Canadian Employment Law Today

Canadian HR Reporter, 2021 Local 1620 v. Lower Churchill Transmis- sion Construction Employers' Association Inc., the Court of Appeal of Newfoundland and Labrador overturned the decision of the province's Supreme Court, which ad- dressed an employer's obligation to accom- modate medical cannabis use for workers in safety-sensitive positions. The Court of Appeal decided that rather than consider- ing the class of individuals who use medi- cal cannabis, the better approach is to in- dividually assess whether, regardless of the absence of a scientific or medical standard, the employee could safely perform the job despite his use of medical cannabis, with - out undue hardship to the employer. The Ontario Court of Appeal confirms past experience with vendor in asset purchase transaction a factor in calcu- lating reasonable notice. The Ontario Court of Appeal in Manthadi v. ASCO Manufacturing analyzed the common law approach to the calculation of reasonable notice when a vendor terminates employ- ment in an asset purchase transaction, the employee signs a release and is hired by the successor employer and the successor then terminates the employee's employment. The decision indicates that the past service with the vendor may be a factor in the rea - sonable notice calculation, which involves weighing the experience the employee brings to the successor employer and does not involve "stitching together the employ- ee's two terms of service." The Saskatchewan Court of Appeal af- firms moral damages award due to untruthful employee termination. In Porcupine Opportunities Program Inc. v. Cooper, the Saskatchewan Court of Appeal affirmed that a trial court appropriately decided to award $20,000 in moral dam- ages to an employee upon finding that the employer had breached its duty of good faith and fair dealing when it was untruth- ful and misleading during the termination process. Porcupine provides employers with invaluable guidance regarding how they should manage a dismissal as well as the pre- and post-termination events. The Supreme Court of Canada over- turns Nova Scotia Court of Appeal in a landmark bonus case. On Oct. 9, 2020, in Matthews v. Ocean Nutrition Canada Ltd., the Supreme Court of Canada (SCC) released a highly anticipated decision in an employee's appeal of the Nova Scotia Court of Appeal's (NSCA) setting aside the damages awarded under a long-term incentive plan following a constructive dis - missal. The SCC's decision has clarified the analysis for determining the entitlement to damages for a lost bonus in a wrongful dis- missal case. Furthermore, the top court put employers on notice that: (i) certain bonus language will not be viewed as unambigu- ously removing or limiting the employee's common law entitlement; and (ii) if an em- ployee sues for damages for mental distress and/or punitive damages for a breach of the duty to exercise good faith in the manner of dismissal, and the circumstances are appro - priate, a court may declare that the employ- er breached the duty and award damages. The Ontario Human Rights Tribunal awards significant damages to employ- ee who acquiesced to sexual relation- ship with supervisor. In NK v. Botuik, the Human Rights Tribunal of Ontario (HRTO) awarded $170,000 in damages to a vulnerable employee. After being sexually harassed by her direct supervisor, the em - ployee engaged in unwelcome sexual activi- ty, fearing that if she refused she would lose her job and be unable to care for herself and her young son. In its lengthy decision, the HRTO emphasized that an employee's par- ticipation in sexual activity with a direct su- pervisor in "a state of fearful compliance" is not "true consent." Ontario arbitrator upholds for-cause dismissal of employee with COVID-19 who put colleagues and others at risk. In Garda Security Screening Inc. v. IAM, District 140 (Shoker Grievance), a labour arbitrator dismissed a grievance pertaining to the for-cause dismissal of a unionized employee who worked at an airport. The arbitrator determined that the employee was aware of and violated her employer's guidelines and the Public Health Agency of Canada's COVID-19 guidelines when she went to work after she was tested for COV - ID-19 and was waiting for her results, rather than self-isolating as she was required to do. The arbitrator concluded that because the employee had done this, her for-cause dismissal was justified. Ontario arbitrator upholds mandatory employee COVID testing. In Christian La- bour Association of Canada v. Caressant Care Nursing & Retirement Homes, a union filed a group grievance on behalf of a number of its members working at an Ontario retirement home. The grievance challenged the reason- ableness of a policy imposing a bi-weekly COVID testing requirement on all staff. In a Dec. 9, 2020, decision, the arbitrator dis- missed the grievance on the basis that the policy was reasonable when the privacy in- trusion was weighed against the objective of preventing the spread of COVID in the re- tirement home. For more information see: • Yenovkian v. Gulian, 2019 ONSC 7279 (Ont. S.C.J.). • Bank of Montreal v. Li, 2020 FCA 22 (F.C.A.). • Waksdale v. Swegon North America Inc., 2020 ONCA 391 (Ont. S.C.J.). • International Brotherhood of Electrical Workers, Local 1620 v. Lower Churchill Transmission Construction Employers' As- sociation Inc., 2020 NLCA 20 • Manthadi v. ASCO Manufacturing, 2020 ONCA 485 • Opportunities Program Inc. v. Cooper, 2020 SKCA 33 (Sask. C.A.). • Matthews v. Ocean Nutrition Canada Ltd., 2020 SCC 26 (S.C.C.). • NK v. Botuik, 2020 HRTO 345 • Garda Security Screening Inc. v. IAM, District 140 (Shoker Grievance) [2020] O.L.A.A. No. 162 • Christian Labour Association of Canada v. Caressant Care Nursing & Retirement Homes, 2020 CanLII 100531 (Ont. Arb.). Rhonda B. Levy is a knowledge management counsel for Littler LLP in Toronto. She can be reached at (647) 256-4545 or rlevy@lit - tler.com. Sari L. Springer is office managing partner for Littler LLP in Toronto. She can be reached at (647) 256-4509 or sspringer@ littler.com. Barry Kuretzky is a partner with Littler LLP in Toronto. He can be reached at (647) 256-4503 or bkuretzky@littler.com. George Vassos is a partner with Littler LLP in Toronto, practising on a wide variety of labour and employment law issues. He can be reached at (647) 256-4504 or gvassos@littler.com. Monty Verlint is a partner with Littler LLP in Toronto, practising in all areas of labour and employment law. He can be reached at (647) 256-4506 or mverlint@littler.com. March 10, 2021 | Canadian Employment Law Today CREDIT: OLIVIER LE MOAL iSTOCK CREDIT: UMSASEDGARS iSTOCK

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