Claims of a Hostile Work Environment: Shields not Swords?

As regular readers of this blog will know, this blog has long taken issue with the Court of Appeal for Ontario's decision in Piresferreira v. Ayotte, 2010 ONCA 384 (CanLII). The court's decision - that employees cannot sue for an employer's negligent infliction of mental suffering - has previously been considered in the post Tort Damages Place in Wrongful Dismissal Cases.

Although I have previously argued that the Piresferreira decision was legally wrong and, in fact, contrary to other appellate decisions including Sulz v. Canada, 2006 BCCA 582 and Queen v. Cognos, (the Supreme Court of Canada did not disturb or address the trial judge's award of $5,000 in damages for "emotional stress" in its decision in Queen v. Cognos Inc., [1993] 1 SCR 87,) this post will focus on a different issue: whether the decision highlights the differences to which claims of a hostile work environment can be put.

As I will argue below, it my thesis that contrary to Court of Appeal's position that it is "unnecessary and undesirable to expand the court’s involvement" into questions of a hostile work environment was wrong. While Ontario’s courts have been unwilling to accept claims of a hostile work environment when wielded as a “sword”, Ontario courts have shown that they are prepared to consider such claims when employees advance such arguments as a “shield.”

Employees Cannot Make Complaints to the Labour Board and Sue

(c) istock/denisik11

Can an Ontario employee make a complaint to the “Labour Board” - technically the Employment Standards Program of the Ontario Ministry of Labour - and sue his or her employer for wrongful dismissal as well?

Pursuant to both section 97 of the Ontario Employment Standards Act, 2000 and a decision from the Ontario Superior Court of Justice, Limebeer v. Canadian Tire Corp. Ltd., 2013 ONSC 2735 (CanLII), the answer is “no”.

Request For Doctor's Note After Illness Discriminatory: HRTO

Is it a discriminatory practice to ask an employee to produce a doctor's note confirming that she is in a "normal" state of health before allowing her to return to work after an illness?

According to a recent decision from the Human Rights Tribunal of Ontario, Thompson v. 1552754 Ontario Inc., 2013 HRTO 716 (CanLII), the answer can be yes.

Whose Invention Is It Anyway?

Does the existence of an employee/employer relationship disqualify an employee from patenting an invention discovered in the course of employment?

According to a 2000 decision from the Ontario Superior Court of Justice, Techform Products Ltd. v. Wolda, 2000 CanLII 22597; varied for reasons other than the issues considered in this post in 2001 CanLII 8604 (ON CA) the answer is "no."

Employee Awarded Human Rights Damages Without Discrimination

Is an act of reprisal in response to an unfounded human rights complaint grounds for an award of damages under the Ontario Human Rights Code? According to a recent decision from the Human Rights Tribunal of Ontario, Morgan v. Herman Miller Canada Inc., 2013 HRTO 650 (CanLII), the answer is yes.

The case is interesting because it stands in stark contrast to decisions taken by the Ontario Labour Relations Board with respect to claims of reprisal following unsuccessful claims of workplace harassment. On this latter point I would encourage readers to review my post Workplace Harassment Complaints and Bill 168. 

Is Obesity a “Disability” Under the Ontario Human Rights Code?

Is obesity a “disability” under the Ontario Human Rights Code? This question emerged as a result of an e-card image that was posted on Facebook earlier this week. As one can see from the image below, the perception of the woman portrayed is that she cannot become a stripper on account of the fact she perceives herself to be fat and unable to dance.

"If you liked it, then you shoulda put a ring on it:" What Beyonce can Teach Employers about Employment Law

What can employers learn from Beyonce’s hit song, “Single Ladies”? A surprising amount, I would suggest, when it comes to drafting non-competition clauses.

A decision from the Alberta Court of Queen’s Bench (equivalent to Ontario’s Superior Court of Justice), Enerflow Industries Inc. v Surefire Industries Ltd., 2013 ABQB 196 (CanLII), provides a solid overview of the enforceability of non-competition clauses and this blog will explain why sometimes it pays to "put a ring on it."