Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2015 More Cases Clients told worker was 'unscrupulous' « from EMPLOYER MUST PAY on page 1 WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as mitigation, labour inspections and audits, attendance management, and key developments in employment law. To view the webinar catalogue, visit cpdcentre.ca/hrreporter. mum of one year. It was agreed that after one year the Barbers could buy Batyka's share of Binary for the higher of $7,000 or current market value. e contract cancelled any former agreements Batyka had with Binary. Over the next couple of years, the rela- tionship between Batyka and the Barbers deteriorated and in July 2010 they discussed buying Batyka out. Barber outlined several points for an agreement that included the stipulation Batyka had to redirect all Bina- ry-related calls on his personal cellphone to the Binary office with the explanation his duties had changed rather than saying he left the company. It also told Batyka he would have to transfer his personal email address and its content on the Binary- owned domain name to Binary and sign a non-compete agreement. Buyout negotiations failed Batyka refused these terms and on July 12 he emailed Jonathan Barber to tell him he was terminating his service relationship with Bi- nary effective Aug. 15, 2010. Barber replied by terminating the relationship immediate- ly, effective at 11 p.m. on July 15. On July 18, the Barbers moved the email hosting for Batyka's personal email address to a different server and re-created his email address. en they locked Batyka out of the email account and intercepted his email. Jonathan Barber also responded to emails intended for Batyka. On Nov. 16, 2010, Lucy Barber called an employee of a former client of Binary. She told the employee that Batyka had stolen software from Binary and "I feel bad that your company will get stuck in the middle and will go down." She offered to shut down the client's website, which had been set up while Batyka had been employed with Binary. About three weeks later, on Dec. 6, anoth- er client called Binary and asked for Batyka, Jonathan Barber told her Batyka no longer worked at Binary because "he was let go for unscrupulous business practices." In April 2011, Lucy Barber spoke to an- other client and told him Batyka had been "fired for theft from the company, not living up to his professional obligations, and for incompetence." In December 2011, Binary began legal proceedings against Batyka for software misappropriation, trademark violation and breach of fiduciary duty. ey discontinued the action in March 2014. Batyka sued the Barbers for defamation because of their comments to clients and for breach of privacy related to his personal email address on the Binary-owned domain name. He also demanded written retrac- tions and an apology to be sent to the clients who were told the defamatory statements, with a copy to his legal counsel. e Barbers denied making any defamatory statements, arguing anything they said about Batyka was true and that Batyka had no reasonable expectation of privacy on the email account owned by Binary. Batyka also set up a website with the ad- dress Binary Environments.ca, which fea- tured a statement that said: "Stay tuned as we bring you information about funny true stories about trolls working in their garage pretending to be corporate IT entities while making idiots of themselves getting sued." e court found that the Barbers made the statements about Batyka to clients — they didn't deny doing so — but, contrary to their claims, the statements weren't true. e evidence indicated Batyka resigned from Binary when he didn't agree to the terms of the share buyout — he wasn't fired for theft or any other reasons the Barbers told the others. e court also found Binary didn't at- tempt to determine whether Batyka had so- licited any clients, infringed its trademark, or appropriated the software system it had been developing with one of the clients in question. is led to the collapse of its legal action, which ultimately only served to ag- gravate the potential harm to Batyka's repu- tation, said the court. With regards to the breach of privacy complaint, the court found though some former employees may have kept their per- sonal email addresses on the Binary-owned domain name, there was nothing in any written employment agreements saying personal email addresses would be retained upon leaving Binary. In the end, Batyka couldn't prove Binary didn't own the do- main name and the court found the email address Batyka claimed to be personal was a "mixed-use personal and Binary business email address." e court noted that "most businesses would not wish former employ- ees to use an email domain that was iden- tified with the business through past use, name, initials, or otherwise." e court found the defamatory state- ments were made "with actual malice" and were "intended to injure" Batyka. ough the clients ultimately didn't take the com- ments seriously, they caused injury to Baty- ka's feelings and had potential harm to his reputation upon which he depended for his livelihood. e Barbers offered no apology and were meant to harm Batyka financially, said the court. e court took into account Batyka's ac- tions in setting up the website after his ter- mination, which was a deliberate attempt to harm Binary financially. is reduced the potential damage award. However, the court still ordered each of the Barbers to pay Batyka $10,000 in general damages and $5,000 in aggravated damages, for a total award of $30,000. For more information see: • Batyka v. Barber, 2015 CarswellBC 93 (B.C. S.C.). The employee quit after failed buyout negotiations, but one of the owners told a client the employee had been 'fired for theft from the company, not living up to his professional obligations, and for incompentence.'

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