Header graphic for print

Case in Point

Legal Developments in Human Resources Law

Court recognizes new privacy tort: “public disclosure of private embarrassing facts”

Posted in Information and Privacy

In a case that can only add to the risk of privacy claims faced by organizations, the Ontario Superior Court of Justice recently awarded damages based on the new tort of “public disclosure of private embarrassing facts.”

In Doe 464533 v N.D., the Court awarded damages to a plaintiff whose former boyfriend coaxed her to send him a sexually explicit video of herself. Despite promising the plaintiff confidentiality, the former boyfriend posted the video online. It was available for three weeks before being removed.

The former boyfriend did not defend the action, and the plaintiff moved for default judgment. She adduced evidence that the posting caused her to suffer depression and a psychological impact that the Court concluded was “significant and long-lasting.”

The Court awarded damages based on a variety of legal grounds, including breach of confidence and intentional infliction of mental suffering. Most significantly, it held that damages were warranted based on a yet-to-be recognized privacy tort.

While the Court of Appeal for Ontario recognized the “intrusion upon seclusion” tort in 2012 – a tort about the invasion of one’s private affairs – the disclosure or publication of private facts is not an “invasion.” The Court held that the wrong caused by the ex-boyfriend’s actions more closely aligned with a different tort – the so-called “public disclosure of embarrassing private facts” tort. The Court adopted this tort, with a modification, and framed it as follows:

I would essentially adopt as the elements of the cause of action for public disclosure of private facts the Restatement (Second) of Torts (2010) formulation, with one minor modification: One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of the other’s privacy, if the matter publicized or the act of the publication (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public. [modification shown by underlining]

On the question of damages, the Court awarded general damages of $50,000, $25,000 in aggravated damages and $25,000 in punitive damages. It also ordered the former boyfriend to destroy all intimate images of the plaintiff in his possession and he was permanently prohibited from contacting the plaintiff and members of her family.

Although the facts in this case are extreme, the Court’s decision creates a new legal basis for privacy claims in Ontario. Broadly, it reflects the current interest of our courts in providing a remedy for privacy claims. The challenge with such “common law” (court-created) claims is that their parameters are very general are only defined over time on a case-by-case basis. Organizations should therefore be concerned. This is yet another reason for organizations to strive for strong information governance and privacy protection.

Court of Appeal Rejects Use of “Snapshot” Approach to Determine Exclusivity in Contractor Relationships

Posted in Employment Law

Employment relationships generally fall into one of three categories: employee, dependent contractor or independent contractor. Exclusivity is often a key consideration when determining what category applies.

Recently, the Court of Appeal for Ontario considered the degree of exclusivity required in a dependent contractor relationship in Keenan v. Canac Kitchens Ltd. In Keenan, the plaintiffs had been employed for almost 25 years pursuant to a subcontractor agreement that required the plaintiffs to devote “full-time and attention” to Canac. In the last two years of the relationship, however, the plaintiffs performed some work for Canac’s competitor, Cartier, in response to a slowdown in work from Canac. Canac turned a blind eye to this outside work but, at the time of termination, used the plaintiffs’ work for a competitor to justify a determination that the plaintiffs were independent contractors not entitled to notice of termination.

The Court found that exclusivity could not be determined based on a “snapshot” of the relationship at termination; instead, the relationship in its entirety must be considered. While the plaintiffs may have performed some work for Canac’s competitors near the end of the relationship, looking at the relationship as a whole, the substantial majority of the plaintiffs’ work (97.5%) was performed for Canac. Given the plaintiffs’ long-standing dependence on Canac, the Court found that a high degree of exclusivity had, in fact, been established resulting in a dependent contractor relationship. Such a long and exclusive relationship also justified the trial judge’s finding that a notice period of 26 months was reasonable, particularly given the supervisory nature of the plaintiffs’ position and their significant responsibilities.

The Keenan decision is another reminder that proof of an independent contractor relationship will be in the pudding. Independent contractor relationships “in name only” will not allow employers to escape termination obligations. Ontario courts will not hesitate to examine the nature of the relationship in detail, together with its history, before determining the appropriate category: employee, dependent contractor or independent contractor.

Federal Court of Appeal Clarifies Employer Obligations to Investigate Workplace Violence Allegations under the Canada Labour Code

Posted in Health and Safety

In a recent decision, Canada (Attorney General) v. Public Service Alliance of Canada, the Federal Court of Appeal upheld a decision of the Federal Court which clarified an employer’s obligation to appoint an impartial “competent person” to investigate complaints of workplace violence.

The Canada Occupational Health and Safety Regulations (“Regulations”) require an employer to appoint a “competent person” who is impartial and seen by the parties to be impartial to investigate workplace violence “if an employer becomes aware of workplace violence” and is unable to resolve the matter with the employee. At issue in this case was when that obligation is triggered for a complaint which, even if true, may not amount to workplace violence.

The employee in this case had filed a complaint of harassment with his employer, the Canadian Food Inspection Agency (“CFIA”). The employer appointed a management employee to undertake a “fact-finding” process to review the concerns raised by the employee and determine whether an investigation was warranted. After interviewing those involved, the individual concluded that an investigation was not required because the allegations did not constitute harassment. The employee alleged that this process amounted to an investigation in and of itself and an impartial, competent person had not been selected within the meaning of the Regulations. The CFIA took the position it had not been made “aware of workplace violence” so as to trigger the requirement to appoint a competent person because the alleged conduct could not reasonably be expected to cause harm, injury or illness, and the “fact-finding” process was its way of determining whether the requirement was triggered. This issue ultimately came before the Federal Court of Appeal.

The Federal Court of Appeal agreed with the Federal Court, which had found that “if the attempts at informal resolution were unsuccessful and it was not ‘plain and obvious’ that the complaint was not related to workplace violence, there was a mandatory duty to appoint a competent person that was seen by both parties as being impartial.” The Federal Court also found that harassment of the kind alleged in this case may constitute workplace violence, because it may cause mental or psychological harm or illness. As stated by the Federal Court of Appeal:

[31]    […]     allowing the employers to conduct their own investigations into complaints of workplace violence and to reach their own determination as to whether such complaints deserve to be investigated by a competent person would make a mockery of the regulatory scheme and effectively nullify the employees’ right to an impartial investigation of their complaints […].

That being said, the Court was careful to note that it is not the intent of the Regulations to require employers to appoint a competent person to investigate each and every complaint that is characterized by an employee as being workplace violence. Employers can still review a complaint with a view to determining whether, on its face, it falls within the definition of workplace violence.

This decision limits an employer’s ability to “screen out” complaints it considers to be unrelated to workplace violence before commencing the often costly and lengthy process of appointing a competent person to investigate the complaint. It is only where it is “plain and obvious” that the complaint is not related to workplace violence that an employer can justify not completing this step.

Appeal Court Upholds $20,000 Damages Award for Discrimination on the Basis of Family Status

Posted in Human Rights, Minimum Standards

In this latest decision which considers discrimination on the basis of family status due to childcare issues, the Court of Appeal for Ontario upheld a trial judge’s finding that an appellant employer breached both the Employment Standards Act, 2000 (“ESA”) and the Human Rights Code (“Code”) when it terminated the employment of the respondent employee one week after she returned from her second maternity leave.

In Partridge v. Botony Dental Corporation, the Court of Appeal deferred to the findings of the trial judge who concluded that the appellant employer changed the respondent’s working hours, knowing they would conflict with her childcare obligations, when the respondent asserted her right under the ESA to be returned to her pre-maternity leave position as an Office Manager. The appellant then terminated her employment on unfounded allegations of cause. In addition to the finding of wrongful dismissal, the trial judge held there had been reprisal under the ESA and discrimination on the basis of family status. The Court of Appeal noted the trial judge’s finding that the appellant committed “multiple and deliberate breaches of its obligations towards the Respondent under the Employment Standards Act, 2000.

On the issue of family status and childcare obligations, the Court rejected the appellant employer’s assertion that the respondent could make alternative, sustainable childcare arrangements, stating:

[20]         Whether the framework under Johnstone v. Canada (Border Services), 2014 FCA 110 (CanLII), 372 D.L.R. (4th) 730 or SMS Equipment Inc. v. Communications, Energy and Paperworkers Union, Local 707, 2015 ABQB 162 (CanLII), [2015] 8 W.W.R. 779 is applied, the result flowing from the trial judge’s very specific, fact-driven analysis, required under both decisions, is the same.

The Court upheld the trial judge’s award of twelve months’ notice as well as $20,000 in compensatory damages under the Code.

This decision serves as a stark reminder to employers that an employee’s childcare obligations may give rise to an issue of accommodation on the basis of family status and that any requests must be examined carefully and on a case-by-case basis.

Court Examines Parties’ Intentions and Severability Clause in Upholding ESA-Only Termination Provision

Posted in Employment Law

Over the past few years, the Ontario Superior Court has rendered several decisions which consider the enforceability of termination notice provisions in employment contracts that provide only for the Employment Standards Act, 2000 (“ESA”) minimum entitlements. Depending on the specific wording used, many of these provisions have been held to be unenforceable for non-compliance with the ESA and thereby have given rise to reasonable notice owing, a consequence unintended by the employers.

In Oudin v Le Centre Francophone de Toronto, Justice Dunphy provided some helpful guidance on the enforceability of such provisions. He stated that it is not the law that “if any potential interpretation can be posited that might in some hypothetical circumstance entail a potential violation of the ESA, however absurd or implausible the interpretation may be, then the only possible result is to strike out the entire section of the agreement.”

The plaintiff in this case was the project manager for a magazine produced by the employer. After several years of declining sales, the decision was made to discontinue the publication and as a result the plaintiff’s employment was terminated. Upon termination, the employer relied on the termination provision found in the plaintiff’s Employment Agreement (“Agreement”), which read:

9.2 Termination and contractual rescission: This agreement may be terminated without notice or compensation by CFT [the employer] for the reasons mentioned in article 4 of this agreement. The CFT may also terminate this agreement for any other reason by giving the employee 15 days notice or the minimum prescribed by the Employment Standards Act or by paying an amount of salary equal to the salary the employee would have had the right to receive during the notice period (after deduction and/or withholding at source), in the entire discretion of CFT.

In this action, the plaintiff challenged the Agreement and the validity of the termination provision.

First, he argued that s. 9.2 was “infected” by referencing “article 4 of the agreement.” The plaintiff argued that Article 4 “prescribes a result that would be contrary to the ESA in that it purports to authorize termination without notice by reason of permanent disability.” Note that regulatory changes made under the ESA in 2005 had removed employees who are unable to perform their contracts of employment due to illness or injury from the prescribed list of employees who are not entitled to termination pay or severance upon termination. However, the employer’s standard form contract was not updated to reflect those changes. The plaintiff argued that, in accordance with the Supreme Court of Canada’s decision in Machtinger, the entire provision was therefore void.

The Court disagreed. It referred to the “severability clause” in the Agreement which stated that should any provision in the Agreement be invalid because of the operation of the law, that “modality” should be modified or nullified to the extent necessary to bring it into legal compliance. The offending language in article 4 could therefore be excised and s. 9.2 needed “no modification at all”.

Second, the plaintiff argued that s. 9.2 was ambiguous and therefore void because at least one interpretation was that it only permitted 15 days’ notice, an amount that was less than he was otherwise entitled to. Section 9.2 stated that the Agreement could be terminated upon the provision of 15 days’ notice or the minimum prescribed by the ESA.

The Court disagreed. It found no ambiguity in the provision as the intention of the parties was clear that the plaintiff receive the greater of the two notice periods. The Court stated:

[53] I do not accept that I should strive to find the least plausible interpretation the language will bear simply because the outcome happens to favour one party or another in hindsight.  While the plaintiff argues for contra proferentem – a doctrine of limited utility in the circumstances of this case – the interpretation that most favours the interest of the employee is the one that provides the employee with the greater of the two levels of notice, not the least. Contra proferentem is not a means of finding the least favourable interpretation to the employee with a view to invalidating the contract in whole or in part.[emphasis added]

Finally, the plaintiff argued that the employer repudiated the Agreement because it failed to immediately pay out the correct ESA amounts. The employer had paid 21 weeks’ severance and termination pay, rather than the correct amount of approximately 22 weeks. When the employer learned of the error, it was quickly corrected. The Court stated that such an oversight did not “come close to the standard of a deliberate and clear repudiation of an entire legal relationship.”

This decision is very helpful to employers for a number of reasons:

  • the Court stressed that termination provisions should be interpreted in a manner consistent with the intention of the parties. It is not the law to “to imagine how the contract can be construed at its conclusion with a pre-determined goal of finding a means to avoid it entirely because one side finds it less generous than desired,” nor to arrive at a conclusion, however implausible, which might entail a violation of the ESA;
  • it reinforces the importance of having a clear, well-drafted employment agreement. Reliance on a standard form contract may be problematic should issues later arise; and
  • in particular, a well-drafted “severability clause” is a key component of any employment agreement, to mitigate against any later finding that a particular provision may be invalid.

Appeal Court Confirms that Employer’s Financial Circumstances Not a Factor in Determining Reasonable Notice

Posted in Employment Law

Are an employer’s financial circumstances a relevant consideration in determining the period of reasonable notice to which a wrongfully dismissed employee is entitled?

This is the question the Court of Appeal for Ontario was asked to decide in Michela v. St. Thomas of Villanova Catholic School, where the motion judge had reduced damages in lieu of reasonable notice owing to the plaintiff employees because of the poor financial position of their former employer. The Court answered the question in the negative – an employer’s financial circumstances are not a relevant consideration in calculating a reasonable notice period.

The three employees in this case were dismissed from employment as teachers with their employer, a school. Following the dismissal, the employees filed a claim for wrongful dismissal and sought damages for pay in lieu of reasonable notice. The employer initially took the position that the teachers were employed on fixed term contracts and were not entitled to reasonable notice.

The matter proceeded by way of summary judgment. The motion judge found the teachers were in fact employed for indefinite periods (a finding which was not appealed) and were therefore entitled to reasonable notice at common law. With respect to the appropriate notice period, the motion judge held that the poor financial circumstances of the employer was a component of the plaintiffs’ “character of employment” and therefore a relevant consideration in fixing the reasonable notice period. Accordingly, the notice periods were reduced from the plaintiffs’ proposed 12 months’ notice to 6 months.

The plaintiffs appealed and took that the position that the financial health of their former employer was irrelevant in determining the appropriate reasonable notice period. The Court of Appeal agreed. It confirmed the relevant factors in determining the reasonable notice period are those set out in Bardal, which focus on the circumstances of the employee, not the employer: age, years of service, the character of employment and the availability of similar employment.

The Court accepted that an employer’s financial circumstances may well be the reason for a termination and therefore the event which gives rise to an employee’s right to reasonable notice. However, financial circumstances are not relevant in determining what that notice period will be – “they justify neither a reduction in the notice period in bad times nor an increase when times are good.”

Because there has been some confusion in the case law with respect to the relevance of an employer’s financial situation on the calculation of the notice period, the Court stated:

[22]                It is important to emphasize, then, that an employer’s poor economic circumstances do not justify a reduction of the notice period to which an employee is otherwise entitled having regard to the Bardal factors. […]

[23]                 Thus, even assuming that the respondent was suffering financial difficulties when it dismissed the appellants, the motion judge erred in concluding that the period of notice to which the appellants were entitled should be reduced as a result. That conclusion is neither required by the case law nor consistent with the nature and purpose of an employee’s right to notice.

With this decision, the Court has clarified any prior uncertainty in the case law as to whether an employer’s financial circumstances are an appropriate consideration in the reasonable notice analysis: they are not.


Appeal Court Decision Underscores Importance of Clear Terms of Hire at Outset

Posted in Employment Law

In a recent decision, Holland v. Hostopia.com. Inc., the Court of Appeal for Ontario found that a termination provision in an employment agreement purporting to limit the appellant’s entitlements upon termination of employment to the statutory minimums under the Employment Standards Act, 2000 (“ESA”) was unenforceable due to lack of consideration.

The appellant had commenced employment with the respondent pursuant to an offer letter. That letter did not contain a termination provision; however, it stated that the appellant would be required to sign a separate employment agreement. Nine months later, the appellant was presented with and signed an employment agreement which contained a termination provision purporting to limit his entitlements upon termination to the statutory minimums. In addition, the employment agreement purported to increase the duration of the non-competition and non-solicitation provisions, which had been outlined in a Code of Business Conduct and Proprietary Rights Agreement that had been presented to the appellant nine months earlier. The appellant was terminated from his employment with the respondent after seven years’ service, found similar work three months later and sued for wrongful dismissal.

The Court of Appeal found that the employee received no consideration for signing the employment agreement, and therefore that it was unenforceable. It found that the trial judge’s conclusion that the offer letter and employment agreement together formed one contract was incorrect. The Court held instead that the employment agreement contained a term inconsistent with the offer letter – namely the amount of reasonable notice (or pay in lieu) that would be provided upon termination of employment. Given that the two documents were inconsistent in at least this respect, they could not be considered one contract:

[49]    […]     [T]he two documents were not consistent. They differed in at least one very material respect. Once accepted, the Offer Letter constituted a complete contract of employment. The appellant was employed pursuant to the Offer Letter for some nine months before he signed the Employment Agreement. It was an implied term of the Offer Letter that he was entitled to reasonable notice prior to the termination of his employment […]

[50]    […]     Instead of providing for reasonable notice, [the Employment Agreement] limited the appellant’s entitlement to notice of termination to the statutory minimum set out in the ESA. There was no evidence of any discussion of the subject prior to the appellant’s acceptance of the Offer Letter, no evidence that he was told that the Employment Agreement would contain terms inconsistent with the Offer Letter and no evidence that he agreed to waive his right to reasonable notice of termination when he signed the Offer Letter. Accordingly, the Employment Agreement introduced a new, very material term, into the existing contract of employment – a term to which the appellant had not previously consented and for which he received no consideration.

The Court concluded that, having failed to provide the appellant with fresh consideration for signing the employment agreement, the employer could not rely upon the termination provision contained in it. In other words, the implied term of reasonable notice in the offer letter could not be displaced without the employer providing something of benefit to the appellant in exchange for him signing the employment agreement.

This case serves as an important reminder to employers that, when hiring employees, all terms of employment should be presented to the individual before he or she commences employment. Fresh consideration should also be provided for any new contract(s) or contract amendment(s). Failure to do so may mean those new terms are unenforceable – an outcome the employer may not have contemplated or budgeted for.

Is an Employer Required to Accommodate an Employee’s “Personal Choice” to Breastfeed?

Posted in Human Rights

In Flatt v. Canada (Attorney General)a case that has garnered media attention, the Federal Court of Appeal upheld a decision that found an applicant who requested accommodation to breastfeed her child during working hours failed to meet the test for establishing prima facie discrimination. The Court held this request involved the applicant’s “personal choice” – not a legal obligation towards a child under her care as required by the applicable legal test. Moreover, the applicant had made no reasonable effort to find a viable solution.

The matter arose from a decision of the Public Service Labour Relations and Employment Board. Following her third maternity leave, the applicant requested permission to telework from her home in order to continue breastfeeding her child; the applicant and the employer had agreed to a similar arrangement after her previous maternity leaves. Despite several exchanges, the parties failed to establish a suitable work schedule that would meet both of their needs. The applicant reverted to requesting that she be allowed to telework on a full-time basis; the applicant’s request was denied. Since the applicant was unionized, she filed a grievance claiming that the failure to accommodate was discriminatory on the basis of sex and family status and contrary to the Canadian Human Rights Act and the collective agreement. The grievance was denied.

In dismissing the application for judicial review, the Court held, among other things, that there was no prima facie case of discrimination based on the evidentiary record and the facts of the case, for the following reasons:

  • The Johnstone test applied, whether the alleged discrimination was based on sex or family status.
  • Breastfeeding during work hours was a personal choice made by the applicant, not a legal obligation towards the child under her care for the purposes of the second branch of the Johnstone test.
  • The applicant made no reasonable effort to find a viable solution, as required under the third branch of the Johnstone test. In particular, the employer had “generally agreed” with one of the proposals, but raised reasonable concerns. The applicant failed to address these concerns and abandoned that possible arrangement entirely, reverting instead to her original request of teleworking from her home on a full-time basis.

The Court noted that there may be circumstances where there could be a prima facie case of discrimination related to breastfeeding:

It seems to me that to make a case of discrimination on the basis of sex or family status related to breastfeeding, an applicant would have to provide proper evidence, foreseeably divulging confidential information. For example, such information may address the particular needs of a child or particular medical condition requiring breastfeeding; the needs of an applicant to continue breastfeeding without expressing her milk; and the reasons why the child may not continue to receive the benefits of human milk while being bottle-fed. This list of examples, of course, is not exhaustive. The purpose of such evidence would be to establish that returning to work at the workplace is incompatible with breastfeeding. [para. 33]

Additionally, the Court did not wish its reasons to be understood as “trivializing breastfeeding”:

The medical profession and numerous health organizations encourage mothers to breastfeed babies, praising, inter alia, the benefits of human milk on the immune system of young children. The applicant chose to breastfeed her children and respect must be had for her decision. This case is not about that choice but rather about the difficulties of balancing motherhood and career. It is about balancing the rights of mothers and that of employers having regard to the basic principle that one must be at work to get paid. The test for establishing prima facie discrimination is well entrenched in Canadian jurisprudence. In the case of breastfeeding, the onus is on working-outside-the-home mothers to make a prima facie case of discrimination. Unfortunately in this case, the applicant failed. [para. 38]

As the first decision from the Federal Court of Appeal on this issue, it will likely have implications across Canada at the federal and provincial levels. It is important for employers to realize that this case does not state that breastfeeding is a personal choice in all circumstances; rather, each such request should by analyzed on a case-by-case basis.

The Court has confirmed that breastfeeding accommodation can be based on the protected ground of family status or sex. As such, requests for breastfeeding accommodation should be managed by employers in the same way that other accommodation requests based on family status or sex are managed, including continued discussions between the parties and creating reasonable solutions to meet both parties’ needs, up to undue hardship.

For more information about the Johnstone test, please see our FTR Now on the case, Federal Court Of Appeal Upholds Johnstone, Clarifies Nature And Scope Of Family Status Protections.

Supreme Court of Canada on Prima Facie Discrimination and a Plaintiff’s Burden of Proof

Posted in Human Rights

The Supreme Court of Canada recently overturned a decision of the Québec  Human Rights Tribunal (“Tribunal”) which found that Bombardier had discriminated against a pilot, Mr. Latif, by refusing to provide him with training on certain Bombardier aircraft after U.S. authorities denied his security clearance. The unanimous Court found that there was insufficient evidence to establish that Mr. Latif’s ethnic or national origin played a role in the decision made by U.S. authorities.

Mr. Latif had filed a complaint against Bombardier, arguing that the U.S. authorities’ decision was the result of racial profiling and that Bombardier discriminated against him by relying on that decision, contrary to the Québec Charter of human rights and freedoms (“Québec Charter“).

The issue before the Court was whether or not the Tribunal had sufficient evidence to establish a connection between Bombardier’s denial and a prohibited ground of discrimination. The key evidence before the Tribunal included:

(i)      an agreement between the parties that Bombardier’s refusal to provide training to Mr. Latif was based solely on the fact that the U.S. authorities had not issued him a security clearance; and

(ii)    expert evidence showing that the U.S. authorities had engaged in racial profiling since September 11, 2001.

The Tribunal found that the U.S. authorities’ decision with respect to Mr. Latif was made in the context of racial profiling, and that Bombardier’s denial thus had the effect of creating a distinction based on one of the prohibited grounds under the Québec Charter. It concluded on this basis that there was prima facie proof of discrimination, and ordered Bombardier to “cease applying or considering the standards and decisions of the U.S. authorities in ‘national security’ matters when dealing with applications for the training of pilots under Canadian pilot’s licences.”

However, the Québec Court of Appeal found that the Tribunal erred in finding that there was a causal connection between the exclusion and a prohibited ground because there was no proof that the U.S. authorities’ decision was itself discriminatory, and set the decision aside.

On further appeal, the Supreme Court of Canada considered the degree of proof needed to establish prima facie discrimination, and whether the order against Bombardier was justified. The Court set out the following test to establish a case of prima facie discrimination under the Québec Charter:

  • Differential Treatment – The plaintiff must prove that a decision, measure or conduct affects him or her differently from others to whom it may apply.
  • Connection – The plaintiff must establish that the distinction, exclusion or preference in question is “based” on one of the protected grounds of discrimination. In discussing this branch of the test, the Court concluded that the term “causal connection” is no longer appropriate in the discrimination context – all that is required is that the plaintiff show a “connection” or “factor” between a prohibited ground of discrimination and the distinction, exclusion or preference of which he or she complains. The Court then went on to find that while the proof required of a plaintiff is of a simple “connection” or “factor” it must still be proven on a balance of probabilities.
  • Affect – The plaintiff must show that the distinction, exclusion or preference affects the full and equal exercise of a right or freedom guaranteed to the plaintiff.

The Supreme Court of Canada upheld the Québec Court of Appeal’s decision, finding that there was insufficient proof that Mr. Latif’s ethnic or national origin was a factor in the U.S. authorities’ decision.

The Court’s decision in this case clarifies that the standard of proof which normally applies in civil cases also applies to establishing a prima facie case of discrimination – in other words, there is no relaxation of the complainant’s obligation to prove his or her case and meet the applicable standard of proof. In determining whether or not a complainant has established a prima facie case of discrimination, the Tribunal will require evidence that is tangibly related to the impugned decision or conduct. Accordingly, presumptions based on social context alone will be insufficient when analyzing a decision against a single member of the group.

In discussing these issues, the Court cautioned against a company blindly complying with discriminatory decisions of a foreign authority or third party. Although this was not the case here, blind compliance to discriminatory decisions may expose an organization to liability under human rights legislation where there is evidence of a connection between the prohibited ground and the foreign decision in question.

Arbitrator Upholds Discharge of Long Service Employee with Clean Record for Theft

Posted in Labour Relations

In a recent arbitration decision involving a case of petty theft in the workplace, an arbitrator provided very useful guidance on workplace theft and the mitigating factors an employer should take into account in determining the penalty.

The decision involved the discharge of an employee with 17 years of service and a clean disciplinary record for stealing from the company’s cafeteria. The grievor engaged in three acts of premeditated petty theft within a four-day period. When confronted, he refused to admit wrongdoing, specifically denied the thefts and attempted to deflect responsibility by making several false accusations. Even after he became aware that his employment was going to be terminated, he continued to lie and deny the thefts.

Approximately one hour after he was terminated, the grievor confessed. He also admitted stealing items on multiple prior occasions. At the arbitration hearing, the union put great emphasis on the low value of the stolen goods; however, the arbitrator was not moved by this given the grievor’s conduct and the surrounding circumstances. In particular, the arbitrator noted that while the value of items stolen was low, there was an established pattern of misconduct over a substantial period of time, and the thefts were simply “business as usual” for the grievor. The arbitrator accepted that he was genuinely remorseful (for both his misconduct and the consequences thereof); however, that was “too little, too late.”

The arbitrator noted that the timely willingness to take responsibility and accept the consequences for an act of theft, and the demonstration of sincere remorse for the misconduct (as opposed to remorse for the consequences) would have been particularly important because these steps would be a “window to true character and offer clues to the extent to which the employee can truly be trusted again.” Here, the grievor did not do this – his actions undermined the mutual trust that is fundamental to the employment relationship. Therefore, the arbitrator decided that there was ample cause to discipline the grievor, that it would be “inappropriate” to return him to the workplace, and that it was not just and reasonable to substitute a lesser penalty.

The arbitrator’s comments regarding factors in favour of mitigating the employer’s penalty are instructive. Some of the most salient comments are:

  • Workplace-related theft is universally considered to be a serious employment offence which merits a significant disciplinary response. Once theft is proved, discharge remains a prima facie appropriate penalty and the union bears the onus to demonstrate that a less severe penalty is just and reasonable.
  • While relevant, the following will not, by themselves, be generally compelling:
    • an employee’s age or personal circumstances that are not significantly distinguishable from those of any other discharged employee;
    • seniority; and
    • contrition at the hearing.
  • The most significant factors are those which speak to the employee’s character and “trust rehabilitation” potential:
    • whether the theft was premeditated, a single incident or a pattern of behaviour; and
    • the employee’s reaction when confronted with the allegation.

The decision in this case is an important reminder of the critical role trust plays in any employment relationship. Accordingly, in determining whether the penalty imposed for such misconduct was appropriate, arbitrators will engage in a careful assessment of the surrounding circumstances, including the presence or absence of mitigating factors. Employers are therefore well advised to ensure that they approach each incident of theft, including an employee’s post-theft conduct, with the same degree of attention.

This case was argued successfully by Hicks Morley lawyer Martin Addario.

Messier-Dowty Inc v International Association of Machinists and Aerospace Workers, Local Lodge 905, 2015 CanLII 56078 (ON LA)