Saturday, 13 December 2014

Top Five Cases of Importance to Ontario Employment Law - 2014 Edition

Since its inception in 2012, this blog has been naming its Top Five Cases of Importance to Ontario Employment Law. The 2013 and 2012 editions are available by clicking the links.

In 2012, this blog named Jones v Tsige as the number case of importance to Ontario employment lawyers. This year’s decision in Evans v. The Bank of Nova Scotia (see: Employee's Invasion of Customer's Privacy can be Employer's Responsibility) demonstrates why that case was a reasonable pick.

In 2013, this blog named the decision of the HRTO in Fair v. Hamilton-Wentworth District School Board as the number case of importance for that year. This year’s decision from the Ontario Divisional Court upholding that decision (see: Appeals Court Upholds Employee’s Reinstatement 9 Years After Termination) received considerable attention from both interested and casual observers.

So, in a year that saw a number of much-discussed Supreme Court of Canada decisions, including a new approach to summary judgment and a statement that parties to a contract must execute their contractual obligations “honestly” what will take the top spot?

Selection Criteria

Compiling a list of only five cases sounds a lot easier than it is. I was quickly reminded of that fact when I began to review the cases released this year. I was surprised to see how many cases the Supreme Court of Canada had released this year on topics ranging from whether partners in a law firm were considered to be “employees” under British Columbia’s human rights legislation, to whether pregnant workers in Quebec could refuse to work in unsafe work environments. Then there were the appellate decisions on important issues, such as the obligation to accommodate family status under the Canadian Human Rights Act. How then, from all of those cases, do I get this list down to five?

First, the decision has to have a considerable impact on Ontario law. Accordingly, even if the case is from the Supreme Court of Canada, if the decision primarily concerns the interpretation of extra-provincial legislation it does not make the list. That criterion removes decisions such as:

Second, the decision must have a considerable impact on labour or employment law. The Supreme Court’s decisions in Hryniak and Bhasin are undoubtedly important decisions. However, those decisions, like most from the Supreme Court of Canada, are intended to apply to myriad situations; not just employment law.

Finally, the decision should either do something new, as was the case with Jones v Tsige or affirm first principles in a dramatic way, as was the case with Fair.

So, without further delay, my completely personal and wholly subjective list of the top five cases of importance to Ontario employment law, according to me…

Number Five: Beaulieu v University of Alberta

The number five spot goes to Beaulieu v University of Alberta, 2014 ABCA 137 (CanLII), which was summarized by this blog in the post SCC Refuses to Hear Case from Unionized Employee who Sued for Breach of Confidence and Defamation.

In its decision, the Court of Appeal of Alberta affirmed the legal principle that unionized employees must subject all disputes arising out of the employment situation to the mediation/arbitration process contained within the employee’s collective bargaining agreement – not the civil courts.

Now, I appreciate that I just finished saying that in order for a case to make the list it had to be important to Ontario law and then I immediately start of the list with a decision from Alberta. However, Beaulieu is an important decision for a few reasons.

First, Mr. Beaulieu did seek leave to the Supreme Court of Canada and the top court declined to hear his case. Second, as the earlier blog post noted, it would be hard to overlook the implications of that decision on the Jian Ghomeshi debacle, which was an Ontario case.

Beaulieu makes the list for affirming first principles that if an employee is unionized, then with very limited exception that employee will be forced to go through the grievance mechanisms available to him, not the civil courts – a lesson that cost Mr. Ghomeshi at least $18,000 to learn.

Beaulieu also allows this blog to mention the decision of Kotecha v. Affinia Canada ULC, 2014 ONCA 411, which was a decision of the Court of Appeal for Ontario, summarized by this blog in the post Wrongful Dismissal First Principles Affirmed by ONCA. In Kotecha, Ontario’s top court affirmed that the correct approach to determining the amount of reasonable notice owed to an employee on termination is by employing the factors laid down in Bardal.

Number Four: Boucher v. Wal-Mart Canada Corp.

The number four spot goes to Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419 (CanLII), which was summarized by this blog in the post Wal-Mart Rolls Back Award of Punitive Damages.

Much like Beaulieu, Boucher makes the list more for its ‘celebrity’ status than for its tangible impact on Ontario employment law.

Boucher concerned an appeal by Wal-Mart of the much-celebrated jury award of $1,000,000 in punitive damages against the retailer. In its decision released in May of 2014, the Court of Appeal for Ontario reduced the award of punitive damages against a Wal-Mart manager from $150,000 to $10,000, and against Wal-Mart itself from $1,000,000 to $100,000. In the same decision, however, the court upheld the award of $100,000 in damages for intentional infliction of mental suffering against the manager, and the award of $200,000 in aggravated damages against Wal-Mart.

The decision is important because awards of damages for intentional infliction of mental suffering are rare. Cynically, I suspect that had the employer not been the world’s largest retailer the result would likely have been different. Nonetheless, it was and the decision is what it is.

In my blog post I questioned whether in Boucher the Court of Appeal may have now softened its position on the availability of tort damages in the employment context. On that point I wrote:

To me, it would appear that the Court of Appeal may have now softened its position on the availability of tort damages in the employment context. The change is with respect to the criterion of the Prinzo test that, the flagrant or outrageous conduct must be “calculated to produce harm.” While the “harm” that the conduct was intended to produce has always been thought of, at least by me, as physical harm, i.e. “a visible and provable illness”, which is the third criterion of the Prinzo test, in Boucher, Justice Laskin commented that the harm that was intended by the defendant was that the plaintiff would quit. (See paragraphs 48 and 51 of the decision, mentioned above.)

Changing the test from requiring the plaintiff to show that the defendant intended to produce the physical harm that resulted to requiring the plaintiff to only show that the defendant intended to cause some harm, namely the resignation of the plaintiff, significantly reduces the evidentiary burdens on plaintiffs and significantly lowers the threshold for the award of such damages, I would submit.

If the decision stands, either because neither party appeals, or the Supreme Court of Canada declines to hear the case, or the Supreme Court of Canada agrees with this decision, then we may be seeing significantly more cases of intentional infliction of mental suffering cases coming out of the employment law world.

Since posting that article some readers have taken issue with my position, arguing “I think you are reading paragraph 51 too narrowly. You can't just read the first 2 sentences and ignore the 3rd sentence that the manager wanted to cause emotional distress or mental anguish.” For more on the debate, consider the comments following the original blog post.

In any event, it is hard to overlook a six-figure employment law decision from the province’s highest court against the world’s largest retailer. For that, Boucher earns this blog’s number four spot for 2014.

Number Three: Beatty v Best

In the first of two decisions from the Ontario Superior Court of Justice sitting at Ottawa, the number three spot goes to Beatty v. Best Theratronics Ltd., 2014 ONSC 3376 (CanLII), as summarized by this blog in the post Summary Judgment - Appropriate In Most But Not All Employment Law Cases.

I will be honest, when this decision first came out I was perhaps a little critical and sceptical of the decision. However, upon reflection, the decision is an important one more for what Justice Hackland did than for what he did not do.

In the blog post above, the focus was on my rejection of the assumption that, following the Supreme Court of Canada’s decision in Hryniak v. Mauldin, 2014 SCC 7, every wrongful dismissal case was suddenly perfect for disposition by summary judgment. (For my comments on Hryniak, see the post Supreme Court of Canada Provides Guidance on Summary Judgment: What it Means for the Suddenly Unemployed.) As the Beatty case made plain, the assumption was and is simply not true.

However, there is more to the decision in Beatty than just the court’s refusal to grant summary judgment on the whole of the claim. After declining to award damages for aggravated damages, punitive damages, and special damages on the basis of no more than written materials, Justice Hackland ordered a two-day mini trial, before him on those issues.

The decision is important because it signals an initiative on the part of the judiciary to attempt to make litigation less expensive and more approachable for all parties. Justice Hackland, having heard the motion, was aware of the facts and alive to the issues. By seizing himself of the case he was able to save all sides a great amount of time and money by not requiring them to bring the next judge ‘up to speed.’ That decision makes a lot of sense.

So, while I may have initially been a little critical of the decision to attempt to adjudicate the matter by way of summary judgment, given the approach to be employed by Justice Hackland, in retrospect, it was actually a rather good idea.

For demonstrating that the court will be responsive to the changing needs of litigants, the decision in Beatty v Best earns this blog’s number three spot.

Number Two: Paquette c. Quadraspec Inc.

The number two spot, or perhaps I should say place numéro deux, goes to the French-language decision of Justice Paul Kane, also of the Ontario Superior Court of Justice sitting at Ottawa, in Paquette c. Quadraspec Inc., 2014 ONCS 2431 (CanLII). Paquette was summarized by this blog in two posts: Pardon my French: The Decision in Paquette c. Quadraspec Inc., 2014 ONCS 2431 and The Requirement to Pay Severance in Ontario - The Decision in Paquette c. Quadraspec Inc., 2014 ONCS 2431.

Paquette est un monstre! Had the decision been appealed (it was not) and affirmed it undoubtedly would have earned this blog’s top spot. As it is, even as a decision from the Ontario Superior Court, now that the decision has been published, in English, in the Ontario Reports, it will be hard for others to overlook this decision.

Paquette makes two important findings: First, Justice Kane held that the $2.5 million threshold for the payment of statutory severance was to be calculated with regard to the employer’s entire operations, not just those in Ontario. Second, Justice Kane refused to follow the decision of the Court of Appeal for Ontario in Roden v. The Toronto Humane Society, which limited an employee’s entitlements on termination to statutory minimums. His reasons why are worth a read.

Paquette took two posts to summarize. It makes a number of rather unexpected findings, especially on the issue of statutory severance. While some may have been inclined to overlook the decision, if for no other reason than it was in French, the case has gained a fair amount of traction, being mentioned in a number of journals and, as mentioned, being translated into English for publication in the Ontario Reports. While the decision is yet to be cited in any subsequent reported case, I have to believe that someone is going to try relying on it.

If the statutory severance provision withstands further scrutiny, this decision just changed the way business is done in Ontario and for that, the decision in Paquette c. Quadraspec Inc. earns this blog’s number two spot for cases of importance in 2014.

Number One: WSIAT Decision No. 2157/09

This year’s top spot goes to a decision from the Ontario Workplace Safety and Insurance Appeals Tribunal: Decision No. 2157/09, 2014 ONWSIAT 938, which was summarized by this blog in the post WSIAT Says Prohibition Against Mental Stress Claims is Unconstitutional.

Being wholly honest, I did not expect or foresee this decision taking the top spot. Which is a rather peculiar thing to say as the person compiling the list. However, Decision No. 2157/09 earns the top spot for meeting all of the selection criteria: it is a uniquely Ontario decision, it applies exclusively to the area of employers and employees, and it advances the state of the law. It’s the perfect trifecta.

In Decision No. 2157/09, the Ontario Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) found that the prohibition in subsections 13(4) and 13(5) of the Workplace Safety and Insurance Act, 1997 against claims by workers for mental stress to be unconstitutional. That decision potentially opens the door to hundreds, if not thousands of claims by workers to the provincial insurer.

Of critical importance, given that subsections 13(4) and 13(5) of the WSIA, 1997 do not provide claimants with any ability to attempt to prove that their workplace significantly contributed to their condition, the panel was forced to make the following decision:

[260] …we find that the impugned provisions are substantively discriminatory, as the effect is to deprive gradual-onset mental stress claimants of the opportunity to present evidence regarding their individual circumstances in a manner that does not correspond to the actual characteristics and circumstances of the claimant group. The impugned provisions treat workers with gradual onset mental stress claims as a monolithic whole: they provide no opportunity for consideration of the nature of their claims, their health history, or the medical evidence in their particular case. We find that the evidence does not support that the impugned provisions correspond with the actual needs, characteristics, or circumstances of the claimant group.

In my earlier blog post I cautioned as follows:

Decision 2157/09 is sure to be judicially reviewed and then likely appealed after that. It could be years before this case is finally over. A trip to the Supreme Court of Canada is certainly not out of the question given the issues at stake.

However, I did go on to state the following:

For those reading this post now wondering whether they should make claims to the WSIB for mental stress, it is difficult to say. Obviously every case must be evaluated on its individual merits on the basis of the medical evidence available, but if the primary reason that a claim was denied was because of subsections 13(4) and 13(5) of the WSIA, then Decision 2157/09 certainly raises the prospects of success.

Decision No. 2157/09 was ‘only’ released on April 29 of this year. I can find no mention of it since being judicially reviewed or applied. However, the decision is clear: The WSIB cannot legally bar claims for benefits on the basis that they relate to claims for “mental stress.”

I have been following the mental stress issue for years. Boucher in the number four spot is, on many levels, an occupational mental stress case. As such, the fact that two cases on the issue of mental stress make this year’s top five signals, I believe, a major culture shift in the approach to mental health.

Mental health issues will continue to dominate workplace issues going into 2015. There are a number of factors that will likely contribute to workplace stress in 2015, a weakening Canadian economy likely being the most predominate. And, as recognition of the legitimacy of mental health issues continues to rise, the expectations that will be placed on employers will almost certainly rise with them.

Decision No. 2157/09 was a decision from a specialized tribunal with respect to the interpretation of one statute. However, I would argue that the decision does signal something larger: a culture shift. Moreover, the WSIB effects thousands of workers in this province. The decision to strike down the restriction on claims for mental stress is a big deal in its own right.

As such, I am naming Decision No. 2157/09 the single most important to Ontario employment law in 2014.

Looking Ahead to 2015

In my 2013 post I commented that:

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.

Much of what was said at the end of last year could be repeated this year. I believe the HRTO will remain the go-to arena for employment law cases in Ontario, at least until the Tribunal obtains the power to award costs. Technology issues are not going away and split decisions from the Supreme Court of Canada on the degree to which the police can look into technology will continue to influence employer’s approaches to technological surveillance.

On the whole, however, I believe that 2015 and going forward is going to see a lot of tension between the rights of the individual (think religious accommodation) and the rights of the collective (think Sunday shopping.) It will, I believe become harder and harder for employers to know the extent to which they must accommodate any number of issues, including mental health concerns.

As always, this blog will strive to deliver up-to-date information on a number of employment law issues, providing commentary and takeaways as appropriate.

May your 2015 see you free from Labour Pains.

Contact Me

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260. You may also use the contact box at the top of this page.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

Sean Bawden, publisher of Labour Pains, 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. He is also a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.



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