EMPLOYERS HAVE A DUTY TO PROTECT WORKERS FROM HARM, NOT ONLY PHYSICAL

The Occupational Health and Safety Act of Ontario statutorily mandates that Ontario employers must take every precaution, reasonable in the circumstances, for the protection of any worker.

This is often referred to, legally, as every employer’s “general duty” in the workplace.  

So, what does that mean? In Ontario, what is required is interpretative, ultimately; namely, the “circumstances of the case” must be considered on a case-by-case basis.

Each case must be considered and assessed for what is a reasonable precaution in the specific workplace [Reference: R. v. Quinton Steel, 2017 ONCA 1006, para. 29].

This general duty does not necessarily apply only to avoiding physical injury in the workplace but could also apply to mental and emotional harm or injury, too, such as resulting from harassment, intimidation or being exposed to a toxic work environment.

As a result of this general duty:

-    every Ontario employer should conduct workplace risk assessments, at least annually, to satisfy this general duty, including with respect to providing a harassment-free workplace, as is required by Ontario law, and to promote and ensure a healthy workplace for everyone;

-    every Ontario employer is required to assess the circumstances of the workplace when doing a workplace risk assessment; and

-    even if an employer's safety policy complies with the applicable regulation, it may not be in legal compliance if the circumstances of the workplace require a higher standard of safety to protect workers.

 

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NEW PRIVACY PROTECTION IN ONTARIO – I CAN SUE YOU IF YOU PLACE ME IN A FALSE LIGHT IN THE PUBLIC EYE (ONLINE OR OTHERWISE)

There has been a very important development in Ontario privacy law recently, further protecting an individual’s protection from online attacks and predatory behaviour.

In this family law case, the father had posted on social medial negative and highly personal information about the children at issue, in addition to engaging in a social media-driven smear campaign about his former spouse and her family.

The Court would have none of it, awarding $100,000 damages against the father for his relentless and reckless conduct online, particularly against his own children.

Prior to this case, there were three types of ways to sue for protection of your privacy in Ontario: namely:

[1] intrusion upon your seclusion or solitude, or into your private affairs;

[2] public disclosure of embarrassing private facts about you; and

[3] appropriation, for the other person’s advantage, of your name or likeness.

Now there is a fourth category to protect you: publicity which places you in a false light in the public eye.

This has potentially wide-reaching implications for many issues in a person’s life, like relationship breakdowns, being fired from a job, or other disputes with someone that often escalate to online attacks.

Here is an excellent article further explaining this recent case and its potential implications:

More civil liability for privacy complaints in Ontario after landmark case

FOCUS ON PRIVACY - Tort of 'publicly placing a person in false light' recognized

BY Anita Balakrishnan 19 Feb 2020

A family law case in Ontario’s Superior Court of Justice has added a new tort to Ontario law by focusing on “the best interests of the children, the invasion of their privacy, and the effects of cyberbullying.” 

The ruling could have implications for publishers and public statements by businesses — even as businesses are also seeing tighter regulatory risk on privacy, say lawyers from Torys LLP.

“Ontario law now recognizes the privacy tort of ‘publicly placing a person in false light,’” wrote Torys lawyers in a memo. “This privacy tort goes beyond existing law on defamation. It protects an individual’s right to control how they are publicly presented to the world.” 

The case involved a family’s parenting issues, such as child and spousal support. But the claim also included intrusion on seclusion and invasion of privacy, because the father in the case posted YouTube videos of his interactions with his children, against court orders. The father also created cybercampaigns against the mother and her family, as well as a lawyer and a judge, said the decision, Yenovkian v. Gulian, 2019 ONSC 7279The father, who was not represented in court, was also accused of mocking one of his children with a neurological disorder. (Lawyer Shawn Richard, who acted for Gulian, declined to comment).

“Children are particularly vulnerable to the online postings of a parent which expose the intimacy of a child’s life which only a parent should have access to,” wrote Justice Freya Kristjanson in the decision. “Public posting of recorded in-person and Skype access visits with children, photographs of parental moments, and written and video commentary about the children in a cyberbullying campaign directed to undermining the spouse in family law litigation, viewed objectively, is an offensive intrusion on the privacy of the child.” 

Citing Jones v. Tsige, 2012 ONCA 32, Kristjanson noted that the Ontario Court of Appeal recognized “one aspect of tortious invasion of privacy in the form of intrusion upon seclusion.” But a so-called four-tort catalogue in privacy law dates back to 1960: 1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs; 2. Public disclosure of embarrassing private facts about the plaintiff; 3. Publicity which places the plaintiff in a false light in the public eye; 4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness.

The fourth form of invasion of privacy was already actionable in the province with Athans v. Canadian Adventure Camps Ltd., 1977 CanLII 1255, while the second form was dealt with in Jane Doe Doe 464533 v. N.D. (“Jane Doe 2016”) and Jane Doe 72511 v. N.M., 2018 ONSC 6607, Kristjanson said. 

“With these three torts all recognized in Ontario law, the remaining item in the ‘four-tort catalogue’ of causes of action for invasion of privacy is the third, that is, publicly placing the plaintiff in a false light,” wrote Kristjanson in the decision. “I hold that this is the case in which this cause of action should be recognized.” 

Kristjanson concluded that Yenovkian v. Gulian, 2019 ONSC 7279 was “the exceptional case,” writing that  “the invasion of privacy was intentional, subjectively intended to cause harm, and without lawful justification.” The court ordered Yenovkian to pay damages of $100,000  on the tort of invasion of privacy (false light and public disclosure of private facts), in addition to other payments of post-separation adjustment, spousal support, child support, damages for mental suffering and punitive damages.

“Mr. Yenovkian’s conduct must not only be punished but it should be denounced, and it should be deterred,” wrote Kristjanson. “A significant award of punitive damages may serve to deter Mr. Yenovkian, since the court orders have had no effect in deterring his conduct.  It will also serve to warn other litigants, both represented and self-represented, that cyberbullying another party online, in family law proceedings where the interests of children are in issue, will not be tolerated.” 

The court’s interpretation of the tort of false light and public disclosure of private facts follows a similar formula as what is used in the United States, where proof of defamation is not required, but the false light must be “highly offensive to a reasonable person” and the actor “had knowledge of or acted in reckless disregard as to the falsity,” wrote Torys. For businesses, the firm said the tort could mean that businesses could face claims of vicarious liability for “deepfakes,” employee misconduct, misleading ads or social media marketing, for example — and there is no requirement to prove actual malice or economic harm.

Torys senior associate Ronak Shah says that as the tort was tucked away in a family law decision, it’s still making waves as commercial lawyers dissect how it might affect areas like class action law. 

“Not only on the internet — but also within the companies’ public announcements and things like that — we want to make sure that they are portraying the person correctly: As they are, and not in a false light,” he says.

 “It’s making sure statements about investigations, departures of officers or employees, are done in a way that is correct and . . . .  that they have processes in place that actually vet these kinds of statements.” 

Policies will also be needed so employees know what they are allowed to say and when, and how to get permission, says Shah. 

“Especially since it’s not only a malice mandate, it’s a recklessness standard,” he says. 

Some issues from the decision that might get clarified through further case law are the damages framework for this tort, and what defences are available, says Shah. Although the tort itself mirrors U.S. law, Canadian approaches to issues such as risk analysis and s.8 rights will shape the laws here, Shah says.

“For a long time, this tort wasn't recognized partly because of the overlap with defamation. Especially with the new applications like deep fakes, this tort will take on a new light,” he says. 

“It basically helps individuals get better control of how they are portrayed, and that's a general trend that we're seeing in terms of even privacy legislation. It’s moving towards ensuring that organizations respect individuals’ control over their data.”

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I SIGNED AWAY MY RIGHTS WHEN I TOOK THIS JOB – CAN I GET THEM BACK, PLEASE? MAYBE.

Commonly employers use contracts to try to limit an employee’s entitlements upon termination (for any reason) to only those statutory minimums mandated by Ontario’s Employment Standards Act, 2000, rather than the so-called one-month-notice-per-year-of-service rule of thumb often adopted by lawyers and the Court.  

Judges tend to scrutinize these efforts fairly closely.

Over the past year, or so, in Ontario, many new cases have refined and developed when an employment contract, which limits an employee’s rights, will be enforced by the Court.

Below is an excellent article explaining the basics:

“For Canadian employers, one of the most important purposes of written employment contracts is to lawfully limit the amount of notice or compensation that they will owe to employees whose employment is terminated without cause.

Absent a written agreement with a valid termination clause, employees are entitled to “reasonable” notice or pay instead of notice. Depending on the employee’s age, position, length of service and ability to find a new job, employers may have to pay terminated employees anywhere from 3 months to as high as 24 months’ pay on a termination without cause. Contracts with valid termination provisions can dramatically reduce an employer’s obligation and risk in this regard.

Written contracts that do contain termination clauses will, however, be carefully scrutinized by our courts, who routinely make findings that such clauses are unenforceable. Some common reasons supporting a finding of unenforceability include:

1.    a lack of “consideration”, where an existing employee has signed a new contract of employment without receiving something of value (a raise or promotion, for example) in exchange;
2.    ambiguity in the contract or language that is not sufficiently clear to lawfully limit the employee’s entitlements; or
3.    a violation of employment standards legislation, where the termination provision is capable of providing for less than minimum statutory requirements on termination, whether at present or at some time in the future.

In recent years, our courts have also become increasingly prepared to invalidate termination clauses on an expanding variety of new technical grounds. This means that contracts with termination clauses that may have been considered enforceable in past years may require revision to catch up with recent judicial rulings.

Employers can best protect themselves by taking the following steps:

1.    if they are not using written contracts already, start doing so with all new hires, and possibly introduce contracts to existing employees for valid consideration;
2.    if they presently have employment contracts in place that are silent on the issue of termination, introduce valid termination provisions for all new hires, and possibly for existing employees where there is adequate consideration; and
3.    if they have contracts with termination clauses, have those clauses reviewed annually to keep up with changes in the law and recent court decisions.

In all of the above cases, the termination language should be drafted and/or reviewed by legal counsel well versed in this specialized area of the law.”

Credit: Peter C. Straszynski, Tokin Manes LLP (via Lexology)

 

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