WORKPLACE HARASSMENT AND BULLYING – DON’T LET ‘HE SAID/SHE SAID’ DISCOURAGE YOU FROM COMPLAINING – CORROBORATION IS NOT REQUIRED

Employees who experience sexual or other harassment or violence in the workplace should not be discouraged from reporting to their employer simply because no one else witnessed the harassment or violence. He said/she said concerns are no reason to avoid making a complaint to ensure the harasser is properly investigated and, if appropriate, punished.

Under the new anti-workplace harassment and violence laws in Ontario, effective January 1, 2017, incidents of harassment in the workplace must be investigated by employers. The outcome of the investigation must also be reported to both the victim and the harasser. Confidentiality must be maintained at all times.  

However, these changes to Ontario’s Occupational Health and Safety Act, designed to minimize, if not eliminate, workplace sexual and other harassment, do not require that a complaint’s evidence of the harassment be corroborated before a finding of harassment can be made.

Similarly, the Courts and Human Rights Tribunal in Ontario do not require corroboration before a finding of harassment can be made. The law recognizes that often this type of conduct, particularly sexual harassment or violence, occurs in a private setting, often where no witnesses are present.

For example, the Supreme Court recognizes that:  

Corroborative evidence is always helpful and does strengthen the evidence of the party relying on it as I believe Rowles J.A. was implying in her comments. However, it is not a legal requirement and indeed, may not be available, especially where alleged incidents took place decades earlier. Incidents of sexual assault normally occur in private.”

Ontario’s Human Right Tribunal also recognizes that:

There were, however, problems with the investigation conducted by Professional Standards. Det. Young, the investigator assigned to investigate all three matters testified that he had not investigated an allegation of sexual harassment and appeared not to have been given any special training in such matters. He concluded that because there had not been any “independent evidence” the applicant’s allegations could not be “substantiated” and recommended that the matter not proceed to a disciplinary proceeding.

This requirement for “independent evidence” ignores the fact that many allegations of discrimination and harassment take place in private and often there is no evidence “independent” of the two parties to the incidents. Even where witnesses are present, there may be compelling reasons for them to not be forthcoming in an investigation.”

Accordingly, while corroborative evidence will, in most cases, be helpful in the factual investigation, it is not necessary. The Court or other decision-maker should properly consider the veracity, credibility and reliability of the evidence of the victim, alleged harasser and others who may have knowledge of the circumstances.

Merely because a victim cannot corroborate what he or she experienced at the hands of a harasser is certainly no reason to avoid reporting the sexual harassment or violence to ensure the investigator, Court or other decision-making body properly examines the circumstances and makes the necessary findings.

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SUING YOUR EMPLOYER FOR FORCING YOU TO QUIT DUE TO WORKPLACE BULLYING, HARASSMENT OR TOXICITY? THINK AGAIN. NOT IF WSIB APPLIES.

Due to a new decision by the Ontario Workplace Safety and Insurance Appeals Tribunal (the “WSIAT”), an employee in Ontario cannot sue his or her employer for constructive dismissal, if the reason the employee was forced to leave his or her employ was due to chronic mental stress, caused by workplace bullying, harassment or other toxicity in the workplace. 

The employer brought an application to the WSIAT, after it had been named in a civil suit alleging constructive dismissal. Under Ontario law, an employer subject to the provisions of the Workplace Safety and Insurance Act, 1997, may apply to the WSIAT for a determination of whether the employee has a right to sue.

The Plaintiff employee had resigned her position with the employer in February 2018 claiming constructive dismissal as a result of harassment and bullying in the workplace. She filed a Statement of Claim in the Ontario Superior Court of Justice on April 2, 2018, claiming damages for constructive dismissal, bullying, harassment and/or a poisoned work environment pursuant to the Occupational Health and Safety Act (the “OHSA”), the tort of harassment, as well as punitive, aggravated and/or moral damages. Of note, she claimed she “was forced to resign from her position with [the Applicant] due to the harassment, bullying and abuse she endured during the course of her employment and the resulting mental distress she experienced and continues to experience.” She also asserted that her claim “relates to the harassment and bullying that [she] experienced as a result of a toxic work environment created by [the Applicant’s] employees and management and her subsequent constructive dismissal.”

The WSIT held, in part:

“[29] … I note that generally the Tribunal has found that the right to bring an action for wrongful dismissal has not been removed by the WSIA. It is only in the exceptional case that this is not so, where the circumstances of the wrongful dismissal claim are inextricably linked to the work injury. See, for example, Decisions No. 3836/17, 1319/01 2, and 566/00.

[30] In my view, that exception applies here. The Respondent’s action against the Applicant is not for wrongful dismissal in the usual sense, but rather is for constructive dismissal, meaning her employment was effectively terminated by the harassing and bullying conduct of co-workers and management which caused her mental distress to such a degree that she was forced to take sick leave and ultimately to resign. I find that these facts, if proven, are inextricably linked to a claim for injury governed by the terms of section 13(4) of the WSIA, as cited above. In other words, I find that the worker’s Statement of Claim is, in essence, a claim for injury resulting from alleged workplace harassment and bullying and thus is within the scope of section 13(4) as amended to provide for entitlement for chronic mental stress arising out of, and in the course of, the Respondent’s employment. Moreover, I find that the other remedies sought by the Respondent are also claimed on the same facts, of harassment and bullying in the workplace. Accordingly, I find the worker’s right of action is taken away by the WSIA, pursuant to section 26 in this case.”

Therefore, if your employer is subject to WSIB enrollment, currently you have no right to sue your employer for being forced to quit or resign due to mental stress you experience in the workplace caused by bullying, harassment and/or other toxic indicia, including those caused by your co-employees. 

The Case:

Morningstar v. Hospitality Fallsview Holdings Inc. (Decision No. 1227/19), 2019 ONWSIAT 2324 (CanLII)

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‘PAY IN LIEU’ EXPLAINED – TERMINATION OF EMPLOY – WHAT TO EXPECT

If you are terminated by your employer and:

[1] firstly, there is no “just cause” for your termination; and

[2] secondly, you do not have a written employment agreement or, if you do, there is no clause restricting you to only the statutory notice of termination required by the Employment Standards Act, 2000 of Ontario (the “ESA”) (or, if there is a such a clause, it is not enforceable against you – refer to the checklist in our earlier blog about this),
then, in addition to your statutory entitlements on termination under the ESA, you are likely entitled to “common law” reasonable notice of termination.

An employee’s termination entitlements at “common law” generally are significantly more than those required by the ESA.

COMMON LAW” REASONABLE NOTICE - EXPLAINED:

Employment in Ontario is purely contractual between the employer and the employee. Employers can terminate employees at any time – they do not need a reason.

However, if they do terminate, the obligation of giving “reasonable notice” is imposed by the law of Ontario, both by the ESA and ‘judge-made’ law, subject to any written employment entered by the employer and the employee that varies or changes the general law of Ontario applicable to employment terminations.

Unless the employer and employee agree otherwise in their written employment agreement, the law in Ontario imposes an obligation on employers to give reasonable notice before terminating an employee generally. Either an employer must give this reasonable notice before terminating or, if they do not, they will have to pay to the employee an equivalent amount for that reasonable notice that was not given. Employees must give reasonable notice before resigning, too, but that notice is generally much shorter.  

Generally, “common law” reasonable notice by employers is: (a) determined by the Court, often in wrongful termination lawsuits commenced by employees; and (b) determined based on multiple factors in each case, such as the employee’s age, position, responsibility, years of service, compensation received and ability to find alternative employment.   

Effectively, an obligation to give reasonable notice is designed to lessen the impact of a termination, particularly for the employee. The employer has the opportunity to take the necessary steps to replace the employee and the employee can seek and obtain comparable, alternate employment.

If an employer terminates without providing reasonable notice, but had an obligation to do so, the employer has breached the parties’ employment relationship and will likely have to pay damages equivalent to the amount of reasonable notice that should have been provided to the employee.

These damages are commonly called “pay in lieu of notice” and are calculated based on all, or the global, compensation and benefits the employee would otherwise have earned had he or she actually continued to be employed during the reasonable notice period. Generally, this calculation will include salary, pension contributions, bonuses, commissions, equity grants, if any (such as stock options, etc.), corporate vehicle use and other taxable and non-taxable benefits, if they formed part of the employee’s regular and recurring compensation during employment.

These damages also incorporate and include the statutory notice required by the ESA. However, an employer must actually pay to the employee any statutory severance pay required by the ESA, by lump sum, based on a specific formula set out by the ESA, unless the employee agrees otherwise. In other words, the employer cannot satisfy its statutory severance pay obligation by giving notice of termination to the employee – rather, it must actually be paid.

There is no ‘golden rule’ to accurately predict the amount of reasonable notice for each case of termination. It is difficult to predict, often. Some lawyers use the ‘month-per-year’ rule of thumb, but that is not the law. Every case is different, generally, and must be analyzed based on the specific circumstances of the case. Generally, however, it is reasonably safe to assume that the longer the years of service, older the employee and more responsibility the employee had, the longer will be the reasonable notice period in the case.

Reasonable notice rarely exceeds two (2) years, but there are a few cases in which the Court exceeded this commonly accepted maximum for reasonable notice in Ontario.

Generally, an employee’s entitlement to reasonable notice will be dependent on that employee’s specific factors, all of which must be considered together in that particular case.

WHAT IS ‘WORKING NOTICE’?  

If an employer decides to give reasonable notice of termination before terminating (i.e., during the relationship), it is commonly referred to as ‘working notice’. Employers often use ‘working notice’ to avoid paying an amount to the employee for reasonable notice after termination – it can significantly reduce the liability of the employer. This way, they derive more value, too, because the employee will continue to work for the employer during the reasonable notice period (as opposed to being terminated abruptly, in which case the employer will likely have to pay the equivalent amount for the reasonable notice that was not given to the employee).  

During the working notice period, the employee continues to work ordinarily and the employer continues to pay the usual compensation and benefits – effectively, a status quo arrangement. The employer may progressively discipline the employee during the working notice period and, if proper “just cause” arises, may terminate the employee without compensation. Generally, the employee will be entitled to some time away from work, reasonably, for the purpose of searching for and obtaining alternative employment, such as attending job interviews, etc.

If the ‘working notice’ period is equal to or more than what the Court would determine to be reasonable notice of termination, the employer will not have to pay the employee terminated-related compensation when the working notice period ends. If the working notice is too short, the employer may still have to pay common law reasonable notice at the end of the working notice period. Every case has to be analyzed based on the specific circumstances.

CONCLUSION – HAVE A WRITTEN EMPLOYMENT AGREEMENT:

Most employers wish to avoid having to deal with “common law” reasonable notice – it is both unpredictable and very expense, especially if the employee sues the employer for wrongful termination alleging insufficient notice was given or paid to the employee.

In order to avoid the “common law” being applied to the employment relationship, there must be a written employment agreement properly entered by the parties before the relationship starts. If so, the employer can avoid the uncertain and potentially expensive outcome the common law may impose.

Therefore, from an employer’s perspective, at least, there should always be a written employment agreement entered, which clearly and simply outlines the employee’s entitlements in the event of a termination without cause, particularly if they may be less that what the “common law” may award to the employee. In addition to minimizing costs, enforceable termination provisions also offer more certainty to both parties if the relationship ends.

 

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ACCOMMODATING ONTARIANS WITH DISABILITIES IN YOUR WORKPLACE – DO YOU COMPLY WITH ONTARIO’S CURRENT LAW? YOU MUST. READ ON…….

Just a reminder to all employers about the importance of continuing to comply with Ontario’s Accessibility for Ontarians with Disabilities Act (the “AODA”), which requires a graduated, compliance program for most employers.

Specifically:

[1]        all private sector and not-for-profit organizations with twenty or more employees are required to file their fifth accessibility compliance report by December 31, 2020; and

[2]        organizations with fifty or more employees are required to complete their Multi-Year Accessibility Plans review by January 1, 2020.

Please contact us if you need any assistance with your AODA compliance, including:

•    past and upcoming AODA compliance dates and reporting deadlines and what your organization will need to accomplish, or should have accomplished by the deadlines;

•    an overview of what's required under each AODA accessibility standards: Standards for customer service, employment, information and communications, transportation, and the built environment for public spaces; and

•    how to develop a strategy for compliance now and into the future.

 

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WORKPLACE HARASSMENT – THE BASICS – MANDATORY PROTECTION TO ONTARIO EMPLOYEES

Ontario’s Occupational Health and Safety Act imposes important obligations on employers regarding workplace (sexual) harassment. They are designed to enforce proactive measures for all workplaces in Ontario – compliance is now being audited by Ontario’s Ministry of Labour. Non-compliance can mean significant fines, penalties and potential civil liability.

Employers in Ontario must:

•    make and prominently (conspicuously) post in the common area(s) of the workplace a new (or revised) workplace harassment policy, compliant with these new changes – it is mandatory; obtain the assistance of a qualified employment lawyer or, if that is not possible, at least refer to the Ontario Ministry of Labour’s “Code of Practice” for guidance and assistance, if necessary;

•    incorporate the definition of workplace sexual harassment in the mandatory workplace policy: “Workplace sexual harassment” is defined as:

(a) engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known, or ought reasonably to be known, to be unwelcome; and/or

(b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows, or ought reasonably to know, that the solicitation or advance is unwelcome.

•    establish and implement a joint health and safety committee in your workplace (particularly for workplaces having twenty or more workers) and liaise with the committee’s health and safety representative(s) to develop (or update) a written program or plan to implement the mandatory workplace harassment policy (a “Program”);

•    take care to ensure the Program complies with the law, including:

-     measures and procedures for reporting incidents of workplace harassment: (a) to the employer or supervisor; and (b) to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser (such as an alternative procedure for employees to report directly to a human resource representative);

-     alternative reporting options to a person who is not subject to the direct control of the alleged harasser if the incident or complaint involves the employer (such as an owner, senior representative, upper manager, director, etc.), which may include third party, so-called “whistleblowing” services, if necessary, and ensure contact information is provided in the Program;

-     explain fully how incidents or complaints of workplace harassment will be investigated and addressed;

-     explain how information acquired regarding an incident or complaint of workplace harassment will be kept confidential, unless disclosure is necessary for the purposes of the investigation or required by law;

-     explain how a complainant and respondent, if a co-employee, will be informed of the results of the investigation and any corrective action or measures taken; and

-     affirm that a written report (summary) of the results of the investigation and any corrective action taken will be provided;

•    train all workers, including managerial employees, about the mandatory policy and the Program and they acknowledge the training, in writing;  

•    tickler for at least annual review of the mandatory policy and Program and keep good records for the review(s);

•    investigate all incidents and complaints of workplace harassment (fairly and completely);

•    retain a third party, professional investigator or, at least, ensure any internal investigator is properly trained for investigating complaints and workplace harassment generally;

•    only utilize an investigator who is, and who will be perceived as, competent and impartial;

•    make every effort to complete the investigation and release the summary report within ninety days of the initial incident or complaint; and

•    be prepared for the Ministry of Labour to order a third party investigator at the employer’s expense, particularly if the employer does not act properly in appointing its own investigator, internal or external.

Need an effective workplace harassment and violence policy? It's the law.

I can help. Send me an e-mail - jason@wardlegal.ca

 

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HOLIDAY BONUSES AND GIFTS – HEY, CLARK W. GRISWOLD, READ THIS BEFORE KIDNAPPING YOUR BOSS ON CHRISTMAS EVE

Holiday bonuses (and gifts) are commonly appreciated, morale-boosting and an opportunity for employers to express gratitude to employees collectively at the end of the work year.

However, if expectations are not met, they can also cause strife, conflict and, in some cases, litigation.

Bonuses are not legislatively governed in Ontario; rather, they are considered a contractual matter between employers and employees. There is no legal requirement for an employer to pay a holiday bonus, unless contractually required to do so. However, if a bonus paid to an employee on a year-over-year basis evolves into part of that employee’s overall compensation, the employer may by law be required to pay it the employee in future, including during a reasonable notice period following a termination without cause.  Employers may also adopt a workplace policy regarding bonuses, which typically govern availability, amount and other criteria.

Generally, if employers pay a holiday bonus, or an amount beyond employees’ regular pay, it is either:  

1.    a fixed, recurring holiday bonus annually, usually of a fixed amount, not typically based on work performance or the financial success of the employer’s business;

2.    a pre-determined bonus amount, usually based on either, or both, the employee’s and the business’ performance, often based on set criteria pursuant to a workplace policy; or   

3.    a purely discretionary bonus, decided by the employer each year.

If an employer pays a holiday bonus historically, but changes its mind this year, like Mr. Shirley, an employee’s employment contract should be considered. If the holiday bonus is an important term, the employee may legally be entitled to the bonus. If there is no employment contract, the holiday bonus may have formed a part of the employee’s annual compensation, giving the employee a potential claim to the holiday bonus.

Before employers change their holiday bonus policy or traditional practice, they should review their employment contracts and workplace policies and, if they do not require payment of the holiday bonus, notify employees in advance of the decision to pay no, or a significantly less, holiday bonus. How much notice should be given will likely vary between employees, depending on their duration of employment, nature of their position and even age.

If an employee is terminated without cause, the employee may be able to successfully claim payment of a holiday bonus as part of the wrongful termination damages. It will depend on the terms of the employee’s employment contract and, if none, whether the bonus would be considered a recurring part of the employee’s annual compensation. If the holiday bonus has been purely discretionary by the employer, it is likely the employee’s claim would not be successful.

Generally, in Ontario employment law, if an employer gives an employee a holiday gift (not a payment of money), it is considered by the Court to be discretionary, gratuitous and not binding on the employer in future.

However, a workplace governed by a collective bargaining agreement may be different. In a recent case in Quebec, an arbitrator dismissed a grievance of the employer’s unilateral decision to stop giving employees a $50 gift card at Christmas. It was considered a discretionary decision in this case, based on the specific language of the collective bargaining agreement. However, a different outcome may have been reached for different collective bargaining terms.

For example, other arbitral decisions in Quebec have held that Christmas gifts by employers were determined to be conditions of employment and, therefore, protected by the ‘vested-rights’ clauses in those collective bargaining agreements. Employers that unilaterally stopped these holiday gifts faced a costly and unfavourable grievance process.

Therefore, if you get a “Jelly-of-the-Month Club” card this year, like Clark W. Griswold, when you were expecting much more based on years past, you may have a claim against your employer, but it will depend on your employment contract, if any, past practices by the employer, and whether your historically-received holiday bonus was recurring, not governed by any workplace policy and not nominal in value.

 

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DISTRACTED DRIVING – WHAT IT IS AND THE STRONG PENALTIES – REMIND YOUR KIDS (AND YOURSELVES)

I have a new teenage driver at home, with more to come.

It’s a good time to review the strict penalties in Ontario for distracted driving, including to remind not only ourselves, but our kids, too.

Be safe, not sorry.     

DEFINITION OF “DISTRACTED DRIVING”

Ontario’s distracted driving laws apply to the use of all hand-held communication/entertainment devices and certain display screens.

While you are driving, including when you are stopped in traffic or at a red light, it is illegal to:

•    use a phone or other hand-held wireless communication device to text or dial – you can only touch a device to call 911 in an emergency;  
•    use a hand-held electronic entertainment device, such as a tablet or portable gaming console;
•    view display screens unrelated to driving, such as watching a video; and
•    program a GPS device, except by voice commands.

In fact, simply holding a phone or other device while driving is against the law.

You are only allowed to use hands-free wireless communications devices with an earpiece, lapel button or Bluetooth.

You can only view GPS display screens as long as they are constructed into your vehicle’s dashboard or securely mounted on the dashboard.

Other actions such as eating, drinking, grooming, smoking, reading and reaching for objects are not part of Ontario’s distracted driving law. However, you can still be charged with careless or dangerous driving.

PENALTIES FOR DISTRACTED DRIVING

If convicted, the penalty you face depends on the kind of licence you hold and how long you’ve been driving.

Drivers with A to G licences:

If you have an A, B, C, D, E, F, G and/or M licence, you’ll face bigger penalties when convicted of distracted driving:

•    First conviction:

o    a fine of $615, if settled out of court (includes a victim surcharge and the court fee)
o    a fine of up to $1,000 if a summons is received or if you fight the ticket in court and lose
o    three demerit points
o    3-day suspension

•    Second conviction

o    a fine of $615, if settled out of court (includes a victim surcharge and the court fee)
o    a fine of up to $2,000 if a summons is received or if you fight the ticket in court and lose
o    six demerit points
o    7-day suspension

•    Third and any further conviction(s)

o    a fine of $615, if settled out of court (includes a victim surcharge and the court fee)
o    a fine of up to $3,000 if a summons is received or if you fight the ticket in court and lose
o    six demerit points
o    30-day suspension

Novice drivers

If you hold a G1, G2, M1 or M2 licence, and are convicted of distracted driving, you’ll face the same fines as drivers with A to G licences. But you won’t receive any demerit points.
Instead of demerit points you’ll face longer suspensions:

•    a 30-day licence suspension for a first conviction
•    a 90-day licence suspension for a second conviction
•    cancellation of your licence and removal from the Graduated Licensing System (GLS) for a third conviction
o    to get your licence back you’d have to redo the GLS program


CARELESS DRIVING

You could face more charges – for careless driving – if you endanger other people because of any kind of distraction.

This includes distraction caused by both hand-held (e.g., phone) or hands-free (e.g., Bluetooth) devices.

If convicted of careless driving, you may receive:

•    six demerit points
•    fines up to $2,000 and/or
•    a jail term of six months
•    a licence suspension of up to two years

You could even be charged with dangerous driving – a criminal offence that carries heavier penalties, including jail terms of up to 10 years for causing bodily harm or up to 14 years for causing death.

CALLING 911

In an emergency, you can use your phone to call 911, but be sure to pull off the road to a safe area to make the call.

 

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DO NOT SHARE AN INTIMATE IMAGE OF YOUR CO-WORKER – YOU’LL BE FIRED WITH NO SEVERANCE

Employee A receives an intimate/personal image on her ‘phone from Employee B (of Employee B). A then forwards the image (i.e., shares it) with others, both within and outside of the workplace. B brings a harassment complaint against A, under the employer’s mandatory prevention of workplace harassment policy. The employer investigates. A is terminated summarily, with no severance or other statutory notice of termination, under Ontario’s Employment Standards Act, 2000 (the “ESA”), or otherwise.  

A makes a complaint to the Ontario Ministry of Labour, pursuant to the ESA and Ontario’s Occupational Health and Safety Act, challenging the summary termination and seeking termination pay under the ESA.

The Ministry upholds the employer’s termination and dismisses A’s complaint.

In doing so, the Ministry relied on a provision in the ESA, whereby an employee is not entitled to notice of termination or termination pay under the ESA if “an employee who has been guilty of willful misconduct, disobedience or willful neglect of duty that is not trivial and has not been condoned by the employer.”

If this is the case, A is not entitled to the minimum, statutory standards in Ontario for termination notice and pay.

The employer must prove that A, on a balance of probabilities, that his exemption applies, including that A acted willfully, rather than in a careless, thoughtless, headless or inadvertent manner, no matter how serious.

Accordingly, privacy in our increasingly digital age and workplaces is being recognized and protected more diligently by our regulatory bodies.

 

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WHAT IF YOU ARE THE TARGET OF A WORKPLACE INVESTIGATION? WHAT YOU NEED TO KNOW.

Below is an excellent article recently done by Marnie Baizley and Sherifa Hadi, of the law firm SpringLaw, so much so that it should be shared:

You’ve been asked to meet with HR or People Ops. You may – or may not – be aware of what the meeting is about, but you’re a little rattled. You’re told the company will be conducting an investigation, meaning a matter is being taken seriously. You wonder whether you should go it alone or talk to a lawyer – someone who can help you navigate an unfamiliar process.

In short – yes! Speaking with a lawyer is a good idea. Here’s what they can do for you:

Ensure that you understand the allegations – If you have not been told the allegations made by the complainant(s), or if you have been given only partial information, a lawyer can assist you in obtaining and thoroughly understanding the allegations. You will then be prepared for your interview, and in a better position to give a complete statement of the facts (i.e. your side of the story).

Ensure that policies are being followed – Your workplace likely has a policy addressing how and when workplace investigations will be conducted. Your lawyer will help you understand your rights under the policy and under the law. If the investigator deviates from a process articulated by the policy, a lawyer will assist you in determining whether, when and how to advocate for yourself, to ensure that the process is followed and procedurally fair to you.

Help you navigate your communications with the investigator – Not all investigators are properly trained, and they can err in a number of ways, including failing to gather all the relevant information, failing to properly document all of the steps in the investigation process, and failing to provide timely communication as the investigation progresses.

Intervening as a respondent is a delicate process because an investigator’s role is to make important determinations that will affect you. The last thing you want to do is needle the factfinder. Rather, respondents should be cautious and strategic about each communication with an investigator.

Inform you of the process and help you prepare for it – Often workplace investigators will not permit lawyers to attend your interview(s) with you (particularly if the investigation is an internal one). Since a workplace investigation is not a police investigation, you don’t have a legal right to have a lawyer present. Instead, a lawyer can help you plan and prepare in advance for your interview(s). They can discuss possible disciplinary actions the employer can take based on your history (i.e. first instance of misconduct vs. a pattern) and the gravity of the allegation(s). They will steer you to the important subject matter.

Your lawyer can also help you navigate interim measures implemented by your employer and propose how such measures might be modified to feel less punitive (e.g. if your employer places you on a leave for the duration of the investigation).

Ensure the investigator has all the relevant information – The investigator’s determination is only as good as the information they have. Once your lawyer has a clear understanding of the allegations, they can advise you on the type of information to produce to support your response and, if applicable, what witnesses to suggest that the investigator interview. The investigator may or may not choose to interview your suggested witnesses, but the names are still worth raising, along with your reasons for your suggestions.

Notably, a lawyer with experience in workplace investigations will help you decide what is relevant and when to draw the line and let the investigator do their job.

Provide general support and coaching – The process is likely to be an intimidating one, producing all sorts of emotions and you may have trouble staying focused and concise as a result. Your lawyer will be able to support and advise you on how to navigate this process, advocate for yourself in a concise and strategic manner that does not alienate the investigator and point you to resources to cope with negative feelings about the investigation.

Final Thoughts

From a cost standpoint, some lawyers offer unbundled legal services (also known as ‘limited scope’ or ‘discrete task representation’) and pre- or mid-investigation consultations about process are well-suited to that model. One or two consultations are sometimes all that is needed to put a respondent’s mind at ease and get a complete and accurate version of their side of the story on the table. Employment lawyers with expertise in conducting workplace investigations are best suited to help you when you are a party in a workplace investigation.

Credit: Marnie Baizley and Sherifa Hadi, dated November 13, 2019

Link to original: https://www.springlaw.ca/2019/11/13/so-youre-a-respondent-in-a-workplace-complaint/

 

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EDIBLES AND TOPICAL USE - MORE TO KNOW ABOUT CANNABIS IN YOUR WORKPLACE

Very recently new regulations to Canada’s Cannabis Act were enacted, establishing new rules for the legal production and sale of new classes of marijuana; namely, edibles, extracts and topical products.

These new products are likely to be available for purchase online and in stores in mid-December.

Employers in Ontario need to update and revise their written workplace policy regarding cannabis to address these new products, specifically, which may not be as obvious to detect in the workplace.

These new products pose new challenges to maintaining a cannabis-free workplace. For example, these new products:

  1. are more difficult to observe or detect possession of – they may be odourless and easily concealed, as opposed to smoking or vaping – they may also be incorporated into everyday products, further challenging the ability to detect and manage them in the workplace; and
  2. may cause unintended or unplanned impairment or intoxication – ingesting or topically applying cannabis often causes different reactions than vaping or smoking, such as delayed or even longer-lasting impact – often users do not know or understand the concentration of cannabis in these new products and, therefore, do not anticipate the impairment impact they may have. 

Every Ontario employer should have a robust substance use policy in their workplaces. Restricting only smoking, vaping or otherwise inhaling is no longer enough. Rather, ingestion and applying topically must also be specifically regulated in the policy. 

Employees must be expected to attend work in a suitable and appropriate mental and physical condition and remain fit for duty at all times.

Need a policy? Call us. We’ve got you covered. 

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ONTARIO COURT OF APPEAL BACKS ME UP – HOW I REPRESENT INCAPABLE PEOPLE IN LAWSUITS (FAMILY CONFLICT)

Periodically I am appointed by the Superior Court (or the Ontario Public Guardian and Trustee) to act for the interests of an incapable person, who needs representation and support.

Often this arises in disputes among family members over the incapable person’s power of attorney for either property or personal care, or both.

This is a very special role. I am statutorily charged to only represent the views and preferences of the incapable person, which regularly do not align with family members, in whole or in part.

This role is called “section 3 counsel”.

Recently Ontario’s Court of Appeal ruled on a case in which I acted as section 3 counsel.

The trial involved a dispute about the validity of my incapable client’s powers of attorneys. The family was entirely divided. One side challenged my position and argued the Court has no authority or ability to take into consideration my submissions and position, often done orally at the hearing, regarding the incapable person’s wishes and preferences.
Fortunately, the Court of Appeal disagreed, holding [at paragraph 8]:

“In the same way, it was reasonable for the application judge to refer to the statements of Jason Ward, section 3 counsel appointed by the Public Guardian and Trustee to represent Mrs. Lewis’ interests on the guardianship application, concerning Mrs. Lewis’ expressed wishes.”

This case offers very significant new judicial guidance to the role of section 3 counsel for advocating on behalf of incapable people who are deemed to have capacity to instruct a lawyer.

The Case:

Lewis v. Lewis, 2019 ONCA 690

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WHAT CAN YOU DO IF SEXUALIZED/INTIMATE CONTENT OF YOU IS POSTED ONLINE, WITHOUT YOUR CONSENT? SUE, THAT’S WHAT.

The Ontario Court granted, in a case called Jane Doe 464533 (the Plaintiff’s name cannot be disclosed), 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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EMPLOYEE GETS IN TROUBLE AT WORK AND TELLS THE EMPLOYER HE/SHE INTENDS TO SPEAK TO A LAWYER – CAN YOU BE FIRED FOR THAT? NOPE, HERE’S YOUR REMEDY

Under Ontario’s Employment Standards Act, 2000 (the “Act”), an employer cannot terminate or otherwise punish an employee who asserts his or her rights under the Act. This is known as “reprisal” by the employer and, generally, will cause the employer to be punished itself by the Ontario Ministry of Labour and, possibly, the Ontario Labour Relations Board.

The case:

Zongping (Peter) Luo v. Economical Mutual Insurance Company, 2015 CanLII 79023 (ON LRB)

Mr. Luo was terminated by his insurance company employer about one month after informing them that he “might get legal help” regarding a dispute in the workplace.

He made a complaint to the Ontario Ministry of Labour, including alleging reprisal against Economical. The case was escalated to the Ontario Labour Relations Board (the “OLRB”), which decided that Economical did not engage in reprisal in this particular case.

Reportedly Mr. Luo did not specifically mention the Act when he asserted that he “might get legal help” – a factor. The OLRB concluded this statement by Mr. Luo could conceivably encompass a fairly broad range of potential actions, not only limited to those available to him under the Act.

Mr. Luo also admitted in the hearing that he was unaware of the Act when he made his statement – that did not help his case, either. Not long after he was terminated, Mr. Luo also sent an e-mail to the employer referring to wrongful termination and discrimination, but nothing about reprisal.
Ultimately, the OLRB held:

“There are no ‘magic words’ required for an employee to invoke the protection of s. 74 of the Act [the reprisal provision of the Employment Standards Act] so it is not necessary for an employee to refer specifically to the Act . . . However, where the background facts do not appear to raise issues of the enforcement of the Act and the employee makes only a generalized threat to seek legal assistance – as in this case – the protection of s. 74 of the Act cannot be engaged.”

Therefore, according to this case, making generalized assertions or threats to your employer, including that you may speak to a lawyer, may not support a claim of retaliation against your employer, if you believe you were punished for doing so. You need to be specific, ostensibly. Specifically make a request for your employer to comply with the Act or the other health and safety legislation that applies to your workplace, such as Ontario’s Occupational Health and Safety Act (which also addresses harassment in the workplace). Effectively, you will need to seek to exercise your rights very specifically under the Act or other legislation, or you will not likely succeed in a complaint of reprisal against your employer.

In addition to a reprisal claim, an employee may still have a claim for wrongful termination and other damages that may be available, depending on the circumstances.

 

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WHAT IS COLLABORATIVE FAMILY LAW?

Collaborative family law has grown in popularity over the last 25 years and has been embraced by family law practitioners to varying degrees. The collaborative family law movement began in the Western American states and was later adopted in British Columbia as one of the first provinces in Canada to embrace a shift in family law towards alternative forms of dispute resolution. Since that time, many lawyers across the country have embraced a transition to the collaborative process, perhaps in light of the fact that most family law cases settle before they reach the adjudication phase of litigation.

Collaborative family law took hold in Lindsay in 2012 when a group of local family law lawyers completed the necessary training and established the Kawartha Collaborative Practice group. Many family law lawyers are shifting towards seeking a method of resolving family matters in a more supportive way. This phenomenon, together with the growing barriers to accessing the judicial system, has led to a drastic increase in families choosing to embrace the collaborative process. The current legal system has been criticized for being ineffective and inflexible for adjudicating the many issues associated with family law matters. However, the recent Bill C-78, which introduces amendments to the Divorce Act, shows direct movement towards recognizing the collaborative process as a viable alternative dispute resolution process.

Indeed, settlement may be the most attractive option for litigants, as adjudication in the family court removes a great deal of control with respect to a family’s financial and structural future. Parties engaged in family law issues are typically dealing with a host of other emotional and financial uncertainties, which the traditional legal model is not able to address holistically. Additionally, many individuals involved in the family law system become frustrated with the expense, investment of time, and the lack of control they experience while litigating such personal matters.

In contrast, the collaborative process is focused on individual and family goals and interests and offers a method of achieving flexible yet legally binding solutions without pursuing costly and unpredictable litigation. Process goals include respectful communications, forthright exchange of documentation, confidentiality, and involvement of various collaborative professionals who strive for problem solving. The collaborative process is truly all encompassing and often includes various professionals trained in the collaborative approach, such as financial advisors, mental health professionals, social workers, and negotiation coaches/facilitators.

In the collaborative process, lawyers are specially trained to remain focused on settlement. The parties sign a Participation Agreement which governs their behavior throughout the process. The parties and their lawyers arrange “team” meetings which are structured to allow individuals to actively participate in creating solutions that are realistic for their family and which emphasize their main goals and interests. The main caveat of this approach is that it is essential that the parties are committed to resolution and are able to consider or appreciate the issues (to some extent) from each other's perspectives.

A primary critique of the collaborative process is the inevitability of an impasse between the parties resulting in either coercive bargaining or a failure of the process. However, there are several options available in the collaborative process to overcome such an impasse. The addition of neutral professionals to the collaborative process may decrease the chances of the parties reaching an impasse. Parties who are able to hear one concise position regarding their family’s financial matters directly from trained professionals may be less likely to fixate on one single financial position, and more likely to agree on a financial solution. Likewise, parties who have received the benefit of a social worker’s skillset may be less likely to escalate emotionally and dig in their heels when attempting to reach a settlement. In the case of a severe impasse that cannot be overcome by the collaborative team, one or two deadlocked issues may be referred to an outside mediator or arbitrator for recommendations or a final decision.

The rebuilding of a basic foundation of trust between parties is a central component to the collaborative process, even if this trust is limited in scope. Parties must learn how to work together, even if only with respect to limited situations, such as those relating to their children’s best interests. Once this trust building process begins – even if only in certain areas – impasses on other issues may be less likely to occur. Given the unique requirements of the collaborative process and the challenges associated with unique family dynamics, it may not be right for every family. However, unlike litigation, the collaborative process is flexible and ensures that both parties are able to be involved in the process of designing creative solutions that meet the unique needs and goals of their family. A meeting with a trained collaborative family lawyer will assist in determining whether the collaborative process is right for you and your family.

Amelia Rodin, WARDS LAWYERS PC

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