2019 NOVA CORONAVIRUS – WHAT TO DO AND KNOW IN YOUR WORKPLACE

An excellent article by Fasken identifying the issues that can arise in your workplace with public health emergency issues, particularly the 2019 Novel Coronavirus:

“The World Health Organization (WHO) has declared the 2019 Novel Coronavirus outbreak a public health emergency of international concern. There are now over 7,500 confirmed cases of the coronavirus reported globally. [i] There are three confirmed cases in Canada with many more possible cases being investigated.[ii] Coronavirus refers to a family of viruses that can infect both humans and animals. [iii] A novel coronavirus is a new strain that has not previously been identified in humans. [iv] According to the latest information from Toronto Public Health and Health Canada, coronavirus symptoms range from mild to moderate and include fever, runny nose, headache, cough, sore throat, and difficulty breathing.[v]

The Public Health Agency of Canada currently assess the public health risk of coronavirus as low for Canada and for Canadian travellers. [vi] However, employers are understandably concerned about their employees and business continuity. This article provides some general guidance on the legal issues that employers may encounter. This is general guidance only and employers should be prepared to obtain specific legal advice to deal with specific workplace issues as matters unfold.

This general guidance will apply to most workplaces.  Workplaces that are health care facilities treating the ill will require a more immediate and tailored response to issues. Employers with unionized workforces will also need to be mindful of specific obligations in their collective agreements, including any obligation to develop a response in consultation with union representatives.

Health and Safety Precautions

Health and safety legislation imposes a general duty on employers to take reasonable precautions to protect employees. This requires employers to take active steps to ensure employees are safe from workplace hazards. The exact steps that an employer must take to protect employees from the coronavirus depends on the likelihood of employees being exposed to and contracting the virus at work. During the Severe Acute Respiratory Syndrome (SARS) outbreak in Toronto in 2003, the Ministry of Labour and public health authorities recommended that employers:

•    Ensure that employees with flu-like symptoms do not come to work;
•    Promote good hygiene practices (like handwashing) and ensure the work environment is clean;
•    Ensure that engineering controls (like ventilation) are properly maintained; and,
•    Distribute and train employees in the use of personal protective equipment, as appropriate.[vii]

This is also good preliminary advice for the coronavirus. Employers should monitor bulletins and news releases from health authorities for the latest updates. Their advice will help employers fulfill their duty to take reasonable precautions to protect employees.

Employer also have a duty under health and safety legislation to provide information to employees.  This duty could require employers to tell employees about the risk of contracting the virus at work, and about the measures in place to control or eliminate that risk.  Employees may ask about whether they can wear masks or other personal protective equipment at work. Based on current information, the use of masks, respirators, and glasses is not recommended for those outside of health care employees in close proximity to confirmed cases. Instead, the WHO is recommending standard precautions for the general public to reduce exposure to and transmission of the virus, including:

•    Frequently clean hands by using alcohol-based hand rub or soap and water;
•    When coughing and sneezing cover mouth and nose with flexed elbow or tissue – throw tissue away immediately and wash hands;
•    Avoid close contact with anyone who has fever and cough;
•    If you have fever, cough and difficulty breathing seek medical care early and share previous travel history with the health care provider;
•    When visiting live markets in areas currently experiencing cases of novel coronavirus, avoid direct unprotected contact with live animals and surfaces in contact with animals;
•    The consumption of raw or undercooked animal products should be avoided. Raw meat, milk or animal organs should be handled with care, to avoid cross-contamination with uncooked foods, as per good food safety practices.[viii]

Enhanced precautions will be appropriate for employees in health care working in close proximity to confirmed cases of the coronavirus.

Work Refusals

The WHO emergency declaration and the relatively quick spread of the virus has attracted significant media attention and speculation. This may result in employees refusing to perform work if they believe they may be exposed to the virus.

Employers should be familiar with the employees' right to refuse unsafe work and how these situations must be handled.  Generally, employees have the right to refuse work where they have reason to believe their health and safety is at risk.  The right to refuse is more limited for those working in certain jobs (like healthcare) where the unsafe condition is a normal part of work, or where the refusal would endanger the life, health and safety of another.

If an employee refuses to work, the employer must follow the specific resolution process outlined in health and safety legislation. Employers are generally prohibited from disciplining or threatening employees for exercising their right to refuse work. Employers who are considering disciplining an employee for a bad faith or improper work refusal should seek specific legal advice.

Time Off for Illness or Care Obligations

Employees who are ill or need to care for ill family members may be entitled to paid time off under employer policies or contracts, or unpaid time under employment standards legislation for illness or care obligations.

In Ontario, employees are entitled to take sick leave, family responsibility leave, family caregiver leave, family medical leave, and critical illness leave under employment standards legislation. Depending on the circumstances, the same event can entitle an employee to multiple leaves because each leave is a separate entitlement. These leaves can range significantly in duration. Employers should review the requirements for the different leave entitlements.

Instead of requesting a doctor's note, depending on operational needs and the leave being requested, employers may wish to simply encourage employees who are potentially infected with the coronavirus to stay at home and contact emergency health services if and as appropriate. Requiring a doctor's note in every case may actually do more harm because employees could potentially infect others at their doctor's office.

Accommodation and Discrimination

Employees are protected under human rights legislation from discrimination based on defined grounds including disability, family status, national origin, and racial and ethnic background. The category of disability is interpreted broadly and may, in certain circumstances, include the coronavirus. This is particularly true since the Ontario Human Rights Commission clarified during the 2003 outbreak that SARS should be treated as a "disability" under the Ontario Human Rights Code.  This protection applies whether based on perceived or actual disability.

Employees who are required to take time off work to care for family members may also be protected from discrimination and entitled to accommodation based on family status. In any case where an employee wishes to take a leave of absence to care for themselves or a family member due to the Coronavirus, employers should carefully assess the specific circumstances and ensure they fulfill their procedural and substantive duty to accommodate to the point of undue hardship. This may require extended leaves of absence over and above employment standards entitlements.

Employees are also protected from discrimination based on having a racial, ethnic, or national background that is believed to be associated with the coronavirus. For example, an employee of Asian descent, or an employee who is associated with someone of Asian descent, should not be treated differently from other employees because of their ethnic or national origin. Employers must, of course, be vigilant to control the risk of coronavirus at work, but the employer should take care not to be involved in speculation, alarmism, or fearmongering generally, and particularly about the origins of the virus.

Workers' Compensation

Under the workers' compensation system, employees have a statutory entitlement to compensation for personal injury or illness that arises out of and in the course of their employment, including wage-loss benefits and medical coverage. Employees who become infected and who work in a healthcare setting where they interact with patients infected with the Coronavirus, or who are required to travel to areas where the Coronavirus is known to be prevalent, may be able to claim their infection arose in the course of their employment. Employers in these situations should ensure all appropriate risk-mitigation efforts are implemented based on the latest guidance from public health authorities, and to impose travel restrictions accordingly.  

Emergency Preparedness

Although there will always be unknown and uncontrollable elements to the spread of an infectious illness, employers can take practical measures now to prepare themselves for these contingencies. Employer should.

•    Ensure managers are aware of their duties and obligations under workplace legislation, including in the areas of employment standards, human rights, and occupational health and safety as they relate to the coronavirus.
•    Monitor the latest updates from public health authorities, including municipal, provincial, and federal public health agencies. These agencies will provide objective information about the coronavirus on an ongoing basis, and employers should refer employees to these as their main source of information.
•    Review and update their policy or policies addressing communicable illnesses, and to clarify the protocols that apply to the coronavirus. Generally, these policies should address what illnesses are covered, protocols for disclosure and for staying at home, the application of paid and unpaid leave entitlements to illness and quarantine-related situations, guidelines for work-related travel, and available workplace resources.
•    Develop a broader policy to address how business operations will continue in the event of a more serious outbreak. This can be prepared as a general policy for defined emergency events, including an outbreak of infectious illness such as the Coronavirus, and should outline how core business functions and channels for decision-making will be maintained in such an event.
•    Depending on the nature, size, and sophistication of business operations, emergency preparedness plans may include succession plans for defined roles in the event of employee absences, communication protocols for internal and external parties, general health and safety practices, and operational measures for dealing with facilities that are directly affected.  

Fasken will continue to monitor the situation and will provide timely updates.

________________________________________
[i] World Health Organization. "Novel Coronavirus (2019-nCoV) situation report 10" (26 January 2020), online
[ii] Public Health Agency Canada. "2019 Novel Coronavirus infection (Wuhan, China): Outbreak update" (30 January 2020), online
[iii]World Health Organization. "Coronavirus", online
[iv] World Health Organization. "Coronavirus", online
[v] Toronto Public Health. "Novel Coronavirus (2019-nCoV)" (27 January 2020), online. "Novel Coronavirus infection: Symptoms and treatment" (26 January 2020), online.
[vi] Public Health Agency Canada. "2019 Novel Coronavirus infection (Wuhan, China): Outbreak update" (26 January 2020), online.[vii] Ministry of Labour, "Workplace Laws and SARS" (10 December 2003).[viii] World Health Organization. "Novel Coronavirus (2019-nCoV) advice for the public", online.”

Credit: Shane Todd and Justin P’ng, Fasken (via Lexology)

 

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FIGHT WITH YOUR NEIGHBOUR? THINK TWICE BEFORE AIRING IT OUT IN THE COURT

Having a dispute with your neighbour? Well, before you call your lawyer, think about this well-known (at least in legal circles) decision by the Court about feuding neighbours taking up valuable and limited judicial resources.  

The CaseMorland-Jones v. Taerk, 2014 ONSC 3061 (CanLII)

The Dispute:

Neighbours. Mutual allegations about family pets, profanity, disturbing the peace and misbehaviour generally. An injunction was sought.

The Outcome:

A pox on both their houses. The Court dismissed all of the claims and, effectively, admonished both sides for usurping the limited resources of the judiciary as a forum for their Hatfield-McCoy-style dispute. Both sides, which obviously were sufficiently wealthy to fund this litigation, got no costs.

Here is the actual decision:

ENDORSEMENT

[1]               The parties to this action live across the road from each other in Toronto’s tony Forest Hill neighbourhood. The video footage played at the hearing shows that both families live in stately houses on a well-manicured, picturesque street. They have numerous high end automobiles parked outside their homes.

[2]               The Plaintiff, John Morland-Jones, is an oil company executive; the Defendant, Gary Taerk, is a psychiatrist. They do not seem to like each other, and neither do their respective spouses, the Plaintiff, Paris Morland-Jones and the Defendant, Audrey Taerk.

[3]               In this motion, the Plaintiffs seek various forms of injunctive relief on an interlocutory basis. It all flows from the Plaintiffs’ allegation that the Defendants have been misbehaving and disturbing their peaceful life in this leafy corner of paradise.

[4]               As counsel for the Plaintiffs explains it, the Plaintiffs’ house is ringed with eleven video cameras for security purposes. Two of them are aimed directly at the Defendants’ front door and driveway. They record, 24/7/365, every movement in and out of the Defendants’ home. The Plaintiffs can see when Ms. Taerk leaves to go shopping, they can study what the Defendants are wearing every morning when they pick up their newspaper on the front step, they have a videotaped record of when Mr. Taerk goes to work or walks his dog, etc.

[5]               Nothing that the Defendants do escapes the Plaintiffs’ video camera lens. The cameras trained on the Defendants’ house may or may not provide the Plaintiffs with a sense of security, but as demonstrated by the dozen or so videos produced in this motion, the Plaintiff’s “security system” is as much a sword as it is a shield.

[6]               The hearing before me started off with counsel for the Plaintiffs playing a short excerpt from security footage shot by the Plaintiffs several years ago, in which Ms. Taerk is seen performing a “poop and scoop” after a dog did its business on her front lawn. The Plaintiffs’ security camera shows her crossing the street with the plastic bag-full in hand, and then walking toward the Plaintiffs’ driveway where the garbage cans were out for collection. Although the impugned deed actually takes place off camera, Ms. Taerk can be seen moments later returning to her side of the street empty-handed.

[7]               Apparently, much to the consternation of the Plaintiffs, she deposited the goods in the Plaintiffs’ garbage can. In doing so, she failed to walk to the back of her house to place it in her own receptacle like a truly good neighbour would do.

[8]               The “dog feces incident”, as counsel for the Plaintiffs calls it, is a high point of this claim. At the hearing, it was followed by counsel’s description of a cease and desist letter sent to the Defendants in 2008 by a lawyer then representing the Plaintiffs, which describes what is now referred to by counsel as the “dog urination issue”. This letter enclosed photographs – apparently stills taken from the Plaintiffs’ non-stop video footage – documenting Mr. Taerk walking his dog and occasionally allowing it to lift its leg in a canine way next to the bushes lining the Plaintiffs’ lawn.

[9]               The Defendants did not respond to this erudite piece of legal correspondence. Counsel for the Plaintiffs characterizes this silence as an “admission”, although it is unclear just what legal wrong was being admitted to.

[10]           And it goes downhill from there. For example, the Defendants are accused of occasionally parking one of their cars on the street in a legal parking spot in front of the Plaintiff’s home. The Defendants do this now and then, according to the Plaintiffs, just to annoy them. This accusation was admittedly pressed rather sheepishly by Plaintiffs’ counsel, since the Plaintiffs have conceded that they park one of their own cars in front of the Defendants’ home every day. Indeed, the Plaintiffs cannot help but concede that fact, since their own non-stop video surveillance of the Defendant’s house shows the Plaintiff’s car sitting there day after day.

[11]           The Plaintiffs also complain quite vociferously about the fact that the Defendants – in particular Ms. Taerk – are in the habit of sometimes standing in their own driveway and taking cell phone pictures of the Plaintiffs’ house across the street. Apparently, the Plaintiffs, who keep two video cameras trained on the Defendants’ house night and day, do not like their own house being the target of Ms. Taerk’s occasional point-and-click.

[12]           The Plaintiffs also accuse Ms. Taerk of taking pictures of the Plaintiffs’ housekeeper taking their dog for its daily constitutional. The video tapes show the housekeeper leading the dog to what they describe as its favorite grassy spot in a parkette only feet from the Defendants’ front lawn. The housekeeper has deposed that she goes there with the dog every day. Ms. Taerk has made of show of documenting that activity.

[13]           Another complaint submitted by the Plaintiffs is that Mr. Taerk has taken up the habit of walking by their house with a voice recorder in hand, trying to catch some of the verbal exchanges between the parties. According to Mr. Taerk’s affidavit, Ms. Morland-Jones occasionally shouts profanity or other insults at him when he is on his walks, so he now only ventures onto the road armed with his dictaphone. He tends to hold it at the ready in his right hand as he walks rather than holstering it on his hip. 

[14]           The controversy has even extended to other lucky residents. The Plaintiffs summoned under Rule 39.03 no less than four of their neighbours to testify on the pending motion, no doubt endearing themselves to all of them. One witness, a lawyer, was asked to confirm that he had warned the Plaintiffs about the Defendants when they first moved into the neighbourhood; he responded that can recall saying no such thing. Another witness, a professor, was asked to confirm that she sold her house for below market value just to get away from the Defendants; she said she did not.

[15]           Each of the summonsed witnesses was asked by Plaintiffs’ counsel to confirm the affidavit evidence sworn by Mr. Morland-Jones that the Defendants are difficult people. None of them seemed to want to do that, although one of them did recount that the Defendants had objected to a renovation permit that the Plaintiffs once sought, and that the matter had proceeded to the Ontario Municipal Board. Another of the neighbours was asked to recount the rude nicknames that some neighbourhood children had given Ms. Taerk when she was a substitute teacher at a nearby school.

[16]           In what is perhaps the piece de resistance of the claim, the Plaintiffs allege that the Defendants – again focusing primarily on Ms. Taerk – sometimes stand in their own driveway or elsewhere on their property and look at the Plaintiffs’ house. One of the video exhibits shows Ms. Taerk doing just that, casting her gaze from her own property across the street and resting her eyes on the Plaintiffs’ abode for a full 25 seconds. There is no denying that Ms. Taerk is guilty as charged. The camera doesn’t lie.

[17]           For their part, the Defendants have not been entirely innocent. They appear to have learned that the Plaintiffs – and especially Ms. Morland-Jones – have certain sensitivities, and they seem to relish playing on those sensitivities. They realize, for example, that Ms. Morland-Jones does not enjoy having her house photographed, and so Ms. Taerk tends to take her cell phone out and point it at the Plaintiffs’ house precisely when Ms. Morland-Jones can see her doing it.

[18]           Ms. Taerk has testified that, in fact, she has not taken any pictures but rather has been pretending to do so by simply pointing her phone and clicking it randomly. Ms. Taerk presents this as a justification for not producing any photographs in the evidentiary record, but of course the explanation reflects more malevolence than what it attempts to excuse. In any case, Ms. Morland-Jones can be counted on to respond as predicted. It is a repeated form of hijinks that could, if a sponsor were found, be broadcast and screened weekly, although probably limited to the cable channels high up in the 300’s.

[19]           The same is true with Mr. Taerk’s voice recording technique. Although Mr. Taerk may have started carrying this device in order to record Ms. Morland-Jones’ spontaneous eruptions, cause and effect have now been reversed. Mr. Taerk appears to enjoy walking by the Plaintiffs’ residence with his dictaphone conspicuously raised to shoulder level when he sees Ms. Morland-Jones in her garden, which then prompts the very outbursts that he was at first reacting to. On one of the tapes, Ms. Taerk can actually be heard prompting Mr. Taerk to go out and goad Ms. Morland-Jones in this fashion.

[20]           The Plaintiffs’ teenage son has testified that when he was 10 years old, Ms. Taerk instructed him to stay off the public parkette adjacent to her home, saying that it belongs to the Defendants. He also deposed that when he was 16 the Defendants appeared to be photographing him one day as he sat in a parked car in front of his house – or, more accurately, just across from the Defendants’ house – with his girlfriend. He speculated, but could not entirely recall, precisely what he and the young woman were doing in the car at that moment.

[21]           The antics have only gotten worse since then. Ms. Morland-Jones has shouted at the Taerks from her front yard, and Ms. Taerk has given Ms. Morland-Jones “the finger” from her front driveway. The Defendants have apparently called the police on the Plaintiffs numerous times in recent years; the Plaintiffs have responded by retaining a criminal lawyer to attempt to have a peace bond issued that would restrict the Defendants’ movements. All of that has been to no avail.

[22]           Now the Plaintiffs have pursued civil litigation. To their credit, or perhaps to the credit of their counsel who has advised them well in this regard, the Defendants have not counterclaimed. Having acted provocatively to egg the Plaintiffs on and to prompt this gem of a lawsuit, the Defendants did not need to bring any claim themselves. The Plaintiffs have been their own worst adversaries.

[23]           In my view, the parties do not need a judge; what they need is a rather stern kindergarten teacher. I say this with the greatest of respect, as both the Plaintiffs and the Defendants are educated professionals who are successful in their work lives and are otherwise productive members of the community. Despite their many advantages in life, however, they are acting like children. And now that the matter has taken up an entire day in what is already a crowded motions court, they are doing so at the taxpayer’s expense.

[24]           As I explained to Plaintiffs’ counsel at the hearing, a court cannot order the Defendants to be nice to the Plaintiffs. Litigation must focus on legal wrongs and legal rights – commodities which are in remarkably short supply in this action. As my colleague Perell J. put it in High Parklane Consulting Inc. v  Royal Group Technologies Ltd., [2007] OJ No 107 (SCJ), at para 36, “[i]t is trite to say that making a living is a stressful activity and that much of life can be nasty and brutish. Tort law does not provide compensation for all stress-causing and nasty conduct that individuals may suffer at the hands of another…”

[25]           I cannot help but comment that the courts as public institutions are already bursting at the seams with all manner of claims. To add to that public burden the type of exchanges that these parties have engaged in would be to let the litigious society stray without a leash – or perhaps without a lis.  I note the observation made to this effect by the Supreme Court of New York in Johnson v Douglas, 734 NYS 2d 847, 187 Misc 2d 509, at 510 (2001):

Although we live in a particularly litigious society, the court is not about to recognize a tortious cause of action to recover for emotional distress due to the death of a family pet. Such an expansion of the law would place an unnecessary burden on the ever burgeoning case loads of the court in resolving serious tort claims for injuries to individuals.

[26]           What is true regarding the death of a family pet is certainly true regarding the scatology of a family pet. There is no claim for pooping and scooping into the neighbour’s garbage can, and there is no claim for letting Rover water the neighbour’s hedge. Likewise, there is no claim for looking at the neighbour’s pretty house, parking a car legally but with malintent, engaging in faux photography on a public street, raising objections at a municipal hearing, walking on the sidewalk with dictaphone in hand, or just plain thinking badly of a person who lives nearby.

[27]           There is no serious issue to be tried in this action. The Plaintiff’s motion is therefore dismissed.

[28]           Both counsel have submitted costs outlines indicating that the parties have spent tens of thousands of dollars in legal fees. Costs awards are a discretionary matter under section 131 of the Courts of Justice Act. In exercising that discretion, Rule 57.01(1) of the Rules of Civil Procedure authorizes me to consider a number of factors including, in Rule 57.01(1)(d), “the importance of the issues”.

[29]           There will be no costs order. Each side deserves to bear its own costs.

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MANDATORY AND DISCRETIONARY WORKPLACE POLICIES – A REMINDER

Here is an excellent article reminding everyone of the increasing importance of having both the legally required and effective, discretionary policies in your workplace:

“Ontario employers are required by law to have certain workplace policies in place at work. The policies that employers must have include the following:

1.    a Workplace Health and Safety Policy;
2.    a Workplace Violence and Harassment Policy;
3.    an Accessibility Policy; and
4.    a Pay Equity Plan (employers with 10 or more employees).

Failure to have these policies in place is a violation of Ontario law and may result in the imposition of statutory fines and penalties.

While not required by statute, there are other policies that employers are well advised to have in place, including:

1.    a Drug & Alcohol Policy (updated to address medical and non-medical cannabis);
2.    a Social Media Policy;
3.    an Investigations Policy;
4.    a Human Rights Policy;
5.    an Accommodation Policy;
6.    an Absenteeism Policy; and
7.    a Privacy Policy.

These policies not only help employers monitor and govern employee conduct, but also establish internal rules and processes that, if followed, will help employers limit potential liabilities.

Many small or start-up businesses are either unaware of their legal obligation to have policies in place or simply do not know where to start when it comes to drafting and implementing polices.”

Credit: Torkin Manes LLP, Shreya Patel and Peter C. Straszynki, 2019 (via Lexology.com)

 

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IF I REPRESENTED MEGHAN AND HARRY? YES, ONTARIO WILL PROTECT YOUR PRIVACY. SUE THOSE CHEEKY MONKEYS.

What would I advise the (former) Royals about the paparazzi if they were living in our province?

Ontario allows a person to sue another for damages for invasion of privacy.

This has not always been the case – it is a fairly new development in Ontario. Many assume a right to privacy, but only recently have our Courts recognized a legal right for a person to actually sue another for damages for infringing on privacy.

The legal protection is not called “invasion of privacy”, but rather “intrusion upon seclusion”.

Our Courts now recognize the following types of breach of privacy protections available to mostly everyone in Ontario:

•  intrusion upon a person’s seclusion or solitude, or into that person’s private affairs
•  public disclosure of embarrassing private facts about a person
•  publicity which places a person in a false or misleading light in the public eye
•  appropriation, for another’s advantage, of a person’s name or likeness

In terms of “intrusion upon seclusion” (i.e., breach of your privacy), to succeed in a lawsuit, you would have to establish:

•  the other person’s conduct was intentional or reckless
•  the other person must have invaded, without lawful justification, your private affairs or concerns
•  a reasonable person would perceive the invasion as highly offensive causing distress, humiliation or anguish to you

In a recent Court of Appeal case that recognized this protection and ability to sue, the Court commented: “We are presented in this case with facts that cry out for a remedy. While [the Defendant] is apologetic and contrite, her actions were deliberate, prolonged and shocking. Any person in [the Plaintiff’s] position would be profoundly disturbed by the significant intrusion into her highly personal information. The discipline administered by [the Defendant’s] employer was governed by principles of employment law and the interests of the employer and did not respond directly to the wrong that had been done to [the Plaintiff]. In my view, the law of this province would be sadly deficient if we were required to send [the Plaintiff] away without a legal remedy.”

But there are limits to breach of privacy, too. For example, the Court of Appeal also held that if you are sensitive or unusually concerned about your privacy, you may be excluded from this protection.

Your privacy is protected in most, if not all, aspects of your life, including in the employment context, for example.
Your right of privacy is also not absolute. For example, it may conflict with other privacy rights, such as freedom of information and privacy legislation in effect in Ontario and Canada. If so, or if a conflict may exist, your privacy protection may be limited or compromised.

However, ultimately, your privacy is now recognized by Ontario Courts and you can sue for damages if it is violated, but only after careful consideration of the circumstances and consultation with your qualified litigation lawyer.

 

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WORKPLACE HARASSMENT OR BULLYING? TOXIC WORK ENVIRONMENT? YOU MAY NOT BE ALLOWED TO SUE YOUR EMPLOYER DIRECTLY, ACCORDING TO NEW LAW

There have been important developments recently regarding claims arising from alleged workplace harassment, bullying and toxic work environment, as prohibited by Ontario’s Human Rights Code and the law generally.  

In a recent decision by Ontario’s Workplace Safety and Insurance Appeals Tribunal (the “Tribunal”), the employee commenced a lawsuit against her former employer and claimed damages for constructive dismissal as a result of alleged bullying, harassment and a poisoned work environment. The Tribunal found that the employee’s claims flowed directly from her allegations of harassment and bullying in the workplace, which she said caused her to suffer chronic mental distress. The Tribunal found that, under Ontario’s Workplace Safety and Insurance Act, 1997 (the “WSIA”), the employee’s lawsuit was statute barred entirely. The employee’s allegations were “inextricably linked” to her alleged workplace injuries. In this particular case, the employee’s right to pursue a civil case against her former employer was barred.  

The case, which deals directly with constructive dismissal claims (rather than outright wrongful termination) is not yet subject to judicial review but may be.

However, employers must now consider whether cases alleging workplace harassment and bullying are more appropriate under the WSIA regime. In the event an employer determines that a case more appropriately belongs under the WSIA regime.

If an employee makes a claim for, effectively, mental stress due to such alleged conduct in the workplace, the employee may be prohibited from bringing a civil claim for damages and, if so, the employee may face a “right to sue” application by the employer.

The Case:

Morningstar v. Hospitality, 2019 ONWSIAT 2324

 

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CAN SOMEONE RECORD ME OR TAKE MY PIC IN A PUBLIC PLACE? WHAT ABOUT IN MY SCHOOL OR WORKPLACE?

Increasingly businesses (and employers) and public organizations deploy and use ever-improving surveillance technology, including workplace audio and video recording.  Ontario law has remained vigilant and watchful, attempting to balance legitimately held privacy expectations for everyone against unreasonably invasive privacy intrusion, particularly to foster security, safety and legitimate business or public interests.  

In an important, recent case, a teacher was accused of using a concealed camera to surreptitiously videotape female high school students engaging in “ordinary school-related activities in common areas” of the school. However, the evidence revealed the teacher was recording sexually based images, without audio recording. The school had posted signs notifying of the use of security cameras throughout the school. The school also had a policy prohibiting its teachers from making videos of students, or otherwise tampering with the school’s surveillance cameras. The teacher was charged with voyeurism under Canada’s Criminal Code, a sexually related offence.

The Supreme Court declared that privacy, particularly in a public or semi-private place, is not an all-or-nothing proposition in Canada. There can be no absolute expectation of privacy for anyone, at least not in a public, or semi-private, place. The specific circumstances must be considered, which determine what reasonable expectation of privacy should be legally protected in a contextualized approach.

A person can reasonably expect privacy in a public, or semi-public, place, particularly protection from sexually driven surveillance, but the specific expectation that will be legally protected must be determined by many factors, such as:

•    the nature of the place and its location;
•    the scope and nature of the conduct by the other party, such as observation or recording;
•    whether the person subject to the conduct had consented to being so observed or recorded, at was even was aware of it;
•    the manner in which the observation or recording was undertaken;
•    the subject matter or content of the observation or recording;
•    any applicable rules, policies or regulations that may prohibit or restrict that conduct;
•    the nature of the relationship, if any, between the person being observed or recorded and the person engaging in the observation or recording;
•    the reason for the observation or recording; and
•    the characteristics of the person being observed or recorded, particularly if the person is a child, youth or a vulnerable person.

The teacher's conviction was upheld by Canada's highest Court. The Court concluded that the young, female students at the school had not consented to being recorded in such manner, or even been aware of him doing so. The teacher held a trust relationship with the students, which he violated, when he knew he was not allowed to make these video recordings of the students, particularly when it was sexually driven. The female students’ privacy had been violated in the circumstances.

However, the female students, in the circumstances, could not reasonably have expected to be protected absolutely from such misconduct by their teacher. Rather, the Court engaged in a contextual, multi-factored analysis.

Accordingly, no one can expect absolute protection, at least not by the criminal law, from being observed or recorded in public, even if it may be sexual in nature. Ultimately, the Supreme Court enshrined a case-by-case analysis, which may, or may not, offer the protection of, at least, Canada's criminal law.

Businesses, particularly employers, and other organizations need to have a clear policy prohibiting surreptitious observation and recording in their places of business, absent consent.  They can also be held vicariously liable for improper, unwanted surveillance being conducted in their place of business, including public areas.

In addition to potential criminal charges for those who unlawfully observe or record others, including in public spaces, the offender could potentially be held liable civilly in Ontario, particularly for damages for breaching the tort of “intrusion upon seclusion”, or for violating other privacy law.

However, the Supreme Court’s decision in this case has clarified and shaped the law on a person’s reasonable expectation of privacy, particularly if that person is observed or recording in a public, or semi-private, place.

Ontario Courts and privacy regulators will also continue to review surveillance technology to ensure it is legitimately, justifiably and properly deployed and utilized, minimizing unreasonably invasive infringement on privacy expectation.

Surveillance cannot, of course, be prohibited - it benefits the public, if utilized appropriately and legally. However, whether surveillance exceeds the legal boundary by offending an individual’s reasonable expectation of privacy will depend on the specific circumstances and various factors, which will themselves continue to develop as ever-evolving surveillance technology continues to proliferate.

As technology becomes more subtle, sophisticated, accessible and ubiquitous, everyone must remain mindful that their privacy is not absolute and may be subject to observation, or even recording, particularly in public places.

Privacy is not an “all-or-nothing” right. Intrusion upon your seclusion should not be viewed as an inevitably necessary part of your rapidly changing modern life; rather, the law imposes limits which, if offended, may expose the offender to both criminal and civil liability. Privacy is not a lost expectation in our contemporary world, as skeptics contend, but only an evolving one, judiciously straining to keep pace with constantly changing and increasingly innovative technology.   


The Case:

R. v. Jarvis, 2019 SCC 10 (CanLII)

 

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THE COURT IS NOW INTOLERANT OF SEXUAL MISCONDUCT IN THE WORKPLACE – PERIOD.

In this recent case, a long-time employee (thirty years) was justifiably terminated, without severance, for an isolated incident of sexual harassment in the workplace.

The employee had no prior disciplinary record during his long tenure.

The employee had slapped his female co-worker on the buttocks, in the presence of others.

The employee did not apologize, or even feign remorse.

The employee was aware of the employer’s anti-harassment workplace policy and he also held a supervisory position over the affected female co-worker.

The employer terminated the offending employee summarily.

He sued for wrongful termination, alleging the punishment was too severe for the crime, effectively.  

The Court upheld the termination, for cause.

The Court held:

[The employee’s conduct] …was an act that attacked her dignity and self-respect. This type of conduct is unacceptable in today’s workplace.”

The lesson? The Court is no longer tolerable of any sexually charged misconduct in the workplace, even if it seems innocent or not serious to anyone involved.

Interestingly, the Court granted the target female co-worker limited rights to participate in the case and the trial, which is fairly uncommon in wrongful dismissal cases. The Court concluded that the complainant’s rights, integrity and reputation may be affected, thereby given her the authority to have “intervenor” status in the case.   

The Case:

Render v. ThyssenKrupp Elevator (Canada) Limited, 2019 ONSC 7460.  

 

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COMPROMISING/EMBARRASSING PHOTO OF YOU POSTED ONLINE BY ANOTHER? YOUR PRIVACY MAY BE BREACHED. YOU MIGHT BE ENTITLED TO DAMAGES.

Publishing online very personal or intimate information or images of another may be a very costly mistake.

The Ontario Court is increasingly awarding significant damages against those who do so. For example, in a case called Jane Doe 464533 (the Plaintiff’s name cannot be disclosed), the Court ordered damages and costs totaling $141,000, plus an order for the offending Defendant to destroy any video or images he retains of the Plaintiff and prohibiting him from sharing any intimate images of her. He was also ordered not to communicate with the Plaintiff or any of her family.

The Plaintiff was a young woman in her late teens. Due to pressure from her ex-boyfriend, she agreed to share with him a sexually explicit video of herself. He promised he would not share it with anyone else. However, he subsequently posted the intimate video of her on a pornography Web site without her knowledge or consent. The police refused to criminally pursue the matter.

The Plaintiff eventually sued him for breach of her privacy and, specifically, for his public disclosure of embarrassing private information about her, after attempting to settle the matter with lawyers involved. The Defendant boyfriend did not ultimately defend the lawsuit, so the Court decided the case and awarded damages to the Plaintiff without a challenge to the Plaintiff’s claim. However, the Court reviewed the law and provided a well-reasoned, thorough decision, even though the Defendant did not defend the claim. The case is subject to a publication ban of the name of the Plaintiff.

The Plaintiff relied on fairly recent, emerging cases in Ontario recognizing an expanding ability for a person to sue another directly for breach of privacy, or for “intrusion upon seclusion”.

The Court awarded the Plaintiff $100,000 in damages (noting that she had limited her claim to this maximum amount in the lawsuit). These damages are much higher than the $20,000 “cap” that had previously been established by Ontario’s Court of Appeal in the earlier cases for intrusion upon seclusion.

Therefore, this case expands on privacy protection in Ontario and allows a person to civilly claim and be awarded significant damages when that person’s personal/private information is published online, provided this test is met.

To succeed, it must be proved that “the matter publicized or the act of the publication” is “highly offensive to a reasonable person” and is not “of legitimate concern to the public”.

Undoubtedly the law of privacy in Ontario continues to grow and expand. More cases will be needed to clarify and further develop this law, but this case clearly indicates the Court’s willingness to do so, including for “public disclosure of embarrassing private facts”.

 

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DON’T TAKE SECRET PHOTOS OF OTHERS IN YOUR WORKPLACE – IF YOU’RE CAUGHT, ABRUPT FIRING AND NO SEVERANCE – PRIVACY WAS BREACHED

A car dealership employee surreptitiously took videos and photos of female clients of the dealership.

He then showed them to co-employees and made inappropriate comments, most of which were sexually charged in nature.

He was caught and fired, for cause.

He sued.

The Court held there was justification for his abrupt termination without any compensation whatsoever (i.e., no severance).

He had also been warned previously by the employer not to engage in this type of inappropriate conduct, which sealed his fate in the case.

The Court did not accept this position; namely, that he was only trying to protect the dealership and its best interests.

The lesson? Do not take secret images of others in your workplace and, in particular, do not share those with others in an appropriate manner.

If you do, your firing will be justified – without any severance.

The Case:

Durant v. Aviation A. Auto, 2019 NBQB 214

 

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“RELENTLESS” SOCIAL MEDIA ATTACK – BIG DAMAGES (INCLUDING FOR SPOUSES)

Yet another friendly reminder from your local lawyer to be mindful that every text, e-mail and social media post you transmit, or post may end up as evidence against you in Court.

A recent B.C. case affirms the Court’s increasing willingness to award damages for online attacks, recognizing them as having the same impact as traditional means of communication, if not being more pervasive and insidious.

In this case, a spouse, as a result of a relationship breakdown, engaged in a relentless, vitriolic online campaign against her former spouse, to the extent that the target spouse sued for damages for defamation.

While the case is in B.C., the general principles affirmed by the Court would apply to Ontario, too.  

The posting spouse made more than eighty-five offending posts, all of which were listed in chronology in an appendix filed in the case (nearly fifty pages).  

The posts were made on various sites, including Instagram, using a number of pseudonym accounts and names (which were traced back to the posting spouse).

The B.C. Court held (with respect to the posting spouse):

"Ms. Halcrow mounted a campaign against Mr. Rook that was as relentless as it was extensive…….The courts have recognized that the internet can be used as an exceedingly effective tool to harm reputations. This is one such case."

The Court ordered the posting spouse to pay the target spouse $200,000 in general damages and approximately $40,000 in special damages due to the injury to the former partner’s “reputation consultant” fees.  

The Case:

Rook v. Halcrow, 2019 BCSC 2253

 

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