2019 Year in Review

Now that we're well across the threshold into 2020, it's a good opportunity to review some of the most important labour and employment law decisions of last year.

1. Limits on the Duty to Accommodate

A couple of employment-related human rights decisions this year highlighted the importance of an employee being able to meet the essential requirements and duties of a job in order to be accommodated:

• Linklater v. Essar Steel Algoma Inc. - An employee who was being accommodated due to a disability was not discriminated against when required to work the shifts assigned to the accommodated position, although this meant a reduction in his weekly hours (and compensation) (see the article here).
• City of Toronto v. Canadian Union of Public Employees, Local 79 - Where an employee could no longer perform a full-time role, the employer was permitted to accommodate the employee in the part-time bargaining unit, although this meant a reduction in the benefits available to the employee (see the full article here).
• Peternel v. Custom Granite & Marble Ltd. - An employee was not subject to discrimination where the employer insisted that the employee work the original hours for her role, even though she had been permitted previously to attend work late to address her childcare needs (full article here).

2. The 24-Month "Cap" on Reasonable Notice of Dismissal

Despite being in his 60's and having 37 years' service, the plaintiff in Dawe v. Equitable Life Insurance Company of Canada saw his trial award of 30 months' pay in lieu of reasonable notice reduced by the Ontario Court of Appeal. In doing so, the Court observed that the motion judge had put undue weight on the impact of the abolition of mandatory retirement, and had failed to apply the courts' precedents. In particular, the Court of Appeal reaffirmed that, in the absence of "exceptional circumstances", an upper limit of 24 months still applies to awards of reasonable notice. The trial judge had effectively made an award designed to bridge the plaintiff to age 65, which was not supported by the authorities.

3. Violation of Settlement Agreement Requires Grievor Repay "Severance" - Acadia University and The Acadia University Faculty Association (Mehta Grievance)

When an employee and his union agreed to resolve his termination grievance with his employer, a university, the minutes of settlement expressly denied any culpability or liability on the part of the employer. The agreement also included the prohibition that "no term of these Minutes will be publicly disclosed". Almost immediately after the minutes were executed, the grievor posted on Twitter how he had been "vindicated" and at least one person who followed him made the inference that he had received a payment of some kind. He was told by his union to remove the tweets, but went further online, accusing the employer of withholding his "severance pay". After finding that the grievor had violated the terms of the minutes of settlement, the arbitrator went on to state:

... Settlements in labour law are sacrosanct and given the repeated and continuing breaches, together with the absence of any mitigating circumstance or explanation, I find that the University is no longer required to honour the payment provision.

Good news for employers concerned about the confidentiality of their settlement agreements. You can read the decision here.

4. Permanence Requirement for Hiring Leads to Significant Damages - Haseeb v. Imperial Oil Limited

When Imperial Oil refused to hire Muhammad Haseeb, because he was not "permanently" eligible to work in Canada (and because he had not immediately disclosed this fact), it violated his human rights, according to the Human Rights Tribunal of Ontario. While the Tribunal considered the fact that the Applicant had repeatedly given false answers when asked if he was able to work in Canada "on a permanent basis", it determined that his dishonesty had only occurred because of the discriminatory nature of the question. Accordingly, the Tribunal determined that the Applicant was entitled to damages equal to the difference between hat he would have earned at Imperial Oil, and what he made in the position he worked between March 2015 and May 2019, when he pursued other career opportunities. In total, the Applicant was entitled to $105,000 in lost wages, plus human rights damages of $15,000. The lesson to employers is that you cannot deny employment based on a dishonest answer to a discriminatory question. Check out the full decision here.

5. Wynne Government ESA Amendments Swept Away

Following the election of the Conservative government of Doug Ford in 2018, change was afoot. In particular, many of the amendments to the Employment Standards Act, 2000 introduced by the Liberals in their last year in office were targeted for removal in Bill 47 (media release here). As a result, 2019 saw the following changes to the employment standards regime:

• 10 Personal Emergency Leave days, 2 of which were to be paid, replaced by three new leaves of absence with a total of 8 days' leave entitlement, none of which is paid time off;
• Minimum wage increase to $15/hour planned for January 1, 2019 cancelled;
• New scheduling, "on call" and shift cancellation obligations removed;
• Public holiday pay formula reverts to its prior form (i.e., all wages earned in prior 4 weeks divided by 20); and
• Provisions that would have required employers to pay employees the same wages, irrespective of their employment status (full-time, part-time, casual, seasonal), were removed.

In addition, some changes were also made to the Labour Relations Act (such as eliminating card-based certification in the building services, home care and temporary help agency industries), and implementation of the Pay Transparency Act was put on hold indefinitely.

6. Tort of Harassment Not Recognized - Merrifield v. Canada (Attorney General)

The Ontario Court of Appeal was called on to determine whether a new tort of "harassment" ought to be recognized in Ontario law. At trial, a member of the RCMP had successfully argued that this new cause of action should be available to provide a remedy to individuals who face bullying or other unwelcome behaviour in the workplace. In addition to $140,000 in damages, the lower court had also awarded the plaintiff $825,000 in legal costs. After cataloguing numerous factual and legal errors in the trial judge's decision, the Ontario Court of Appeal overturned the essential findings, stating categorically that there was no tort of harassment recognized in the common law of this province. The Court of Appeal also rejected the notion that rather than recognizing a new type of claim, it could create one. The Court also overturned the finding that the RCMP had intentionally inflicted mental suffering on the plaintiff, and ordered that the employee pay the employer's costs of the trial and appeal. Read my article on the decision here.

7. Rehiring Harasser Constitutes Constructive Dismissal of Harassed Employee - Colistro v. Tbaytel

Where an employer re-hired an individual who had previously been terminated, despite being told that the individual had previously engaged in sexual harassment, the Ontario courts have concluded that the employer may be liable for constructive dismissal if the harassed employee finds that the workplace has been poisoned. The plaintiff, a 20-year employee of the utility, advised HR and her manager, that she could not work in an environment with the re-hired executive, and was offered accommodation in another building, which she declined. The employer proceeded with the hiring. The plaintiff resigned, having been diagnosed with PTSD. She commenced an action for constructive dismissal and intentional infliction of mental suffering. The latter claim was rejected, both at trial and on appeal, but the award of damages for constructive dismissal was upheld by the Ontario Court of Appeal, finding that the trial judge's finding that the employer's conduct was "demeaning, dismissive and “re-victimized the plaintiff"" was well supported by the evidence. Read the decision here.

8. Inability to Measure Impairment Renders Accommodation of Cannabis Use Impossible - International Brotherhood of Electrical Workers, Local 1620 v. Lower Churchill Transmission Construction Employers’ Association Inc.

Employers with safety-sensitive operations will be relieved to hear that not all employee use of medical marijuana needs to be accommodated. The issue came before the Supreme Court of Newfoundland and Labrador when a union member was denied employment on the Lower Churchill Transmission Construction Project on the basis that he used prescribed cannabis to treat symptoms of a medical condition. A labour arbitrator had rejected the union's grievance, finding that the lack of "currently available technology and resources" to accurately measure impairment by cannabis meant that the employer could not accommodate the worker without incurring undue hardship (because of the health and safety risk posed by an impaired worker in this setting). In upholding the arbitrator's decision, the Court found that the arbitral decision had considered and applied the legal tests, and had weighed the evidence, which established that effective testing for impairment was not available to reduce the safety hazards presented by an impaired employee. Accordingly, the Court concluded that the decision of the arbitrator was reasonable. The full decision can be found here.

9. Refusal to Accept Withdrawal of Resignation = Constructive Dismissal - English v. Manulife Financial Corporation

The employer announced that it would be changing its computer systems, requiring staff to be trained in the new technology. The plaintiff, a 64-year-old employee who did not wish to undertake training on the new system, opted to submit notice of her retirement. However, less than 3 weeks after announcing the plaintiff's retirement, the employer decided to not go forward with the software update. Hearing this news, the plaintiff attempted to withdraw her retirement notice, but was refused. She commenced an action for wrongful dismissal, but was unsuccessful at trial. However, the Ontario Court of Appeal finding that she had not given a clear and unequivocal resignation - her retirement was premised on circumstances that did not come to fruition, and the employer ought to have allowed her to take back her retirement notice when it decided to not proceed with the change of technology. In failing to do so, the employer had broke its earlier promise that the plaintiff could "change her mind", and had wrongfully terminated her employment. You can find a lengthier article on this decision here.

10. Some Clarity on the Distinction Between Contractors and Employees

Two 2019 decisions provided some valuable insight into the factors that separate contractors from employees.

• In Thurston v. Ontario (Children's Lawyer), the plaintiff lawyer had provided services to the Office of the Children's Lawyer through a series of 1-year contracts over a 13-year period. When the most recent contract was not renewed in 2015, she brought a claim for reasonable notice, claiming that she was a dependent contractor. However, the evidence indicated that she continued to practice law outside of the contractual relationship (with her own office, equipment, etc.), and that the contracts with the province only represented less than 40% of her annual revenue. On appeal of the trial court's finding that she was a dependent contractor and entitled to notice, the Ontario Court of Appeal determined that the necessary 'financial dependence' (akin to exclusivity) was not present, and that the lawyer was, in fact, an independent contractor. Read my full article on the case here.
• In Modern Cleaning Concept Inc. v. Comité paritaire de l’entretien d’édifices publics de la région de Québec, the Supreme Court of Canada was called upon to determine whether a cleaning contractor was actually an employee, as the Quebec Court of Appeal had concluded. In upholding that decision, the Supreme Court, observed that the contractual characterization of the worker as a "franchisee" was not determinative, and that the focus of the assessment should be on the typical factors: control of how the services were performed, opportunity for profit and risk of loss. Given that Modern Cleaning exercised significant financial control, maintained the relationship with the client, and controlled how and by whom the work was performed (removing the 'franchisee's' ability to maximize profit), the majority of the Court concluded that the relationship was more similar to employment than a true independent contractor arrangement. For a more thorough analysis, read the article here.

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Operating as Ceaser Work Counsel since early 2014, Lance Ceaser is a 15+ year management-side labour and employment lawyer operating from London, Ontario, where he resides with his lovely spouse, a dog and 2 cats. Lance has provided timely, cost-effective advice to organizations of all sizes in virtually every sector of industry and the public sector throughout his career.