Valkyrie Law Group LLP
Gwendoline Allison
gallison@valkyrielaw.com
www.valkyrielaw.com
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Definitions and legislative framework
Bullying, harassment and defamation
Costs of a disrespectful workplace
Liabilities – some recent cases
General strategies to create and maintain a
respectful environment
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Toxic atmosphere and stressed employees
Absenteeism
Reduced work productivity
Difficulty recruiting and retaining
Reduced corporate image
Litigation or union issues
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Occupational Health and Safety legislation
• 2012 - BC Workers Compensation Act
amendments to provide benefits for work-related
mental illness
• 2010 - Ontario
• 2007 – Saskatchewan
• 2004 – Quebec
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Common law
• Constructive dismissal
• Breach of Contract
• Tort
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Constructive Dismissal
 Shah v. Xerox Canada Ltd., [2000]
O.J. No. 849
 Ata-Ayi v. Pepsi Bottling Group
(Canada), 2006 CarswellOnt 6864
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Tort Claims?
 Sulz v. Minister of Public Safety and
Solicitor General, 2006 BCSC 99
 Piresferreria v. Ayotte, 2010 ONCA
384
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Negligent infliction of mental suffering not
available
Intentional infliction of mental suffering is
available
Breach of Contract?
 Disotell v. Kraft Canada Inc., 2010 ONSC 3739
 Qubti v. Reprodux Ltd., 2010 ONSC 837
 Cooke v. HTS Engineering Ltd. 2009 CarswellOnt
8326
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Training
 Supervisory training
 Orientations for new or promoted employees
 Respectful workplace training for all employees
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Policy should include:
 Clear statements of what is considered
harassment and bullying
 Clear statements of what is not bullying or
harassment e.g. performance reviews
 The consequences of not following policy
 A commitment to investigate and deal with
concerns in a prompt and fair manner
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Building accountability
 Objective and confidential internal investigation
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processes
Encourage reporting
Implement sanctions where necessary
Discuss and debrief where no harassment is
found
Review procedures regularly
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Communication
 Be open and frank
 Communication bad news in person
 Take particular care when dismissing
 Be careful with internal and external emails both
before and after the fact
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Respect = healthy, productive work
environment
Employees feel valued and business interests
thrive
Situational change easier to introduce
Productivity is high; conflict is low
Expensive litigation or arbitration avoided
Communication is open and proactive
Terminations and discipline can be easier
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Respectful treatment permits employers to
manage in a cooperative and productive
manner
Respect in difficult times helps transitions
and limits conflict
Employers should be advised to (1) be aware
of obligations and (2) treat employees with
care and compassion
Valkyrie Law Group LLP
Gwendoline Allison
gallison@valkyrielaw.com
www.valkyrielaw.com
Valkyrie Law Group LLP
Holman Wang
604.215.0505
www.valkyrielaw.com
In 2010:
 294 billion emails were sent daily
 Google was searched 3 billion times daily
In 2011:
 Twitter – 7000+ tweets / sec when Steve Jobs
resigned
In 2012:
 Americans spend 100,000+ years on Facebook
per month
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Email use and abuse
Social media and the workplace
Odds and ends
Best practices
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Inappropriate content
Wrong recipient
Personal emails on work time or on work
computers
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Distributing pornographic / racist /
homophobic or other offensive materials
Cyber-harassment
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Legal issues:
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 express breach of company email policy?
 just cause for dismissal?
 vicarious liability of the employer?
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Defamation
 communication or publication about a person or
organization that is likely to lower the opinion or
estimation of that person
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Breach of confidentiality
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Use of work computers
Use of work time
Lack of productivity and “time theft”
Inappropriate sites
Privacy
Security issues
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Facebook
Twitter
YouTube
Blogs
Pinterest
Flickr
Tumblr
Linked In …
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Posting at work
Posting about work
Off-duty posting about work
Offensive comments
Blur between private/public
Pre-screening employees
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Damage to reputation of employer
Damage to workplace relations
Human Rights Code – duty to accommodate?
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Posting on / moderating social media sites
 Create third party user guidelines
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Links
Document retention issues
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It is a written, permanent communication
See it in the newspaper
Don’t use “reply all”
Don’t use blind copies
Watch the autocorrect
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Policy and procedure is KEY
Be consistent and prompt!
Email and internet policy
 Access boundaries – unacceptable use
 Privacy expectations
 Security expectations
 Retention restrictions
 Discipline mechanism
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Social networking policy
 Separate policy
 Public nature of social networking
 Parameters
Valkyrie Law Group LLP
Gwendoline Allison
gallison@valkyrielaw.com
www.valkyrielaw.com
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Background
What the end of mandatory retirement
means for employers
The exceptions
Law for firefighters
Next stage, and advice
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Section 13 of the Human Rights Code
prohibits discrimination based on age.
Before January 1, 2008, “age” meant 19-65.
After January 1, 2008, “age” means over 19.
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Cannot make decisions about employment
based on the employee’s age
Must accommodate age-related illnesses and
disabilities
May have to provide benefits to the over
65s, even if your insurer will not cover the
employee: Municipality of Strathroy-Caradoc
Police Services Board
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Section 13(4) – mandatory retirement will be
lawful if it is a bona fide occupational
requirement.
 Purpose is rationally connected to the performance
of the job
 Provision was adopted in an honest and good faith
belief that it was necessary to the fulfilment the
purpose
 Provision is reasonably necessary to the
accomplishment of the purpose - it is impossible to
accommodate individual employees without
imposing undue hardship on the employer
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Air Canada pilots
Police officers
Firefighters
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District Chief forced to retire at 60 – had not
reached full pension
Asked for an extension of retirement date
Sought to be tested individually
City said no – relied on blanket policy
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City led evidence:
 expert medical or statistical data which supports
the increased cardiovascular risk after 60 years of
age
 demands of the position
 safety hazard to the firefighter and co-workers
and the public
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Tribunal upheld mandatory retirement
provision:
In light of the increasing risk of cardiac events
with age, and the effects of a cardiac event on
the work of a firefighter, it is evident that
mandatory retirement is rationally connected to
the work of a firefighter, to protect health and
safety. It is also evident that this standard was
adopted in good faith to promote the workrelated purpose of protecting health and safety.
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I therefore conclude that it has been shown
on a balance of probabilities that there is no
individual testing method that would allow a
better risk assessment of on-the-job events
for firefighters more accurately than age,
given their occupation-related risks of heart
disease.
Ho
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However, I do not foreclose the possibility
that where an individual firefighter initiates a
request for an exception to the mandatory
retirement date based upon his or her
individual risk of cardiac events and medical
evidence suggests an extremely low or
negligible risk of cardiac events in that
individual, accommodation may be required.
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Wanted individual testing
Also argued that Volunteer firefighters could
work until 65
Tribunal dismissed complaint (August 3,
2012)
 No strong evidence to require individual testing
 Volunteer firefighters do not work as hard
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There will be a continued push for individual
testing
 Mississauga firefighters have started a challenge
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Accommodation in a new role
 So far the firefighters are not pushing for new
roles.
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Gather medical evidence
Gather negotiation notes from collective
bargaining meetings
Conduct an analysis of the costs of individual
assessment
Analyse potential for other positions
including any cost analysis or alternative
suggestions and whether this would interfere
with other members rights.
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Maintain position that the mandatory
retirement clause is a BFOR and is not
subject to individual accommodation, either
in respect of testing or for possible transfer
to another position.
Valkyrie Law Group LLP
Gwendoline Allison
gallison@valkyrielaw.com
www.valkyrielaw.com
Valkyrie Law Group LLP
Gwendoline Allison
gallison@valkyrielaw.com
www.valkyrielaw.com
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Basic Principles of Dismissal
Employees on Disability Leave
Employees Receive a Pension
Employees Returning from Parental Leave
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Disability benefits plan part of the contract
Plan fully funded by employer
Key – what was the intention of the party?
Benefits are deductible from wrongful
dismissal damages.
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Disability benefits plan part of the contract
Plan fully funded by employer
Key – what was the intention of the party?
Benefits are deductible from wrongful
dismissal damages.
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McKendrick v. Open Learning Agency
Reid v. Specialty Motors
Pereira v. The Business Depot
Benefits were deducted.
In each case, the benefits were paid by a
third party insurer and the employee paid
the premiums.
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Sills v. Children’s Aid Society of the City of
Belleville
McNamara v. Alexander Centre Industries
Ltd.
Seven other cases
Benefits not deductible where third party
insurer and employee contribution to
premiums.
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Zorn-Smith v. Bank of Montreal
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Benefits not deducted when employer fully
funded.
Loss of value of time
Also separate breach of contract
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Difficult to reconcile approaches
BC Court of Appeal has not weighed in yet.
Is there a value to lost time?
Other alternatives?
 Bavaro
 Whelehan
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Girling v. Crown Cork & Seal Canada Inc.
Pensions are not integral
Not deductible from wrongful dismissal
damages
Court of Appeal relied on Court of Appeal
decision in Sylvester
Slyvester CA overruled by SCC
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MacGillivray v. TELUS Communications Inc.
Johnson v. Global Television Inc.
Waterman v. IBM Canada Ltd.
 Employer funded pension
 Court of Appeal decision
 Sylvester SCC distinguished
 Pension benefits not deductible
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Difficult to reconcile principles with Sylvester
 Disability benefits are deductible
 Pension benefits are not deductible
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SCC has granted leave in Waterman
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No insurable hours
Damages in lieu of reasonable notice will not
accrue insurable hours
Additional head of damages for employees?
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Conclusion whether employees have
additional causes of action
Watch for SCC decision
Valkyrie Law Group LLP
Gwendoline Allison
gallison@valkyrielaw.com
www.valkyrielaw.com