Employment and Labour Law Seminar - May 5, 2015

Employment and Labour Law

TORONTO SEMINAR | 2015

2

Agenda

• Enforceability of Termination Clauses: An Update

• Overtime Class Action Update

• Pay Equity Update

• Confidentiality Clauses in Settlements

• Break

• Two Steps Forward, One Step Back: Disability

Accommodation in the Workplace

• AODA Update

• Top 10: Employment, Labour and Human Rights Law

Enforceability of

Termination Provisions

Ed Majewski

4

Termination Clauses

• Employers and employees can agree to contract out of

two common law aspects of termination without cause:

1. reasonable notice (or pay in lieu thereof)

2. total compensation over the reasonable notice period

5

Total Compensation

• Common law presumes that employee who receives pay in lieu of

reasonable notice should still receive all compensation, benefits,

perquisites, etc. s/he would have received if employer had provided

working notice

• employer must try to rebut this very strong presumption in its employment

agreements and incentive plans

• blunt language required

• Forfeiture clauses:

• ‘if your employment ends before the bonus pay out date…’

• judges loathe to enforce these types of provisions

• ‘you shall cease to participate in any incentive plans and not be eligible to receive

any incentive payments as soon as your active employment ends’

• less offensive to judges, but they aren’t eager to enforce

• Contra proferentum → any ambiguity gets interpreted against the employer

• Canadian judges interpret “upon termination” to mean at the end of all notice periods,

not the date on which an employee is handed a termination letter

6

Reasonable Notice

• ‘ESA minimums only’ termination clauses are permissible, but judges have

been EXTREMELY nitpicky

• termination clause will be void from the outset if it might violate the ESA at some point

in the future

• any fixed termination clause of less than 42 weeks could be unenforceable

• must now specifically mention:

• “statutory severance pay” (even if your business doesn’t meet the statutory preconditions!)

• benefits continuation as per ESA (even if your business doesn’t provide benefits!)

• What’s an employer to do if its termination clauses are suspect?

• update your employment contracts, but you need to be careful about “consideration”

• add “saving language”

‘Company intends to comply fully with the ESA. If for any reason this

termination clause could provide the employee with less than his/her

ESA entitlements, Company will instead provide employee with at

least his/her ESA entitlements, but no more than that.’

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Consideration

• Why is it important? Essential element of an

enforceable contract

• What is “consideration”? Something of value

• Lots of forms of consideration:

• right, interest or benefit received by a party

• forbearance, detriment, loss, or responsibility, given, suffered or undertaken by a

party

• No consideration → no contract

8

Employees and Consideration

• New hires → the new (paying) job is consideration for signing an

employment contract

• once an employee starts his/her new job, employer must give him/her fresh

consideration for any changes to his/her terms and conditions of

employment as of 9:00:00 a.m.

• DON’T allow new hires to sign their employment agreements on their first

day of employment

• 9:00:01 a.m. is too late!!!

• BEST PRACTICE: no new hire is allowed into the workplace unless s/he

has signed and returned his/her employment contract at least 48 hours

before start date

• After 9:00:01 a.m., employer CAN’T change their (material) terms

and conditions of employment unless employer provides fresh

consideration

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Employees and Consideration (cont’d)

• Current employees → continuing employment is NOT consideration

for imposing new or different obligations upon an employee

• “exception”: forbearance of termination

• judges won’t allow employers to present employees with amendments, threaten

to fire them if they don’t agree, and then rely on continuing employment as

consideration for the changes

• only used by desperate employers who forgot to provide fresh consideration!!!!

“The requirement of consideration to support an amended

agreement is especially important in the employment context where,

generally, there is inequality of bargaining power between

employees and employers. Some employees may enjoy a measure

of bargaining power when negotiating the terms of prospective

employment, but once they have been hired and are dependent on

the remuneration of the new job, they become more vulnerable.”

[Ontario Court of Appeal]

10

Employees and Consideration (cont’d)

• Consideration must flow from employer, not a third party

• additional tax benefits may not be consideration

• Consideration generally required for policy changes that affect

employees’ remuneration and benefits

• example: removal of frequent flyer benefits

• but consideration generally isn’t required for policy changes that relate to the

manner an employer runs its business (‘management rights’)

• example: health and safety

11

Repairing Employment Contracts

• You must always be able to prove (i.e. in writing) that an employee

received consideration, i.e. something of value, whenever an

employer makes changes to the employee’s (material) terms and

conditions of employment

• “consent” is a poor substitute for fresh consideration

• could be withdrawn

• employee can allege duress

• Some forms of consideration are better than others, i.e. are easier

to prove

• salary increase → ambiguous if given at same time that raises are normally

given

• new incentive plan

• what if it doesn’t pay out?

• what if it is subsequently amended or cancelled?

• ‘Swiss Chalet’ gift certificates are difficult to trace

12

Best Practice → Signing Bonuses

• Preferably by way of cheque

• Redemption of signing bonus cheque made conditional on

acceptance of fresh contract

• “How big of a signing bonus?”

• Big enough that the cheque doesn’t sit in employee’s desk drawer!

• Big enough to pay for a nice dinner for the employee and his/her spouse!

Thank You

Montréal Ottawa Toronto Hamilton Waterloo Region Calgary Vancouver Beijing Moscow London

Ed Majewski

Tel: 416-862-4422

[email protected]

Overtime Class Action

Update

Hugh Christie

Michael Comartin

Today’s Topics

• Brown v. CIBC – certification refusal on a

‘misclassification’ case upheld on appeal

• Rosen v. BMO Nesbitt Burns – certification order

upheld in a misclassification case

• Baroch v. Canada Cartage – overtime for federal

truckers

• Fulawka v. BNS – settlement process for an “off

the clock” case

15

Brown v. CIBC, 2014 ONCA 677

• Claim alleged improper classification of Analysts

and Investment Advisors

• Misclassification case: i.e. “I was eligible for overtime,

but the defendant’s policy was to treat me as ineligible”

• Certification judge refused certification

• Divisional Court dismissed the appeal

16

Brown v. CIBC, 2014 ONCA 677

• Court of Appeal dismissed the appeal:

• Managers/supervisors are not eligible for overtime

• Employees with similar job titles could have vastly

different levels of autonomy, independence, authority

• Overtime eligibility – i.e. was an IA a manager and

therefore exempt – was not a common issue

• Written policy did not determine eligibility

• Eligibility individualized based on job duties

• Without determining eligibility, little point in determining

other common issues – would not advance litigation

17

Rosen v. BMO Nesbitt Burns, 2013 ONSC 7762

• Another “misclassification” case, different result

• Investment advisors and the managerial &

supervisory exemption

• Certification granted by motions judge

• Any advisors who managed or supervised others

excluded from class

• Motions judge found job descriptions were sufficiently

common to determine overtime eligibility for the

remaining IAs

18

Rosen v. BMO Nesbitt Burns, 2013 ONSC 7762

• Divisional Court refused leave to appeal

• Found this wasn’t like Brown v. CIBC because

of:

• the ‘blanket’ nature of the exemption

• the similarity of the job functions of the class members

• the exclusion of any IAs with supervisory duties

• The Court of Appeal in Brown v. CIBC discussed

these same distinctions – individual assessment

of eligibility vs. ‘blanket’ policies.

19

Baroch v. Canada Cartage, 2015 ONSC 40

• A class action over unpaid overtime for 7800

federally-regulated employees

• Not a ‘misclassification’ case – framed as a case

about improper policies and failure to pay

• Certification judge went to great lengths to

explain how the plaintiffs avoided the problem in

Brown v. CIBC and McCracken (a case about

front-line supervisors)

• A case about improper (or non-existent) policies

20

Baroch v. Canada Cartage, 2015 ONSC 40

• Certification was granted:

• The class was pre-defined to presume overtime

eligibility, therefore not requiring individual assessment

• No proper/effective overtime policy a common issue

• The ‘policy’ or ‘practice’ alleged is that the employer

disregarded overtime entitlement altogether up to 60

hours a week

• Claim of good faith/honesty in respect of overtime

obligations was a common issue

• Claims related to negligence in record-keeping in order

to ensure employees were paid overtime

21

Fulawka v. BNS

• One of the first overtime class actions in Canada

• A claim relating to “off the clock” time

• Alleged to be a systemic practice of unpaid overtime

• Ontario Superior Court of Justice approved

settlement worth approximately $95 million

• Claims permitted back 9-13 years

• Employees have to initiate claims

• Employees can claim overtime without

documentation confirming actual hours

• If BNS disagrees, arbitration process is used to

determine entitlement

22

Lessons from the Recent Cases

• Having a ‘blanket’ overtime policy is risky, but so

is having no policy at all

• Misclassification continues to be more difficult

to certify than ‘off the clock’

• Individualized overtime eligibility is best practice

• When dealing with ‘pre-approval’ of overtime, be

careful that your policies don’t suggest you

won’t pay for overtime that isn’t pre-approved.

• Failure to obtain pre-approval may be grounds for

discipline, but is not grounds to deny payment

23

Thank You

montréal ottawa toronto hamilton waterloo region calgary vancouver beijing moscow london

Michael Comartin

Tel: 416-862-4321

[email protected]

Hugh Christie

Tel: 416- 69-7265

[email protected]

The Pay Equity Act and the Pay

Equity Commission’s Ongoing

Requirements regarding Pay

Equity “Maintenance”

Allen V. Craig

What is Pay Equity?

• The Pay Equity Act came into effect January 1, 1988 in an effort to

purportedly correct the part of the wage gap between men’s and

women’s wages that is due to undervaluing, and lower pay, of work

mainly done by women.

• Pay equity is equal pay for work of equal or comparable value. It

involves comparing jobs usually done by women with different jobs

usually done by men in the same establishment of an employer. If a

female job class is of equal or comparable value to a male job class in

the organization, the female job class must be paid at least as much as

the male job class.

• Pay Equity is not the same as equal pay for equal work, which means

that if a woman and a man are doing substantially the same jobs for

the same organization or company, they must receive the same wage

unless the difference in pay is due to differences such as seniority or

merit.

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The Pay Equity Act’s Mandate

• The Act applies to all employers in Ontario who have 10 or more

employees. Employers starting up new businesses with 10 or more

employees, or who grow to 10 or more employees, must immediately

include pay equity in their compensation (wage and benefit) practices.

• There are different pay equity plan posting and pay adjustment

obligations depending on the number of employees in an organization

in Ontario.

27

Employer Size in 1987 Posting Date of Pay Equity Plans First Pay Equity Adjustment

500+ employees/

public sector

January 1, 1990 January 1, 1991

100 to 499 employees January 1, 1991 January 1, 1992



The Pay Equity Act’s Mandate

• Employers with 10 to 99 employees chose whether or

not to post a plan. Posting a plan allowed these

employers to phase in pay equity adjustments at one

per cent of the previous year’s payroll per year.

Those who chose not to post a pay equity plan had

to make all adjustments on the first pay equity

adjustment date and should have posted a Notice of

Requirement to Achieve and Maintain Pay Equity in

the workplace.

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An Employer’s Responsibility to Maintain Pay Equity

• Employers have an ongoing responsibility not only

to achieve but to maintain compensation practices

which provide for pay equity.

• The Pay Equity Commission has taken the position

that employers should have a maintenance

committee in place for each pay equity plan and that

this committee should be reviewing the gender-

neutral job comparison system on an annual basis.

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Maintenance Checklist

1. Monitor regularly

temporary skills shortage

other permissible differences

2. Monitor when specific events occur:

adjustments to salaries

settlement of a collective agreement

change in value of female or male job class

vanishing job classes

changes to the representative group of male job classes

changes in the gender predominance of jobs

newly created jobs.

3. Monitor every two to three years:

has the job comparison or evaluation system been reviewed to ensure that it is consistent with what is currently known

about gender-neutrality?

30

The “Random” Selection of Employers for Compliance

Audit Review

• The review audit process has in the past and will

continue in the future to target Ontario businesses

on a sector as well as regional basis to ensure

employers are achieving and maintaining

compensation practices that comply with pay equity

legislation.

31

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The Pay Equity Commission’s Review & Monitoring of Employers

• Under the auspices of determining how effective the pay equity legislation has been in moving organizations to more equitable compensation practices, the Pay Equity Commission has initiated a number of programs to determine the extent of gender wage gaps in private sector Ontario workplaces.

• For example:

- “Gender Wage Gap Program 2011” initially targeted employers within the Province of Ontario who employ

200 or more employees.

- Gender Wage Gap Program follow-up 2014 - targeted employers that the Pay Equity Commission “believed” required further scrutiny from a compliance with the Pay Equity Act perspective.

...cont’d

33

The Pay Equity Commission’s Review & Monitoring of

Employers (...cont’d)

- 2014 Blitz – 14,000 notices/enquiries sent to employers in business for less than 3 years.

The above Commission initiatives are in addition to ongoing random geographical/industry targeted reviews as well as employee complaints.

34

Employer Considerations & Cautions to be Taken into Account in

Responding to a Pay Equity Enquiry

• Respond!

• The consequences of failure to do so are severe and include the issuing of an Order, retroactivity and interest where applicable

• Loose lips sink ships

- Simply answer the questions and provide only the information as requested of you

- Do not embellish or broaden the nature of your business or undertaking

….cont’d

35

Employer Considerations & Cautions to be Taken into Account in

Responding to a Pay Equity Enquiry (cont’d)

• Ensure any comments or materials to be made available to the Commission are vetted by counsel or consultants that have experience in the Pay Equity Act as well as involvement with the Commission and its Officers

• PROBE - QUESTION

- Do not hesitate to probe or question a 3rd party you may have

engaged to work with you!

- More accurate and cost saving results can often be achieved

through further dialogue.

montréal ottawa toronto hamilton waterloo region calgary vancouver moscow london

Thank You

Allen V. Craig

Tel: (416) 369-7343

Email: [email protected]

Confidentiality Clauses in

Settlement Agreements

By Michael Watson

A sad and sobering case study

38

The Settlement of Lawsuits

• Most lawsuits settle and never proceed to trial

(maybe 95%?)

• Let’s talk about employment lawsuits:

wrongful dismissal;

human rights violations;

defamation;

breach of fiduciary duty, restrictive covenant

agreements

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• Other terms of settlement:

Lawsuit is dismissed or discontinued on consent.

Defendant grumbles, but often pays some costs to

plaintiff.

Parties exchange mutual releases.

Non-disparagement covenants.

• Usual terms of settlement:

Defendant pays money (a lot more than it thinks it

should)

Plaintiff gets money (a lot less than s/he thinks is fair)

The Settlement of Lawsuits

40

The confidentiality clause

… a confidentiality clause, such as the following:

And …

The parties agree that they will keep all of the terms and provisions

of this Settlement Agreement, and of the settlement that is the

subject of this Agreement, strictly confidential to themselves, and

that they will not disclose any such terms or provisions, including

the fact that any money is payable or paid in connection with the

Action, to any other person or entity, except that the parties may

disclose only (i) the fact that the Action has been settled, and (ii)

any information that is required to be disclosed pursuant to any

legal or financial or other reporting obligations of such parties.

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• Well, let’s find out.

• But what happens if one of the parties (almost

always the recipient of the settlement

payment) breaches the confidentiality clause

and blabs about the settlement?

The confidentiality clause

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The Jan Wong Case

Jan Wong v. The Globe and Mail

• The facts are sad and sobering:

The Globe fired Wong many months after she said that

she had fallen into a depression caused by a public

vilification that resulted from an article that she had

written many years ago. This was the so-called

“Dawson College” controversy.

The union grieved her dismissal.

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In September 2008, after months of back-and-forth

discussions on the terms, the parties (and Ms Wong,

who as the unionized employee was not herself a party

to the grievance) agreed to a settlement under a

Memorandum of Understanding (MOU).

The MOU provided for a substantial payment to Wong

(more than $200,000).

The MOU also contained the following confidentiality

provision:

With the exception of paragraph 5, the parties agree not to

disclose the terms of this settlement ... to anyone other

than their legal or financial advisors ... and the Grievor's

immediate family.

The Jan Wong Case

44

In addition to that confidentiality term, the MOU had the

following enforcement provision:

8. Should the Grievor breach the obligations set out in

paragraph 5 and 6 above, Arbitrator Davie shall remain

seized to determine if there is a breach and, if she so finds,

the Grievor will have an obligation to pay back to the

Employer all payments paid to the Grievor under

paragraph 3.

[emphasis added]

The Jan Wong Case

45

Wong subsequently wrote a book (“Out of the Blue”,

which received a lot of press coverage at the time) in

which among other things she wrote:

o "… I can't disclose the amount of money I received.”

(Page 235)

o "I'd just been paid a pile of money to go away...”

(Page 249)

o "Two weeks later a big fat check landed in my

account.” (Page 236)

o "Even with a vastly swollen bank account…”

(Page 237)

The Jan Wong Case

46

• The Globe said that these statements by Wong

constituted a breach of the settlement

agreement, even though Wong had not

disclosed the precise amount that the Globe

had paid to her.

The Jan Wong Case

The Globe and Mail was …

unhappy.

47

• Arbitrator Davie heard extensive evidence,

and rejected the union’s submissions that:

Wong had not breached the MOU because she had not

disclosed the amount of the payment; and

in any event the remedy provided in paragraph 8 was

unconscionable, and amounted to an unenforceable

penalty.

• In a July 3, 2013 award, the arbitrator therefore

ordered Wong to repay the full settlement

amount to the Globe and Mail.

The Jan Wong Case

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• Wong then sought judicial review of the

arbitral award.

I cannot find any fault in the Arbitrator’s conclusion

… in fact, it is hard to see how the Arbitrator could

have concluded otherwise.

The Jan Wong Case

• In November 2014, a unanimous three-judge

panel of the Divisional Court dismissed her

judicial review application, and upheld the

arbitrator’s award, writing:

49

Lessons to be learned

What to take from this case?

1. Confidentiality provisions in a settlement

agreement are important. There is no

“standard” provision. The wording has to

be carefully considered.

2. As important as the confidentiality

provision itself is the presence – or absence

– of an enforcement mechanism; in other

words, “what happens if you breach this

term” language.

50

Lessons to be learned

Finally:

There is no such thing as

“boilerplate” language in any legal

document.

This applies to settlement terms too.

Thank You


Michael Watson

Tel: 416-369-7245


Two Steps Forward, One Step Back:

Disability Accommodation in the

Workplace

Melanie Polowin

Our Story Begins ….

• Talk2Me Inc. is a small translation services company with 30 employees

in its Vancouver office. John was hired in 2011 into its 5-person French

translation group. He was a decent, reasonably cheerful guy (though not

a star) until the summer of 2014.

• Then he started missing work for migraines – on average, almost 1.5

days a week in June, July and August. Even when at work, he was not

functioning as well – he was irritable, less productive, and “negative”. In

early September 2014, John went on STD for 4 weeks.

• Since returning, the migraines persist – he is missing fewer days but still

a fair amount, and his productivity and “downer” attitude remain a

problem. John’s doctor is still trying to diagnose the problem.

53

STOP!

D. Don’t play doctor, do play defence

R. Request up to date medical information/clarification

O. Options – canvas, identify, consider, assess, prioritize, test

P. Participation – this is a co-operative, collaborative TEAM SPORT!

and

R. Rinse and repeat

O. Observe and adjust

L. Log and document at every step

Reflex and rigidity are the main enemies of accommodation!

54

Accommodation and disability management:

• is an active process….not a static event or series of events

• is a marathon…not a sprint

• is a shared responsibility amongst management, co-workers and the

individual

• requires individualized assessment

• requires periodic review and reassessment

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• Be proactive with general planning and preparation

• bona fide reasonable job requirements, rules and policies

• effective accommodation policies/guidelines/protocols

• on-boarding and ongoing training for managers and supervisors

• on-boarding and ongoing employee education

• Acknowledge and accept that there is a positive duty to accommodate

• Never dismiss requests out of hand!

• be sensitive and flexible when dealing with specific problems

• engage in ongoing collaborative dialogue with employee re needs

• assess based on actual merits/circumstances of individual’s situation

56

• Recently, John met with Sunny, the Human Resources Manager. He

asked for the next several weeks to try modified work arrangements

suggested by his doctor – a flexible reduced workweek and some

changes to his physical surroundings (special lighting; relocating to a

quieter work station).

• Later the same day, John’s supervisor, Marla:

• told Sunny she was fed up with John’s unreliability and reduced productivity

• flatly refused to consider implementing any of John’s requested modifications, saying “John is fine, he is simply milking the system”

• said her group couldn’t function properly if Talk2Me grants John’s requests –as it is, they are frustrated because their burden increases every time John is away.

• What Marla really wanted to know was: how soon can Talk2Me

terminate John?

57

STOP!

Rushing to the finish line is a fatal error!




58

Recap: jurisdiction – which laws apply?

Which laws apply?

• generally (everywhere except Quebec), the employee/worker

relationship is governed by the common law of the province where the

employee/worker primarily works (in Quebec, the Civil Code applies)

• for provincially regulated employers, the human rights and other relevant

legislation of the province where the employee/worker primarily works

will apply

• for federally regulated employers, the Canadian Human Rights Act and

other relevant federal legislation will apply, but the province where the

employee/worker primarily works will be a factor when dealing with

accommodation in the context of workers compensation issues

59

Recap: what does “disability” mean?

• Inconsistent definitions/scope of “disability” or “handicap” across

Canada

• Very broad concept that covers injuries, illnesses, diseases,

impairments and conditions (permanent or temporary) that are more

than transient:

• past or present or perceived/presumed (even if not actual)

• regardless of cause/source, even if self-inflicted (drugs, obesity) or

unrelated to workplace

• visible or not, physical, mental, emotional and learning

• includes addictions, environmental sensitivities and severe allergies

60

Recap: disability accommodation triggers

Obligations can arise under:

• general statutes ( e.g., human rights, health and safety, workers compensation)

• dedicated legislation (e.g. Accessibility for Ontarians with Disabilities Act, 2005)

Common disability accommodation triggers include:

• self-evident (wheelchair) or self-disclosed disabilities

• observable indicators of workplace problems (performance or attendance issues, visible signs of distress or impairment)

• all medical notes/requests for leave and/or accommodation

Employers cannot be willfully blind.

Objective signs can trigger a duty to inquire.

61

Accommodation: threshold test

Does the situation meet threshold requirements for accommodation?

• employee/candidate has a “disability”

• reasonable grounds to believe that he/she suffers or could suffer some

adverse treatment or effect as a result of employer’s requirements or

(in)actions

• the disability does or will play any role in the adverse treatment or effect

• employer knows (or ought to know) accommodation is requested or

required

62

Accommodation: what next?

The onus then switches to the employer to make a sincere and provable

effort to consider accommodation options and to (as applicable):

• prove any bona fide occupational requirements (BFOR)

• provide reasonable accommodation options if feasible

• make a meaningful effort to implement its preferred option

• demonstrate flexibility re other feasible options if need be

• otherwise: prove that the disability cannot be accommodated without

undue hardship

63

Dual obligations

Accommodation has a procedural aspect and a substantive aspect and the

employer must demonstrate compliance with both aspects:

• procedurally – obtain necessary medical information and properly

investigate any available options

• substantively – take reasonable steps to implement necessary

modifications, and to try different alternatives, up to the point of undue

hardship

If you are provincially regulated, mere failure to follow proper

accommodation process will= breach, even if undue hardship exists (note

an emerging federal vs. provincial schism on this point)

Reflex and rigidity are the main enemies of accommodation!

64

The key question to be answered is this: ultimately, can this employee,

with reasonable accommodation (and without causing the employer

undue hardship), still perform (or resume performing) the essential

elements of his/her position?

However, you cannot answer the key question unless/until you know:

• what are the essential elements of the position?

• what are the limitations imposed by the disability (nature, scope,

duration, frequency) …and are those changing over time?

• what accommodations are medically required (vs. recommended vs.

desired) …and are those changing over time?

65

Key question

Requesting information

What information can and should Talk2Me reasonably request?

• prognosis (yes) vs. diagnosis (generally, no)

• nature and effect on job performance and attendance

• likely duration/recurrence

• restrictions/limitations/accommodations (scope, necessity, duration)

• treatment/medications if they may affect job performance and

attendance

• other information if relevant, reasonable and truly necessary to enable

properly informed assessment of options• specialist/outside expert

• independent medicals

• requires balancing privacy vs. relevance and utility of information

• requires dialogue/collaboration/controlled sharing of information

“Help us understand; help us help you.”

66

• Sunny did some arm-twisting, and persuaded Marla to let John try all of

the modified workplace arrangements for 8 weeks.

• Sunny gave John a letter to give his doctor, outlining the truly essential

tasks/requirements of his job, and asked John to provide additional

information from his doctor within the next month.

• Marla and her team were still not happy – John noticed increasing

hostility.

67

STOP!





68

• 3 weeks into the new arrangement, John brought Sunny his doctor’s

letter, advising tests had revealed a brain tumour.

• John would need an operation, at least 3 months of rehabilitative

therapy, and possibly radiation or chemo.

• John would need to apply for disability leave starting next month, when

his surgery was scheduled.

• With John’s permission, Sunny shared this news with the CEO and

Marla.

• While Marla now grudgingly conceded John was not faking all along,

she asked to fill John’s position as soon as he started his leave.

69

Accommodating the absent employee

• Accommodation is a marathon…not a sprint

• Providing disability benefits is not a substitute for accommodation and

does not, in itself, satisfy or excuse the duty to accommodate

• Keep communication lines open during the absence (“you are still on

the team”) (but be sensitive to optics)

• Request updates at reasonable intervals (but be sensitive to timing)

• Be cautious and sensitive to the risk when backfilling the absent

employee’s position (interim solutions help control risks)

70

• John had his surgery, started STD, but his rehabilitation was much

slower than initially expected.

• His doctors confirmed John had residual cognitive impairment – he

would require speech and other rehabilitative therapy before he could

be expected to return to gainful employment.

• After 6 months on STD leave, John was approved for LTD benefits for

at least 3 months.

• Marla had a temporary employee filling in for John until this point – she

now wants to hire that temp employee (who has outperformed John

from day one) on a permanent basis.

71

• After 3 months on LTD, an updated doctor’s report advised that John

would not be able to return to work for at least another 12 months.

• After hearing that, Marla hired the temp permanently – currently no

open position is available in Marla’s translation group.

• By now, John has been absent from work on STD and LTD for just

over 18 months.

• Talk2Me has just learned that John’s LTD benefits are about to be

terminated because....

72

(UN) HAPPY (?) ENDING NO. 1

…… he has reached the “change of definition” date under the LTD policy.

• The insurer says John is not disabled from “any occupation”, though

based on medical reports he is permanently disabled from his “own

occupation” – so, John is no longer entitled to continued LTD benefits.

• John can’t afford to stay off work without benefits, so he tells Talk2Me he

wants to come back to work.

• Marla is emphatic that she has no job for John. Furthermore, the

company has been struggling a bit financially lately.

• Talk2Me asks: now what?

73

(UN) HAPPY (?) ENDING NO. 2

…… he has recovered sufficiently to return to work (RTW).

• His doctor says John is no longer disabled from his “own occupation”

and can start a work-hardening RTW program next week.

• Marla is emphatic that she has no job for John. Furthermore, the

company has been struggling a bit financially lately.

• Talk2Me asks: now what?

74

STOP!





and

R. Rinse and repeat



75

• Denial of disability benefits end of disability

• Re-engaging the active accommodation process

• reinstatement obligations

• evaluating changed circumstances

• confirming fitness for RTW if necessary/reasonable

• Frustration of contract/undue hardship

• any reasonable likelihood of returning to work in reasonably

foreseeable future?

• if so, ultimately, can this employee, with reasonable

accommodation, resume performing the essential elements of

his/her position?

• note an emerging federal vs. provincial schism as to whether

frustration can apply when the disability is work-related

76

Cut-off of disability benefits: what does it mean?

Undue hardship

What constitutes undue hardship?

• falls on spectrum: > inconvenient but < practically impossible

• requires a contextual assessment (considers both employer’s and

employee’s circumstances)

• assessment must be individualized, based on actual (not speculative

or assumed) circumstances and evidence

• Ontario Human Rights Code factors to consider:

• cost/outside sources of funding

• health and safety

77

(Not) Undue hardship

What is(n’t) considered undue hardship?

• speculative “floodgates” fears

• employee morale (resentful co-workers)

• effect on rights of other employees (burdening others)

• inconvenience/nuisance/annoyance

• some reasonable level of disruption of the workplace and/or collective

agreement

78

STOP!





and

R. Rinse and repeat



79

Summary: employee’s obligations

Employee obligations in accommodation process:

1. communicate in a timely way

2. generally, advise employer of need for accommodation

3. provide employer with sufficient information

4. consider all reasonable suggestions/alternatives for accommodation

(not just employee’s preference)

5. allow employer reasonable time to test alternatives and adjust

6. co-operate with employer

7. facilitate implementation of accommodation

8. advise employer if/as needs change

9. accept reasonable (not perfect) accommodation

80

Summary: employer’s obligations

Employer obligations in accommodation process:

1. determine if employee requires accommodation

2. meaningfully consider possible accommodations, including employee

suggestions

3. discuss options with employee

4. respond within reasonable time

5. maintain confidentiality to the extent feasible

6. request necessary information/updates

7. explain which accommodations are impossible, why, and what

alternatives are offered

8. implement and follow-up

9. modify accommodations and adjust if/as required

81

The final word

• Right or wrong, fair or not, accommodation is a heavy and mandatory

burden with significant financial and reputational risks

• Make it a priority to implement and enforce strong policies, frequent and

effective training, and meaningful protocols… then follow your policies

and protocols

• Take every request for accommodation seriously and ensure requests

are directed to the right people with the right skills to deal with them

properly

• Your efforts must be sincere and demonstrable

• Be careful, reasonable, flexible, fair... and try to be/stay compassionate

Someday... your turn may come.

82

Resources

83

OHRC Policy on preventing discrimination based on mental health disabilities and

addictions

http://www.ohrc.on.ca/en/policy-preventing-discrimination-based-mental-health-disabilities-

and-addictions

CHRC Accommodation Works!

http://www.chrc-

ccdp.ca/sites/default/files/accommodation_works_application_manual_format.pdf

http://www.chrc-ccdp.gc.ca/fitness2work/index.html

OHRC Policy and guidelines on disability and the duty to accommodate

http://www.ohrc.on.ca/en/policy-and-guidelines-disability-and-duty-accommodate

OHRC E-learning re AODA

http://www.ohrc.on.ca/en/learning/working-together-code-and-aoda

http://www.ohrc.on.ca/en/policy-preventing-discrimination-based-mental-health-disabilities-and-addictions



http://www.ohrc.on.ca/en/policy-and-guidelines-disability-and-duty-accommodate

http://www.ohrc.on.ca/en/learning/working-together-code-and-aoda

Thank You


Melanie Polowin

Tel: 613-786-0244

[email protected]

Accessibility for Ontarians

with Disabilities Act (AODA)

Update

Michael Comartin

AODA

• Several different standards/regulations under

AODA

• Two that will apply to almost every employer

here:

• Customer Service Standard

• Business to business counts!

• Not our topic today

• Integrated Accessibility Standard

• Employment

• Covers other topics (like communication)

86

New Employment Accessibility Standards

• Up until recently, most of the AODA compliance

issues have related to customer service

• Only recently have employment standards under

Integrated Accessibility Standards (“IAS”)

started to apply

• S. 27 – Workplace Emergency Response Information

has applied in all workplaces since 2012.

87

New Standards

• For most of these standards, compliance date is:

• Jan 1, 2016, for large (>=50 employee) employers

• Jan 1, 2017, for small (<50 employee) employers

• For government/public sector, already in force

• For employers with professional HR and well-

developed policies and practices, small changes

• For employers without such policies and

practices, this could be a wake-up call

• 10 new standards coming into force

88

New Standards

• S. 22 – Recruitment

• S. 23 – Recruitment, Assessment or Selection

Process

• S. 24 – Notice to Successful Applicants

• S. 25 – Informing Employees of Supports

• S. 26 – Accessible Formats and Communication

Supports for Employees

89

New Standards

• S. 28 – Documented Individual Accommodation

Plans

• S. 29 – Return to Work Process

• S. 30 – Performance Management

• S. 31 – Career Development and Advancement

• S. 32 – Redeployment

90

S. 22 – Recruitment General

• Must inform employees and the public about the

availability of accommodation for applicants with

disabilities in recruitment process

• Examples:

• Use website to inform the public and potential

applicants about the availability of recruitment-related

accommodations

• Intranet/policies/handbooks for internal applicants

• Similar to advertising ‘equal opportunity’

employment and inviting applications from

historically disadvantaged groups

91

S. 23 – Recruitment, Assessment or Selection Process

• During recruitment process, must notify job

applicants who are selected to participate in an

assessment or selection process, that

accommodations are available in relation to the

materials or processes to be used

• If requested, consult and arrange a suitable

accommodation in relation to the assessment

• Examples:

• Have written tests available in large print

• Offer oral testing or online testing in accessible format

92

S. 24 – Notice to Successful Applicants

• When making offers of employment, notify the

successful applicant of your policies for

accommodating employees with disabilities

• Can do this any number of ways – on the phone,

in person, by email, or including in the offer

letter

• Best practice: update offer letters to include

references to policies, relevant handbook

sections, or other information on accessibility

policies and practices.

93

S. 25 – Informing Employees of Supports

• Similar to the requirement for new hires, but

applies to all employees including existing

• Must provide information (in accessible formats)

to employees on policies used to support

employees with disabilities and job

accommodations

• Can do this a number of ways:

• Meetings/orientation/scheduled training

• Email or letter

• Website/intranet

• Must inform employees of updates to policies

94

S. 26 – Accessible Formats & Communication Supports

for Employees

• Need to provide two kinds of information to

employees in accessible formats:

• Information needed to perform the job

• Information available to all employees generally

• Builds on the obligation under s. 12 of IAS

(Communication) requiring that employers

provide information in accessible formats upon

request

• Applies upon request by employee

• Format should be as individualized as required

95

S. 28 – Documented Individual Accommodation Plans

• Public sector + large (>=50 employees) only

• Must develop a written process for creating

documented individual accommodation plans

• 10 elements that must be included under s. 28(2)

– e.g. manner in which the employee can

participate in development, how individual

assessment is made, union participation, etc.

• Must start using a written, individualized

accommodation plan. Must keep up to date.

• Likely overlaps OHRC-facing policies already in

place

96

S. 29 – Return to Work Process

• Public sector + large (>=50 employees) only

• Must develop a return to work process and

document the process

• This process must:

• Outline the steps the employer will take to facilitate the

return to work

• Use individual documented accommodation plans as

part of the process

• Does NOT apply if the return to work is governed

by Worker’s Compensation (WSIAT would apply)

• Applies even to return from temporary disability

97

S. 30 – Performance Management

• Any performance management system must take

into account accessibility needs of employees

• This includes making information on

performance management accessible

• Similar obligation to what OHRC would require:

• Performance expectations must be consistent with the

disability-related needs or accommodations

• Feedback and coaching must be consistent with same

• Take into account any Individualized Accommodation

Plan

98

S. 31 – Career Development and Assessment

• Must take into account the accessibility needs of

employees, and any individual plans, when

providing career development and advancement

• Includes promotions, lateral moves, changes in duties

• Must account for disability needs:

• E.g. if an employee with an individualized plan

changes jobs, update the plan, ensure the new job or

workspace has appropriate accommodations

• Over-arching purpose appears to be ensuring

that promotions and job changes are based on

seniority and merit, and not lack of accessibility

99

S. 32 - Redeployment

• Refers to when employees are re-assigned

within the organization (to avoid layoff)

• Accessibility needs must be taken into account

(as they would be for promotion or other

changes in job duties or workspace)

• Individualized accommodation plans and

available supports should be adjusted

100

The Bigger Picture

• Read the IAS and available government

interpretation

• Not aware of any ‘enforcement’ measures yet

• Many of the “best practices” we would all want

to use to protect against disability-related human

rights complaints, are now legislated standards

• Remember to keep up to date in policies and

individualized accessibility plans

101

Thank You


Michael Comartin

Tel: 416-862-4321

[email protected]

Top 10 Developments in Employment,

Labour and Human Rights Law

Allen Craig

Michael Watson

Ailsa Wiggins

1. McConaghie v. Systemgroup Consulting Inc.2015 ONSC 2213

• IT company sponsored customer appreciation ski day for men only.

• Event pamphlet:

• “Men’s Day 2012”

• “A day for Men without Women and Children” & “Bring your friends, bring your

acquaintances, just don’t bring your wife!”

• Activities included: “massage” and “Hooters Girls”

• Applicant was female Director, Business Development – her (male)

clients were invited, she was not.

• Applicant raised her concerns about the event with her superior

and the CEO. Neither found the event inappropriate.

• After complaint, Applicant was excluded from meetings and

networking opportunities and was eventually terminated.

104

The Decision

The HRTO found Discrimination:

• “Men’s Day” discriminated against the Applicant on the basis of sex

• Deprived Applicant of an equal opportunity to develop client

relationships

• Compounded the disadvantage she faced in what was already a male-

dominated industry

• Also found Reprisal:

• Respondent argued that Applicant’s termination was for performance

reasons

• HRTO found that Applicant’s termination, and her treatment leading

up to termination, constituted reprisal for complaining about Men’s

Day

105

The Decision

The Human Rights Tribunal Awarded:

• $150 for the lost value of attending “Men’s Day” (value of ticket to

attend);

• Lost wages from her termination date until she found alternate

employment (~ 7 months);

• $18,000 as compensation for injury to dignity, feelings and self-

respect, including

• $3,000 for being excluded from event, and

• $15,000 for reprisal

106

The Appeal

• The employer appealed the wage award of 7 months arguing that

her employment agreement limited her to 4 weeks’ notice.

• The Divisional Court found that the HRTO has broad remedial

powers not limited to common law claims, and upheld the award.

Why it Matters

Employers should be careful about sponsoring or running events.

• Be cautious about events that are limited to groups identified on

protected grounds (race, sex, religion etc.) and that may not be

accessible to persons with disabilities.

Employers should keep good detailed records of employee

performance.

• Without data, it can be difficult to prove that a termination decision

was justified based on performance.

Remember that the HRTO has the power to impose all sorts of

remedies, and are not limited by the common law.

108

2. Thompson v. Cardel Homes Limited Partnership2014 ABCA 242

• The employee and employer entered into a fixed term employment

agreement. Termination options included:

• That the term would expire with no renewal and no further pay owing to the

employee; or

• That the agreement could be terminated early by the employer if they

provided the employee with 12 months pay in lieu of notice.

109

2. Thompson v. Cardel Homes Limited Partnership2014 ABCA 242

• Employer chose not to renew the agreement and provided one

month’s notice to the employee.

• At the time the notice was provided, employer also asked employee

not to return to work and to return all company property.

• Employer reassigned employee’s duties, advised others outside the

company that employee was no longer with the company, removed

email access, but assured him he would be paid for the final month

of the agreement.

• Employee argued this amounted to early termination of agreement

and that he was entitled to the 12 month payment.

110

The Decision

• Employer’s actions constituted a termination:

• Employee not permitted to continue employment;

• Not permitted to discharge duties or exercise powers;

• Duties and powers assumed by another;

• Not allowed to come to the office.

• The notice was more than a message of non-renewal.

• Facts supported finding of constructive dismissal.

• Contracts of employment are mutual contracts – both parties must

agree to a change in terms.

111

Why it Matters

This Appeal level decision reminds us that:

• Employers should be careful with fixed-term agreements:

• Risks associated with obligations to pay duration of fixed-term

upon early termination;

• Risks associated with keeping someone on during advance

notice of non-renewal, but also with sending them home.

• Reminder that unilateral changes to an employment

agreement can result in finding of constructive

dismissal/termination.

112

3. Bhasin v. Hrynew2014 SCC 71

113

• Can-Am Financial Corp. marketed education savings plans to

investors through dealers.

• Plaintiff Bhasin had a three-year contract– automatically renewable

unless 6 months’ notice was given – to market Can-Am’s plans.

• Hrynew was a dealer who competed with Bhasin and wanted to take

over his lucrative niche market.

• Bhasin refused offers to merge with Hrynew.

• Can-Am then repeatedly misled Bhasin and went around him,

eventually appointing Hrynew to monitor all dealers for compliance

with securities laws.

3. Bhasin v. Hrynew2014 SCC 71

114

• At that point, Hrynew had authority and responsibility to audit

dealers, including Bhasin, and to review their business records.

• Bhasin objected to having Hrynew, a competitor, review his

confidential business records, and refused access.

• Can-Am then gave notice of non-renewal of its contract with

Bhasin.

• Bhasin lost the value in his business – majority of sales agents

solicited to work for Hrynew at the end of his contract term.

• Bhasin sued both Can-Am and Hrynew, for (i) breach of contract,

and (ii) inducing breach of contract.

The Decision

115

• Bhasin won against Can-Am, lost against Hrynew.

• Decision: Good faith in contractual performance is a general

organizing principle of contract law.

• Parties must perform contractual duties honestly and reasonably.

• Not a new cause of action, but a doctrine that already exists, underpinning

legal doctrines. May be given different weight in different situations.

• Newly stated common law duty: honesty in contractual

performance.

• Applies to all types of contracts.

• Parties must be honest with each other regarding the performance of

contractual obligations.

• Failure to fulfil duty may constitute breach of contract and damages.

• Court preserved the right and freedom to pursue

individual self-interest.

Why it Matters

116

• This case will have an impact on employment, contractor

relationships: a new (or at least more universal) duty of honesty in

contractual performance.

• New decisions will continue to define this new common law

obligation – impacts remain to be seen.

• Employers should be wary of withholding information from

employees in some cases: terminations, performance issues,

business reorganizations

• Also risks associated with disclosing information to employees.

4. Wilson v. Atomic Energy2015 FCA 17

Context:

• Section 240 of Canada Labour Code (“CLC”) provides terminated

employees with right to make unjust dismissal complaint.

• Section 242 provides remedies for unjust dismissal, including

compensation or reinstatement.

• Prior to this case, some decisions took the position that all

dismissals under the CLC were “unjust” if they were not “for

cause”.

• This left employers who terminated “without cause” vulnerable to a

potential order to reinstate terminated employees (with back pay!).

117

4. Wilson v. Atomic Energy2015 FCA 17

• In Wilson, a “procurement supervisor” was terminated with 6

months’ severance pay after 4.5 years of employment. His statutory

entitlements would have been 18 days.

• Question arising out of adjudicator and Federal Court decisions

was:

Are all terminations without cause under CLC “unjust” and subject

to section 242 remedies, or can employers to terminate employees

properly without cause?

118

The Decision

• Federal Court of Appeal: without cause dismissals are not

automatically “unjust” pursuant to the CLC.

• There is no “right to a job in the sense that any dismissal without

cause is automatically unjust”.

• The CLC dismissal provisions can co-exist with the common law

doctrine of reasonable notice.

• Adjudicators must examine the specific facts of each case to

determine whether dismissal was unjust in the circumstances.

119

Why it Matters

• After Wilson, the CLC does provide allowance for “without cause”

terminations.

• Not all “without cause” dismissals will necessarily be “unjust

dismissals” under CLC with risk of reinstatement upon complaint.

• However, the CLC unjust dismissal provisions still stand, so to

protect against unjust dismissal claims, employers should (for

without cause dismissals):

• Provide adequate notice based on common law/employment agreement; and

• Treat employees fairly throughout dismissal process.

120

5. Paquette v. Quadraspec Inc.[2014] 121 OR 3d 765 (ONSC)

• Employee of approximately 23 years was dismissed without cause.

In addition to his salary, he earned benefits and commissions.

• He had worked at company’s Ontario location.

• Employment agreement provided for pay in lieu of notice of base

salary only, and did not reference benefits or commissions.

• At the time of termination, the Ontario payroll of the company was

$1.5M. Quebec payroll was over $3M.

121

5. Paquette v. Quadraspec Inc.[2014] 121 OR 3d 765 (ONSC)

Employee raised two issues:

1) Is employment agreement void due to termination provision failing

to provide for benefits and commissions; and

2) Was he entitled to severance under section 64 of the Employment

Standards Act, 2000 since the employer had a payroll over $2.5M

Canada-wide? Or is severance calculated on Ontario-wide payroll

only?

122

The Decision

1) Employment agreement termination provision found to be void as

it did not provide for benefits or commissions, contrary to the

ESA.

2) Employer must pay severance under section 64 of ESA – payroll

over $2.5M in Canada.

123

Why it Matters

• Termination provisions must be drafted properly and cannot violate

(or be silent on) ESA obligations.

• Unless we hear otherwise from the courts, Ontario employers must

consider entire payroll in determining whether they must pay

severance under section 64 of ESA, not just Ontario payroll.

124

6. Potter v. New Brunswick2015 SCC 10

• Potter was Executive Director of Legal Aid program on a 7 year

appointment.

• 4 years in, employment relationship became strained, Potter went

on medical leave during buy-out discussions.

• One week before Potter was to return to work, placed on paid

suspension “until further direction” while Board recommended to

Minister of Justice that he be terminated for cause.

• 8 weeks into suspension, Potter claimed for constructive dismissal.

Legal Aid argued he resigned upon issuing the claim.

125

The Decision

Supreme Court clarified test for constructive dismissal:

1) Whether employer’s unilateral conduct breached the contract in a

manner that substantially altered the essential terms of the

contract:

a) Did the employer unilaterally breach an express or implied term of the

contract?

b) If so, did the breach substantially alter an essential term of the contract?

2) Did the employer’s conduct evince an intention to no longer be

bound by the contract, from the perspective of a reasonable

person?

Potter found to have been constructively dismissed

126

The Decision

Court also said that employers must follow good faith requirements

that we saw in Bhasin:

• Maintain a basic level of honest and forthright communication with

employees that are being suspended;

• Refrain from acting in secret and stonewalling employees; and

• Demonstrate that a non-disciplinary suspension is reasonable and

justified.

127

Why it Matters

• Employers should not place employees on paid, non-disciplinary

suspension without justification or communication.

• Employers should keep a basic line of communication open with

suspended employees and act in good faith: have legitimate

business reasons for suspensions.

• May want to draft employment agreements that include implied or

express authority to place employees on suspension.

128

7. Recent Changes to the Employment Standards Act,

2000 (ESA)

The Stronger Workplaces for a Stronger Economy Act, 2014, was

passed by the Ontario legislature on November 6, 2014.

The legislation includes the following provisions:

• the $10,000 cap on the recovery of wages has been removed

• the time limit for recovery of wages under the ESA has been

increased from 6 and 12 months to two years

→ these changes apply to unpaid wages that become due after

February 20, 2015

129

Recent Changes to the Employment Standards Act,

Cont’d

• effective May 20, 2015 new subsections are added to section 2 of the ESA

which deals with the posting of information concerning rights and obligations

under the Act.

• a copy of the poster, updated May 1, 2015, must be provided to each new

employee within 30 days of commencing employment. Existing employees

must be provided with copies within 30 days of May 20, 2015.

130

Recent Changes to the Employment Standards Act,

Cont’d

• effective May 20, 2015 the MOL Employment Standards Officers have been

given the authority to require employers to conduct a self audit to determine

compliance with the ESA.

• effective November 20, 2015 the amendment introduces “joint and several

liability” between temporary help agencies and their client employers for

regular wages, overtime pay, public holiday pay and premium pay for working

on a holiday.

131

8. Fernandes v. Peel Educational & Tutorial Services2014 ONSC 6506

• Fernandes was teacher of 10 years. One year, he reported falsified

marks, provided late marks, allowed students to have overdue

assignments, and did not keep record of accurate marks.

• Fernandes was approached about issues with marks on several

occasions by school.

• Fernandes lied to his school about how marks were calculated, how

students were marked, and then admitted to falsifying marks on

students’ records (academic fraud).

• School terminated Fernandes for just cause.

132

8. Fernandes v. Peel Educational & Tutorial Services2014 ONSC 6506

• In addition, Fernandes became disabled days after his termination

(depression, PTSD, hypertension, anxiety, IBS, allergies).

• His condition was caused by the distress of these events,

according to his doctor.

• Fernandes had long term disability coverage until he was

terminated.

133

The Decision

• Fernandes was wrongfully dismissed – “the punishment outweighs

the seriousness of the infraction”.

• Court relied on:

• Fernandes’ positive history with the school leading up to these events,

• The inconsistent testimony of some witnesses regarding fine points related to

the incidents;

• The fact that the fabricated marks were for presentations that were “only part

of the course”, and

• The fact that Fernandes admitted his conduct (although belatedly).

• The defendants could have provided warnings first, especially

given abrupt change in Fernandes’ behaviour.

• Found as a fact that Fernandes was disabled pursuant to the terms

of the disability benefits he would have had as a teacher.

134

The Decision

• Fernandes was 56 when he was terminated, and 62 at the time of

trial.

• Court awarded:

• One year’s salary as reasonable notice;

• Disability benefits until the age of 65, to be determined after submissions by

counsel

• Court declined to award mental distress damages

135

Why it Matters

• “Just cause” terminations are very difficult (impossible?) to argue

successfully, even on egregious facts.

• Courts want to see repeated egregious behaviour patterns, multiple

warnings and chances, and clear communication of consequences

of repeated behaviour.

• Employers should consider terminating without cause in most

circumstances.

• The risks of “getting it wrong” could have costly consequences

where benefit coverage is terminated.

136

9. Scaduto v. Insurance Search Bureau2014 HRTO 250

• Employee terminated without cause due to ongoing performance

issues.

• At the termination meeting, employee stated the he felt his

performance was scrutinized and he was treated differently

because he was gay.

• Employer did not investigate the allegations given that employee

had already been terminated.

• Employee filed complaint to Human Rights Tribunal alleging:

• He had been discriminated against on the grounds of sexual orientation, and

• The employer had failed to investigate his allegations.

137

The Decision

• No discrimination in the workplace.

• No discrimination upon termination.

• Failure to investigate is not a violation in these circumstances.

• Where no discrimination found, the failure of the employer to

conduct an investigation is not, in and of itself, a breach of the

Human Rights Code.

• Applicant’s right to be free from discrimination in his workplace not

infringed by failure to investigate in this case, because he was no

longer there.

138

Why it Matters

• The Tribunal said that employers are well-advised to investigate

human rights complaints as the failure to do so can cause or

exacerbate the harm of discrimination in the workplace – the failure

to do so is at their peril.

• However, a failure to investigate in and of itself will not lead to a

finding of discrimination.

139

10. Diamantopoulos v. KPMG LLP2014 ONSC 1038

• Employee worked for company for 10 years.

• Had been off on STD leave, awaiting LTD decision for stress and

anxiety issues.

• STD benefits expired but KPMG continued to pay her until her LTD

claim was denied.

• She was due to return to work but did not come in or meet with

KPMG. KPMG provided her with a termination letter offering 41

weeks.

140

10. Diamantopoulos v. KPMG LLP2014 ONSC 1038

• Unbeknownst to KPMG, Plaintiff diagnosed/treated for breast

cancer just prior to termination.

• Upon learning this, KPMG changed the severance package offer

and provided STD benefits for additional 3 months, when the

Plaintiff qualified for LTD.

• Plaintiff sued for wrongful termination.

• KPMG argued that the STD and LTD benefits should be deducted

from any reasonable notice awarded.

141

The Decision

• The Court found that the Plaintiff was entitled to 10 months of

reasonable notice.

• The STD benefits (approximately 3 months) were deducted from the

reasonable notice:

• These were fully paid by KPMG, not insured;

• The employee did not make contributions to these benefits.

• The LTD benefits were not deducted from the reasonable notice:

• More similar to private insurance;

• Employee made contributions towards these benefits;

• LTD policy provided that benefits are offset against any employment income.

• There was no duty to mitigate given the Plaintiff’s health.

• No aggravated or punitive damages, which were claimed.

142

Why it Matters

• Self-insured income replacement benefits may be deductible from

reasonable notice awards, but insured benefits will not (especially

where employee contributes to premiums).

• An example of an employer being fair and reasonable, resulting in

no award for additional damages to the Plaintiff despite her medical

problems.

143

Thank You


Allen V. Craig

Tel: (416) 369-7343


Michael S.F. Watson

Tel: (416) 369-7245


Ailsa Wiggins

Tel: 416-369-7260


Q & A

145

Employment and Labour Law Seminar - May 5, 2015

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Transcript of Employment and Labour Law Seminar - May 5, 2015