Canadian Employment Law Today

July 23, 2014

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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PM40065782 Emplo y ment Law Today Canad ad a ian July 23, 2014 bank may be liable for employee's breach A ClAss action suit against the Bank of Nova Scotia stemming from an employee's breach of privacy has been certifi ed by the Ontario Superior Court of Justice. A bank employee improperly accessed customer fi les and helped distribute them for fraudulent purposes. Customers fi led a class action suit claiming damages for emotional suffering and inconvenience, along with the fi nancial damages suffered. The court found potential in the claim, stating that the bank could be found vi- cariously liable for the employee's actions, since there was evidence the bank contrib- uted to the employee's abuse of his posi- tion through negligent supervision. IN SHORT Foreign worker program changes impose burden for employers pg. 3 Changes mean more red tape for employers AsK AN eXPert pg. 2 Termination Provisions with Tim Mitchell e kids are all right Family status clarifi ed by the federal court of appeal By: aDaM JaMES FAMIlY sTATUs has become a hot top- ic in workplace human rights. e issue is made more interesting given that decision- makers across the country have come to dif- ferent conclusions on the scope and content of family status accommodation, leading to signifi cant uncertainty. Two recent deci- sions released by the Federal Court of Ap- peal — Johnstone v. Canada (Border Servic- es Agency) and Seeley v. Canadian National Railway — seek to clarify the current state of the law. Both cases involve a complaint by an employee requesting a change in a work- place policy to better meet childcare obliga- tions. what is family status? e fi rst issue the court resolved is the defi - nition of "family status." Whereas protected grounds such as race and religion are easy to understand, parties engaged in a confl ict over family status discrimination often dis- agree on its defi nition. Does it protect an individual from discrimination based on their status as a parent, or does it include all obligations fl owing from parenthood, how- ever arguably trivial? Signifi cantly, the court rejected the broader interpretation and held the protection only extends to obligations giving rise to legal liability for the parent and not to personal preferences. In other words, while childcare is part of family status, the protection is limited to substantial parental obligations, as the court stated: " e childcare obligations that are con- templated under family status should be Probation offi cer's mishandling of clients too risky A MAnITOBA arbitrator has upheld the dismissal of a probation offi cer who was too careless in his handling of cases. Daniel Benger was a probation offi cer in the family violence probation unit of the Manitoba Justice Department. He super- vised individuals who were on probation or serving conditional sentences, making sure they followed court-ordered conditions and performing risk assessments. Benger began his employment as a correctional offi cer in 1986 but was redeployed in 1996. Probation offi cers used a correctional off ender management system (COMS), an electronic fi le containing appointments, de- tails of client meetings and client informa- tion. In September 2008 Benger received a letter from his area director detailing a series of performance issues over a long pe- riod, including a lack of organization, failing to verify information, not updating data- bases with client information and making errors in documenting breaches of proba- tion orders. e letter was not offi cial disci- pline, but was intended to inform Benger he needed to improve his performance and to stress the importance of properly managing cases. Benger received three other "letters of direction" and one reprimand for similar issues between 2008 and 2010. A new director arrived in January 2012 and, after reviewing Benger's cases, she be- gan regularly meeting with him to review his caseload. ere were still issues with his PAreNtAl Duties on page 6 » PoliCies on page 7 » CRedit: Wong SZe Yuen/ShutteRStoCK.Com Preparing for the aging workforce pg. 4 No mandatory retirement and aging population means employers must adapt to having older workers

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