Now that 2013 has come to an end, we are pleased to share our second annual list of the “Top 10” employment law cases that have been decided in the past year. These are cases that captured our attention because they were intrinsically interesting legally or factually, had significant practical implications for the workplace or were a sign of emerging trends.

Rubin Thomlinson’s top 10 cases, in no particular order, are as follows:

Top 10 Employment Law Cases of 2013

  1. General Motors of Canada Limited v. Johnson, 2013 ONCA 502.
  • Objective test to be used in evaluating complaints of a poisoned work environment

Johnson sued General Motors for constructive dismissal, alleging that the company’s inadequate investigation into his complaints of racism had led to a poisoned work environment.  After winning at the trial level, the Court of Appeal overturned the decision and emphasized that it is not the plaintiff’s subjective assessment of the workplace conditions, but rather that of an objective reasonable bystander, that is relevant in evaluating withera poisoned work environment exists.  While this is not new law, this case stands as an excellent reminder of the applicable test to use when determining whether claims of harassment and discrimination are valid.

  1. Stevens v. Sifton Properties Limited, 2012 ONSC 5508.
  • Employment contract is unenforceable if it does not allow the employee to receive benefits throughout the statutory notice period

While decided in late 2012, this case had significant implications for employers in 2013 and, in some cases, required employers to re-draft the termination provisions of their employment contracts.  Indeed, we saw this case repeatedly referred to this year by counsel representing employees who were party to an employment contract with a termination provision.

Stevens argued that the termination provisions in her employment contract failed to confirm her entitlement to benefit continuation through the statutory minimum notice period. The Court agreed finding that the contractual language suggesting that the notice payments were to be “in satisfaction of

all claims and demands against [Sifton] which may arise out of statute or common law” was an impermissible exclusion and denial of the statutory benefits to which Stevens was entitled.

  1. Brownson v. Honda of Canada Mfg., 2013 ONSC 896
  • Investigation may be required, even where employer intends to terminate complainant without cause

Brownson commenced an action for wrongful dismissal after having been terminated without cause during his participation in Honda’s investigation into incidences of misconduct in the workplace. On a summary judgment motion, Honda sought to have the claim dismissed, arguing that Brownson had been provided with an adequate period of reasonable notice. The Court did not agree, suggesting that it was “a triable issue whether the employer adopted the [without cause termination] intentionally to side step the criteria for fair treatment of an employee against whom cause is alleged.”  While the case will need to be tried, there is the suggestion here that an investigation may not be able to be avoided even when the terminated party is provided reasonable notice.

  1. Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Limited, 2013 SCC 34 Random alcohol testing is not permitted, absent demonstrable safety concerns justifying universal testing
  • ​Random alcohol testing is not permitted, absent demonstrable safety concerns justifying universal testing

The Supreme Court of Canada held that employers are not permitted to conduct random alcohol testing in the workplace unless they are able to demonstrate safety concerns that would justify universal random testing, including a real and frequent problem of alcohol use in the workplace. However, employers remain entitled to test an individual employee if the employer has reasonable cause to believe that the employee was impaired while on duty, was involved in a workplace accident or incident, or was returning to work after treatment for substance abuse.

  1. R. v. Metron Construction Corporation, 2013 ONCA 541
  • The largest financial penalty to date arising out of the Bill C-45 OHS amendments to the Criminal Code

After pleading guilty to one count of criminal negligence causing death pursuant to the Bill C-45 amendments to the Criminal Code, Metron was fined $200,000, plus a $30,000 victim surcharge. The Crown appealed the quantum of the fine, suggesting that the sentence was “manifestly unfit”. The Court of Appeal agreed, finding that the conduct of the company’s supervisor, for which the company was criminally liable, was “extreme”, and substituted a fine of $750,000 (plus a $225,000 victim surcharge), notwithstanding

the fact that the corporate entity that was convicted was no longer carrying on business. This represents the largest financial penalty to date for an organization’s criminal misconduct in failing to take reasonable steps to prevent bodily harm to a worker.

  1. Fair v. Hamilton-Wentworth District School Board, 2013 HRTO 440
  • Reinstatement remains available as a human rights remedy notwithstanding a significant delay in adjudication

The Hamilton-Wentworth District School Board was ordered to reinstate Fair, an employee who had been absent from the workplace for nearly ten years, and to compensate her for lost wages for her entire ten year absence. Fair had been employed by the school board for approximately fifteen years when she developed a generalized anxiety disorder in 2003 that required her to be  off work. After a one-year absence, Fair was assessed as capable of gainful employment. However, the school board failed to facilitate her return to work, and ultimately terminated her in July of 2004. Fair was also awarded $30,000 in general damages for injury to dignity, feelings and self-respect.

While reinstatement is not often seen in human rights cases, in part because a large number of them are settled before a hearing, Fair is a good reminder that it remains an active remedy of the Human Rights Tribunal.

  1. Globe and Mail v. Communications, Energy and Paperworkers Union of Canada, Local 87-M, Southern Ontario Media Guild (Jan Wong Grievance)
  • Breach of a confidentiality provision in settlement

Wong was employed by the Globe and Mail and, at the conclusion of the employment relationship, was paid a sum of money as part of a settlement that was reached by the parties.  The terms of the settlement agreement included a confidentiality provision, prohibiting Wong from disclosingthe settlement. Three years later, Wong published a memoir, in which she referred to the settlement and the fact that she received “a big pile of money to go away.” The Globe and Mail sought to enforce the confidentiality provision and was successful in doing so. The Arbitrator found that the agreement between the parties was “clear and unambiguous” and did not allow Wong to disclose any of its terms. Accordingly, Wong was required to return the settlement funds.

In a blog we wrote shortly after this decision we said that this case breathed new life into confidentiality provisions the breach of which was often difficult to prove and to enforce.

  1. Myers v. Chevron Canada Limited, 2013 BCSC 420
  • Organizations are entitled to reasonable latitude in structuring their operations, and a loss of some job responsibility will not satisfy the test for constructive dismissal

As of 2010, Myers had worked for Chevron for approximately 16 years, most recently as a Team Lead. However, due to a corporate restructuring, Myers’ position was eliminated. Rather than an outright termination,Chevron offered Myers the position of Business Analyst, which Myers viewed as a demotion because he no longer had employees reporting to him. Consequently, he resigned and sued Chevron for constructive dismissal.In dismissing Myers’ claim, the British Columbia Supreme Court held that the change did not go to the root of Mr. Myers’ employment with Chevron and that, the Analyst position “was not a dramatic qualitative change in his duties.” We wonder whether this case is a sign of the economic times as itseems to give employers more latitude to make changes to an employee’s job without triggering constructive dismissal.

  1. Reiss v. CCH Canadian Limited, 2013 HRTO 764 (“Reiss”) andCommunications, Energy and Paperworkers Union, Local 707 v.SMS Equipment Inc., 2013 CanLII 68986 (ON LA) (“SMS”)
  • Human rights cases to watch

We think age and family status will be the hot human rights topics for 2014.

Consider these cases:

Reiss: Mr. Reiss, a 60 year old former lawyer applied for a position as a legal writer. He was not selected for an interview, and his application was put “on hold”. HR advised him that “ it was looking like they were moving towards candidates that were more junior in their experience and salary expectation”.The Tribunal held that HR’s comment was “suggestive of stereotyped assumption that an older person would necessarily want a higher salary”. It awarded Mr. Reiss $5,000 for injury to dignity, feelings, and self respect.

SMS: Renee Cahill-Saunders, a single mother of two, worked rotating night and day shifts at SMS. When on night shifts, she paid for a third-party caregiver to look after her children, and she looked after them during the day. Realizing that it was too expensive to pay for additional childcare during the day, and that she did not wish to leave her children in the care of a thirdparty caregiver for a long period of time, Ms. Cahill-Saunders asked SMS to accommodate her by permitting her to exclusively work day shifts. SMS refused this request, stating that the requirement that she work a shift ofrotating nights and days was not discriminatory. The Arbitrator disagreed, concluding that the rule requiring employees to work both day and night shifts had the effect of imposing a burden on Ms. Cahill-Saunders due to her childcare responsibilities that was not imposed on other employees who did not share her family status.

  1. Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799
  • Court awards human rights damages as civil remedy in wrongful dismissal action

We believe that this is the first decision in which an Ontario court has awarded human rights damages in a wrongful dismissal action. Wilson sought wrongful dismissal damages and damages as a result of a breach of the Ontario Human Rights Code, arguing that she had been terminated because of a back ailment. She was successful and was awarded $20,000 in human rights damages.