EMPLOYEES' RIGHTS ON TERMINATION - THE BASICS

Ultimately, employers do not need a reason to terminate an employee governed by Ontario law. They can do so “without cause” at any time, subject to the employee’s right to receive reasonable notice of termination, or pay in lieu of such notice. However, if an employer terminates an employee for cause, the employer may have no obligation to provide the employee with notice of termination or any pay in lieu thereof. Proving “cause” for termination is a high threshold in Ontario. The Courts routinely scrutinize an employer’s allegation of cause, often finding otherwise. Usually every case is unique and determined based on its own facts.  

Generally, an employee in Ontario is entitled to reasonable notice when his or her employer decides to terminate his or her employ without cause. Reasonable notice can be given either by ‘working’ notice (during which the employee remains employed) or by pay in lieu of reasonable notice. The amount of reasonable notice to which any employee may be entitled is case specific and depends on multiple factors, including age and level of responsibility.

Ontario employees terminated without cause are entitled minimum, statutory entitlements, including termination pay, under Ontario’s Employment Standards Act, 2000 (the “ESA”). Generally, most employees are entitled under the ESA to one week’s working notice or pay in lieu of working notice for each full year of service, up to a maximum of 8 weeks working notice or pay in lieu of working notice. This entitlement may vary depending on how many employees are terminated by an employer at any given time. In addition, employees employed for five years or more continuously may also be entitled to “severance pay” under the ESA – usually one week for each year of active service, up to a maximum number of weeks. 

These are the minimum, statutory rights only for Ontario employees. If there is no employment contract limiting an employee’s entitlement on termination without cause to the minimum standards under the ESA, or otherwise determining the entitlement, the terminated employee will be entitled to reasonable notice of termination of employment pursuant to the “common law”. Many lawyers refer to the ‘one month per year of service’ rule of thumb, but this is not the law. Rather, common law entitlement to reasonable notice is determined by several of factors, including: the nature of the employment, the level of responsibility, the length of the employment, the age of the employee, the availability of alternative employment and the circumstances surrounding the employer’s decision to terminate the relationship. Usually this is a very subjective assessment.

Perversely, in order to be awarded the full amount of any entitlement to pay in lieu of notice, an employee who is terminated is obliged by law to attempt to limit and/or “mitigate” his or her damages/losses from the termination by actively seeking alternative, comparable employment. Failure to do so may adversely impact the amount of common law reasonable notice to which the employee may be entitled. Only actual damages incurred are granted by the Court. Mitigated earnings during the notice period are usually deducted from the Court’s overall award. 

The situation for federally-regulated employees is different. Under the Canada Labour Code, most employees are entitled to two weeks’ notice of termination and, after twelve consecutive months of continuous employment, employees may also be entitled to severance pay equal to two days’ pay for each year of completed service, with a minimum benefit of five days wages.

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TIPS - EMPLOYEES ON A LEAVE OF ABSENCE - HOW LONG? WHEN CAN THEY BE REPLACED? WHEN DOES IT END?

HIRING A REPLACEMENT FOR AN EMPLOYEE ON A LEAVE OF ABSENCE:  

If an accommodated employee is on a leave of absence stipulated by Ontario’s Employment Standards Act, 2000 (the “ESA”), the employee has a presumed right to return to work in the same position (if the position still exists or similar duties are still performed), or be given the opportunity to return to a comparable position. Employers cannot ‘punish’ employees who take a leave of absence authorized by the ESA, or a leave that is otherwise permitted by the employer or by applicable law, particularly if the leave of absence is attributable to a disability experienced by the employee, which is also protected by Ontario’s Human Rights Code (the “Code”).

If a replacement employee is hired, the employer may even be forced to terminate the replacement to accommodate the returning employee and, if so, liability for pay in lieu of notice (and other statutory rights) may ensue, particularly if the replacement cannot be placed in another, satisfactory position. If a replacement employee is hired, the employment offer should specifically address this, including by defining the temporary nature of the hire and the limited entitlement to pay in lieu of notice. 

FRUSTRATION OF THE EMPLOYMENT RELATIONSHIP:

If an employee is absent from work due to a disability for an extended period of time, it may constitute a “frustration” of the employment contract, in which case the employer may only be lawfully required to pay the employee his or her entitlements under the ESA, which may include severance pay, being the statutory minimum at law.  However, there is no judicially set time period to apply to determine the event of frustration, particularly if the employee has long-term disability benefits available during the leave of absence. Typically, such benefits make it more difficult to determine if a frustration has taken place. In addition, employers must continually consider accommodating the employee, to the point of undue hardship, with the objective of the employee returning to work when capable of doing so. Employers should carefully consider this duty before determining that a frustration of the relationship has occurred. The employer may need to consider different return-to-work accommodation plans during the leave of absence and before taking the position that a frustration has occurred, such as, for example, periodic or temporary return-to-work options and possibly requesting and reviewing medical information for the employee regarding the employee’s ongoing and future treatment plan and potential ability to return to work in the same position, which may require modification. Usually every case is unique and has its own, distinct considerations, particularly depending on the length of the ongoing leave of absence, efforts to accommodate the employee and facilitate a return to work, either temporarily or longer and usually the step of affirming with the employee’s treatment provider(s) whether the employer is unable to return to work for the foreseeable future, even with accommodation.

ACCOMMODATING AN EMPLOYEE WITH A DISABILITY:

Under the Code, employers must accommodate employees with any disability to the point of “undue hardship”. This is historically a very high threshold for employers to justify, legally. Employers must permit any accommodation request, unless denying the request is justified based on objective evidence reasonably satisfactory in the circumstances. Generally, if an employee has a documented restriction regarding his or her inability to perform regular duties, the employer may be required to review and consider the employee’s current duties, including to decide if the employee is able to continue performing the bona fide duties for the position, which may require some modification to accommodate the employee’s specific disability. If, for example, modified duties could be achieved, the employee is likely entitled to continue in the same position, as modified. Only is such modification is virtually impossible, to the point of “undue hardship” to the employer, should the employer review and consider other positions and duties that would accommodate the employee’s documented restrictions. In that case, the employer is only obliged to pay the accommodated employee based on the duties and hours of work actually performed by the employee, including in the modified position, if any. Accommodation of any employee should always be reviewed fairly regularly, including to facilitate the employee returning to his or her regular duties as soon as reasonably capable of doing so.

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JASON'S TOP 10 TIPS - HIRING AN EMPLOYEE

Our Top 10 tips for hiring a new employee: 

[1]      SIGNED EMPLOYMENT AGREEMENT/OFFER:

Before the employee starts any work:

  • ensure you have the employee’s properly signed employment agreement or accepted offer of employment;

  • ensure the employment agreement/offer addresses everything necessary, including for termination (with and without cause), leaves of absence, police record check (if desired or mandatory), health and safety training, accessibility, job description (defining the position adequately), confidentiality, right to lay-off, rules for suspension, etc.;

  • consider if the employment agreement/offer should contain any non-competition and/or non-solicitation provisions to protect your business and assets in future; and     

  • provide a copy to the employee, before the employee starts in the position.

[2]    POLICE RECORD CHECK AND PROFESSIONAL REFERENCES:

  • obtain any required police record check (judicial record check, vulnerable sector check) and professional reference(s) prior to the employee starting any work for the position; and  

  • ensure the employment agreement/offer is conditional on those requirements and being satisfied with the results.  

[3]    HIRING AND RECRUITMENT:

  • ensure avoidance of discriminatory practices prohibited by the Ontario Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). 

[4]    BE CLEAR ABOUT WORK, ESPECIALLY REMOTELY (FROM HOME):

  • before the employee is permitted to work remotely, such as from home, ensure you have a workplace policy specifying eligibility, rules, requirements to do so (responsiveness, productivity, conduct, etc.), digital security and access, confidentiality and approval for overtime work, among other things; and

  • consider your own confidentiality requirements and ensure the employee is required to meet those obligations, including via online communications, using digital devices, etc.

[5]    BE SENSITIVE TO POTENTIAL DISABILITY ISSUES:

  • offer accessibility and accommodation during the recruitment and hiring process, if necessary; and 

  • request the employee to identify any potential accessibility or accommodation needs, if any, being very mindful of avoiding questions, or requesting information, prohibited by the Code. 

[6]    PROTECT CONFIDENTIALITY:

  • ensure you have the employee’s properly signed confidentiality acknowledgement, depending on the nature of your business and the importance of confidentiality to you and your clients, customers, employees, service providers, etc.   

[7]    PROTECT YOUR PROPRIETARY INTERESTS:

  • if you have proprietary intellectual property and/or information technology assets, ensure you have a proper acknowledgement signed by the employee to protect both your IT and IP assets in future, including digital assets.  

[8]    DISCLOSURE OF PERSONAL INFORMATION:

  • ensure the employee has properly signed a consent to the disclosure of the employee’s personal information (i.e., photographs, videos, etc.) for the purpose of marketing and/or promotion of your business, if desired, which also protects your third party marketing/promotion partners and agents.   

[9]    SET EXPECTATIONS:

  • provide the employee access to review your workplace policies before the employee signs the employment agreement/offer;

  • offer to review those with the employee and answer any questions; and

  • ensure the employee signs an acknowledgement verifying the employee’s review of your workplace policies (and any other key expectation for the employee in future) and agreement to adhere to those in future.

[10]  COMPLY WITH STATUTORY AND CRA RULES:

  • add the new employee to your CRA account for payroll source deductions, etc.

  • ensure the employee completes a TD-1 and a TD1ON Form;

  • complete the year-end T4A and other CRA requirements for the employee;

  • add the employee to your Workplace Safety and Insurance Board account, if applicable;

  • inform the employee where a copy of (Ontario’s) Occupational Health and Safety Act, R.S.O. 1993, c. O.1, as amended (the “OHSA”), is posted prominently in your workplace;

  • inform the employee where copies of both your heath and safety policy and your violence, harassment and sexual harassment prevention policy are posted prominently in your workplace, as required by the OHSA;  

  • give the employee a copy of the “Health & Safety at Work: Prevention Starts Here” poster, required by the OHSA, which must also be displayed prominently in your workplace at all times;

  • inform the employee of the names and locations of your workplace Joint Health and Safety Committee members, if applicable;

  • give the employee a copy of the “Employment Standards in Ontario” poster, published by the Ontario Ministry of Labour; and

  • arrange for the employee, including if he or she is a supervisor, to complete the mandatory health and safety awareness training required by the OHSA.

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"FORCED RETIREMENT" OF ADVANCED-AGE EMPLOYEES - GET READY TO PAY A PREMIUM, SAYS THE COURT

The emerging judicial trend in Ontario is to give more to long-service, advanced-age employees if they are wrongfully terminated.  The Courts are determining that “forced retirements” are unacceptable and punishing employers who are perceived to do so by granting more pay in lieu of notice (i.e., longer notice periods).

Severance settlements will be impacted by this trend in the Courts and, certainly, much more careful scrutiny should be given by employers forced to consider whether to litigate the notice period for advanced age employees (typically those over the age of sixty-five years), particularly if they have mid-to-long-term service records with the employer.

Case One: Dawe v. Equitable Life Insurance Company2018 ONSC 3130 (CanLII):

The employee had worked for thirty-seven years for the employer. He was a senior VP. He was sixty-two years of age when he was terminated, without cause. He earned a salary of about $250,000 annually, plus a bonus of nearly $400,000 in the year his employment was terminated.

He sued. He claimed he had planned to work for another three years.

The Court acknowledged the general rule that twenty-four months is the maximum notice period awarded. Despite this, the Court noted “a change in society’s attitude regarding retirement”, particularly with the abolition of mandatory retirement in 2006. The Court rules that “presumptive standards no longer apply”, mainly because many employees work past the age sixty-five.

After considering all of the usual factors in a case for wrongful termination, such as the employee’s age, length of service, character of employment and availability of alternate employment), the Court emphasized the employee’s advanced age, especially on the basis that it made the availability of comparable employment more difficult for the employee.

In fact, the Court held that termination without cause of this employee was “tantamount to a forced retirement”, stressing that the employee should have been given the opportunity to retire on his own and on his own terms.

In the end, Court would have awarded the employee a “minimum 36-month notice period”. However, only thirty months’ pay in lieu of notice was granted, given that the employee claimed no more in the case.

The case has been appealed; stay tuned.

Case Two: Saikaly v. Akman Construction Ltd., 2019 ONSC 799 (CanLII):

In this recent case, a sixty-year old office manager employee, who had worked for approximately twelve years only, was given twenty-four months’ pay in lieu of notice. Following its decision above, the Court’s decision took account that the employee did not hold as high a level of position or have a lengthy service record. However, despite this, the Court concluded a two-year notice period was appropriate, particularly given the employee’s  advanced age, dedication to his former employer and lack of formal training, making it more challenging for the employee to secure alternate employment.

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DON'T USE THE SO-CALLED "RULE OF THUMB" TO PAY SEVERANCE TO SHORT-TERM EMPLOYEES

Some employers use the so-called “rule of thumb” to make severance offers to employees terminated without notice. 

Basically, one month severance pay for each completed year of service.

By implication, short-term employees, even managerial ones, would only be entitled to minimal pay in lieu of notice if terminated without cause.

This is not the law.

Indeed, length of service is only one factor a Court will assess in awarding severance pay (pay in lieu of notice). 

Furthermore, Ontario’s highest Court has also clearly rejected placing weight disproportionately on length of tenure, especially if it would potentially discredit or undervalue other factors, such as the employee’s level of responsibility, age and the nature of the position generally [Example: Minott v. O’Shanter Development Company Ltd., 42 OR (3d) 321 (ONCA); Love v. Acuity Investment Management Inc., 2011 ONCA 130 (CanLII)].

Particularly with a managerial employee, Courts now fairly consistently award significantly more for pay in lieu of notice. Higher management have been awarded six months’ pay in lieu of notice, for example, even though the length of employment was less than two years.

So, for short-term employees, particularly managerial positions, the “rule of thumb” should be carefully applied, if at all, these days. If the managerial employee is senior in age, the risk becomes even greater, as Courts are becoming increasingly intolerant of ‘forced retirement’ terminations. A severance offer should rarely, if ever, be weighted disproportionately on length of service. Rather, all of the factors typically evaluated by the Courts should be examined, such as the employee’s age, level of responsibility and possibly the employee’s reasonable ability to secure alternative and comparable employment.

Other cases in Ontario where the so-called “rule of thumb” has been rejected or, least, not applied:

  • product manager employed for nineteen months awarded nine months’ severance after termination without cause, in which the Court noted that the employer did not provide the employee with a reference letter and the manager had taken more than nine months to find alternate employment, even at a lower salary [Nemirovski v. Socast Inc., 2017 CarswellOnt 14948];

  • senior technical architect employed for less than three years awarded a five-month reasonable notice period [Raposo v. CA Canada Company, 2018 CarswellOnt 12044];

  • sales manager awarded a notice period of four months following the termination of her employment after less than one year [Nogueira v. Second Cup, 2017 CarswellOnt 16262]; and

  • general manager employed for less than two years awarded a three-month reasonable notice period, noting the employer was less than forty years of age and had found alternative, comparable employment within thirty days of the termination date [Bergeron v. Movati Athletic (Group) Inc., 2018 ONSC 885 (CanLII)].

Decisions on severance offers must be carefully considered, ideally with proper, qualified legal advice. 

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THE TEST FOR PROVING A TOXIC (POISONED) WORKPLACE

Constructive dismissal” is different from wrongful termination. If an employee leaves, usually it is by resignation. However, if the departure is due to an alleged toxic, abusive or intolerable workplace, to the extent that the employer has substantially changed fundamental or essential terms of the employment contract, it may be considered a forced departure, or constructive dismissal.

A recent B.C. case demonstrates the importance of maintaining a workplace free of harassment, toxicity and abusive behaviour.

In this case, an employee alleged a co-employee engaged in, among other things, intimidation and both verbal abuse and harassment.  The employer conducted an internal investigation, concluding many of the allegations were unfounded or unsubstantiated, although the co-employee was disciplined for using profanity in the workplace. The employer concluded the workplace conflict was attributable to both employees, effectively. The employee remains dissatisfied with the employer’s reaction to her complaints and, ultimately, resigned from her employ and sued the employer for constructive dismissal.

The Court noted the legal test to successfully establish a toxic, or intolerable, workplace, being a relatively high barrier: whether a reasonable person in the circumstances should not be expected to persevere in the employment. An individual's subjective perception of the work environment will not be enough to establish constructive dismissal. Unfriendliness, confrontations between co-workers or even some hostility and conflict will not amount to constructive dismissal where the employee is still able to perform his or her work. In this case, the Court found no ongoing, repeated abusive behaviour, nor did the employer tolerate or condone any sufficiently objectionable behaviour in the workplace. Rather, the employer was found to have treated the complaints seriously, discipline the co-employee, in part (for using profanity) and arranged for a professional coach to try to intervene and distill the conflict between the co-employees. 

The test for toxic, poisoned or intolerable, workplace had not been met by the complaining employee.

However, regardless of the legal outcome, the employer incurred significant expense in the process, which caused uncertainty and additional conflict within the workplace, all of which may be more avoidable by taking the following steps:

  • Implement and maintain a respectful workplace policy;
  • Establish and implement a workplace policy for harassment, sexual harassment and conduct within the workplace;
  • Treat and handle complaints seriously, including pursuant to any written workplace harassment policy, which is mandatory by law;
  • Take action, where appropriate; and  
  • Reaffirm the commitment to having and maintaining a respectful workplace.

The Case:   

Baraty v. Wellons Canada Corp., 2019 BCSC 33.

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LONG-TERM DISABILITY BENEFITS EXPLAINED

Long term disability benefit coverage (“LTD”) is a type of insurance that may be available to employees, often as part of a group benefit package or program. It is a contract between the insurance provider (benefit carrier) and the employer, which benefits the employee. Often the employee must contribute to the monthly premium for the LTD coverage, at least partly, which is usually deducted from the employee’s pay and remitted by the employer directly to the benefit carrier (usually as part of the total monthly expense for the group benefit package being made available to the employee).  LTD terms and conditions are not usually the same for every insurance company or benefit carrier, but often features of this coverage are the same, or similar.

For example, most LTD policies require an “elimination period”, being the period required for the employee to be absent from work due to a disability before the coverage will be triggered. Often an employee will be required by the terms of the coverage to apply for and exhaust any available short-term disability benefits (including through employment insurance sick benefits) and accumulated sick days. An  employee may also be required to apply for Canada Pension Plan disability benefits, too. 

LTD benefits are typically a percentage of the employee’s regular wages or pay (based on the pre-disability employment). The percentage may depend on the amount of the premium paid for the coverage, or other factors, and largely depends on the contract negotiated by the employer and the benefits carrier. If, while LTD is being received, an employee receives income from another sources, such as workplace insurance benefits, or Canada Pension Plan benefits (including disability-related payments), those amounts will usually be deductible, or set-off, against the LTD payment.  The LTD benefit received may be taxable or non-taxable to the employee, depending on whether tax was paid on the payment of the monthly premiums by the employee. If so, it is likely the LTD benefit may be paid on a tax-free basis to the employee. 

Generally, LTD will be available for a period of two years in terms of the employee’s ability to perform his or her own job. However, after this period, the coverage terms will shift to whether the employee could perform “any occupation”, not only his or her own vocation. This is a higher test in order to qualify for ongoing, continuous LTD in future. This assessment may require medical examination and/or information to review the “any occupation” condition.

If LTD is available beyond the two-year “any occupation” threshold, it likely will continue until the employee turns age 65, returns to work, passes away or the benefits carrier conducts a further assessment and changes, or suspends, the ongoing benefit payment. If an employee returns to work after receiving six months or more of LTD benefits, but suffers a further disability, generally the employee will have to exhaust any short-term benefits available, including through employment insurance sick benefits, possibly with the requirement to apply for CPP disability benefits.

The employer’s contract with the benefits carrier is the critical document for LTD rights and entitlements. The coverage is usually summarized by a benefits booklet, which should be requested from an employer prior to accepting a position, or during employ, to review and understand the terms and conditions of that specific LTD plan.

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FIRING SOMEONE FOR POOR PERFORMANCE (WITHOUT SEVERANCE) - DO-ABLE, BUT RISKY. THE NUTS AND BOLTS

Generally, an employer cannot abruptly terminate an employee without notice (i.e., any severance) unless there is “just cause” to do so. If such cause is absent, reasonable notice, or pay in lieu of notice, is usually required by law. It is exceedingly difficult for Ontario employers to prove “just cause” in Ontario Courtrooms. Some critics may argue that Ontario Courts remain disproportionately sympathetic to terminated employees, perhaps justifiably so. In any event, to use and prove “just cause” successfully in Ontario law is usually very challenging and reserved to fairly limited circumstances, effectively those where the contract of employment is fundamentally breached by the terminated employee.

Performance issues, in particular, can be quite problematic, at least if they are raised and relied on as “just cause” for termination. Where the misconduct is very clear and identifiable, it becomes mildly less onerous, such as serious or wilful misconduct (e.g., fraud, theft, harassment, breach of fiduciary duty) – these may more readily create the opportunity to abruptly terminate for cause and justify it afterwards, if necessary. However, short of these clear, compelling reasons, the lines becomes far more blurry and uncertain, such as for incompetence, failure to perform satisfactorily, disobedience, or other less stark missteps by an employee.

To justify termination for cause in those cases, usually employers must prove proactive steps were taken to effectively manage the poorly performing employee before a finding a dismissal was justified for cause. What must be proved? Typically employers must prove that the employee consistently failed to meet and achieve objective, reasonable performance standards that are known to the employee. Subjective dissatisfaction by an employer is usually insufficient. The Court may also consider mitigating factors relating to the employee’s circumstances or workplace. Essentially, the employer must demonstrate that the employee’s shortcomings were entirely the reason for the termination, after progressive discipline was afforded to the employee, unsuccessfully. It cannot be other factors, or be perceived to potentially be other factors, such as economic downturn or the employer’s unwillingness to offer reasonable accommodation, that is the reason for the employee’s sub-standard performance.

Generally, the Court will require a fairly onerous progressive discipline process before it will allow the employer to terminate successfully for cause for performance-related issues. This usually involves prior warnings and an opportunity for improvement or rehabilitation. Unless the employee’s conduct reaches the high threshold of “gross” incompetence, particularly by endangering the lives of others, generally the employer is judicially expected to, at the very least: warn the employee that his or her job is at risk if performance does not improve within a specified period; and provide reasonable time and support for improvement; and demonstrate that, despite this, the employee’s sub-standard performance persisted.

Employers must also be cognizant of whether an employee’s incompetence may potentially relate to (or arguably relate to) any prohibited grounds of discrimination under Ontario's Human Rights Code. In that case, the duty to accommodate may arise, to the point of undue hardship, making it even more difficult to justify a termination for cause based on poor performance – and more risky to do so.

Employers in Ontario should:

  • Establish a clear policy and/or job description outlining performance standards;  
  • Regularly and consistently apply enterprise-wide performance standards;  
  • Consistently provide feedback to employees and avoid potentially “mixed messaging”;
  • Clearly define the expectations on an ongoing basis (ideally in writing);
  • Document carefully all steps taken to progressively discipline an employee, including by identifying the expectations the employee cannot, or will not, achieve or meet;
  • Warn the employee of the risks associated with poor performance;
  • Provide a reasonable amount of time to rectify the poor performance and comply with the reasonable expectations; and 
  • Be patient and methodical in the process, including by contemplating what must be proved, ultimately, if the employee sues for wrongful termination.
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SPRING TIME SAFETY SERIES - PART 2: DOG BITES - WHAT YOU NEED TO KNOW

The days are getting longer and spring is on the way.  But springtime comes with safety challenges and risk of personal injury.  Part 2 of our Springtime Safety Series focuses on dog attacks and bites.

As the weather improves in spring, more people like to take their dogs outdoors.  And while we picture happy dogs with wagging tails, the reality is that more dogs out in the spring often leads to increased dog bites and attacks, or even being knocked down by an excited dog.

Dog bites and attacks may result in permanent physical and psychological harm, including scarring and risk of infection.  Some dog attacks may even prove fatal.  Here are some interesting statistics:

  • The Humane Society of Canada estimates that someone suffers a dog bite in Canada every 60 seconds. 
  • A study by the Canadian Journal of Emergency Medicine concluded that dog bites account for “more injury-related emergency department visits than injuries associated with playgrounds, all-terrain vehicles, rollerblading or skateboards”.  

The majority of dog bite incidents involve children.

In dog bite cases in Ontario, the law places “strict liability” for a dog’s actions on the owner. According to the Dog Owners’ Liability Act, all damages and injuries are the legal and financial responsibility of the owner.  An owner of a dog may be liable for an attack even if the dog did not previously show a propensity to attack people.

This strict liability also applies to anyone who “harbours” a dog. A person who is not the owner may be found to be harbouring a dog if they are in physical possession and control over a dog just before a bite or attack[1].  For example, family members, friends or even dog sitters or walkers can be seen as harbouring the dog if they were in control of the dog at the time of an attack.

Victims can sue the dog owner(s) for compensation for physical and emotional suffering, housekeeping and home maintenance assistance, medical treatment and rehabilitation, income loss and out-of-pocket expenses.

If the dog owner is a homeowner, most standard home insurance policies include “third party liability” coverage which means that the insurance company will likely respond to a claim if the homeowner’s dog harms someone.

As a dog owner, it is important to understand your home insurance policy coverage. If your dog does harm someone, it is important that you notify your insurance company immediately.

If you are injured by a dog, seek immediate medical attention to ensure you have not contracted any disease. The incident should be reported to your municipal Animal Control Services Department.  It is also important to obtain the name and contact information of the owner and any witness information, as well as take photographs of the injury and of the dog itself. 

So get out there and enjoy your springtime walk.  Just remember that dog owners must be aware of their responsibilities and dog victims should be mindful of their legal rights in the event that such a bite or attack happens to them or a loved one.

________

[1]  Wilk v. Arbour, 2017 ONCA 21

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CAN I BE FIRED FOR CAUSE FOR BEING CHARGED WITH ANY CRIMINAL OFFENCE, OR OTHER OFF-DUTY MISCONDUCT? SHORT ANSWER: NOT LIKELY

There is no dispute in Ontario that employers are permitted to apply reasonable rules and standards on employees in the workplace. They may discipline and fire employees, if appropriate steps by them are taken and there are proper grounds to do so, at law. Employees who break the rules or engage in serious misconduct in the workplace are subject to termination, for cause and without severance pay.

However, employees’ misconduct that takes place off-duty, on personal time or outside of the workplace, is a different issue entirely in Ontario law.

This includes, for example, conduct by an employee on social media, when the employer may feel the employee is acting inappropriately, or when an employee is charged with a criminal offence, such as impaired driving, domestic assault or even a less serious offence, such as theft or mischief.

Ontario Courts have addressed these questions and generally held that criminal charges for off-duty (alleged) misconduct, without more, are insufficient grounds to dismiss the employee for cause and without either notice or pay in lieu of notice.

For example, in a 2016 Ontario case, when the employee sued for wrongful termination as a result, the employer was ordered to pay damages equivalent to ten months’ wages ($42,000), plus costs.

Brief Facts:

The employee, 67, was employed as a general labourer. He worked mostly in southern Ontario.

Early in 2015, he was arrested at work and charged with two counts of sexual assault allegedly against minors. The employer met with the employee the following day and questioned him about this, but the employee refused to discuss the criminal charges and would only say that the alleged events did not occur in the workplace and did not involve any other employees.

The employer asked him to resign, but he would not. However, he agreed to take a two-week leave of absence.

When he came back to work, he was asked to work at a different facility of the employer. A female employee at that other facility then expressed concerns about working closely with the employee. She told the employer that the employee in question was a distant relative and that she in the past had visited with him with her own family. The female employee also alleged that she stopped visiting him because he made inappropriate sexual comments and advances towards her.

As a result, the employer met again with the employee. They brought these concerns by the female employee to his attention directly, including the employer’s concern that this female employee may be involved in the criminal allegations. The employee would only confirm that no other employees were involved in the criminal charges.

The employer, without undertaking any further investigation, internally or otherwise, terminated the employee, for cause, and paid no severance to him. The employee sued for wrongful termination.

The Law:

According to this case, for off-duty conduct to constitute proper cause for termination, there must be a justifiable nexus or connection between the off-duty conduct and the employer or the nature of employment.

The Court also confirmed that the onus is on the employer to demonstrate, on a balance of probabilities, that, for example:

  • the misconduct of the employee injures or harms the employer’s reputation or product;
  • the employee’s behaviour renders the employee unable to perform his or her duties satisfactorily;
  • the employee’s behaviour leads to refusal, reluctance or inability of the other employees to work with him or her;
  • the employee has been guilty of a serious breach of the Criminal Code, which renders his or her conduct injurious to the general reputation of the employer and its employees; and
  • continuing to employ the employee will cause difficulty in the way the employer properly carries out the function of efficiently managing its work and efficiently directing its work force.

Applying these factors based on the evidence, the employer lost on the cause issue and had to pay, including because:

  • it did not, or would not, suffer reputational harm, because the employee was considered a general labourer, not an executive, supervisor, or manager
  • the employee remained capable of performing his duties, as indicated by the fact that the employer re-assigned him to perform his duties at another of its facilities initially
  • No other employees were involved in the criminal charges and, if the female employee was, in fact, hesitant to work closely to the employee at issue, that was for reasons unrelated to the criminal charges and, therefore, the employer had a duty to accommodate both, to the point of undue hardship
  • the employee remained innocent until proved guilty, at law, and should benefit from Ontario’s presumption of innocence before the criminal trial was held
  • the employer’s re-assignment of him, after his initial two-week leave of absence, indicated that the employer’s continued employment of him did not prejudice the employer’s ability to manage its work and workforce

Summary and Lessons:  

This case emphasizes that employers should always, before terminating for cause, conduct fulsome and proper workplace investigations, including when off-duty misconduct is the issue. A proper investigation involves seeking and obtaining any relevant statements and evidence, properly documenting the evidence and the investigatory steps taken and giving the employee in question a reasonable opportunity to respond to the allegations, or so-called ‘due process’. If this is not done prior to termination, the employer clearly faces the risk of cause not being upheld by the Court.

If a proper investigation is done, employers should assess if the off-duty conduct justifies termination for cause, based on the factors set out above, or what other disciplinary step(s) may be more appropriate at the time, as part of progressive discipline.

Employers should always ensure progressive discipline steps are taken, unless the circumstances are severe enough to justify otherwise, and they should always make sure any disciplinary steps taken are reasonable, principled and consistent with the employer’s policies, including any workplace codes of conduct and off-duty workplace policies.

Other options? If there is serious concern, but possibly risk in establishing a cause, the employer could consider terminating the employee due to off-duty misconduct, but not on a ‘for cause’ basis, by providing adequate notice or pay in lieu of notice, subject to ensuring that the discipline taken, including the termination, does not offend the protected grounds enumerated in the Ontario Human Rights Code (or the federal Code, if applicable).

Helpful Case:

Merritt v. Tigercat Industries, 2016 ONSC 1214 (CanLII) 

 

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SAFETY ISSUE AT WORK? WHAT YOU NEED TO KNOW.

Safety at work is a tricky subject for both employers and workers.  As either an worker or an employer, everyone has likely heard the golden rule that ‘workers have a right to refuse unsafe work.’  This is a legal right that workers across Ontario have and it is important to understand how this right under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”) plays out in terms of the responsibilities and obligations of all parties involved.

While easy to understand in concept, one of the primary concerns in the workplace is how do workers effectively raise safety complaints to their employers and what obligations do employers have with respect to it? On a day-to-day level the answer is not so simple, when faced with tight deadlines and busy workloads workers and employers may often treat safety issues as secondary.       

If a worker is faced with an unsafe work situation then they should issue a safety complaint as soon as possible.  This triggers an obligation on the employer to respond to that complaint.  Workers have a right to seek their rights under the OHSA free from reprisal from their employer.  Reprisal can take multiple forms, for instance: being improperly reprimanded,  a worker losing shifts or  in some cases a termination of employment. 

Correspondingly, the employer should respond to safety issues or complaints in a diligent and reasonable manner without reprisal against the worker.  While there is no specifically prescribed form of response for employers under the OHSA, employers are required by law to implement written workplace policies in respect of workplace safety and workplace harassment. 

Employers who have had these obligations triggered should seek to adjudicate these safety concerns in a diligent and efficient manner according to their workplace policies.  Employers seeking to discount, or worse, take action against these complaints will do so at their peril.

This was the case in a recent case at the Ontario Labour Relations Board.  An employee raised complaints with his employer about a particular task assigned to him and subsequently was terminated in the following weeks.  The Labour Board in that case found that the employer had not met their obligations to respond to a complaint under the OHSA and that the termination was a negative consequence connected to the safety complaint made by the employee.  As a result, the Board awarded damages against the Employer for: loss of earnings, value of the job lost, and pain and suffering. 

Cases like these are preventable if all parties in the workplace understand their rights and obligations under the OHSA.

At a fundamental level, every workplace should have safety in mind.  Employees should receive a solid understanding of what workplace policies are in place as well as knowing the designated personnel to speak to when seeking to raise health and safety concerns. Likewise, it is important for employers to have an effective health and safety policy and framework in place to diligently and efficiently process with health and safety issues in the workplace. 

Workplace safety and workplace harassment policies are required by law in Ontario.

The Case:

William Joseph Thorogood v. North 44 Property Management, 2018 ON LRB 82724 (CanLII)

Need an effective workplace health and safety policy? Contact us - let's get started. 

 

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KILLER CREDIT - TIPS FOR DEALING WITH CREDIT AGENCIES REPORTING DEBTS

What if you learn that someone has reported a debt against you that is wrong or is being disputed by you?

Since your credit rating and your ability to secure credit may be significantly compromised, you wish to challenge the reporting but what is the recourse.

Collection agencies in Ontario are governed by the Collections Agencies Act and the Consumer Reporting Act. Both statutes govern the conduct of a collection agency and set out a list of prohibited practices and methods for the collection of the debt.

Can a breach of these statutes give rise to an action against the collection agency for damages? In the case of Haskett v. Equifax Canada Inc. in 2003, the Court of Appeal permitted a civil action to proceed against a collection agency for “improperly and illegally including information” in the proposed Plaintiff’s credit report which they were not entitled to report, and which was inaccurate. While this action did not proceed to trial, a number of cases since then have awarded damages for breach of a statutory duty owed by the collection agency to the consumer about whom it reports.

A credit agency is entitled under the Consumer Reporting Act to distribute a credit report concerning your financial dealings as reported to it. The collection agency does not create the credit information but relies on its members to provide accurate information. The duty imposed on the agency is not to guarantee the accuracy of the information but rather to set up reasonable procedures to investigate disputes.

In order to satisfy its duty of care with respect to the receipt of a complaint from the consumer as to its accuracy this agency must within a reasonable period of time:

  1. Ensure that the date in the database came from an approved member who has been appropriately screened;
  2. Ensure that there are no obvious errors on the face of the information in the data base;
  3. Contact the member for verification of the accuracy of the data;
  4. Accurately and specifically describe the problem raised by the consumer to the member;
  5. Insist upon prompt and complete reply from the member.

In the case of Spencer v. Equifax Canada Inc. the Court did not find on the evidence any breach of duty when it accepted the evidence for reporting or in its subsequent duty to investigate upon hearing the complaint of the consumer.

However, it was pointed out in the evidence that Equifax had adapted a policy of offering to the complainant the opportunity to provide a consumer statement of his own in which he could dispute or explain the basis on which he disputed the claim. Thereafter any credit report distributed by Equifax would have attached to it this dispute/explanation. A consumer should therefore insist on the inclusion of a dispute statement in these circumstances.

While not a complete resolution, failure to avail yourself of this alternative would be considered a failure to mitigate one’s damages in cases where a breach of duty did lead to damages.

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SPRING TIME SAFETY SERIES - PART I: MOTORCYCLES

SPRINGTIME SAFETY SERIES, PART 1: Motorcycles

The days are getting longer and spring is on the way.  But springtime comes with safety challenges and risk of personal injury.  Part 1 of our Springtime Safety Series focuses on motorcycle accidents.

Springtime is a great time for getting out the motorcycle for a road trip.  However, because of increased motorist, pedestrian and other traffic, there may be increased risks.  Also, changing weather in spring (including freeze and thaw conditions) can cause slippery patches on the roadways, causing dangerous driving conditions.

Because of the vulnerability of being in an open and unprotected vehicle such as a motorcycle, the risk of serious injury in a crash increases.  Injuries include spinal and muscle damage, road rash, traumatic brain injury and even death.

A recent study suggests that motorcycles account for 10 per cent of all motor vehicle deaths in Ontario and cost the health care system six times the amount of car crashes.  Researchers showed that while car safety has improved with rates of severe injuries and deaths from car crashes decreasing significantly over the last 10 years, injuries from motorcycle crashes have remained stable or even worsened[1].

In Ontario, it is mandatory to have motorcycle insurance for any motorcycle you ride on the roadway.  Mandatory motorcycle insurance includes Third Party Liability, which protects you from being held personally liable for damage you might cause to other persons and/or their property. The legal minimum coverage of $200,000 is not adequate protection.  Most people have policies with at least $1 million.  But increasing your third party liability limits up to $2 million or more (for only a nominal premium increase) is a great idea.   Because injuries in a motorcycle accident are often serious, if another insured driver causes serious injury to you or a family member and they only have $1 million in liability insurance, you can access additional coverage from your own insurance company (up to your own liability limits) in order to be fully compensated for all your injuries and losses. Also, having higher liability limits will further protect you from personal liability.

Insurance coverage also includes Accident Benefits which compensate you for medical expenses, rehabilitation, funeral expenses and loss of income following a collision.  Accident benefits coverage was drastically reduced as of June 1, 2016.  Once again, given the added risk of injury in motorcycle accidents, it is advisable to choose to increase your level of accident benefits coverage in important areas.

If you have been in a motorcycle accident, you also have the right to sue a negligent driver.  You may have the right to compensation for pain and suffering if you suffered a “permanent serious impairment of an important physical, mental or psychological function,” according to the Insurance Act. This lawsuit would be in addition to your entitlement to Accident Benefits and may also seek compensation for healthcare expenses, income loss and other losses.

Before you hit the road again this spring on your motorcycle, talk to your insurance providers about increasing your Accident Benefits and liability coverage and make sure you understand what your coverage includes.

Also, protect yourself from springtime motorcycle risks by using appropriate safety gear and being aware of wet and slippery road conditions. Wear proper attire in changing weather to keep you warm, to prevent limbs stiffening and to allow you to react better in unexpected situations.  Be aware of increased roadway and pedestrian traffic.

Safety precautions and proper insurance are an essential part of ensuring that you and your family are entitled to care and compensation in the event of a motorcycle collision.

_____________________

[1] “Direct medical costs of motorcycle crashes in Ontario” published in CMAJ, November 20, 2017, by Daniel Pincus, David Wasserstein, Avery B. Nathens, Yu Qing Bai, Donald A. Redelmeier and Walter P. Wodchis; http://www.cmaj.ca/content/189/46/E1410

 

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DOES YOUR CHILD'S VOICE MATTER IN YOUR FAMILY LAW DISPUTE?

Decisions regarding custody and access have an immense impact on the best interests of the child. In order to ensure that the best interests of the child are met, there are three commonly employed methods of incorporating a child’s views and preferences into the judicial process. Representation of the child by a lawyer is perhaps the most prevalent method, followed by expert reports, and meetings between a judge and child. Judicial interviewing has historically been a controversial method for determining a child’s views, and the effectiveness of this approach has been criticized. There are two common views - one proposing that children must be protected from familial conflict and choosing sides, the other suggesting that the views of children should be encouraged as often as possible.

In Ontario, the Childrens Law Reform Act (CLRA) governs judicial interviewing of children and states that the court shall take the views and preferences of the child into consideration wherever possible.  Section 64(2) of the CLRA further provides that “The Court may interview the child to determine the views and preferences of the child”. Unfortunately, this provides very little guidance in regards to how and when judicial interviewing should be conducted. Across Canada, most jurisdictions have left the option of a judicial meeting to the judge’s discretion.

While the current legislation permits any judge the opportunity to interview a child, judges in Ontario rarely meet with children. The most commonly cited reason for this is that meeting and interviewing children requires a unique skill set, which includes both specific training as well as an understanding of the way in which children speak.  Additionally, the court has consistently upheld that judges must not collect evidence, and accordingly, judges must not base their decision solely based on the views expressed by a child. Judges are ultimately bound by legislation, and must be careful to consider what is in the best interests of the child, not simply what the child expresses. These competing interests were discussed in the 1965 case Hodge v Hodge (1965 7 FLR 94):

One of the reasons given in that case for not seeing the child was that the court has to consider the welfare rather than the mere desires of the child. That is true, but with the greatest respect to what their Lordships said, one of the factors that has to be considered, although in many cases it may not be a dominant or even an important factor, is what the child wants. That is something that has to be considered in deciding what is best for the child. Secondly, the Court of Appeal referred to the fact that a child which has been in the custody of one present may very naturally express wishes that strongly favour that parent. That may be so, but that, I should have thought, is something that any judge might be expected to discount and take into consideration, and of course if the contrary were the case, that is, if the child expressed a view that was not expected, that might be something that the court might regard as significant. I feel that perhaps I will not gain a great deal from seeing the child in this case, but nevertheless I think it is a proper exercise of my discretion to see her.

Several judges have utilized judicial interviews in more recent years (refer to Coda v Coda 1997 CarswellOnt 3953; PLM v LJ, 2008 CanLII 35923; McAlister v Jenkins, 2008 CarswellOnt 4266). However, Ontario judges frequently defer to utilizing the appointment of the Office of the Children’s Lawyer or the use of an expert report to bring a child’s views into the court process, perhaps due to the view that this creates a more balanced picture of what is in the child’s best interests.

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23ANDME? GENETIC DISCRIMINATION - NEW PROTECTION FOR ONTARIO'S EMPLOYEES

Protection to employees in Ontario from “genetic discrimination” by employers has officially arrived.   

An increasing number of businesses offer individual genetic testing, which may, among other things, disclose a medical diagnosis or condition, that a person may have, or carry, a genetic mutation or irregularity or that a person may be at higher-than-normal risk for contracting a disease or other potentially disabling condition.

Of course, the concern is that information of this nature, if accessible by an employer, may cause, or contribute to, potential discrimination against a job candidate, or existing employee.  For example, could a person be passed over for an employment opportunity based on the employer knowing any of this information? Could an existing employee not be considered for promotion or advancement when, but for the employer knowing information of this nature, that might not have been the case?

The Ontario government is now taking steps to legislatively prohibit Ontario employers from discriminating against employees based on their genetic traits and characteristics. At the federal level, both the Canadian Human Rights Act and the Canada Labour Code have already been amended to prohibit, or minimize, this form of discrimination. Under the Canada Labour Code, for example, an employer cannot force an employee to take a genetic test, or disclose the result of any genetic-related testing. In Ontario, the prohibition is being developed to the Ontario Human Rights Code, which aims to be revised to add genetic characteristics as a further, prohibited ground of discrimination. With very limited exception, the proposed amendments will also expand every person’s right to equal treatment without discrimination in, for example, employment, including regarding that person’s genetic characteristics, being defined as the "genetic traits of an individual, including traits that may cause or increase the risk to develop a disorder or disease".

In the near future, it appears very likely that employees will be expressly and statutorily protected from discrimination by employers on the basis of “genetic characteristics”, including from being forced to undertake any form of genetic testing, or disclose the results of any such testing. 

Reference:

Bill 40, Human Rights Code Amendment Act (Genetic Characteristics), 2018

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BEING RECORDED IN A PUBLIC PLACE - WHAT ARE MY PRIVACY RIGHTS?

Increasingly businesses (and employers) and public organizations deploy and use ever-improving surveillance technology, including workplace audio and video recording.  Ontario law has remained vigilant and watchful, attempting to balance legitimately-held privacy expectations for everyone against unreasonably invasive privacy intrusion, particularly to foster security, safety and legitimate business or public interests.  

In an important, recent case, a teacher was accused of using a concealed camera to surreptitiously videotape female high school students engaging in “ordinary school-related activities in common areas” of the school. However, the evidence revealed the teacher was recording sexually-based images, without audio recording. The school had posted signs notifying of the use of security cameras throughout the school. The school also had a policy prohibiting its teachers from making videos of students, or otherwise tampering with the school’s surveillance cameras. The teacher was charged with voyeurism under Canada’s Criminal Code, a sexually-related offence.

The Supreme Court declared that privacy, particularly in a public or semi-private place, is not an all-or-nothing proposition in Canada. There can be no absolute expectation of privacy for anyone, at least not in a public, or semi-private, place. The specific circumstances must be considered, which determine what reasonable expectation of privacy should be legally protected in a contextualized approach. 

A person can reasonably expect privacy in a public, or semi-public, place, particularly protection from sexually-driven surveillance, but the specific expectation that will be legally protected must be determined by many factors, such as:

  • the nature of the place and its location;
  • the scope and nature of the conduct by the other party, such as observation or recording;
  • whether the person subject to the conduct had consented to being so observed or recorded, at was even was aware of it;
  • the manner in which the observation or recording was undertaken;
  • the subject matter or content of the observation or recording;
  • any applicable rules, policies or regulations that may prohibit or restrict that conduct;
  • the nature of the relationship, if any, between the person being observed or recorded and the person engaging in the observation or recording;
  • the reason for the observation or recording; and
  • the characteristics of the person being observed or recorded, particularly if the person is a child, youth or a vulnerable person.

The teacher's conviction was upheld by Canada's highest Court. The Court concluded that the young, female students at the school had not consented to being recorded in such manner, or even been aware of him doing so. The teacher held a trust relationship with the students, which he violated, when he knew he was not allowed to make these video recordings of the students, particularly when it was sexually-driven. The female students’ privacy had been violated in the circumstances.

However, the female students, in the circumstances, could not reasonably have expected to be protected absolutely from such misconduct by their teacher. Rather, the Court engaged in a contextual, multi-factored analysis. Accordingly, no one can expect absolute protection, at least not by the criminal law, from being observed or recorded in public, even if it may be sexual in nature. Ultimately, the Supreme Court enshrined a case-by-case analysis, which may, or may not, offer the protection of, at least, Canada's criminal law.

Businesses, particularly employers, and other organizations need to have a clear policy prohibiting surreptitious observation and recording in their places of business, absent consent.  They can also be held vicariously liable for improper, unwanted surveillance being conducted in their place of business, including public areas. 

In addition to potential criminal charges for those who unlawfully observe or record others, including in public spaces, the offender could potentially be held liable civilly in Ontario, particularly for damages for breaching the tort of “intrusion upon seclusion”, or for violating other privacy law.

However, the Supreme Court’s decision in this case has clarified and shaped the law on a person’s reasonable expectation of privacy, particularly if that person is observed or recording in a public, or semi-private, place. 

Ontario Courts and privacy regulators will also continue to review surveillance technology to ensure it is legitimately, justifiably and properly deployed and utilized, minimizing unreasonably invasive infringement on privacy expectation. Surveillance cannot, of course, be prohibited - it benefits the public, if utilized appropriately and legally. However, whether surveillance exceeds the legal boundary by offending an individual’s reasonable expectation of privacy will depend on the specific circumstances and various factors, which will themselves continue to develop as ever-evolving surveillance technology continues to proliferate.

As technology becomes more subtle, sophisticated, accessible and ubiquitous, everyone must remain mindful that their privacy is not absolute and may be subject to observation, or even recording, particularly in public places. Privacy is not an “all-or-nothing” right. Intrusion upon your seclusion should not be viewed as an inevitably necessary part of your rapidly-changing modern life; rather, the law imposes limits which, if offended, may expose the offender to both criminal and civil liability. Privacy is not a lost expectation in our contemporary world, as skeptics contend, but only an evolving one, judiciously straining to keep pace with constantly changing and increasingly innovative technology.   

The Case:

R. v. Jarvis, 2019 SCC 10 (CanLII)

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WORKPLACE POLICIES - DON'T OPERATE WITHOUT THEM. WE'VE GOT YOU COVERED - AT A FIXED COST.

Employers:

Effective workplace policies are essential for both small and large businesses and organizations.  

WARDS LAWYERSPC offers employers a turn-key, comprehensive employment and HR management package, including a comprehensive suite of workplace policies (your “HR Package”), simplifying and minimizing your obligations while maximizing your time to focus on growing and developing your business or organization.

Really, it’s that simple. We give you everything you need, in a customized, organized package. You only need to follow the simple instructions. Compliance with Ontario’s employment law and a better workplace is only a meeting away. 

THE BENEFIT:

Among others, the benefits of having your comprehensive, properly-structured and customized HR Package include:

  • minimizing workplace-related disputes with your employees – your HR Package will bring certainty and govern;
  • fewer employment management tasks and more time to focus on the growth and development of your business or organization; 
  • more effective, efficient and optimized management of your employees;
  • enhancing employee morale and perceptions of your business or organization in your community;
  • compliance with the complicated, hard-to-follow myriad of law applicable to your employees and your workplace, including in the event of an inspection by a Ministry of Labour Enforcement Standards Officer;  
  • setting and establishing your employees’ expectations, including to minimize wasted managerial time dealing with matters that are addressed directly by your HR Package;  
  • better protecting your organization or business from manipulation by employees;
  • better protecting your organization or business from litigation claims and complaints to regulatory agencies, including because the Court now expects workplace policies to be established in the workplace and, if they are not, it often effects the outcome of a litigation dispute (often negatively for the employer);
  • ensuring that you avoid regulatory sanction for not having proper workplace policies in effect (i.e., spot audits by, or investigations by, the Ontario Ministry of Labour, for example); and 
  • giving you piece of mind that you are not only legally compliant with your employment obligations, but pro-actively organized and maximizing your effective management for the benefit of everyone in your workplace.

STEPS REQUIRED:

Simple:

  1. meet with us, so we can audit and evaluate your current practices and needs and obtain the information we may need to design, build and deliver your customized HR Package (which is included in your fixed cost for your HR Package);
  2. agree on a fixed cost for your HR Package, depending on your needs; and
  3. give us a brief period to deliver your HR Package to you, both digitally and in paper format.

WORKPLACE POLICIES IN YOUR HR PACKAGE:

Your HR Package will include a comprehensive suite of workplace policies, designed to optimize your workplace and employment management, including:

  1. a violence, harassment and sexual harassment prevention policy (required by law), including an annual compliance checklist, complaints procedure process and employee feedback system;
  2. a health and safety policy (required by law)
  3. a discrimination and diversity policy
  4. a personal information protection policy
  5. an accommodation on the basis of disability policy (required by law)
  6. an Accessibility for Ontarians with Disabilities Act, 2005, (the “AODA”) – Customer Service and Standards policy (required by law)
  7. an AODA – Employment Standards policy (required by law)
  8. an AODA – Integrated Accessibility and Information and Communications Standards policy (required by law)
  9. a personal communications in the workplace policy
  10. a social medial policy
  11. a smoking and vaping policy
  12. a cannabis in the workplace policy (including for the use of medical cannabis)
  13. a computer, email and Internet use policy
  14. an absenteeism policy
  15. a conflict of interest policy
  16. a mental health first aid officer policy and workplace wellness program
  17. a conduct and behaviour policy
  18. a holiday policy
  19. an overtime policy
  20. a vacation and vacation pay policy
  21. an employment expense reimbursement policy
  22. a joint health and safety committee policy (for employers with twenty or more employees)
  23. a privacy breach protocol and policy (required by law)
  24. an administrative leaves and suspensions policy  
  25. an employer references policy
  26. a deemed legal compliance policy
  27. a police records check policy (per the new legislation, effective November 1, 2018)  

Your HR Package will assist you to establish effective policies to not only comply with, but exceed your obligations under, the AODA, and to improve your protection against claims by employees under human rights legislation, like the (Ontario) Human Rights Code (the “Code”), such as the right to a harassment-free workplace, gender and other discrimination-based complaints and workplace equality.

ADDITIONAL TOOLS IN YOUR HR PACKAGE:

Beyond your suite of workplace policies, your HR Package will include additional tools to help you successfully implement and enforce your policies, such as:

  • a corporate resolution by your organization or business to adopt and implement your HR Package, to ensure you lawfully and effectively do so
  • acknowledgements to be signed by your employees for their acceptance of your workplace policies and agreement to comply with them
  • workplace harassment complaint and investigation forms, so if a complaint is made, you have everything you need on hand ensuring a timely and proper response by you to any complaint
  • risk assessment forms and checklists for your workplace, to audit, assess and address your risk factors

CONFIDENTIALITY, PROPERTY AND TECHNOLOGY PROTECTION:

Your HR Package will also include a comprehensive confidentiality and proprietary property agreement for all your existing and new employees to sign, including to protect your business’s or organization’s information, property, technology and operating methods.

USING EMPLOYEES’ INFORMATION TO PROMOTE AND MARKET:

Your HR Package will also include a special form to be signed by your employees enabling you to use their image and likeness to successfully promote and market your business or organization, including protection for your third-party marketing partners and contractors.

MANDATORY WORKPLACE POSTINGS AND NOTICES:

Your HR package will also contain a table, entitled: “Important (Mandatory) Postings and Notices in Your Workplace”, which identifies important and legally required posters, postings and other notices you should promptly post in your workplace.

Often, if you experience a spot audit or investigation by a regulatory authority, such as an Employment Standards Officer from the Ministry of Labour or, if an incident or accident occurs, the regulatory authority will initially investigate if you have your mandatory postings. It is, therefore, very important you have at least the mandatory postings in your workplace.

These required postings primarily relate to Ontario’s law regarding occupational health and safety, employment standards, workplace safety and insurance, accessibility for those with disabilities, smoke-and-vape-free workplaces and pay equity, if necessary. Specifically, these postings are required by, and will ensure you comply with, Ontario’s posting requirements under the:

-       Employment Standards Act, 2000, S.O. 2000, c. 41;

-       Occupational Health and Safety Act, R.S.O. 1990, c. O.1; 

-       Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched A; 

-       Smoke-Free Ontario Act, 2017, S.O. 2017, c. 26, Sched. 3;

-       Workplace Hazardous Materials Information System (Canada);

  • Labour Relations Act, 1995, S.O 1995, c.1, Shed. A, as amended; and

-       other legislation and regulations that may apply to your workplace.  

In addition, we provide you a link at which you can access these posters, postings and other notices directly online, free of charge to you.

Finally, we identify how you should assess your compliance with both the:

-       Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c. 11; and

-       the Pay Equity Act, R.S.O. 1990, c. P. 7,  

including providing you links to the online references you will need to do so. 

HIRING AND RECRUITING GUIDANCE:

Your HR package will also contain “The Hiring Process – Do’s and Don’ts”, which will offer you assistance, direction and guidance with respect to your hiring and recruiting practices in future, particularly when you conduct interviews with potential new employees.

PRE-TERMINATION CHECKLIST:

Your HR package will also contain a “Pre-Termination Checklist”, which will offer you assistance, direction and guidance with respect to your decision-making about terminating any employee in future, including identifying for you the issues you may need to address and your potential obligations arising from the termination.

CHECKLIST – THE TERMINATION MEETING:

We will also provide to you a “Checklist – The Termination Meeting”, which will assist you for planning and preparing for a meeting to terminate an employee and help you identify issues you may need to address and your potential obligations arising from the termination.

STEP-BY-STEP PLAN:

We will provide to you a detailed, step-by-step plan and procedure for your implementation of your HR Package, particularly your new suite of comprehensive workplace policies, including specific language for your written communications with your employees for this process, ensuring that they must comply with your new policies.

AODA AND HUMAN RIGHTS CODE TRAINING AND EDUCATION:

We will also provide you, as part of your HR Package, information, guidance and tips to arrange for training and educating your employees under both the AODA and the Code, particularly regarding accommodation and discrimination.

There are excellent, efficient and free-of-charge services available to you to do so, including computer modules to minimize disruption to work time. This should be undertaken to improve your workplace, perception of your business or organization and to minimize potential exposure if any claims were made in future.

WORKPLACE HEALTH AND SAFETY TRAINING:

In addition to the AODA and Code education and training, your HR Package will also include information and tips to assist you to train and educate your employees about workplace health and safety. There are excellent module-based, desktop training and education programs available, which are very accessible, free-of-charge.

NO SMOKING AND VAPING SIGNS:

As required by Ontario law and to accompany your new smoking, vaping and cannabis policies, your HR Package will guide and assist you to access and obtain the mandatory signs you must post in the workplace, free of charge.  

DELIVERY OF YOUR HR PACKAGE:

We will deliver to you both:

  • a compact, highly organized digital version of your HR Package, including your suite of workplace policies, which you would retain digitally and be able to share with your employees; and
  • a hard copy of your HR Package, some of which, including your suite of workplace policies, you would make available in your workplace, including for employees to view and reference in future.

FIXED COST:

Your HR Package is available for a pre-arranged, fixed cost. No hourly rate, no surprises. We would discuss the fixed cost with you after we initially audit and evaluate your workplace’s existing compliance and employment-related needs. The expense for your HR Package is very reasonable, when you consider the potential alternative – very high legal expenses and exposure to liability arising from employee-related claims arising due to a failure to comply with the law.

TIMING:

Following our initial meeting with you, usually we need between three-to-five weeks to prepare and deliver your HR Package to you.

ONGOING SUPPORT:

WARDS LAWYERSPC focusses on employment law – we are a leader in this area of law in Central Ontario.

We are available to assist you not only with using your HR Package in future, but any employment-based needs or services you may need. We will discuss and work with you to design and deliver to you an ongoing employment support service, based on our hourly rates and the appropriate lawyers available to assist you, depending on your needs.  

NEXT STEP:

Smart, progressive employers in Ontario are establishing and implementing proper workplace policies. You should, too.

Let’s get started. 

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TERMINATING OLDER, LONG-SERVICE EMPLOYEES - EMPLOYERS ARE NOW BEING PUNISHED BY THE COURTS FOR "FORCED RETIREMENT" TERMINATIONS

There is an emerging trend in Ontario employment law – Courts are giving increasingly more reasonable notice, or pay in lieu, to advanced age, longer-service employees.

If an employment contract does not contain an enforceable termination provision limiting the terminated employee’s notice to the statutory minimums set out by the Employment Standards Act, 2000, the employee dismissed without cause will be entitled to “reasonable notice” of termination at common law. Historically, the limit for reasonable notice given by Ontario Courts has been twenty-four months – that is now changing, particularly for older, longer-service employees.

In a recent case, a 62-year-old senior VP, who had worked for the employer for 37 years, was granted 30 months’ reasonable notice, but the Court noted it would have awarded even more, if that had been requested by the employee. The Court noted “a change in society’s attitude regarding retirement” and that “presumptive standards no longer apply”, including because many people now work beyond the age of 65.

In another recent case, the Court granted 24 months’ notice to a 60-year-old office manager, who had been employed for 12 years before being summarily terminated. In doing so, the Court noted the employee’s age (close to retirement), loyalty and dedication during his employ, and his lack of formal education and training to utilize to find alternative, comparable employment.

As a result, “forced retirement” terminations by employers are both on the rise and increasingly challenged by the Court, so much so that very significant damage awards are trending upwards.

The Cases:

Dawe v. Equitable Life Insurance Company, 2018 ONSC 3130 (CanLII)

Saikaly v. Akman Construction Ltd., 2019 ONSC 799 (CanLII)

 

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TERMINATING AN EMPLOYEE? BE CAREFUL. HERE'S A PRE-TERMINATION CHECKLIST

Terminating an employment relationship should not be decided without planning and consideration of potential obligations (and liability).

Liability for reasonable notice, or pay in lieu of notice, must be considered. 

Before you decide to terminate an employee, below is a checklist that will be helpful to review before a decision to terminate is made.

This checklist will also help identify what potential obligations may be owing by you to the terminated employee.   

1.  Review the employee's letter of employment or employment agreement. Is there an enforceable clause for minimum notice under the Employment Standards Act, 2000? Is there a valid “for cause” termination clause?

2.   Review the circumstances of the employee's hire. Was the employee recruited?

3.   Review significant changes in relation to the employee's position, role, salary, location, or other material terms of employment to determine if the substratum of the employment relationship has been amended or varied materially and, therefore, whether the employment agreement potentially no longer reflects current terms.

4.   Determine the termination date and calculate, if possible, what is owing to the employee for all accrued remuneration to that date, including salary, vacation pay, commission, incentives and bonus, if any.

5.   Is the termination for “just cause” due to misconduct? If so, is there adequate documentary records of past issues and warnings? Have the relevant individuals been interviewed, and is there a record of those interviews? Has the individual been given an opportunity to respond and answer to any issues and allegations? Is the higher standard of “wilful misconduct” under the Employment Standards Act, 2000 triggered?

6.   Compile all relevant codes of conduct or policies applicable to the termination and ensure that you have complied with your own policies. In addition, where applicable, ensure that you have evidence that the employee was aware of the policies.

7.   If the termination is for performance reasons, is there enough documentation to establish: (a) lack of performance; (b) progressive warnings related to failure or refusal to maintain performance at reasonable and objective standards; and (c) the consequences of failing to do so?

8.   Are there related medical or disability issues that need to be considered and accommodated?

9.   Are there other human rights or statutorily-protected employment rights that need to be addressed (for example, return to work following maternity, parental, WSIB or emergency leaves)?

10. If the termination is not for just cause, what is the period of notice of termination required by agreement, by statute or implied by common law?

11. Will the notice period be worked by the employee in whole or part? If payment is to be made in lieu of notice of termination, will remuneration be continued or paid out? Calculate the statutory termination and severance pay, if applicable. Calculate the offered common law notice pay in lieu (or salary continuance), if any. Verify if the employee has any accrued, but unpaid, vacation pay up to the proposed date of termination, including pro-rated. 

12. Consider any statutory and contractual obligation(s) to continue benefits during notice periods and any conditions or exceptions to such obligations.

13. Will the termination offer be made subject to mitigation or not subject to mitigation by the departing employee?

14. Review the target employee’s specific compensation terms and entitlements in the twelve weeks prior to the proposed termination date, at least. Are there any specific requirements related to pensions, RRSPs, LTIPs, stock options, etc.?

15. Are there any outstanding loans or advances to the employee?

16. Are there company supplies, documents, confidential information, computers, keys, FOBs, credit cards, automobiles, equipment or other property to be returned by employee?

17. Are there employee obligations post-termination, including solicitation of customers or non-competition?

18. Are there client or competitor lists that need to be identified with reference to non-competition provisions?

19. Determine appropriate timing for the meeting to provide notice of termination. Consider who should attend at that meeting. Is any security necessary?

20. Consider issues relating to employment references and/or providing a confirmation of employment letter. Who will be responsible for post-termination employment references?

21. Did the employee sign a confidentiality agreement and, if so, should that be confirmed, including any specific duty or reference to any specific confidential information?

Careful review and planning must be undertaken before any employee is terminated. Alternatively, a costly mistake may be made. 

_________________________________

This is summary only, intended to be for your general information only.

We strongly recommend that you contact us, or other qualified, employment law counsel, for specific advice that may apply to, or be helpful for, any:

  • termination of any employee, with or without cause;
  • suspension of any employee, with or without pay; 
  • workplace harassment/sexual harassment complaint; and 
  • workplace investigation of any kind,

before you initiate or take any steps, including to avoid a potentially costly misstep. 

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DO YOU KNOW ABOUT THE "THREE-HOUR RULE" AT WORK? YOU SHOULD.

Ontario’s Employment Standards Act, 2000, SO 2000, c. 41, governs most employees’ basic, statutory rights and entitlements for employment.

Part VII.1 (section 21.2) contains the so-called “three-hour rule”.

Pursuant to the three-hour rule, subject to a few exceptions, if you regularly work more than three hours in your work day, but on any given day you are required to attend work, but not given the opportunity to work at least three hours, despite that you are available to do so, you are entitled to be paid your wages for three hours of work, even though you were not permitted to work that minimum time.

Usually you will be entitled to your regular wages for this top-up under the rule. 

However, the rule may not be triggered if your employer cannot offer you work on that day for this minimum period due to circumstances beyond your employer’s reasonable control, such as lightning, power failure, fire, storms and other types of circumstances legitimately preventing your employer from employing you that day for this minimum period of time. 

Similarly, you may not be protected by the three-hour rule if you ordinarily work a regular shift of three hours or less, or if you are employed as a student in certain positions, like a children’s camp, a program focused on children or in a charity-based position. 

So, if you show up for work, but are told you can only work one or two hours, when you ordinarily work more in your usual work day, you might consider invoking the three-hour rule for a top-up.  

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BACKGROUND CHECKS ON EMPLOYEES - IT AIN'T SO EASY ANYMORE - THE NEW DEAL

Background checks of potential employees and volunteers has always been an important recruiting and screening tool for potential employers.

Ontario has overhauled its legislation, effective November 1, 2018. Now, the Ontario government has applied uniform, standardized checks available and the information that can be obtained. No more discretionary decisions by the local police service. Everybody now follows the same rules.

Firstly, now an employer can only request a potential employee to provide a “police record check” if the employee consents. If that consent is given, the information may only be disclosed initially by the police service to the potential employee whose background is searched. Only if the employee consents, after receiving and reviewing the results, may the police service give the information to a third party, such as a potential employer.

Accordingly, hiring employers can no longer obtain the background search results directly from the police service, even if the potential employee consents.

If, for example, an employer offer contains a condition for a background check, the employee candidate must: (a) consent; and (b) obtain and review the check results directly and, after doing so, deliver those directly to the employer. 

Secondly, there are now three, specific kinds of checks available:

[1]        Criminal Record Check:

The basic one, giving the least amount of information; namely: 

  • criminal convictions that have not been pardoned; and

  • findings of guilt under the federal Youth Criminal Justice Act, but these records may only disclosed entirely separately and cannot be disclosed to a potential employer, unless expressly permitted by the Youth Criminal Justice Act (which is very restrictive and does not help most employers in Ontario).

 

[2]        Criminal Record and Judicial Matters Check:

This check gives the information available from a criminal record check, but also access to:

  • criminal convictions, where an absolute discharge was granted, if the request is made less than one year after the absolute discharge;

  • criminal convictions, where a conditional discharge was granted on conditions in a probation order (if the request is made less than three years after the conditional discharge);

  • every outstanding charge or arrest warrant for a criminal offence; and

  • every court order made against the individual, with certain exceptions.

This check is the most common for employers to request when hiring a new employee. 

[3]        Vulnerable Sector Check:

The most robust yield of information, but the most restricted check. It can only be requested, effectively, for people with access to vulnerable persons, being anyone whose age, disability or other circumstances makes them dependent on others, or at a greater risk of being harmed by a person in a position of trust or authority.

The additional information from this check includes:

  • every criminal conviction, where a finding of not criminally responsible on account of mental disorder was made (if the request is made less than five years after the date of the finding or absolute discharge); and

  • any non-conviction information authorised for exceptional disclosure in accordance with the act – a very high test.

For exception disclosure, it only applies to offences:

  • are defined by the specified offences regulation;

  • for which the alleged victim was a child or vulnerable person; and

  • when the police record check provider has reasonable grounds to believe that the person subject to the check has been engaged in a pattern of predation indicating that the person presents a risk of harm to a child or a vulnerable person, based on:

  • whether the person appears to have targeted a child or a vulnerable person;

  • whether the person’s behaviour was repeated and was directed to more than one child or vulnerable person;

  • when the incident or behaviour occurred;

  • the number of incidents; and

  • the reason the incident or behaviour did not lead to a conviction.

Legislation:

Police Record Checks Reform Act, 2015, SO 2015, c. 30 (effective Nov. 1, 2018).

Need an effective workplace policy for background checks and procedures?

Call me. Let’s get started.

 

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DON'T USE AN ONLINE APP TO CALCULATE YOUR SEVERANCE PAY - YOU MAY BE LEAVING MONEY ON THE TABLE

In Ontario, a wrongfully dismissed employee with no employment contract specifying severance entitlement is entitled to damages at common law. These damages are commonly calculated based on a reasonable notice period and pay in lieu of not being provided that reasonable notice of termination. Dismissed employees also have a duty to make reasonable efforts to seek and obtain similar employment to offset these damages (i.e., a duty to mitigate).

The seminal case in Ontario, Bardal v. The Globe & Mail Ltd., establishes the basic test to determine an appropriate notice period for an employee who has been terminated without cause.  The Bardal test effectively requires the Court to undertake a very contextual analysis of the case, with special attention to certain factors, including the character of employment, length of service, age and availability of similar positions. These factors are generally examined on a case-by-case basis and they are weighted in each, specific case by the Court to calculate a reasonable notice period. Employers may also be forced to pay more damages if the manner of dismissal was unfair or in bad faith.

Many employers, employees and even some lawyers are confused by, or do not fully understand, the factors that are to be applied to determine a reasonable notice period and, therefore, how to calculate a dismissed employee’s potential severance pay. 

Some lawyers may refer to the ‘one month per year of service’ approach – this is incorrect and not the law in Ontario. In fact, there is no cookie-cutter, mathematical formula to calculate severance pay; rather, these several factors must be examined contextually in each case and weighted based on their importance in the specific case.

DURATION OF EMPLOYMENT:

Length of service is only one factor to consider. While generally, the longer the length of service, the longer the reasonable notice period will be, this is not true in every case. Employees terminated after a relatively short period of employment may be entitled to a comparably longer notice period and, therefore, disproportionately more severance pay, depending on the other factors in the case. 

Duration of employment, on its own, should not determine severance pay entitlement – it is a factor only, albeit a potentially important one in the case.

AGE:

Generally speaking, older employees are entitled to more reasonable notice and, as a result, more severance pay. This is so to reflect the increased challenges older employees are likely to face in re-entering the workforce verses their younger counterparts.

However, again, age is not determinative of reasonable notice and younger employees should not assume they have no entitlement to severance pay – that is very likely not the case.

NATURE AND TYPE OF POSITION HELD:

Historically senior, managerial, supervisory or employees with specialized skills, training or responsibilities are likely entitled to more reasonable notice. However, a trend is emerging in Ontario to focus less on the position held on termination in favour of paying more attention to the availability of comparable opportunity to the employee and any challenges the employee may face in securing that alternative employment.

In any event, it is still the case in Ontario that an employee with more responsibility is generally entitled to more severance pay – it remains an important factor to consider. 

OTHER FACTORS:

In addition to the Bardal factors for calculating severance pay, other factors may also arise to amplify reasonable notice entitlement depending on the specific case, such as:

  • if the employee was effectively lured away from an existing position, recruited or induced to accept employment with the terminating employer;

  • if the employee is faced with non-competition, non-solicitation or other limitations or restrictions on his or her ability to find suitable, alternative employment (which typically arise in an employment contract);

  • if the employee suffers from a physical, emotional or mental health-related disability or condition, or has special family status obligations, for example, creating special challenges for the employee to mitigate his or her termination and resulting severance pay; and/or

  • if the employer alleges cause for the termination, refuses to provide a reference, or otherwise alleges justification for terminating the employee, making it more difficult for the employee to find alternative employment.

THERE’S NO APP FOR THAT:

Severance pay tools, apps and calculators are increasingly appearing online, sometimes by providers located outside of Ontario.  

However, there is no specific formula available to calculate severance pay entitlement – every case will be different, based on the specific circumstances of that case. Generally, lawyers and the Court will consider awards in other, possibly similar cases, but no two cases are ever the very same.

Terminated employees should, therefore, be wary of relying on online tools to calculate entitlement to reasonable notice damages and severance pay. Truly, the best and most reliable way to determine your potential entitlements if you are wrongfully terminated is to speak to a qualified, experienced employment law lawyer.

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THINK YOU OWN YOUR WATERFRONT? DON'T BE SO SHORE

This article was also published by The Lindsay Advocate on March 7, 2019 (lindsayadvocate.ca).  Authors: Ryan O'Neill of WARDS LAWYERS PC and Laura Gadsden. 

____________________________

While the thought of the lake lapping the shore is not exactly top of mind these days, we Canadians do what we must, keeping warm in winter with reveries of cottage life, when the sun will shine again.

The question of where your property ends and Crown land begins along the shoreline is a topical issue for property owners bordering water. The growing concern surrounding climate change, including the decline of water levels and erosion of shorelines, threatens to muddy the waters even further.

So where does a waterfront property owner stand in 2019? It is commonly thought that a property abutting water extends to the natural boundary of the lake or river, while the Crown owns the foreshore, meaning the bed of land under the water. Seems pretty straight forward, right? Not exactly.

High water mark vs. Low water mark

Water levels on Ontario lakes and rivers do rise and fall with the seasons. This fact of nature is exacerbated in the Kawartha Lakes region, where the Trent-Severn Waterway plays with water levels even more. As a result, a cottage owner’s shoreline is subject to some change. There have been several cases in the courts over the years that consider whether land extends to the high water mark (the highest point the water reaches land) where surveyors have traditionally placed boundaries, or the low water mark (the lowest point that water recedes to), also referred to as the water’s edge.

Lakeside properties often sit on modest 100 foot wide shorelines, and many cottagers are naturally tempted to maximize their privacy and enjoyment. Examining original patents, along with multiple grants and surveys registered on the property, can raise conflicting information as to your shoreline boundaries.

The skinny on the law of the shoreline is largely motivated by common sense. The courts determine a boundary on water based on the facts on a case by case basis. This essentially means that if a boundary line is in dispute, there is no presumption in the Courts that your property line goes to the low water or high water mark. A property owner inclined to argue shoreline claims must be prepared to put forth evidence to support it.

The common law has given some guidance as to how they consider evidence to determine a boundary on water. Topping the list, for example, are natural boundaries, original markers, original surveys registered on the property, and barriers, all of which are given greater consideration over descriptions of property boundaries alone. So, if you are tempted, as you gaze upon an original patent from 1862, tarnished and quaintly framed on the wall of your cottage by the previous owners, to argue for 15 more feet of shoreline, you should consider what story the evidence tells, and whether it would be worth the time and cost. Prospective buyers would be well advised to order an updated survey from an Ontario land surveyor, and make the purchase conditional on being satisfied that it meets expectations. In some cases, property owners with cottages built close to the water from several decades ago, may even discover that they do not own the land their cottage is built upon. If this is the case, you may apply to the municipality to purchase the lot.

A Natural Increase or Decrease in Property along the Shoreline

What happens if your waterfront increases as a result of a decline in water levels or a washing up of sand or soil along the beach? This is legally referred to as accretion, but it must be a gradual, slow process which occurs naturally over time. A cottage owner dumping a truckload of soil in the lakebed to increase his/her waterfront would not cut the mustard. While it is feasible to argue that accretion entitles the owner to the whole of the “new land,” recent cases have been known to divide it between private property owners and the Crown. One would have to weigh the cost of applying to have the new land registered on title, and any resulting litigation that may occur, against how much land stands to be gained. On the opposite end of the spectrum, lakeside property owners should be aware of increasing erosion of their shorelines, which threatens to reduce their property. Owners are entitled to take measures like erecting structures to control erosion, however, municipal approval and the approval of the Trent Severn Waterway would need to be obtained.

Rights of owners whose property border water

The three levels of government in their collective management of our lakes and rivers, and/or other private property owners can have a negative impact on our property enjoyment along the waterfront. Regardless of shoreline ownership, an individual whose land borders water possesses certain rights, referred to as “riparian rights” that are useful to keep in mind. Some of these rights include the right of access, right of the natural flow and quality of water and the right to take water for personal use. A property owner whose rights have been impeded has recourse in law against any government entity or other private property owners responsible.

So, when you are sitting on the dock this summer with a coffee or cocktail in hand, watching the graceful loon run along the water, don’t be too envious that he doesn’t give a hoot where he fishes.

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COLLABORATIVE FAMILY LAW - THE BETTER WAY

Collaborative family law is a way for you to resolve your relationship breakdown issues more respectfully -- without going to Family Court. It is a better alternative to an acrimonious, traditional battle in Court, with high stakes and high legal expenses. It is, basically, a much better way, which many lawyers and other family law professionals now support and encourage.

This alternative offers you and your former spouse or partner the support, protection, and guidance of your own lawyers, but also the benefit of child and financial specialists, family professionals, and other experts, if they would be helpful in your circumstances, working together on your team.

For the collaborative alternative, you commit to:

  1. Negotiate a mutually acceptable settlement without having the Family Court decide issues for you.

  2. Maintain open communication and information sharing.

  3. Create shared solutions acknowledging your priorities and objectives, including to live independently in future.

  4. Manage your legal expenses in an informed, constructive way.

  5. Achieve an outcome that is decided upon by you, with the support of your own lawyer, not by a third party, like a Judge.

You can find more information about collaborative family law here:

Ontario Collaborative Law Federation

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OVERTIME PAY - SHOULD I MAKE A CLAIM? WHAT WILL I GET? EMPLOYERS - PROTECT YOURSELVES!

Overtime pay in Ontario is governed by Part VIII of the Employment Standards Act, 2000 (the “ESA”).

In a nutshell………

Many employees in Ontario are entitled to overtime pay. For most employees, whether they work full-time, part-time, are students, temporary help agency assignment employees, or casual workers, overtime begins after they have worked 44 hours in a work week. Their hours after 44 must be paid at the overtime pay rate. Overtime pay is 1½ times the employee's regular rate of pay (often called "time and a half”). Unless An employment agreement or collective bargaining agreement provides otherwise, an employee does not earn overtime pay on a daily basis by working more than a set number of hours per day. Overtime is calculated only: on a weekly basis; or over a longer period under an “averaging agreement”.

However, there are some exceptions. Some employees have jobs that are exempt from overtime pay under the ESA. Others may work in jobs where the overtime threshold is more than 44 hours in a work week. For example: EMS, healthcare and health professionals; manufacturing, construction and mining; hospitality services and sales; transportation; agriculture, growing, breeding, keeping and fishing; household, landscaping and residential building services; government employees and professionals. More information about exemption from overtime pay can be found at: www.ontario.ca/document/your-guide-employment-standards-act/overtime-pay.

In addition, managers and supervisors do not qualify for overtime if the work they do is managerial or supervisory. Even if they perform other types of tasks that are not managerial or supervisory, they are not entitled to get overtime pay if these tasks are performed only on an irregular, or exceptional, basis.

Furthermore, employers may be permitted to have written overtime averaging agreements with their employees. If so, they agree to average the employees’ hours of work over a period of two or more weeks to calculate overtime pay – effectively, employees would only qualify for overtime pay if their average hours worked per week during the averaging period exceed 44 hours. For non-union shops, averaging agreements must terminate two years after made. Any averaging agreement must be approved by the Ministry of Labour and, if so, the agreement cannot be revoked before the termination date, unless otherwise agreed. This Ministry approval requirement may change in the near future, however.

In Ontario, there have been several class action lawsuits dealing with alleged non-payment of overtime pay by (large scale) employers, leading to very significant out-of-Court settlements or damage awards against employers. For example:

Fulawka v Bank of Nova Scotia, 2016 ONSC 1576 (CanLII)

Rosen v BMO Nesbitt Burns Inc., 2016 ONSC 4752 (CanLII)

Eklund v. Goodlife Fitness Centres Inc., 2018 ONSC 4146 (CanLII)

Aps v. Flight Centre Travel Group (Canada) Inc., Court File No.: CV-19-00614755-00CP (recently initiated; unresolved)

EMPLOYERS – PROTECT YOURSELVES:

Therefore, employers who do not take adequate precautions may be exposed to claims by non-exempt employees for unpaid overtime pay. To minimize this risk, employers should:

  • ensure they have an adequate system to track, monitor and compensate employees for actual hours worked;

  • classify properly all employees (i.e., exempt, non-exempt, managerial, supervisory), including to avoid potential retroactive exposure;  

  • effectively monitor, track and record the hours worked by non-exempt employees, particularly overtime hours;

  • develop tracking systems, or use a third party service provider experienced in this area;

  • require that overtime be approved before it is worked;

  • ensure they have a clear procedure for approving overtime before it is worked and that this is properly recorded at the time

  • implement a clearly-written workplace policy for overtime pay, specifying clearly, for example, that: overtime must be pre-approved; when and for what purpose overtime may be worked; and who is authorized to approve overtime; and

  • negotiate with employees to enter averaging agreements, rather than attempt to unilaterally impose those on the employees, particularly at the time of hiring.

It unclear how far back a non-exempt employee could claim for unpaid overtime pay. The prevailing wisdom appears to be the standard two-year limitation period in Ontario, but that has yet to be tested fully by the Courts for every case.

Need an effective workplace overtime policy?

Call me. Let’s get started.  

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SOCIAL MEDIA ATTACKS - PROCEED WITH CAUTION - THE COURT IS WATCHING

Increasingly maligned victims on social media resort to the Court for redress. The Court is becoming more intolerant of defamatory conduct online, to the extent that significant damages may be ordered against the traducing party. No longer does the Internet shield against vilifying another online.    

There have been several notable cases.

For example, fairly recently a B.C. Judge awarded over $65,000 in damages against a woman for publishing untrue and unsubstantiated statements and accusations on Facebook about her neighbor, suggesting him to be a pedophile, including that he placed mirrors and cameras in his backyard to spy on her children.

It appears the case initially erupted as a neighbor dispute regarding a fish pond and backyard waterfall. The municipality was eventually involved, too, but could not effectively assist the neighbor. 

The Court held that her “viral” social media posts were “venting” and “completely false and unjustified” and negatively impacted her neighbor and his career as a teacher. The woman removed her Facebook comments, after the neighbor demanded she do so, within about twenty-four hours, but the damage had already been done. For example, someone in the community had contacted the Principal of the neighbour’s school expressing concerns about him, after reading the Facebook statements. 

Amongst other criticism of her, the Court said: “The seriousness of Ms. Van Nes’s defamatory Facebook post, her replies, and the comments of her ‘friends’ cannot be overstated,” and “An accusation of pedophilic behaviour must be the single most effective means of destroying a teacher’s reputation and career, not to mention the devastating effect on their life and individual dignity.”

He now faces the challenge of repairing the damage Ms. Van Nes has caused, if that is even possible at this point”, the Court concluded.

The vilifying party was ordered to pay to her neighbor $50,000 in general damages, $15,000 in punitive damages and $2,500 for nuisance. She was also ordered to pay a hefty part of his legal expenses. Lastly, and for good measure, presumably, she was ordered to turn off the waterfall in her backyard pond every night between 10 p.m. and 7 a.m.

More recently, Ontario’s Court of Appeal awarded $700,000 in an online defamation case involving a targeted and malicious online campaign involving business partners. The Court, noting the immediacy, permanency and “pernicious effects” of Internet defamation, held the business partner’s online posts were “unrelenting, insidious and reprehensible” over a “lengthy period”. Despite that the targeted business partner testified that he was unaware of any specific injury to his reputation in the community, significant damages were ordered. The Court’s decision highlights that a dollar amount cannot readily be ascribed to a person’s reputation.

Furthermore, the damages were awarded against another person, who was held to have participated in the business partner’s general plan and facilitated this behavior, even though he was not directly involved. Accordingly, a person need not directly participate in the online defamation, but be exposed to joint and several liability for that tortious conduct.

Misguided users of social media should certainly not assume they are protected from liability if they defame another, just as if they had done so by any other means. 

The cases:

Pritchard v. Van Nes, 2016 BCSC 686 (CanLII)

Rutman v. Rabinowitz, 2018 ONCA 80 (CanLII)

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I RESIGNED - CAN I TAKE IT BACK? TIPS TO EMPLOYERS FOR RESIGNATIONS

An employee who resigns, verbally or in writing, may ask to ‘take back’ his or her resignation. This creates an issue for the employer, of course, particularly if the resignation is a welcomed outcome to the relationship. Ontario law says that an employer may be obliged to allow an employee to withdraw or retract a resignation depending on the circumstances.

Below are the key considerations for when an employee resigns and whether that employee will be held to be bound by his or her own act: 

Is the Resignation Valid (At Law)?

Firstly, the Court will consider if the resignation is properly given and valid.

Generally, when considering whether a resignation is validly made by an employee, the Court will consider whether, in all of the circumstances and the context in which it is given, would a reasonable person have objectively concluded at the time that the employee both intended and meant to resign? In other words, the legal test is, effectively, whether the employee really meant to resign in all of the circumstances.

To be valid, a resignation must be clear, unambiguous and not shrouded in complaints, concerns or conditions by the employee. Preferably resignations will be in writing, but they can also be established by conduct of the employee clearly demonstrating intent to quit or resign at the time. For example, the employee may verbally quit, then immediately leave the workplace taking his or her personal belongings, or otherwise demonstrating intent to leave and not return. 

So, is it a clear and unambiguous resignation? If given verbally, this may be problematic, of course. If it is in writing, does it clearly verify the employee is resigning, without also suggesting he or she is doing so because of mistreatment, pressure, stress or related in any way to alleged discrimination or breach of a protected ground under the Ontario Human Rights Code, for example?

If the resignation could potentially be considered by a third party, objectively, as merely expressing dissatisfaction, or as merely a threat to resign or an offer to resign if asked to do so, it may not qualify or be enough to be held as a valid resignation. If it is truly an offer to resign only, it could be revoked by the employee at law, even if it is accepted by the employer. Therefore, the resignation must be straightforward, clear, not subject to any conditions and not ostensibly embroiled with or attached to complaints or concerns by the employee at the time. 

What’s more, if there is evidence of a ‘heat-of-the-moment’, reactionary decision, or of duress or other emotionally charged decision-making at the time, the Court may not hold the employee to the resignation.

Timing can also be a key factor. If the employee resigns, particularly in emotional or ‘heat-of-the-moment’ circumstances, but reasonably soon afterwards attempts to withdraw that decision, the Court is more likely to find the resignation invalid. Generally, the longer the time period between the resignation and the withdrawal, the more likely it will be that the Court upholds the initial resignation.

Should the Employer Respond to the Resignation?

Employers’ responses to resignations can be important. 

If the employer believes the resignation is valid, or potentially valid, employers should provide the resigning employee with a written acceptance of the resignation. If an employer takes other steps, such as suggesting a meeting be arranged, or contacting the employee afterwards about the resignation or work-related discussions, they may be found by the Court to have engaged in conduct inconsistent with an acceptance of the resignation (i.e., potentially to encourage the employee to return to work, for example), which may invalidate an otherwise valid resignation on its face, particularly if the employee attempts to withdraw or retract the initial resignation.

Employers should also consider, before accepting the resignation in writing, if there are any circumstances or factors known to the employer that potentially could have influenced or caused the employee to resign, particularly related to the employee’s mental health, family circumstances, other sources of pressure in his or her life, or other circumstances that may have created unusual or undue stress or turmoil in the employee’s life. If so, the employer may have a duty to enquire about these with the employee before accepting the resignation, or before the resignation could be considered valid and final by the employer. If any of these factors may exist, the employer may need to consider offering assistance to the employee, such as a temporary absence from work, EAP benefits, if available, or other support services available in the workplace. 

Cooling-Off’ Period:

In 2014, the Supreme Court of Canada established the duty of good faith in contractual dealings and created a new general duty of honesty in contractual performance. That decision has found its way into employment law, too. As a result, the Court in Ontario will likely require employers to provide an employee with a “cooling-off period” to reconsider the employee’s resignation decision. Therefore, it is likely advisable for employers to offer this ‘cooling-off’ period and, if they do not, they may find themselves facing an additional claim for failure to abide by this new duty of honesty and good faith in performing employment arrangements.

However, cooling-off periods can be advantageous to employers, too. 

For example, if an employee gives an ultimatum that the employee will resign if his or her conditions are not accepted by the employer, the employer should consider establishing a ‘cooling-off’ period, in writing, in response. If, after that period, the employee does not withdraw the ultimatum, it is more likely that the employer, if a written acceptance of the resignation is given to the employee at that expiry of the cooling-off period, will be able to establish that the employee validly resigned. If the ultimatum was clear and unambiguous and a sufficiently reasonable cooling-off period was given the employee, the employer is more likely to be successful in defending off a wrongful termination claim by the employee by establishing that a valid resignation was given and accepted. 

Requirement to Accept a Withdrawal:

Generally, if the employee merely offers to resign, or if a resignation is not valid, employers should allow the employee to withdraw the offer (or invalid resignation), if the employee requests to do so reasonably soon afterwards, even if it was accepted by the employer when initially given.

If, however, the employer could demonstrate that they relied on the invalid resignation to their detriment, they may be able to successfully establish that they had no obligation to allow the employee to retract or rescind. For example, if the employer already hired a replacement, incurring time and expense to do so, the employer may be able to establish detrimental reliance sufficient to refuse the employee to rescind the resignation.

Five Best Practice Tips for Employers:

Employers should consider:

1. giving a ‘cooling-off’ period to an employee who resigns, or purports to resign, especially if there may be special circumstances, such as potential mental health-related issues, family issues or other potential sources of undue stress or pressure affecting the employee at the time;

2. requesting that resignations be given only in writing, if possible; 

3. respond to resignations (in writing, ideally) with written acceptances, but only after considering if any special factors exist or may be known by the employer that potentially may have unduly influenced the employee’s decision to resign (including potential mental health-related issues);

4. avoiding any steps after receiving the resignation that may be viewed as non-acceptance of the resignation, like calling a meeting or telephoning the employee afterwards (or engaging in any verbal discussions with the employee); and 

5. allowing an employee, if requested, to withdraw or retract a resignation, subject to further considering: a) the time that passed between the resignation and request to retract; b) any special circumstances regarding the employee; c) whether ‘detrimental reliance’ steps were already undertaken by the employer; and d) whether the resignation was accepted in writing previously.

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POT AT WORK - MAY BE LEGAL, BUT STILL NOT ALLOWED - EMPLOYERS' RIGHTS

Employers may be confused and uncertain how legalized cannabis use impacts their workplace, including how they can monitor and regulate it. It is important to understand the difference between using weed recreationally and for medical reasons – they are treated differently, at law.

The Ontario Human Rights Code (the “Code”) applies to both recreational and medical cannabis. However, unless an employee has an actual, or perceived, addiction to cannabis, or must use medical cannabis due to a recognized disability, the recreational use of cannabis is unprotected by Ontario’s human rights law.

Essentially, using pot recreationally, absent an addiction or to treat a recognized disability, is not protected by the Code. As a result, if these circumstances do not exist, employers are lawfully entitled to:

· impose rules for using recreational cannabis in the workplace, preferably by a written workplace policy;

· prohibit every employee from possessing any recreational weed in the workplace (or at work otherwise), despite that possessing small amounts is now legalized;

· stop employees from coming or reporting to work while influenced by recreational pot, even though use is now legal; and

· if these rules are not followed, discipline those employees who do not follow them, including up to termination for cause, if appropriate.

Cannabis use for medical reasons is different. The same rules apply as they do for other medically-necessary drugs or substances. Employees may be protected to use medical cannabis in the workplace. However, employers are entitled to require the employee to provide justification for his or her disability-related need to use medical pot. Employers can also require information from the employee about restrictions arising from the disability itself, or the medical cannabis used to treat the disability. If an employee’s use of medical cannabis creates a potentially serious safety risk in the workplace, and unlike other disability-related conditions, employers may not be obliged to accommodate the employee using medical cannabis, particularly if would cause undue hardship to the employer.

So, the Code may be triggered and apply, but only if an employee is addicted to pot, or it is used by the employee to treat a legitimate, medical condition that is recognized as a disability by the Code. In that case, employers cannot subject that employee to the same rules. Rather, the employee’s right to be in a workplace free from discrimination related to a disability must prevail, as required by the Code, including a potential duty to accommodate the employee.

If the employee’s use of medical cannabis creates no undue hardship to the employer, it may need to accommodate the employee’s use of it in the workplace, or at work. If so, and so long as no serious safety risk is created, the employer may need to permit the employee to use the medical cannabis at work, or while working, but only during break time and subject to Ontario’s smoking and vaping laws. The key is whether the use of medical cannabis will interfere with the employee’s duty to perform his or her duties in a safe manner, ensuring not to create a serious safety risk in the workplace. If so, accommodation is likely required, subject to how and when the cannabis is consumed by the specific employee and subject to anti-smoking and vaping laws in effect across Ontario.

Need an effective workplace policy for smoking, vaping and cannabis use?

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WORKPLACE HARASSMENT - WHAT YOU NEED TO KNOW

Ontario’s Occupational Health and Safety Act imposes important obligations on employers regarding workplace (sexual) harassment. They are designed to enforce proactive measures for all workplaces in Ontario – compliance is now being audited by Ontario’s Ministry of Labour. Non-compliance can mean significant fines, penalties and potential civil liability.

Employers in Ontario must:

  • make and prominently (conspicuously) post in the common area(s) of the workplace a new (or revised) workplace harassment policy, compliant with these new changes – it is mandatory; obtain the assistance of a qualified employment lawyer or, if that is not possible, at least refer to the Ontario Ministry of Labour’s “Code of Practice” for guidance and assistance, if necessary;
  • incorporate the definition of workplace sexual harassment in the mandatory workplace policy: “Workplace sexual harassment” is defined as:

(a) engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known, or ought reasonably to be known, to be unwelcome; and/or

(b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows, or ought reasonably to know, that the solicitation or advance is unwelcome.

  • establish and implement a joint health and safety committee in your workplace (particularly for workplaces having twenty or more workers) and liaise with the committee’s health and safety representative(s) to develop (or update) a written program or plan to implement the mandatory workplace harassment policy (a “Program”);
  • take care to ensure the Program complies with the law, including:

-     measures and procedures for reporting incidents of workplace harassment: (a) to the employer or supervisor; and (b) to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser (such as an alternative procedure for employees to report directly to a human resource representative);

-     alternative reporting options to a person who is not subject to the direct control of the alleged harasser if the incident or complaint involves the employer (such as an owner, senior representative, upper manager, director, etc.), which may include third party, so-called “whistleblowing” services, if necessary, and ensure contact information is provided in the Program;

-     explain fully how incidents or complaints of workplace harassment will be investigated and addressed;

-     explain how information acquired regarding an incident or complaint of workplace harassment will be kept confidential, unless disclosure is necessary for the purposes of the investigation or required by law;

-     explain how a complainant and respondent, if a co-employee, will be informed of the results of the investigation and any corrective action or measures taken; and

-     affirm that a written report (summary) of the results of the investigation and any corrective action taken will be provided;

  • train all workers, including managerial employees, about the mandatory policy and the Program and they acknowledge the training, in writing;  
  • tickler for at least annual review of the mandatory policy and Program and keep good records for the review(s);
  • investigate all incidents and complaints of workplace harassment (fairly and completely);
  • retain a third party, professional investigator or, at least, ensure any internal investigator is properly trained for investigating complaints and workplace harassment generally;
  • only utilize an investigator who is, and who will be perceived as, competent and impartial;
  • make every effort to complete the investigation and release the summary report within ninety days of the initial incident or complaint; and
  • be prepared for the Ministry of Labour to order a third party investigator at the employer’s expense, particularly if the employer does not act properly in appointing its own investigator, internal or external. 

Need an effective workplace harassment and violence policy? It's the law. 

I can help. Send me an e-mail - jason@wardlegal.ca 

 

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HARD LABOUR - REFERENCES BY FORMER EMPLOYERS - THEY CAN BE HONEST

HARD LABOUR – BY JASON WARD AND WARDS LAWYERSPC

REFERENCES BY FORMER EMPLOYERS – THEY CAN BE HONEST:

Employers may be wary of giving references for current or former employees, particularly if they were dismissed by the employer. There is no legal obligation for an employer to give an employment reference, unless there is an agreement to do so.

However, there are cases in Ontario whereby disgruntled, former employees have sued former employers for defamation, alleging the employers’ negative reference was defamatory and caused, or contributed to, their inability to secure alternative employer.

However, it is now clear that employers’ references, even if negative, are protected from liability for defamation, provided they are made “without malice”. This applies to both current and former employees.   

As a result, employers can now feel more assured if, in the circumstances, a less-than-positive reference is given. Many employers desire to be honest, but have been nervous about informing a potentially successor employer about a candidate’s character, work performance, lack of motivation or other sub-standard characteristics.

In defamation law, the truth shall set you free – this has always been the law in Ontario. Now, in addition to the truth defence, employer references are protected by the defence of “qualified privilege”, provided the employer does not act maliciously, but rather honestly, even if the reference may not be proved as the truth.

Generally, malice need not be proven directly, but can be inferred based on the specific words of the referee employer. It may also be established by evidence about the employer’s alternative, or even ulterior, motivation, if any. In addition, comments that are made without care or proper regard to their truth may also disqualify the “qualified privileged” defence.

So, while employers need to be smart and cautious, they can express honestly-held opinions about an employee and be protected by law, conditional on not acting maliciously.

To be vigilant against the risk of claims of malice when employment references are given, a few tips to employers:

  1. make your comments in a professional, respectful manner;
  2. use balanced, moderate language and tone;
  3. attempt to justify any negative comments by reference to a document, or based on the referee’s first-hand experience with the employee;
  4. take a balanced approach – mention any positive aspects of the employee, too, if possible; 
  5. take notes after the exercise to record, as precisely as possible, what specifically was communicated to the potential employer; and
  6. be mindful of any contextual issues or historical circumstances regarding the employee that could potentially be construed to suggest that the referee employer, or another person associated with the referee employer, may be motivated by revenge, a desire to punish the employer or otherwise act in a manner intended to cause harm to the employee.

Given this new development, employers should feel more comfortable with offering employment references, rather than avoiding them simply to avoid potential liability. If everyone did that, it may entirely make unavailable an important, useful part of the hiring and recruitment process, which serves no one’s interests.

Case:

Kanak v. Riggin, 2017 ONSC 2837 (CanLII), 2018 ONCA 345 (CanLII) and Tracey Kanack v. Darryl Riggin, 2019 CanLII 1628 (SCC) (leave to appeal denied).

Need an effective workplace policy for giving references for current or former employees?

Send me an e-mail.   

____________________________

Date of Blog: February 26, 2019

Thank you for reading this - Jason Ward of WARDS LAWYERSPC.

If you would like to read more, please visit www.wardlegal.ca/blogs.  

This WARDS LAWYERSPC publication is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We’re here to help - jason@wardlegal.ca and www.wardlegal.ca

©       WARDS LAWYERSPC (2019)

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