Canadian Employment Law Today

October 23, 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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PM41261516 Emplo y ment Law Today Canadian Candu worker can't do safety training pg. 4 Worker had concerns taking refresher training would change his status despite reassurances; training was a requirement for all employees Separate tort of harassment quashed by Ontario Court of Appeal Trial court found harassment of RCMP employee by managers to be egregious enough to warrant separate damages, but appeal court found no need for 'novel legal remedy' BY COURTNEY LAIDLAW WHEN AN employee suffers mental distress from harassment at work, that harassment is often seen as serious enough to warrant damages relating to wrongful or constructive dismissal. But in a recent Ontario case, an Ontario work- er tried to take these damages to the next level by establishing a freestanding tort of harassment stemming from an intention to harm him. e worker was initially successful at the trial court level, but he was defeated at the next level. In Merrifield v. Canada (Attorney General), the Ontario Court of Appeal (ONCA) affirmed that there is no freestanding tort of harassment in Ontario. Interestingly, the ONCA did not elim- inate the possibility of a tort of harassment, but it noted that this was not the appropriate case to establish this tort. e employee in this case had been a member of the Royal Canadian Mounted Police (RCMP) since 1998. He claimed that after he ran for the FedEx fails to deliver fair investigation B.C. worker ousted after investigation into theft of parcels reinstated and awarded $15,000 in aggravated damages BY JEFFREY R. SMITH WHEN AN employer conducts an inves- tigation into potential misconduct by an employee, impartiality is important. A pre- conceived notion that the employee is guilty and approaching the investigation with the object of proving that notion will likely lead to wrongful dismissal damages — and pos- sibly additional aggravated damages, as one British Columbia employer learned recently. Erik Nieminen joined Federal Express Canada (FedEx) in October 2010 as a part- time courier handler in Burnaby, B.C. Six years later, he moved to the position of do- micile handler based in Squamish, B.C. and moved to that location. e domicile han- dler job had more responsibility as the duties were remote with a lot of driving around de- October 23, 2019 A shaky foundation for dismissal pg. 3 Alberta architectural firm didn't give enough notice for lack-of-work dismissal and couldn't prove just cause either EMPLOYER on page 6 » CREDIT: RAWF8/Shutterstock CONCERNS on page 7 » with Brian Johnston Ask the Expert pg. 2 Independent contractor choosing to become more dependent

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