Gowlings Employment and Labour Law Seminar, February 2014

1

Welcome

go

beyond

borders

innovation

results

value

Legal Implications of Workplace Restructuring

Laura L. Mensch, Partner

3

Legal Implications of Workplace Restructuring

• Economic necessity (downsizing)• Significant re-organization due to

changes in business • Smaller-scale changes to business

affecting only one or a few employees

4

Legal and Other Implications

• Protect legal position

• Fair treatment of employees

• Manage business effectively in a changing economy or altered business environment

5

Employee Reorganization

•Workforce reductions• Changes to employee roles and

compensation • Temporary layoff • Business transactions - Acquiring or eliminating employees- Changes to compensation or benefit

plans

6

Workforce Reductions

•Group or mass terminations• Specific statutory requirements• Common law or contractual requirements• Practical considerations

7

Statutory Requirements

•Vary across provinces

• Minimum statutory notice still applies to

the individual termination but differences across provinces when group terminations

8

Alberta

• Written notice to Minister of Labour of intention to terminate 50 or more employees within a four-week period(four weeks’ notice)

• Number of employees and effective date• Individual statutory notice period not

affected

9

Ontario

•Written notice to Minister of Labour when terminating 50

or more employees within a six-month period •Statutory notice period is increased when terminating

50

or more employees within a four-week period

- 50 to 200 employees – 8 weeks

- 201 – 500 employees - 12 weeks

- 500+ employees – 16 weeks •Statutory severance pay if employee has five or

moreyears of service and the severance occurs because of permanent discontinuance of all of part of the employer’s business at an “establishment” within a six month period

10

British Columbia

• Written notice to Minister of Labour and to each affected employee when

terminating 50 or more employees at a single location within a two-month period

- Number of employees, effective date and reasons for termination • Minister has option to establish an “adjustment committee”

- Employer and employee representatives- Purpose to eliminate need for termination or minimize impact of

termination • Statutory notice of group termination must be given

- 50 to 100 employees – 8 weeks- 101 to 300 employees – 12 weeks- 300+ employees – 16 weeks

• In addition to, and does not include, individual statutory notice, which still

applies

11

Common Law “Reasonable Notice” Requirements

• Still apply to each individual employee affected

by a group termination • Bardal factors

- Age- Length of service- Character of employment- Availability of similar employment

(experience, training, qualifications)

- Not exhaustive

12

Common Law “Reasonable Notice” Requirements – cont.

• Economic circumstances of employer may be

considered when determining the notice period

- Bohemier v. Storwal International Inc. (ONCA, 1983)

- Heinz v. Cana Construction (1987, ABQB)

- Sarton v. Fluor Canada Ltd. (1986, ABCA)

- Sifton v. Wheaton Pontiac Buick GMC (2010, BCSC)

13


• Employer must lead evidence of economic hardship

- Novak v. Fintech Services Ltd. (2001, ABQB)

- Pauloski v. Nascor Inc. (2002, ABQB)- Russell v. Stewart (Winnifred) Association for the Mentally Handicapped (1993, ABQB)

14


•Economic conditions are only one factor•Could also be used to increase length of time

for employee to find new employment

- Wilks v. Moore Dry Kiln Company of Canada Limited (1981, BCSC)

- Ducharme v. Cambridge Stamping Inc. (2008,ONSC)

15

Structuring Group Termination Packages

• Formulaic, despite individual Bardal factors• Employees discuss and look for internal

fairness • Formula should incorporate Bardal factors

- mid-range offers • Must still consider individual circumstances

• E.g. Disability or maternity/parental leave

16

Manner of Compensation

• Working Notice• Severance

- Lump sum

- Salary continuance • Combination of working notice and

severance

17

Working Notice

• Effect on morale and productivity

- absenteeism- “presenteeism”

• Security of employer information • Potential increase of sick leave, disability, WCB

claims • Employer policies still continue to apply

- but difficult to enforce?• Must give reasonable time off for employment

search• Difficult to obtain a release

18

Severance Payments – Elements of Compensation

• Put employee in position as if had been given working notice • Salary• Benefits

• Note Ontario obligation to continue benefits through statutory notice period

• Bonus?• Actively employed

- Stea v. Kulhawy (1996, ABCA)- Poole v. Whirlpool Corporation (2011, ONSC)• Non-discretionary and integral • - Daniels v. Canadian Tire (1991, ONSC) • Commission?• - Farmer v. Foxridge Homes (1994, ABCA)

19

Severance Payments – Salary Continuance

• Employee may be actively at work or not working• Subject to mitigation payment

- e.g. 50% of remainder of salary payments when obtains new employment

• Incentive to look for work• Potential cost reduction to employer•But may require notice at upper end of range (Albach v. Vortek

Industries, 2000 BCSC)• Employer must monitor employee mitigation efforts and

success• Option of discounted lump sum severance or salary

continuance - may reduce costs

• Can obtain release if employee not actively working- no payments until sign release

20

Outplacement Services

• Beneficial to employee

• Useful for employer to argue mitigation

• Offer without requirement for settlement

and release

21

Changing Terms of Employment

• Position and duties • Fixed compensation • Variable compensation (bonus,

commission)• Employee may argue constructive

dismissal

22

Constructive Dismissal

• Employer makes unilateral, substantial change to an

essential term of employee contract

- Employer repudiates the contract • Employee does not agree to change• Employer may argue:

- Change is not substantial change to essential term

- Employee agreed to change; or

- Employee condoned or acquiesced in the change

23

Constructive Dismissal – cont.

• Test is objective• Would a reasonable person in the same situation as

the employee have felt that the essential terms of the employment contract were substantially changed?

• Relevant time is when the change is made, not when it

will affect the employee

- e.g. employee not obliged to wait around and see whether compensation will really be reduced by the change

24

Constructive Dismissal – cont.

• Corporate reorganization typically not a defence•But courts less likely to find constructive termination

in context of more wide-sweeping change• Doran v. Ontario Power Generation Inc. (2007, ONSC)• Kuz v. CIBC Trust Corp. (1998, ABQB)

•Corporation shows changes were designed to preserve overall employment and profitability, especially where change to employment not terribly significant

• Meyers v. Chevron Canada Limited (2013, BCSC)• Still very specific to employee circumstances

25

Changes to Compensation

• 15 - 20% or more is almost certainly a constructive dismissal

• 5 to 10%? • Courts consider overall effect on

compensation

- Doran 14 to 17%

26

Variable Compensation

• Change to fixed or regular compensation likely a constructive dismissal

• Pathak v. Jannock Steel Fabricating Co. (1999, ABCA)

- Elimination of a bonus was fundamental and was a constructive dismissal

• Prozak v. Bell Telephone of Canada (1984, ONCA) and

Conway v. George’s Farm Centre (1986, ABQB)

- Switch from commission to (lower) fixed compensation is a constructive dismissal

27

Variable Compensation – cont.

• But, if the compensation is really intended to vary, and

does vary, likely not a constructive dismissal

- Chapman v. Bank of Nova Scotia (2008, ONCA)• Employer entitled to change terms affecting variable

compensation provided fundamental terms of contract are adhered to

- Haglund v. Clean Harbours Canada Inc. (2008, BCSC)•Modest changes to benefit programs will not amount

of constructive dismissal

- Otto v. Hamilton and Olsen Surveys (1993, ABCA)

28

Employee Condonation or Acquiescence

• Acceptance or remaining in employment for longer than a “reasonable period”

• Wronko v. Western Inventory Services Ltd. (2008, ONCA) suggests employee may remain under protest and still claim full damages

- unique facts - has not been followed in Alberta

29

Employee Obligation to Mitigate with Same Employer

• Applies to actual termination and constructive termination

• Evans v. Teamsters Local Union No. 31 (2008, SCC) • Exceptions:

- Compensation substantially lower- Working conditions substantially different- Work demeaning- Personal relationships acrimonious- Hostile work environment

• Useful in context of corporate reorganization or transaction

30

Lay-Off

• Statutory concept• At common law, depriving a person of work and pay

constitutes constructive dismissal • To avoid constructive dismissal claim:

- Layoff notice must be extremely clear and specific requirements followed

- Vrana v. Procor (2004, ABCA)

- Employment contract must contemplate employer right to lay off

- Turner v. Uniglobe Travel (2005, ABQB)• Useful tool in industries and work environments

where layoff is part of the employment culture

31

Employment Agreements

• Limit notice (subject to statutory compliance)

• Contract out of constructive dismissal

- Magyrosi v. Berg Chilling Systems (ONSC, 2001)

• Contemplate layoff (if appropriate)

Thank You

montréal · ottawa · toronto · hamilton · waterloo region · calgary · vancouver · beijing · moscow · london

go

beyond

borders

innovation

results

value

Cross-Border Employment Law Issues: An Introduction

Paul Edwards

34

Importance of this topic

•Why this topic is important:• Ever-increasing fluidity of workforce• HR professionals may be expected to manage

employees in multiple jurisdictions• Fundamental differences between some legal

regimes• Variations in specific laws and practices

between jurisdictions• Scope for confusion: complexity of “conflicts”

rules

35

Some substantive legal issues affected

Some employment law issues that can be complicated by cross-border movements • Wrongful dismissal• Restrictive covenants• Discrimination• Workers’ compensation• Employment standards• Taxation• Portability of pensions• Stock options

36

An Illustrative Cross-Jurisdictional Wrongful Dismissal Case

Young v. Tyco (Ontario Court of Appeal, 2008)• Employee transferred from Ontario to USA.• Worked in three states over 21 months.• Dismissed for cause by US affiliate.• Would the Ontario courts take jurisdiction?• Why that issue had importance for the parties:

• Indiana laws (employment at will) v. the laws of Ontario

• Location of parties/witnesses

37

Will a court take jurisdiction?

Jurisdiction: Will a court take jurisdiction over a case?

•Contexts in which this question may arise:• Plaintiff makes the initial selection of “forum”.• Service outside the jurisdiction: defendant

applies to set aside service.• Or defendant applies for a “stay” of the action.• Later: Enforcement of “foreign” judgments

38

Jurisdiction: A two-step analysis

•Accepting jurisdiction: Two basic questions

1. Can the Court legitimately assume jurisdiction?

2. If so, is it the most convenient forum to decide the dispute?

39

Real and Substantial Connection

•Jurisdiction Proper (first issue)• The basic test is whether the case has

a “real and substantial connection” with the forum.

40

Young v. Tyco: Real and Substantial Connection

•Young v. Tyco •Facts re Ontario connection were in dispute:

• Had pre-transfer employment contract with Ontario corporation been terminated?

• Had Young been assured that it had not?• Why did he take a temporary L-1A Visa?• Were the US assignments only temporary positions?

•Court: Plaintiff’s version should be accepted as long as it has a reasonable basis on the record.•Held that the Ontario Courts had jurisdiction.

41

Real and Substantial Connection – cont’d

•In Club Resorts v. Van Breda (S.C.C., 2012), a new approach was introduced – that of looking for one or more “presumptive connecting factors”.•The Supreme Court’s idea was to avoid

“abstract concerns for order, efficiency or fairness”.

42

Real and Substantial Connection – cont’d

•Presumptive connecting factors that, prima facie, entitle a court to assume jurisdiction:

(a) defendant is domiciled or resident in the province;

(b) defendant carries on business in the province;

(c) tort was committed in the province; and

(d) a contract connected with the dispute was made in the province.

•Other factors may be introduced in the future.•In theory, this approach may make the

analysis simpler, but it does not seem well suited to employment disputes.

43

Convenient forum

•Next question: Is there clearly another forum that is more appropriate to hear the action?•Factors used to assess the connections to each

forum:

1.Location where the contract was signed

2.Applicable law of the contract

3.Location of witnesses

4.Location where the bulk of the evidence will come from

5.Location in which the factual matters took place

6.Residence or place of business of the parties

7.Loss of a legitimate juridical advantage.

This list is not exhaustive.

44

Tyco: Application of convenient forum test

Tyco case•Place of residence of harassment

complainants found to be “probably neutral” as a factor.•Key were two “juridical advantages”:

1.Being able to litigate in a jurisdiction in which judges are used to awarding to damages equivalent to reasonable notice.

2.“access to justice” (advantage to Young of home jurisdiction)

45

Forum Selection Clauses

•The parties may simplify the issue by including a contractual choice of forum (attornment) clause in their contract.•These clauses are generally to be encouraged by the

courts as they create certainty and security in transaction, … order and fairness, which are critical components of private international law: Morguard Investments Ltd. v. De Savoye. (S.C.C., 1990).•The courts will approach the convenient forum issue

from a different starting point, which is that the parties should normally be held to their bargain. Z.I. Pompey Industrie v. ECU-Line N.V. (S.C.C., 2003)

46

Forum Selection Clauses – cont.

•Not all forum selection clauses are equally effective.•Exclusive forum selection clauses

may be relied upon to prevent employee from suing in a different court.•Arbitration clauses are similar in

nature to forum selection clauses, and may also be worth considering.

47

Applicable Law

•Which jurisdiction’s laws should be applied is a different question from choice of forum (jurisdiction).•Parties may agree on “choice of law”.

Contractual choice will normally be respected in common law jurisdictions.•In civil law jurisdictions, choice of law

cannot deprive employees of “mandatory protections” of defined jurisdiction.

48

Applicable Law – cont.

•Where no agreement on “choice of law”: courts will apply laws of the jurisdiction with the closest and most real connection.•What is the “closest and most real

connection”?•Typically, the jurisdiction in which most

services performed.• E.g. Dallas Oilfield Contractors v. Petroneuk (Sask,

1980)• Plaintiff a resident of Saskatchewan.• Employer an Alberta corporation.• Work done in BC.• BC laws held to apply.

49

Applicable Law – cont.

•Not necessarily so where the employee is posted overseas for a short duration.• E.g. Petroasia Energy Inc. v. Samek (Alberta

Q.B., 2008)• Alberta company hired employee to set up an

office and obtain O & G concessions in Kazakhstan.

• Alberta law held to apply.

50

Proving “foreign” laws

•How does a party expect a court to apply the laws of a different jurisdiction?•It must prove the laws through an expert

witness (a lawyer from the other jurisdiction).•E.g. Buchanan v. Geotel (Ont., 2002)

• Stock option agreement provided it was governed by the laws of Delaware.

• Both parties called Delaware lawyers as experts.• The experts gave conflicting opinions.• The judge preferred one of the experts, and found that the law of

Delaware led to the same result as the law of Ontario would have.

51

Proving “foreign” laws – cont’d

• “Foreign” laws may include the laws of another province.•In practice, the courts will take notice

of, and apply, the statutory and case law of another province.•However, Quebec law may have to be

proved.• As held in Gagnon v. Cooperative Agricole du Bas

St.-Laurent (1985, N.B.)

52

Situations giving rise to cross-border issues

•Cross-border employment law issues arise in many different kinds of situations – e.g.:• Hiring from abroad• Transfers between provinces• Transfers in or out of Canada• Temporary assignments of foreign workers to Canada• Temporary assignments of Canadians overseas

• This makes any attempt to devise a checklist dangerous and unsatisfactory.

53

Some issues to be considered

• However, a few of the legal issues which will typically need to be addressed in cross-border situations include:

• Employment contract• Is the existing one to continue to apply?• If so, what amendments are required?• Different employer?

• Choice of law• Which jurisdiction?

• Forum selection• Which jurisdiction?• Make the selection exclusive?• Consider arbitration?

54

Some issues to be considered – cont’d

•Policies and manuals• Are existing policies appropriate for employees being transferred

abroad?

•Employment standards• Which jurisdiction’s laws will apply?

•Worker’s compensation• Is coverage available where the employee will be working?• Should employee consider separate insurance for workplace

injuries?

55

Some issues to be considered – cont’d

•Tax• Does the employee assume the employer is responsible for tax

planning issues?

•Stock options•Medical coverage•Social security benefits•Pension entitlements

• E.g. transferability of existing plans

•Immigration issues

Immigration Update and Employer Compliance – What You Don’t Know Can

Hurt You

February 6, 2014

Bill MacGregor

57

Introduction

•Focus of today is on compliance, and what employers need to know to avoid problems

•Trends:• Greater onus put on employers and their decision-

makers• Increased penalties and consequences for failure to

comply•Reasons for trends•Failure to follow rules will detrimentally affect businesses

that employ foreign workers, or move personnel across borders

• e.g. Entry refusals; red flags on travelers; company reputation at border tarnished etc.

58

Penalties and Consequences

Under IRPA:• S124 - violation if you employ a foreign worker without

proper authorization• Deemed knowledge of violation unless you can show due

diligence was used to determine whether TFW was authorized

• S126/127 – violation where anyone directly/indirectly misrepresents or omits to provide a material fact that “could induce an error” applying IRPA

• Penalties include fines up to $100,000 and jail time• Employers found to be non-compliant face 2 year ban from

being able to use TFWP

59

Crossing Borders for Business Purposes

•Key Question – Does the activity require a work permit?•If not, may enter as a business visitor•Common fallacies:

• Short visit = no work permit needed• No direct pay in foreign country = no work permit needed• Professional services contracts = no work permit needed

•What matters is the purpose of entry / activity•If a work permit is needed, then must identify a category

that fits the person and the purpose of entry

60

Crossing Borders: Common Issues / Pitfalls

•Regional sales territories across U.S/Canada border•Managers with North American

responsibilities• “Do you have hiring/firing or disciplinary power” over

personnel?• Is there a degree of operational management being

done?

•How is employee portrayed on the web?• Officers know how to use Google and Linked-in• Public announcements regarding position may suggest

FW is already working

61

Crossing Borders: Common Issues / Pitfalls

•What are personnel traveling with?• business card content• tools or equipment• computers / PDAs

•What are personnel traveling without?• Supporting documentation• Best practices – support letters for business travelers

62

Crossing Borders: Pitfalls – Criminal Inadmissibility

Canada Entry:• DUI/DWI conviction of any sort = inadmissible• U.S. pardons may not be recognized• Temporary Resident Permits = possible solution

U.S. Entry:• Crimes of Moral Turpitude / zero tolerance for any drug

conviction• Canadian pardons not recognized• Only solution is a U.S. waiver, which takes months to

obtain

Lessons: Must find out if there are convictions; consider employment contract terms regarding ability to travel if a bona fide job requirement

63

LMOs: New Rules as of July 31, 2013

•Labour Market Opinions (LMOs) - basis for many Canadian work permits

•July 31, 2013: new LMO rules introduced• Advertising requirements increased – content and

placement• Outsourcing questions• Employer declarations in application form more

onerous•Consequences

• Timelines have increased• Incumbents • Public disclosure of salary / openings

64

New Regulatory Regime as of January 1

•To “detect and deter employer non-compliance”•New IRPA Regulations introduced

January 1, 2014•Significant changes to Regulations

• Many more statutory requirements put on employers (both for LMO and LMO exempt work permit situations)

• Revisions to substantially the same test• Length of compliance period increased from 2 to 6

years (but not retroactive)• Broad powers of inspection granted to CIC and Service

Canada officers

65

New Regulations – New Employer Conditions

For all TFW Situations (LMO based or LMO exempt):

•Must comply with laws regulating employment and recruiting•Must provide each TFW with “same occupation”, and wages

and working conditions which are “substantially the same – but not less favourable than” the TFW’s offer of employment

•Must make “reasonable efforts” to provide a workplace free from abuse

•During the “period 6 years beginning on the first day of employment for which the work permit is issued”, must be able to show (1) any information provided to get LMO/WP was accurate AND (2) must retain any document that relates to compliance.

• Failure to comply is only justified if employer “made all reasonable efforts” to comply

66

New Regulations – New Employer Conditions / LMOs

For LMO based work permits, there are further conditions in addition to the ones on the last slide

•Must be able to demonstrate factors used to grant LMO have been met• E.g. If employer says jobs will be created, need to

demonstrate that• Must maintain documents to show this for the 6 year

look back period

67

New Regulations – Inspections

Very broad inspection powers granted:•May occur without a warrant at any

place where TFW works or did work•May demand any documents or access

to computer systems•Triggered randomly or where there is a

concern (so complaint from employee may trigger)•Can occur anytime up to 6 years from

first date of employment of TFW

68

LMOs: Employer Compliance Reviews

•ECRs have been increasing•Random selection or complaint driven•Pre-2014 test and post-2014 test•Will review payroll records, time sheets, contracts etc. to

verify•Information sharing with provincial authorities = possible

further liability if breach occurs•Issue of changes to employment terms of TFWs

69

New Rules – Effect on LMO Applications

•Further changes as of January 1, 2014, in addition to new rules introduced on July 31, 2013•New forms for LMO applications

• Declaration section expanded• Required to review wage annually to ensure prevailing

wage being paid; must adjust it up if necessary• Some additional supporting documents (proof of

workers comp)

•Non-compliance risk has increased, therefore must be very careful in preparing forms• e.g. Changes of employment terms; factors cited to

support the LMO request; danger of allowing others to prepare form

70

Best Practices for Compliance

Clients need to adopt best practices and internal policies

•Recruiting protocols to ensure consistency•Review of LMO application content and Work Permit

Support letters•Document retention relating to TFWs and recruiting – will

need to be maintained for 6 years from first date of employment of TFW

•Changing employment terms – need protocol in place•Longer term strategies – e.g. moving TFWs to permanent

status as soon as possible

71

Future Immigration Developments

•Clarification of recent changes• Service Canada directives for LMOs? Revised TFW

Manual?

•Canada-EU Free Trade Agreement• Will have mobility provisions

•TFW Program to be further revised this year??• Expect narrowing of some work permit categories

• e.g. transferee category limitations on % of foreign workers; increased minimum experience for specialist transferees?

• “Fast Track” LMOs re-introduced??• Further compliance obligations likely to be put on employers

72

Conclusion

•Companies engaging TFWs need to be aware of trend of increasing compliance requirements and negative consequences of non-compliance•Companies and their managers may

face exposure for non-compliance•Companies must be able to

demonstrate ongoing compliance, whether TFWs are here under LMO or LMO exempt WPs•Proactive approach to crossing

borders, hiring foreign workers and implementing strong internal systems and policies is critical

73

Thank You

Bill MacGregor

Tel: 519-575-7528 / 403-298-1979

Email: [email protected]

Montréal · Ottawa · Toronto · Hamilton · Waterloo Region · Calgary · Vancouver · Beijing · Moscow · London

Privacy Breach Reporting: Responding to Privacy

Breaches in Alberta

Birch Miller, Calgary

Martha Monterrosa, Calgary

75

Overview

•1) What constitutes a privacy breach?

•2) Key steps in responding to privacy breaches

•3) Best practices for safeguarding against further privacy breaches

76

Overview

•Alberta Privacy Framework• Private: Personal Information Protection Act

(“PIPA”)

• Public: Freedom of Information and Privacy Act (“FOIP”)

• Federally regulated: Personal Information Protection and Electronic Documents Act (“PIPEDA”)

• Health records: Health Information Act (“HIA”)

77

Alberta Privacy Framework

PIPA: Private Sector

•Addresses collection, use and disclosure of personal information and right to request access to personal information

FOIP : Public Sector

•Regulates how public bodies conduct the collection, use and disclosure of personal information and right to access to access all information held by public bodies

PIPEDA: Federal Undertakings

• Addresses collection, use and disclosure of personal information and the right to access personal information

HIA: Health Sector

• Addresses collection, use and disclosure practices of custodians and provides individuals with the right to access health records in custody or under control of custodians

78

Privacy Breach Notification

What is a privacy breach?• Privacy Breach occurs when there is:

• “a loss, unauthorized access to, or disclosure of personal information”

• Common privacy breaches happen when personal information of customers, patients, clients or employees is lost, stolen or mistakenly disclosed

79

Privacy Breach Notification – PIPA

PIPA• First Canadian jurisdiction to require mandatory privacy breach

notification by private sector organizations

• Requirement: Private sector organizations are required to notify the Privacy Commissioner if personal information under its control is without authorization accessed, lost or disclosed (s. 34.1)

• Offences / Penalties:

• Failure to notify Commissioner of a breach is an offence

• Organizations liable of a fine up to $100,000 under s. 59(2)(b)

80


When must the Commissioner be notified?

•An organization having personal information under its control must, without unreasonable delay, provide notice to the Commissioner of any incident involving the loss of or unauthorized access to or disclosure of the personal information where a reasonable person would consider that there exists a real risk of significant harm to an individual as a result of the loss or unauthorized access or disclosure

81


When must the Commissioner be notified?

•Threshold of notification: “real risk of significant harm”

•“Significant harm” means “a material harm”; it has non-trivial consequences or effects.

•“Real risk” means “a reasonable degree of likelihood that the harm could result”; must be more than “merely speculative” and not simply “hypothetical or theoretical”

82


Assessing the Breach

•OIPC provides a Mandatory Breach Reporting Tool (http://www.oipc.ab.ca/Content_Files/Files/Publications/Mandatory_Breach_Reporting_Tool_2012.pdf)

1. Has there been a breach involving “personal information”?

2. Does your organization have “control” of the personal information breached?

3. What is the sensitivity of the personal information breached?

4. Would a reasonable person consider that a real risk of significant harm exists to an individual as a result of the breach?

http://www.oipc.ab.ca/Content_Files/Files/Publications/Mandatory_Breach_Reporting_Tool_2012.pdf

http://www.oipc.ab.ca/Content_Files/Files/Publications/Mandatory_Breach_Reporting_Tool_2012.pdf

83


Assessing the breach

• If an organization determines that there is a real risk of significant harm to an individual as a result of the breach – must report breach to the Commissioner

• If an organization’s internal assessment determines that there is not a real risk of significant harm to an individual, do not have to report

• Advised to retain a copy of the mandatory breach reporting tool which allowed an organization to determine breach was not significant

84


What are the contents of notice to the Commissioner?

• breach report form: http://www.oipc.ab.ca/Content_Files/Files/Publications/Breach_Report_Form_July_2012.pdf

• description of circumstances of loss or unauthorized access or disclosure

• date on which, or time period during which, loss or unauthorized access or disclosure occurred

• description of personal information involved in loss or unauthorized access or disclosure

• assessment of risk of harm to individuals as a result of loss or unauthorized access or disclosure

• estimate of number of individuals to whom real risk of significant harm as a result of loss or unauthorized access or disclosure

http://www.oipc.ab.ca/Content_Files/Files/Publications/Breach_Report_Form_July_2012.pdf

http://www.oipc.ab.ca/Content_Files/Files/Publications/Breach_Report_Form_July_2012.pdf

85


What are the contents of notice to the Commissioner? (cont.)

• description of steps organization has taken to reduce risk of harm to individuals

• description of any steps organization has taken to notify individuals of the loss or unauthorized access or disclosure

• name of and contact information for a person who can answer, on behalf of organization, Commissioner’s questions about the loss or unauthorized access or disclosure

86


What happens after notification?• When notified, Commissioner will review information provided and

determine whether affected individuals need to be notified

• Organization can also proactively notify individuals

• Commissioner can direct organization to notify individuals directly and include description of loss, date occurred, description of personal information, steps organization has taken and contact information who can answer on behalf of organization

• Purpose of notification to individuals is to allow individual to take steps to reduce risk of harm, or extent of the harm, where possible

87

PIPA Decisions – Breach Notifications

P2012-ND-34 (“Conoco Case”)

•On January 7, 2013, ConocoPhillips Canada (North) Limited ordered to notify individuals regarding loss of personal information

•Employee’s home broken into

•Employee’s workbag contained information on 11 students that had applied to ConocoPhillips

•Following items were stolen and not recovered:

• Resumes with contact information• Unofficial University transcripts • Recruiting questionnaires • Interview matrices

88


Conoco Case (cont.)

Findings:

•Information stolen was classified as moderately sensitive (i.e., did not contain SIN numbers, credit card information)

•However, information could be used to cause significant harm

•Relevant factor was that documents were stolen and never recovered

•Real risk of significant harm to students in the form of identity theft, fraud, embarrassment and humiliation

•Ordered to notify individuals, which ConocoPhillips had already done

.

89


P2013-ND-10 (“Sun Life Financial Case”)

•March 26, 2013: Sun Life Financial ordered to notify individuals regarding loss of personal information

•RRSP income statements were mailed to incorrect addresses for 11 members and not recovered

•RRSP income statements contained the following information:

• Name• Address• Social Insurance Number• Group RRSP contract number• 2012 RRSP withdrawal amount and related income tax deduction

90


Sun Life Financial Case (cont.)

Findings:

•Information classified as highly sensitive

•Exposes individuals to risk of identity theft and fraud

•Information was lost and not recovered

•Due to these factors, Commissioner determined likelihood of significant harm, identity theft and fraud, will occur to the individuals

•Ordered to notify individuals, which Sun Life Financial had already done

91


2013-ND-18 (“Sculpz Case”)

•May 9, 2013, Sculpz, Inc. (operating as Enchantress Hosiery of Canada) was ordered to notify individuals of unauthorized access to and disclosure of personal information

•During a scheduled security review, Sculpz discovered its website had been hacked

•Website server log showed unauthorized access for 5 days

•154 Alberta customers affected

•The following customer information was exposed:

• Name• Address• Phone number• Email address• Credit card number and expiry date

92


Sculpz Case (cont.)

Findings:

•Information exposed is highly sensitive

•Includes credit card information that was not encrypted

•Type of harm that could result is identity theft and/or fraud

•Affected individuals can also be at risk of phishing (email addresses, addresses and phone numbers involved)

•Incident involved criminal intent

•Real risk of significant harm because hackers were specifically after customer’s credit card information

•Ordered to notify all affected individuals which Sculpz had already done

93

Privacy Breach Notification – PIPEDA

Federal legislation – PIPEDA• Current framework for privacy breach notification in private sector

outside of Alberta is PIPEDA

• Voluntary security breach notification

• Guidelines from Federal Privacy Commissioner

94


Federal legislation – PIPEDA•Currently, under PIPEDA data breach requirements, subject to certain

voluntary guidelines

• Key Steps for Organizations in Responding to Privacy Breaches

• http://www.priv.gc.ca/information/guide/2007/gl_070801_checklist_e.asp

•The Commissioner also developed an associated checklist to assist organizations in ensuring they have dealt with all relevant considerations of the breach

http://www.priv.gc.ca/information/guide/2007/gl_070801_checklist_e.asp

95


Guidelines state four key steps to consider when responding to a breach:

1) Breach containment and preliminary assessment

2) Evaluation of the risks associated with the breach

3) Notification

4) Prevention

96


1. Breach Containment and Preliminary Assessment

2. Evaluation of the Risks Associated with Breach

3. Notification 4. Prevention

Take immediate common sense steps to limit the data breach

Determine who should be made aware of the incident internally and potentially externally

If appears to involve theft/criminal activity notify the police

What Personal Information was Involved?

What was the Cause and Extent of the Breach?

What individuals were affected by the breach?

What is the foreseeable harm that could result from the breach?

In determining whether to notify should consider:

(1) Risk of harm to;

(2) When/How/Who Should Notify; and

(3) Content of Notification

Investigate the breach with view of developing a prevention plan depending on nature/type of breach (i.e. isolated or systemic)

Key Steps to Consider When Responding to a Breach

97


Penalties & Enforcement•No penalty under PIPEDA for actual failure to follow guidelines

•However, Federal Privacy Commissioner has power to investigate underlying breach

•S.14 allows a complainant, after receiving Commissioner’s report, to apply to Federal Court for a hearing of complaint

•Available remedies include order to correct practices, publish notice of action taken/proposed to correct practice and damages

98


Damages Under PIPEDA•Until the recent case of Nammo v. TransUnion of Canada Inc., 2010 FC

1284., there was no precedent for an award of damages under PIPEDA

•Court awarded damages of $5,000 to complainant

•Principles to consider when awarding damages: compensation, vindication, and deterrence

•Court stated:…both the question of whether damages should be awarded and the question of the quantum of damages should be answered with regard to whether awarding damages would further the general objects of PIPEDA and uphold the values it embodies. Furthermore, deterring future breaches and the seriousness or egregiousness of the breach would be factors to consider

99


•Federal government proposals to amend PIPEDA to include mandatory breach notification

•Bill C-29 (May 2010) died on table

•Bill C-12 (September 2011) did not move forward

•Bill C-475: An Act to amend the Personal Information Protection and Electronic Documents Act

• mandatory breach reporting to the Commissioner• power to make compliance orders • first reading February 26, 2013

100

Privacy Breach Notification – FOIP

FOIP• Reporting a breach under FOIP is voluntary

• OIPC encourages voluntary privacy breach reporting

• Public bodies regulated by FOIP can report a privacy breach to OIPC the following ways: (i) verbally, (ii) by letter, or (iii) by the Breach Report Form

(http://www.oipc.ab.ca/Content_Files/Files/Publications/Breach_Report_Form_2010.pdf)

http://www.oipc.ab.ca/Content_Files/Files/Publications/Breach_Report_Form_2010.pdf

101

Privacy Breach Notification – FOIP

FOIP• Government of Alberta is performing FOIP Act Review in 2013

• OIPC’s recommendation is to require public bodies to report privacy incidents meeting certain criteria and giving OIPC the power to require public bodies to notify affected individuals.

• Advocating for mandatory breach reporting similar to PIPA

• These measures have not been adopted by the Alberta legislature to date

102

Privacy Breach Notification – HIA

HIA•Reporting a breach under HIA is not mandatory

•OIPC encourages voluntary privacy breach reporting

•Public bodies regulated by HIA can report a privacy breach to OIPC the following ways: (i) verbally, (ii) by letter, or (iii) by the Breach Report Form (http://www.oipc.ab.ca/Content_Files/Files/Publications/Breach_Report_Form_2010.pdf)



103

Privacy Breach Notification – HIA

•On January 23, 2014, OIPC Commissioner launched investigation into Medicentres privacy breach incident

• laptop containing name, date of birth, provincial health card numbers, billing codes and diagnostic codes stolen September 2013

• affects 620,000 Albertans • laptop belonged to IT consultant • Health Minister requested Commissioner to investigate breach in January

22, 2014

•Investigation to include broad review of privacy breach reporting in the health sector

•OIPC Commissioner advocating for introduction of mandatory breach reporting for HIA

104

Recommendations

In developing a set of policies and accompanying procedures, organizations should take the following steps into account:

1) develop comprehensive security program to protect confidentiality, integrity and availability of information, not just personal information

2) develop data classification standards that identify personal information

3) conduct risk assessment of personal information to ensure proper security controls (i.e. Authentication, encryption) are in place to protect these information assets

4) develop policy for handling security breaches and ensure that it is updated periodically to reflect modern technologies and circumstances

5)incorporate into the policy a step that requires a report to the Privacy Commissioner of any serious data breach

6)ensure third party service contracts expressly require third party to immediately inform the organization of any possible or suspected breach

7)Ensure employees of the corporation are aware of, and in compliance with, organization’s policies and practices relating to third party personal information

go

beyond

borders

innovation

results

value

MENTAL ILLNESS IN THE WORKPLACE

By: David J. Corry, Q.C.February 6, 2014

106

MENTAL ILLNESS –IMPACT ON THE WORKPLACE

• Mental health problems and illness account for 30% of the disability claims in Canada.

• In some sectors it rises to 50% of disability claims.• Organizations with the most effective health and productivity

programs have:• Greater revenue per employee (18% more)• Lower medical claims & costs• Fewer absent days per employee; and• Greater shareholder returns (40% higher)

Towers Watson, 2012-12 Staying@Work Report online: www.towerswatson.com/assets/pdf/6031/towers-watson-staying-at-work-report.pdf#>

http://www.towerswatson.com/assets/pdf/6031/towers-watson-staying-at-work-report.pdf

http://www.towerswatson.com/assets/pdf/6031/towers-watson-staying-at-work-report.pdf

107

OUTLINE

1. Overview of legal issues

2. Human Rights and Duty to Accommodate

3. Wrongful Dismissal

4. WCB

5. Occupational Health & Safety

108

HUMAN RIGHTS

• Employers prohibited from discrimination because of mental disability

• Employers must accomodate mentally ill employees unless it amounts to undue hardship

109

UNION CASES (COLLECTIVE AGREEMENT)

1. Saint John Shipbuilding (1993), 26 L.A.C. (4th) 361 (N.B. – MacLean)• Employee dismissed after threat to supervisor with a

gun• Grievor had personal and emotional problems

resulting in panic attacks• Threat to supervisor connected to employee’s

mental illness • Conditional reinstatement ordered

110


2. Calgary Co-operative Assn. and Calco Club (1992), 24 L.A.C. (4th) 308 (Alta. - McFetridge)• Employee dismissed following inappropriate

treatment of customers• Connection between employee’s behaviour and

frontal lobe brain damage• Not known until after termination• Employee reinstated with back pay

111


3. Sealy Canada Ltd. And U.S.W.A, Loc. 5885 (2006), 147 L.A.C. (4th) 68 (Alta. – P.A. Smith)• Assault on co-worker and plant manager• Previously undiagnosed bi-polar disorder • Conduct non-culpable; not deliberate nor intentional• Discharge not meeting just cause standard• Employer aware of disorder after termination, but

failed to accommodate grievor • Positive prognosis for managing disability –

reinstated

112


4. York Region Bd. of Education (1999), 84 L.A.C. (4th) 90 (Ont. - Shime)• Teacher with bi-polar disorder stopped taking lithium

against Psychiatrist advice• Inappropriate behaviour toward students, teachers,

parents and supervisors• Cause for discipline. Author of own misfortune for

going off lithium• However, no cause for discharge• As teacher’s behaviour irreparably undermined

employment – awarded 6 months damages in lieu of reinstatement

113

NON-UNION CASES (HUMAN RIGHTS ACT)

1. Warren v. West Canadian Industries Group Ltd. 2007 AHRC 3• Short service employee (1 year)• Employee diagnosed with chronic depression, PTSD (post

traumatic stress disorder)• Borderline personality disorder and agoraphobia• Interactions with some employee’s resulted in stress & anger• Behavioural issues and absences should have triggered a

follow-up with employee/doctor re: mental illnesses• Employer has a duty to inquire

114


• Panel stated at paragraph 193:

Mental illness is one of the least understood and least accepted of all illnesses. It creates fear and stereotypical responses in people. Yet who are the mentally ill? Potentially they can be people who suffer from varying degrees of illness, from short term situations that temporarily incapacitate an individual to long term illnesses that require continuous support and attention. Psychiatric disabilities have many possible causes, sometimes physical, sometimes psychological and sometimes social. For a great many people, such illnesses are shameful and embarrassing and as a result they are very reticent to stand up for their rights or to protest when injustice has been done to them.

115


2. Lane v. ADGA Group Consultants Ltd. 2007 HRTO 34• Employed 8 days.• Bi-polar disorder reported to supervisor and employee warned

his supervisor that his behaviour in the workplace should be monitored.

• Mental illness not disclosed prior to hiring.• Dismissed due to inability to do the job.• Hospitalized for 10 days after dismissal. (Manic state

triggered by 2 CF-18 fighters flying over the house.)• Employee discriminated against – damages of $80,000

awarded.

116

WRONGFUL DISMISSAL

1. Yeager v. RJ Hastings, [1985] 1 WWR 218 (BCSC)• 30 year employee, 2 I/C, shareholder.• 1980 – misdiagnosis – incurable organic brain disorder.• Last 3 years of employment – progressively worse –

occupationally disabled – abandoned employment.• Court held that 2 year period of disability did not frustrate

contract of employment.• Awarded damages for wrongful dismissal based on 18 months

notice.

117

SUMMARY

In dealing with employees who are potentially mentally ill:

• Behaviour may trigger duty to inquire with employee/doctor(s) as to whether employee has mental illness.

• If disruptive in workplace – put employee on STD or paid LOA until you have necessary information.

• Gather evidence to determine:• Any underlying mental disability• What accommodation is necessary• Benefits entitlement• Appropriate course of action• Legal obligations, risks, recommendations

• Retain disability management/medical expertise as required.

118

WORKERS COMPENSATION (WCB)

• If mental illness arises from the workplace – may be a compensable claim under WCB.

• Alberta WCB Policies – Policy: 03-01 Part II Psychiatric or Psychological Injury.

See: www.wcb.ab.ca

• If possible claim – file Notice of Claim and encourage employee to file claim.

• Lawsuits against employer are subject to statutory bar pursuant to s. 23 of Workers Compensation Act.

http://www.wcb.ab.ca/

119

OCCUPATIONAL HEALTH & SAFETY

• Employers, contractors and workers jointly obligated to ensure a safe workplace.

• Specifically, employers, contractors and workers must prevent violence and psychological injury to workers.

Occupational Health and Safety Act, s. 2

Part 27 of Alberta Occupational Health & Safety Code

See: Workplace Health and Safety Bulletin: Preventing Violence and Harassment at the Workplace

• Employers obligated to develop and implement plan to minimize violence in the workplace.

• Most cases of workplace violence involve a mentally ill employee.

120


When dealing with mentally ill employee:• Dismissal is a last resort and usually makes matters

worse.• Increases legal risk and exposure.• Lose touch with employee and may trigger greater

symptoms/behaviours associated with mental illness (eg. violence, depression, suicide).

• Prevents effective disability management and accommodation of employee.

• Prevents employee access to disability and other employment benefits (when they need them most).

121


Best course of action:• If necessary, place employee on paid LOA pending

investigation of all necessary facts.• Retain disability manager or medical expertise as required.• Have employee sign medical consent to release information

to management who “need to know”. (Comply with Personal Information Protection Act and Health Information Act, as applicable).

• Once all relevant information obtained, including medical information determine:• Whether duty to accommodate, and if so, options available• Discuss and enter into written accommodation agreement with

employee

122


• With consent of employee, advise other employees who “need to know” and ensure that they participate in accommodation.

• Follow-up regularly to ensure accommodation is working for all parties.

• Before employee returns to work – ensure an adequate fitness to work assessment is done and released to management on a “need to know” basis.

• Assist employee in applying for employment benefits (where appropriate).

• Seek and follow legal advice to minimize legal risk and liability

123


• If continued employment not viable, then “without prejudice” package should be offered in exchange for general release.

• Take pro-active steps to promote psychological health and safety in the workplace. It deserves the same priority as physical health and safety.

Contact Information David J. Corry, Q.C.Tel: 403-298-1812Email: [email protected]

mailto:[email protected]

125

Thank you for attending.

Gowlings Employment and Labour Law Seminar, February 2014

Business

Transcript of Gowlings Employment and Labour Law Seminar, February 2014