Key Employment Law Cases of 2014

Another year has passed and that means it is time to reflect back and consider some developments in employment law that we witnessed in 2014.  It was not an earth shattering year in the employment law field in Canada.  There were certainly many decisions reached across the country dealing with wrongful dismissal, breach of human rights, non-competition covenants and a range of other topics.  But the number of decisions that really changed the law was limited.  That being said, I have highlighted a few cases and other employment law developments that are worth summarizing.  I have provided the links to my original blog articles where they are cases that I wrote about.

1.  Ghomeshi and the CBC

This case is not completely over since there is a still a potential labour arbitration pending.  Moreover, the case was not adjudicated.  It was settled.  However, it created a great deal of discussion in the employment law world and for that reason it is worth including.  What are the key points to think about?

A.  Unionized employees will have an incredibly difficult time launching wrongful dismissal or other employment law related cases in the court system.  The proper venue for these cases is labour arbitration hearings.  For the most part, dismissed unionized employees must file a grievance.

B.  Egregious personal conduct, even off-hours conduct, can be cause for dismissal, particularly if at least some of it spills over into the workplace or into workplace related events.  Employers will need to pay careful attention to allegations of improper personal conduct and should address and deal with these matters before they become unmanageable.

C.  Taking an extremely aggressive approach to employment law litigation is simply not always the best strategy for plaintiffs.

There may still be more on this in 2015 as Canadians follow Ghomeshi’s criminal proceedings and his labour arbitration case.  The high profile nature of the dispute warrants its inclusion on a list of interesting developments.

2.  Boucher v. Wal-mart

The Ontario Court of Appeal awarded more than $400,000 to an employee who had been subjected to humiliating treatment in the workplace.  It is still rare in Canada to see these types of awards.  Although the amount of the trial judgment was reduced considerably, this case is still a significant weapon in the arsenal of decisions upon which abused employees and their counsel will rely.  It remains to be seen whether large scale punitive and aggravated damages become more commonplace in Canada.  Employees facing humiliating workplace conduct and bullying bosses have additional legal options to consider in light of this decision.

3.  AG Canada v. Johnstone

In this key case, the Federal Court of Appeal looked at the issue of “family status” under human rights legislation and concluded that family status includes childcare responsibilities and similar family care obligations.  This means that an employee with childcare responsibilities may, in certain circumstances, be entitled to protection and accommodation under applicable human rights legislation.  The Court set out a number of criteria that must be met and tried to make it clear that not every employee with some child care responsibilities will be able to request accommodation.  However, many employers are trying to deal with the issues pro-actively and are finding ways to accommodate the needs of employees with child care and elderly care responsibilities.

4.  Jan Wong and the Globe and Mail

Although I originally discussed this in 2013, the adjudicator’s decision was upheld in 2014 and Jan Wong was left facing a significant award as well as an award of legal costs.  The case illustrates a few points:

A.  The difficulty of proceeding in any kind of dispute in a unionized workplace without the backing and support of the union;

B.  The seriousness of confidentiality provisions in a settlement.  Employees who sign confidentiality provisions in settlements with their former employers can expect to face repercussions if they breach these provisions.  In some cases, a breach can mean a requirement to pay back to the employer the full amount of the original settlement.

5.  Fulawka v. Bank of Nova Scotia (Originally 2012 Ontario CA)

The Bank of Nova Scotia reached a settlement of a class action lawsuit with a group of bank employees claiming entitlement to overtime pay.  This settlement means that as many as 16,000 employees of the Bank of Nova Scotia could be entitled to overtime pay for overtime hours worked during the time period 2000 to 2013.  The affected employees were required to submit their claims by October 2014.  The case is a significant illustration of the availability of class actions to deal with widespread policies of large employers that may affect many different employees.  It is also which has caused employers and employees to examine their overtime hours and overtime policies.  Just because an employee is paid a salary does not mean that the employee can be required to work uncompensated overtime hours.

 

2014 Blog Posts – Selected Highlights

As well as they the key cases and issues set out above, I have highlighted a few of my blog posts from the past year.  In case you missed any of these, you might find them interesting:

1.  Hollander v. Tiger Courier Inc. (Sask C.A.)

It was not considered wrongful dismissal where a package of marijuana was delivered to an employee at his workplace.    The employee claimed that he knew nothing about the pot and that it wasn’t his…Fascinating reading.

2.  Rhebergen v. Creston Veterinary Clinic (B.C.C.A.)

The B.C. Court of Appeal upheld a very onerous non-compete provision for a veterinarian.  The clause prohibited a vet from setting up a practice within 25 miles of her employer’s clinic, for a period of 3 years.  It included huge financial penalties that would become payable in the event of a breach.  Surprisingly, the B.C. Court of Appeal upheld this clause.

3.  Steps to Take When You Are Fired

In this blog post, I have set out some things to consider when facing a dismissal situation.

4.  Are Employment Contracts Negotiable?

This post deals with aspects of employment contracts that can and should be negotiated.

5.  Poisoned Work Environment?  Not in this Restaurant.

Discussion of a recent Ontario Human Rights Tribunal decision addressing allegations of a poisoned work environment.

 

For 2015, I will aim to put up one or two new posts a month and I hope to send out an email update quarterly, or so.

 

Wishing everyone a Happy New Year.

Poisoned Work Environment? Not In This Restaurant…

What is a poisoned work environment? And when should the Ontario Human Rights Tribunal award damages to employees who might find themselves in one? That was the subject of a recent Ontario Divisional Court decision in Crépe It Up v. Hamilton.

Katie Hamilton worked as a cashier and cook in Crepe It Up, a small restaurant owned and operated by Chris Quy Lee on Church Street in Toronto. She worked there for about six months. She quit work and filed a complaint against Mr. Lee at the Ontario Human Rights Tribunal, alleging that she had been forced to endure a poisoned work environment.  Ms Hamilton’s claim went to a two day tribunal hearing in May 2012. At the hearing the adjudicator heard evidence of various comments made by Mr. Lee, some of which were only partially contested. The adjudicator made a number of findings of inappropriate comments on the part of Mr. Lee.

The findings included:

  • Lee had referred to a Black employee as being on “Jamaican time”
  • He had made a comment about anal sex to Ms Hamilton that he knew or ought to have known was unwelcome;
  • He had sent an allegedly inappropriate text to Ms Hamilton’s boyfriend when Ms Hamilton had not phoned in to Mr. Lee. This was the day after Halloween and Ms Hamilton had dressed up as Little Red Riding Hood. The adjudicator found that the text said “where is she, did you eat her?” The adjudicator found that this was an unwelcome comment containing sexual innuendo;
  • Staff members were asked to wear buttons that said “A kiss gets you 14% off.” The adjudicator held that Mr. Lee knew or should have known that this was would be an invitation to kiss staff.

Ultimately, the adjudicator held that Ms Hamilton had experienced a poisoned work environment, contrary to section 5(1) of the Ontario Human Rights Code. Ms Hamilton was awarded $3,000 as compensation for injury to dignity, feelings and self-respect. Mr. Lee brought a judicial review application to the Ontario Divisional Court.

The Divisional Court overturned the decision and sent it back to the Tribunal to be heard by a different adjudicator. The Divisional Court decision is somewhat puzzling.

Essentially, the Divisional Court rejected two of the factual findings and conclusions of the adjudicator.

With respect to one set of findings, it questioned the process by which the adjudicator had concluded that the comments about anal sex had been made. As a result, it concluded that the adjudicator’s “finding that the allegation was proved is consequently unreasonable.”

The Divisional Court also took issue with the post-Halloween text. It held that Ms Hamilton’s boyfriend would not have shown the allegedly offensive text to her; that it was not “workplace-related” and Ms Hamilton did not complain about it at the time. The Court concluded that “it is difficult to see how this conduct, even if it is discriminatory, could have contributed to the poisoning of the work environment.”

Accordingly, the Divisional Court found that two of the findings by the adjudicator were “unreasonable” and the “finding of liability based on a poisoned work environment must be set aside.”

What has really occurred here? The Divisional Court, without actually hearing the witnesses at a hearing, has substituted its views for those of the adjudicator. Perhaps, the court did not really believe that these comments, even if all true, were serious enough to warrant a finding of a poisoned work atmosphere. That might have been the court’s prerogative, as a matter of law, but that is not what the court chose to say. Instead, the court held that the adjudicator’s findings were “unreasonable.” While the court may not have liked the adjudicator’s decision, it seems like quite a stretch to call the adjudicator’s conclusions “unreasonable.”

Perhaps the court’s view was coloured by the fact that Mr. Lee is an openly gay man. It may be that the judges of the court had concluded that the comments were not as threatening or offensive when made by a gay man to a female employee as they would have been from a straight boss who was seeking sexual favours from a complainant.

In any case, the divisional court applied the 2013 decision of the Ontario Court of Appeal in General Motors of Canada v. Johnson (2013) ONCA 52. Here is the key passage, picked up by the court:

“[E]xcept for particularly egregious, stand-alone incidents, a poisoned workplace is not created, as a matter of law, unless serious wrongful behaviour sufficient to create a hostile or intolerable work environment is persistent or repeated.”

Following the Johnson decision, the Crépe It Up v. Hamilton decision is a further example of a judicial pendulum that has swung back somewhat in favour of employers. Ontario courts have been making it more difficult for employees to establish a “poisoned work atmosphere” in cases of isolated comments or incidents that are viewed by the courts as less serious. This is a marked departure from some early decisions of the Ontario Court of Appeal in a sexual harassment context, such as Bannister v. General Motors [1998] O.J. No. 3402, in which the court took a much stricter view of certain types of unwelcome comments.

In the present case, the matter is not yet concluded. Crépe It Up may still find itself in hot water at the conclusion of another hearing as long as the reasons of a new adjudicator are not held to be half-baked. The adjudicator will need to sift through the new evidence more carefully and apply the divisional court’s definition of a “poisoned work environment” to all of the evidence that it hears.

Of course, Ms Hamilton may prefer to try to take this case to the Ontario Court of Appeal. She would need to “seek leave” but the Court of Appeal may well agree to hear the case. She could certainly argue that there seems to be some very questionable legal analysis by the Divisional Court in this decision.

This could all make for very interesting law. However, another possibility is that Ms Hamilton might simply choose to drop the matter altogether. Given the amount of money at stake ($3,000 plus legal fees awarded to Mr. Lee of approximately $2,000), this might be the most financially sound decision.

We’ll watch for any developments.

Does Family Status Include Childcare Needs?

Human Rights legislation across Canada prohibits discrimination on the basis of family status.  But what does that mean?  What does “family status” actually include?  Two recent decisions of the Federal Court of Appeal provide some helpful guidance.  From these cases, it seems clear that family status encompasses the need for an employer to accommodate child care issues that an employee may face.

I reviewed the Federal Court decision of AG Canada v. Johnstone in this blog.  The Federal Court of Appeal (FCA) has now upheld that decision and provided a review of the law relating to family status and child care responsibilities.  This is the decision I would like to address, since the other decision is simply a further example of an application of the Johnstone decision by the FCA.

This article is not a recap of the facts, some of which are described in the previous blog article.  Rather this blog sets out the key rulings of the FCA.  The full text of the decision can be found here.

The Court made a number of key determinations.  First of all, it defined childcare obligations that are included under “family status”:

When is Family Status Engaged?

“The child care obligations that are contemplated under family status should be those that have immutable or constructively immutable characteristics, such as those that form an integral component of the legal relationship between a parent and a child.  As a result, the childcare obligations at issue are those which a parent cannot neglect without engaging his or her legal liability.”

The FCA expressly noted that voluntary obligations such as “family activities…extracurricular sports events, etc.,…” are not included.  In other words, according to the FCA, if a person faces “legal obligations” as opposed to “personal choices,” that is when protection on the grounds of family status will be engaged.    This may well be an overly restrictive definition.  A person may feel compelled to take care of a child (or a parent) in certain circumstances where the “legal requirement” is murky.  This contrasts with the manner in which other types of discrimination are engaged, according to the Supreme Court.  For example, to request accommodation of a religious practice, a person is not required to prove that he or she is obligated to perform the particular practice, only that the religious practice is being observed in good faith.  This is the decision of the Supreme Court of Canada in Amselem.

The FCA has defined included childcare obligations in a much narrower fashion for purposes of family status than some of the other rights that are protected, including religion and gender.  Nevertheless, it has likely done so in an effort to restrict the number and types of claims that might be made if family status were to be defined more broadly.

Steps in Claiming Family Status Discrimination

In its decision, the FCA then proceeds to review the specific requirements for making a claim of family status accommodation.

The person must show that the issue is one of “substance and the complainant must have tried to reconcile family obligations with work obligations.”  The employee must be able to show that she or he has “sought out reasonable alternative childcare arrangements unsuccessfully, and remains unable to fulfill her or his parental obligations.”  That is the first hurdle – demonstrating “prima facie” discrimination.

The FCA then sets out a test to be applied to determine if there has been discrimination.  It involves four factors:

a.  The child must be under the care and supervision of the parent;  (In most cases, this will be automatically proven by the very status of the parents as parents, according to the court);

b.  The childcare obligation engages legal responsibility as opposed to personal choice;  This means that the age of the child is taken into account as well as the type of activity at issue.  As the court mentioned – going on a class trip would not be covered.  Being at home to look after a toddler would.

c.  The parent has made reasonable efforts to meet those obligations but has not been able to come up with an alternative solution;  The complainant must show that neither parent can meet their enforceable obligations while working and that there is no accessible solution.  In other words, the complainant must demonstrate a “bona fide childcare problem.”

d.  The workplace rule that is being questioned interferes with the parent’s obligations in a way that is more than “trivial or insubstantial.”

Johnstone Conclusion

In the Johnstone case, the FCA went on to conclude that each of these factors had been demonstrated and that discrimination on the basis of child care status had been demonstrated.

Most of the orders of the Tribunal were upheld, including a significant award of $15,000 for “pain and suffering.”

Conclusion

This is the type of case that the Supreme Court of Canada may well choose to hear if leave to appeal is sought.  That is not to say that the Supreme Court will substantially alter the decision.  That seems unlikely.  However, the Supreme Court may well determine that it would be appropriate for it to set out its own test for reviewing and assessing family status discrimination cases.  As well, it may view it as an opportunity to review the definition adopted by the FCA and consider whether access to family status protection should be broader.

Alternatively, the Supreme Court may simply choose not to grant leave (i.e. not to hear the case), which would give this FCA decision even greater weight as a Canadian legal precedent.

For now, and quite possibly, for good, it is clear that “family status” under Canadian human rights law includes child care obligations.  Employers are required to take requests for accommodation very seriously and to make significant efforts to work with employees who require accommodations to deal with childcare challenges.

 

Sabbath Observance and Workplace Discrimination: Ontario HR Tribunal Awards $4,000.

Can an employer discriminate against Sabbath observers in the course of interviews for employment in Ontario?  If not, what kinds of penalties can employers face when they discriminate in this fashion?  A recent Ontario Human Rights Tribunal case awarded an applicant $4,000 in damages for injury to “dignity, feelings and self-respect” when she was screened out of a job due to her Sabbath observance.

L.W. is a Seventh Day Adventist.  She applied for a position with the Desjardins Group.  The position was a short-term contract to work in a call centre.  Ms W was asked in the interview process if she could work on Saturdays.  She indicated that she could not since this was her Sabbath.  According to the findings of the Tribunal, she was then “screened out” from any further interview process and was not  considered for the position.

Surprisingly, the Tribunal held that it was permissible for employers to ask about work availability.  The Tribunal noted that there was no evidence in this case to indicate that the question was being asked in order to “classify” the applicant by her creed.

However, the Tribunal went on to conclude that the applicant’s inability to work on Saturdays for religious reasons led her to being screened out from any further interview process.  In other words, she was subjected to discrimination on the basis of her creed by the Desjardins Group, according to the Tribunal.  It is hard to see how this type of conduct could be prevented if the Tribunal is correct that applicants can be asked by an employer about work availability.

Nevertheless, the Tribunal found that Ms W. had been subjected to discriminatory treatment.  It awarded her the grand total of $4,000.  This hardly seems like a sufficient incentive to deter employers from discriminating on the basis of creed.  Part of the reason for the modest award was that Ms W., apparently, did not provide evidence of any steps that she had taken to try to find other employment.  But these damages are of a different type.  The $4,000 was awarded as “general damages.”  This should reflect the Tribunal’s view of the respondent’s conduct and its impact on the applicant.  $4,000 does not seem like very much of a deterrent.  I would have thought that $25,000 or $30,000 or even as much as $50,000 would have been an appropriate message to send in light of the seriousness of the impugned conduct and the findings of the Tribunal.

This aspect of the case reminds Ontario residents that even where discriminatory conduct has been proven, the Ontario Human Rights Tribunal may not award a very significant amount of money.  Further since the Ontario Human Rights Tribunal does not award payment of legal fees to successful parties, this type of hearing could be very costly for a claimant.  In many cases, it may make much more sense for a litigant to file a lawsuit in the Ontario Superior Court and to consider asking a jury for its assessment of damages.  A large jury award might serve as a much better deterrent than the modest sum that was awarded in the Desjardins and W. case.

Constructive Dismissal: Racism Ruling Overturned

How hard is it in Ontario to sue for constructive dismissal because of a racially poisoned work atmosphere?  According to a recent Ontario Court of Appeal decision in General Motors of Canada v. Johnson, released on July 31, 2013, the onus on the plaintiff is very significant.

Yohann Johnson, a black man, was a production supervisor with General Motors (GM).  According to the evidence, he had worked for GM, without incident, for almost eight years.   In early 2005, Johnson became responsible for training group leaders in a GM body plant.  An individual who was supposed to be trained by Johnson failed to show up for his training session.  The individual, Alex Markov,  claimed that he was uncomfortable with Johnson because of a remark that Johnson had made to him in the past, regarding Markov’s brother, who had been murdered.  Apparently, Markov’s brother had been killed by a black man.  Johnson understood that Markov was refusing to train with him because Johnson was black.  Markov was permitted by GM, initially, to train with another trainer instead of Johnson.

Johnson filed a complaint with GM alleging that Markov had refused to undergo training with him because he was black.  GM investigated these complaints.  Markov was initially told that he would have to train with Johnson or he would be forced to leave GM.  Apparently, with union involvement, GM agreed that Markov could be relieved of his group leader responsibilities so that he would not have to train with Johnson.  Shortly afterwards, Markov was working in the body shop, performing group leader functions, but GM claimed that this was only a temporary fill-in for another employee.  Markov was suspended for breaching the agreement but he filed a grievance and wound up overturning the suspension.   Johnson viewed this as evidence that GM was not prepared to enforce a deal that was agreed upon, to address Johnson’s concerns of racism.

Johnson ultimately went off on a stress leave that he claimed had come about as a result of workplace racism and the treatment of him.  He sued for constructive dismissal.  He alleged that GM had created a poisoned work atmosphere that tolerated racism at the workplace.

At trial, an Ontario Superior Court Judge, Alfred Stong J., accepted Johnson’s allegations.  The court held GM had “traded away Johnson’s human rights as a bargaining chip” and had created a poisoned workplace for Johnson.  The trial court awarded Johnson damages of more than $150,000 including constructive dismissal damages and other “Wallace” damages for bad faith conduct.  The court held that the evidence had shown that Johnson “satisfied the burden of proof placed on him of proving that he was constructively dismissed from his employment with GM.”

The Ontario Court of Appeal unanimously reversed the decision in its entirety.  It held that the trial judge’s findings should be overturned because they were “wrong, unreasonable or unsupported by the evidence.”  The Court of Appeal held that the foundational finding of racism was “unreasonable and unsupported by the evidence.”  The court noted that there had been no direct evidence of racism by anyone at GM.  The trial court’s conclusion was based on inconsistent statements that Markov had made, leading to a finding that he was lying.  Moreover,  the trial court based its decision on information provided by another employee, effectively “hearsay evidence.”  The Court of Appeal held that, on a proper evidentiary record, it was unreasonable for the trial court to make a funding that Markov’s refusal to train with Johnson was “solely racially based.”  The finding of constructive dismissal was overturned.

The Court of Appeal went on to state that the plaintiff bears the onus of establishing a poisoned workplace in a constructive dismissal case.  It is up to the plaintiff to demonstrate that “the objective reasonable bystander would support the conclusion that a poisoned workplace environment had been created.”  Further, the court stated that “except for particularly egregious, stand-alone incidents, a poisoned workplace is not created, as a matter of law, unless serious wrongful behaviour sufficient to create a hostile or intolerable work environment is persistent or repeated.”

The Court of Appeal rejected the argument that the refusal by one employee on one occasion,  to train with another employee, for racially motivated reasons, would have been enough to establish a poisoned workplace due to racism.  The court held that there was no evidence of systemic or institutional racist behaviour.  It noted that this was one incident over the course of an eight year working relationship and it was addressed, to the satisfaction of Johnson, initially.

Although the trial judge had put together a list of 8 factors that the judge felt established a constructive dismissal, the Court of Appeal rejected each of these factors, as improperly drawn conclusions, factual findings made without a proper evidentiary basis, or for other reasons, finding that the judge’s holdings were a “fundamental misapprehension of the evidence.”

The Court of Appeal was satisfied by GM’s evidence of numerous investigations, the steps it took to deal with the situation and its offers to Johnson to have him working in locations in which he would not have contact with Markov.  The Court of Appeal held that there was no evidence that any conduct on GM’s part signified an intention to “repudiate its contact of employment” with Johnson.  In fact, the Court of Appeal had this to say about the trial decision:

“The trial judge appears to have concluded that GM repudiated Johnson’s employment contract by failing to provide him with a discrimination free employment environment.  With respect, this misconceives GM’s obligations in the circumstances.”  The Court of Appeal, went on to add “GM, however, was not obligated to immunize Johnson from any future contact with Markov or any other body shop employees.”  The Court of Appeal rejected the trial court’s findings that there had been at least one threat made, indirectly, against Johnson.

The Ontario Court of  Appeal decision is an unusual example of a case in which an appellate court will delve into the trial record and overturn various factual findings and conclusions made by the trial court judge.  This is quite rare.  The standard is a very high one for this type of review and appellate courts are not usually interested in “retrying the case.”  Here, however, the Court of Appeal was obviously persuaded that the trial court judge’s conclusions were so unfounded that it felt it was warranted to review all of the findings.

The Court of Appeal’s decision also establishes that claims of a poisoned work atmosphere due to racism will be required to meet a high threshold.  Evidence of one encounter or incident, unless it is particularly “egregious” will not be sufficient to enable an employee to resign and sue for constructive dismissal.

It remains to be seen whether Johnson will file a Request for Leave to Appeal to the Supreme Court of Canada or how this decision will otherwise be applied if Johnson does not.  It is important to note that the case was all based on one incident where one employee had refused to train with another, without any direct evidence that this refusal was racially motivated.  That is to say, this case is certainly not dismissive of poisoned work environment claims based on racism.  However, the Court of Appeal has indicated that it will require a high standard, of explicit, direct incidents of racism in order to uphold a claim of constructive dismissal.

The difficulty with this approach is that many incidents of racism are more subtle and are not nearly as explicit as the standard that the Court of Appeal seems to require.   However, these incidents may still cause significant and far-reaching damage to the victim.  The Court of Appeal recognized that Johnson “believed that he had been a victim of racism in his workplace.”  But it concluded that this was not a “work environment poisoned by racism.”

 

 

 

 

 

 

 

 

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