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Posts tagged: MacLeod Law Firm

Significant Changes Coming to the Human Rights Code

By , November 17, 2017 1:09 pm

Bill 164, Human Rights Code Amendment Act, 2017 passed second reading by the Ontario government on October 26, 2017 and has been referred to Standing Committee.

The Bill proposes to make significant changes to the Ontario Human Rights Code (Code). It proposes to add immigration status, genetic characteristics, police records, and social conditions as human rights grounds. The Bill is supposed to provide better protections to the most vulnerable in society.

Social conditions will be defined as social or economic disadvantage arising from (a) employment status; (b) source or level of income; (c) housing status, including homelessness; (d) level of education, or “any other circumstance similar to those mentioned in clauses (a), (b), (c) and (d).  

While a significant change, Ontario will not be alone in recognizing social condition as a protected human rights ground. Human rights in Alberta, Manitoba, New Brunswick, Quebec, Newfoundland and Labrador, and Northwest Territories all recognize social condition, social origin, or source of income.

Ontario will also be joining other provinces like British Columbia in having a more fulsome protection against discrimination on the basis of “police records.” The Bill proposes to include charges and convictions and police records such as those that involve a person’s contact with police. This would replace the current human rights ground of “record of offences,” which is defined as an offence for which someone has been pardoned.

Genetic characteristics will be defined as refusing to undergo a genetic test or refusing to disclose, or authorize the disclosure of, the results of a genetic test. Ontario will join the Federal government in this regard.  Of note, there is no proposed change to section 22 of the Code, which would mean the current exemption given to insurance companies to discriminate on the basis of age, sex and marital status would not apply to genetic characteristics. Previous bills attempting to include genetic characteristics in the Code allowed insurers to discriminate on this basis if the policy payout was over a certain amount.

If all of these changes become law, employers, service providers, and landlords will need to carefully examine their policies and practices to ensure they are compliant with the new law.  

It is possible that the Bill’s current form could change before becoming law.  Many bills are altered at the Committee stage – often significantly.

We will update this blog as soon as further legislative steps are taken.

In the meantime, if you have concerns that your human rights policies need updating, a lawyer at MacLeod Law Firm can assist you. You can reach us at [email protected] or 647-204-8107.

#Metoo #Himtoo #Youtoo – Sexual Harassment and Violence at Work

By , October 31, 2017 5:15 pm

In the wake of sexual harassment allegations against movie mogul Harvey Weinstein, the viral social media campaign #metoo has emerged as a way for millions of people to denounce sexual assault and harassment. Although it is an important campaign, I have been late to add my voice to the #metoo discussion because of the disproportionate focus on the stories women have shared. Many seem to suggest that there is an obligation on women to share their experiences in order to make change. But recounting these events over and over again can re-traumatize someone who has been through harassment and assault. What’s more, the majority of women are not surprised by the #metoo stories – as upsetting as they are. Women have been sharing experiences and naming men for years privately, and even publicly. But, what needs to happen for there to be a positive culture shift?

Here are my suggestions for how to reduce sexual harassment and violence in the workplace – a place where much sexual harassment still occurs:

  1. Employers can create a culture of no tolerance for harassment and violence. But this ethos must start at the top. Employers should have policies against harassment, including sexual harassment and violence in the workplace. This is a very basic first step to setting the culture. It is also required under the Occupational Health and Safety Act (“OHSA”) for employers with more than five employees.
  1. Promptly respond to every sexual harassment complaint. Do not let anyone brush it off, excuse the behaviour, or consider it a “harmless joke”. Adequately investigating such a complaint is required under OHSA and the Human Rights Code (“Code”). Treat the complaint as truthful and made in good faith. Take complaints seriously – whether the complaint is about crude jokes or sexual assault. “Locker room talk” is not permissible in Ontario workplaces. These factors will be considered by judges and tribunal members whether assessing whether a complaint was investigated properly. It also creates a workplace climate where employees feel they can share their stories.
  1. Investigate all incidents as well as complaints. Do not wait for an employee to come forward to investigate sexual harassment. It is mandatory under OHSA to investigate any incident that comes to the employer’s attention. Remember: A formal complaint is not needed. Learning of incidents of sexual harassment or violence but not investigating them is a violation of OHSA. Allowing the behaviour to continue unchecked also creates a culture of tolerance for this behaviour. Waiting for a woman to share her story before intervening puts the pressure on the woman to create change.
  1. Men need to call out other men when they are engaging in belittling, harassing, or abusive acts against women. An employer can be liable for a poisoned work environment if there is a culture of sexualized joking even if it is not targeted at a particular individual.
  1. Do not punish someone for coming forward. Even if you investigate and cannot substantiate the allegations, this does not mean it did not occur. Punishing someone for making a harassment complaint is generally considered a reprisal and can result in reinstatement and back pay under both the Code and OHSA.
  1. Show respect to women. This includes equal pay for equal work, and fair merit- based promotions. In some contexts, this is required by law through the Code, the Employment Standards Act, and the Pay Equity Act. It also creates a workplace that values women and will diminish sex-based discrimination or harassment.
  1. Stop language that diminishes women such as names like “honey”, “babe”, “dear”, or “girl”. This is subtle sex-based discrimination and elevates lowers their status.
  1. As individuals, rethink flirting, compliments, or seeking romantic relationships at work. Legally, before acting, you need to be certain that advances, comments and conduct is consented to and wanted by a co-worker; otherwise, it can be sexual harassment. Definitely, do not make sexual advances to a subordinate. If you have power over a person’s job, pay, duties etc. it is difficult to decipher whether consent is truly given. Repeated advances made to a peer (as opposed to a subordinate), even where there are not sexual or gender-based, can affect a person’s dignity and sense of value as an employee. As an individual, you could be found personally liable under the Code for sex- based discrimination, sexual harassment, or sexual solicitation. As an employer, you can be vicariously liable for your employee’s conduct if you knew about it and did nothing.

If you would like to discuss these suggestions, please contact me at [email protected] or 647-633-9894.

 

The Confusing and Unsettled Law Relating to Employee Medical Notes

By , September 12, 2017 10:00 am

A proposed change to Ontario’s Employment Standards Act (“the Act”) contained in Bill 148 states that an employer shall not require an employee to provide a medical note from a qualified health practitioner (as defined in the Act) as evidence of a sickness if the employee claims a paid sick day under the Act. However, an employer may require an employee who takes a paid sick leave under the Act to provide evidence, that is reasonable in the circumstances, that the employee is entitled to the leave.

If this proposal is passed into law, the Act would override management’s common law right to require a medical note as proof of an illness for up to two days a year.

For more information on Bill 148, click here.

For more information on our October seminar which will discuss Bill 148, click here.

 

Medical Note

 

Can an employer request a better medical note?

I receive calls from employer clients who express frustration over the contents of a medical note submitted by an employee; often a one-line note.

The note states the employee is unable to work for a specified period of time. The note can be submitted in suspicious circumstances. For example, the employee may claim he is sick during a time he has been denied a leave or on the day after a long weekend.

There are two issues that arise in this scenario. One is whether the person is taking an unauthorized leave. The other is whether the leave is paid (assuming the person is entitled to paid sick leave).

The $64 000 Question: Can an employer demand that an employee attend an independent medical examination

When a suspicious medical note is received the employer often wants to know whether it has the right to force the employee to see a doctor of the employer’s choosing to confirm the illness.

Independent Medical Examinations when a Disabled Employee Requests Accommodation

The $64,000 question can and does arise when a disabled employee requests accommodation.

In this scenario, employers have the duty to accommodate an employee’s disability unless it would cause undue hardship. For this duty to be triggered the employee generally discloses a disability and requests accommodation.

An employer is required to accommodate both physical disabilities and mental disabilities.

For example, an employee may request significant accommodation based on minimal information such as a medical note that states: “John Smith is medically able to return to work on Monday and can work 2 hours a day for the next two weeks and 4 hours a day for the following two weeks.”

Can an employer demand that an employee attend an independent medical examination as part of the procedural aspect of the duty to accommodate? The answer is, of course, “It depends”

A Case Study: Bottiglia v. Ottawa Catholic School Board, 2015 HRTO 1178 (CanLII)

The Facts

In April 2010 Mr. Bottiglia went on sick leave. At that time, he had accumulated approximately 465 paid sick days.

In June 2011 Mr. Bottiglia’s physician, Dr. Richard Levine, told the employer that he needed a medical leave until further notice and that when a return to work was foreseeable, the employer would be informed in a timely fashion.

In February 2012, Mr. Bottiglia told the employer “while it always has been my hope that my health situation would improve with time and allow my return to work, much to my chagrin and disappointment, my latest medical assessment indicates that a full recovery will take a prolonged period of time.”

In a March 2012 letter Dr. Levine stated that Mr. Bottiglia had been struggling with a mental disability. Dr. Levine further stated that Mr. Bottiglia’s condition had been relatively treatment resistant, that Mr. Bottiglia had required an extended period of time off work, that it was his clinical judgement that a return to the current workplace would place Mr. Bottiglia at serious risk of relapse, and that Mr. Bottiglia would lose the gains that he had made so far during his time with Dr. Levine.  Dr. Levine indicated that his opinions were based on the regular one-hour meetings he had been having with Mr. Bottiglia over the prior ten months.

Five months later in August 2012, after all of Mr. Bottiglia’s sick days had been used, Dr. Levine stated that he believed that Mr. Bottiglia would be able to return to modified work duties sometime in the next two months.

About three weeks later, Dr. Levine provided a “Five Point Plan for Resumption of Career” that provided for a return to work.

In these circumstances, the employer took the position that a second medical opinion was warranted and requested that Mr. Bottiglia undergo an independent medical examination.

This request was contemplated under the employer’s Guide to Workplace Accommodation for Employees which provided in part that “The Principal or Supervisor or other employer representative has the right to request additional information from the employee when there is insufficient information provided by the employee relating to a request for accommodation”. In addition,”Where … the Terms and Conditions of Employment permit, the employer may request (through the Human Resources Department) a ‘request for a second medical opinion’ where the employer has been unable to obtain from the employee’s own health practitioner information concerning the employee’s own limitations and/or restrictions on his/her essential duties of his/her position, the employee’s medical prognosis related to the accommodation request and any recommendations with respect to the accommodation or where, in the opinion of the employer, circumstances warrant a second opinion.”

Mr. Bottiglia refused when the parties could not agree on the information that would be provided to the doctor conducting the independent medical examination and commenced a human rights complaint.

The Decision

An adjudicator appointed under the Ontario Human Rights Code concluded the employer had the right to demand an independent medical examination in the circumstances.

This decision was upheld by the Divisional Court, and Ontario’s Court of Appeal.

For more information on our October seminar which discusses an employee’s duty to accommodate an employee’s disability, click here.

Lessons to Be Learned

  1. Bill 148 which is currently before the Ontario legislature would, if passed into law, prohibit an employer from requiring medical notes to confirm illness in limited circumstances.
  2. An employer should consider adding a term to its employment contract giving it the explicit right to require an employee to submit to an independent medical examination in certain circumstances.
  3. An employer has the right to demand that an employee requesting accommodation submit to an independent medical examination in limited circumstances. The issue in these cases is often resolving the competing interests of an employer’s right to information in order to manage an accommodation process and employees wanting to restrict access to their medical information on the basis of personal privacy.

For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416 317-9894 or at [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

 

How to Spot a Resignation

By , July 31, 2017 10:16 am

Contrary to popular belief, it is not always easy to know when someone has resigned. Even if an employee uses words such as “I quit,” a court may still find that the employee has not truly resigned. An employer in Alberta learned this lesson the hard way. 

Carroll v Purcee Industrial Controls Ltd. (“PIC”) 

Mr. Carroll worked for the defendant first in Calgary, Alberta. He then moved with his family to Madagascar, where he continued to work for PIC. In 2012, business was in decline and the relationship between Mr. Carroll began to deteriorate. In August 2012, Mr. Carroll tendered his written resignation and requested a fair severance package. PIC rejected his resignation and urged Mr. Carroll to take his planned holiday. Mr. Carroll continued to work for PIC after he returned from his holiday. 

The relationship between Mr. Carroll and PIC became increasingly strained. In May 2013, Mr. Carroll again suggested they should terminate his employment “on professional terms”, and outlined his proposed terms of severance. One of the owners told Mr. Carroll that he would be ready to discuss the matter in a few days. Mr. Carroll responded that he planned to move back to Canada with his family in July. 

Mr. Carroll’s employment ended on June 7, 2013, when PIC purported to accept his resignation. 

The Decision 

At trial, Mr. Carroll argued his employment was terminated without cause and he was entitled to pay in lieu of notice. PIC claimed Mr. Carroll voluntarily resigned from his employment, in which case he was not entitled to any damages. 

A resignation must be clear and unequivocal, which involves both a subjective and objective component. Subjectively, did the employee intend to resign? Objectively, viewing all the circumstances, would a reasonable employer have understood that the employee had resigned? The court looks at the employee’s words, acts and the surrounding circumstances. 

Despite the fact that all indications of severing the employment relationship were initiated by Mr. Carroll, the court found that he did not intend to resign from his employment. The court found that Mr. Carroll’s words, when viewed contextually, were “an emotional reaction.” Mr. Carroll’s resignations came from a place of frustration, even though they were not said in the heat of the moment. Furthermore, the fact that that the owner indicated he would be ready to discuss the matter in a few days was consistent with someone who was contemplating the proposal outlined by Mr. Carroll (i.e. he could not have considered Mr. Carroll to have resigned). 

More importantly, the court found it difficult to accept the resignation was clear and unequivocal when it was tied to a proposal for terms of severance. In the circumstances, the burden was on the employer to confirm with Mr. Carroll that he truly intended to resign. The court concluded that Mr Carroll was dismissed, and therefore entitled to seven months’ pay in lieu of notice. 

Lessons to be Learned 

The onus is on the employer to confirm an employee’s true intentions behind a purported resignation. Otherwise, the employer risks having to respond to a wrongful dismissal claim in the future. Therefore, even in situations where employees utter words typically associated with a resignation (such as “I quit”), it is important not to take such words at face value. In these circumstances, or any time an employee brings up the matter of a severance package, it is important to consult a lawyer. 

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

Alberta Court of Appeal Denies Incentive Compensation to terminated Employees; Ontario Court of Appeal Does Not

By , June 6, 2017 4:31 pm

As we have written in the past, there is significant legal uncertainly as to whether an employee is entitled to receive incentive compensation during the common law reasonable notice period.

An Alberta Court of Appeal decision appears to have rejected the Ontario Court of Appeal’s approach to interpreting incentive compensation plans for terminated employees. The Supreme Court of Canada recently denied leave to appeal the Alberta case.

In Paquette v. TeraGo Networks Inc., 2016 ONCA 618, the Ontario Court of Appeal concluded that the wording of a bonus plan was crucial in determining whether an employee is entitled to be paid incentive compensation during the common law reasonable notice period. The phrase in a plan which required an employee to be “actively employed by TeraGo on the date of the bonus payout” was found not to limit the employer’s obligation to pay an employee the incentive compensation he would have earned during the common law reasonable notice period. The Court stated that language like this needed “more” to limit the employee’s claim to the bonus.

Styles v. Alberta Investment Management Corporation –  Facts

In this Alberta decision, Mr. Styles entered into an employment contract that contained a long term incentive plan (“LTIP”) which allowed employees to earn a bonus based on performance. As a condition of receiving this payment, the employee had to be employed for four years.  Employees also had to be actively employed to be paid the LTIP. Mr. Styles was terminated without cause after three years, meaning that he was not entitled to any LTIP payments. He sued for payment of this compensation.

The relevant clause in the LTIP stated:

Unless otherwise stipulated, participants must be actively employed by AIMCo, without regard to whether the Participant is receiving, or will receive, any compensatory payments or salary in lieu of notice of termination on the date of payout, in order to be eligible to receive any payment.

As per the guidelines above, entitlement to an LTIP grant, vested or unvested, may be forfeited upon the Date of Termination of Active Employment without regard to whether the participant is receiving, or will receive, any compensatory payment or salary in lieu of notice of termination.

“Date of Termination of Active Employment” means the termination date specified by AIMCo in the termination notice. (emphasis added)

Styles v. Alberta Investment Management Corporation – Trial Decision

The trial judge began their analysis by applying the principle of good faith contractual performance, which provides that parties to a contract must perform their contractual duties honestly and reasonably. From this principle, the trial judge recognized a new common law duty which requires employers to exercise discretionary powers reasonably.

Looking at the wording of the contract and LTIP provisions, the trial judge found there were two discretionary decisions that the employer could make, whether to pay the LTIP, and whether to terminate the employee without cause.

The judge held that the Employer breached this new duty by failing to give reasons for the termination or why he was being denied his LTIP payments. By failing to give reasons, the employer breached its duty to exercise its discretion reasonably.

The judge awarded the employee’s LTIP payments, totalling $444,205.

Styles v. Alberta Investment Management Corporation – Appeal Decision

The Alberta Court of Appeal resoundingly overturned the trial judge’s decision. The Court found that the contract clearly provided that Mr. Styles had to be actively employed to receive the LTIP payment, and  there was nothing in the contract that gave the employer a discretion whether to provide the LTIP payments or not.

Further, the Court rejected the trial judge’s new common law duty to exercise discretionary powers reasonably and stated that  terminating an employee without cause without providing any reasons in Alberta is fundamental in allowing an employer to choose its composition of its workforce.

The Court of Appeal found that Mr. Styles was not entitled to his LTIP worth $444,205.

While the Court of Appeal considered the Paquette decision, it did not address the Ontario Court’s approach to incentive compensation plans. Unfortunately, the Supreme Court of Canada denied Mr. Styles’ request for leave to appeal.

Lessons

  • As discussed before, some Ontario judges have found ways to override the wording of bonus plans and have awarded terminated employees incentive compensation during the common law reasonable notice period, despite not being actively employed.
  • The Alberta case, is a welcome decision for employers, as it came to a different conclusion.
  • The Alberta Court of Appeal held that employers are not required to give reasons when terminating an employee without cause. There are, however, certain issues that an employer should consider before terminating an employee without just cause such as whether the employee has recently raised a human rights or harassment complaint and how much notice of termination (or pay in lieu of notice) the employee is entitled to receive.

For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

 The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

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