Sunday, 22 December 2013

Ontario Employment Law’s Top Five Cases – 2013 Edition

Ontario employment lawyers had another interesting year with a number of provocative and interesting decisions coming from this country’s courts and administrative tribunals.

Continuing a tradition started last year on the law blog for the suddenly unemployed, (see Top Five Cases of Importance to Ontario Employment Lawyers 2012) it’s time again for me to name the top five cases of importance to Ontario employment law… at least according to me.

Number Five: Payette v. Guay inc., 2013 SCC 45

CanLII: 2013 SCC 45
This Blog: Caveat Venditor - Non-Competition Agreements in Asset Sales

Payette is a case from the Supreme Court of Canada concerning non- competition agreements.

In its decision, the Supreme Court affirmed that a five-year non-competition agreement will be enforced where it is included as a part of a sale of a business. The Court affirmed that non-competition agreements negotiated in the context of a sale are different from non-competition agreements included in a simple employment agreement.

Number Four: IBM Canada Limited v. Waterman, 2013 SCC 70

CanLII: 2013 SCC 70
This Blog: SCC: Pension Benefits Cannot be Deducted from Wrongful Dismissal Damages

Coming in just under the wire, the Supreme Court of Canada’s mid-December 2013 decision concerning the deductibility of pension benefits from wrongful dismissal damages will have far-reaching effects to be sure.

In a 7:2 split decision the Court held that benefits received from a defined benefits plan could not be deducted from wrongful dismissal damages otherwise payable.

Number Three: Canada v. Johnstone, 2013 FC 113

CanLII: 2013 FC 113
This Blog: Employers Must Accommodate Parents - What it Means

Kicking off the top 3, all of which will be human rights case this year, is the Federal Court’s decision in Johnstone. Johnstone set off a firestorm of debate at the start of this year when the court affirmed the Canadian Human Rights Tribunal’s decision that employers had the legal obligation to accommodate an employee’s family status – including parental responsibilities, specifically finding childcare.

Number Two: Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799

CanLII: 2013 ONSC 5799
This Blog: Ontario Superior Court Awards Human Rights Damages

Five years following the changes to Ontario’s Human Rights Code the Ontario Superior Court finally had a case before it on which it could render a reported decision.

In 2008 the Human Rights Code was amended to permit plaintiffs in civil lawsuits to attach a complaint of a violation of their rights as guaranteed by the Code. It took until Wilson for a case to reach the court on which reasons could be given.

As mentioned in this blog when the decision was released, the decision itself left this author (and presumably others) a little wanting. However, what the case established is that the Ontario Superior Court is prepared to follow the Human Rights Tribunal’s approach to such cases.

For some time there had been some discussion in the employment law community as to whether the Superior Court would chart a new path for the Tribunal to follow or whether the ONSC would follow the HRTO’s lead; it would appear that the answer has been found. In many ways this is probably for the best. The HRTO has developed a wide and established body of jurisprudence in its area of expertise; the Superior Court, being a generalist court, is wise, in my opinion, to follow its precedents.

Number One: Fair v. Hamilton-Wentworth District School Board, 2013 HRTO 440

CanLII: 2013 HRTO 440
Not on this blog.

Speaking of precedents from the Human Rights Tribunal of Ontario, capping off this year’s top five list is the case of Fair v. Hamilton-Wentworth District School Board.

In a year that saw a number of precedent-setting, news-worthy human rights cases perhaps none was bigger than Fair.

The decision cited above is actually the remedy decision from the Tribunal. The Tribunal’s decision on the employer School Board’s liability was actually released almost a year earlier: 2012 HRTO 350.

In its reasons for decision on liability, the Tribunal found that the employer had discriminated against the applicant on the basis of a disability for nearly nine years (from April 2003 until the Tribunal’s decision in February 2012.)

Even more incredible was what the Tribunal did next. In its decision on remedy, the Tribunal not only ordered the employer to reinstate the employee to suitable employment, the Tribunal ordered the employer to calculate the applicant’s loss of wages from June 26, 2003 until the date of reinstatement (bear in mind this decision was given in March 2013) and pay such an amount, including all pension contributions, and take account of all tax, EI, and CPP implications as well. $30,000 in general damages was also awarded. Interest of those amounts was awarded from November 2004.

According to an article in the Toronto Star, the total award came to over $450,000.

While the Fair case is reportedly still under appeal, signalling that this case is likely fair from over, if the decision stands it will undoubtedly change most employee’s approach to wrongful dismissal cases.

The reason that I select Fair as the top case of 2013 is for the tangible effects that I am already seeing in my practice. More employees are seeking ways to avail themselves of the remedies afforded by the Human Rights Code. Given the delays inherent in the system, and given the potential for reinstatement together with back pay, employees are keen to attempt to obtain those remedies rather than simply accept a reasonable notice period as is prescribed under typical wrongful dismissal cases.

Also, given the Tribunal’s direct access model and inability to award costs in unsuccessful cases (see my comments about Doe v. A & W Canada, 2013 HRTO 1259, below) employers are seeing considerably more human rights cases.

I think we’re going to see not only more of a shift to human rights cases, but potentially a call for a change to the Ontario Employment Standards Act, 2000 to include the right of reinstatement following dismissal, similar to what is already provided for in section 240 of the Canada Labour Code. With an Ontario provincial election looming, might one of the parties consider such a bold proposal?

Honourable Mention

I would be remiss if I did not mention these other decisions. While they may not make the top five, they are all worthy of mention for one reason or another.

Doe v. A & W Canada, 2013 HRTO 1259

CanLII: 2013 HRTO 1259
Not on this blog.

Doe is one of those cases that either infuriates or amuses. The facts are simply too incredible to summarize. The case was concededly ridiculous. The Applicant never had a case and made some of the most outlandish claims possible. Seriously, give the decision a review.

So why do I mention it? Because the case is such an affront to reasonableness it may actually affect change. There is frustration with the HRTO’s direct access model, as compared to gate-keeper function of the human rights commission, currently employed at the federal level.

Ljuboja v Aim Group Inc, 2013 CanLII 76529 (ON LRB)

CanLII: 2013 CanLII 76529 (ON LRB)
This Blog: Has the Ontario Labour Relations Board Finally Given Some Protection to Harassed Employees?

Ljuboja is important for finally, maybe giving some teeth to Ontario’s Bill 168.

This blog has long taken issue with both the provisions of the changes to Ontario’s Occupational Health and Safety Act as well as the Ontario Labour Relation’s Board’s approach to those changes. Ljuboja on the other hand may finally move the state of the law, at least a little.

Sandhu v Brar, 2013 CanLII 43024 (ON LRB)

CanLII: 2013 CanLII 43024 (ON LRB)
This Blog: Co-op Student Owed Wages Despite Agreement

The issue of unpaid interns was hot in 2013 and Sandhu affirmed that the Ontario Labour Relations Board is going to compensate those who are treated more like employees than anything else.

General Motors of Canada Limited v. Johnson, 2013 ONCA 502

CanLII: 2013 ONCA 502
This Blog: What is a Poisoned Workplace

In yet another reversal by the Court of Appeal for Ontario of a trial judge’s findings in an employment case, GM reviews when the court will endorse a finding of a poisoned work environment.

Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34

CanLII: 2013 SCC 34
Not on this blog.

Irving clarified when an employer, in a unionized environment, could conduct random alcohol tests. In short, the permitted cases will be few.

Dryco Drywall Supplies Ltd v Teamsters Local Union No 213, 2013 CanLII 7695 (BC LA)

CanLII: 2013 CanLII 7695 (BC LA)
This Blog: Setting Co-Worker on Fire Not Just Cause

This case does not really advance the state of law, but the facts are great. For those that may have missed it, it’s worth the read… or at least my summary.

Looking Back to 2012’s Predictions

In my 2012 post I had written:

Looking ahead to 2013 it is hard to tell where the law may head next. As mentioned, all eyes will be on what happens in Seberras as well as what plaintiffs choose to do with Jones.
Will a challenge be taken to Ontario’s Bill 115? And what will the court do with it?
The Supreme Court of Canada has indicated that it will hear the appeal of Association of Justice Counsel v. Canada (Attorney General), 2012 ONCA 530, which will hopefully address the question of whether the right to association guaranteed by section 2(d) of the Charter is simply more than procedural.

Well, Bill 115 seems like a distant memory now. Who might have foreseen how that all shook out? Association of Justice Counsel was in fact denied leave to the Supreme Court of Canada.

Seberras is yet to move and given the amount of the recovery in Jones, aside from a lot of discussion, I am yet to really see it go anywhere. (For example in a Small Claims action earlier this year the court awarded $100 as damages for the tort: Action Auto Leasing & Gallery Inc, 2013 CanLII 57491 (ON SCSM))

Looking Ahead

Above I speculate that the employment bar will likely continue to see an influx of human rights matters. Unless the Human Rights Tribunal of Ontario changes its system to either a gatekeeper type system or starts awarding costs, especially in cases such as Doe v. A&W, the number of cases is only bound to continue to increase – especially with decisions like Fair.

Privacy and BYOD issues are going to continue to be relevant, especially as the home and the workplace continue to blend with cloud computing.

Finally, with an aging population and continued record low interest rates, pressures on pension funds are likely to continue to cause labour unrest and plant closures.

As always, this blog will continue to strive to keep readers up to date on developing employment law issues and trends.

Whether you’re an employer or employee, the employment lawyers for employees at Ottawa's Kelly Santini LLP would be pleased to be of service to you. To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.

Sean Bawden, publisher of the law blog for the suddenly unemployed, can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP, and part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice. He is a trustee of the County of Carleton Law Association.



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