Sunday, 18 December 2016

Top Five Cases of Importance to Ontario Employment Law - 2016 Edition

I have listed my “Top Five Cases of Importance to Ontario Employment Law” every year since 2012 (see: 2012, 2013, 2014, and 2015.) So, with another year coming to a close it is once again time for this Ontario employment lawyer to provide his picks for the Top Five Cases of Importance to Ontario Employment Law.

Looking Back

Before naming the “Top Five”, I tend to enjoy looking back over what I said at the end of last year to compare what I though was going to happen with what did. In my 2015 post I wrote this:

Looking ahead to 2016 I foresee a number of decisions concerning off-duty conduct and whether the same constitutes “just cause” for dismissal. Although there were several high-profile incidents of off-duty conduct resulting in dismissal this year (Jian Ghomeshi and the Hydro One employee who suggested that certain acts should be performed in certain places being among the two most obvious) given the pace at which law happens there were very few new decisions on this point. (Although Taylor-Baptiste v. Ontario Public Service Employees Union , 2015 ONCA 495 does provide some informative reading.)

Also, I desperately hope for a decision reconciling the competing line of cases concerning contractual termination clauses. As I recently summarized in the post “Benefits”: The Most Important Word in Ontario Employment Law, there are a number of recent, somewhat contradictory decisions from the Ontario Superior Court of Justice canvassing this issue. Some guidance from the Court of Appeal for Ontario would be most welcomed.

As I write this post I am still anxiously awaiting the decision of the Court of Appeal for Ontario in Wood v Fred Deeley Imports Ltd. As I summarize in my post Will Wood Finally Answer the Question of Benefits? There’s Hope, there is a considerable amount of hope that the Court’s decision in that case will bring some very much needed clarity to a number of employment law issues. If it does, and if that decision is released before year’s end, then it makes this list.

Alternatively, there is the case of Fran├žois Oudin v. Centre Francophone de Toronto, Inc. Leave to Supreme Court of Canada has been sought in that case. As I mentioned in my post, The ONCA’s Decision in Oudin v. CFT Leaves One 'Wundering' – Is Wunderman Dead?, the decision of the Court of Appeal for Ontario in that case created much more uncertainty than it resolved. If the Supreme Court does elect to hear this case - and it should – then it could be the biggest thing to happen to the issue of employment contracts since Machtinger. [As incredible as this sounds, I understand that my opinion on this issue has actually been submitted to the Supreme Court of Canada. Come on citation in a Supreme Court decision!]

What it Takes to Make it to the Top Five

In 2014, I established some criteria for crafting a top five list. I still like those criteria and I am going to stick to them:

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, then it does not make the list.

Second, the decision must have a considerable impact on labour or employment law.

Finally, the decision should either do something new, or affirm first principles in a dramatic way.

Those That Didn’t Make the Cut

2016 was an incredibly busy year for Ontario employment law. Ontario’s appellate courts were especially active, producing a number of provocative and employee-friendly decisions. With all of that activity some decisions had to be cut from the list.

I have decided to leave two, rather large, decisions off of my list: Hamilton-Wentworth District School Board v. Fair, 2016 ONCA 421 (CanLII) and Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29 (CanLII).

In 2013 I named the Human Right Tribunal’s decision in Fair as the number case of importance to Ontario employment law that year.

Last year I named the Supreme Court of Canada’s decision to hear the appeal of the Wilson case as the number one case of importance in 2015.

So how can I leave those two cases off the list?

Simply stated neither decision was exactly earth shattering. Fair simply affirmed what the Divisional Court had said, so while the decision is important it’s not new. Wilson, while settling decades of debate is a decision perhaps more important to administrative law than employment law. Perhaps I am just tired of hearing about “standard of review”, but the Supreme Court’s decision in Wilson is just barely an employment-law decision.

And so, without further delay, my list.

Number Five: Nagribianko v Select Wine Merchants Ltd., 2016 ONSC 490

Someone once told me that it is unbecoming to be self-referential. It would therefore be somewhat inappropriate of me to name a case that I successfully argued, Barton v Bowerman, 16-DC-2178, about which I blogged in my post Employers Can Terminate Probationary Employees Without Cause as one of the top five cases of importance to Ontario employment law.

Given that small point of etiquette, I am going to officially name another decision from the Divisional Court, Nagribianko v Select Wine Merchants Ltd., 2016 ONSC 490 (CanLII), about which I blogged in my post Employee "On Probation" Terminated Without Cause after Five Months of Employment Not Entitled to Any Notice: Div Court , as my number five pick this year. (Although I actually like the decision in Barton much more.)

Both decisions concern the rights of employers to terminate employees without cause during the probationary period. As this blog canvassed in a number of earlier decisions, the law on this subject has been somewhat unsettled and unclear. As the Barton decision now makes abundantly clear, “an employer does not have to show cause to terminate an employee on a probationary employment contract and does not have to continue employing the employee for the full probationary period.” Or, as Justice Sanderson wrote in Select Wine, “in the absence of bad faith, an employer is entitled to dismiss a probationary employee without notice and without giving reasons.”

In a year that saw employers get hammered by the courts, I thought I would start with a little good news for employers.

Number Four: Keenan v. Canac Kitchens Ltd., 2016 ONCA 79

Canac Kitchens must win some kind of award for most employment law decisions of influence. For years, Canac Kitchens has litigated, and largely lost, a number of important employment law issues. If someone is handing out life-time achievement awards, send it to them.

In Keenan v. Canac Kitchens Ltd., 2016 ONCA 79 (CanLII), about which I blogged in my post Is Twenty-Six the new Twenty-Four? Taking the 'Cap' off the Limit on Reasonable Notice , the Court of Appeal for Ontario affirmed a decision awarding a “dependent contractor” 26 months of reasonable notice.

The case is important for two reasons. First, it affirmed an award of reasonable notice to a worker that had been characterized as an “independent contractor”. Second, it affirmed an award in excess of 24 months.

Canac likely believed that it did not owe Keenan anything. To use a word that achieved much prominence in 2016: wrong.

Number Three: Paquette v. TeraGo Networks Inc., 2016 ONCA 618

In my 2015 post I named Justice Perell’s decision in Paquette v TeraGo Networks Inc., 2015 ONSC 4189 (CanLII) as my number three case of importance to Ontario employment law for that year. This year Paquette returns to the number three spot, but for an entirely different reason.

The Court of Appeal’s decision, released together with Lin v. Ontario Teachers' Pension Plan, 2016 ONCA 619 (CanLII), about which I blogged in my post Employees Not “Actively Employed” Still Entitled to Bonus Payments: ONCA , was a major blow to employers and a major win for employees.

In short, the court held that employees do not have to be “actively employed” during the reasonable notice period in order to qualify for the receipt of certain bonuses or incentive payments during that period: “Damages for wrongful dismissal may include an amount for a bonus the employee would have received had he continued in his employment during the notice period, or damages for the lost opportunity to earn a bonus. This is generally the case where the bonus is an integral part of the employee’s compensation package… This can be the case even where a bonus is described as “discretionary.” Wrongful dismissal cases just got more expensive for employers.

Number Two: Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520

Demonstrating that the Court of Appeal will not shy away from awarding large amounts to punish bad behaviour, in Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520 (CanLII), about which I blogged in my post Doubling Down Damages – The Ontario Court of Appeal Sends Strong Message to Discriminatory Employers, the court doubled the trial judge’s original award to nearly $250,000.

Of real note is that at the time of her dismissal in May 2011, Ms. Strudwick was earning $12.85 per hour. Of the $246,049 awarded by the court, $165,000 was awarded for the combination of aggravated, punitive and human rights damages. A further $35,294 was awarded for intentional infliction of mental distress.

To understand just why the court awarded as much as it did, allow me to repeat the summary of the facts as prepared by our then summer student Kate Agyemang:

The Plaintiff, Ms. Vicky Strudwick, was employed in a data entry and staff recruitment capacity with the Defendant, Applied Consumer, a focus group recruitment firm. The Plaintiff worked for the Defendant for 14 years before she became losing her hearing to a viral infection in 2010. Despite her efforts to seek appropriate workplace accommodation, which included trying to have the Canadian Hearing Society do an onsite private assessment, the Defendant refused to adequately accommodate her, or even set up a system wherein a co-worker would inform the Plaintiff of a fire alarm. The record showed the Defendant in fact took active steps to make the workplace more difficult for her, which the Court described as a “campaign of abuse” against the Plaintiff that was designed to force her resignation. For example, her employer would purposely give Ms. Strudwick instructions in a manner that prevented her from lip reading, and then call her “stupid” for not understanding the instructions. The Defendant would also advise co-workers not to talk to her and instructed other office workers to telephone Ms. Strudwick so she would miss the call, providing her superiors with yet another opportunity to ridicule her. Even basic requests, like being able to rotate her desk so she could see people approaching her, were refused. The Defendant’s reprehensible behaviour included routinely allowing the Plaintiff’s superiors to publicly belittle, harass, and humiliate her. In May of 2011, following a toastmasters meeting, in which she helped select the topics discussed, but did not present, she was again publicly degraded by her superiors. The next day, the Plaintiff was suddenly terminated for alleged insubordination at that meeting.

She brought an action for wrongful dismissal, but the Defendant did not let up. They delayed her outstanding pay and listed her as dismissed for wilful misconduct with Employment Service of Canada, thereby delaying her employment insurance payments. She eventually found very sporadic work, but as a result of the manner in the Defendant treated her, she was diagnosed with adjustment disorder with depressed mood. As a result, in order cope, she had to pay for her own extensive cognitive behavioural therapy.

Bad. Bad behaviour. A reading of the decision implies that the court may have awarded even more had Ms. Strudwick asked for it.

Number One: Re: TTC and ATU, Local 113 (Use of Social Media), 2016 CarswellOnt 10550

The great thing about being a ‘one man band’ with sole editorial authority is that I can name any decision I like as the number one decision of importance to Ontario employment law.

Technically speaking, Toronto Transit Commission and ATU, Local 113 (Use of Social Media), Re , 2016 CarswellOnt 10550 (ON Arb), about which I blogged in my post Employers Responsible for Protecting Employees from Harassment on Twitter, is a labour decision not an employment decision. Worse, it’s a ‘trial’ level decision, not an appeal. I know what you’re thinking, ‘you bumped a Supreme Court decision resolving decades of dispute for this? Yes, I did.

The TTC case concerned the Toronto Transit Commission’s employment of a Twitter handle, @TTChelps. That account receives its fair share of offensive tweets; a fact that would likely not surprise anyone that has ever been on Twitter or ridden public transportation.

The union complained that the TTC’s response to such offensive tweets was both inadequate and inappropriate; a labour adjudicator agreed.

The first reason this decision takes the number one spot is that a Twitter account was found to be a workplace.

The second reason this decision takes top spot is because the complaint was not brought just by the persons who manage the Twitter account, i.e. those who job it is to hold up the target at which vitriol is hurled, but rather in respect of TTC employees mentioned via the Twitter account. (Think George Robitaille, the TTC transit fare collector who sparked a public outcry in January 2009 after he was caught literally sleeping on the job. That photo of Robitaille, pictured below, who has since passed away, ‘went viral’.)

To my mind, the critical passage from the decision is this one:

[133] It is clear from the totality of the evidence that the TTC has failed to take all reasonable and practical measures to protect bargaining unit employees from that type of harassment by members of the community, as required by the [Human Rights Code], the [Collective] Agreement, and the Workplace Harassment Policy. The evidence discloses many inadequate responses by @TTChelps to offensive tweets of that type, such as: (1) ignoring the offensive language and merely advising the tweeter “You can call us at 416-393-3030 or go to ow.ly/AKsGz to report your experiences”; (2) responding by stating “We understand your concerns however please refrain from personal attacks against employees”, but then going on to provide information on how to file a complaint; (3) responding “Can you please refrain from using vulgarity and elaborate on what happened?”; or (4) responding by merely stating that the TTC does not condone abusive, profane, derogatory or offensive comments. To deter people from sending such tweets, @TTChelps should not only indicate that the TTC does not condone abusive, profane, derogatory or offensive comments, but should go on to request the tweeters to immediately delete the offensive tweets and to advise them that if they do not do so they will be blocked. If that response does not result in an offensive tweet being deleted forthwith, @TTChelps should proceed to block the tweeter. It may also be appropriate to seek the assistance of Twitter in having offensive tweets deleted. If Twitter is unwilling to provide such assistance, this may be a relevant factor for consideration in determining whether the TTC should continue to be permitted to use @TTChelps.

This decision was released on July 5, 2016. It was not a month earlier, on June 9, 2016, that then-Presidential candidate Hillary Clinton told her Republication opponent to “delete his account”, partially in response to offensive tweets. We all know what happened in that case.

My sense of things? We are going to see a lot more hateful rhetoric in the years to come. I’ll write about this more in what I see for 2017.

When I wrote about this case in August I thought it silly. I thought the Union’s actions silly. I had more hope for humanity as a whole. I am going to be honest, I have much less hope now. I have a much greater appreciation for why the Union felt that it had to do something.

Is the TTC deleting its account the answer? No, it’s not. But clearly something needs to be done.

The TTC case is a step in the right direction. It’s an important starting point as we move into 2017 and so I am naming it my number one case of importance to employment law in 2016.

Looking Ahead to 2017

If you’ll indulge me a moment.

I did not go to law school or become a lawyer to practice employment law. I wanted to be an environmental lawyer. More specifically, I wanted to work to keep farm land as farm land in southern Ontario. Ten years ago I knew a great deal about farming and the taxation of land and I had ideas. Things change.

A good part of my motivation to become a lawyer was this line from Dr. Seuss’ book The Lorax:

I can tell you with considerable certainty that I first heard that message was when I was in grade five. It has stuck with me since. And, while the Lorax was clearly speaking in respect of environmental issues, really there is no reason why the same principle cannot be applied to all aspects of life.

A lot of people are declaring 2016 as one of the worst. There is a lot of evidence to suggest that they have a point. Certainly one concern that I have is the rise of hateful rhetoric. More concerning is the apparent rise in hateful action. Some people honestly believe that the election of Donald Trump grants them a license to engage in such actions. While those people are wrong – especially in Ontario – I am not currently convinced that things are moving in the most positive of directions.

And so I return to two things: (1) What the Lorax teaches us about personal action; and (2) The TTC case.

What would I like to see in 2017? Accountability and leadership.

In the employment world I return to what I said a year ago about an increase in cause cases for off-duty conduct. People in Ontario are going to get fired for engaging in vitriolic rhetoric online. Some of them will challenge that decision. How we choose to respond will set the tone as we move forward.

I am hoping for a better 2017.

May your 2017 be 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.

To subscribe to Labour Pains enter your email address:

Delivered by FeedBurner

--

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 has also taught Trial Advocacy for Paralegals and Small Claims Court Practice at Algonquin College in Ottawa.



1 comment:

  1. Great post. I would have thought Keenan or Paquette was most important, but now you have me convinced on TTC - I see the future! Thanks for adding to the discussion and debate in employment law in 2016. I look forward to my regular dose of Labour Pains in 2017. Cheers.

    ReplyDelete