At the end of 2011, we wrote about the case of Maclean v. The Raywal Limited Partnership. In that case, the Superior Court confirmed that an temporary layoff by an employer constitutes a termination of employment under the common law. Although a recent Superior Court case has questioned this principle (which we will write about shortly), McLean confirmed a commonly held view in this regard.

One interesting issue in the McLean case, which was not really adequately dealt with in the trial level decision, is what is the effect of a recall notice, if the employment relationship was terminated by the start of the layoff. In McLean, the employee received a recall notice at the time of the layoff, effective some eight months after the layoff date. She did not return to work on the recall date, even though she received a letter after seven months confirming her recall date. This offer was confirmed verbally by the President of the company at a golf tournament one day before the mediation in the court action.

The employer argued that even if the original layoff constituted a termination, the employee had an obligation to return to work in order to mitigate the damages arising from the termination. 

The trial judge disagreed, and awarded 10 months of lost income. Curiously, although the trial judge said that refusing the job offer made at the golf tournament did not indicate a failure to mitigate, he did not deal at all with the fact that there was a recall date specifically set out at the time of termination, or explain why the employee should not have taken that offer.

The employer appealed, and the appeal was partially granted. In a very brief decision, the Ontario Court of Appeal said that the failure to answer the recall notice constituted a failure to mitigate her damages. Consequently, no lost income should be awarded for the period after the recall notice was effective.  In making this decision, the Court noted that there was no evidence of a poisoned workplace, and the mere fact that there was ongoing litigation did not mean the employee should not return to work.

There are a number of cases now dealing with when an employee has to mitigate their damages by returning to work for their previous employer, most notably the Supreme Court’s decision in Evans v. Teamsters Local Union No. 31. The decision in McLean is helpful to employers in extending the circumstances in which an employee should act reasonably and accept an offer to return to work from the employer who has terminated them.

The Ontario legislature added “gender identity” and “gender expression” as prohibited grounds of discrimination to the Human Rights Code (the “Code”) in the summer of 2012. The Human Rights Tribunal of Ontario (“HRTO”) had previously recognized discrimination against transgendered-people to be prohibited on the basis of “sex”, thus the Code amendments were seen by many to be largely symbolic – a formal acknowledgment of the challenges faced by one of the most marginalized groups in society. Now, one of the first decisions to consider accommodation of “gender identity” has been released.

In Vanderputten v. Seydaco Packaging Corp. and Gerry Sanvido, the Applicant began transitioning from living as a man to living as a woman after five years of service with her employer. The first phase of her transition involved hormone therapy, which triggered a number of physical changes including the development of breasts. Gender reassignment surgery would follow a few years later.

While the employer expressed outward support for the Applicant’s transition, it insisted on continuing to treat her as a man until her entire transition was complete – that is, until after surgery. In the intervening two year period, the employer refused to permit the Applicant to use the women’s change room (even though she had developed breasts). It also opted not to intervene when the Applicant complained she was being harassed by supervisors and co-workers through the occasional use of derogatory language and homophobic slurs.

For her part, the Applicant had a long disciplinary record, much of it stemming from well-documented anger management issues and inappropriate behaviour in the workplace. Thus, following a heated altercation with a co-worker in 2010, the Applicant was dismissed from her employment. The Applicant subsequently filed a complaint with the HRTO alleging discrimination, reprisal and a poisoned work environment.  

The HRTO held that employers have a duty to accommodate “employees in transition.”  While recognizing that issues such as determining which change room is appropriate for transgendered employees may be challenging for some employers, continuing to insist that a transitioning employee be treated the same until gender reassignment is complete will not satisfy the duty to accommodate. In this case, the employer’s continued insistence on treating the Applicant like a man was discriminatory, as was its failure to canvass any reasonable accommodation options (such as designating a private washroom for her use, or changing shift times so that she could have private use of the men’s change room prior to her shift.) The employer also failed to meaningfully investigate the Applicant’s complaints of harassment by co-workers and did little to improve its poisoned work environment. Finally, the HRTO concluded that one of the reasons for the Applicant’s termination was indeed prejudice towards transgendered people.

In assessing remedy, the HRTO awarded the Applicant slightly less than the $25,000 in damages she sought after it concluded that the employee’s own conduct had, in some instances, contributed to the poisoned work environment.  The HRTO also held a supervisor jointly and severally liable for $1,000 of the damages award against the employer for his personal conduct towards the Applicant. In respect of lost wages, because of the Applicant’s lengthy disciplinary record, the HRTO awarded eight months of back pay – far less than the damages to the date of hearing which the Applicant had requested.

This decision highlights the importance of both the procedural and substantive components of the employer’s duty to accommodate, and the need to canvass multiple accommodation options before concluding that none are possible. The decision also shows that the HRTO will take an employee’s own conduct into account when assessing remedy, especially where their behaviour may have exacerbated already strained workplace relations.

Last week Thursday, the Liberal government in Ontario released its proposed budget. While we’re still waiting to hear from the NDP as to whether their support will ensure its passage, we have prepared a brief summary on its potential impact on pension law in Ontario should it ultimately be passed.

Last November, we wrote about the case of Carrigan v. Carrigan Estate, in which the Court of Appeal overturned the commonly understood interpretation of the death-benefit entitlement provisions of the Pension Benefits Act, in a way that potentially disentitles many common law couples from their spouses’ pensions. In this budget, the government has committed to reviewing this case and its potential effects in order to determine whether amendments to the PBA would be appropriate.

In a significant shift from the position taken by the McGuinty government, this budget proposes that Ontario consult with interested parties about how Pooled Registered Pension Plans could be implemented in Ontario. Other provinces had previously committed to implementing these plans, which have been proposed by the federal government as a way to increase retirements savings. Under McGuinty, the position of the government had been that Ontario would not implement these plans, but it seems the Wynn government does not want to be left behind as other provinces do implement them. Even if the plans were implemented, participation would be voluntary.

Previous budgets have also committed the government to developing a framework for single employer Target Benefit Plans in collectively bargained workforces. These plans vary employer and employee contributions in an attempt to amass enough assets to pay out a target (but not guaranteed) benefit upon retirement. This budget reiterates the commitment to making rules and regulations to allow employers to introduce these plans, but does not comment on whether these plans may eventually be available for non-unionized workplaces.

Finally, the budget reiterates previous announcements relating to public sector pensions, but does not add nothing new in this area. It continues a previous commitment to move public sector pension plans away from fragmented Single Employer Pension Plans, and to move all existing SEPPs towards a 50% employee contribution ratio over the next 5 years.

If you have any questions on how this proposed budget may affect pension law in Ontario, please do not hesitate to contact me directly.

The Ontario Human Rights Tribunal is in the midst of hearing a case involving a Jamaican citizen who died while working in Canada as a temporary agricultural worker.   

The worker died in August 2002 after a farm skid fell on him.  At the time of his death, he was working for a tobacco farm just outside of Brantford, Ontario.   

Although local police investigated the circumstances surrounding the worker's death, the family of the deceased worker believes that there remain many unanswered questions.  The family accordingly requested that a coroner’s inquest into his death be conducted.  This request was refused. 

The family claims that the refusal to conduct an inquest violates the Ontario Human Rights Code because it disproportionately discriminates against seasonal agricultural workers, a large number of whom are foreigners.  The family specifically argues that a coroner's inquest should be mandatory in deaths involving seasonsal agricultural workers.  Currently coroner inquests are only mandatory in cases involving deaths in construction, mining, or quarry work. 

The Toronto-based non-profit group Justice for Migrant Workers is representing the deceased worker’s family. They believe temporary foreign workers are not accorded the same protection as Canadians and permanent residents when it comes to employment standards and health and safety protection. They also claim that temporary foreign worker live in Canada in a precarious state with significantly less security than local workers.

According to Human Resources and Skills Development Canada 14 agricultural workers died at work between 1996 and 2002. 

We will provide updates to this case as the hearing continues and more information becomes available.

For further information please do not hesitate to contact the writer at ssultan@heenan.ca or 416-7774175.

On April 18, 2013, the Human Rights Tribunal of Ontario released a decision that will be alarming to employers across the province. In Morgan v. Herman Miller Canada Inc., the applicant, Aldeen Morgan, filed an application against his previous employer, Herman Miller Canada Inc., and the President of Workplace Resources, Corrado Fermo, alleging discrimination and harassment based on colour, and reprisal.

The applicant had worked with Herman Miller Canada Inc. from July 3, 2007 to March 10, 2010 as an Installation Scheduler. His employment was terminated by the employer for a variety of work-related issues.

In his Application, the Applicant alleged that he was discriminated against in the following ways:

• he was assigned menial and demeaning tasks such as breaking down boxes or taking the garbage to the basement;
• he was inappropriately disciplined and subsequently ignored for having disseminated confidential information to contractors;
• he was the subject of a client complaint that the applicant’s team looked “like they were picked up at the corner of Queen and Sherbourne;” and
• he was terminated for complaining about the mistreatment he received in the workplace.

The Tribunal found that the applicant had failed to establish that he was discriminated against in any way. He was not allocated menial and demeaning job tasks, he was not disciplined, and he was not the subject of client complaints on the basis of his colour.

However, the Tribunal did conclude that Herman Miller had not diligently followed up on his (unfounded) complaint that he was being discriminated against in the workplace. It also found that the Applicant’s employment was terminated in part because he had raised issues of harassment and threatened to sue the company. This was said to be an act of reprisal against the Applicant.

The Tribunal awarded the applicant $55,799.70 in damages for lost wages (representing 14 months of lost wages) and $15,000 in general damages for injury to dignity, feelings and self-respect.

Herman Miller Canada Inc. was also ordered to retain a human rights expert to review and revise its human rights policies and train any employee with the rank of management or higher with respect to human rights. Finally, Mr. Fermo was ordered to complete the “Human Rights 101 eLearning Module” prepared by the Ontario Human Rights Commission, even though he was no longer employed by Herman Miller Canada Inc.

This decision is disturbing in that it awards significant human rights damages to an individual who was not discriminated against in any way. Employers will be surprised to learn that a failure to seriously investigate an unfounded allegation of discrimination could result in an award of almost a year and a half’s salary for an employee. The award of general damages seems to mean that the Tribunal accepted that a failure to investigate an unfounded complaint could somehow cause injury to the  complainant's "dignity, feelings and sef-respect."

This case should remind employers of their obligation to take complaints of discrimination seriously, investigate the complaint, and document the findings.  A failure to do so may have significant consequences, even where it turns out there was nothing to the complaint in the first place.

Several news agencies, including the World Nuclear News, reported last week that a 78 month jail sentence has been received by Walter Cardin, a former Safety Manager, for deliberately falsifying workplace injury records.  Cardin was previously employed by a subsidiary of Shaw Group, Stone and Webster Construction.  Stone and Webster had been contracted by the Tennessee Valley Authority (TVA), a US government corporation, to provide maintenance and repair services at two nuclear sites. Services included construction work for a restart of a facility.  Reportedly, Cardin provided false and misleading information about worker injuries at the facilities, which was then used by Stone and Webster to collect safety bonuses of over $2.5 million from the TVA. 

The corporation repaid the bonuses, and then some, to the US government as part of a civil settlement over the false claims and contract fraud in early 2009.  Cardin proceeded to trial. 

Cardin was convicted after a November 2012 jury trial of falsifying records. The court found that more than 80 injuries, involving broken bones, torn ligaments, and other injuries were not properly reported and employees were denied medical treatment or received delayed medical treatment as a result of the Safety Manager’s actions.  He reportedly denied intentionally misclassifying the injuries and said he did not know safety bonuses were tied to his injury reports.  Investigators found emails confirming the contrary.  The Safety Manger’s sentence took into account a finding that he had obstructed the course of justice in the trial by denying his actions, despite evidence ot the contrary.  Prosecutors commented after the sentencing that the Safety Manager’s practices:

• affected the safety of the work environment of nuclear sites,
• resulted in employees becoming more reluctant to report injuries, employers failing to address safety issues at work sites, and
• employees working through medical conditions that created risks of additional injuries to themselves and others.

Canada’s Temporary Foreign Worker Program (TFWP) has come under serious criticism during the past several weeks. 

The program is being charged with taking jobs away from Canadians and permanent residents, leaving locals unemployed while depressing the wage levels of those who are employed.   The criticism of the program has been both severe and swift.  The pressure has been so great that the federal government has just this week proposed various reforms to the program.   

Throughout the latest firestorm there has not been enough debate of substance. Rather, and unfortunately, the bulk of the discussion on this issue has consisted of overreaching claims regarding the apparent damage this program is doing to Canada’s labour market and the impact it has on foreigners. 

While this can be partly explained by the emotions that this topic has ignited, it is of paramount importance that policy relating to the Temporary Foreign Worker Program be formed in an atmosphere of reasoned and informed debate. 

What is the Temporary Foreign Worker Program? To read further please click here.

For several months, the Saskatchewan Court of Appeal has been deliberating over whether the right to freedom of association in the Charter of Rights and Freedoms guarantees public sector workers the right to strike. This is a question that the Supreme Court has pointedly declined to decide in its recent decisions on freedom of association and collective bargaining. Last Friday, the Saskatchewan Court of Appeal released its long-awaited decision.

We have written about the trial-level decision previously. In that case, the Saskatchewan Court of Queen’s Bench came to the surprising conclusion that the Charter does guarantee this right.

In this litigation the Saskatchewan labour movement, led by its umbrella organization, the Saskatchewan Federation of Labour, challenged certain provisions of essential services legislation that allowed the government to unilaterally deem particular public workers' services as "essential", thus prohibiting strike action at the end of the bargaining process.  The trial judge upheld this claim. In addition, the unions argued that various technical amendments to the Trade Union Act were also unconstitutional, because the amendments made it more difficult for unions to certify in the province. This claim was dismissed.

We noted previously that the trial court’s decision on the first question was unexpected, and the Court of Appeal has confirmed that view. It allowed the appeal, and agreed that the right to strike is not protected by the constitution.

The main underlying reason for the Court of Appeal’s decision was that the Supreme Court, in its 1987 decision in the Alberta Reference, had specifically confirmed that the right to freedom of association does not include a right to strike. As noted above, the Supreme Court has consistently specified in later years that it was not dealing with the right to strike, even in cases dealing with other associational rights such as collective bargaining. The Court of Appeal took the simple position that until the Supreme Court reverses its own precedent on this point, lower courts are bound by it. Since the unions will likely seek leave to appeal, this leaves the ball in the Supremes’ court to determine whether now is the time to answer this question.

The Court of Appeal went on to comment on the labour movement’s argument that lower courts could decline to apply the Alberta Reference precedent because in their view, “it appears that the higher court will overrule the precedent in question when and if it has the opportunity to do so.” The Court of Appeal declined to apply this novel argument, noting simply that it is up to the Supreme Court to reverse itself.  The Court of Appeal went on to state that contrary to the position of the unions, it is not certain at all that the Supreme Court will reverse this precedent.

I would go farther, and say that it seems highly unlikely, in light of the recent decision in Ontario (Attorney General) v. Fraser and the direction from the Supreme Court in that case regarding the interpretation of freedom of association, that the Supreme Court as currently composed will reverse its own precedent on the right to strike question.  In Fraser, the Supreme Court clearly confirmed that the protected right under s. 2(d) is the right to associate and make representations to an employer collectively, but is not a right to any particular model of collective bargaining, or to any substantive outcomes. While no one can fully predict future moves from the Supreme Court, it seems unlikely that a guaranteed right to strike flows from the Fraser decision.

The Court of Appeal also dispensed quickly with the union’s unprecedented suggestion that technical changes to the certification process in Saskatchewan were a breach of the Charter. The unions had even taken the startling position that requiring a democratic secret ballot among employees before certification could be granted is unconstitutional! The Court of Appeal confirmed that policy decisions about thresholds of support and secret ballots were matters within the discretion of the legislature. This part of the decision upheld the trial-level decision, and was a clear application of the precedent in Fraser.

This is a positive decision confirming the primacy of the legislatures in dealing with questions relating to the labour relations regimes in place in Canada. We will let you know the status of any future proceedings before the Supreme Court as soon as information becomes available.

The federal government announced yesterday that it is overhauling the Temporary Foreign Worker Program (TFWP).  This follows recent criticism of the program, namely that it was taking away opportunities for Canadians and reducing general wage levels across the country.

The proposed changes include the following:

• A requirement that employers have in place a plan to shift to hiring Canadian workers
• Cancellation of a pilot project that allowed employers in certain circumstances to pay up to 15 percent below the prevailing wage rates to temporary foreign workers
• Increased government authority to suspend and revoke work permits where employers are deemed to be abusing the program
• A requirement for employers to pay new fees in requesting to hire a foreigner
• An immediate suspension of the Accelarated Labour Market Opinion process, which allowed for expedited processing of temporary work permits
• A rule that English and French can be the only languages required for job 

We will be both assessing and providing further analysis of these changes shortly.  We are also hosting a session at our Toronto offices on May 22nd on managing global mobility in the light of changing immigration and employment rules and regulations.  Do not hesitate to sign up for this free seminar at the following link.

For further questions, please do not hesitate to contact the writer at ssultan@heenan,ca or 416-777-4175.   

In the context of labour arbitrations, long service has often been a factor invoked by arbitrators to mitigate against serious disciplinary consequences – particularly against terminations of employment for just cause.

The employer in the case of Tonolli Canada Limited v. United Steelworkers, and its Local 9042 is in the business of recycling lead acid batteries.  Given that lead is a designated substance under Ontario’s Occupational Health and Safety Act, the company is required to have a Designated Substance Control Program in place.  Among other matters, the program requires employees to wear respirators to protect them from inhaling lead dust.  In order for the respirators to function properly, a clean seal is required such that employees must be sufficiently clean shaven to facilitate the skin seal of the mask.

The company terminated the employment of a 37-year employee, Frank Marsiglia, for just cause following two incidents in which Mr. Marsiglia failed to report to work clean shaven and failed to wear his hard hat, safety glasses and a respirator (“PPE”), despite prior warnings.  While the company conceded that these incidents alone would likely not suffice to establish just cause for termination, it pointed to Mr. Marsiglia’s rather extensive employment and disciplinary record to support its position.

Specifically, in the one year period prior to his termination of employment for just cause, Mr. Marsiglia had 7 instances of discipline on his record, including a number of warnings about his failure to wear PPE and a 25-day suspension following a number of serious safety incidents – including the unsafe operation of a loader, a failure to report a collision and sleeping in a Bobcat during work time.

The company took the position that Mr. Marsiglia’s repeated safety violations over the one year period amounted to just cause for termination, despite Mr. Marsiglia’s long service. It also pointed to the fact that Mr. Marsiglia was a certified member of the company’s Joint Health and Safety Committee, such that he was well aware of the specific health and safety standards relevant to his performance. The union took the position that while discipline was appropriate, termination for just cause was excessive in light of Mr. Marsiglia’s long service and various other factors.

After considering the evidence, the arbitrator upheld Mr. Marsiglia’s termination for just cause, despite his long service on the basis that Mr. Marsiglia had numerous opportunities to improve on his performance following various instances of discipline and failed to do so for what the arbitrator referred to as “one of the most patient employers I have seen in my more than 25 years as a labour relations adjudicator.”

This case makes it clear that the traditional arbitral approach to long service may give way when the employee misconduct in issue involves serious and repeated safety violations.

Tonolli Canada Limited v. United Steelworkers, and its Local 9042, 2013 CanLII 15108 (ON LA)