Generally, an employer cannot abruptly terminate an employee without notice (i.e., any severance) unless there is “just cause” to do so. If such cause is absent, reasonable notice, or pay in lieu of notice, is usually required by law. It is exceedingly difficult for Ontario employers to prove “just cause” in Ontario Courtrooms. Some critics may argue that Ontario Courts remain disproportionately sympathetic to terminated employees, perhaps justifiably so. In any event, to use and prove “just cause” successfully in Ontario law is usually very challenging and reserved to fairly limited circumstances, effectively those where the contract of employment is fundamentally breached by the terminated employee.
Performance issues, in particular, can be quite problematic, at least if they are raised and relied on as “just cause” for termination. Where the misconduct is very clear and identifiable, it becomes mildly less onerous, such as serious or wilful misconduct (e.g., fraud, theft, harassment, breach of fiduciary duty) – these may more readily create the opportunity to abruptly terminate for cause and justify it afterwards, if necessary. However, short of these clear, compelling reasons, the lines becomes far more blurry and uncertain, such as for incompetence, failure to perform satisfactorily, disobedience, or other less stark missteps by an employee.
To justify termination for cause in those cases, usually employers must prove proactive steps were taken to effectively manage the poorly performing employee before a finding a dismissal was justified for cause. What must be proved? Typically employers must prove that the employee consistently failed to meet and achieve objective, reasonable performance standards that are known to the employee. Subjective dissatisfaction by an employer is usually insufficient. The Court may also consider mitigating factors relating to the employee’s circumstances or workplace. Essentially, the employer must demonstrate that the employee’s shortcomings were entirely the reason for the termination, after progressive discipline was afforded to the employee, unsuccessfully. It cannot be other factors, or be perceived to potentially be other factors, such as economic downturn or the employer’s unwillingness to offer reasonable accommodation, that is the reason for the employee’s sub-standard performance.
Generally, the Court will require a fairly onerous progressive discipline process before it will allow the employer to terminate successfully for cause for performance-related issues. This usually involves prior warnings and an opportunity for improvement or rehabilitation. Unless the employee’s conduct reaches the high threshold of “gross” incompetence, particularly by endangering the lives of others, generally the employer is judicially expected to, at the very least: warn the employee that his or her job is at risk if performance does not improve within a specified period; and provide reasonable time and support for improvement; and demonstrate that, despite this, the employee’s sub-standard performance persisted.
Employers must also be cognizant of whether an employee’s incompetence may potentially relate to (or arguably relate to) any prohibited grounds of discrimination under Ontario's Human Rights Code. In that case, the duty to accommodate may arise, to the point of undue hardship, making it even more difficult to justify a termination for cause based on poor performance – and more risky to do so.
Employers in Ontario should:
There is no dispute in Ontario that employers are permitted to apply reasonable rules and standards on employees in the workplace. They may discipline and fire employees, if appropriate steps by them are taken and there are proper grounds to do so, at law. Employees who break the rules or engage in serious misconduct in the workplace are subject to termination, for cause and without severance pay.
However, employees’ misconduct that takes place off-duty, on personal time or outside of the workplace, is a different issue entirely in Ontario law.
This includes, for example, conduct by an employee on social media, when the employer may feel the employee is acting inappropriately, or when an employee is charged with a criminal offence, such as impaired driving, domestic assault or even a less serious offence, such as theft or mischief.
Ontario Courts have addressed these questions and generally held that criminal charges for off-duty (alleged) misconduct, without more, are insufficient grounds to dismiss the employee for cause and without either notice or pay in lieu of notice.
For example, in a 2016 Ontario case, when the employee sued for wrongful termination as a result, the employer was ordered to pay damages equivalent to ten months’ wages ($42,000), plus costs.
The employee, 67, was employed as a general labourer. He worked mostly in southern Ontario.
Early in 2015, he was arrested at work and charged with two counts of sexual assault allegedly against minors. The employer met with the employee the following day and questioned him about this, but the employee refused to discuss the criminal charges and would only say that the alleged events did not occur in the workplace and did not involve any other employees.
The employer asked him to resign, but he would not. However, he agreed to take a two-week leave of absence.
When he came back to work, he was asked to work at a different facility of the employer. A female employee at that other facility then expressed concerns about working closely with the employee. She told the employer that the employee in question was a distant relative and that she in the past had visited with him with her own family. The female employee also alleged that she stopped visiting him because he made inappropriate sexual comments and advances towards her.
As a result, the employer met again with the employee. They brought these concerns by the female employee to his attention directly, including the employer’s concern that this female employee may be involved in the criminal allegations. The employee would only confirm that no other employees were involved in the criminal charges.
The employer, without undertaking any further investigation, internally or otherwise, terminated the employee, for cause, and paid no severance to him. The employee sued for wrongful termination.
According to this case, for off-duty conduct to constitute proper cause for termination, there must be a justifiable nexus or connection between the off-duty conduct and the employer or the nature of employment.
The Court also confirmed that the onus is on the employer to demonstrate, on a balance of probabilities, that, for example:
Applying these factors based on the evidence, the employer lost on the cause issue and had to pay, including because:
Summary and Lessons:
This case emphasizes that employers should always, before terminating for cause, conduct fulsome and proper workplace investigations, including when off-duty misconduct is the issue. A proper investigation involves seeking and obtaining any relevant statements and evidence, properly documenting the evidence and the investigatory steps taken and giving the employee in question a reasonable opportunity to respond to the allegations, or so-called ‘due process’. If this is not done prior to termination, the employer clearly faces the risk of cause not being upheld by the Court.
If a proper investigation is done, employers should assess if the off-duty conduct justifies termination for cause, based on the factors set out above, or what other disciplinary step(s) may be more appropriate at the time, as part of progressive discipline.
Employers should always ensure progressive discipline steps are taken, unless the circumstances are severe enough to justify otherwise, and they should always make sure any disciplinary steps taken are reasonable, principled and consistent with the employer’s policies, including any workplace codes of conduct and off-duty workplace policies.
Other options? If there is serious concern, but possibly risk in establishing a cause, the employer could consider terminating the employee due to off-duty misconduct, but not on a ‘for cause’ basis, by providing adequate notice or pay in lieu of notice, subject to ensuring that the discipline taken, including the termination, does not offend the protected grounds enumerated in the Ontario Human Rights Code (or the federal Code, if applicable).
Merritt v. Tigercat Industries, 2016 ONSC 1214 (CanLII)
The days are getting longer and spring is on the way. But springtime comes with safety challenges and risk of personal injury. Part 2 of our Springtime Safety Series focuses on dog attacks and bites.
As the weather improves in spring, more people like to take their dogs outdoors. And while we picture happy dogs with wagging tails, the reality is that more dogs out in the spring often leads to increased dog bites and attacks, or even being knocked down by an excited dog.
Dog bites and attacks may result in permanent physical and psychological harm, including scarring and risk of infection. Some dog attacks may even prove fatal. Here are some interesting statistics:
The majority of dog bite incidents involve children.
In dog bite cases in Ontario, the law places “strict liability” for a dog’s actions on the owner. According to the Dog Owners’ Liability Act, all damages and injuries are the legal and financial responsibility of the owner. An owner of a dog may be liable for an attack even if the dog did not previously show a propensity to attack people.
This strict liability also applies to anyone who “harbours” a dog. A person who is not the owner may be found to be harbouring a dog if they are in physical possession and control over a dog just before a bite or attack. For example, family members, friends or even dog sitters or walkers can be seen as harbouring the dog if they were in control of the dog at the time of an attack.
Victims can sue the dog owner(s) for compensation for physical and emotional suffering, housekeeping and home maintenance assistance, medical treatment and rehabilitation, income loss and out-of-pocket expenses.
If the dog owner is a homeowner, most standard home insurance policies include “third party liability” coverage which means that the insurance company will likely respond to a claim if the homeowner’s dog harms someone.
As a dog owner, it is important to understand your home insurance policy coverage. If your dog does harm someone, it is important that you notify your insurance company immediately.
If you are injured by a dog, seek immediate medical attention to ensure you have not contracted any disease. The incident should be reported to your municipal Animal Control Services Department. It is also important to obtain the name and contact information of the owner and any witness information, as well as take photographs of the injury and of the dog itself.
So get out there and enjoy your springtime walk. Just remember that dog owners must be aware of their responsibilities and dog victims should be mindful of their legal rights in the event that such a bite or attack happens to them or a loved one.
 Wilk v. Arbour, 2017 ONCA 21
Safety at work is a tricky subject for both employers and workers. As either an worker or an employer, everyone has likely heard the golden rule that ‘workers have a right to refuse unsafe work.’ This is a legal right that workers across Ontario have and it is important to understand how this right under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”) plays out in terms of the responsibilities and obligations of all parties involved.
While easy to understand in concept, one of the primary concerns in the workplace is how do workers effectively raise safety complaints to their employers and what obligations do employers have with respect to it? On a day-to-day level the answer is not so simple, when faced with tight deadlines and busy workloads workers and employers may often treat safety issues as secondary.
If a worker is faced with an unsafe work situation then they should issue a safety complaint as soon as possible. This triggers an obligation on the employer to respond to that complaint. Workers have a right to seek their rights under the OHSA free from reprisal from their employer. Reprisal can take multiple forms, for instance: being improperly reprimanded, a worker losing shifts or in some cases a termination of employment.
Correspondingly, the employer should respond to safety issues or complaints in a diligent and reasonable manner without reprisal against the worker. While there is no specifically prescribed form of response for employers under the OHSA, employers are required by law to implement written workplace policies in respect of workplace safety and workplace harassment.
Employers who have had these obligations triggered should seek to adjudicate these safety concerns in a diligent and efficient manner according to their workplace policies. Employers seeking to discount, or worse, take action against these complaints will do so at their peril.
This was the case in a recent case at the Ontario Labour Relations Board. An employee raised complaints with his employer about a particular task assigned to him and subsequently was terminated in the following weeks. The Labour Board in that case found that the employer had not met their obligations to respond to a complaint under the OHSA and that the termination was a negative consequence connected to the safety complaint made by the employee. As a result, the Board awarded damages against the Employer for: loss of earnings, value of the job lost, and pain and suffering.
Cases like these are preventable if all parties in the workplace understand their rights and obligations under the OHSA.
At a fundamental level, every workplace should have safety in mind. Employees should receive a solid understanding of what workplace policies are in place as well as knowing the designated personnel to speak to when seeking to raise health and safety concerns. Likewise, it is important for employers to have an effective health and safety policy and framework in place to diligently and efficiently process with health and safety issues in the workplace.
Workplace safety and workplace harassment policies are required by law in Ontario.
William Joseph Thorogood v. North 44 Property Management, 2018 ON LRB 82724 (CanLII)
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What if you learn that someone has reported a debt against you that is wrong or is being disputed by you?
Since your credit rating and your ability to secure credit may be significantly compromised, you wish to challenge the reporting but what is the recourse.
Collection agencies in Ontario are governed by the Collections Agencies Act and the Consumer Reporting Act. Both statutes govern the conduct of a collection agency and set out a list of prohibited practices and methods for the collection of the debt.
Can a breach of these statutes give rise to an action against the collection agency for damages? In the case of Haskett v. Equifax Canada Inc. in 2003, the Court of Appeal permitted a civil action to proceed against a collection agency for “improperly and illegally including information” in the proposed Plaintiff’s credit report which they were not entitled to report, and which was inaccurate. While this action did not proceed to trial, a number of cases since then have awarded damages for breach of a statutory duty owed by the collection agency to the consumer about whom it reports.
A credit agency is entitled under the Consumer Reporting Act to distribute a credit report concerning your financial dealings as reported to it. The collection agency does not create the credit information but relies on its members to provide accurate information. The duty imposed on the agency is not to guarantee the accuracy of the information but rather to set up reasonable procedures to investigate disputes.
In order to satisfy its duty of care with respect to the receipt of a complaint from the consumer as to its accuracy this agency must within a reasonable period of time:
In the case of Spencer v. Equifax Canada Inc. the Court did not find on the evidence any breach of duty when it accepted the evidence for reporting or in its subsequent duty to investigate upon hearing the complaint of the consumer.
However, it was pointed out in the evidence that Equifax had adapted a policy of offering to the complainant the opportunity to provide a consumer statement of his own in which he could dispute or explain the basis on which he disputed the claim. Thereafter any credit report distributed by Equifax would have attached to it this dispute/explanation. A consumer should therefore insist on the inclusion of a dispute statement in these circumstances.
While not a complete resolution, failure to avail yourself of this alternative would be considered a failure to mitigate one’s damages in cases where a breach of duty did lead to damages.
SPRINGTIME SAFETY SERIES, PART 1: Motorcycles
The days are getting longer and spring is on the way. But springtime comes with safety challenges and risk of personal injury. Part 1 of our Springtime Safety Series focuses on motorcycle accidents.
Springtime is a great time for getting out the motorcycle for a road trip. However, because of increased motorist, pedestrian and other traffic, there may be increased risks. Also, changing weather in spring (including freeze and thaw conditions) can cause slippery patches on the roadways, causing dangerous driving conditions.
Because of the vulnerability of being in an open and unprotected vehicle such as a motorcycle, the risk of serious injury in a crash increases. Injuries include spinal and muscle damage, road rash, traumatic brain injury and even death.
A recent study suggests that motorcycles account for 10 per cent of all motor vehicle deaths in Ontario and cost the health care system six times the amount of car crashes. Researchers showed that while car safety has improved with rates of severe injuries and deaths from car crashes decreasing significantly over the last 10 years, injuries from motorcycle crashes have remained stable or even worsened.
In Ontario, it is mandatory to have motorcycle insurance for any motorcycle you ride on the roadway. Mandatory motorcycle insurance includes Third Party Liability, which protects you from being held personally liable for damage you might cause to other persons and/or their property. The legal minimum coverage of $200,000 is not adequate protection. Most people have policies with at least $1 million. But increasing your third party liability limits up to $2 million or more (for only a nominal premium increase) is a great idea. Because injuries in a motorcycle accident are often serious, if another insured driver causes serious injury to you or a family member and they only have $1 million in liability insurance, you can access additional coverage from your own insurance company (up to your own liability limits) in order to be fully compensated for all your injuries and losses. Also, having higher liability limits will further protect you from personal liability.
Insurance coverage also includes Accident Benefits which compensate you for medical expenses, rehabilitation, funeral expenses and loss of income following a collision. Accident benefits coverage was drastically reduced as of June 1, 2016. Once again, given the added risk of injury in motorcycle accidents, it is advisable to choose to increase your level of accident benefits coverage in important areas.
If you have been in a motorcycle accident, you also have the right to sue a negligent driver. You may have the right to compensation for pain and suffering if you suffered a “permanent serious impairment of an important physical, mental or psychological function,” according to the Insurance Act. This lawsuit would be in addition to your entitlement to Accident Benefits and may also seek compensation for healthcare expenses, income loss and other losses.
Before you hit the road again this spring on your motorcycle, talk to your insurance providers about increasing your Accident Benefits and liability coverage and make sure you understand what your coverage includes.
Also, protect yourself from springtime motorcycle risks by using appropriate safety gear and being aware of wet and slippery road conditions. Wear proper attire in changing weather to keep you warm, to prevent limbs stiffening and to allow you to react better in unexpected situations. Be aware of increased roadway and pedestrian traffic.
Safety precautions and proper insurance are an essential part of ensuring that you and your family are entitled to care and compensation in the event of a motorcycle collision.
 “Direct medical costs of motorcycle crashes in Ontario” published in CMAJ, November 20, 2017, by Daniel Pincus, David Wasserstein, Avery B. Nathens, Yu Qing Bai, Donald A. Redelmeier and Walter P. Wodchis; http://www.cmaj.ca/content/189/46/E1410
Decisions regarding custody and access have an immense impact on the best interests of the child. In order to ensure that the best interests of the child are met, there are three commonly employed methods of incorporating a child’s views and preferences into the judicial process. Representation of the child by a lawyer is perhaps the most prevalent method, followed by expert reports, and meetings between a judge and child. Judicial interviewing has historically been a controversial method for determining a child’s views, and the effectiveness of this approach has been criticized. There are two common views - one proposing that children must be protected from familial conflict and choosing sides, the other suggesting that the views of children should be encouraged as often as possible.
In Ontario, the Childrens Law Reform Act (CLRA) governs judicial interviewing of children and states that the court shall take the views and preferences of the child into consideration wherever possible. Section 64(2) of the CLRA further provides that “The Court may interview the child to determine the views and preferences of the child”. Unfortunately, this provides very little guidance in regards to how and when judicial interviewing should be conducted. Across Canada, most jurisdictions have left the option of a judicial meeting to the judge’s discretion.
While the current legislation permits any judge the opportunity to interview a child, judges in Ontario rarely meet with children. The most commonly cited reason for this is that meeting and interviewing children requires a unique skill set, which includes both specific training as well as an understanding of the way in which children speak. Additionally, the court has consistently upheld that judges must not collect evidence, and accordingly, judges must not base their decision solely based on the views expressed by a child. Judges are ultimately bound by legislation, and must be careful to consider what is in the best interests of the child, not simply what the child expresses. These competing interests were discussed in the 1965 case Hodge v Hodge (1965 7 FLR 94):
One of the reasons given in that case for not seeing the child was that the court has to consider the welfare rather than the mere desires of the child. That is true, but with the greatest respect to what their Lordships said, one of the factors that has to be considered, although in many cases it may not be a dominant or even an important factor, is what the child wants. That is something that has to be considered in deciding what is best for the child. Secondly, the Court of Appeal referred to the fact that a child which has been in the custody of one present may very naturally express wishes that strongly favour that parent. That may be so, but that, I should have thought, is something that any judge might be expected to discount and take into consideration, and of course if the contrary were the case, that is, if the child expressed a view that was not expected, that might be something that the court might regard as significant. I feel that perhaps I will not gain a great deal from seeing the child in this case, but nevertheless I think it is a proper exercise of my discretion to see her.
Several judges have utilized judicial interviews in more recent years (refer to Coda v Coda 1997 CarswellOnt 3953; PLM v LJ, 2008 CanLII 35923; McAlister v Jenkins, 2008 CarswellOnt 4266). However, Ontario judges frequently defer to utilizing the appointment of the Office of the Children’s Lawyer or the use of an expert report to bring a child’s views into the court process, perhaps due to the view that this creates a more balanced picture of what is in the child’s best interests.
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 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.
R. v. Jarvis, 2019 SCC 10 (CanLII)
Protection to employees in Ontario from “genetic discrimination” by employers has officially arrived.
An increasing number of businesses offer individual genetic testing, which may, among other things, disclose a medical diagnosis or condition, that a person may have, or carry, a genetic mutation or irregularity or that a person may be at higher-than-normal risk for contracting a disease or other potentially disabling condition.
Of course, the concern is that information of this nature, if accessible by an employer, may cause, or contribute to, potential discrimination against a job candidate, or existing employee. For example, could a person be passed over for an employment opportunity based on the employer knowing any of this information? Could an existing employee not be considered for promotion or advancement when, but for the employer knowing information of this nature, that might not have been the case?
The Ontario government is now taking steps to legislatively prohibit Ontario employers from discriminating against employees based on their genetic traits and characteristics. At the federal level, both the Canadian Human Rights Act and the Canada Labour Code have already been amended to prohibit, or minimize, this form of discrimination. Under the Canada Labour Code, for example, an employer cannot force an employee to take a genetic test, or disclose the result of any genetic-related testing. In Ontario, the prohibition is being developed to the Ontario Human Rights Code, which aims to be revised to add genetic characteristics as a further, prohibited ground of discrimination. With very limited exception, the proposed amendments will also expand every person’s right to equal treatment without discrimination in, for example, employment, including regarding that person’s genetic characteristics, being defined as the "genetic traits of an individual, including traits that may cause or increase the risk to develop a disorder or disease".
In the near future, it appears very likely that employees will be expressly and statutorily protected from discrimination by employers on the basis of “genetic characteristics”, including from being forced to undertake any form of genetic testing, or disclose the results of any such testing.
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