Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends good health" with respect to LTD benefits. 364 Development Corp. informed Feldstein that "proof of good health" was related to the three-month waiting period needed in order to have the plan in effect." Relying upon this representation, Feldstein accepted employ- ment with 364 Development Corp. About one year after starting work with 364 Development Corp., Feldstein's lung functions declined due to his condition. After numerous forms of communica- tion between Feldstein, the company and the benefit provider, Feldstein was ap- proved for LTD benefits. However, the benefits were approved at a rate of $1,000 per month instead of the expected $4,660 monthly benefit. is shortfall in benefits was due to 364 Development Corp. fail- ing to fill out a health questionnaire when Feldstein initially enrolled in the benefits he started his employment with the com- pany. is monthly amount was reduced by the $963.44 Feldstein received per month in Canada Pension Plan benefits, for a net monthly amount of $37. Feldstein initiated legal proceedings against 364 Development Corp. for negli- gent misrepresentation. After determining that Feldstein's version of events was credible, the B.C. Supreme Court found that his "claim in negligent misrepresentation should succeed." e court arrived at this decision by finding that: the company owed a duty of care to Feldstein "as an employer making representations to a prospective employee in the court of pre-employment discussions;" the statement made by the company that "proof of good health is related to the three-month waiting period needed in order to have the plan in effect" was "inaccurate, untrue, and misleading;" that the above statement was negligently made by the company to Feldstein; and, that Feldstein "reasonably relied on the impugned statement in opting to accept (the company's) offer of employment." 364 Development Corp. was or- dered to pay Feldstein $83,336.90 for the loss of LTD benefits for a period of 40 months and $10,000 for mental distress. Lessons for employers e above decision demonstrates the importance for employers to accurately represent to their employees and potential employees the terms of their employment, including benefits. Failure to do so may re- sult in a reasonable reliance by an employee or potential employee on the inaccurate statement, and associated damages. Should an employer not fully understand any of the terms of employment with the employee or those offered to a potential employee, full knowledge and information should first be obtained. Lessons for employees Employees should be aware of the above decision as it demonstrates the potential recourse they may have should a negligent representation be made by their employer or potential employer when discussing the terms of their employment. For more information see: •Feldstein v. 364 Northern Development Corp., 2016 CarswellBC 159 (B.C. S.C.). Employee's benefits were much less than expected « from NEGLIGENT on page 1 so in recent stories regarding allegations of rampant sexual harassment within the ranks of the RCMP and among Ontario MPPs. In both institutions, complaints that employees who have been victims of sexual harassment have effectively been silenced or dissuaded from coming forward with their complaints. Recently, Ontario Premier Kathleen Wynne revealed that a former Liberal MPP was asked to resign in 2013 after sexual harassment al- legations were launched against him. In the decision of Ciardullo v. Premetalco Inc., an executive's employment as a vice- president, finance, was terminated for cause as a result of allegations of sexual harassment made by an employee. e executive argued that the discovery of the employee was criti- cal to his case while the employer argued that she was a completely inappropriate witness and her examination would be oppressive, since she would be confronted by counsel for her alleged harasser and required to relive ex- periences that caused her to experience feel- ings of shame and embarrassment. e judge ruled that an employee had the right to select the accuser as the employer's representative in the discovery process as he was "entitled to know, to explore, and to test the evidence against him prior to trial". Given the obvious fact that a victim will have much of the knowledge required in a claim relating to sexual harassment, it is simi- larly unequivocal that a victim may be much less likely to come forward with complaints of sexual harassment if he or she is at risk of attending lengthy and emotionally draining examinations that will suddenly reveal his or her identity along with the salacious details surrounding her harassment. While Bill 132 and the recent increase in tribunal damages may create real dialogue around the sanctions that employers can face in sexual harassment cases, it is the corpo- rate culture in every organization that must be the basis for change for employers to see a true decline in workplace sexual harassment. In the words of Kathryn Borel, after hear- ing Ghomeshi's apology: "Up until recently I didn't even internalize that what he was doing to my body was sexual assault. Because when I went to the CBC for help what I received in return was a directive that, yes he could do this and yes it was my job to let him." For Bill 132 and the Human Rights Code in Ontario and similar legislation in other Canadian jurisdictions to protect employees, employees themselves must feel safe to come forward with complaints of sexual harass- ment. e key to that conversation can only be opened by employers ready and willing to reframe their corporate culture. For more information see: • T. (O.P.) v. Presteve Foods Ltd., 2015 Car- swellOnt 12338 (Ont. Human Rights Trib.). • Ciardullo v. Premetalco Inc. 2009 Carswel- lOnt 5290 (Ont. Master). Victims have been silenced « from LEGISLATIVE on page 3 ABOUT THE AUTHOR RONALD S. MINKEN Ronald S. Minken is a senior lawyer and mediator at Minken Employment Lawyers, an employment law boutique, located in Markham, Ont. He can be reached at www.MinkenEmploymentLawyers.ca. Ron gratefully acknowledges Sara Kauder and Kyle Burgis for their assistance in preparation of this article.

• Cover