The votes are in! The lawyers at RT have identified what we believe to be the “Top 10” employment law cases that you need to know about from 2012. Here they are, covering a broad range of topics, in no particular order.

1. R. v. Cole, 2012 SCC 53 - Employee’s reasonable expectation of privacy when using employer technology

During routine maintenance, pornography was found on the work computer of a high school teacher. The school principal reported this to the police, and charges were laid. Given the comprehensive IT policy governing the use of school-owned technology, the Supreme Court of Canada found that Mr. Cole had a diminished expectation of privacy in the contents of his computer, and allowed the evidence to be admitted. This decision reinforces the importance of implementing, and following, a policy for use of employer-owned technology in the workplace.

2. Jones v. Tsige, 2012 ONCA 32 - Tort of invasion of privacy and intrusion upon seclusion

Tsige, an employee of the Bank of Montreal, accessed the banking information of Jones approximately 174 times over a two-year period after learning that her former husband was in a relationship with Jones. Jones complained, and the Bank disciplined Tsige. However, Jones also successfully sued Tsige privately for the tort of “invasion of privacy” and “intrusion upon seclusion.” While these causes of action had never been recognized in Canada in the past, the Ontario Court of Appeal endorsed the law, even in the absence of proof of harm to an economic interest. Both employers and employees must now be conscious of possible additional liability in the event that customer or employee data is accessed improperly.

3. Barton v. Rona, 2012 ONSC 3809 - Wrongful dismissal; duty to accommodate; breach of OHS program

Barton was terminated, allegedly for cause, after his subordinates breached company health and safety policies to help a disabled employee access the second floor of a Rona store to attend a training session. Even though Barton did not participate, the evidence suggested that he was aware of the plan and did not prevent its execution. Barton sued for wrongful dismissal and was awarded 10 months’ pay in lieu of notice. The Ontario Court disagreed with the employer’s zero-tolerance health and safety policy, suggesting that employers should compare the proportionality of the misconduct with the sanction imposed and beware of the “zero-tolerance” approach.

4. R. v. Metron Construction and Joel Swartz, 2012 ONCJ 505 & 2012 ONCJ 506 - OHS and Criminal Code guilty pleas

Four employees were killed after falling from a suspended swing-stage platform. The resulting investigation identified numerous health and safety violations, and both the employer and the director were charged with contraventions of the Occupational Health and Safety Act and the Bill C-45 provisions to the Criminal Code of Canada. Metron pled guilty to one charge under the Criminal Code, and was fined $230,000; Swartz pled guilty to four charges under the OHSA, and was fined $113,500. This is only the third conviction under the Bill C-45 provisions to the Criminal Code, and is one of the rare circumstances where a director has also been convicted under the OHSA.

4. Sandhu v. Solutions2go Inc., 2012 ONSC 2073 - Entitlement to bonus payments during statutory notice period

Sandhu was employed by Solutions2go Inc. and her bonus was a significant portion of her total compensation. Sandhu was terminated, without cause, and provided with pay in lieu of notice. Despite the fact that the company declared bonuses during the notice period, she did not receive one because bonuses had not been declared at the time of termination. Sandhu sued her former employer, successfully. The Ontario Court was particularly troubled by the lack of a written bonus policy, requiring it to refer to the employer’s obligation to pay all entitlements throughout the statutory notice period, including bonuses. As the bonus was declared during the notice period, it was payable to Sandhu.

5. Vernon v. British Columbia (Liquor Distribution Branch), 2012 BCSC 133 - Improper workplace investigation

Vernon had been employed by the Liquor Distribution Branch of the Province of British Columbia for approximately 30 years, and had an excellent employment record. She was terminated, allegedly for cause, after a subordinate made numerous allegations against her, which were later determined to be unfounded. Vernon sued for wrongful dismissal. The BC Court agreed, awarding the maximum notice period available to public employees, together with $35,000 in aggravated damages and $50,000 in punitive damages. The Court was particularly critical of the employer’s investigation into the allegations against Vernon, and provided useful commentary on appropriate steps in a workplace investigation.

6. Devaney v. ZRV Holdings, 2012 HRTO 1590 - Family status discrimination; mandatory elder care

Devaney is an architect, who was employed by ZRV Holdings until 2009. Devaney also provided elder care to his mother, through a flexible work arrangement that ZRV had permitted. However, as his mother’s condition worsened, ZRV believed that his productivity was being affected. On numerous occasions, ZRV told him that he would need to spend more time in the office, or he would be fired. Unfortunately, Devaney was not able to do so, and he was fired, allegedly with cause. Devaney brought a human rights complaint, alleging that ZRV had discriminated against him on the basis of family status. Finding that ZRV had failed in accommodating Devaney, the Ontario Human Rights Tribunal awarded $15,000 in damages. This case makes clear that “family status” as defined under the Human Rights Code includes elder care obligations.

8. Chandran v. National Bank of Canada, 2012 ONCA 205 – No obligation to mitigate by continuing work

Chandran was a senior manager at National Bank. He was offered a new role after the Bank received complaints from Chandran’s subordinates. While the new role had the same salary and level, Chandran no longer had a direct reporting relationship with subordinates. He declined the new role, left the Bank, and sued for wrongful dismissal. The Bank argued that Chandran should have mitigated by accepting the other position. Both the trial court and the Ontario Court of Appeal agreed with Chandran – he had been constructively dismissed, and there was no duty to mitigate, as the new position would have resulted in “an atmosphere of embarrassment or humiliation.”

9. Fasken Martineau DuMoulin LLP v. McCormick, 2012 BCCA 313 – Partnership cannot discriminate against partners

The partnership agreement at Fasken Martineau DuMoulin requires partners to retire at 65. Upon reaching the age of 65, McCormick wished to continue working at the Firm. He challenged the mandatory retirement provision as discriminatory on the ground of age. The Firm responded, arguing that the human rights protection of the Code did not extend to the partners of the Firm, as they were not employees. The BC Court of Appeal agreed with the Firm, holding that a partnership is not able to employ a partner. Therefore, McCormick was not able to claim discrimination in his employment on the basis of age, and the Tribunal did not have jurisdiction to decide the issue. McCormick’s complaint was dismissed.

10. The Trilogy of Overtime Class Action Certifications: Fulawka v. Bank of Nova Scotia, 2012 ONCA 443; Fresco v. CIBC, 2012 ONCA 444; McCracken v. CN Railway, 2012 ONCA 445 – Paving the way for more employment class actions in Canada

Former employees of three companies have sought damages for unpaid overtime in parallel class action proceedings, either on the basis of misclassification of employees as “managers” or because the employer had an overtime policy that was more restrictive than the Canada Labour Code. The Ontario Court of Appeal declined to certify the class action on the basis of misclassification as “managers”, stating that the classification would need to be examined on a case-by-case basis. However, the Court of Appeal certified the class actions against both of the banks, determining that there were common issues among the class of plaintiffs for the purposes of certification. Depending on the outcome of each of these cases, employers may start to see more overtime class actions in Canada.