Canadian Employment Law Today

December 4, 2019

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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with Tim Mitchell Ask an Expert MCLENNAN ROSS LLP, CALGARY 2 | December 4, 2019 Canadian HR Reporter, 2019 Have a question for our experts? Email jeffrey.smith@keymedia.com Answer: Freedom of expression is a funda- mental freedom protected by s. 2(b) of the Canadian Charter of Rights and Freedoms (Charter). e protection of freedom of expression is premised upon fundamen- tal principles and values that promote the search for and attainment of truth, par- ticipation in social and political decision- making and the opportunity for individual self-fulfillment through expression. How- ever, while "free speech" is a protected right, individuals often mistakenly assert that freedom as an absolute right. Employees do not have a constitutional right to freedom of expression at work in most circumstances. e first issue al- ways is whether the employee is protected by the Charter, and such a determination requires a finding that a particular em- ployer is subject to the Charter (i.e., is the employer a government or quasi-govern- ment employer versus private sector). e Charter's right to free speech is confined to government action, and most public sector employers have free reign (subject to its ob- ligation to not discriminate on a protected ground such as political affiliation) to con- trol expression in the workplace. In most circumstances, regardless of whether the Charter applies, employers are generally free to restrict employee speech to a certain degree, at least while they are at work. e context in which employers most often place limits on expression is an employ- er's legal and statutory obligation to provide a safe work environment free from discrimina- tion, harassment, violence and bullying. As such, limits to expression by employ- ees may take many different forms. ey can include disciplinary action taken against certain employees, corporate policies and rules or even common law rules such as the duty of loyalty owed by an employee to an employer. Employers commonly imple- ment policies that provide for a respectful workplace and particularize appropriate workplace conduct. Such policies implicitly have the effect of restricting certain topics of discussion or expression such as discrim- inatory or hurtful remarks, threatening statements and even political discourse if it escalates into argument having an effect on the broader workplace and culture. For example, hate speech or topics of dis- cussion that could create a poisoned work environment for employees are generally prohibited. One of the leading Canadian cases in this area notes that employees are Banning topics of discussion Question: Can an employer ban discussion of certain topics in the workplace that have caused arguments between employees under threat of discipline? Requiring a terminated employee to seek legal advice before signing release Question: Can an employer require that an employee being terminated seek legal advice or take a few days before signing a release, even if the employee wants to sign it immediately? Will this help ensure the release is valid? Answer: The release of claims is an agree- ment between an employer and an employee whose employment has been terminated. Employees typically sign the document in return for a severance package. The release is meant to limit potential litigation for rea- sons such as discrimination or wrongful dis- missal. For employers, it is common practice to insist on a release before a severance pack- age or payment is remitted to the former em- ployee, because it is one of the most effective ways an employer can minimize its legal risk when terminating an employee. An employer cannot rely on a release, however, where its execution would be unconscionable, where the release was in- duced by fraud or misrepresentation or where there are other contract issues, such as a lack of consideration or a mistake. The Alberta Court of Appeal in Cain v. Clarica Life Insurance Co. specifically con- sidered what conduct would be considered unconscionable and concluded that there are four elements necessary to prove un- conscionability. These elements are: • A grossly unfair and improvident transac- tion • The signatory's lack of independent legal advice or other suitable advice • Overwhelming imbalance in bargaining power caused by victim's ignorance of business, illiteracy, ignorance of the lan- guage of the bargain, blindness, deafness, illness, senility or similar disability • Other parties knowingly taking advantage of this vulnerability. Recent decisions from the lower courts of Alberta have clarified that the employer is not required to provide employees with legal advice before they sign a release. In- stead, the employer simply has an obliga- tion to provide an opportunity for the em- ployee to obtain independent legal advice: Cicalese v. Saipem Canada Inc. Even where an employee does not receive legal advice, however, a release may still be found valid if the three other unconscionability condi- tions are absent: LaChance v. Transwest Fi- nancial Services Corp. The courts have not specifically con- sidered whether an employer would be al- lowed to require an employee to seek legal advice. While this practice could be benefi- cial for ensuring validity, it would very likely be found unenforceable, as it would require the employee to incur legal costs. In order to create valid and enforceable releases, we generally recommend that em- ployers ensure that: • The release is drafted in clear and simple language so that the employee under- stands what is being signed, and why • The release includes all relevant informa- tion so that the employee is fully aware of what rights they were giving up by accept- ing its terms • The amount of the settlement is fair in the circumstances so as to nullify any poten- tial argument that there was an inequality of bargaining power between the employ- er and employee • The employee freely consents to signing the release so as to prevent the employee from claiming that they were unduly in- fluenced or coerced by the employer • The employee is given opportunity to seek independent legal advice (5-7 business days) • The employee must not be in a state of du- ress while signing the release • The employee is aware that they might have recourse under human rights legislation at the time of signing the release, so as to pre- vent the employee from subsequently argu- ing that they were unaware of those rights. For more information see: • Cain v. Clarica Life Insurance Co., 2005 ABCA 437 (Alta. C.A.). • Cicalese v. Saipem Canada Inc, 2018 ABQB 835 (Alta. Q.B.). • LaChance v. Transwest Financial Services Corp., 2008 ABQB 402 (Alta. Q.B.). FREEDOM on page 7 »

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