Canadian HR Reporter

Canadian HR RepoRteR January 26, 2015 emPloymeNt lAw 5 top 10 employment law cases from 2014 employment lawyers were a busy bunch in 2014. In addition to legislative chang- es, courts and tribunals issued a num- ber of decisions that both framed and clarifi ed many of the issues currently facing employers. e following are 10 of the most notable rulings from Canadian decision-makers. Fair v. Hamilton-Wentworth District School Board, 2014 CarswellOnt 3509 (Ont. Div. Ct.). In one of the most reported employment law cases of the year, the Ontario Divisional Court upheld a decision by the Human Rights Tribunal of Ontario, which found the employer had discrimi- nated against the employee when it terminated her employment because of her disability. e court reiterated the tribu- nal's order to reinstate the em- ployee's employment, despite the fact she had been away from work for 10 years. In addition, it supported a damage award of all losses arising from the breach of the Human Rights Code, which amounted to nearly $450,000 in compensation. As the largest damage award ever awarded by the tribunal, the case represents a high watermark for damages under the code and perhaps demonstrates an increas- ing willingness to grant larger awards where appropriate. McIntosh v. Legal Aid Ontario, 2014 CarswellOnt 15493 (Ont. S.C.J.). e plaintiff was advised that the defendant, an employee of Legal Aid Ontario, had accessed confi - dential information in her fi le in order to gather information about the plaintiff . e plaintiff bought an action for damages under On- tario's new tort of intru- sion upon seclusion. The Ontario Supe- rior Court of Justice allowed the action in part and held that the disclosure of personal information caused the plaintiff a measure of anxiety and distress. e court awarded $7,500 in general damages. As case law continues to ex- pand in the area of privacy rights, the decision is an important reminder to employers of the need to have robust privacy poli- cies and to train employees with regards to the requirements un- der such policies. Bhasin v. Hrynew, 2014 CarswellAlta 2046 (S.C.C.). While not specifically an em- ployment law case, the Supreme Court of Canada expressly recog- nized a common law duty to act with honesty and candour in the performance of all contractual obligations. is duty is based on an organizing principle of good faith. While a duty of good faith in the manner of dismissal has al- ready been recognized in the employment context, the Su- preme Court's decision may have far-reaching implications when courts deal with employment disputes in general, as contractu- al obligations are the basis of the employment relationship. It may not be an issue concern- ing damages in the employment context, but may go to whether the provisions of an otherwise validly executed employment agreement are subject to chal- lenge due to this obligation of fairness and honesty. Paquette v. Quadraspec, 2014 CarswellOnt 5338 (Ont. S.C.J.). In a decision with implications for employers with operations in multiple prov- inces, the Ontario Superior Court held that a n employer's payroll both inside and outside Ontario must be included when calculating the $2.5-million payroll threshold for severance pay when determining an employer's severance pay ob- ligations pursuant to the Ontario Employment Standards Act, 2000 (ESA). Historically, only the employ- er's "Ontario" payroll was count- ed, but this decision may open the door to claims for termination pay and severance pay based on a cumulative payroll. Campbell v. Revera Retirement Wong v. Globe and Mail Inc., 2014 CarswellOnt 15512 (Ont. Div. Ct.). On Nov. 3, 2014, the Ontario Divisional Court dismissed jour- nalist Jan Wong's application for judicial review of an arbitrator's decision ordering her to repay to her employer settlement monies because she had violated a non- disclosure p r o v i - sion in a settlement agreement. T h e Globe and Mail had paid Wong $ 2 0 9 , 9 1 2 as part of a settle- ment. e settlement agreement contained a non-disclosure provi- sion that required Wong to keep the terms of the settlement con- fi dential and that she repay the settlement monies in the event of a breach of the confi dentiality provision. After receiving the settlement money, Wong published a book wherein she discussed the settle- ment and indicated she had been paid "a pile of money to go away." e court upheld the arbitra- tor's order and commented that the provision in the settlement agreement that required repay- ment in the event of a breach was reasonable. Notably, the court also required the employee to pay the union and the employer's costs of the judicial review. e lesson for employers? Al- ways make sure you have a good confi dentiality provision in settle- ment agreements — and don't be afraid to deal with what happens if there is a breach. LP, 2014 CarswellOnt 8102 (Ont. Div. Ct.). e Divisional Court of Ontario recently upheld a Human Rights Tribunal of Ontario decision that awarded $5,000 to a complain- ant after her employment was lorenzo lisi LEGAL VIEW employment lawyers were a busy bunch in 2014. In addition to legislative chang- es, courts and tribunals issued a num- ber of decisions that both framed and clarifi ed many of the issues currently More top cases from 2014 Jeffrey r. Smith, editor of Canadian Employment Law Today, combed through www.employmentlawtoday.com to identify even more groundbreaking cases from the past year. Employer not at fault for failure to accommodate: A nova Scotia municipal worker with multiple serious illnesses was on medical leave — but once she returned to work, she had issues with excessive absenteeism that led to her dismissal. An arbitrator found the employee's disability wasn't accommodated, but the employer didn't have the opportunity to investigate its duty to accommodate since it didn't have all the medical information. the employer was ordered to reinstate the employee, but only conditionally pending a review of its ability to accommodate her. $100,000 in human rights damages for restaurant workers: An Ontario restaurant owner: forced Muslim kitchen workers to eat pork during their religious fast; enforced an English-only rule in the kitchen; made discriminatory comments; and made reprisals against them when they complained. the restaurant owner was ordered to pay almost $100,000 for discrimination and lost pay. Addiction still a disability months after nurse's termination: this involved an Ontario nurse fi red for poor performance, intoxication at work and possible theft of drugs. despite her denial of an addiction, an arbitrator found the employer should have suspected the nurse had a problem from her behaviour and ordered her reinstated. As a result, she was accommodated — but not to active duty. Random drug, alcohol testing struck down at Suncor: Suncor introduced an amendment to its alcohol and drug testing policy at its Alberta oilsands operations to allow for random testing of employees in safety-sensitive positions — which describes 82 per cent of its oilsands workforce. An arbitrator struck it down, fi nding Suncor's data indicating a problem didn't differentiate between employees and contractors, and existing testing — post- incident and return-to-work after treatment — was suffi cient. Voluntary severance program not discriminatory: workers on long-term disability challenged a voluntary severance program that calculated payment based on salary of the last day worked — which was much less for those who'd been off work for a long time. An arbitrator found the program was not discriminatory as active workers were giving up something different in ending their employment and all workers had a choice as to whether they wanted to change their own individual circumstances. Worker's holdout for 'perfect' accommodation fails: A federal employee who was Orthodox Christian wanted Orthodox good Friday and Easter off instead of the regular dates of the holidays. the labour relations board found the employer provided accommodation options — such as vacation days, compensatory leave and leave without pay — but the employee wanted to work the regular holidays and take the Orthodox holidays off, which wasn't an option. the decision? An employee needing accommodation isn't necessarily entitled to accommodation to the exact terms desired, as long as there are reasonable options. Addicted worker's breach of last-chance agreement not the end: A worker with drug and alcohol addictions self-disclosed but suffered several relapses over a few years. the employer eventually terminated the worker after he breached a last-chance agreement, but the arbitrator found the employer should have attempted accommodation of the employee's disability — and also noted such a dismissal would discourage other workers from entering the company's treatment program. FAmIly > pg. 9 Credit: Brian A Jackson/Shutterstock Credit: mr.Timmi/Shutterstock

• Cover