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Posts tagged: Harassment

Doug’s Top 10 Employment Law Stories of 2018

By , December 27, 2018 9:36 am

In 2018 there were many new developments in the employment law world.

Here are my top 10 stories of the year:

1. Bill 148 Bit the Dust

Ontario’s Employment Standards Act received its last major update in 2000. During the last three years, the Liberal provincial government consulted widely and introduced comprehensive changes to this law by way of Bill 148. After this year’s spring election, the PC government reversed almost all of these changes. See here and here for blogs on the to and froing on changes to Ontario’s minimum employment standards law.

Bottom line: the time that employers, human resources consultants, and employment lawyers spent on this process was all for nought and a law that needed updating has not really changed.

2. The Ontario Government is Now Selling Recreational Cannabis

In October 2018, Canada became the second country in the world to legalize the sale of cannabis. When edibles start being sold by the Ontario government in 2019, it will be difficult to detect cannabis use or impairment in the workplace. As a result, we recommend that all employers introduce or update its substance abuse policy and we can draft one for you. Here and here are links to blogs on this issue.

3. #MeToo is Alive and Well

In 2018, several senior executives in a number of industries were fired for sexual harassment. The public and employers are keenly aware of this issue. So are employees and as a result the number of complaints have increased. Employees in Ontario can file a complaint at work or file an application with the Human Rights Tribunal of Ontario. See here and here for some of our blogs on this issue.

We recommend that every employer introduce a no-discrimination policy and we can draft one for you.

4. The Number of Workplace Harassment Complaints Has Skyrocketed

In the fall of 2016, Ontario’s health & safety law was amended to require Ontario employers to investigate any incident or complaint of workplace harassment and the investigator must be trained on how to investigate. Since that time, we have seen a significant increase in the number of complaints. Here is a link to a blog on this issue.

In 2018, the number of external, professional workplace investigators mushroomed and most are currently working at full capacity. We recommend that every employer make sure that one employee is trained on how to conduct a workplace investigation. We are offering a one day training session on February 14, 2019. For more information, contact Judy Lam at 647-204-8107.

5. The Uncertainty Around the Enforcement of Termination Clauses Continues

This story has been in my top 10 list for 3 years. Many wrongful dismissal cases involve a dispute as to whether or not the termination clause in the employee’s employment contract is enforceable. Despite numerous court cases on this issue (including several cases from the Ontario Court of Appeal) it is still difficult to predict whether a judge will enforce a termination clause in an employment contract. See here, here, and here for some of our blogs on this issue.

I sincerely hope our Court of Appeal will provide some clear guidance in this area in 2019. In the meantime, we can draft legally enforceable termination clauses for you.

6. Limiting Group Benefits for Seniors has Been Found to be Unconstitutional

There are provisions in Ontario’s human rights and employment standards legislation which permit employers to discriminate against employees who are 65 years old when it comes to providing coverage for some group benefits. Here is a link to a case which stated that these laws are unconstitutional.

We therefore suggest that you talk to your benefit provider to find out whether senior citizen employees are excluded from any of your group benefits.

7. Wrongful Dismissal Damages are Increasing for Older Workers

Since 1960, judges have been directed to take an employee’s age into account when determining the appropriate reasonable notice period. In 2006, mandatory retirement was eliminated in Ontario. Recently, a number of judges have suggested or implied that notice periods should be extended for employees over 60 years old and that these employees are not really expected to find alternative employment. Here is a blog on this issue.

8. Are Executives Entitled to Variable Compensation During the Applicable Notice Period?

Variable compensation makes up the majority of many senior executives’ compensation.  One issue that often arises when an executive is terminated is whether or not the employee is entitled to pay in lieu of this variable compensation during the applicable notice period. The employer says no because the employee has not done anything to achieve the results needed to trigger this compensation. However, Courts are not sympathetic to this kind of argument. See here, here, and here for cases where the employer’s argument was rejected by a judge.

The good news is that it is possible to draft contractual language that precludes an executive from receiving any variable compensation after his or her last day of active employment. Please contact me if you want to discuss how this can be accomplished.

9. Secretly Recording Conversations at the Workplace

Michael Cohen secretly taped Donald Trump and more and more employees are taping conversations in the workplace. In this age of social media and the use of a cell phone as a person’s appendage, I think this trend will continue. Depending on your perspective, doing so undermines the trust needed between employees and employers or is evidence that such trust does not exist. Managing this possible scenario is tricky. Here is a blog on this topic.

10. The Number of Employment Standards Act Audits is Increasing

In 2017, the Liberal government announced it was hiring 175 Employment Standards officers who would randomly visit 1 in 10 Ontario workplaces each year to make sure the employer is complying with the Employment Standards Act. As a result of the PC government’s hiring freeze not all of these people have been hired, however, these audits have begun on a more limited scale. A number of our clients have been randomly selected for an audit. If you receive notification that your organization has been selected for an audit we can help you prepare for the audit.

Fun Fact: In 2018 the MacLeod Law Firm was nominated as one of Canada’s top employment and labour law boutiques by the Canadian Lawyer Magazine and by the Canadian HR Awards.

For almost 30 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.

Supreme Court: Increased Potential Liability for Harassment

By , February 9, 2018 12:35 pm

Recently, the Supreme Court issued a significant decision expanding the nature of possible harassment and discrimination claims.  

The Case

In British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, Mohammadreza Sheikhzadeh-Mashgoul worked as a civil engineer consultant on a job site where he supervised workers who were not employed by his engineering firm. One of these workers, Edward Schrenk, repeatedly made discriminatory comments to Mr. Sheikhzadeh-Mashgoul about his religion, sexual orientation, and birthplace. Eventually, he brought a human rights complaint against Schrenk and Schrenk’s employer.

Schrenk and his employer argued that they had no relationship to Mr. Sheikhzadeh-Mashgoul and that since they were not his employer or colleague he could not bring a claim against them.

The Supreme Court disagreed. It held that the BC Human Rights Code prohibits discrimination in the employment context. The Court said that the Code “protects individuals from discriminatory conduct regarding their employment no matter the identity of the perpetrator.”  The Court continued that an individual may bring a human rights complaint if the:

  1. perpetrator was integral to the complainant’s workplace;
  2. the discrimination occurred in the complainant’s workplace; and
  3. the individual’s work performance or work environment was negatively affected.

Lessons

Of importance, the Ontario Human Rights Code is worded in a similar manner to that of BC. So, if you are an employer in Ontario, you could now be required to defend against employment-based human rights claims from individuals who are not even your employees.

If you are facing a discrimination or harassment claim and are considering your legal options, you should consult a lawyer or contact us at [email protected] or 647-204-8107 and one of our lawyers would be happy to assist you.

“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.”

Patrick Brown: Could the Alleged Sexual Harassment/Assaults Have Been Prevented?

By , January 25, 2018 5:04 pm

Yesterday, CTV reported that two women alleged Ontario Progressive Conservative leader Patrick Brown sexually harassed and/or sexually assaulted them. Shortly after the story broke Mr. Brown resigned as party leader.

I don’t think Mr. Brown will deny he met either women. Instead I think he will claim that whatever happened was consensual.  In other words, classic “he said, she said” situations. If criminal charges are laid against Mr. Brown then the Crown will need prove the charges beyond a reasonable doubt. The same burden of proof as in the Jian Ghomeshi case.

This blog considers whether either situation could have been avoided from an employment law perspective.

If the federal government had addressed sexual harassment and sexual assault in the federal civil service and the House of Commons prior to 2013, then I think the 2013 incident could have been prevented. The Prime Minister could have stood up in the House of Commons and said the federal government is going to take a leadership role on this issue and take proactive steps to redress this societal problem. First, by saying it won’t be tolerated; second, by requiring all employees and MPs to comply with a sexual harassment policy; and third, by introducing a complaint procedure and encouraging employees to use it. This would have put MPs on notice of the cultural change the government was committed to leading and would have made all MPs think twice about sexually harassing staff. It would also communicate a very strong message to staff that the employer wanted people to bring forward sexual harassment complaints. In this climate, I think Mr. Brown would have thought twice before allegedly bringing a staff member back to his home or into his bedroom.

I don’t think the incident that took place over 10 years ago could have been prevented through workplace policies. According to the CTV report, the 17 year old female high school student did not appear to have any connection to Mr. Brown’s workplace and they do not appear to have met at a workplace event.

Given the societal change that has taken place in connection with sexual harassment and sexual assault over the last 5 years I do not believe nearly as many employees or politicians will put themselves in compromising situations in the future. The adverse consequences associated with sexual harassment and sexual assault allegations in 2018 is staggering.  Without these allegations, polls show Mr. Brown would have been premier of Canada’s largest province in June.

For over 30 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.

 

Employer Alert: Change to WSIA as of January 1, 2018

By , January 15, 2018 11:23 pm

As of January 1, 2018, an employee can claim workers compensation benefits for chronic or traumatic mental stress that is predominantly caused by workplace harassment

In May 2014 I blogged about an administrative tribunal case which concluded that subsections 13 (4) and (5) of the Workplace Safety and Insurance Act (WSIA) were unconstitutional.

January 1, 2018 Change to WSIA

On January 1, 2018 – almost 4 years later – these subsections were repealed and they were substituted with the  following:

(4) Subject to subsection (5), a worker is entitled to benefits under the insurance plan for chronic or traumatic mental stress arising out of and in the course of the worker’s employment.

(5) A worker is not entitled to benefits for mental stress caused by decisions or actions of the worker’s employer relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.

Implications of the Administrative Tribunal Case and the Change to WSIA

As mentioned in my earlier blog, as a result of the administrative tribunal case and the subsequent change to WSIA I believe (i) Employees may start filing workers compensation claims instead of filing for Employment Insurance sickness benefits; and (ii) Employees with chronic or traumatic stress may start asking to return to jobs other than their pre-injury job.

What is Chronic Mental Stress?

The WSIB  has prepared an Operational Policy document (i.e Policy 15-03-14) on chronic mental stress and it was amended on January 2, 2018.  It does not have the force of law but sets out the WSIB’s interpretation on this issue. Of particular interest are the following excerpts from this Policy:

A worker will generally be entitled to benefits for chronic mental stress if an appropriately diagnosed mental stress injury is caused by a “substantial” “work-related stressor”arising out of and in the course of the worker’s employment.

Workplace harassment will generally be considered a substantial work-related stressor

Workplace harassment occurs when a person or persons, while in the course of the employment, engage in a course of vexatious comment or conduct against a worker, including bullying, that is known or ought reasonably to be known to be unwelcome.

Interpersonal conflicts

Interpersonal conflicts between workers and their supervisors, co-workers or customers are generally considered to be a typical feature of normal employment. Consequently, such interpersonal conflicts are not generally considered to be a substantial work-related stressor, unless the conflict:

  • amounts to workplace harassment, or
  • results in conduct that a reasonable person would perceive as egregious or abusive.

Standard of proof and causation

In all cases, the WSIB decision-maker must be satisfied, on a balance of probabilities, that the substantial work-related stressor 

  • arose out of and in the course of the worker’s employment, and
  •  was the predominant cause of an appropriately diagnosed mental stress injury.

For the purposes of this policy, “predominant cause” means that the substantial work-related stressor is the primary or main cause of the mental stress injury—as compared to all of the other individual stressors. Therefore, the substantial work-related stressor can still be considered the predominant cause of the mental stress injury even though it may be outweighed by all of the other stressors, when combined.

Diagnostic requirements

Before any chronic mental stress claim can be adjudicated, there must be a diagnosis in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM) which may include, but is not limited to,

  • acute stress disorder
  • posttraumatic stress disorder
  • adjustment disorder, or
  • an anxiety or depressive disorder.

In most cases the WSIB will accept the claim for adjudication if an appropriate regulated health care professional provides the DSM diagnosis. However, in complex cases, for example where there is evidence that a non-work-related stressor(s) may have caused or contributed to the injury, the WSIB decision-maker may require a further assessment, including an assessment by a psychiatrist or psychologist, to help clarify initial or ongoing entitlement.

Operation Policy 15-03-02 which was amended January 2, 2018 sets out the WSIB’s interpretation of Traumatic Mental Stress

Relationship between Mental Stress Claims under WSIA and Harassment Allegations under the Occupational Health & Safety Act

Based on the WSIB’s  Policy 15-03-04, one could argue that if a workplace investigator concludes an employee was subject to workplace harassment and the WSIB concludes this harassment was the predominant cause of an appropriately diagnosed mental stress injury then it appears that the employee would be entitled to workers compensation benefits for chronic mental health stress under the WSIA.

As a result of the recent amendments to Section 13 (4) and WSIB Policies 15-03-04 & 15-03-01 I expect there to be an increase in the number of WSIB mental stress claims.

For over 30 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.

Employer ordered to pay An Employee $ 100 000 for committing the Tort of Harassment

By , March 13, 2017 9:41 am

On a number of occasions I have written about the new types of damages that judges are awarding terminated employees. This blog discusses a case where a trial judge awarded an employee $ 100 000 general damages because the employer committed, among other things, the tort of harassment.

Merrifield v The Attorney General

There are very few reported cases where a judge has ordered damages for committing the tort of harassment. To my knowledge, this is the first time that these damages have been awarded in an employment law case.

Tort of harassment

According to the trial judge in this case, there is a four-part test for proving harassment; namely:

(a)   Was the conduct of the employer toward the employee outrageous?

(b)   Did the employer intend to cause emotional stress or did they have a reckless disregard for causing the employee to suffer from emotional stress?

(c)   Did the employee suffer from severe or extreme emotional distress?

(d)   Was the outrageous conduct of the employer the actual and proximate cause of the emotional distress?

Tort of intentional infliction of mental suffering

In this case, the employee also claimed damages for the intentional infliction of mental suffering which has three elements. In particular, the employer’s conduct must have been (a) flagrant and outrageous, (b) calculated to harm the plaintiff and (c) it must have caused the plaintiff to suffer a visible and provable illness.

In an understatement, the judge noted: “The test for intentional infliction of mental suffering is similar to the test for harassment.” She identified two differences between the two torts; namely: “One difference is that in addition to being outrageous, the conduct resulting in intentional infliction of mental suffering must also be flagrant.  Another difference is that the plaintiff must show that he suffered a visible and provable illness.” The judge found that the employer committed this tort as well.

It will be interesting to see if this case is appealed.

Lessons to be learned

  1. Trial judges are increasing the number of legal claims that an employer can bring against a former employer.
  2. The Ontario Court of Appeal has upheld (or increased) a number of non-traditional damage awards on appeal. Case comments can be found here, here, and here (Note: the damages in this decision were upheld by the Ontario Court of Appeal).
  3. Treating an employee badly can (and in some cases will) cost you.

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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