By Rosalind H. Cooper

Occupational health and safety legislation in most Canadian provinces prohibits reprisal by an employer against an employee who makes allegations of unsafe work. Workers routinely try to rely on such reprisal provisions to attack any actions of their employers.

A recent Ontario Labour Relations Board decision, Petro v. The Beer Store, confirms that workers can’t. Reprisal complaints must relate to health and safety matters. They can’t relate to failures to follow corporate reporting procedures or to threats of discipline for refusal to follow directions regarding workplace reporting protocols.

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By Donna Gallant

Employers are regularly called upon to modify the workplace or job duties in order to accommodate disabilities. But personal assistive bodily devices haven’t traditionally been part of the accommodation discussion in Canada. This may now be changing, according to a recent arbitration decision.

Teacher requires hearing aids
A teacher struggled with a serious, progressive hearing loss. She bought an analog hearing aid in the early 1990s. Her hearing got worse, and she couldn’t communicate effectively, which of course is an essential part of teaching.

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by Rosalind H. Cooper

It is commonplace for companies and supervisors across Canada to be charged and convicted with respect to health and safety offenses. But the same doesn’t necessarily hold true for health and safety managers. In R. v. Della Valle, the Provincial Court of Nova Scotia recently convicted and fined a health and safety manager. This individual is now the second health and safety manager to be convicted of an occupational health and safety offense.

Facts
James Edward Della Valle was the occupational health and safety coordinator of the Cape Breton Island Housing Authority, which owns and maintains several housing units.  After concerns were raised by an employee, testing was done on vermiculite insulation found in the attics of some of the housing units.

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By Brian P. Smeenk

Does Canadian law recognize a right to sue somebody for invasion of privacy? In a landmark ruling in Jones v. Tsige, Ontario’s highest court recently said essentially: Yes. In limited circumstances you can sue for “intrusion upon seclusion.” But you won’t have a big payday.

This decision is a very significant development in Canadian law. It has potentially wide-ranging ramifications across many sectors, including in the labor and employment context.

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By Clayton Jones and Derek Knoechel

A growing frustration for Canadian employers is the need to defend against human rights claims arising out of the same factual circumstances in multiple forums. Discrimination claims that are presumptively dealt with by a labor arbitrator can resurface as virtually identical claims before a human rights tribunal.

While most human rights tribunals have the discretion to dismiss such claims as a result of the prior proceeding, it historically has been difficult to predict whether such discretion actually would be exercised.

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By Rosalind Cooper

Recently, courts across Canada seem to be expanding the application and coverage of occupational health and safety legislation, providing broad and liberal interpretations of legislation. But that may be changing. The decision in Ontario (Ministry of Labour) v. Sheehan’s Truck Centre Inc. is being welcomed by many as an indication that the protective purpose of the regulatory scheme cannot override the actual words used in the legislation.

Employee run over
A company that owned and operated a highway tractor-truck sales business offered units for sale in its parking lot. While the company was expanding the parking lot, four employees were directed to move a number of the trucks in the parking lot from one area to another. The movement was required to facilitate paving work relating to the expansion.

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By Bill Duvall

Employers in Canada have taken comfort from the fact that most provincial workers’ compensation agencies provide benefits for workplace mental stress only in very limited circumstances. But that comfort may be threatened, at least in British Columbia. Earlier this month, the B.C. government introduced legislation that, if passed, will expand workers’ compensation coverage for mental stress claims.

Current experience
As it stands now, a worker in B.C. is entitled to compensation for mental stress not resulting from an injury for which the worker would otherwise be entitled to compensation only if the mental stress is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of the worker’s employment. In addition, the condition: read more…

By Kyla Stott-Jess

Hollywood’s portrayal of sports agencies presents a world that is dramatic and cut-throat, with ambitious sports agents competing for the chance to represent talented athletes. A recent court decision in Alberta brought this competitive business into the courtroom when a sports agency squared off against a former employee. It also provides several important lessons of broad application to many employers operating in Canada.

Background
Richard Evans switched from the practice of law into sports agency in 2000, and he signed an employment contract with The Sports Corporation (TSC). He was put in charge of TSC’s “Czech-Slovak pipeline.” That was a network of contacts through which TSC recruited Czech and Slovakian hockey players. Evans became the primary TSC contact with these Czech and Slovak recruiters.

By the spring of 2006, relations between Evans and TSC had disintegrated. As the end of his six-year contract approached, Evans decided to split from TSC. He started his own sports agency. But TSC asked him to leave before the end of the contract. Several of the Eastern European contacts transferred their relationships from TSC to Evans’ new company.

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By Lyne Duhaime and Emilie Paquin-Holmested

On February 3, 2011, the Federal Court of Canada issued a decision in Vilven v. Air Canada, the prolonged legal battle of two Air Canada pilots who challenged the company’s mandatory retirement policy for pilots who reach the age of 60.

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by Jean-François Cloutier

Your employee makes critical comments to the press about your company. Is he a legitimate whistleblower or has he violated his duty of loyalty to his employer? In Chopra et al. v. Treasury Board (Department of Health), an adjudicator at the Public Service Labour Relations Board recently considered just that. He considered whether three scientists at Health Canada (the “grievors”) breached their duty of loyalty to their employer when they criticized the government in the media. For the reasons outlined below, he determined that the grievors were not legitimate whistleblowers and instead breached their duty of loyalty to their government employer.

Facts
The three scientists worked as drug evaluators for Health Canada’s Veterinary Drugs Directorate. Over a period of several years, they publicly criticized Health Canada and the Canadian government in television and radio interviews, at press conferences, and through open letters to various organizations. They made allegations of corruption, cover-ups, and incompetence in the veterinary drug approval process. They also alleged that Health Canada scientists were pressured to approve drugs by high-level figures in the Privy Council Office and the Prime Minister’s Office. They further claimed that when they stood up to these pressures, they were harassed at work.

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