December 9, 2013 Number 1488 Employee Entitled To Sue for Bonus Payments Three and a Half Years After

Employer Made Its Decision Q & A.............. Progress of Legislation Alberta . . . . . . . . . . . . . New Brunswick . . . . . Newfoundland and Labrador . . . . . . . . . . . . Prince Edward Island . . . . . . . . . . . . . . . Did You Know . . . When Can a Manager Sue the Union for Defamation And Win? . . . . . . . . . . Recent Cases . . . . . . 5 6

ONTARIO COURT AWARDS DAMAGES UNDER HUMAN RIGHTS CODE

By Brenda Bowlby, LL.B., LL.M. Hicks Morley Hamilton Stewart Storie LLP. Reproduced with permission. In what appears to be the first decision under s. 46.1 of the Ontario Human Rights Code (Code), which permits courts to award damages for violations of Code rights, the Ontario Superior Court of Justice has awarded damages for infringement of Code rights in an amount of $20,000. (Prior to the changes enacted to the Code in 2008, courts were

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unable to make damages awards for the infringement of Code rights.) These damages were awarded against an employer found by the Court to have terminated the employment of the plaintiff at least in part because of her disability (an ailing back). The case, Wilson v. Solis Mexican Foods Inc.,1 provides yet another cautionary tale for employers. The plaintiff, who was employed as a business analyst, commenced her employment in December 2009 and was dismissed without cause 16 months later with only two weeks notice in accordance with the Employment Standards Act, 2000. The reason for the dismissal given by the employer was that the company had been organizationally restructured (i.e. it had been sold) and her job had become redundant. The evidence before the Court disclosed that the plaintiff had received a satisfactory

performance review in November 2010, that a few weeks later she disclosed to the Human Resources Manager that she had back problems, and that a few days after this disclosure the Human Resources Manager met with senior management who shortly

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thereafter concluded that the plaintiff might not be suited to be an employee with the company. This sequence of events proved to be critical in the Courts judgment. In March 2011, the plaintiff booked off sick and provided a medical note stating that she was required to be off work until further notice. A subsequent gradual return to work plan proposed by her doctor was rejected by the employer on the basis that the employer wanted the plaintiff to return to work only after she had had a complete recovery and could perform all duties. The employer also expressed concern about the doctors accommodation proposal which involved the plaintiff performing her duties in a

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combination of sitting, standing and walking. The plaintiff remained off work. At no point prior to the termination of her employment did the employer advise the plaintiff of the pending sale of the business.

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Ultimately, a letter was sent by the employer to the plaintiff on May 19, 2011, eight days after the company was sold, advising the plaintiff that her employment was being terminated due to an organizational restructuring and providing her with two weeks notice. The plaintiff commenced a wrongful dismissal action alleging that the termination had occurred because of her ongoing back ailment. In addition to damages for wrongful dismissal, she asked for damages for the breach of her human rights, pursuant to section 46.1 of the Code. Based on the evidence, the Court concluded that upon learning about the plaintiffs back problems, senior management had decided that they wanted to get rid of the plaintiff. It also noted that the employer had failed to cooperate in the temporary accommodation of the plaintiff through a gradual return to work. The Court commented that the employer, having managed without the plaintiff for a period of time while she was off sick, used the restructuring as the excuse it needed to rid itself of the plaintiff for once and for all. It held that the plaintiffs disability was at least part of the reason for the decision to dismiss her. Having found that the plaintiff had been dismissed without reasonable notice, the Court awarded notice in the amount of three months. With respect to the plaintiffs human rights claim, the Court noted that any decision to terminate an employee which is, in whole or in part, made on the basis of a disability is discriminatory and contrary to the Code. It concluded in this case that, for the reasons recited above, the plaintiffs ongoing back problem was a significant factor in the employers decision to terminate her. The Court justified the award for damages for the infringement of the plaintiffs rights under the Code based on the following considerations: [90] First, in this case, the plaintiff lost the right to be free from discrimination and experienced victimization. Second, the defendants breach of the statute is serious. The defendant orchestrated the dismissal and was disingenuous at various times both before and during termination. [91] As Aston J. wrote in Dwyer, supra, at para. 50: When dismissing employees, employers are under a duty to act fairly. They are required to be candid, reasonable, honest and forthright. Telling an employee they are valued while making them overcome various obstacles so that they do not return temporarily and then terminating them permanently when the time is ripe, does not meet that standard. While this appears to be the first wrongful dismissal claim in which damages have been awarded under the Code, it will certainly not be the last. Consequently, in order to proactively defend against such claims, employers must ensure that they treat employees fairly. In this regard, the following factors should be noted:

Accommodation of disabilities and other Code-related rights must be taken seriously. The fact that an employee has unrelated performance issues is not an excuse for failing to provide accommodation. Affording a graduated return to work opportunity to employees who have been off because of a disability is a reasonable accommodation which must be provided unless doing so would be an undue hardship to the employer. Care must be taken to ensure that employee performance assessments are based on standards of performance that are legitimate, defensible and consistent with the expectations placed on all other employees doing similar work. When concerns arise about an employees competence or attitude, these cannot be ignored or soft-pedalled but must be addressed with the employee in a complete (that is to say, in clear words that accurately describe the concerns) and timely manner. Failing to do so will lead the employee and potentially any adjudicator who subsequently reviews the situation to infer that the employees performance had been acceptable, contrary to what the employer now asserts.

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As a result, if the employee is subsequently disciplined or dismissed for the incompetent performance that has been previously condoned for a period of time, the employee may look for a reason why she or he is now being the subject of such discipline or dismissal. If the employee has a Code-related issue going on in his or her life, the employee might infer that the employers actions were the result of discriminatory motivations. If the employee is dismissed, a claim for human rights damages will likely be included in any claim for wrongful dismissal. In this regard, the failure by the employer to deal with the performance issues in a timely and fair manner may lead to the conclusion that the employers actions were motivated in part by discriminatory reasons.

Brenda Bowlby is a partner in Hicks Morley, an Ontario law firm which restricts its practice to representing employers in human resources law and advocacy.
Notes:
1 Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799 (CanLII).

EMPLOYEE ENTITLED TO SUE FOR BONUS PAYMENTS THREE AND A HALF YEARS AFTER EMPLOYER MADE ITS DECISION
By Bonnea Channe. Bonnea Channe is a lawyer at Filion Wakely Thorup Angeletti LLP. She can be reached at bchanne@filion.on.ca. For further information, visit www.filion.on.ca. Filion Wakely Thorup Angeletti LLP. Reproduced with permission. Benson v. Bird Mechanical Ltd., 2013 ONSC 5375 A recent decision of the Ontario Superior Court of Justice serves as a reminder to employers that, in addition to ensuring the terms and conditions of any bonus programs are clear, unambiguous and in writing, any decisions with respect to an employees entitlement to receive bonus payments should be communicated to the employee in clear and definitive terms. In Benson v. Bird Mechanical Ltd., 2013 ONSC 5375, the Plaintiff was employed as a project manager and estimator for Bird Mechanical Ltd. (the Company). The Plaintiffs employment contract provided that the Plaintiff would be eligible to receive a bonus based on his performance and an incentive bonus based on company sales. The Plaintiff was employed from July 2007 to September 2010. During his employment, the Plaintiff received bonuses in respect of the 2007 and 2009 performance years. He did not receive any bonuses for the 2008 or 2010 performance years. With respect to the 2008 performance year, during a meeting in early 2009, the Company orally advised the Plaintiff that he would not receive a bonus for 2008 as his performance was poor. There appears to have been no discussion on whether the Plaintiff would receive an incentive bonus based on company sales. Although the Company orally informed the Plaintiff that he would not be receiving any bonuses for 2008 because his performance was poor, it appears the Company failed to make it clear that its decision was final. It also appears the Company failed to address whether the Plaintiff might still be eligible for a 2008 incentive bonus based on company sales. The Plaintiffs employment was terminated in September 2010. The Plaintiff then commenced an action against the Company seeking, among other things, damages in respect of bonus payments allegedly owed for the 2008 performance year. The action was filed in June 2012. The Company brought a motion for partial summary judgment to dismiss the Plaintiffs claim for the 2008 bonus payments. The Companys motion did not deal with other aspects of the Plaintiffs claim, including any claim for bonus payments in respect of 2010. The Company argued that the Plaintiffs claim for the 2008 bonus payments was untimely and statute barred under the Limitations Act, 2002. Under the Limitations Act, 2002, the Plaintiffs claim for bonuses must be brought within two years of the day the claim was discovered or the date the cause of action arose. In this case, the Company argued that the event giving rise to the claim for the 2008 bonus occurred in early 2009, when the Company advised the Plaintiff he would not be receiving a bonus for 2008. It was, therefore, the Companys position that the Plaintiffs claim for the 2008 bonus was brought more than three and a half years after the date the cause of action arose.

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In an endorsement issued on August 20, 2013, a judge of the Ontario Superior Court of Justice dismissed the Companys motion. The judge found that the Plaintiffs employment contract, which set out his eligibility to participate in the bonus program, did not specify when the Plaintiffs bonuses would be paid and whether any unpaid bonuses to which the Plaintiff was entitled to receive would accrue during his employment. The judge also noted that the Plaintiff never received adequate information as to how the Company determined his eligibility for bonus payments. In particular, although the employment contract stated that sales would be a factor considered by the Company, the contract did not define sales. This made it difficult for the Plaintiff to determine whether sales included projects that were booked and/or underway, or only those sales on projects that were completed. In these circumstances, the judge found that the Plaintiff did not realize he would receive no bonuses for 2008 until his termination in September 2010. As such, the motions judge held that the limitation period with respect to the Plaintiffs claim for the 2008 bonus payments began to run at the time of his employment termination in September 2010. The judge therefore dismissed the Companys motion for partial summary judgment and permitted the Plaintiff to pursue his claim for the 2008 bonus payments at trial.

Commentary
This decision serves as a reminder to employers that, in addition to setting out in writing the terms and conditions of any bonus program, any decisions with respect to an employees entitlement to receive bonus payments, if any, should be communicated in clear language and in writing. Employers should ensure that employees are advised in definitive terms as to whether or not they are entitled to receive bonus payments for a particular performance year. Employers that fail to advise employees of this information may be exposed to liability in a claim for alleged unpaid bonuses years after the period in which the bonus would have been paid if earned.

Q&A
Can I Refuse a Job to Someone Who Was Convicted of a Criminal Offence?
In Ontario, Quebec, the Northwest Territories, Nunavut, and the federal jurisdiction, discrimination on the basis of a conviction for which a pardon has been granted is prohibited (the Northwest Territories and the federal jurisdiction also refer to record suspensions). In British Columbia, Newfoundland and Labrador, Prince Edward Island, Quebec, and Yukon, discrimination on the basis of a conviction which is unrelated to a persons employment is prohibited. Employees with such histories cannot be treated in a discriminatory or harassing manner in the workplace. For example, employment decisions should not be affected by employer knowledge that a person has been convicted of an offence for which a pardon was granted. However, there is an exception to this rule. Where an employer can show that it is necessary to exclude such persons from a hiring process because of the nature of the job, the employer may be excluded from the prohibition against discrimination based on criminal conviction. The employer must show that it would be subject to undue hardship if it were to hire the person with the criminal conviction.

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PROGRESS OF LEGISLATION
Alberta Introduces the Public Sector Services Continuation Act
Bill 45, the Public Sector Services Continuation Act (the Act), would, if passed, impose harsh penalties on public sector employees and trade unions that engage in illegal strikes or threaten to engage in an illegal strike. The proposed legislation, which would apply to unions and workers who are not permitted to strike under the Labour Relations Code and the Public Service Employee Relations Act, specifically sets out the following prohibitions: (1) no employee or trade union may cause or consent to a strike; (2) no employee or trade union may engage in conduct that constitutes a strike or strike threat; (3) no person may counsel a person to contravene (1) or (2) or prevent a person from refusing to contravene (1) or (2); and (4) no trade union may discipline a person because that person does not contravene (1) or (2). The Act would allow sanctions such as a union dues suspension, an abatement order, and civil liability to be imposed on a trade union that engages in a strike or strike threat, unless the trade union can satisfy the Labour Relations Board (the Board) or the Court of Queens Bench (the Court) that the strike or strike threat occurred against the express instructions and actions of the trade union. The Act would provide that, where the Board or Court has declared that strike or strike threat has occurred or is occurring, the employer shall suspend the collection and remittance of union dues. This suspension shall begin as soon as is practicable and shall continue for three months from the first day or partial day of the strike or strike threat plus one month for each additional day or partial day that the strike or strike threat continues. The Act would also allow for the Court to make an abatement order in the event of a strike or strike threat. Such an order would:

in the case of a strike threat, require the employees and the trade union to immediately cease engaging in all conduct that constitutes a strike threat;

in the case of a strike, order the employees to continue or resume the duties of their employment without slowdown, and order the trade union to immediately instruct employees to end their strike and to continue or resume their employment; and

require the trade union to pay to the Court an amount of $1 million for each day or partial day on which the strike or strike threat occurs (subject to certain exceptions).

Amounts paid into Court under an abatement order would create a liability fund which could be used to satisfy judgments or awards related to losses incurred by an employer as a result of the strike or strike threat. Under the Act, a union would be held civilly liable for losses incurred by the employer as a result of a strike or strike threat. Such losses may include the development and implementation of contingency plans or alternative arrangements that were reasonably required as a result of the strike or strike threat. An employer who wishes to claim such costs would have to make an application to the Court within two years after the applicable strike or strike threat ended. Any such costs awarded would be in addition to any other remedies available to the employer under law. The Act would also allow administrative penalties to be imposed on employees who contravene the Act, in an amount of up to one days pay for each day or partial day of the violation.

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A person, trade union, or other organization who contravenes the Act or fails to comply with an order or directive under the Act would be guilty of an offence and liable for the following penalties:

for an employer or trade union: a fine in the amount of $250,000 plus $50 per employee in the bargaining unit for each day or partial day on which the offence occurred;

for an officer or representative of a trade union: a fine of $10,000 for each day or partial day on which the offence occurred;

for an employee: a fine not exceeding one days pay for each day or partial day on which the offence occurred; and for any other person or organization: a fine of $500 for each day or partial day on which the offence occurred.

Bill 45 received first reading on November 27, 2013 and second reading on December 2.

New Brunswick Bill Proposes Amendments to Employment Standards Act

Bill 22, An Act to Amend the Employment Standards Act, proposes amendments that would strengthen protections for foreign workers and would introduce new leaves of absence. Protections for Foreign Workers If passed, the amendments in Bill 22 would set out the following prohibitions with respect to foreign workers:

No employer shall require a foreign worker to use an immigration consultant as a condition of employment with the employer.

No employer shall, directly or indirectly, recover from a foreign worker any cost incurred by the employer in recruiting the foreign worker that is not allowed under the program under which the employer has recruited the foreign worker.

No employer shall reduce the rate of wages, reduce or eliminate any other benefit, or change the terms and conditions of employment of a foreign worker that the employer undertook to provide to the foreign worker when the employer recruited the foreign worker for employment.

No employer and no person who recruits foreign workers for employment on behalf of an employer shall misrepresent employment opportunities, including misrepresentations with respect to the position to be filled by a foreign worker, the duties of the position, the length of employment, the rate of wages, benefits, and other terms and conditions of employment.

No employer and no person who recruits foreign workers for employment on behalf of an employer shall supply or cause to be supplied false or misleading information to a foreign worker about employer and employee rights and responsibilities.

No employer and no person who recruits foreign workers for employment on behalf of an employer shall take possession of or retain property that the foreign worker is entitled to possess, including the foreign workers passport or work permit.

No employer that provides accommodations to a foreign worker shall refuse to allow the foreign worker to vacate the employer-provided accommodations for other accommodations.

No employer and no person who recruits foreign workers for employment on behalf of an employer shall threaten a foreign worker with deportation or another action for which there is no lawful cause.

The amendments would also create a registry of employers who recruit foreign workers.

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New Unpaid Leaves of Absence Bill 22 also proposes amendments which would provide job protection for employees who take certain family-related leaves of absence. Critically ill child care leave of up to 37 weeks would be available to employees where a qualified medical practitioner has issued a certificate stating that the employees child is critically ill and requires care or support. A critically ill child is defined as a person who is under 18 years of age on the day on which the leave begins, whose baseline state of health has significantly changed, and whose life is at risk as a result of an illness or injury. Crime-related child death or disappearance leave of up to 37 weeks would available to employees whose child (under 18 years of age) has died or disappeared as the probable result of a Criminal Code offence. Employees charged with the crime would not be eligible for this leave. An employee who intends to take either of these leaves would have to provide written notice to his or her employer as soon as possible of his or her intention to take the leave and its anticipated start date and duration. Bill 22 received first reading on December 3.

New Brunswick Bill Would Alter Pending Amendments to the Employment Standards Act
Bill 21, An Act to Amend an Act to Amend the Employment Standards Act, would alter certain amendments contained in Bill 46, An Act to Amend the Employment Standards Act, SNB 2013, c. 13, which received Royal Assent on June 21, 2013 but has not yet been proclaimed in force. Bill 46 contains an amendment which provides that a director or former director of a for-profit corporation can be held jointly and severally liable with the corporation for up to six months of unpaid wages and up to 12 months of vacation pay owed to an employee. The proposed amendments in Bill 21 would clarify the circumstances in which a director could be held liable for these payments. A director would become liable only after the corporation failed to comply with an order to pay the wages and vacation pay owed to the employee. However, the director would not be liable if he or she exercised reasonable due diligence to provide the payments owed to the employee. In addition, a director would not be liable for any administrative penalty that was imposed on the corporation. Bill 21 received first reading on December 3. For further details of Bill 46, see Labour Notes No. 1478, July 10, 2013.

Newfoundland and Labrador Bill that Proposes New Unpaid Leaves of Absence Receives Third Reading
Bill 17, An Act to Amend the Labour Standards Act, proposes amendments which would provide job protection for employees who take certain family-related leaves of absence. Critically ill child care leave of up to 37 weeks will be available to employees where a physician has issued a certificate stating that the employees child is critically ill and requires care or support. A critically ill child is defined as a person who is under 18 years of age on the day on which the leave begins, whose baseline state of health has significantly changed, and whose life is at risk as a result of an illness or injury. Crime-related child death or disappearance leave of up to 52 weeks will available to employees whose child (under 18 years of age) has disappeared as the probable result of a crime. Where a child has died as the probable result of a crime, up to 104 weeks of leave will be available. Employees charged with the crime will not be eligible for this leave.

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To qualify for these unpaid leaves, the employee must have been employed for at least 30 days and he or she must be:

a parent of the child; the spouse or cohabiting partner of a parent of the child; a person with whom the child has been placed for the purposes of adoption; a foster parent of the child; or a person who has the care or custody of the child and is considered to be like a close relative, whether or not the person is actually related to the child.

An employee who intends to take either of these leaves must provide written notice to his or her employer at least two weeks before the leave is to begin, unless there is a valid reason why that notice cannot be given. Bill 17 received first reading on November 19, 2013, second reading on December 2, and third reading on December 3.

Newfoundland and Labrador and Prince Edward Island Bills that Would Add Gender Identity and Gender Expression as Prohibited Grounds of Discrimination Progress
Newfoundland and Labradors Bill 25, An Act to Amend the Human Rights Act, 2010, would add gender identity and gender expression as prohibited grounds of discrimination under the provinces Human Rights Act, 2010. Bill 25 received first reading on November 19, 2013, second reading on November 21, and third reading on November 25. Prince Edward Islands Bill 11, An Act to Amend the Human Rights Act, would add the grounds of gender expression and gender identity to the list of prohibited grounds of discrimination under the provinces Human Rights Act. Bill 11 received first reading on November 13, 2013 and second reading on November 27.

DID YOU KNOW . . .

. . . That a New Regulation Will Require Ontario Employers To Provide Health and Safety Awareness Training?
Following recommendations of the Expert Advisory Panel on Occupational Health and Safety, the Government of Ontario has introduced Regulation 297/13, Occupational Health and Safety Awareness and Training, which will require all workers and supervisors who are subject to the provinces Occupational Health and Safety Act to complete basic health and safety awareness training. The training should provide a basic understanding of the Occupational Health and Safety Act, including:

the rights and duties of workers, supervisors, and employers; the role of joint health and safety committees and health and safety representatives; and common workplace hazards and occupational illnesses.

Regulation 297/13 was filed on November 14, 2013. It will come into force on July 1, 2014. To help employers comply with the new requirements, Ontarios Ministry of Labour offers free training resources at http://ontario.ca/learntoworksafe.

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WHEN CAN A MANAGER SUE THE UNION FOR DEFAMATION AND WIN?
By Drew G. Demerse of Roper Greyell LLP. 2013 Roper Greyell LLP Employment + Labour Lawyers. A recent grievance likely proved to be far more costly for a union than it ever expected. The tale of Ms. Bowman and Dr. Rubin started off friendly enough. Ms. Bowman was a unionized veterinary technician employed by the Veterinary Teaching Hospital (the hospital) at the University of Saskatchewan (the university). Dr. Rubin was the director of the hospital. Outside of work, both Dr. Rubin and his wife were friends with Ms. Bowman. In 2001, Ms. Bowmans union filed a grievance on her behalf when she reported that she was being harassed by her co-workers. A labour arbitrator upheld the grievance and returned Ms. Bowman to the workplace. Dr. Rubin supported Ms. Bowman throughout the process, and attempted to act as her advocate on her return to work. By all accounts, Ms. Bowmans return to work did not go smoothly. Despite considerable efforts by the hospital to successfully reintegrate Ms. Bowman into the workplace, she believed that she was still being harassed by her co-workers. Dr. Rubin met with Ms. Bowman on numerous occasions to try to help her, but Ms. Bowman remained wholly unsatisfied with the hospitals response to her complaints. The trial judge would later refer to her as hypersensitive, a characterization with which even the unions president seemed to agree. Ms. Bowmans union nonetheless filed a second harassment grievance. This grievance alleged that not only had Dr. Rubin failed to prevent the harassment in his role as director, but that he had been an active part of the harassment himself. This last statement was not true. As a remedy, the grievance report requested formal discipline for Dr. Rubin, including his removal from his post as director of the hospital, and aggravated and punitive damages of no less than $100,000. The union then went outside of the normal grievance processes by posting a copy of the grievance report on eight public bulletin boards at the hospital, mailing a copy of the report to each of its 1,400 members, and posting the report on the unions website. The unions actions caused Dr. Rubin significant harm. He began experiencing difficulties with employees and believed they had lost respect for him. He resigned from his management position with the hospital and resumed teaching at the university, and subsequently left the university altogether. Dr. Rubin also sued the union and its officers for defamation for publicly distributing the grievance report. At trial, the union successfully defended the defamation action with no retraction, saying that the law of defamation did not apply in a labour relations context. The Saskatchewan Court of Appeal allowed Dr. Rubins appeal, ruling that the union had no defence to making statements that were plainly defamatory when the union took the unusual step of republishing the grievance report to persons not involved in the arbitration process. While the Court of Appeal recognized that the union had a duty to fairly represent Ms. Bowman, it concluded that the union acted outside the scope of its duty when it went beyond what was necessary and reasonable to fulfill its duty. Moreover, the fact that the union widely circulated the grievance report for purposes not intimately connected to the arbitration proceeding destroyed any claim the union might otherwise have had that the contents of the grievance report were protected speech. In Rubin v. Ross, 2013 SKCA 21, the union and its officers were ordered to pay Dr. Rubin $100,000 for so publicly defaming him with the false and personal allegations contained in the grievance report. Their appeal to the Supreme Court of Canada was denied, with costs payable to Dr. Rubin.

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Lessons for Employers

Labour arbitration is not a bar room brawl. While there are no formalized rules of conduct, as there are in our courts, the laws that govern civil society do apply to the actions of employer and union representatives in the conduct of labour arbitrations. It is not uncommon for unions to advance grievances for reasons that may be unrelated to the grievance itself. Union officers who engage in public politicking in the conduct of a grievance may expose themselves to personal liability if their actions unfairly damage an individuals reputation. Managers have rights too. A manager is unlikely to have recourse against an employee who unsuccessfully files a harassment grievance against the manager in good faith. The situation might be different, however, where allegations are filed in bad faith or where the griever or the union seeks to try the allegations in the court of public opinion.

Drew G. Demerse practises workplace law at Roper Greyell LLP. He provides proactive and strategic advice to employers on labour, employment, and human rights issues in the workplace. He enjoys keeping up on trends in the wide world of workplace law, which he publishes on Roper Greyells Twitter handle, @RoperGreyell.

RECENT CASES
Employers Collection and Use of GPS Information Was Reasonable
Information and Privacy Commissioner for British Columbia, August 28, 2013 KONE Inc. (KONE) provided elevator service to its clients, and used maintenance mechanics to attend client sites. The mechanics worked alone, and would attend work sites directly from their homes. Mechanics were provided with GPS-enabled cellphones to record when they began and ended their work while at client sites. The mechanics would put their phones into on duty status while at work, and put their phones in off duty status during their break periods. The GPS information from a mechanics phone was transmitted to KONE when the mechanic inputted into his or her phone that he or she was leaving the client site. KONE used the information to determine arrival and departure times, travel times, location of mechanic, and when a mechanic went on or off duty. In addition, the information was used to plan routes for mechanics, set work assignments, update clients, and contact employees if there had been no contact for more than 30 minutes. KONE employees brought a complaint before the privacy commissioner, alleging that KONE was not permitted under privacy legislation to use this information to manage their employment relationships. The complaint was dismissed. The GPS information that KONE collected was personal information, and it was about an identifiable individual, since KONE assigned the phones to individual mechanics and attributed the resulting information to a specific mechanic. The information was not work product information, since it was machine-generated, and was an automatic recording of data reflecting when and where employees were working. Although the information was personal and unrelated to the individuals employment, its collection and use was reasonably required by KONE for its business operations, and there was no evidence KONE was using the information for anything other than managing the employment relationship. The collection and use of the information was reasonably required for KONE to manage the employment relationship, and a reasonable person would consider it appropriate for KONE to collect the GPS information. The information was more accurate about employee locations than other tracking devices, although the information was not significantly more sensitive, and was not more intrusive than necessary. The tracking system was likely to be effective for KONEs stated purpose, and the employees were aware that the information was being collected. KONE was better able to achieve its objectives by using the GPS system than by using a less privacy-intrusive alternative. Finally, KONE provided the required notice to employees about the collection of the GPS information for the specified uses and purposes. KONE Inc., 2013 CLLC 210-052

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11

Class Action Certified for Claim of Unpaid Overtime

Ontario Superior Court of Justice, August 20, 2013 Investment advisers (IAs) at BMO Nesbitt Burns Inc. (Nesbitt) were paid by commission, and would often work more than 60 hours per week in order to grow their client base, generate more revenue, and earn larger commissions. Under Ontarios Employment Standards Act, 2000, employees paid by commission were statutorily entitled to overtime unless their work was supervisory or managerial in character, or if the employee fell within the greater benefit exemption. Rosen worked as an IA at Nesbitt, and was given considerable autonomy to develop his business and service his clients. He worked, on average, 60 to 80 hours per week, and never asked for or was paid overtime. Rosen brought a motion to certify a class action for all current and former Nesbitt employees in Ontario who worked as IAs, associate IAs, or IA trainees since 2002. The motion to certify the class action was allowed. Rosen had a cause of action. He asserted claims for breach of express or implied terms of contract and unjust enrichment, as well as a duty of good faith owed by Nesbitt to ensure IAs were provided with overtime pay. The proposed class included all current and former Nesbitt employees who held the position of IA from 2002, except any time period during which they held a managerial position. This was readily determinable by stated and objective criteria, since the time period was precise and the members were identifiable by specific job titles. The determination as to whether IAs fell within the managerial or greater benefit exemptions set out in the Act could be decided as common issues. All of the IAs appeared to have the same or very similar job functions, with a common core of duties or functions. The greater benefit exemption could be determined as a common issue, by determining whether the equal opportunity to earn a high income, along with flexibility and independence in schedules, was a greater benefit than overtime pay. A class proceeding would be the preferable procedure and would provide a fair, efficient, and manageable method of resolving the claim. Finally, Rosen was a suitable representative plaintiff. Rosen v. BMO Nesbitt Burns Inc., 2013 CLLC 210-053

Employees Claim Fell Within Jurisdiction of Dispute Resolution Process Under the Collective Agreement
Supreme Court of Nova Scotia, August 20, 2013 Robertson was regularly hired by the Annapolis Valley Regional School Board (AV) as a substitute teacher. He was made a long-term substitute for a grade 12 class in October 2008. The permanent teacher he was replacing announced that he would retire after his sick leave was used up, which meant that Robertson would be entitled to become a term contract teacher if he continued to teach as a long-term substitute until the end of the school year. At the end of January 2009, Robertsons contract was terminated and he was replaced. There was no cause for the termination of the contract. Robertson brought a claim against AV for their treatment of him and for the manner of dismissal, and AV brought a motion for summary judgment. The motion for summary judgment was allowed, and the action was dismissed. The essential character of the dispute was the termination of Robertsons employment as a substitute teacher. The collective agreement did not exclude substitute teachers entirely, since there were provisions that used the defined word teacher that were clearly intended to include substitutes. Specifically, the provision requiring AV to act in a reasonable manner, and act fairly, reasonably, in good faith, and without discrimination when terminating, applied to both teachers and substitutes. Termination of a substitute teacher was within the collective agreement dispute resolution scheme and, since termination was the essential part of Robertsons claims, the dispute therefore fell within the dispute resolution process under the collective agreement. As a result, the claims were precluded by the exclusive arbitral jurisdiction process. Robertson v. Annapolis Valley Regional School Board, 2013 CLLC 220-059

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Union Members Picketing at Customers Property Was Illegal Picketing

British Columbia Labour Relations Board, September 6, 2013 Allteck Line Contractors Inc. (Allteck) was a contractor that employed members of the International Brotherhood of Electrical Workers (the union). FortisBC Inc. (Fortis) was involved in a labour dispute with the union. Fortis and the union had an essential services order (ESO), which provided that no bargaining unit, excluded personnel, or contractors of Fortis would perform power line extensions or upgrades. Three Allteck employees were sent to a customers property to work on a power line extension, where they encountered a number of Fortis employees with signs claiming that Fortis had locked them out. The Allteck employees considered the individuals walking across the driveway entrance to be a picket line, and refused to do the work for the customer. The union claimed that it was required to picket customers in order to prevent the violation of the ESO. Allteck brought a claim before the British Columbia Labour Relations Board (the Board), alleging that union members had been involved in unlawful picketing activity, and asked for an order to refrain from such picketing. The claim was allowed, and the union was ordered to refrain from illegal picketing. The activity of union members at the customer location constituted picketing, which the Labour Relations Code did not permit. The union was not required to picket in order to prevent a breach of the ESO. Instead, the union could have applied to the Board to have the ESO filed in court, or the union could have asked that the Board take steps to ensure the ESO was being applied properly. Allteck was not a party to the ESO, and did not appear to be aware of the provision that the union relied upon in the ESO prior to attending at the customers premises to perform the work. Therefore, Allteck did not have unclean hands. Allteck Line Contractors Inc. v. IBEW, Local 213, 2013 CLLC 220-060

Revocation of Employees Taxi Plates Was Motivated by Anti-Union Animus

Saskatchewan Labour Relations Board, September 30, 2013 In Saskatoon, taxi cab owners are required to have a valid taxi plate from the City of Saskatoon. Individual lease operators leased taxi plates from franchise owners, while companies such as Comfort Cabs Ltd. (Comfort Cabs) provided services to franchise owners, lease operators, and taxi drivers. Four individuals were lease operators who entered into arrangements with franchise owners connected with Comfort Cabs in order to lease taxi plates. As part of this arrangement, the individual lease operators owned vehicles that met Comfort Cabs specifications, and installed Comfort Cabs equipment. The United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Works International Union (the union) ran an unsuccessful organizing campaign for Comfort Cabs employees, and a certification application by the union was abandoned. The four individual employees, who were all supporters of the union, had their taxi plate leases, and their taxi equipment, taken away from them by Comfort Cabs. The union brought an application before the Saskatchewan Labour Relations Board (the Board), claiming that Comfort Cabs had effectively terminated these individuals because of their support for the certification application. The union brought an interim application to reinstate the four individuals driving privileges pending a final determination. The interim application was allowed. There was an arguable case that Comfort Cabs was aware that these four individuals supported the union and were involved in the recent organizing campaign in the workplace. There was evidence to support the assertion that the revocation of the taxi plates was motivated by anti-union animus for at least two of the individuals, and for the other two individuals, the close timing of the certification application and the revocation of the taxi plates led to an inference that it was the result of anti-union animus. Comfort Cabs was the true employer of these individuals, not the franchise owners, and there was an arguable case that these individuals were employees of Comfort Cabs. There was evidence to show that Comfort Cabs was a party to the decisions to terminate the lease arrangements and cancel the taxi plates. While Comfort Cabs did not have the authority necessary to cancel or lease taxi plates on behalf of franchise owners, the Board ordered the reinstatement of the privileges to drive a taxi cab for three of the four individuals, and they were granted the right of first refusal for the first three taxi plates available for lease through Comfort Cabs. The fourth individual took too long submitting a claim to demonstrate that he had a current relationship with Comfort Cabs. United Steelworkers v. Comfort Cabs, 2013 CLLC 220-061

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Employers Determination that Employees Ailing Mother-in-Law Was Not a Dependant Was Discriminatory
Canadian Human Rights Tribunal, September 18, 2013 Hicks worked for the federal government in Sydney, Nova Scotia. After being informed that his position would become redundant, Hicks was given an offer of deployment to Ottawa early in 2002; he began working at this new position on September 16, 2002. Hicks officially relocated to Ottawa on October 17, 2002; however, his wife and family did not relocate with him, due, in part, to his mother-in-laws serious health problems. Hickss mother-in-law was living in an assisted-living apartment at the time of Hickss move, and she eventually moved to a nursing home. Hicks applied for financial assistance from October 2002 until September 2003, under the Temporary Dual Residence Assistance (TDRA) Directive of the Treasury Board. Under the TDRA, financial assistance could only be claimed in respect of a dependant, which is defined as someone who has been living with the employee prior to relocation. The claim for financial assistance was denied. Hicks filed a grievance, which was denied. He brought a human rights complaint, alleging discrimination on the basis of family status and disability. The family status complaint was allowed. The criteria for claiming TDRA created a distinction between persons who were permanently residing with the employee and those who were not. This distinction was harmful to Hicks since it resulted in the denial of his claim for TDRA, and led Hicks to believe that his mother-in-law was not considered a part of his family. Hickss spouse and mother-in-law were clearly part of his family, and eldercare responsibilities are protected under the grounds of family status. The denial of the expense claim was prima facie discriminatory. There was no legitimate work-related objective or demonstration of undue hardship to justify this discrimination. The assumption by the employer that family members residing in their own homes did not need employees to maintain their former homes for them did not account for circumstances such as Hickss. The employer also ignored the obligations Hicks had to his family, which were protected under the grounds of family status. Hicks was awarded $15,000 for pain and suffering, as well as $20,000 for the reckless discriminatory practice. Hicks v. HRSDC, 2013 CLLC 230-042

Employee Who Voluntary Left Two Jobs Was Entitled to Employment Insurance Benefits
Federal Court of Appeal, February 15, 2013 Marier filed a claim for Employment Insurance benefits, effective July 18, 2010. During the 52-week qualifying period prior to the start date of the claim, Marier held two part-time positions. He worked for Nettoyage Solvanet (Solvanet) from June 13, 2009 to February 1, 2010. He left that job voluntarily to take a cleaning course. From July 1, 2009 to July 18, 2010, Marier also worked for the Coop erative des horticulteurs de Qu ebec (Coop erative); he left this position voluntarily to accept alternate employment. In both positions, he worked 25 to 30 hours per week. He did not begin working at the new position until August 30, 2010 and, therefore, his claim for benefits was for the period from July 18, 2010 to August 30, 2010. The Commission denied his claim, finding that he voluntarily left Solvanet without just cause, and that it was not his only reasonable alternative. The Commission also found that Marier had not worked the minimum number of insurable hours since voluntarily leaving Solvanet. The Board of Referees allowed the appeal, which was upheld by the Umpire. The government brought an application for judicial review. The application for judicial review was dismissed. Marier voluntarily left his employment with Solvanet to enroll in courses, knowing that he had a position at the Coop erative for 25 to 30 hours per week, which was stable employment. He had just cause to leave his employment with Solvanet voluntarily, knowing that he would be keeping his second job. Marier did not quit the Coop erative until he was assured of a new position, which was a voluntary departure that was justified according to the Commission. Canada (AG) v. Marier, 2013 CLLC 240-005

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LABOUR NOTES
Published biweekly as the newsletter complement to the Canadian Labour Law Reporter by Wolters Kluwer CCH. For subscription information, contact your CCH Account Manager or call 1-800-268-4522 or 416-224-2248 (Toronto). For Wolters Kluwer CCH Jaime Latner, LLB, Senior Editor Law & Business 416-224-2224, ext. 6318 email: Jaime.Latner@wolterskluwer.com Edward Noble, LLB, Senior Editor Law & Business 416-224-2224, ext. 6428 email: Edward.Noble@wolterskluwer.com Rita Mason, LLB, Director of Editorial Law & Business 416-228-6128 email: Rita.Mason@wolterskluwer.com Andrew Ryan, Director of Marketing Law & Business 416-228-6158 email: Andrew.Ryan@wolterskluwer.com Janine Geddie, BA, LLB, Contributor
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