Further developments in Canadian law regarding gender identity and expression in the workplace

December 04, 2016 - by: Clayton Jones 0 COMMENTS

by Clayton Jones

In Canada, continuing legislative developments continue to occur regarding the issues of gender identity and gender expression and have gained much attention in recent months. This is, in part, due to the increased acknowledgement of the challenges faced by transgendered people including in the workplace.

One of the results is that employers are being required more than ever to pay attention to the issues of gender identity and gender expression in the workplace, including ensuring that discrimination against transgendered employees is not tolerated and that workplace accommodations are implemented as appropriate.

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Extraordinary damages not automatic in ‘cause’ cases

November 27, 2016 - by: Keri Bennett 0 COMMENTS

by Keri Bennett

In Canada, courts can award two extraordinary forms of damages in a wrongful dismissal action: aggravated damages or punitive damages. In a wrongful dismissal action, employees who are terminated for cause often claim that they should be awarded aggravated and/or punitive damages in addition to reasonable notice damages.

In a recent decision of interest to employers in Canada, Smith v. Pacific Coast Terminals Co. Ltd., 2016 BCSC 1876, the British Columbia Supreme Court ruled that these types of damages will not be awarded simply because an employer continues to assert it has cause for termination at trial.

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No mention of severance pay or benefit continuation … No worries! Termination provision enforceable nonetheless!

November 20, 2016 - by: Rachel Younan 0 COMMENTS

by Rachel Younan

Recent case law has overwhelmingly rejected termination clauses that purport to limit an employee’s entitlements upon termination to the minimum notice required by applicable employment standards legislation. In Ontario, provisions that have failed to reference severance pay and/or benefit continuation have been found to be invalid, resulting in common law notice that far exceeds the intended contractual entitlement. The 2015 Ontario Superior Court of Justice decision in Oudin v. Le Centre Francophone de Toronto, 2015 ONSC 6494, diverged from that case law and, this summer, was upheld by the Ontario Court of Appeal, 2016 ONCA 514.

Facts

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Discharged employees must prove lack of comparable jobs

November 13, 2016 - by: Keri Bennett 0 COMMENTS

by Keri Bennett

Where an employee has been dismissed from a job without sufficient notice, he or she may look to his or her former employer for compensation for any losses suffered. However, the employee has a corresponding duty to try to limit any such losses by looking for comparable employment. A failure to act reasonably in this regard could have a significant impact on any claim the employee might have against the employer.

Not surprisingly given the state of the economy and the unemployment rate, dismissed employees often claim that there are no comparable jobs available and hence the reason they have not managed to secure other employment within the notice period. In Munoz v. Sierra Systems Group Inc., 2016 BCCA 140, the Court of Appeal for British Columbia ruled that where this argument is advanced, it is up to the employee to prove it.

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OHS prosecutions: When the regulator mischaracterizes a party’s role

October 30, 2016 - by: Carla Oliver 0 COMMENTS

by Carla Oliver

When a person applies for a job, the job generally comes with a title that an employer believes to be descriptive of the role and reflective of the duties and responsibilities of the position. In many cases, an employer’s assignment of a job title to a particular role is done without a great deal of detailed thought.

It is important to remember, however, that occupational health and safety (OHS) legislation in each Canadian jurisdiction sets out the obligations of various individual parties regarding health and safety in the workplace. While the specifics of the legislation vary somewhat between jurisdictions, generally speaking, “supervisors,” “employers,” “constructors,” and other groups each have defined obligations under health and safety legislation that are triggered by virtue of their particular role in relation to the workplace.

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New accessibility laws coming for federal sector

October 23, 2016 - by: Jackie VanDerMeulen 0 COMMENTS

by Jackie VanDerMeulen

Laws aimed at making organizations more accessible for Canadians with disabilities have been enacted by various jurisdictions across Canada in recent years. The federal government recently announced that it also plans to introduce legislation to promote accessibility. It will apply to federally regulated employers, such as banks, cross-border transportation providers, and telecommunications companies.

The government is currently soliciting input from Canadians on what they would like the legislation to address. We anticipate however, that the new legislation will incorporate many features from Ontario and Manitoba’s accessibility laws.

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Going down the class-action Tran-Canada Highway

October 16, 2016 - by: Kyla Stott-Jess 0 COMMENTS

by Kyla Stott-Jess and Mitchell Barnard

The phrase “class action lawsuit” can strike fear in the executive ranks of any large company. The development of class action law in in the employment context has been slower north of the 49th parallel than in the United States. Recently, though, a line of cases has been paving the class action ‘highway’ to increased Canadian litigation in this area. Much of the law to date has focused on certification. For a legal action to be certified, its initiators must prove that it is appropriate for the claims to be brought as a class proceeding. A recent Ontario decision suggests that certification may not provide as much of a speed bump as employers would like. read more…

Medical assessment gives reasonable grounds for employee surveillance

October 09, 2016 - by: Mikaël Maher 0 COMMENTS

by Mikaël Maher

Surveillance may be an effective way for an employer to confirm or dispel their doubts about the legitimacy of a disability claim. But when is it legally permissible in Canada? In the recent decision Centre de santé et de services sociaux de la Vallée de la Gatineau v. Martin [1], the Quebec Superior Court weighed in on this issue. It set aside a 2013 arbitration award that excluded video surveillance evidence. Despite a medical assessment finding that the disability claim was fake, the arbitrator had ruled that the employer did not have reasonable grounds to undertake the surveillance. The court disagreed.

Generally, the employer’s right to undertake surveillance is limited in Canada, to protect the fundamental right to privacy of all employees. Courts and tribunals have ruled that before initiating a surveillance operation, an employer must have reasonable grounds for conducting it. Even if there are reasonable grounds, surveillance must be done in the least intrusive manner possible. read more…

‘You must be actively employed to receive bonus’—or not, says Ontario court

October 02, 2016 - by: Shane Todd 0 COMMENTS

by Shane Todd

In an attempt to their limit severance exposure, employers often require that an employee be “actively employed” on the bonus payment date in order to be eligible to earn a bonus. The idea being that the severance payable to a dismissed employee would not have to take into account an employee’s bonus earnings as the employee would not be able to satisfy the “active employment” requirement contained in the applicable bonus plan. However, as the Court of Appeal for Ontario recently confirmed in Paquette v. TeraGo Networks Inc., 2016 ONCA 618, “active employment” requirements are insufficient to remove or limit a dismissed employee’s rights.

What happened

Trevor Paquette was employed by TeraGo Networks for 14 years. He earned a base salary and was eligible for an annual bonus. The bonus plan required Paquette to be “actively employed” at the time the bonus was paid in order to receive it. In November 2014, Paquette was terminated without cause. The parties could not agree on a severance package and so Paquette sued TeraGo for wrongful dismissal. read more…

Union blog’s sexist comments about manager constitutionally protected, not discriminatory, says court

September 25, 2016 - by: Nicole Singh 0 COMMENTS

by Nicole Singh

Canadian tribunals have consistently ruled that communications by employees on social media can be viewed as an extension of the workplace. Improper communication on such platforms can therefore be considered a form of workplace discrimination under Canadian human rights laws. Discipline or termination can sometimes be appropriate.

However, in the decision Taylor-Baptiste v. Ontario Public Service Employees Union, a union official’s sexist and offensive blog posts about his manager were found to not constitute discrimination under Ontario’s Human Rights Code. Instead, the comments in the blog posts were protected by his constitutional free speech and associational rights under the Canadian Charter of Rights and Freedoms.

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