Issues arising from employment relationships continued to make the news in 2015, as both the Ontario legislature and our Courts weighed in on the changing economy and its impact on workplaces, human rights concerns and the rights and responsibilities of employees at work.
The Cassels Brock Employment & Labour Group has put together a list of our top cases and trends from 2015.
- Rise in Summary Judgment - This past year saw a continued increase in the use of summary judgment motions to resolve wrongful dismissal claims. The frequent use of these motions has raised an issue with respect to how to address an employee’s duty to mitigate their damages during the reasonable notice period. In particular, given the relatively fast resolution of these motions, the length of an employee’s notice period may be determined by the court prior to the expiry of the notice period. As a result, employers are left unable to assess whether the employee has satisfied their duty to mitigate. To resolve this issue, a number of decisions have adopted the “Trust Approach.” Under this approach, an employer is ordered to pay the full notice period award at the conclusion of the motion, however, over the remainder of the notice period, the employee must account for mitigation earnings and repay those amounts to the employer. The Trust Approach raises concerns for employers as it requires full payment of an award prior to the end of a notice period and as a result, provides little incentive to the employee to find new employment. The approach also makes it difficult to prove that an employee has failed to mitigate, or failed to disclose mitigation earnings. The continued adoption of this approach will make summary judgment a less favourable route for employers going forward, especially in cases of employees with entitlement to long notice periods.
- Charter vs. Human Rights Code - In 2015 the Ontario Court of Appeal was required to consider whether or not an employee’s derogatory posts about a female supervisor on a union blog were harassment and discrimination within the meaning of the Ontario Human Rights Code. The employee took the position that since his comments occurred in the context of his union activities, they were both outside of his employment and protected by his right to freedom of expression and freedom of association under the Canadian Charter of Rights and Freedoms. The Court of Appeal agreed with the employee, and held that while his blogging was clearly sexist, it did not have a significant impact in the workplace itself and, in balance with his Charterrights, did not constitute discrimination “with respect to employment” or harassment “in the workplace.” [See: Taylor-Baptiste v. Ontario Public Service Employees Union, 2015 ONCA 495.]
- Employees Behaving Badly Continue to Make News - In May of 2015, a video of several male Hydro One employees making and/or supporting vulgar statements to CityNews reporter Shauna Hunt at a Toronto FC game went viral. Amid a barrage of media attention and public outcry, one of the hecklers, Shawn Simoes, was fired by the company, which used the incident as an opportunity to publicly affirm its commitment to equality and respect in the workplace. In November of this year, it was reported that Mr. Simoes had been rehired by Hydro One after an arbitration process. The process was kept confidential and there has been no public reporting of whether or not the company voluntarily agreed to rehire Mr. Simoes or was ordered to do so by the arbitrator.
- Ongoing AODA Compliance - The requirements under the Accessibility for Ontarians with Disabilities Act and the Occupational Health and Safety Act (the AODA) continued to roll out for private sectors employers 2015. Most significantly, as of January 2016, employers with over 50 employees are required to have met the AODA standards relating to accessible employment practices. These standards require a significant review of recruitment, hiring and performance management processes to ensure accessibility for job applicants and employees with disabilities. For an overview of these AODA requirements, see our recent e-lert here.
- Family Status Continues to Present Challenges - In recent years a number of cases have considered an employer’s obligation to accommodate parental obligations in the workplace. In 2015, this issue continued to be litigated with a number of decisions across Canada applying the decision in Canada (Attorney General) v. Johnstone,1 where the Federal Court confirmed that childcare is included in the protected ground of “family status.” In SMS Equipment Inc. v Communications, Energy and Paperworkers Union, Local 707,2 an Alberta court upheld an arbitration award finding that an employee was discriminated against when her employer refused to accommodate a request for a shift change due to childcare obligations. More recently, in Partridge v. Botony Dental Corporation,3 the Ontario Court of Appeal upheld a decision finding that an employer discriminated against an employee returning from maternity leave when it changed the employee’s hours in a manner that conflicted with her childcare obligations. While we expect this issue will continue to present challenges for employers, it is important to note that courts will make a distinction between a legal obligation to care for children, and personal choices of parents. For example in Flatt v. Canada Attorney General,4 the Federal Court of Appeal held that an employee who had requested accommodation to breastfeed her child during work hours had failed to establish discrimination on the basis that breastfeeding was a “personal choice,” not a legal obligation. See our previous e-lerts on family status claims from May 2015 and April 2015.
- Ontario Government Targets Sexual Harassment - In 2015 the Ontario Government moved forward with its three year action plan to combat sexual violence and harassment by introducing Bill 132: the Sexual Violence and Harassment Action Plan Act . If passed, Bill 132 will make significant amendments to the Occupational Health & Safety Act including increasing employer obligations with respect to workplace harassment programs, creating additional duties for employers to protect workers from workplace harassment, and ensuring that incidents are appropriately investigated with the results communicated to complainants and alleged harassers. Bill 132 will also create substantial new obligations for educational institutions to develop and regularly review standalone sexual violence policies. Finally, the proposed legislation will remove limitation periods for certain types of proceedings based on sexual assault.
- Employer’s Financial Difficulties are NOT Relevant to Determining Reasonable Notice - In late November 2015, the Ontario Court of Appeal slammed the door shut on the ability for an employer to argue that its financial concerns could justify a reduction in the notice period to an employee. Initially, on a summary judgment motion, the judge had reduced three employees’ entitlement from a 12 month notice period to a six month notice period. The rationale provided for the reduction was the employer’s financial position and the availability of alternate work. The motions judge specifically held that “The law does not ignore the dilemma of the employer.” This point has been reversed by the Court of Appeal which found that “... this court has never held that an employer’s financial difficulties justify a reduction in the notice period.” Full stop. The Court of Appeal then increased the entitlement of the three employees back to 12 months. [See: Michela v. St. Thomas of Villanova Catholic School, 2015 ONCA 801 (CanLII).]
- New High for Human Rights Damages - The shocking facts of a case involving two temporary foreign workers who were sexually harassed, solicited, assaulted and then threatened with reprisal by their manager prompted the Human Rights Tribunal of Ontario to impose record awards for compensation for injury to dignity, feelings and self respect this year. The Tribunal ordered the personal respondent and the employer (jointly and severally) to pay one applicant $150,000 plus interest and the other applicant $50,000 plus interest. You may recall that, until 2008, the maximum that could be awarded on this basis was $10,000. [See: OPT v. Presteve Foods Ltd., 2015 HRTO 675 (CanLII).] At the same time, a record award of the British Columbia Human Rights Tribunal for injury to dignity, feelings and self-respect of $75,000 was set aside by the British Columbia Supreme Court on the basis that there was nothing so “unique” about the case to warrant such a disproportionate result. The prior record high damages award in British Columbia was $35,000. The matter has sent back to the Tribunal to reconsider its decision. [See Kelly v. University of British Columbia, 2015 BCSC 1731 (CanLII).]
- Ontario Focuses on Precarious Employment and Vulnerable Employees - 2015 saw several legislative changes affecting Ontario workplaces. The Employment Standards Act, 2000 (the ESA) and the Workplace Safety and Insurance Act (the WSIA) were both amended to increase protections for Ontario workers. In February of this year, the $10,000 cap on awards under the ESA was removed and employees can now claim unpaid wages for up to two years. Changes to the ESA also imposed new posting obligations on Ontario employers. The WSIA has been amended to significantly increase corporate fines and add a new offence for attempting to prevent workers from reporting injuries to the Workplace Safety and Insurance Board. The Ontario government also launched a series of public consultations soliciting input on how the government can act to better protect workers with insecure or low paying employment, particularly those who work on a temporary or contract basis.
- Employer Avoids Paying Out 5 Year Term Contract - The unique challenges presented by fixed term agreements made the news in 2015 when an employee who had only worked two of five years of a fixed term agreement brought an action seeking payment of the entire term. The employee argued that since the termination clause in the contract was vague, it was not enforceable against him and he should be entitled to payment for the entire term. The Court agreed with the plaintiff that the termination clause was not binding but held that the fact that it existed at all meant that both parties always understood and intended that the agreement could be terminated prior to the expiry of the five year term. The employee was awarded common law notice of termination, which was far less than the three years of pay he sought. [See: John Howard v. Benson Group Inc., 2015 ONSC 2638].