Legal blog by WARDS LAWYERS PC.

Featuring "Hard Labour" by Jason Ward


EMPLOYERS - TIPS FOR NAVIGATING EMPLOYEES' PRIVACY

Ensuring privacy in the workplace is increasingly important for employers in Ontario law. Employees are making more complaints. The Courts are focusing more on employee privacy in the workplace. Both the Ontario and the federal Privacy Commissioner seem to be adjudicating more employee complaints.

For example, cases are emerging about: a) posting employees’ photos in the workplace; b) employers installing ‘spyware’ on employees’ computers to monitor their online activities; c) employers tapping into employees’ corporate-issued mobile devices; and d) employees improperly access personal information of clients or other employees, creating liability (and headaches) for employers.

A good privacy policy for the workplace is essential these days.

Privacy legislation is evolving. The Personal Information Protection and Electronic Documents Act (federal) (PIPEDA) applies in Ontario to many private sector employers. It has been amended recently to deal more effectively with digital disclosure, consent to disclosure and the onus on businesses to ensure they properly obtain consent to post personal information online (Web sites, social media, etc.). Being familiar with and adhering to the continuously changing privacy laws is important for Ontario businesses and employers.

Managing employees’ personal information in the workplace can be challenging, especially for larger organizations.

Here are a few, basic tips that every employer in Ontario should consider:

  1. Determine which privacy legislation applies to your workplace: statutes apply to your organization: FIPPA and MFIPPA apply to municipal and provincial government organizations; PHIPA applies to health information businesses and PIPEDA likely applies to most private organizations, including those that are federally regulated
  2. Establish a good privacy policy for your business and appoint a “privacy officer” – a person responsible for ensuring that your business complies with the applicable privacy laws
  3. Notify your employees of any collection, use or disclosure of their personal information, including identifying the reason(s) the personal information will be used, collected and disclosed and always make sure that the general purpose for collecting the information is reasonable in the circumstances
  4. Ensure that the personal information you collect is necessary to achieve the purposes of its collection
  5. If you collect personal information, request and obtain your employees’ consent – which can be deemed, express or based on an opt out
  6. Educate and train your employees generally, especially those with access to other employees’ personal information, about their responsibilities under your business’ privacy policy(ies) and the obligations under the applicable privacy laws
  7. Keep an ongoing record of when you, or your appointed person, accesses or uses an employee’s personal information, including when and the reason(s)
  8. Review and audit fairly regularly all of the personal information you have, to verify it is legally collected, that it remains securely stored and that the purpose it was collected for remains reasonable and appropriate.

This WARDS PC BLAWG 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  www.wardlegal.ca

 

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EMPLOYERS - DID YOU THINK THAT RELEASE FORM WOULD PROTECT YOU FROM PAYING MORE? BE CAREFUL - MAYBE NOT

EMPLOYERS - Make sure you take care in your release form for the dismissed employee to sign.

The new case: Hutton v. ARC Business Solutions Inc., 2015 AHRC 7 (Alberta Human Rights Tribunal).

The employer paid a severance package in exchange for a release of liability being signed. The release form did not specifically address a human rights complaint by the employee. The employee received the severance package, but then brought an application against the employer for more damages. The employee was successful - the employer's release did not prevent the employee from suing for more.

The Tribunal considered these factors:

  • The explicit or implicit language of the release;
  • Whether there was an inequality of bargaining power between the parties;
  • Whether there was undue influence or coercion;
  • Whether the terminated employee obtained independent legal advice;
  • Whether the release was signed under duress;
  • Whether the employee knew of their right to file a human rights complaint, and whether the employer knew that a potential human rights complaint was contemplated; and
  • Other considerations such as lack of capacity to enter into an agreement, the timing of the complaint, mutual mistake, fraud, forgery, etc.

Lessons?

1. Be very specific in the release form.

2. Remember to keep in mind the presumed power imbalance between you and the employee when a severance is agreed to for a termination.

3. Ask your qualified employer to review your release form before you present it to the employee.

This WARDS PC BLAWG 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  www.wardlegal.ca

 

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EMPLOYEES - UNAUTHORIZED DEDUCTIONS FROM YOUR PAY IS NOT ALLOWED IN ONTARIO

EMPLOYEES - Your employer may be required by law to make deductions against your pay, such as income tax, employment insurance premiums, Canada Pension Plan contributions, union dues or other amounts authorized by a collective agreement. You can also agree to other deductions, such as health, dental or disability group insurance plans and payroll savings plans, as these provide a direct benefit to you.

However, the Employment Standards Act, 2000 in Ontario prohibits your employer from making deductions against your pay that are not legally required or agreed to by you.

Example: If you are a server, and your customer leaves without payment for the meal. Or if you damage your employer's equipment, causing a loss to the employer. Generally, the employer cannot deduct these losses against your pay, at least not without your express permission and, even then, it may still be unlawful for the employer to do so.

What's more, not only may this be prohibited by the legislation, but it may be a constructive dismissal of you by the employer.

A recent case in B.C. affirms this: Rotherberger v. Concord Excavating & Contracting Ltd. 2005 BCSC 729. The employee damaged (allegedly) the employer's equipment. The employer threatened to deduct it from the employee's pay. The employee disagreed. Eventually the employer sued for constructive dismissal and was successful.

Therefore, if your employer deducts, or threatens to deduct, anything from your pay that is not legally required or that you do not expressly agree to, you should speak to a qualified employer lawyer. Chances are, the employer is prohibited from doing so and, potentially, that may be a constructive dismissal of your employment. 

This WARDS PC BLAWG 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  www.wardlegal.ca

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MY REPUTATION IS DEFAMED ON SOCIAL MEDIA - WHAT CAN I DO? IS TWITTER RESPONSIBLE FOR MY DAMAGES?

Baglow v. Smith - a recent Ontario decision about defamation online - in this case, blogging (political) on a message board. The Court described it as “rude, aggressive, sarcastic, hyperbolic, insulting, caustic and/or vulgar.” 
 
Basically, A sued B, claiming B had defamed him on a political blogosphere message board. A also sued the host of the message board, who created the online forum for the comments exchanged between both A and B. A and B had both posted on the message board, rather aggressively. B took it too far. The Court also held the message board host/moderator liable to A for defamation damages.
 
Take Aways:   
 
1. A moderator or creator of an online message board may be held liable for defamation for posts made by a third party. Here, the host was fairly active on the message board (which likely impacted the Court's decision). However, the case does not make it clear, in my view, if it would readily apply to popular social media sites (Facebook, etc.), where there are so many users.
 
2. The case applied to direct comments made by a user on a message board. It does not establish, in my view, that the same result would apply to, for example, a hyperlink posted, or an indirect statement, such as so-called ' comment boxes' on Web sites or sharing someone else's post on social media, for example. It might be argued it should apply, but the Court does not extend its finding that far, at least not expressly.  
 
3. Blog anonymity may be an important factor - the Court indicated: “[t]he evidence reveals in this case that almost all of the individuals who post or comment on Free Dominion do so anonymously. To adopt the position of the defendants would leave potential plaintiffs with little ability to correct reputational damage.” This may mean that hosts/moderators might only be held liable in future if the identify of the blogger/poster is unknown, or could not be ascertained. If not, it is questionable if the host would be held liable.
 
This WARDS PC BLAWG 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.
 
Defamed online? More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca
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EMPLOYERS - AVOID LIABILITY - DO YOU HAVE A HEALTH/SAFETY COMMITTEE?

EMPLOYERS - An active Health and Safety Committee can protect you from liability under Ontario's Occupational Health and Safety Act:

"An Ontario court has dismissed charges under the Occupational Health and Safety Act after two incidents which the joint health and safety committee did not identify as posing a “high priority” safety concern.

The charges arose from two incidents on an assembly line at Magna Seating Inc. in which workers were struck by a partly-manufactured vehicle seat that had fallen forward from an upright position, “which is not unlike when someone releases the lever on a seat in an automobile and the seat falls forward due to the tension of the seat’s springs.”

The two charges were: failing to ensure that things were transported so that they would not tip, collapse or fall; and failing to ensure that a machine (the conveyor that transported the seats) was guarded.

The court noted that almost two million seats had been built on the assembly line with only two documented occasions in which a seat had fallen forward. In one incident, a worker’s lip had been cut; she required only a Band-Aid. In the second incident, the seat had struck a worker in the chest; she was taken to the hospital but was released two hours later with a prescription for painkillers.

The Justice of the Peace noted that the Joint Health and Safety Committee, comprised of management and workers, were aware of the two incidents but had not considered the seat falling forward issue to be of high priority; also, the possibility of guarding being implemented was still being investigated by the joint health and safety committee.

Ultimately, the charges were dismissed because the Justice of the Peace decided that the conveyor was not a “machine” within the meaning of that term in the regulation, and Magna had taken all reasonable care to ensure that workers were not injured from seats falling forward.

The case shows that having a well-functioning and active joint health and safety committee can actually help an employer defend against Occupational Health and Safety Act charges. If the committee was aware of and considered a safety issue and determined there was no – or a minimal – hazard, that is evidence that can assist an employer to show that it acted with due diligence.

Ontario (Ministry of Labour) v. Magna Seating Inc., 2015 ONCJ 7 (CanLII)"

Credit: Dentons, Adrian Miedema, reproduced without permission from Lexology, Feb. 19, 2015

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MY SUMMER LONG WEEKENDS - WHAT ARE MY RIGHTS?

Long weekends - loved by all, but what are my rights? The Employment Standards Act, 2000 of Ontario applies. What both employees and employers need to know:

 

What is Public Holiday Pay and When is it Paid?

Public holiday pay is given to employees regardless of whether they work on a public holiday.

On a public holiday, employees have two options:

  1. Work: most employees have the right to refuse to work a paid holiday, but if an employee agrees in writing to work, s/he must be paid premium pay plus holiday pay OR s/he must be paid regular pay and given another day off as a substitute.

  2. Do not Work: where an employee does not work a public holiday s/he is entitled to paid holiday pay.

 

Who Qualifies for Public Holiday Pay?

In order to qualify for public holiday pay an employee must:

  1. Satisfy the First and Last Rule: employees must not miss (without reasonable cause) the next day before and after the holiday that they are scheduled to work

  2. Work the entire shift (if choosing to work the holiday): the employee must work the agreed-upon time unless there is reasonable cause

Note: Reasonable cause is generally established where work is missed because of an event that was beyond the control of the employee; employees bear the burden of proving a reasonable cause

  1. Not be exempt: Some industries are exempted from holiday pay; see the Ontario Ministry of Labour’s website for more information on which employees do not qualify for holiday pay

 

How is Public Holiday Pay Calculated?

Holiday pay is calculated by taking the regular wage (not including overtime or premium pay) payable to the employee for the previous four weeks divided by 20. The four weeks is based on the work weeks completed by the employee not based on calendar weeks. Premium pay is calculated by multiplying regular wage by 1.5.

See the Ontario Ministry of Labor’s website for a calculator that can be used to determine employee holiday pay.

 

Other Issues

Public holiday pay can be confusing where an employee fails to meet all requirements. For example:

  1. If an employee is on vacation or doesn’t usually work on the holiday: the employee is entitled to either a substitute holiday day plus holiday pay or public holiday pay instead of the substitute day.

  2. If an employee fails to work the holiday: based on what was originally agreed to the employee is entitled to a substitute day off with holiday pay OR the employee is entitled to holiday but is only entitled to premium pay for the hours they actually worked.

 

This BLAWG is general and informational only. It is not legal advice and not intended to be. Your circumstances may require specific/more information.

 

More information: jason@wardlegal.ca  www.wardlegal.ca

 

 

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Family Law

Generally, spousal support is taxable to you. The payor may also tax deduct it. However, lump-sum ‘catch-up’ (i.e., “retroactive”) spousal amounts are different. If you are awarded, or agree on, a lump-sum spousal support payment for the past, it is typically adjusted to reflect that: a) you likely will not be required to pay tax on it; and b) the payor is not likely able to deduct it. The Family Court will take this ‘net’ approach to lump-sum “retroactive” spousal awards, rather than require the parties to try to sort out the tax consequences with the Canada Revenue Agency directly (which usually does not cause a fair outcome for either party, or both). The Family Court will reduce the amount that is payable by multiplying it by the payor’s marginal tax rate, your marginal tax rate, or an average between the two rates, typically. The amount you receive will be less than the monthly amount payable to you in the past, to reflect the tax adjustment. While this may seem unfair, it is currently the law in Ontario. A good case on this (as of June, 2015) is: Hume v. Tomlinson, 2015 ONSC 843. Parties are free to negotiate whatever they wish, but typically the payor will ask for a reduction to reflect the tax for past, catch-up amounts paid. What you need to know:

- Generally, spousal support is taxable to you, tax deductible to the payor

- Lump-sum ‘catch-up’ awards are treated differently, generally

- Lump-sum ‘catch-up’ awards will be adjusted for tax (i.e., you will receive less), typically

This BLAWG is general and informational only. It is not legal advice, or intended to be. Advice for your circumstances may require specific/more information. 

More information or assistance: jason@wardlegal  www.wardlegal.ca

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COLLABORATIVE FAMILY LAW - A NEW, 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.

Collaborative Practice Team meeting

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

Wards PC Lawyers - Collaborative

This WARDS PC BLAWG 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  www.wardlegal.ca

 

 

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EMPLOYERS - A GOOD WORKPLACE INVESTIGATION IS CRITICAL - DON'T GET CAUGHT

Do you have to appoint an external investigator to investigate a complaint in your workplace? No, not necessarily. Conducting an effective workplace investigation of an employee or other complaint is essential. Courts increasingly scrutinize how employers handle complaints. A good workplace investigation can not only avoid liability for you, but effectively resolve the issue before you find yourself at the responding end of an Ontario Human Rights Code complaint - a place most employers would very much prefer to avoid.

An employer can do its own workplace investigation, if it has a person internally with the experience and skills to conduct an investigation competently, fairly and in a manner that will be legally defensible. Many complaints can be effectively addressed internally, if done properly.

A good example of this is this recent case: Zambito v. LIUNA Local 183 (May, 2015), a decision of the Ontario Human Rights Tribunal.

In this case, the employer completed a very good workplace investigation, including complying with the requirements of the Ontario Human Rights Code and, as a result, was successful in the employee's Code complaint against the employer. The employee made a complaint about discrimination in the workplace based on nationality and family. He was subsequently laid off by the employer. He then brought a complaint under the Human Rights Code, alleging the employer failed to properly investigate his complaint. The employer defended, taking the position that it had properly investigated.

The employer arranged for its own in-house lawyer to conduct the workplace investigation.

The Tribunal carefully examined the investigation and how it was completed. The investigator had:

  • Interviewed both the complainant and other affected parties, including the respondent;
  • Interviewed two eye witnesses to the exchange, and two other witnesses who saw the complainant's behaviour immediately after the incident;
  • Completed his interviews within two and a half weeks of the incident; and
  • Four weeks after the incident, had prepared (and saved) a written report that contained detailed findings of fact, an analysis and recommendations.

The Tribunal ultimately concluded that the investigation was: “the “means” by which the employer ensures that it is achieving the Code-mandated “ends” of operating in a discrimination-free environment and providing its employees with a safe work environment”.

The Tribunal accepted that the employer had properly investigated, pursuant to the Human Rights Code. The Tribunal actually praised the investigator in this case:

" First, I found Mr. Evans to be a totally credible witness. He was a third party who had no interest in the outcome of the investigation. His testimony about the investigation process that he followed, including interviewing witnesses, making findings of fact, and making recommendations based on those findings, was straightforward, logical, internally consistent, and detailed. His testimony about the investigation process was not shaken in cross-examination."

Therefore, the employer was successful in this Human Rights Code challenge by the former employee.

The lesson? Conducting a workplace investigation is not only necessary, but must be done properly and effectively, based on the increasingly emerging cases about this area. The investigator, whether internal or external, needs a plan and the skills to act on that plan, to arrive at a reasonable conclusion.

This WARDS PC BLAWG 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  www.wardlegal.ca

 

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WORKPLACE (SEXUAL) MISCONDUCT - RECORD HIGH $220,000 DAMAGES AWARDED AGAINST EMPLOYER BY HUMAN RIGHTS TRIBUNAL

Providing a discrimination-free workplace is very important.

This recent case illustrates the importance of doing so: O.P.T. and M.P.T. v. Presteve Foods Ltd. and Jose Pratas 2015 HRTO 675.

The Ontario Human Rights Tribunal held these two sisters, temporary foreign workers, endured unwanted sexual solicitation, advances and discrimination at the workplace.

There is a trend emerging in Ontario - increasingly higher damages are being awarded by the Ontario Human Rights Tribunal for injury to dignity, feelings and self-respect.

The facts are disturbing, of course. They involve very sexually-charged and unacceptable conduct in the workplace.

The Tribunal awarded:

General Damages - One sister was awarded $150,000 as compensation for injury to her dignity, feelings and self-respect (also known as general damages) along with approximately $15,000 in prejudgment interest. This amount is three times greater than what previously had been the highest award awarded by the Tribunal. The other sister was awarded $50,000 in general damages along with approximately $5,000 in prejudgment interest.

The lesson for employers - You must promote and achieve a discrimination-free workplace. Understanding discrimination and harassment issues is essential, along with a good policy for this, which includes a complaint mechanism and training for everyone in the workplace. Training, communicating and understanding of the policy is also critical - for everyone in the workplace. The law in Ontario will not excuse ignorance or overlooking it.

This WARDS PC BLAWG 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.

Ontario Human Rights Commission

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

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