Friday, 28 December 2012

Top Five Cases of Importance to Ontario Employment Lawyers

December is often a month for list making, whether it be gifts one wants from Santa Claus (yours truly very nerdishly celebrated his receipt of an original copy of the 1960 Ontario Weekly Notes earlier this month), or Top X lists of Y things. In the spirit of the latter, here are my Top Five Cases of Importance to Ontario Employment Lawyers.

Number 5: Brito v. Canac Kitchens

CanLII: 2012 ONCA 61

Brito is one of those cases that an employees’ lawyer cannot help but love. The original decision was authored by the late Justice Randal Echlin, who was one of the deans of employment law. In upholding the salient points of Justice Echlin’s decision, the Court of Appeal affirmed an Order against an employer who had provided to its employees a group insurance plan to essentially stand in the disability insurer’s shoes when the employee was dismissed and the employer made no arrangements for the dismissed employee to maintain that insurance coverage beyond the statutory notice period; a decision that cost the employer nearly $200,000 in what was otherwise a modest wrongful dismissal case.

Number 4: Dominguez v. Northland Properties Corporation

CanLII: 2012 BCSC 328
Not on this Blog

Dominguez could serve to be a very interesting case as we go forward. Dominguez concerned an application for certification of a class proceeding by a number of temporary foreign workers in British Columbia. As the Honourable Justice Fitzpatrick observed in her reasons for decision:

I am advised that this is the first case in Canada to address claims of temporary foreign workers who contend that a Canadian employer is liable for breaches of obligations or duties relating to their employment in Canada.  The facts in Kumar v. Sharp Business Forms Inc. (2001), 5 C.P.C. (5th) 128 (Ont. Sup. Ct. J.), discussed in more detail below, are somewhat similar in that certification was sought by employees who, for the most part, were recent immigrants to Canada for claims for overtime, holiday pay and vacation pay.  That case, however, did not involve allegations that the employer had systematically taken advantage of those employees as a vulnerable or disadvantaged group, as is the situation in this proceeding. (Para. 5)

Ultimately Justice Fitzpatrick certified the class proceeding, which is often the critical step in any Canadian class action.

The case is important because it is a well-recognized fact that if Canada wishes to remain competitive in the global market place it will require more skilled workers, including those coming to this country through the temporary foreign worker program. How employers chose to treat those workers will be of greater interest in the future and Dominguez may serve to be the tipping point towards greater employee rights.

Number 3: Seberras v. Workplace Safety and Insurance Board

CanLII: 2012 HRTO 115
Not on this Blog

Seberras is important for a number of reasons. First, with respect to the decision cited, the decision affirms that the Human Rights Tribunal of Ontario has jurisdiction over a statutory body, in this case, the Ontario Workplace Safety and Insurance Board (WSIB).

Of greater importance however is why Mr. Seberras is bringing his application, which is currently stayed pending the resolution of a matter before the Ontario Workplace Safety and Insurance Appeals Tribunal (see 2012 HRTO 1513). Mr. Seberras is seeking to advance the position that sections 13(4) and 13(5) of the Ontario Workplace Safety and Insurance Act, 1997 are discriminatory and violate his Charter-protected rights. The case is the Ontario continuation of the decision taken in late 2009 by the British Columbia Court of Appeal in Plesner v. British Columbia Hydro and Power Authority, 2009 BCCA 188.

Seberras will be one to watch in 2013 to see what the WSIAT does, what the HRTO does (if required to act) and how the legislature reacts. Claims for mental stress will be, in my opinion, one of the most important areas for workers compensation in the next five to ten years. If Seberras falls in line with Plesner, then in my opinion there will be a flood of applications for benefits in the near future.

Number 2: R. v. Cole

CanLII: 2012 SCC 53

Cole is a very interesting entry onto this list because it is a criminal case. It is my observation that Cole is being much more celebrated in the employment law world than it is at the criminal bar.

The reason that Cole is of interest to employment lawyers is because the Supreme Court of Canada confirmed that employees have a reasonable expectation of privacy in their employer-provided equipment, such as laptops, smartphones, etc. Of critical importance, Justice Fish for the majority observed that:

As Mr. Cole had a reasonable expectation of privacy in his Internet browsing history and the informational content of his work-issued laptop, any non-consensual examination by the state was a “search”; and any taking, a “seizure”. [Para. 59.]
Cole is of even greater importance when one considers what I would argue is the most important decision for employment lawyers of 2012:

Number 1: Jones v. Tsige

CanLII: 2012 ONCA 32
This Blog: Rights to Privacy and Remedies for Breach 

It may be hard to believe, but Jones v. Tsige was released less than a year ago. Released in the middle of January in 2012, Jones has already been trumpeted as a sea-change in Ontario law. A google search of the case name produces a summary compiled by almost every law firm in Ontario, and beyond.

Jones is regarded as being the first case in Ontario to recognize that private individuals may sue other private individuals for ‘invasion of privacy,’ although the Court of Appeal for Ontario declined to specifically use that term, preferring “intrusion upon seclusion.”

As speculated upon in this blog, Rights to Privacy and Remedies for Breach, Jones provides employees with an opportunity to bring a case against their employers for breach of privacy when employers overstep the line with respect to their ability to monitor employee actions. Where that line will be drawn is of course yet to be seen, but Jones at least opens the door to claims.

Looking Ahead

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.

As always this blog will endeavour to stay up-to-date with the most recent employment law decisions of interest to those in Ontario.

Thanks to all readers in 2012 and we look forward to 2013.

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 is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He tweets from @SeanBawden.

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