages will likely be included in any claim for wrongful dismissal. In this regard, the failure

by the employer to deal with the performance issues in a timely and fair manner may lead to the conclusion that the

employer’s actions were motivated in part by discriminatory reasons.

Brenda Bowlby is a partner in Hicks Morley, an Ontario law firm which restricts its practice to representing employers in

human resources law and advocacy.

Notes:1 Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799 (CanLII).

EMPLOYEE ENTITLED TO SUE FOR BONUS PAYMENTS THREE ANDA HALF YEARS AFTER EMPLOYER MADE ITS DECISION

— By Bonnea Channe. Bonnea Channe is a lawyer at Filion Wakely Thorup Angeletti LLP. She can be reached at

bchanne@filion.on.ca. For further information, visit www.filion.on.ca. © Filion Wakely Thorup Angeletti LLP.

Reproduced with permission.

Benson v. Bird Mechanical Ltd., 2013 ONSC 5375

A recent decision of the Ontario Superior Court of Justice serves as a reminder to employers that, in addition to

ensuring the terms and conditions of any bonus programs are clear, unambiguous and in writing, any decisions with

respect to an employee’s entitlement to receive bonus payments should be communicated to the employee in clear

and definitive terms.

In Benson v. Bird Mechanical Ltd., 2013 ONSC 5375, the Plaintiff was employed as a project manager and estimator for

Bird Mechanical Ltd. (the “Company”). The Plaintiff’s employment contract provided that the Plaintiff would be eligible

to receive a bonus based on his performance and an incentive bonus based on company sales.

The Plaintiff was employed from July 2007 to September 2010. During his employment, the Plaintiff received bonuses

in respect of the 2007 and 2009 performance years. He did not receive any bonuses for the 2008 or

2010 performance years. With respect to the 2008 performance year, during a meeting in early 2009, the Company

orally advised the Plaintiff that he would not receive a bonus for 2008 as his performance was poor. There appears to

have been no discussion on whether the Plaintiff would receive an incentive bonus based on company sales.

Although the Company orally informed the Plaintiff that he would not be receiving any bonuses for 2008 because his

performance was “poor,” it appears the Company failed to make it clear that its decision was final. It also appears the

Company failed to address whether the Plaintiff might still be eligible for a 2008 incentive bonus based on company

sales.

The Plaintiff’s employment was terminated in September 2010. The Plaintiff then commenced an action against the

Company seeking, among other things, damages in respect of bonus payments allegedly owed for the 2008

performance year. The action was filed in June 2012. The Company brought a motion for partial summary judgment to

dismiss the Plaintiff’s claim for the 2008 bonus payments. The Company’s motion did not deal with other aspects of

the Plaintiff’s claim, including any claim for bonus payments in respect of 2010.

The Company argued that the Plaintiff’s claim for the 2008 bonus payments was untimely and statute barred under

the Limitations Act, 2002. Under the Limitations Act, 2002, the Plaintiff’s claim for bonuses must be brought within

two years of the day the claim was discovered or the date the cause of action arose. In this case, the Company argued

that the event giving rise to the claim for the 2008 bonus occurred in early 2009, when the Company advised the

Plaintiff he would not be receiving a bonus for 2008. It was, therefore, the Company’s position that the Plaintiff’s claim

for the 2008 bonus was brought more than three and a half years after the date the cause of action arose.

LABOUR NOTES 4

In an endorsement issued on August 20, 2013, a judge of the Ontario Superior Court of Justice dismissed the

Company’s motion. The judge found that the Plaintiff’s employment contract, which set out his eligibility to participate

in the bonus program, did not specify when the Plaintiff’s bonuses would be paid and whether any unpaid bonuses to

which the Plaintiff was entitled to receive would accrue during his employment. The judge also noted that the Plaintiff

never received adequate information as to how the Company determined his eligibility for bonus payments. In

particular, although the employment contract stated that “sales” would be a factor considered by the Company, the

contract did not define “sales.” This made it difficult for the Plaintiff to determine whether “sales” included projects

that were booked and/or underway, or only those sales on projects that were completed.

In these circumstances, the judge found that the Plaintiff did not realize he would receive no bonuses for 2008 until his

termination in September 2010. As such, the motions judge held that the limitation period with respect to the

Plaintiff’s claim for the 2008 bonus payments began to run at the time of his employment termination in

September 2010. The judge therefore dismissed the Company’s motion for partial summary judgment and permitted

the Plaintiff to pursue his claim for the 2008 bonus payments at trial.

Commentary

This decision serves as a reminder to employers that, in addition to setting out in writing the terms and conditions of

any bonus program, any decisions with respect to an employee’s entitlement to receive bonus payments, if any, should

be communicated in clear language and in writing. Employers should ensure that employees are advised in definitive

terms as to whether or not they are entitled to receive bonus payments for a particular performance year. Employers

that fail to advise employees of this information may be exposed to liability in a claim for alleged unpaid

bonuses years after the period in which the bonus would have been paid if earned.

Q & A

Can I Refuse a Job to Someone Who Was Convicted of a CriminalOffence?

In Ontario, Quebec, the Northwest Territories, Nunavut, and the federal jurisdiction, discrimination on the

basis of a conviction for which a pardon has been granted is prohibited (the Northwest Territories and the

federal jurisdiction also refer to record suspensions).

In British Columbia, Newfoundland and Labrador, Prince Edward Island, Quebec, and Yukon, discrimination on

the basis of a conviction which is unrelated to a person’s employment is prohibited.

Employees with such histories cannot be treated in a discriminatory or harassing manner in the workplace. For

example, employment decisions should not be affected by employer knowledge that a person has been

convicted of an offence for which a pardon was granted. However, there is an exception to this rule. Where

an employer can show that it is necessary to exclude such persons from a hiring process because of the

nature of the job, the employer may be excluded from the prohibition against discrimination based on

criminal conviction. The employer must show that it would be subject to undue hardship if it were to hire the

person with the criminal conviction.

LABOUR NOTES 5

PROGRESS OF LEGISLATION

Alberta Introduces the Public Sector Services Continuation Act

Bill 45, the Public Sector Services Continuation Act (the “Act”), would, if passed, impose harsh penalties on public sector

employees and trade unions that engage in illegal strikes or threaten to engage in an illegal strike.

The proposed legislation, which would apply to unions and workers who are not permitted to strike under the Labour

Relations Code and the Public Service Employee Relations Act, specifically sets out the following prohibitions:

(1) no employee or trade union may cause or consent to a strike;

(2) no employee or trade union may engage in conduct that constitutes a strike or strike threat;

(3) no person may counsel a person to contravene (1) or (2) or prevent a person from refusing to contravene (1) or (2);

and

(4) no trade union may discipline a person because that person does not contravene (1) or (2).

The Act would allow sanctions such as a union dues suspension, an abatement order, and civil liability to be imposed

on a trade union that engages in a strike or strike threat, unless the trade union can satisfy the Labour Relations Board

(the “Board”) or the Court of Queen’s Bench (the “Court”) that the strike or strike threat occurred against the express

instructions and actions of the trade union.

The Act would provide that, where the Board or Court has declared that strike or strike threat has occurred or is

occurring, the employer shall suspend the collection and remittance of union dues. This suspension shall begin as soon

as is practicable and shall continue for three months from the first day or partial day of the strike or strike threat plus

one month for each additional day or partial day that the strike or strike threat continues.

The Act would also allow for the Court to make an abatement order in the event of a strike or strike threat. Such an

order would:

● in the case of a strike threat, require the employees and the trade union to immediately cease engaging in all

conduct that constitutes a strike threat;

● in the case of a strike, order the employees to continue or resume the duties of their employment without slowdown,

and order the trade union to immediately instruct employees to end their strike and to continue or resume their

employment; and

● require the trade union to pay to the Court an amount of $1 million for each day or partial day on which the strike

or strike threat occurs (subject to certain exceptions).

Amounts paid into Court under an abatement order would create a liability fund which could be used to satisfy

judgments or awards related to losses incurred by an employer as a result of the strike or strike threat.

Under the Act, a union would be held civilly liable for losses incurred by the employer as a result of a strike or strike

threat. Such losses may include the development and implementation of contingency plans or alternative arrangements

that were reasonably required as a result of the strike or strike threat. An employer who wishes to claim such costs

would have to make an application to the Court within two years after the applicable strike or strike threat ended. Any

such costs awarded would be in addition to any other remedies available to the employer under law.

The Act would also allow administrative penalties to be imposed on employees who contravene the Act, in an amount

of up to one day’s pay for each day or partial day of the violation.

LABOUR NOTES 6

A person, trade union, or other organization who contravenes the Act or fails to comply with an order or directive

under the Act would be guilty of an offence and liable for the following penalties:

● for an employer or trade union: a fine in the amount of $250,000 plus $50 per employee in the bargaining unit for

each day or partial day on which the offence occurred;

● for an officer or representative of a trade union: a fine of $10,000 for each day or partial day on which the offence

occurred;

● for an employee: a fine not exceeding one day’s pay for each day or partial day on which the offence occurred; and

● for any other person or organization: a fine of $500 for each day or partial day on which the offence occurred.

Bill 45 received first reading on November 27, 2013 and second reading on December 2.

New Brunswick Bill Proposes Amendments to Employment Standards Act

Bill 22, An Act to Amend the Employment Standards Act, proposes amendments that would strengthen protections for

foreign workers and would introduce new leaves of absence.

Protections for Foreign Workers

If passed, the amendments in Bill 22 would set out the following prohibitions with respect to foreign workers:

● No employer shall require a foreign worker to use an immigration consultant as a condition of employment with the

employer.

● No employer shall, directly or indirectly, recover from a foreign worker any cost incurred by the employer in

recruiting the foreign worker that is not allowed under the program under which the employer has recruited the

foreign worker.

● No employer shall reduce the rate of wages, reduce or eliminate any other benefit, or change the terms and

conditions of employment of a foreign worker that the employer undertook to provide to the foreign worker when

the employer recruited the foreign worker for employment.

● No employer and no person who recruits foreign workers for employment on behalf of an employer shall

misrepresent employment opportunities, including misrepresentations with respect to the position to be filled by a

foreign worker, the duties of the position, the length of employment, the rate of wages, benefits, and other terms

and conditions of employment.

● No employer and no person who recruits foreign workers for employment on behalf of an employer shall supply or

cause to be supplied false or misleading information to a foreign worker about employer and employee rights and

responsibilities.

● No employer and no person who recruits foreign workers for employment on behalf of an employer shall take

possession of or retain property that the foreign worker is entitled to possess, including the foreign worker’s passport

or work permit.

● No employer that provides accommodations to a foreign worker shall refuse to allow the foreign worker to vacate

the employer-provided accommodations for other accommodations.

● No employer and no person who recruits foreign workers for employment on behalf of an employer shall threaten a

foreign worker with deportation or another action for which there is no lawful cause.

The amendments would also create a registry of employers who recruit foreign workers.

LABOUR NOTES 7

New Unpaid Leaves of Absence

Bill 22 also proposes amendments which would provide job protection for employees who take certain family-related

leaves of absence.

Critically ill child care leave of up to 37 weeks would be available to employees where a qualified medical practitioner

has issued a certificate stating that the employee’s child is critically ill and requires care or support. A “critically ill

child” is defined as a person who is under 18 years of age on the day on which the leave begins, whose baseline state

of health has significantly changed, and whose life is at risk as a result of an illness or injury.

Crime-related child death or disappearance leave of up to 37 weeks would available to employees whose child (under

18 years of age) has died or disappeared as the probable result of a Criminal Code offence. Employees charged with the

crime would not be eligible for this leave.

An employee who intends to take either of these leaves would have to provide written notice to his or her employer as

soon as possible of his or her intention to take the leave and its anticipated start date and duration.

Bill 22 received first reading on December 3.

New Brunswick Bill Would Alter Pending Amendments to the EmploymentStandards Act

Bill 21, An Act to Amend an Act to Amend the Employment Standards Act, would alter certain amendments contained

in Bill 46, An Act to Amend the Employment Standards Act, SNB 2013, c. 13, which received Royal Assent on June 21,

2013 but has not yet been proclaimed in force.

Bill 46 contains an amendment which provides that a director or former director of a for-profit corporation can be held

jointly and severally liable with the corporation for up to six months of unpaid wages and up to 12 months of vacation

pay owed to an employee. The proposed amendments in Bill 21 would clarify the circumstances in which a director

could be held liable for these payments.

A director would become liable only after the corporation failed to comply with an order to pay the wages and

vacation pay owed to the employee. However, the director would not be liable if he or she exercised reasonable due

diligence to provide the payments owed to the employee. In addition, a director would not be liable for any

administrative penalty that was imposed on the corporation.

Bill 21 received first reading on December 3. For further details of Bill 46, see Labour Notes No. 1478, July 10, 2013.

Newfoundland and Labrador Bill that Proposes New Unpaid Leaves ofAbsence Receives Third Reading

Bill 17, An Act to Amend the Labour Standards Act, proposes amendments which would provide job protection for

employees who take certain family-related leaves of absence.

Critically ill child care leave of up to 37 weeks will be available to employees where a physician has issued a certificate

stating that the employee’s child is critically ill and requires care or support. A “critically ill child” is defined as a person

who is under 18 years of age on the day on which the leave begins, whose baseline state of health has significantly

changed, and whose life is at risk as a result of an illness or injury.

Crime-related child death or disappearance leave of up to 52 weeks will available to employees whose child (under

18 years of age) has disappeared as the probable result of a crime. Where a child has died as the probable result of a

crime, up to 104 weeks of leave will be available. Employees charged with the crime will not be eligible for this leave.

LABOUR NOTES 8

To qualify for these unpaid leaves, the employee must have been employed for at least 30 days and he or she must be:

● a parent of the child;

● the spouse or cohabiting partner of a parent of the child;

● a person with whom the child has been placed for the purposes of adoption;

● a foster parent of the child; or

● a person who has the care or custody of the child and is considered to be like a close relative, whether or not the

person is actually related to the child.

An employee who intends to take either of these leaves must provide written notice to his or her employer at least

two weeks before the leave is to begin, unless there is a valid reason why that notice cannot be given.

Bill 17 received first reading on November 19, 2013, second reading on December 2, and third reading on December 3.

Newfoundland and Labrador and Prince Edward Island Bills that WouldAdd Gender Identity and Gender Expression as Prohibited Grounds ofDiscrimination Progress

Newfoundland and Labrador’s Bill 25, An Act to Amend the Human Rights Act, 2010, would add gender identity and

gender expression as prohibited grounds of discrimination under the province’s Human Rights Act, 2010. Bill 25 received

first reading on November 19, 2013, second reading on November 21, and third reading on November 25.

Prince Edward Island’s Bill 11, An Act to Amend the Human Rights Act, would add the grounds of gender expression and

gender identity to the list of prohibited grounds of discrimination under the province’s Human Rights Act. Bill 11

received first reading on November 13, 2013 and second reading on November 27.

DID YOU KNOW . . .

. . . That a New Regulation Will Require Ontario Employers ToProvide Health and Safety Awareness Training?

Following recommendations of the Expert Advisory Panel on Occupational Health and Safety, the Government

of Ontario has introduced Regulation 297/13, Occupational Health and Safety Awareness and Training, which

will require all workers and supervisors who are subject to the province’s Occupational Health and Safety Act

to complete basic health and safety awareness training.

The training should provide a basic understanding of the Occupational Health and Safety Act, including:

● the rights and duties of workers, supervisors, and employers;

● the role of joint health and safety committees and health and safety representatives; and

● common workplace hazards and occupational illnesses.

Regulation 297/13 was filed on November 14, 2013. It will come into force on July 1, 2014.

To help employers comply with the new requirements, Ontario’s Ministry of Labour offers free training

resources at http://ontario.ca/learntoworksafe.

LABOUR NOTES 9

WHEN CAN A MANAGER SUE THE UNION FOR DEFAMATION —

AND WIN?

— By Drew G. Demerse of Roper Greyell LLP. © 2013 Roper Greyell LLP — Employment + Labour Lawyers.

A recent grievance likely proved to be far more costly for a union than it ever expected.

The tale of Ms. Bowman and Dr. Rubin started off friendly enough. Ms. Bowman was a unionized veterinary technician

employed by the Veterinary Teaching Hospital (the “hospital”) at the University of Saskatchewan (the “university”).

Dr. Rubin was the director of the hospital. Outside of work, both Dr. Rubin and his wife were friends with Ms. Bowman.

In 2001, Ms. Bowman’s union filed a grievance on her behalf when she reported that she was being harassed by her

co-workers. A labour arbitrator upheld the grievance and returned Ms. Bowman to the workplace. Dr. Rubin supported

Ms. Bowman throughout the process, and attempted to act as her advocate on her return to work.

By all accounts, Ms. Bowman’s return to work did not go smoothly. Despite considerable efforts by the hospital to

successfully reintegrate Ms. Bowman into the workplace, she believed that she was still being harassed by her

co-workers. Dr. Rubin met with Ms. Bowman on numerous occasions to try to help her, but Ms. Bowman remained

wholly unsatisfied with the hospital’s response to her complaints. The trial judge would later refer to her as

“hypersensitive”, a characterization with which even the union’s president seemed to agree.

Ms. Bowman’s union nonetheless filed a second harassment grievance. This grievance alleged that not only had

Dr. Rubin failed to prevent the harassment in his role as director, but that he had been “an active part of the

harassment himself”. This last statement was not true.

As a remedy, the grievance report requested formal discipline for Dr. Rubin, including his removal from his post as

director of the hospital, and aggravated and punitive damages of no less than $100,000.

The union then went outside of the normal grievance processes by posting a copy of the grievance report on eight

public bulletin boards at the hospital, mailing a copy of the report to each of its 1,400 members, and posting the

report on the union’s website.

The union’s actions caused Dr. Rubin significant harm. He began experiencing difficulties with employees and believed

they had lost respect for him. He resigned from his management position with the hospital and resumed teaching at

the university, and subsequently left the university altogether.

Dr. Rubin also sued the union and its officers for defamation for publicly distributing the grievance report. At trial, the

union successfully defended the defamation action with no retraction, saying that the law of defamation did not apply

in a labour relations context.

The Saskatchewan Court of Appeal allowed Dr. Rubin’s appeal, ruling that the union had no defence to making

statements that were plainly defamatory when the union took the unusual step of republishing the grievance report to

persons not involved in the arbitration process. While the Court of Appeal recognized that the union had a duty to

fairly represent Ms. Bowman, it concluded that the union acted outside the scope of its duty when it went beyond

what was necessary and reasonable to fulfill its duty. Moreover, the fact that the union widely circulated the grievance

report for purposes not intimately connected to the arbitration proceeding destroyed any claim the union might

otherwise have had that the contents of the grievance report were protected speech.

In Rubin v. Ross, 2013 SKCA 21, the union and its officers were ordered to pay Dr. Rubin $100,000 for so publicly

defaming him with the false and personal allegations contained in the grievance report. Their appeal to the Supreme

Court of Canada was denied, with costs payable to Dr. Rubin.

LABOUR NOTES 10

Lessons for Employers

● Labour arbitration is not a bar room brawl. While there are no formalized rules of conduct, as there are in our courts,

the laws that govern civil society do apply to the actions of employer and union representatives in the conduct of

labour arbitrations.

● It is not uncommon for unions to advance grievances for reasons that may be unrelated to the grievance itself. Union

officers who engage in public politicking in the conduct of a grievance may expose themselves to personal liability if

their actions unfairly damage an individual’s reputation.

● Managers have rights too. A manager is unlikely to have recourse against an employee who unsuccessfully files a

harassment grievance against the manager in good faith. The situation might be different, however, where allegations

are filed in bad faith or where the griever or the union seeks to try the allegations in the court of public opinion.

Drew G. Demerse practises workplace law at Roper Greyell LLP. He provides proactive and strategic advice to employers

on labour, employment, and human rights issues in the workplace. He enjoys keeping up on trends in the wide world of

workplace law, which he publishes on Roper Greyell’s Twitter handle, @RoperGreyell.

RECENT CASES

Employer’s Collection and Use of GPS Information Was Reasonable

Information and Privacy Commissioner for British Columbia, August 28, 2013

KONE Inc. (“KONE”) provided elevator service to its clients, and used maintenance mechanics to attend client

sites. The mechanics worked alone, and would attend work sites directly from their homes. Mechanics were provided

with GPS-enabled cellphones to record when they began and ended their work while at client sites. The mechanics

would put their phones into “on duty” status while at work, and put their phones in “off duty” status during their

break periods. The GPS information from a mechanic’s phone was transmitted to KONE when the mechanic inputted

into his or her phone that he or she was leaving the client site. KONE used the information to determine arrival and

departure times, travel times, location of mechanic, and when a mechanic went on or off duty. In addition, the

information was used to plan routes for mechanics, set work assignments, update clients, and contact employees if

there had been no contact for more than 30 minutes. KONE employees brought a complaint before the privacy

commissioner, alleging that KONE was not permitted under privacy legislation to use this information to manage their

employment relationships.

The complaint was dismissed. The GPS information that KONE collected was personal information, and it was “about

an identifiable individual”, since KONE assigned the phones to individual mechanics and attributed the resulting

information to a specific mechanic. The information was not work product information, since it was machine-generated,

and was an automatic recording of data reflecting when and where employees were working. Although the information

was personal and unrelated to the individual’s employment, its collection and use was reasonably required by KONE for

its business operations, and there was no evidence KONE was using the information for anything other than managing

the employment relationship. The collection and use of the information was reasonably required for KONE to manage

the employment relationship, and a reasonable person would consider it appropriate for KONE to collect the GPS

information. The information was more accurate about employee locations than other tracking devices, although the

information was not significantly more sensitive, and was not more intrusive than necessary. The tracking system was

likely to be effective for KONE’s stated purpose, and the employees were aware that the information was being

collected. KONE was better able to achieve its objectives by using the GPS system than by using a less

privacy-intrusive alternative. Finally, KONE provided the required notice to employees about the collection of the GPS

information for the specified uses and purposes.

KONE Inc., 2013 CLLC ¶210-052

LABOUR NOTES 11

Class Action Certified for Claim of Unpaid Overtime

Ontario Superior Court of Justice, August 20, 2013

Investment advisers (“IAs”) at BMO Nesbitt Burns Inc. (“Nesbitt”) were paid by commission, and would often work

more than 60 hours per week in order to grow their client base, generate more revenue, and earn larger

commissions. Under Ontario’s Employment Standards Act, 2000, employees paid by commission were statutorily

entitled to overtime unless their work was supervisory or managerial in character, or if the employee fell within the

“greater benefit” exemption. Rosen worked as an IA at Nesbitt, and was given considerable autonomy to develop his

business and service his clients. He worked, on average, 60 to 80 hours per week, and never asked for or was paid

overtime. Rosen brought a motion to certify a class action for all current and former Nesbitt employees in Ontario

who worked as IAs, associate IAs, or IA trainees since 2002.

The motion to certify the class action was allowed. Rosen had a cause of action. He asserted claims for breach of

express or implied terms of contract and unjust enrichment, as well as a duty of good faith owed by Nesbitt to ensure

IAs were provided with overtime pay. The proposed class included all current and former Nesbitt employees who held

the position of IA from 2002, except any time period during which they held a managerial position. This was readily

determinable by stated and objective criteria, since the time period was precise and the members were identifiable by

specific job titles. The determination as to whether IAs fell within the “managerial” or “greater benefit” exemptions set

out in the Act could be decided as common issues. All of the IAs appeared to have the same or very similar job

functions, with a common core of duties or functions. The greater benefit exemption could be determined as a

common issue, by determining whether the equal opportunity to earn a high income, along with flexibility and

independence in schedules, was a greater benefit than overtime pay. A class proceeding would be the preferable

procedure and would provide a fair, efficient, and manageable method of resolving the claim. Finally, Rosen was a

suitable representative plaintiff.

Rosen v. BMO Nesbitt Burns Inc., 2013 CLLC ¶210-053

Employee’s Claim Fell Within Jurisdiction of Dispute Resolution ProcessUnder the Collective Agreement

Supreme Court of Nova Scotia, August 20, 2013

Robertson was regularly hired by the Annapolis Valley Regional School Board (“AV”) as a substitute teacher. He was

made a long-term substitute for a grade 12 class in October 2008. The permanent teacher he was replacing announced

that he would retire after his sick leave was used up, which meant that Robertson would be entitled to become a

“term contract” teacher if he continued to teach as a long-term substitute until the end of the school year. At the end

of January 2009, Robertson’s contract was terminated and he was replaced. There was no cause for the termination of

the contract. Robertson brought a claim against AV for their treatment of him and for the manner of dismissal, and AV

brought a motion for summary judgment.

The motion for summary judgment was allowed, and the action was dismissed. The essential character of the dispute

was the termination of Robertson’s employment as a substitute teacher. The collective agreement did not exclude

substitute teachers entirely, since there were provisions that used the defined word “teacher” that were clearly

intended to include substitutes. Specifically, the provision requiring AV to act in a reasonable manner, and act fairly,

reasonably, in good faith, and without discrimination when terminating, applied to both teachers and

substitutes. Termination of a substitute teacher was within the collective agreement dispute resolution scheme and,

since termination was the essential part of Robertson’s claims, the dispute therefore fell within the dispute resolution

process under the collective agreement. As a result, the claims were precluded by the exclusive arbitral jurisdiction

process.

Robertson v. Annapolis Valley Regional School Board, 2013 CLLC ¶220-059

LABOUR NOTES 12

Union Members Picketing at Customer’s Property Was Illegal Picketing

British Columbia Labour Relations Board, September 6, 2013

Allteck Line Contractors Inc. (“Allteck”) was a contractor that employed members of the International Brotherhood ofElectrical Workers (the “union”). FortisBC Inc. (“Fortis”) was involved in a labour dispute with the union. Fortis and theunion had an essential services order (“ESO”), which provided that no bargaining unit, excluded personnel, orcontractors of Fortis would perform power line extensions or upgrades. Three Allteck employees were sent to acustomer’s property to work on a power line extension, where they encountered a number of Fortis employees withsigns claiming that Fortis had locked them out. The Allteck employees considered the individuals walking across thedriveway entrance to be a picket line, and refused to do the work for the customer. The union claimed that it wasrequired to picket customers in order to prevent the violation of the ESO. Allteck brought a claim before the BritishColumbia Labour Relations Board (the “Board”), alleging that union members had been involved in unlawful picketingactivity, and asked for an order to refrain from such picketing.

The claim was allowed, and the union was ordered to refrain from illegal picketing. The activity of union members atthe customer location constituted picketing, which the Labour Relations Code did not permit. The union was notrequired to picket in order to prevent a breach of the ESO. Instead, the union could have applied to the Board to havethe ESO filed in court, or the union could have asked that the Board take steps to ensure the ESO was being appliedproperly. Allteck was not a party to the ESO, and did not appear to be aware of the provision that the union reliedupon in the ESO prior to attending at the customer’s premises to perform the work. Therefore, Allteck did not have“unclean hands”.

Allteck Line Contractors Inc. v. IBEW, Local 213, 2013 CLLC ¶220-060

Revocation of Employees’ Taxi Plates Was Motivated by Anti-UnionAnimus

Saskatchewan Labour Relations Board, September 30, 2013

In Saskatoon, taxi cab owners are required to have a valid taxi plate from the City of Saskatoon. Individual leaseoperators leased taxi plates from franchise owners, while companies such as Comfort Cabs Ltd. (“Comfort Cabs”)provided services to franchise owners, lease operators, and taxi drivers. Four individuals were lease operators whoentered into arrangements with franchise owners connected with Comfort Cabs in order to lease taxi plates. As part ofthis arrangement, the individual lease operators owned vehicles that met Comfort Cabs’ specifications, and installedComfort Cabs’ equipment. The United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial andService Works International Union (the “union”) ran an unsuccessful organizing campaign for Comfort Cabs employees,and a certification application by the union was abandoned. The four individual employees, who were all supporters ofthe union, had their taxi plate leases, and their taxi equipment, taken away from them by Comfort Cabs. The unionbrought an application before the Saskatchewan Labour Relations Board (the “Board”), claiming that Comfort Cabs hadeffectively terminated these individuals because of their support for the certification application. The union brought aninterim application to reinstate the four individuals’ driving privileges pending a final determination.

The interim application was allowed. There was an arguable case that Comfort Cabs was aware that these fourindividuals supported the union and were involved in the recent organizing campaign in the workplace. There wasevidence to support the assertion that the revocation of the taxi plates was motivated by anti-union animus for atleast two of the individuals, and for the other two individuals, the close timing of the certification application and therevocation of the taxi plates led to an inference that it was the result of anti-union animus. Comfort Cabs was the trueemployer of these individuals, not the franchise owners, and there was an arguable case that these individuals were“employees” of Comfort Cabs. There was evidence to show that Comfort Cabs was a party to the decisions toterminate the lease arrangements and cancel the taxi plates. While Comfort Cabs did not have the authority necessaryto cancel or lease taxi plates on behalf of franchise owners, the Board ordered the reinstatement of the privileges todrive a taxi cab for three of the four individuals, and they were granted the right of first refusal for the first three taxiplates available for lease through Comfort Cabs. The fourth individual took too long submitting a claim to demonstratethat he had a current relationship with Comfort Cabs.

United Steelworkers v. Comfort Cabs, 2013 CLLC ¶220-061

LABOUR NOTES 13

Employer’s Determination that Employee’s Ailing Mother-in-Law Was Nota Dependant Was Discriminatory

Canadian Human Rights Tribunal, September 18, 2013

Hicks worked for the federal government in Sydney, Nova Scotia. After being informed that his position would become

redundant, Hicks was given an offer of deployment to Ottawa early in 2002; he began working at this new position on

September 16, 2002. Hicks officially relocated to Ottawa on October 17, 2002; however, his wife and family did not

relocate with him, due, in part, to his mother-in-law’s serious health problems. Hicks’s mother-in-law was living in an

assisted-living apartment at the time of Hicks’s move, and she eventually moved to a nursing home. Hicks applied for

financial assistance from October 2002 until September 2003, under the Temporary Dual Residence Assistance

(“TDRA”) Directive of the Treasury Board. Under the TDRA, financial assistance could only be claimed in respect of a

dependant, which is defined as someone “who has been living with the employee prior to relocation”. The claim for

financial assistance was denied. Hicks filed a grievance, which was denied. He brought a human rights complaint,

alleging discrimination on the basis of family status and disability.

The family status complaint was allowed. The criteria for claiming TDRA created a distinction between persons who

were “permanently residing with the employee” and those who were not. This distinction was harmful to Hicks since it

resulted in the denial of his claim for TDRA, and led Hicks to believe that his mother-in-law was not considered a part

of his family. Hicks’s spouse and mother-in-law were clearly part of his family, and eldercare responsibilities are

protected under the grounds of family status. The denial of the expense claim was prima facie discriminatory. There

was no legitimate work-related objective or demonstration of undue hardship to justify this discrimination. The

assumption by the employer that family members residing in their own homes did not need employees to maintain

their former homes for them did not account for circumstances such as Hicks’s. The employer also ignored the

obligations Hicks had to his family, which were protected under the grounds of family status. Hicks was awarded

$15,000 for pain and suffering, as well as $20,000 for the reckless discriminatory practice.

Hicks v. HRSDC, 2013 CLLC ¶230-042

Employee Who Voluntary Left Two Jobs Was Entitled to EmploymentInsurance Benefits

Federal Court of Appeal, February 15, 2013

Marier filed a claim for Employment Insurance benefits, effective July 18, 2010. During the 52-week qualifying period

prior to the start date of the claim, Marier held two part-time positions. He worked for Nettoyage Solvanet

(“Solvanet”) from June 13, 2009 to February 1, 2010. He left that job voluntarily to take a cleaning course. From

July 1, 2009 to July 18, 2010, Marier also worked for the Cooperative des horticulteurs de Quebec (“Cooperative”); he

left this position voluntarily to accept alternate employment. In both positions, he worked 25 to 30 hours per week. He

did not begin working at the new position until August 30, 2010 and, therefore, his claim for benefits was for the

period from July 18, 2010 to August 30, 2010. The Commission denied his claim, finding that he voluntarily left

Solvanet without just cause, and that it was not his only reasonable alternative. The Commission also found that Marier

had not worked the minimum number of insurable hours since voluntarily leaving Solvanet. The Board of Referees

allowed the appeal, which was upheld by the Umpire. The government brought an application for judicial review.

The application for judicial review was dismissed. Marier voluntarily left his employment with Solvanet to enroll in

courses, knowing that he had a position at the Cooperative for 25 to 30 hours per week, which was stable

employment. He had just cause to leave his employment with Solvanet voluntarily, knowing that he would be keeping

his second job. Marier did not quit the Cooperative until he was assured of a new position, which was a voluntary

departure that was justified according to the Commission.

Canada (AG) v. Marier, 2013 CLLC ¶240-005

LABOUR NOTES 14

LABOUR NOTES 15

LABOUR NOTES

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