1

Update on Current HR Issues

2

North American Free Trade Agreement (NAFTA)

Presented by Colleen VervillePartner

3

What is NAFTA

bull The North American Free Trade Agreement is a Treaty between Canada Mexico and the United States designed to encourage greater trade between the three countries

bull Chapter 16 of NAFTA facilitates the temporary entry into Canada for selected categories of American and Mexican business persons and workers

bull Foreign workers covered by NAFTA do not need to obtain a positive labour market opinion from Human Resources and Social Development Canada which currently takes approximately fourteen (14) weeks to obtain and could be longer

4

What are the Four NAFTA Categories

The NAFTA program is open to four different categories of

foreign workers (Chapter 16 NAFTA)

1 Business Visitors (no need for a work permit)

2 Professionals

3 Intra‐Company Transferees and

4 Traders and Investors

5

Business Visitors (Appendix 1603 A1)

bull To qualify as a Business Visitor an American or Mexican citizen must enter Canada to perform duties international in scope and therefore related to one of the following

1 Research and Design Technical scientific and statistical researchers conducting

independent research or research for an enterprise located in the USA or Mexico

2 Growth Manufacture and Production Harvester owner supervising a harvesting crew Purchasing and production management personnel conducting

commercial transactions for an enterprise located in the USA or Mexico

6

Business Visitors (Appendix 1603 A1) Contrsquod

3 Marketing Market researchers and analysts conducting independent research or

analysis or research or analysis for an enterprise located in the USA or Mexico

4 Sales Sales representatives and agents taking orders or negotiating

contracts for goods or services for an enterprise located in the USA or Mexico but not delivering goods or providing services

Buyers purchasing for an enterprise located in the USA or Mexico

5 Distribution Transportation operators transporting goods or passengers to Canada

from the USA or Mexico Customs brokers providing consulting services regarding the

facilitation of the import or export of goods

7

Business Visitors (Appendix 1603 A1) Contrsquod

6 After‐sales Service Installers repair and maintenance personnel and supervisors

possessing specialized knowledge essential to a sellerrsquos contractual obligation performing services or training workers to perform services pursuant to a warranty or other service contract incidental to the sale of commercial or industrial equipment or machinery including computer software purchased from an enterprise located in the USA or Mexico during the life of the warranty or service agreement

8

Business Visitors (Appendix 1603 A1) Contrsquod

7 General Service Professionals engaging in a business activity at a professional level in a

profession set out in Appendix 1603D1 Management and supervisory personnel engaging in a commercial

transaction for an enterprise located in the USA or Mexico Financial services personnel (insurers bankers or investment brokers)

engaging in commercial transactions for an enterprise located in the USA or Mexico

Public relations and advertising personnel consulting with business associates or attending or participating in conventions

9

Source of Income Principle Place of Residence and Accrual of Profits Not in Canada

bull The Business Visitorrsquos primary source of income principal place of business and accrual of profits must remain in the United States or Mexico

bull The Business Visitor cannot directly enter the Canadian labour market and must be entering Canada on behalf of a business enterprise located in either USA or Mexico

10

No Work Permit

bull Business Visitors are the only NAFTA applicants who are exempt from having to obtain a work permit as they are not entering the Canadian labour market

bull Business visitors can stay in Canada for up to six (6) months

11

What does the Business Visitor need to Provide to the Canadian Border Officer

bull The Business Visitor must provide the following to the Border Officer at the Canadian Port of Entrya) Proof that they are seeking entry for one of the business purposes

listed in 1 to 7 aboveb) Proof of American or Mexican citizenshipc) Proof that the primary source of remuneration is outside of

Canadad) Proof that actual residence is outside of Canada e) Proof of accrual of profits remain outside of Canadaf) Evidence demonstrating that the proposed business activity is

international in scope and g) Letter from Canadian company they are doing business with

attesting to the above

12

Who else does not need a Work Permit to come to Canadabull In addition to the Business Visitors the following Applicants may not need a work permit if they fall into one of the following categories

ndash Foreign athletes and coaches ndash Aviation accident or incident investigators ndash Civil aviation inspectors ndash Clergyndash Convention organizers and administrative staffndash Crew membersndash Emergency service providersndash Examiners and evaluatorsndash Expert witnesses or investigatorsndash Family members of foreign representativesndash Foreign government officers

2

North American Free Trade Agreement (NAFTA)

Presented by Colleen VervillePartner

3

What is NAFTA

bull The North American Free Trade Agreement is a Treaty between Canada Mexico and the United States designed to encourage greater trade between the three countries

bull Chapter 16 of NAFTA facilitates the temporary entry into Canada for selected categories of American and Mexican business persons and workers

bull Foreign workers covered by NAFTA do not need to obtain a positive labour market opinion from Human Resources and Social Development Canada which currently takes approximately fourteen (14) weeks to obtain and could be longer

4

What are the Four NAFTA Categories

The NAFTA program is open to four different categories of

foreign workers (Chapter 16 NAFTA)

1 Business Visitors (no need for a work permit)

2 Professionals

3 Intra‐Company Transferees and

4 Traders and Investors

5

Business Visitors (Appendix 1603 A1)

bull To qualify as a Business Visitor an American or Mexican citizen must enter Canada to perform duties international in scope and therefore related to one of the following

1 Research and Design Technical scientific and statistical researchers conducting

independent research or research for an enterprise located in the USA or Mexico

2 Growth Manufacture and Production Harvester owner supervising a harvesting crew Purchasing and production management personnel conducting

commercial transactions for an enterprise located in the USA or Mexico

6

Business Visitors (Appendix 1603 A1) Contrsquod

3 Marketing Market researchers and analysts conducting independent research or

analysis or research or analysis for an enterprise located in the USA or Mexico

4 Sales Sales representatives and agents taking orders or negotiating

contracts for goods or services for an enterprise located in the USA or Mexico but not delivering goods or providing services

Buyers purchasing for an enterprise located in the USA or Mexico

5 Distribution Transportation operators transporting goods or passengers to Canada

from the USA or Mexico Customs brokers providing consulting services regarding the

facilitation of the import or export of goods

7

Business Visitors (Appendix 1603 A1) Contrsquod

6 After‐sales Service Installers repair and maintenance personnel and supervisors

possessing specialized knowledge essential to a sellerrsquos contractual obligation performing services or training workers to perform services pursuant to a warranty or other service contract incidental to the sale of commercial or industrial equipment or machinery including computer software purchased from an enterprise located in the USA or Mexico during the life of the warranty or service agreement

8

Business Visitors (Appendix 1603 A1) Contrsquod

7 General Service Professionals engaging in a business activity at a professional level in a

profession set out in Appendix 1603D1 Management and supervisory personnel engaging in a commercial

transaction for an enterprise located in the USA or Mexico Financial services personnel (insurers bankers or investment brokers)

engaging in commercial transactions for an enterprise located in the USA or Mexico

Public relations and advertising personnel consulting with business associates or attending or participating in conventions

9

Source of Income Principle Place of Residence and Accrual of Profits Not in Canada

bull The Business Visitorrsquos primary source of income principal place of business and accrual of profits must remain in the United States or Mexico

bull The Business Visitor cannot directly enter the Canadian labour market and must be entering Canada on behalf of a business enterprise located in either USA or Mexico

10

No Work Permit

bull Business Visitors are the only NAFTA applicants who are exempt from having to obtain a work permit as they are not entering the Canadian labour market

bull Business visitors can stay in Canada for up to six (6) months

11

What does the Business Visitor need to Provide to the Canadian Border Officer

bull The Business Visitor must provide the following to the Border Officer at the Canadian Port of Entrya) Proof that they are seeking entry for one of the business purposes

listed in 1 to 7 aboveb) Proof of American or Mexican citizenshipc) Proof that the primary source of remuneration is outside of

Canadad) Proof that actual residence is outside of Canada e) Proof of accrual of profits remain outside of Canadaf) Evidence demonstrating that the proposed business activity is

international in scope and g) Letter from Canadian company they are doing business with

attesting to the above

12

Who else does not need a Work Permit to come to Canadabull In addition to the Business Visitors the following Applicants may not need a work permit if they fall into one of the following categories

ndash Foreign athletes and coaches ndash Aviation accident or incident investigators ndash Civil aviation inspectors ndash Clergyndash Convention organizers and administrative staffndash Crew membersndash Emergency service providersndash Examiners and evaluatorsndash Expert witnesses or investigatorsndash Family members of foreign representativesndash Foreign government officers

3

What is NAFTA

bull The North American Free Trade Agreement is a Treaty between Canada Mexico and the United States designed to encourage greater trade between the three countries

bull Chapter 16 of NAFTA facilitates the temporary entry into Canada for selected categories of American and Mexican business persons and workers

bull Foreign workers covered by NAFTA do not need to obtain a positive labour market opinion from Human Resources and Social Development Canada which currently takes approximately fourteen (14) weeks to obtain and could be longer

4

What are the Four NAFTA Categories

The NAFTA program is open to four different categories of

foreign workers (Chapter 16 NAFTA)

1 Business Visitors (no need for a work permit)

2 Professionals

3 Intra‐Company Transferees and

4 Traders and Investors

5

Business Visitors (Appendix 1603 A1)

bull To qualify as a Business Visitor an American or Mexican citizen must enter Canada to perform duties international in scope and therefore related to one of the following

1 Research and Design Technical scientific and statistical researchers conducting

independent research or research for an enterprise located in the USA or Mexico

2 Growth Manufacture and Production Harvester owner supervising a harvesting crew Purchasing and production management personnel conducting

commercial transactions for an enterprise located in the USA or Mexico

6

Business Visitors (Appendix 1603 A1) Contrsquod

3 Marketing Market researchers and analysts conducting independent research or

analysis or research or analysis for an enterprise located in the USA or Mexico

4 Sales Sales representatives and agents taking orders or negotiating

contracts for goods or services for an enterprise located in the USA or Mexico but not delivering goods or providing services

Buyers purchasing for an enterprise located in the USA or Mexico

5 Distribution Transportation operators transporting goods or passengers to Canada

from the USA or Mexico Customs brokers providing consulting services regarding the

facilitation of the import or export of goods

7

Business Visitors (Appendix 1603 A1) Contrsquod

6 After‐sales Service Installers repair and maintenance personnel and supervisors

possessing specialized knowledge essential to a sellerrsquos contractual obligation performing services or training workers to perform services pursuant to a warranty or other service contract incidental to the sale of commercial or industrial equipment or machinery including computer software purchased from an enterprise located in the USA or Mexico during the life of the warranty or service agreement

8

Business Visitors (Appendix 1603 A1) Contrsquod

7 General Service Professionals engaging in a business activity at a professional level in a

profession set out in Appendix 1603D1 Management and supervisory personnel engaging in a commercial

transaction for an enterprise located in the USA or Mexico Financial services personnel (insurers bankers or investment brokers)

engaging in commercial transactions for an enterprise located in the USA or Mexico

Public relations and advertising personnel consulting with business associates or attending or participating in conventions

9

Source of Income Principle Place of Residence and Accrual of Profits Not in Canada

bull The Business Visitorrsquos primary source of income principal place of business and accrual of profits must remain in the United States or Mexico

bull The Business Visitor cannot directly enter the Canadian labour market and must be entering Canada on behalf of a business enterprise located in either USA or Mexico

10

No Work Permit

bull Business Visitors are the only NAFTA applicants who are exempt from having to obtain a work permit as they are not entering the Canadian labour market

bull Business visitors can stay in Canada for up to six (6) months

11

What does the Business Visitor need to Provide to the Canadian Border Officer

bull The Business Visitor must provide the following to the Border Officer at the Canadian Port of Entrya) Proof that they are seeking entry for one of the business purposes

listed in 1 to 7 aboveb) Proof of American or Mexican citizenshipc) Proof that the primary source of remuneration is outside of

Canadad) Proof that actual residence is outside of Canada e) Proof of accrual of profits remain outside of Canadaf) Evidence demonstrating that the proposed business activity is

international in scope and g) Letter from Canadian company they are doing business with

attesting to the above

12

Who else does not need a Work Permit to come to Canadabull In addition to the Business Visitors the following Applicants may not need a work permit if they fall into one of the following categories

ndash Foreign athletes and coaches ndash Aviation accident or incident investigators ndash Civil aviation inspectors ndash Clergyndash Convention organizers and administrative staffndash Crew membersndash Emergency service providersndash Examiners and evaluatorsndash Expert witnesses or investigatorsndash Family members of foreign representativesndash Foreign government officers

4

What are the Four NAFTA Categories

The NAFTA program is open to four different categories of

foreign workers (Chapter 16 NAFTA)

1 Business Visitors (no need for a work permit)

2 Professionals

3 Intra‐Company Transferees and

4 Traders and Investors

5

Business Visitors (Appendix 1603 A1)

bull To qualify as a Business Visitor an American or Mexican citizen must enter Canada to perform duties international in scope and therefore related to one of the following

1 Research and Design Technical scientific and statistical researchers conducting

independent research or research for an enterprise located in the USA or Mexico

2 Growth Manufacture and Production Harvester owner supervising a harvesting crew Purchasing and production management personnel conducting

commercial transactions for an enterprise located in the USA or Mexico

6

Business Visitors (Appendix 1603 A1) Contrsquod

3 Marketing Market researchers and analysts conducting independent research or

analysis or research or analysis for an enterprise located in the USA or Mexico

4 Sales Sales representatives and agents taking orders or negotiating

contracts for goods or services for an enterprise located in the USA or Mexico but not delivering goods or providing services

Buyers purchasing for an enterprise located in the USA or Mexico

5 Distribution Transportation operators transporting goods or passengers to Canada

from the USA or Mexico Customs brokers providing consulting services regarding the

facilitation of the import or export of goods

7

Business Visitors (Appendix 1603 A1) Contrsquod

6 After‐sales Service Installers repair and maintenance personnel and supervisors

possessing specialized knowledge essential to a sellerrsquos contractual obligation performing services or training workers to perform services pursuant to a warranty or other service contract incidental to the sale of commercial or industrial equipment or machinery including computer software purchased from an enterprise located in the USA or Mexico during the life of the warranty or service agreement

8

Business Visitors (Appendix 1603 A1) Contrsquod

7 General Service Professionals engaging in a business activity at a professional level in a

profession set out in Appendix 1603D1 Management and supervisory personnel engaging in a commercial

transaction for an enterprise located in the USA or Mexico Financial services personnel (insurers bankers or investment brokers)

engaging in commercial transactions for an enterprise located in the USA or Mexico

Public relations and advertising personnel consulting with business associates or attending or participating in conventions

9

Source of Income Principle Place of Residence and Accrual of Profits Not in Canada

bull The Business Visitorrsquos primary source of income principal place of business and accrual of profits must remain in the United States or Mexico

bull The Business Visitor cannot directly enter the Canadian labour market and must be entering Canada on behalf of a business enterprise located in either USA or Mexico

10

No Work Permit

bull Business Visitors are the only NAFTA applicants who are exempt from having to obtain a work permit as they are not entering the Canadian labour market

bull Business visitors can stay in Canada for up to six (6) months

11

What does the Business Visitor need to Provide to the Canadian Border Officer

bull The Business Visitor must provide the following to the Border Officer at the Canadian Port of Entrya) Proof that they are seeking entry for one of the business purposes

listed in 1 to 7 aboveb) Proof of American or Mexican citizenshipc) Proof that the primary source of remuneration is outside of

Canadad) Proof that actual residence is outside of Canada e) Proof of accrual of profits remain outside of Canadaf) Evidence demonstrating that the proposed business activity is

international in scope and g) Letter from Canadian company they are doing business with

attesting to the above

12

Who else does not need a Work Permit to come to Canadabull In addition to the Business Visitors the following Applicants may not need a work permit if they fall into one of the following categories

ndash Foreign athletes and coaches ndash Aviation accident or incident investigators ndash Civil aviation inspectors ndash Clergyndash Convention organizers and administrative staffndash Crew membersndash Emergency service providersndash Examiners and evaluatorsndash Expert witnesses or investigatorsndash Family members of foreign representativesndash Foreign government officers

5

Business Visitors (Appendix 1603 A1)

bull To qualify as a Business Visitor an American or Mexican citizen must enter Canada to perform duties international in scope and therefore related to one of the following

1 Research and Design Technical scientific and statistical researchers conducting

independent research or research for an enterprise located in the USA or Mexico

2 Growth Manufacture and Production Harvester owner supervising a harvesting crew Purchasing and production management personnel conducting

commercial transactions for an enterprise located in the USA or Mexico

6

Business Visitors (Appendix 1603 A1) Contrsquod

3 Marketing Market researchers and analysts conducting independent research or

analysis or research or analysis for an enterprise located in the USA or Mexico

4 Sales Sales representatives and agents taking orders or negotiating

contracts for goods or services for an enterprise located in the USA or Mexico but not delivering goods or providing services

Buyers purchasing for an enterprise located in the USA or Mexico

5 Distribution Transportation operators transporting goods or passengers to Canada

from the USA or Mexico Customs brokers providing consulting services regarding the

facilitation of the import or export of goods

7

Business Visitors (Appendix 1603 A1) Contrsquod

6 After‐sales Service Installers repair and maintenance personnel and supervisors

possessing specialized knowledge essential to a sellerrsquos contractual obligation performing services or training workers to perform services pursuant to a warranty or other service contract incidental to the sale of commercial or industrial equipment or machinery including computer software purchased from an enterprise located in the USA or Mexico during the life of the warranty or service agreement

8

Business Visitors (Appendix 1603 A1) Contrsquod

7 General Service Professionals engaging in a business activity at a professional level in a

profession set out in Appendix 1603D1 Management and supervisory personnel engaging in a commercial

transaction for an enterprise located in the USA or Mexico Financial services personnel (insurers bankers or investment brokers)

engaging in commercial transactions for an enterprise located in the USA or Mexico

Public relations and advertising personnel consulting with business associates or attending or participating in conventions

9

Source of Income Principle Place of Residence and Accrual of Profits Not in Canada

bull The Business Visitorrsquos primary source of income principal place of business and accrual of profits must remain in the United States or Mexico

bull The Business Visitor cannot directly enter the Canadian labour market and must be entering Canada on behalf of a business enterprise located in either USA or Mexico

10

No Work Permit

bull Business Visitors are the only NAFTA applicants who are exempt from having to obtain a work permit as they are not entering the Canadian labour market

bull Business visitors can stay in Canada for up to six (6) months

11

What does the Business Visitor need to Provide to the Canadian Border Officer

bull The Business Visitor must provide the following to the Border Officer at the Canadian Port of Entrya) Proof that they are seeking entry for one of the business purposes

listed in 1 to 7 aboveb) Proof of American or Mexican citizenshipc) Proof that the primary source of remuneration is outside of

Canadad) Proof that actual residence is outside of Canada e) Proof of accrual of profits remain outside of Canadaf) Evidence demonstrating that the proposed business activity is

international in scope and g) Letter from Canadian company they are doing business with

attesting to the above

12

Who else does not need a Work Permit to come to Canadabull In addition to the Business Visitors the following Applicants may not need a work permit if they fall into one of the following categories

ndash Foreign athletes and coaches ndash Aviation accident or incident investigators ndash Civil aviation inspectors ndash Clergyndash Convention organizers and administrative staffndash Crew membersndash Emergency service providersndash Examiners and evaluatorsndash Expert witnesses or investigatorsndash Family members of foreign representativesndash Foreign government officers

6

Business Visitors (Appendix 1603 A1) Contrsquod

3 Marketing Market researchers and analysts conducting independent research or

analysis or research or analysis for an enterprise located in the USA or Mexico

4 Sales Sales representatives and agents taking orders or negotiating

contracts for goods or services for an enterprise located in the USA or Mexico but not delivering goods or providing services

Buyers purchasing for an enterprise located in the USA or Mexico

5 Distribution Transportation operators transporting goods or passengers to Canada

from the USA or Mexico Customs brokers providing consulting services regarding the

facilitation of the import or export of goods

7

Business Visitors (Appendix 1603 A1) Contrsquod

6 After‐sales Service Installers repair and maintenance personnel and supervisors

possessing specialized knowledge essential to a sellerrsquos contractual obligation performing services or training workers to perform services pursuant to a warranty or other service contract incidental to the sale of commercial or industrial equipment or machinery including computer software purchased from an enterprise located in the USA or Mexico during the life of the warranty or service agreement

8

Business Visitors (Appendix 1603 A1) Contrsquod

7 General Service Professionals engaging in a business activity at a professional level in a

profession set out in Appendix 1603D1 Management and supervisory personnel engaging in a commercial

transaction for an enterprise located in the USA or Mexico Financial services personnel (insurers bankers or investment brokers)

engaging in commercial transactions for an enterprise located in the USA or Mexico

Public relations and advertising personnel consulting with business associates or attending or participating in conventions

9

Source of Income Principle Place of Residence and Accrual of Profits Not in Canada

bull The Business Visitorrsquos primary source of income principal place of business and accrual of profits must remain in the United States or Mexico

bull The Business Visitor cannot directly enter the Canadian labour market and must be entering Canada on behalf of a business enterprise located in either USA or Mexico

10

No Work Permit

bull Business Visitors are the only NAFTA applicants who are exempt from having to obtain a work permit as they are not entering the Canadian labour market

bull Business visitors can stay in Canada for up to six (6) months

11

What does the Business Visitor need to Provide to the Canadian Border Officer

bull The Business Visitor must provide the following to the Border Officer at the Canadian Port of Entrya) Proof that they are seeking entry for one of the business purposes

listed in 1 to 7 aboveb) Proof of American or Mexican citizenshipc) Proof that the primary source of remuneration is outside of

Canadad) Proof that actual residence is outside of Canada e) Proof of accrual of profits remain outside of Canadaf) Evidence demonstrating that the proposed business activity is

international in scope and g) Letter from Canadian company they are doing business with

attesting to the above

12

Who else does not need a Work Permit to come to Canadabull In addition to the Business Visitors the following Applicants may not need a work permit if they fall into one of the following categories

ndash Foreign athletes and coaches ndash Aviation accident or incident investigators ndash Civil aviation inspectors ndash Clergyndash Convention organizers and administrative staffndash Crew membersndash Emergency service providersndash Examiners and evaluatorsndash Expert witnesses or investigatorsndash Family members of foreign representativesndash Foreign government officers

7

Business Visitors (Appendix 1603 A1) Contrsquod

6 After‐sales Service Installers repair and maintenance personnel and supervisors

possessing specialized knowledge essential to a sellerrsquos contractual obligation performing services or training workers to perform services pursuant to a warranty or other service contract incidental to the sale of commercial or industrial equipment or machinery including computer software purchased from an enterprise located in the USA or Mexico during the life of the warranty or service agreement

8

Business Visitors (Appendix 1603 A1) Contrsquod

7 General Service Professionals engaging in a business activity at a professional level in a

profession set out in Appendix 1603D1 Management and supervisory personnel engaging in a commercial

transaction for an enterprise located in the USA or Mexico Financial services personnel (insurers bankers or investment brokers)

engaging in commercial transactions for an enterprise located in the USA or Mexico

Public relations and advertising personnel consulting with business associates or attending or participating in conventions

9

Source of Income Principle Place of Residence and Accrual of Profits Not in Canada

bull The Business Visitorrsquos primary source of income principal place of business and accrual of profits must remain in the United States or Mexico

bull The Business Visitor cannot directly enter the Canadian labour market and must be entering Canada on behalf of a business enterprise located in either USA or Mexico

10

No Work Permit

bull Business Visitors are the only NAFTA applicants who are exempt from having to obtain a work permit as they are not entering the Canadian labour market

bull Business visitors can stay in Canada for up to six (6) months

11

What does the Business Visitor need to Provide to the Canadian Border Officer

bull The Business Visitor must provide the following to the Border Officer at the Canadian Port of Entrya) Proof that they are seeking entry for one of the business purposes

listed in 1 to 7 aboveb) Proof of American or Mexican citizenshipc) Proof that the primary source of remuneration is outside of

Canadad) Proof that actual residence is outside of Canada e) Proof of accrual of profits remain outside of Canadaf) Evidence demonstrating that the proposed business activity is

international in scope and g) Letter from Canadian company they are doing business with

attesting to the above

12

Who else does not need a Work Permit to come to Canadabull In addition to the Business Visitors the following Applicants may not need a work permit if they fall into one of the following categories

ndash Foreign athletes and coaches ndash Aviation accident or incident investigators ndash Civil aviation inspectors ndash Clergyndash Convention organizers and administrative staffndash Crew membersndash Emergency service providersndash Examiners and evaluatorsndash Expert witnesses or investigatorsndash Family members of foreign representativesndash Foreign government officers

8

Business Visitors (Appendix 1603 A1) Contrsquod

7 General Service Professionals engaging in a business activity at a professional level in a

profession set out in Appendix 1603D1 Management and supervisory personnel engaging in a commercial

transaction for an enterprise located in the USA or Mexico Financial services personnel (insurers bankers or investment brokers)

engaging in commercial transactions for an enterprise located in the USA or Mexico

Public relations and advertising personnel consulting with business associates or attending or participating in conventions

9

Source of Income Principle Place of Residence and Accrual of Profits Not in Canada

bull The Business Visitorrsquos primary source of income principal place of business and accrual of profits must remain in the United States or Mexico

bull The Business Visitor cannot directly enter the Canadian labour market and must be entering Canada on behalf of a business enterprise located in either USA or Mexico

10

No Work Permit

bull Business Visitors are the only NAFTA applicants who are exempt from having to obtain a work permit as they are not entering the Canadian labour market

bull Business visitors can stay in Canada for up to six (6) months

11

What does the Business Visitor need to Provide to the Canadian Border Officer

bull The Business Visitor must provide the following to the Border Officer at the Canadian Port of Entrya) Proof that they are seeking entry for one of the business purposes

listed in 1 to 7 aboveb) Proof of American or Mexican citizenshipc) Proof that the primary source of remuneration is outside of

Canadad) Proof that actual residence is outside of Canada e) Proof of accrual of profits remain outside of Canadaf) Evidence demonstrating that the proposed business activity is

international in scope and g) Letter from Canadian company they are doing business with

attesting to the above

12

Who else does not need a Work Permit to come to Canadabull In addition to the Business Visitors the following Applicants may not need a work permit if they fall into one of the following categories

ndash Foreign athletes and coaches ndash Aviation accident or incident investigators ndash Civil aviation inspectors ndash Clergyndash Convention organizers and administrative staffndash Crew membersndash Emergency service providersndash Examiners and evaluatorsndash Expert witnesses or investigatorsndash Family members of foreign representativesndash Foreign government officers

9

Source of Income Principle Place of Residence and Accrual of Profits Not in Canada

bull The Business Visitorrsquos primary source of income principal place of business and accrual of profits must remain in the United States or Mexico

bull The Business Visitor cannot directly enter the Canadian labour market and must be entering Canada on behalf of a business enterprise located in either USA or Mexico

10

No Work Permit

bull Business Visitors are the only NAFTA applicants who are exempt from having to obtain a work permit as they are not entering the Canadian labour market

bull Business visitors can stay in Canada for up to six (6) months

11

What does the Business Visitor need to Provide to the Canadian Border Officer

bull The Business Visitor must provide the following to the Border Officer at the Canadian Port of Entrya) Proof that they are seeking entry for one of the business purposes

listed in 1 to 7 aboveb) Proof of American or Mexican citizenshipc) Proof that the primary source of remuneration is outside of

Canadad) Proof that actual residence is outside of Canada e) Proof of accrual of profits remain outside of Canadaf) Evidence demonstrating that the proposed business activity is

international in scope and g) Letter from Canadian company they are doing business with

attesting to the above

12

Who else does not need a Work Permit to come to Canadabull In addition to the Business Visitors the following Applicants may not need a work permit if they fall into one of the following categories

ndash Foreign athletes and coaches ndash Aviation accident or incident investigators ndash Civil aviation inspectors ndash Clergyndash Convention organizers and administrative staffndash Crew membersndash Emergency service providersndash Examiners and evaluatorsndash Expert witnesses or investigatorsndash Family members of foreign representativesndash Foreign government officers

10

No Work Permit

bull Business Visitors are the only NAFTA applicants who are exempt from having to obtain a work permit as they are not entering the Canadian labour market

bull Business visitors can stay in Canada for up to six (6) months

11

What does the Business Visitor need to Provide to the Canadian Border Officer

bull The Business Visitor must provide the following to the Border Officer at the Canadian Port of Entrya) Proof that they are seeking entry for one of the business purposes

listed in 1 to 7 aboveb) Proof of American or Mexican citizenshipc) Proof that the primary source of remuneration is outside of

Canadad) Proof that actual residence is outside of Canada e) Proof of accrual of profits remain outside of Canadaf) Evidence demonstrating that the proposed business activity is

international in scope and g) Letter from Canadian company they are doing business with

attesting to the above

12

Who else does not need a Work Permit to come to Canadabull In addition to the Business Visitors the following Applicants may not need a work permit if they fall into one of the following categories

ndash Foreign athletes and coaches ndash Aviation accident or incident investigators ndash Civil aviation inspectors ndash Clergyndash Convention organizers and administrative staffndash Crew membersndash Emergency service providersndash Examiners and evaluatorsndash Expert witnesses or investigatorsndash Family members of foreign representativesndash Foreign government officers

11

What does the Business Visitor need to Provide to the Canadian Border Officer

bull The Business Visitor must provide the following to the Border Officer at the Canadian Port of Entrya) Proof that they are seeking entry for one of the business purposes

listed in 1 to 7 aboveb) Proof of American or Mexican citizenshipc) Proof that the primary source of remuneration is outside of

Canadad) Proof that actual residence is outside of Canada e) Proof of accrual of profits remain outside of Canadaf) Evidence demonstrating that the proposed business activity is

international in scope and g) Letter from Canadian company they are doing business with

attesting to the above

12

Who else does not need a Work Permit to come to Canadabull In addition to the Business Visitors the following Applicants may not need a work permit if they fall into one of the following categories

ndash Foreign athletes and coaches ndash Aviation accident or incident investigators ndash Civil aviation inspectors ndash Clergyndash Convention organizers and administrative staffndash Crew membersndash Emergency service providersndash Examiners and evaluatorsndash Expert witnesses or investigatorsndash Family members of foreign representativesndash Foreign government officers

12

Who else does not need a Work Permit to come to Canadabull In addition to the Business Visitors the following Applicants may not need a work permit if they fall into one of the following categories

ndash Foreign athletes and coaches ndash Aviation accident or incident investigators ndash Civil aviation inspectors ndash Clergyndash Convention organizers and administrative staffndash Crew membersndash Emergency service providersndash Examiners and evaluatorsndash Expert witnesses or investigatorsndash Family members of foreign representativesndash Foreign government officers

13

Who else does not need a Work Permit to come to Canada Contrsquod

ndash Foreign representativesndash Health‐care students (foreign students such as hospital residents or

students on a fellowship program)ndash Judges referees and similar officialsndash Military personnel (if receive an Order to enter Canada under Visiting

Forces Act)ndash News reporters film and media crewsndash Performing artists such as foreign based bands street performers

foreign circus world wrestlers and their essential staff (however none of them can perform in a bar or restaurant without a work permit) (They also cannot perform on a movie TV or Broadway without a work permit)

ndash Public speakers (as long as they are not here more than 5 days at a time)

14

Professionals

15

Professionals (Appendix 1603D1)

bull Certain American and Mexican professionals may enter Canada to provide pre‐arranged professional services To qualify for this category applicants must have a job offer froma Canadian employer in one of the 63 recognized occupations set out in 1603 D1 which includes the following categories

ndash Generalndash MedicalAllied Professionalsndash Scientistsndash Teachers

16

Generalbull Accountant ‐ Baccalalaureate or Licenciatura Degree or CPA CA CGAor CMA

bull Architect ‐ Baccalalaureate or Licenciatura Degree or stateprovince license

bull Computer Systems Analyst ‐ Baccalalaureate or Licenciatura Degree or PostSecondary Diploma or PostSecondary Certificate and three years experience

bull Disaster Relief Insurance Claims Adjuster (claims Adjuster employed by an insurance company located in the territory of a party or an independent claims adjuster) ‐ Baccalalaureate or Licenciatura Degree and successful completion of training in the appropriate area of insurance adjustment pertaining to disaster relief claims or three years experience in claims adjustment and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims

bull Economist ‐ Baccalalaureate or Licenciatura Degree

17

General Contrsquodbull Engineer ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Forester ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Graphic Designer ‐ Baccalalaureate or Licenciatura Degree or PostSecondary Diploma or PostSecondary Certificate and three years experience

bull Hotel Manager ‐ Baccalalaureate or Licenciatura Degree in hotelrestaurant management or PostSecondary Diploma or PostSecondary Certificate in hotelrestaurant management and three years experience in hotelrestaurant management

bull Industrial Designer ‐ Baccalalaureate or Licenciatura Degree or PostSecondary Diploma or PostSecondary Certificate and three years experience

bull Interior Designer ‐ Baccalalaureate or Licenciatura Degree or PostSecondary Diploma or PostSecondary Certificate and three years experience

18

General Contrsquodbull Land Surveyor ‐ Baccalalaureate or Licenciatura Degree or stateprovincialfederal license

bull Landscape Architect ‐ Baccalalaureate or Licenciatura Degreebull Lawyer (including Notary in the Province of Quebec) ndash LLB JD LLL BCL or Liceniatura Degree (five years) or membership in a stateprovincial bar

bull Management Consultant ‐ Baccalalaureate or Licenciatura Degree or equivalent professional experience as established by statement or professional credential attesting to five years experience as a management consultant or five year experience in a field of specialty related to the consulting agreement

bull Mathematician (including Statistician) ‐ Baccalalaureate or Licenciatura Degree

bull Range Manager Range Conservationalist ‐ Baccalalaureate or Licenciatura Degree

19

General Contrsquod

bull Research Assistant (working in a post‐secondary educational institution) ‐Baccalalaureate or Licenciatura Degree

bull Scientific TechnicianTechnologist ndash Possession of (a) theoretical knowledge of any of the following disciplines agricultural sciences astronomy biology chemistry engineering forestry geology geophysics meteorology or physics and (b) the ability to solve problems in any of those disciplines to basic or applied research

bull Social Worker ‐ Baccalalaureate or Licenciatura Degreebull Sylviculturist (including Forestry Specialist) ‐ Baccalalaureate or Licenciatura Degree

bull Technical Publications Writer ‐ Baccalalaureate or Licenciatura Degree or PostSecondary Diploma or PostSecondary Certificate and three years experience

bull Urban Planner (including Geographer) ‐ Baccalalaureate or Licenciatura Degree

bull Vocational Counsellor ‐ Baccalalaureate or Licenciatura Degree

20

MedicalAllied Professionalbull Dentist ndash DDS DMD Doctor en Odontologia or Doctor en Cirugia Dental or stateprovincial license

bull Dietician ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Medical Laboratory Technologist (Canada) Medical Technologist (Mexico and the United States) ‐ Baccalalaureate or Licenciatura Degree or PostSecondary Diploma or PostSecondary Certificate and three years experience

bull Nutritionist ‐ Baccalalaureate or Licenciatura Degreebull Occupational Therapist ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Pharmacist ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Physician (teaching or research only) ndash MD or Doctor en Medicina or stateprovincial license

21

MedicalAllied Professional continued

bull PhysiotherapistPhysical Therapist ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Psychologist ndash Stateprovincial license or Licenciatura Degreebull Recreational Therapist ‐ Baccalaureate or Licenciatura Degreebull Registered Nurse ‐ Stateprovincial license or Licenciatura Degreebull Veterinarian ndash DVM DMV or Doctor en Veterinaria or stateprovincial license

22

Scientists

bull Agriculturist (including Agronomist) ‐ Baccalaureate or Licenciatura Degreebull Animal Breeder ‐ Baccalaureate or Licenciatura Degreebull Animal Scientist ‐ Baccalaureate or Licenciatura Degreebull Apiculturist ‐ Baccalaureate or Licenciatura Degreebull Astronomer ‐ Baccalaureate or Licenciatura Degreebull Biochemist ‐ Baccalaureate or Licenciatura Degreebull Biologist ‐ Baccalaureate or Licenciatura Degreebull Chemist ‐ Baccalaureate or Licenciatura Degreebull Dairy Scientist ‐ Baccalaureate or Licenciatura Degreebull Entomologist ‐ Baccalaureate or Licenciatura Degreebull Epidemiologist ‐ Baccalaureate or Licenciatura Degreebull Geneticist ‐ Baccalaureate or Licenciatura Degree

23

Scientists Contrsquod

bull Geologist ‐ Baccalaureate or Licenciatura Degreebull Geochemist ‐ Baccalaureate or Licenciatura Degreebull Geophysicist (including Oceanographer in Mexico and the United States) ‐Baccalaureate or Licenciatura Degree

bull Horticulturist ‐ Baccalaureate or Licenciatura Degreebull Meteorologist ‐ Baccalaureate or Licenciatura Degreebull Pharmacologist ‐ Baccalaureate or Licenciatura Degreebull Physicist (including Oceanographer in Canada) ‐ Baccalaureate or Licenciatura Degree

bull Plant Breeder ‐ Baccalaureate or Licenciatura Degreebull Poultry Scientist ‐ Baccalaureate or Licenciatura Degreebull Soil Scientist ‐ Baccalaureate or Licenciatura Degreebull Zoologist ‐ Baccalaureate or Licenciatura Degree

24

Teachers

bull College ‐ Baccalaureate or Licenciatura Degree

bull Seminary ‐ Baccalaureate or Licenciatura Degree

bull University ‐ Baccalaureate or Licenciatura Degree

25

Professionals require a Work Permitbull These applicants must also apply for and obtain a work permit These professionals usually apply for their Canadian work permits at a Canadian port of entry but could do it in advance by making an application to a Canadian Visa office The work permit is usually granted for one (1) year however there is no limit on the number of extensions granted under this category

bull When applying the applicant will need to provide the Canadian Border Officer (or Canadian Visa office) the following

ndash Proof of American or Mexican citizenshipndash Proof of professional degrees diplomas or related accreditations andor related experiencendash Proof of holding all applicable licences for the occupationndash Resumendash Employment Offer and Employment Agreement from Canadian employer detailing the

professional duties the applicant will be providing to the Canadian corporationndash Document checklist Citizenship and Immigration formndash Photocopies of passport pagesndash Pay applicable fee of $15000

26

Intra‐Company Transferees

27

Intra‐Company Transfereesbull The applicant must be working for an American or Mexican company that is directly related to the Canadian company as a parent company branch or subsidiary relationship

bull Intra‐company Transferees must have been employed full‐time with an American or Mexican company hold for at least one year in an executive senior managerial or specialized knowledge position within the last three years and must be entering Canada to assume a similar position

bull Intra‐company Transferee applicants like professionals need to apply for work permits Work permits are generally granted for an initial period up to three (3) years Applicants can apply for extensions of two (2) years at a time up to a maximum

bull This is the only NAFTA category that has a ldquocaprdquo that limits the overall length of time that a foreign worker may hold a work permit The total period of stay for a person employed in an executive or managerial capacity is seven years The total period of stay for a person employed in a position requiring specialized knowledge is five years Applicants are eligible for a new work permit after one year has passed after the time cap

28

Intra‐Company Transferees require a Work Permitbull In order for the Intra‐company Transferee to obtain the work permit they need to show the Canadian Border Officer if they apply at a Canadian port of entry or send to a Canadian Visa office the following

ndash Proof of American or Mexican citizenshipndash Confirmation has been employed with the American or Mexican company for one

year continuously within the last three years before making the applicationndash Wage and Tax statements proving paid in the USA or Mexico in the last yearndash Organizational chart showing the corporate relationship between the USA or

Mexican company and Canadian companyndash Employment Agreement with USA company or Mexican company (proof of work

for one year in the last three years)ndash Document checklist Citizen and Immigration Canada formndash Photocopies of passport pagesndash Use of a Representative formndash Current employment contract to work as Intra‐company Transfereendash Resumendash Letter from employer confirmation of employmentndash Pay fee of $15000

29

Traders and Investors

30

A Traders

bull In order to qualify as a Trader an American or Mexican citizen must enter Canada to be involved in substantial trade in goods or services

bull To be considered substantial trade more than 50 percent of the total volume of international trade conducted must be between Canada and the United States or Mexico Traders must be employed in a supervisory or executive position or in one that involves essential skills that are vital to the effectiveness of the firmrsquos Canadian operations

31

Traders require a Work Permit

bull These applications are rather complex Traders need to apply to a Canadian Visa office before traveling to Canada Initial work permits given are for one (1) year And extension up to two (2) years is then usually granted

bull Traders must provide the followingndash Proof of American or Mexican citizenshipndash Proof that the enterprise in Canada the Trader is coming to has American or

Canadian Nationality (this has been defined to mean that the individual or corporate persons owns at least 50 (directly or by stock) in the entity established in Canada must hold American or Mexican citizenship)

ndash Trade is primarily between USA or Mexico and Canada andndash The Trader is working in a managerial or executive capacity Alternatively the

Trader could be working to provide Essential Skills and services (define have qualifications that are vital to the success of the Canadian Enterprises operations)

32

B Investors

bull Investors must have made or be in the process in making a substantial investment in an enterprise in Canada and intend to enter Canada to develop and direct the enterprise

bull There is no minimum investment to qualify Rather the application is assessed based on the circumstances and nature of the business The amount an applicant invests will be weighed against the total value of the current enterprise or against the total amount needed to establish the new enterprise As with Traders Investors must also be in a supervisory or executive role by directing controlling and guiding employees

33

Investors require a Work Permit

bull Like Traders these applications are complex and should be sent to a Canadian Visa office for approval prior to travelling to Canada The Investor will need to provide the following

ndash Proof of American or Mexican citizenshipndash Proof that the Investor made or is in the process of making a

substantial investment in an enterprise in Canadandash The enterprise in Canada in which the Investor is coming has American

or Mexican Nationality andndash The Investor is seeking entry solely to develop and direct the

enterprise in Canada

34

We Need Foreign Workers Now

Presenter Shawna Vogel

Partner

354178217_1

We Need Foreign Workers Now

General Rule ndash prove no Canadian can fill the job unless exception applies

bullNAFTA WORK PERMITS

‐ Professional

‐ Intracompany Transferee

bullGATS WORK PERMITS

‐ Professional ‐ limited

‐ Intracompany Transferee ndash same rules

364178217_2

A LMO and A‐LMO

1 Key Elements

bull Advertise position

bull Qualify candidates

bull Apply for and obtain Labour Market Opinion Confirmation (ldquoLMOrdquo)

bull Obtain work permit

374178217_2

2 Changes ‐ A‐LMO ndash Accelerated LMO

bull 10 day processing

bull Advertising and all other requirements still apply ndashpost issuance VERIFICATION

bull Only applies if positive LMO issued to employer in last 2 years

bull Positions ndash NOC O A B (management professional technical)

38

3 Changes ndash Wages under LMO

bull New Rule ndash must pay (i) same wage to TFW as to Canadian employees and (ii) median wage (or up to 5 ‐15 variance)

4178217_2

394178217_2

B Alberta 7 Occupation Pilot Project

Focus on semi‐skilled workerbull Steamfitterpipefitter

bull Welder

bull Estimator

bull Heavy duty equipment mechanic

bull Carpenter

bull Ironworker

bull Millwright and industrial mechanic

bull Estimator

404178217_2

C New

bull Compliance Requirements

bull AB Pilot project for working‐age dependent children of skilled workers

414178217_2

1 Passport expiry

2 Medical TRV Criminalitybull Delays due to need of medicals (where employee has

been in ldquomedically‐required country for 6 months in last year)

bull Delays (and change of venue of application) because of nationality (and not residence) of employee

bull Criminal record ndash be prepared

D Tips

42

R v COLE 2012 SCC 53

Presenter Fausto Franceschi

Partner

43

Background

bull Richard Cole was a high school computer science teacher in Ontario who was given a work‐issued laptop computer

bull He was permitted to use the laptop for incidental personal purposes

bull While performing maintenance activities on Colersquos laptop a school board technician found a hidden folder containing nude photos of a grade 10 female student which Cole had copied from the schoolrsquos network The technician notified the school principal who directed the technician to copy the photos onto a CD

44

Background

bull The principal seized the laptop from Cole and copied the internet browsing history (which contained a large amount of pornographic images) from it onto a second CD and handed over the laptop and the CDrsquos to the police who without a warrant reviewed their contents and created a mirror image of the hard drive for forensic purposes

bull The police decided it was not necessary to obtain a search warrant because the laptop was school property

bull Cole was charged with possession of child pornography

45

The Schoolrsquos Policy on Computer Use

bull The school had an Acceptable Use Policy which regulated access to the schoolrsquos computer network The policy provided that the school ldquomay monitor all student work and email including material saved on laptop hard drives Users should NOT assume that files stored on network servers or hard drives of individual computers will be privaterdquo This policy also applied to staff

46

The Schoolrsquos Policy on Computer Use

bull The School Board also had a policy applicable to teachers governing the acceptable use of school information technology The policy provided that ldquoall data and messages generated on or handled by board equipment are considered to be the property of the [school]rdquo The policy also allowed limited ldquoincidental personal userdquo of information technology prohibited the posting or accessing of certain inappropriate content (such as sexually explicit material) and provided that while email was considered private the School Board could open email in certain circumstances such as if inappropriate use was suspected

47

Issue

bull Whether the evidence found on the laptop could be admitted at trial or whether it was obtained by way of an unreasonable search and seizure contrary to section 8 of the Charter

48

Supreme Court of Canada

bull Cole had a privacy interest in his personal information on the computer

bull Just as Canadians have a reasonable expectation of privacy in their own personal computers they also have a privacy interest in their work computers ldquoat least where personal use is permitted or reasonably expectedrdquo

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

14

Professionals

15

Professionals (Appendix 1603D1)

bull Certain American and Mexican professionals may enter Canada to provide pre‐arranged professional services To qualify for this category applicants must have a job offer froma Canadian employer in one of the 63 recognized occupations set out in 1603 D1 which includes the following categories

ndash Generalndash MedicalAllied Professionalsndash Scientistsndash Teachers

16

Generalbull Accountant ‐ Baccalalaureate or Licenciatura Degree or CPA CA CGAor CMA

bull Architect ‐ Baccalalaureate or Licenciatura Degree or stateprovince license

bull Computer Systems Analyst ‐ Baccalalaureate or Licenciatura Degree or PostSecondary Diploma or PostSecondary Certificate and three years experience

bull Disaster Relief Insurance Claims Adjuster (claims Adjuster employed by an insurance company located in the territory of a party or an independent claims adjuster) ‐ Baccalalaureate or Licenciatura Degree and successful completion of training in the appropriate area of insurance adjustment pertaining to disaster relief claims or three years experience in claims adjustment and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims

bull Economist ‐ Baccalalaureate or Licenciatura Degree

17

General Contrsquodbull Engineer ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Forester ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Graphic Designer ‐ Baccalalaureate or Licenciatura Degree or PostSecondary Diploma or PostSecondary Certificate and three years experience

bull Hotel Manager ‐ Baccalalaureate or Licenciatura Degree in hotelrestaurant management or PostSecondary Diploma or PostSecondary Certificate in hotelrestaurant management and three years experience in hotelrestaurant management

bull Industrial Designer ‐ Baccalalaureate or Licenciatura Degree or PostSecondary Diploma or PostSecondary Certificate and three years experience

bull Interior Designer ‐ Baccalalaureate or Licenciatura Degree or PostSecondary Diploma or PostSecondary Certificate and three years experience

18

General Contrsquodbull Land Surveyor ‐ Baccalalaureate or Licenciatura Degree or stateprovincialfederal license

bull Landscape Architect ‐ Baccalalaureate or Licenciatura Degreebull Lawyer (including Notary in the Province of Quebec) ndash LLB JD LLL BCL or Liceniatura Degree (five years) or membership in a stateprovincial bar

bull Management Consultant ‐ Baccalalaureate or Licenciatura Degree or equivalent professional experience as established by statement or professional credential attesting to five years experience as a management consultant or five year experience in a field of specialty related to the consulting agreement

bull Mathematician (including Statistician) ‐ Baccalalaureate or Licenciatura Degree

bull Range Manager Range Conservationalist ‐ Baccalalaureate or Licenciatura Degree

19

General Contrsquod

bull Research Assistant (working in a post‐secondary educational institution) ‐Baccalalaureate or Licenciatura Degree

bull Scientific TechnicianTechnologist ndash Possession of (a) theoretical knowledge of any of the following disciplines agricultural sciences astronomy biology chemistry engineering forestry geology geophysics meteorology or physics and (b) the ability to solve problems in any of those disciplines to basic or applied research

bull Social Worker ‐ Baccalalaureate or Licenciatura Degreebull Sylviculturist (including Forestry Specialist) ‐ Baccalalaureate or Licenciatura Degree

bull Technical Publications Writer ‐ Baccalalaureate or Licenciatura Degree or PostSecondary Diploma or PostSecondary Certificate and three years experience

bull Urban Planner (including Geographer) ‐ Baccalalaureate or Licenciatura Degree

bull Vocational Counsellor ‐ Baccalalaureate or Licenciatura Degree

20

MedicalAllied Professionalbull Dentist ndash DDS DMD Doctor en Odontologia or Doctor en Cirugia Dental or stateprovincial license

bull Dietician ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Medical Laboratory Technologist (Canada) Medical Technologist (Mexico and the United States) ‐ Baccalalaureate or Licenciatura Degree or PostSecondary Diploma or PostSecondary Certificate and three years experience

bull Nutritionist ‐ Baccalalaureate or Licenciatura Degreebull Occupational Therapist ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Pharmacist ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Physician (teaching or research only) ndash MD or Doctor en Medicina or stateprovincial license

21

MedicalAllied Professional continued

bull PhysiotherapistPhysical Therapist ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Psychologist ndash Stateprovincial license or Licenciatura Degreebull Recreational Therapist ‐ Baccalaureate or Licenciatura Degreebull Registered Nurse ‐ Stateprovincial license or Licenciatura Degreebull Veterinarian ndash DVM DMV or Doctor en Veterinaria or stateprovincial license

22

Scientists

bull Agriculturist (including Agronomist) ‐ Baccalaureate or Licenciatura Degreebull Animal Breeder ‐ Baccalaureate or Licenciatura Degreebull Animal Scientist ‐ Baccalaureate or Licenciatura Degreebull Apiculturist ‐ Baccalaureate or Licenciatura Degreebull Astronomer ‐ Baccalaureate or Licenciatura Degreebull Biochemist ‐ Baccalaureate or Licenciatura Degreebull Biologist ‐ Baccalaureate or Licenciatura Degreebull Chemist ‐ Baccalaureate or Licenciatura Degreebull Dairy Scientist ‐ Baccalaureate or Licenciatura Degreebull Entomologist ‐ Baccalaureate or Licenciatura Degreebull Epidemiologist ‐ Baccalaureate or Licenciatura Degreebull Geneticist ‐ Baccalaureate or Licenciatura Degree

23

Scientists Contrsquod

bull Geologist ‐ Baccalaureate or Licenciatura Degreebull Geochemist ‐ Baccalaureate or Licenciatura Degreebull Geophysicist (including Oceanographer in Mexico and the United States) ‐Baccalaureate or Licenciatura Degree

bull Horticulturist ‐ Baccalaureate or Licenciatura Degreebull Meteorologist ‐ Baccalaureate or Licenciatura Degreebull Pharmacologist ‐ Baccalaureate or Licenciatura Degreebull Physicist (including Oceanographer in Canada) ‐ Baccalaureate or Licenciatura Degree

bull Plant Breeder ‐ Baccalaureate or Licenciatura Degreebull Poultry Scientist ‐ Baccalaureate or Licenciatura Degreebull Soil Scientist ‐ Baccalaureate or Licenciatura Degreebull Zoologist ‐ Baccalaureate or Licenciatura Degree

24

Teachers

bull College ‐ Baccalaureate or Licenciatura Degree

bull Seminary ‐ Baccalaureate or Licenciatura Degree

bull University ‐ Baccalaureate or Licenciatura Degree

25

Professionals require a Work Permitbull These applicants must also apply for and obtain a work permit These professionals usually apply for their Canadian work permits at a Canadian port of entry but could do it in advance by making an application to a Canadian Visa office The work permit is usually granted for one (1) year however there is no limit on the number of extensions granted under this category

bull When applying the applicant will need to provide the Canadian Border Officer (or Canadian Visa office) the following

ndash Proof of American or Mexican citizenshipndash Proof of professional degrees diplomas or related accreditations andor related experiencendash Proof of holding all applicable licences for the occupationndash Resumendash Employment Offer and Employment Agreement from Canadian employer detailing the

professional duties the applicant will be providing to the Canadian corporationndash Document checklist Citizenship and Immigration formndash Photocopies of passport pagesndash Pay applicable fee of $15000

26

Intra‐Company Transferees

27

Intra‐Company Transfereesbull The applicant must be working for an American or Mexican company that is directly related to the Canadian company as a parent company branch or subsidiary relationship

bull Intra‐company Transferees must have been employed full‐time with an American or Mexican company hold for at least one year in an executive senior managerial or specialized knowledge position within the last three years and must be entering Canada to assume a similar position

bull Intra‐company Transferee applicants like professionals need to apply for work permits Work permits are generally granted for an initial period up to three (3) years Applicants can apply for extensions of two (2) years at a time up to a maximum

bull This is the only NAFTA category that has a ldquocaprdquo that limits the overall length of time that a foreign worker may hold a work permit The total period of stay for a person employed in an executive or managerial capacity is seven years The total period of stay for a person employed in a position requiring specialized knowledge is five years Applicants are eligible for a new work permit after one year has passed after the time cap

28

Intra‐Company Transferees require a Work Permitbull In order for the Intra‐company Transferee to obtain the work permit they need to show the Canadian Border Officer if they apply at a Canadian port of entry or send to a Canadian Visa office the following

ndash Proof of American or Mexican citizenshipndash Confirmation has been employed with the American or Mexican company for one

year continuously within the last three years before making the applicationndash Wage and Tax statements proving paid in the USA or Mexico in the last yearndash Organizational chart showing the corporate relationship between the USA or

Mexican company and Canadian companyndash Employment Agreement with USA company or Mexican company (proof of work

for one year in the last three years)ndash Document checklist Citizen and Immigration Canada formndash Photocopies of passport pagesndash Use of a Representative formndash Current employment contract to work as Intra‐company Transfereendash Resumendash Letter from employer confirmation of employmentndash Pay fee of $15000

29

Traders and Investors

30

A Traders

bull In order to qualify as a Trader an American or Mexican citizen must enter Canada to be involved in substantial trade in goods or services

bull To be considered substantial trade more than 50 percent of the total volume of international trade conducted must be between Canada and the United States or Mexico Traders must be employed in a supervisory or executive position or in one that involves essential skills that are vital to the effectiveness of the firmrsquos Canadian operations

31

Traders require a Work Permit

bull These applications are rather complex Traders need to apply to a Canadian Visa office before traveling to Canada Initial work permits given are for one (1) year And extension up to two (2) years is then usually granted

bull Traders must provide the followingndash Proof of American or Mexican citizenshipndash Proof that the enterprise in Canada the Trader is coming to has American or

Canadian Nationality (this has been defined to mean that the individual or corporate persons owns at least 50 (directly or by stock) in the entity established in Canada must hold American or Mexican citizenship)

ndash Trade is primarily between USA or Mexico and Canada andndash The Trader is working in a managerial or executive capacity Alternatively the

Trader could be working to provide Essential Skills and services (define have qualifications that are vital to the success of the Canadian Enterprises operations)

32

B Investors

bull Investors must have made or be in the process in making a substantial investment in an enterprise in Canada and intend to enter Canada to develop and direct the enterprise

bull There is no minimum investment to qualify Rather the application is assessed based on the circumstances and nature of the business The amount an applicant invests will be weighed against the total value of the current enterprise or against the total amount needed to establish the new enterprise As with Traders Investors must also be in a supervisory or executive role by directing controlling and guiding employees

33

Investors require a Work Permit

bull Like Traders these applications are complex and should be sent to a Canadian Visa office for approval prior to travelling to Canada The Investor will need to provide the following

ndash Proof of American or Mexican citizenshipndash Proof that the Investor made or is in the process of making a

substantial investment in an enterprise in Canadandash The enterprise in Canada in which the Investor is coming has American

or Mexican Nationality andndash The Investor is seeking entry solely to develop and direct the

enterprise in Canada

34

We Need Foreign Workers Now

Presenter Shawna Vogel

Partner

354178217_1

We Need Foreign Workers Now

General Rule ndash prove no Canadian can fill the job unless exception applies

bullNAFTA WORK PERMITS

‐ Professional

‐ Intracompany Transferee

bullGATS WORK PERMITS

‐ Professional ‐ limited

‐ Intracompany Transferee ndash same rules

364178217_2

A LMO and A‐LMO

1 Key Elements

bull Advertise position

bull Qualify candidates

bull Apply for and obtain Labour Market Opinion Confirmation (ldquoLMOrdquo)

bull Obtain work permit

374178217_2

2 Changes ‐ A‐LMO ndash Accelerated LMO

bull 10 day processing

bull Advertising and all other requirements still apply ndashpost issuance VERIFICATION

bull Only applies if positive LMO issued to employer in last 2 years

bull Positions ndash NOC O A B (management professional technical)

38

3 Changes ndash Wages under LMO

bull New Rule ndash must pay (i) same wage to TFW as to Canadian employees and (ii) median wage (or up to 5 ‐15 variance)

4178217_2

394178217_2

B Alberta 7 Occupation Pilot Project

Focus on semi‐skilled workerbull Steamfitterpipefitter

bull Welder

bull Estimator

bull Heavy duty equipment mechanic

bull Carpenter

bull Ironworker

bull Millwright and industrial mechanic

bull Estimator

404178217_2

C New

bull Compliance Requirements

bull AB Pilot project for working‐age dependent children of skilled workers

414178217_2

1 Passport expiry

2 Medical TRV Criminalitybull Delays due to need of medicals (where employee has

been in ldquomedically‐required country for 6 months in last year)

bull Delays (and change of venue of application) because of nationality (and not residence) of employee

bull Criminal record ndash be prepared

D Tips

42

R v COLE 2012 SCC 53

Presenter Fausto Franceschi

Partner

43

Background

bull Richard Cole was a high school computer science teacher in Ontario who was given a work‐issued laptop computer

bull He was permitted to use the laptop for incidental personal purposes

bull While performing maintenance activities on Colersquos laptop a school board technician found a hidden folder containing nude photos of a grade 10 female student which Cole had copied from the schoolrsquos network The technician notified the school principal who directed the technician to copy the photos onto a CD

44

Background

bull The principal seized the laptop from Cole and copied the internet browsing history (which contained a large amount of pornographic images) from it onto a second CD and handed over the laptop and the CDrsquos to the police who without a warrant reviewed their contents and created a mirror image of the hard drive for forensic purposes

bull The police decided it was not necessary to obtain a search warrant because the laptop was school property

bull Cole was charged with possession of child pornography

45

The Schoolrsquos Policy on Computer Use

bull The school had an Acceptable Use Policy which regulated access to the schoolrsquos computer network The policy provided that the school ldquomay monitor all student work and email including material saved on laptop hard drives Users should NOT assume that files stored on network servers or hard drives of individual computers will be privaterdquo This policy also applied to staff

46

The Schoolrsquos Policy on Computer Use

bull The School Board also had a policy applicable to teachers governing the acceptable use of school information technology The policy provided that ldquoall data and messages generated on or handled by board equipment are considered to be the property of the [school]rdquo The policy also allowed limited ldquoincidental personal userdquo of information technology prohibited the posting or accessing of certain inappropriate content (such as sexually explicit material) and provided that while email was considered private the School Board could open email in certain circumstances such as if inappropriate use was suspected

47

Issue

bull Whether the evidence found on the laptop could be admitted at trial or whether it was obtained by way of an unreasonable search and seizure contrary to section 8 of the Charter

48

Supreme Court of Canada

bull Cole had a privacy interest in his personal information on the computer

bull Just as Canadians have a reasonable expectation of privacy in their own personal computers they also have a privacy interest in their work computers ldquoat least where personal use is permitted or reasonably expectedrdquo

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

15

Professionals (Appendix 1603D1)

bull Certain American and Mexican professionals may enter Canada to provide pre‐arranged professional services To qualify for this category applicants must have a job offer froma Canadian employer in one of the 63 recognized occupations set out in 1603 D1 which includes the following categories

ndash Generalndash MedicalAllied Professionalsndash Scientistsndash Teachers

16

Generalbull Accountant ‐ Baccalalaureate or Licenciatura Degree or CPA CA CGAor CMA

bull Architect ‐ Baccalalaureate or Licenciatura Degree or stateprovince license

bull Computer Systems Analyst ‐ Baccalalaureate or Licenciatura Degree or PostSecondary Diploma or PostSecondary Certificate and three years experience

bull Disaster Relief Insurance Claims Adjuster (claims Adjuster employed by an insurance company located in the territory of a party or an independent claims adjuster) ‐ Baccalalaureate or Licenciatura Degree and successful completion of training in the appropriate area of insurance adjustment pertaining to disaster relief claims or three years experience in claims adjustment and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims

bull Economist ‐ Baccalalaureate or Licenciatura Degree

17

General Contrsquodbull Engineer ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Forester ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Graphic Designer ‐ Baccalalaureate or Licenciatura Degree or PostSecondary Diploma or PostSecondary Certificate and three years experience

bull Hotel Manager ‐ Baccalalaureate or Licenciatura Degree in hotelrestaurant management or PostSecondary Diploma or PostSecondary Certificate in hotelrestaurant management and three years experience in hotelrestaurant management

bull Industrial Designer ‐ Baccalalaureate or Licenciatura Degree or PostSecondary Diploma or PostSecondary Certificate and three years experience

bull Interior Designer ‐ Baccalalaureate or Licenciatura Degree or PostSecondary Diploma or PostSecondary Certificate and three years experience

18

General Contrsquodbull Land Surveyor ‐ Baccalalaureate or Licenciatura Degree or stateprovincialfederal license

bull Landscape Architect ‐ Baccalalaureate or Licenciatura Degreebull Lawyer (including Notary in the Province of Quebec) ndash LLB JD LLL BCL or Liceniatura Degree (five years) or membership in a stateprovincial bar

bull Management Consultant ‐ Baccalalaureate or Licenciatura Degree or equivalent professional experience as established by statement or professional credential attesting to five years experience as a management consultant or five year experience in a field of specialty related to the consulting agreement

bull Mathematician (including Statistician) ‐ Baccalalaureate or Licenciatura Degree

bull Range Manager Range Conservationalist ‐ Baccalalaureate or Licenciatura Degree

19

General Contrsquod

bull Research Assistant (working in a post‐secondary educational institution) ‐Baccalalaureate or Licenciatura Degree

bull Scientific TechnicianTechnologist ndash Possession of (a) theoretical knowledge of any of the following disciplines agricultural sciences astronomy biology chemistry engineering forestry geology geophysics meteorology or physics and (b) the ability to solve problems in any of those disciplines to basic or applied research

bull Social Worker ‐ Baccalalaureate or Licenciatura Degreebull Sylviculturist (including Forestry Specialist) ‐ Baccalalaureate or Licenciatura Degree

bull Technical Publications Writer ‐ Baccalalaureate or Licenciatura Degree or PostSecondary Diploma or PostSecondary Certificate and three years experience

bull Urban Planner (including Geographer) ‐ Baccalalaureate or Licenciatura Degree

bull Vocational Counsellor ‐ Baccalalaureate or Licenciatura Degree

20

MedicalAllied Professionalbull Dentist ndash DDS DMD Doctor en Odontologia or Doctor en Cirugia Dental or stateprovincial license

bull Dietician ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Medical Laboratory Technologist (Canada) Medical Technologist (Mexico and the United States) ‐ Baccalalaureate or Licenciatura Degree or PostSecondary Diploma or PostSecondary Certificate and three years experience

bull Nutritionist ‐ Baccalalaureate or Licenciatura Degreebull Occupational Therapist ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Pharmacist ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Physician (teaching or research only) ndash MD or Doctor en Medicina or stateprovincial license

21

MedicalAllied Professional continued

bull PhysiotherapistPhysical Therapist ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Psychologist ndash Stateprovincial license or Licenciatura Degreebull Recreational Therapist ‐ Baccalaureate or Licenciatura Degreebull Registered Nurse ‐ Stateprovincial license or Licenciatura Degreebull Veterinarian ndash DVM DMV or Doctor en Veterinaria or stateprovincial license

22

Scientists

bull Agriculturist (including Agronomist) ‐ Baccalaureate or Licenciatura Degreebull Animal Breeder ‐ Baccalaureate or Licenciatura Degreebull Animal Scientist ‐ Baccalaureate or Licenciatura Degreebull Apiculturist ‐ Baccalaureate or Licenciatura Degreebull Astronomer ‐ Baccalaureate or Licenciatura Degreebull Biochemist ‐ Baccalaureate or Licenciatura Degreebull Biologist ‐ Baccalaureate or Licenciatura Degreebull Chemist ‐ Baccalaureate or Licenciatura Degreebull Dairy Scientist ‐ Baccalaureate or Licenciatura Degreebull Entomologist ‐ Baccalaureate or Licenciatura Degreebull Epidemiologist ‐ Baccalaureate or Licenciatura Degreebull Geneticist ‐ Baccalaureate or Licenciatura Degree

23

Scientists Contrsquod

bull Geologist ‐ Baccalaureate or Licenciatura Degreebull Geochemist ‐ Baccalaureate or Licenciatura Degreebull Geophysicist (including Oceanographer in Mexico and the United States) ‐Baccalaureate or Licenciatura Degree

bull Horticulturist ‐ Baccalaureate or Licenciatura Degreebull Meteorologist ‐ Baccalaureate or Licenciatura Degreebull Pharmacologist ‐ Baccalaureate or Licenciatura Degreebull Physicist (including Oceanographer in Canada) ‐ Baccalaureate or Licenciatura Degree

bull Plant Breeder ‐ Baccalaureate or Licenciatura Degreebull Poultry Scientist ‐ Baccalaureate or Licenciatura Degreebull Soil Scientist ‐ Baccalaureate or Licenciatura Degreebull Zoologist ‐ Baccalaureate or Licenciatura Degree

24

Teachers

bull College ‐ Baccalaureate or Licenciatura Degree

bull Seminary ‐ Baccalaureate or Licenciatura Degree

bull University ‐ Baccalaureate or Licenciatura Degree

25

Professionals require a Work Permitbull These applicants must also apply for and obtain a work permit These professionals usually apply for their Canadian work permits at a Canadian port of entry but could do it in advance by making an application to a Canadian Visa office The work permit is usually granted for one (1) year however there is no limit on the number of extensions granted under this category

bull When applying the applicant will need to provide the Canadian Border Officer (or Canadian Visa office) the following

ndash Proof of American or Mexican citizenshipndash Proof of professional degrees diplomas or related accreditations andor related experiencendash Proof of holding all applicable licences for the occupationndash Resumendash Employment Offer and Employment Agreement from Canadian employer detailing the

professional duties the applicant will be providing to the Canadian corporationndash Document checklist Citizenship and Immigration formndash Photocopies of passport pagesndash Pay applicable fee of $15000

26

Intra‐Company Transferees

27

Intra‐Company Transfereesbull The applicant must be working for an American or Mexican company that is directly related to the Canadian company as a parent company branch or subsidiary relationship

bull Intra‐company Transferees must have been employed full‐time with an American or Mexican company hold for at least one year in an executive senior managerial or specialized knowledge position within the last three years and must be entering Canada to assume a similar position

bull Intra‐company Transferee applicants like professionals need to apply for work permits Work permits are generally granted for an initial period up to three (3) years Applicants can apply for extensions of two (2) years at a time up to a maximum

bull This is the only NAFTA category that has a ldquocaprdquo that limits the overall length of time that a foreign worker may hold a work permit The total period of stay for a person employed in an executive or managerial capacity is seven years The total period of stay for a person employed in a position requiring specialized knowledge is five years Applicants are eligible for a new work permit after one year has passed after the time cap

28

Intra‐Company Transferees require a Work Permitbull In order for the Intra‐company Transferee to obtain the work permit they need to show the Canadian Border Officer if they apply at a Canadian port of entry or send to a Canadian Visa office the following

ndash Proof of American or Mexican citizenshipndash Confirmation has been employed with the American or Mexican company for one

year continuously within the last three years before making the applicationndash Wage and Tax statements proving paid in the USA or Mexico in the last yearndash Organizational chart showing the corporate relationship between the USA or

Mexican company and Canadian companyndash Employment Agreement with USA company or Mexican company (proof of work

for one year in the last three years)ndash Document checklist Citizen and Immigration Canada formndash Photocopies of passport pagesndash Use of a Representative formndash Current employment contract to work as Intra‐company Transfereendash Resumendash Letter from employer confirmation of employmentndash Pay fee of $15000

29

Traders and Investors

30

A Traders

bull In order to qualify as a Trader an American or Mexican citizen must enter Canada to be involved in substantial trade in goods or services

bull To be considered substantial trade more than 50 percent of the total volume of international trade conducted must be between Canada and the United States or Mexico Traders must be employed in a supervisory or executive position or in one that involves essential skills that are vital to the effectiveness of the firmrsquos Canadian operations

31

Traders require a Work Permit

bull These applications are rather complex Traders need to apply to a Canadian Visa office before traveling to Canada Initial work permits given are for one (1) year And extension up to two (2) years is then usually granted

bull Traders must provide the followingndash Proof of American or Mexican citizenshipndash Proof that the enterprise in Canada the Trader is coming to has American or

Canadian Nationality (this has been defined to mean that the individual or corporate persons owns at least 50 (directly or by stock) in the entity established in Canada must hold American or Mexican citizenship)

ndash Trade is primarily between USA or Mexico and Canada andndash The Trader is working in a managerial or executive capacity Alternatively the

Trader could be working to provide Essential Skills and services (define have qualifications that are vital to the success of the Canadian Enterprises operations)

32

B Investors

bull Investors must have made or be in the process in making a substantial investment in an enterprise in Canada and intend to enter Canada to develop and direct the enterprise

bull There is no minimum investment to qualify Rather the application is assessed based on the circumstances and nature of the business The amount an applicant invests will be weighed against the total value of the current enterprise or against the total amount needed to establish the new enterprise As with Traders Investors must also be in a supervisory or executive role by directing controlling and guiding employees

33

Investors require a Work Permit

bull Like Traders these applications are complex and should be sent to a Canadian Visa office for approval prior to travelling to Canada The Investor will need to provide the following

ndash Proof of American or Mexican citizenshipndash Proof that the Investor made or is in the process of making a

substantial investment in an enterprise in Canadandash The enterprise in Canada in which the Investor is coming has American

or Mexican Nationality andndash The Investor is seeking entry solely to develop and direct the

enterprise in Canada

34

We Need Foreign Workers Now

Presenter Shawna Vogel

Partner

354178217_1

We Need Foreign Workers Now

General Rule ndash prove no Canadian can fill the job unless exception applies

bullNAFTA WORK PERMITS

‐ Professional

‐ Intracompany Transferee

bullGATS WORK PERMITS

‐ Professional ‐ limited

‐ Intracompany Transferee ndash same rules

364178217_2

A LMO and A‐LMO

1 Key Elements

bull Advertise position

bull Qualify candidates

bull Apply for and obtain Labour Market Opinion Confirmation (ldquoLMOrdquo)

bull Obtain work permit

374178217_2

2 Changes ‐ A‐LMO ndash Accelerated LMO

bull 10 day processing

bull Advertising and all other requirements still apply ndashpost issuance VERIFICATION

bull Only applies if positive LMO issued to employer in last 2 years

bull Positions ndash NOC O A B (management professional technical)

38

3 Changes ndash Wages under LMO

bull New Rule ndash must pay (i) same wage to TFW as to Canadian employees and (ii) median wage (or up to 5 ‐15 variance)

4178217_2

394178217_2

B Alberta 7 Occupation Pilot Project

Focus on semi‐skilled workerbull Steamfitterpipefitter

bull Welder

bull Estimator

bull Heavy duty equipment mechanic

bull Carpenter

bull Ironworker

bull Millwright and industrial mechanic

bull Estimator

404178217_2

C New

bull Compliance Requirements

bull AB Pilot project for working‐age dependent children of skilled workers

414178217_2

1 Passport expiry

2 Medical TRV Criminalitybull Delays due to need of medicals (where employee has

been in ldquomedically‐required country for 6 months in last year)

bull Delays (and change of venue of application) because of nationality (and not residence) of employee

bull Criminal record ndash be prepared

D Tips

42

R v COLE 2012 SCC 53

Presenter Fausto Franceschi

Partner

43

Background

bull Richard Cole was a high school computer science teacher in Ontario who was given a work‐issued laptop computer

bull He was permitted to use the laptop for incidental personal purposes

bull While performing maintenance activities on Colersquos laptop a school board technician found a hidden folder containing nude photos of a grade 10 female student which Cole had copied from the schoolrsquos network The technician notified the school principal who directed the technician to copy the photos onto a CD

44

Background

bull The principal seized the laptop from Cole and copied the internet browsing history (which contained a large amount of pornographic images) from it onto a second CD and handed over the laptop and the CDrsquos to the police who without a warrant reviewed their contents and created a mirror image of the hard drive for forensic purposes

bull The police decided it was not necessary to obtain a search warrant because the laptop was school property

bull Cole was charged with possession of child pornography

45

The Schoolrsquos Policy on Computer Use

bull The school had an Acceptable Use Policy which regulated access to the schoolrsquos computer network The policy provided that the school ldquomay monitor all student work and email including material saved on laptop hard drives Users should NOT assume that files stored on network servers or hard drives of individual computers will be privaterdquo This policy also applied to staff

46

The Schoolrsquos Policy on Computer Use

bull The School Board also had a policy applicable to teachers governing the acceptable use of school information technology The policy provided that ldquoall data and messages generated on or handled by board equipment are considered to be the property of the [school]rdquo The policy also allowed limited ldquoincidental personal userdquo of information technology prohibited the posting or accessing of certain inappropriate content (such as sexually explicit material) and provided that while email was considered private the School Board could open email in certain circumstances such as if inappropriate use was suspected

47

Issue

bull Whether the evidence found on the laptop could be admitted at trial or whether it was obtained by way of an unreasonable search and seizure contrary to section 8 of the Charter

48

Supreme Court of Canada

bull Cole had a privacy interest in his personal information on the computer

bull Just as Canadians have a reasonable expectation of privacy in their own personal computers they also have a privacy interest in their work computers ldquoat least where personal use is permitted or reasonably expectedrdquo

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

16

Generalbull Accountant ‐ Baccalalaureate or Licenciatura Degree or CPA CA CGAor CMA

bull Architect ‐ Baccalalaureate or Licenciatura Degree or stateprovince license

bull Computer Systems Analyst ‐ Baccalalaureate or Licenciatura Degree or PostSecondary Diploma or PostSecondary Certificate and three years experience

bull Disaster Relief Insurance Claims Adjuster (claims Adjuster employed by an insurance company located in the territory of a party or an independent claims adjuster) ‐ Baccalalaureate or Licenciatura Degree and successful completion of training in the appropriate area of insurance adjustment pertaining to disaster relief claims or three years experience in claims adjustment and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims

bull Economist ‐ Baccalalaureate or Licenciatura Degree

17

General Contrsquodbull Engineer ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Forester ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Graphic Designer ‐ Baccalalaureate or Licenciatura Degree or PostSecondary Diploma or PostSecondary Certificate and three years experience

bull Hotel Manager ‐ Baccalalaureate or Licenciatura Degree in hotelrestaurant management or PostSecondary Diploma or PostSecondary Certificate in hotelrestaurant management and three years experience in hotelrestaurant management

bull Industrial Designer ‐ Baccalalaureate or Licenciatura Degree or PostSecondary Diploma or PostSecondary Certificate and three years experience

bull Interior Designer ‐ Baccalalaureate or Licenciatura Degree or PostSecondary Diploma or PostSecondary Certificate and three years experience

18

General Contrsquodbull Land Surveyor ‐ Baccalalaureate or Licenciatura Degree or stateprovincialfederal license

bull Landscape Architect ‐ Baccalalaureate or Licenciatura Degreebull Lawyer (including Notary in the Province of Quebec) ndash LLB JD LLL BCL or Liceniatura Degree (five years) or membership in a stateprovincial bar

bull Management Consultant ‐ Baccalalaureate or Licenciatura Degree or equivalent professional experience as established by statement or professional credential attesting to five years experience as a management consultant or five year experience in a field of specialty related to the consulting agreement

bull Mathematician (including Statistician) ‐ Baccalalaureate or Licenciatura Degree

bull Range Manager Range Conservationalist ‐ Baccalalaureate or Licenciatura Degree

19

General Contrsquod

bull Research Assistant (working in a post‐secondary educational institution) ‐Baccalalaureate or Licenciatura Degree

bull Scientific TechnicianTechnologist ndash Possession of (a) theoretical knowledge of any of the following disciplines agricultural sciences astronomy biology chemistry engineering forestry geology geophysics meteorology or physics and (b) the ability to solve problems in any of those disciplines to basic or applied research

bull Social Worker ‐ Baccalalaureate or Licenciatura Degreebull Sylviculturist (including Forestry Specialist) ‐ Baccalalaureate or Licenciatura Degree

bull Technical Publications Writer ‐ Baccalalaureate or Licenciatura Degree or PostSecondary Diploma or PostSecondary Certificate and three years experience

bull Urban Planner (including Geographer) ‐ Baccalalaureate or Licenciatura Degree

bull Vocational Counsellor ‐ Baccalalaureate or Licenciatura Degree

20

MedicalAllied Professionalbull Dentist ndash DDS DMD Doctor en Odontologia or Doctor en Cirugia Dental or stateprovincial license

bull Dietician ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Medical Laboratory Technologist (Canada) Medical Technologist (Mexico and the United States) ‐ Baccalalaureate or Licenciatura Degree or PostSecondary Diploma or PostSecondary Certificate and three years experience

bull Nutritionist ‐ Baccalalaureate or Licenciatura Degreebull Occupational Therapist ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Pharmacist ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Physician (teaching or research only) ndash MD or Doctor en Medicina or stateprovincial license

21

MedicalAllied Professional continued

bull PhysiotherapistPhysical Therapist ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Psychologist ndash Stateprovincial license or Licenciatura Degreebull Recreational Therapist ‐ Baccalaureate or Licenciatura Degreebull Registered Nurse ‐ Stateprovincial license or Licenciatura Degreebull Veterinarian ndash DVM DMV or Doctor en Veterinaria or stateprovincial license

22

Scientists

bull Agriculturist (including Agronomist) ‐ Baccalaureate or Licenciatura Degreebull Animal Breeder ‐ Baccalaureate or Licenciatura Degreebull Animal Scientist ‐ Baccalaureate or Licenciatura Degreebull Apiculturist ‐ Baccalaureate or Licenciatura Degreebull Astronomer ‐ Baccalaureate or Licenciatura Degreebull Biochemist ‐ Baccalaureate or Licenciatura Degreebull Biologist ‐ Baccalaureate or Licenciatura Degreebull Chemist ‐ Baccalaureate or Licenciatura Degreebull Dairy Scientist ‐ Baccalaureate or Licenciatura Degreebull Entomologist ‐ Baccalaureate or Licenciatura Degreebull Epidemiologist ‐ Baccalaureate or Licenciatura Degreebull Geneticist ‐ Baccalaureate or Licenciatura Degree

23

Scientists Contrsquod

bull Geologist ‐ Baccalaureate or Licenciatura Degreebull Geochemist ‐ Baccalaureate or Licenciatura Degreebull Geophysicist (including Oceanographer in Mexico and the United States) ‐Baccalaureate or Licenciatura Degree

bull Horticulturist ‐ Baccalaureate or Licenciatura Degreebull Meteorologist ‐ Baccalaureate or Licenciatura Degreebull Pharmacologist ‐ Baccalaureate or Licenciatura Degreebull Physicist (including Oceanographer in Canada) ‐ Baccalaureate or Licenciatura Degree

bull Plant Breeder ‐ Baccalaureate or Licenciatura Degreebull Poultry Scientist ‐ Baccalaureate or Licenciatura Degreebull Soil Scientist ‐ Baccalaureate or Licenciatura Degreebull Zoologist ‐ Baccalaureate or Licenciatura Degree

24

Teachers

bull College ‐ Baccalaureate or Licenciatura Degree

bull Seminary ‐ Baccalaureate or Licenciatura Degree

bull University ‐ Baccalaureate or Licenciatura Degree

25

Professionals require a Work Permitbull These applicants must also apply for and obtain a work permit These professionals usually apply for their Canadian work permits at a Canadian port of entry but could do it in advance by making an application to a Canadian Visa office The work permit is usually granted for one (1) year however there is no limit on the number of extensions granted under this category

bull When applying the applicant will need to provide the Canadian Border Officer (or Canadian Visa office) the following

ndash Proof of American or Mexican citizenshipndash Proof of professional degrees diplomas or related accreditations andor related experiencendash Proof of holding all applicable licences for the occupationndash Resumendash Employment Offer and Employment Agreement from Canadian employer detailing the

professional duties the applicant will be providing to the Canadian corporationndash Document checklist Citizenship and Immigration formndash Photocopies of passport pagesndash Pay applicable fee of $15000

26

Intra‐Company Transferees

27

Intra‐Company Transfereesbull The applicant must be working for an American or Mexican company that is directly related to the Canadian company as a parent company branch or subsidiary relationship

bull Intra‐company Transferees must have been employed full‐time with an American or Mexican company hold for at least one year in an executive senior managerial or specialized knowledge position within the last three years and must be entering Canada to assume a similar position

bull Intra‐company Transferee applicants like professionals need to apply for work permits Work permits are generally granted for an initial period up to three (3) years Applicants can apply for extensions of two (2) years at a time up to a maximum

bull This is the only NAFTA category that has a ldquocaprdquo that limits the overall length of time that a foreign worker may hold a work permit The total period of stay for a person employed in an executive or managerial capacity is seven years The total period of stay for a person employed in a position requiring specialized knowledge is five years Applicants are eligible for a new work permit after one year has passed after the time cap

28

Intra‐Company Transferees require a Work Permitbull In order for the Intra‐company Transferee to obtain the work permit they need to show the Canadian Border Officer if they apply at a Canadian port of entry or send to a Canadian Visa office the following

ndash Proof of American or Mexican citizenshipndash Confirmation has been employed with the American or Mexican company for one

year continuously within the last three years before making the applicationndash Wage and Tax statements proving paid in the USA or Mexico in the last yearndash Organizational chart showing the corporate relationship between the USA or

Mexican company and Canadian companyndash Employment Agreement with USA company or Mexican company (proof of work

for one year in the last three years)ndash Document checklist Citizen and Immigration Canada formndash Photocopies of passport pagesndash Use of a Representative formndash Current employment contract to work as Intra‐company Transfereendash Resumendash Letter from employer confirmation of employmentndash Pay fee of $15000

29

Traders and Investors

30

A Traders

bull In order to qualify as a Trader an American or Mexican citizen must enter Canada to be involved in substantial trade in goods or services

bull To be considered substantial trade more than 50 percent of the total volume of international trade conducted must be between Canada and the United States or Mexico Traders must be employed in a supervisory or executive position or in one that involves essential skills that are vital to the effectiveness of the firmrsquos Canadian operations

31

Traders require a Work Permit

bull These applications are rather complex Traders need to apply to a Canadian Visa office before traveling to Canada Initial work permits given are for one (1) year And extension up to two (2) years is then usually granted

bull Traders must provide the followingndash Proof of American or Mexican citizenshipndash Proof that the enterprise in Canada the Trader is coming to has American or

Canadian Nationality (this has been defined to mean that the individual or corporate persons owns at least 50 (directly or by stock) in the entity established in Canada must hold American or Mexican citizenship)

ndash Trade is primarily between USA or Mexico and Canada andndash The Trader is working in a managerial or executive capacity Alternatively the

Trader could be working to provide Essential Skills and services (define have qualifications that are vital to the success of the Canadian Enterprises operations)

32

B Investors

bull Investors must have made or be in the process in making a substantial investment in an enterprise in Canada and intend to enter Canada to develop and direct the enterprise

bull There is no minimum investment to qualify Rather the application is assessed based on the circumstances and nature of the business The amount an applicant invests will be weighed against the total value of the current enterprise or against the total amount needed to establish the new enterprise As with Traders Investors must also be in a supervisory or executive role by directing controlling and guiding employees

33

Investors require a Work Permit

bull Like Traders these applications are complex and should be sent to a Canadian Visa office for approval prior to travelling to Canada The Investor will need to provide the following

ndash Proof of American or Mexican citizenshipndash Proof that the Investor made or is in the process of making a

substantial investment in an enterprise in Canadandash The enterprise in Canada in which the Investor is coming has American

or Mexican Nationality andndash The Investor is seeking entry solely to develop and direct the

enterprise in Canada

34

We Need Foreign Workers Now

Presenter Shawna Vogel

Partner

354178217_1

We Need Foreign Workers Now

General Rule ndash prove no Canadian can fill the job unless exception applies

bullNAFTA WORK PERMITS

‐ Professional

‐ Intracompany Transferee

bullGATS WORK PERMITS

‐ Professional ‐ limited

‐ Intracompany Transferee ndash same rules

364178217_2

A LMO and A‐LMO

1 Key Elements

bull Advertise position

bull Qualify candidates

bull Apply for and obtain Labour Market Opinion Confirmation (ldquoLMOrdquo)

bull Obtain work permit

374178217_2

2 Changes ‐ A‐LMO ndash Accelerated LMO

bull 10 day processing

bull Advertising and all other requirements still apply ndashpost issuance VERIFICATION

bull Only applies if positive LMO issued to employer in last 2 years

bull Positions ndash NOC O A B (management professional technical)

38

3 Changes ndash Wages under LMO

bull New Rule ndash must pay (i) same wage to TFW as to Canadian employees and (ii) median wage (or up to 5 ‐15 variance)

4178217_2

394178217_2

B Alberta 7 Occupation Pilot Project

Focus on semi‐skilled workerbull Steamfitterpipefitter

bull Welder

bull Estimator

bull Heavy duty equipment mechanic

bull Carpenter

bull Ironworker

bull Millwright and industrial mechanic

bull Estimator

404178217_2

C New

bull Compliance Requirements

bull AB Pilot project for working‐age dependent children of skilled workers

414178217_2

1 Passport expiry

2 Medical TRV Criminalitybull Delays due to need of medicals (where employee has

been in ldquomedically‐required country for 6 months in last year)

bull Delays (and change of venue of application) because of nationality (and not residence) of employee

bull Criminal record ndash be prepared

D Tips

42

R v COLE 2012 SCC 53

Presenter Fausto Franceschi

Partner

43

Background

bull Richard Cole was a high school computer science teacher in Ontario who was given a work‐issued laptop computer

bull He was permitted to use the laptop for incidental personal purposes

bull While performing maintenance activities on Colersquos laptop a school board technician found a hidden folder containing nude photos of a grade 10 female student which Cole had copied from the schoolrsquos network The technician notified the school principal who directed the technician to copy the photos onto a CD

44

Background

bull The principal seized the laptop from Cole and copied the internet browsing history (which contained a large amount of pornographic images) from it onto a second CD and handed over the laptop and the CDrsquos to the police who without a warrant reviewed their contents and created a mirror image of the hard drive for forensic purposes

bull The police decided it was not necessary to obtain a search warrant because the laptop was school property

bull Cole was charged with possession of child pornography

45

The Schoolrsquos Policy on Computer Use

bull The school had an Acceptable Use Policy which regulated access to the schoolrsquos computer network The policy provided that the school ldquomay monitor all student work and email including material saved on laptop hard drives Users should NOT assume that files stored on network servers or hard drives of individual computers will be privaterdquo This policy also applied to staff

46

The Schoolrsquos Policy on Computer Use

bull The School Board also had a policy applicable to teachers governing the acceptable use of school information technology The policy provided that ldquoall data and messages generated on or handled by board equipment are considered to be the property of the [school]rdquo The policy also allowed limited ldquoincidental personal userdquo of information technology prohibited the posting or accessing of certain inappropriate content (such as sexually explicit material) and provided that while email was considered private the School Board could open email in certain circumstances such as if inappropriate use was suspected

47

Issue

bull Whether the evidence found on the laptop could be admitted at trial or whether it was obtained by way of an unreasonable search and seizure contrary to section 8 of the Charter

48

Supreme Court of Canada

bull Cole had a privacy interest in his personal information on the computer

bull Just as Canadians have a reasonable expectation of privacy in their own personal computers they also have a privacy interest in their work computers ldquoat least where personal use is permitted or reasonably expectedrdquo

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

17

General Contrsquodbull Engineer ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Forester ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Graphic Designer ‐ Baccalalaureate or Licenciatura Degree or PostSecondary Diploma or PostSecondary Certificate and three years experience

bull Hotel Manager ‐ Baccalalaureate or Licenciatura Degree in hotelrestaurant management or PostSecondary Diploma or PostSecondary Certificate in hotelrestaurant management and three years experience in hotelrestaurant management

bull Industrial Designer ‐ Baccalalaureate or Licenciatura Degree or PostSecondary Diploma or PostSecondary Certificate and three years experience

bull Interior Designer ‐ Baccalalaureate or Licenciatura Degree or PostSecondary Diploma or PostSecondary Certificate and three years experience

18

General Contrsquodbull Land Surveyor ‐ Baccalalaureate or Licenciatura Degree or stateprovincialfederal license

bull Landscape Architect ‐ Baccalalaureate or Licenciatura Degreebull Lawyer (including Notary in the Province of Quebec) ndash LLB JD LLL BCL or Liceniatura Degree (five years) or membership in a stateprovincial bar

bull Management Consultant ‐ Baccalalaureate or Licenciatura Degree or equivalent professional experience as established by statement or professional credential attesting to five years experience as a management consultant or five year experience in a field of specialty related to the consulting agreement

bull Mathematician (including Statistician) ‐ Baccalalaureate or Licenciatura Degree

bull Range Manager Range Conservationalist ‐ Baccalalaureate or Licenciatura Degree

19

General Contrsquod

bull Research Assistant (working in a post‐secondary educational institution) ‐Baccalalaureate or Licenciatura Degree

bull Scientific TechnicianTechnologist ndash Possession of (a) theoretical knowledge of any of the following disciplines agricultural sciences astronomy biology chemistry engineering forestry geology geophysics meteorology or physics and (b) the ability to solve problems in any of those disciplines to basic or applied research

bull Social Worker ‐ Baccalalaureate or Licenciatura Degreebull Sylviculturist (including Forestry Specialist) ‐ Baccalalaureate or Licenciatura Degree

bull Technical Publications Writer ‐ Baccalalaureate or Licenciatura Degree or PostSecondary Diploma or PostSecondary Certificate and three years experience

bull Urban Planner (including Geographer) ‐ Baccalalaureate or Licenciatura Degree

bull Vocational Counsellor ‐ Baccalalaureate or Licenciatura Degree

20

MedicalAllied Professionalbull Dentist ndash DDS DMD Doctor en Odontologia or Doctor en Cirugia Dental or stateprovincial license

bull Dietician ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Medical Laboratory Technologist (Canada) Medical Technologist (Mexico and the United States) ‐ Baccalalaureate or Licenciatura Degree or PostSecondary Diploma or PostSecondary Certificate and three years experience

bull Nutritionist ‐ Baccalalaureate or Licenciatura Degreebull Occupational Therapist ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Pharmacist ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Physician (teaching or research only) ndash MD or Doctor en Medicina or stateprovincial license

21

MedicalAllied Professional continued

bull PhysiotherapistPhysical Therapist ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Psychologist ndash Stateprovincial license or Licenciatura Degreebull Recreational Therapist ‐ Baccalaureate or Licenciatura Degreebull Registered Nurse ‐ Stateprovincial license or Licenciatura Degreebull Veterinarian ndash DVM DMV or Doctor en Veterinaria or stateprovincial license

22

Scientists

bull Agriculturist (including Agronomist) ‐ Baccalaureate or Licenciatura Degreebull Animal Breeder ‐ Baccalaureate or Licenciatura Degreebull Animal Scientist ‐ Baccalaureate or Licenciatura Degreebull Apiculturist ‐ Baccalaureate or Licenciatura Degreebull Astronomer ‐ Baccalaureate or Licenciatura Degreebull Biochemist ‐ Baccalaureate or Licenciatura Degreebull Biologist ‐ Baccalaureate or Licenciatura Degreebull Chemist ‐ Baccalaureate or Licenciatura Degreebull Dairy Scientist ‐ Baccalaureate or Licenciatura Degreebull Entomologist ‐ Baccalaureate or Licenciatura Degreebull Epidemiologist ‐ Baccalaureate or Licenciatura Degreebull Geneticist ‐ Baccalaureate or Licenciatura Degree

23

Scientists Contrsquod

bull Geologist ‐ Baccalaureate or Licenciatura Degreebull Geochemist ‐ Baccalaureate or Licenciatura Degreebull Geophysicist (including Oceanographer in Mexico and the United States) ‐Baccalaureate or Licenciatura Degree

bull Horticulturist ‐ Baccalaureate or Licenciatura Degreebull Meteorologist ‐ Baccalaureate or Licenciatura Degreebull Pharmacologist ‐ Baccalaureate or Licenciatura Degreebull Physicist (including Oceanographer in Canada) ‐ Baccalaureate or Licenciatura Degree

bull Plant Breeder ‐ Baccalaureate or Licenciatura Degreebull Poultry Scientist ‐ Baccalaureate or Licenciatura Degreebull Soil Scientist ‐ Baccalaureate or Licenciatura Degreebull Zoologist ‐ Baccalaureate or Licenciatura Degree

24

Teachers

bull College ‐ Baccalaureate or Licenciatura Degree

bull Seminary ‐ Baccalaureate or Licenciatura Degree

bull University ‐ Baccalaureate or Licenciatura Degree

25

Professionals require a Work Permitbull These applicants must also apply for and obtain a work permit These professionals usually apply for their Canadian work permits at a Canadian port of entry but could do it in advance by making an application to a Canadian Visa office The work permit is usually granted for one (1) year however there is no limit on the number of extensions granted under this category

bull When applying the applicant will need to provide the Canadian Border Officer (or Canadian Visa office) the following

ndash Proof of American or Mexican citizenshipndash Proof of professional degrees diplomas or related accreditations andor related experiencendash Proof of holding all applicable licences for the occupationndash Resumendash Employment Offer and Employment Agreement from Canadian employer detailing the

professional duties the applicant will be providing to the Canadian corporationndash Document checklist Citizenship and Immigration formndash Photocopies of passport pagesndash Pay applicable fee of $15000

26

Intra‐Company Transferees

27

Intra‐Company Transfereesbull The applicant must be working for an American or Mexican company that is directly related to the Canadian company as a parent company branch or subsidiary relationship

bull Intra‐company Transferees must have been employed full‐time with an American or Mexican company hold for at least one year in an executive senior managerial or specialized knowledge position within the last three years and must be entering Canada to assume a similar position

bull Intra‐company Transferee applicants like professionals need to apply for work permits Work permits are generally granted for an initial period up to three (3) years Applicants can apply for extensions of two (2) years at a time up to a maximum

bull This is the only NAFTA category that has a ldquocaprdquo that limits the overall length of time that a foreign worker may hold a work permit The total period of stay for a person employed in an executive or managerial capacity is seven years The total period of stay for a person employed in a position requiring specialized knowledge is five years Applicants are eligible for a new work permit after one year has passed after the time cap

28

Intra‐Company Transferees require a Work Permitbull In order for the Intra‐company Transferee to obtain the work permit they need to show the Canadian Border Officer if they apply at a Canadian port of entry or send to a Canadian Visa office the following

ndash Proof of American or Mexican citizenshipndash Confirmation has been employed with the American or Mexican company for one

year continuously within the last three years before making the applicationndash Wage and Tax statements proving paid in the USA or Mexico in the last yearndash Organizational chart showing the corporate relationship between the USA or

Mexican company and Canadian companyndash Employment Agreement with USA company or Mexican company (proof of work

for one year in the last three years)ndash Document checklist Citizen and Immigration Canada formndash Photocopies of passport pagesndash Use of a Representative formndash Current employment contract to work as Intra‐company Transfereendash Resumendash Letter from employer confirmation of employmentndash Pay fee of $15000

29

Traders and Investors

30

A Traders

bull In order to qualify as a Trader an American or Mexican citizen must enter Canada to be involved in substantial trade in goods or services

bull To be considered substantial trade more than 50 percent of the total volume of international trade conducted must be between Canada and the United States or Mexico Traders must be employed in a supervisory or executive position or in one that involves essential skills that are vital to the effectiveness of the firmrsquos Canadian operations

31

Traders require a Work Permit

bull These applications are rather complex Traders need to apply to a Canadian Visa office before traveling to Canada Initial work permits given are for one (1) year And extension up to two (2) years is then usually granted

bull Traders must provide the followingndash Proof of American or Mexican citizenshipndash Proof that the enterprise in Canada the Trader is coming to has American or

Canadian Nationality (this has been defined to mean that the individual or corporate persons owns at least 50 (directly or by stock) in the entity established in Canada must hold American or Mexican citizenship)

ndash Trade is primarily between USA or Mexico and Canada andndash The Trader is working in a managerial or executive capacity Alternatively the

Trader could be working to provide Essential Skills and services (define have qualifications that are vital to the success of the Canadian Enterprises operations)

32

B Investors

bull Investors must have made or be in the process in making a substantial investment in an enterprise in Canada and intend to enter Canada to develop and direct the enterprise

bull There is no minimum investment to qualify Rather the application is assessed based on the circumstances and nature of the business The amount an applicant invests will be weighed against the total value of the current enterprise or against the total amount needed to establish the new enterprise As with Traders Investors must also be in a supervisory or executive role by directing controlling and guiding employees

33

Investors require a Work Permit

bull Like Traders these applications are complex and should be sent to a Canadian Visa office for approval prior to travelling to Canada The Investor will need to provide the following

ndash Proof of American or Mexican citizenshipndash Proof that the Investor made or is in the process of making a

substantial investment in an enterprise in Canadandash The enterprise in Canada in which the Investor is coming has American

or Mexican Nationality andndash The Investor is seeking entry solely to develop and direct the

enterprise in Canada

34

We Need Foreign Workers Now

Presenter Shawna Vogel

Partner

354178217_1

We Need Foreign Workers Now

General Rule ndash prove no Canadian can fill the job unless exception applies

bullNAFTA WORK PERMITS

‐ Professional

‐ Intracompany Transferee

bullGATS WORK PERMITS

‐ Professional ‐ limited

‐ Intracompany Transferee ndash same rules

364178217_2

A LMO and A‐LMO

1 Key Elements

bull Advertise position

bull Qualify candidates

bull Apply for and obtain Labour Market Opinion Confirmation (ldquoLMOrdquo)

bull Obtain work permit

374178217_2

2 Changes ‐ A‐LMO ndash Accelerated LMO

bull 10 day processing

bull Advertising and all other requirements still apply ndashpost issuance VERIFICATION

bull Only applies if positive LMO issued to employer in last 2 years

bull Positions ndash NOC O A B (management professional technical)

38

3 Changes ndash Wages under LMO

bull New Rule ndash must pay (i) same wage to TFW as to Canadian employees and (ii) median wage (or up to 5 ‐15 variance)

4178217_2

394178217_2

B Alberta 7 Occupation Pilot Project

Focus on semi‐skilled workerbull Steamfitterpipefitter

bull Welder

bull Estimator

bull Heavy duty equipment mechanic

bull Carpenter

bull Ironworker

bull Millwright and industrial mechanic

bull Estimator

404178217_2

C New

bull Compliance Requirements

bull AB Pilot project for working‐age dependent children of skilled workers

414178217_2

1 Passport expiry

2 Medical TRV Criminalitybull Delays due to need of medicals (where employee has

been in ldquomedically‐required country for 6 months in last year)

bull Delays (and change of venue of application) because of nationality (and not residence) of employee

bull Criminal record ndash be prepared

D Tips

42

R v COLE 2012 SCC 53

Presenter Fausto Franceschi

Partner

43

Background

bull Richard Cole was a high school computer science teacher in Ontario who was given a work‐issued laptop computer

bull He was permitted to use the laptop for incidental personal purposes

bull While performing maintenance activities on Colersquos laptop a school board technician found a hidden folder containing nude photos of a grade 10 female student which Cole had copied from the schoolrsquos network The technician notified the school principal who directed the technician to copy the photos onto a CD

44

Background

bull The principal seized the laptop from Cole and copied the internet browsing history (which contained a large amount of pornographic images) from it onto a second CD and handed over the laptop and the CDrsquos to the police who without a warrant reviewed their contents and created a mirror image of the hard drive for forensic purposes

bull The police decided it was not necessary to obtain a search warrant because the laptop was school property

bull Cole was charged with possession of child pornography

45

The Schoolrsquos Policy on Computer Use

bull The school had an Acceptable Use Policy which regulated access to the schoolrsquos computer network The policy provided that the school ldquomay monitor all student work and email including material saved on laptop hard drives Users should NOT assume that files stored on network servers or hard drives of individual computers will be privaterdquo This policy also applied to staff

46

The Schoolrsquos Policy on Computer Use

bull The School Board also had a policy applicable to teachers governing the acceptable use of school information technology The policy provided that ldquoall data and messages generated on or handled by board equipment are considered to be the property of the [school]rdquo The policy also allowed limited ldquoincidental personal userdquo of information technology prohibited the posting or accessing of certain inappropriate content (such as sexually explicit material) and provided that while email was considered private the School Board could open email in certain circumstances such as if inappropriate use was suspected

47

Issue

bull Whether the evidence found on the laptop could be admitted at trial or whether it was obtained by way of an unreasonable search and seizure contrary to section 8 of the Charter

48

Supreme Court of Canada

bull Cole had a privacy interest in his personal information on the computer

bull Just as Canadians have a reasonable expectation of privacy in their own personal computers they also have a privacy interest in their work computers ldquoat least where personal use is permitted or reasonably expectedrdquo

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

18

General Contrsquodbull Land Surveyor ‐ Baccalalaureate or Licenciatura Degree or stateprovincialfederal license

bull Landscape Architect ‐ Baccalalaureate or Licenciatura Degreebull Lawyer (including Notary in the Province of Quebec) ndash LLB JD LLL BCL or Liceniatura Degree (five years) or membership in a stateprovincial bar

bull Management Consultant ‐ Baccalalaureate or Licenciatura Degree or equivalent professional experience as established by statement or professional credential attesting to five years experience as a management consultant or five year experience in a field of specialty related to the consulting agreement

bull Mathematician (including Statistician) ‐ Baccalalaureate or Licenciatura Degree

bull Range Manager Range Conservationalist ‐ Baccalalaureate or Licenciatura Degree

19

General Contrsquod

bull Research Assistant (working in a post‐secondary educational institution) ‐Baccalalaureate or Licenciatura Degree

bull Scientific TechnicianTechnologist ndash Possession of (a) theoretical knowledge of any of the following disciplines agricultural sciences astronomy biology chemistry engineering forestry geology geophysics meteorology or physics and (b) the ability to solve problems in any of those disciplines to basic or applied research

bull Social Worker ‐ Baccalalaureate or Licenciatura Degreebull Sylviculturist (including Forestry Specialist) ‐ Baccalalaureate or Licenciatura Degree

bull Technical Publications Writer ‐ Baccalalaureate or Licenciatura Degree or PostSecondary Diploma or PostSecondary Certificate and three years experience

bull Urban Planner (including Geographer) ‐ Baccalalaureate or Licenciatura Degree

bull Vocational Counsellor ‐ Baccalalaureate or Licenciatura Degree

20

MedicalAllied Professionalbull Dentist ndash DDS DMD Doctor en Odontologia or Doctor en Cirugia Dental or stateprovincial license

bull Dietician ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Medical Laboratory Technologist (Canada) Medical Technologist (Mexico and the United States) ‐ Baccalalaureate or Licenciatura Degree or PostSecondary Diploma or PostSecondary Certificate and three years experience

bull Nutritionist ‐ Baccalalaureate or Licenciatura Degreebull Occupational Therapist ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Pharmacist ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Physician (teaching or research only) ndash MD or Doctor en Medicina or stateprovincial license

21

MedicalAllied Professional continued

bull PhysiotherapistPhysical Therapist ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Psychologist ndash Stateprovincial license or Licenciatura Degreebull Recreational Therapist ‐ Baccalaureate or Licenciatura Degreebull Registered Nurse ‐ Stateprovincial license or Licenciatura Degreebull Veterinarian ndash DVM DMV or Doctor en Veterinaria or stateprovincial license

22

Scientists

bull Agriculturist (including Agronomist) ‐ Baccalaureate or Licenciatura Degreebull Animal Breeder ‐ Baccalaureate or Licenciatura Degreebull Animal Scientist ‐ Baccalaureate or Licenciatura Degreebull Apiculturist ‐ Baccalaureate or Licenciatura Degreebull Astronomer ‐ Baccalaureate or Licenciatura Degreebull Biochemist ‐ Baccalaureate or Licenciatura Degreebull Biologist ‐ Baccalaureate or Licenciatura Degreebull Chemist ‐ Baccalaureate or Licenciatura Degreebull Dairy Scientist ‐ Baccalaureate or Licenciatura Degreebull Entomologist ‐ Baccalaureate or Licenciatura Degreebull Epidemiologist ‐ Baccalaureate or Licenciatura Degreebull Geneticist ‐ Baccalaureate or Licenciatura Degree

23

Scientists Contrsquod

bull Geologist ‐ Baccalaureate or Licenciatura Degreebull Geochemist ‐ Baccalaureate or Licenciatura Degreebull Geophysicist (including Oceanographer in Mexico and the United States) ‐Baccalaureate or Licenciatura Degree

bull Horticulturist ‐ Baccalaureate or Licenciatura Degreebull Meteorologist ‐ Baccalaureate or Licenciatura Degreebull Pharmacologist ‐ Baccalaureate or Licenciatura Degreebull Physicist (including Oceanographer in Canada) ‐ Baccalaureate or Licenciatura Degree

bull Plant Breeder ‐ Baccalaureate or Licenciatura Degreebull Poultry Scientist ‐ Baccalaureate or Licenciatura Degreebull Soil Scientist ‐ Baccalaureate or Licenciatura Degreebull Zoologist ‐ Baccalaureate or Licenciatura Degree

24

Teachers

bull College ‐ Baccalaureate or Licenciatura Degree

bull Seminary ‐ Baccalaureate or Licenciatura Degree

bull University ‐ Baccalaureate or Licenciatura Degree

25

Professionals require a Work Permitbull These applicants must also apply for and obtain a work permit These professionals usually apply for their Canadian work permits at a Canadian port of entry but could do it in advance by making an application to a Canadian Visa office The work permit is usually granted for one (1) year however there is no limit on the number of extensions granted under this category

bull When applying the applicant will need to provide the Canadian Border Officer (or Canadian Visa office) the following

ndash Proof of American or Mexican citizenshipndash Proof of professional degrees diplomas or related accreditations andor related experiencendash Proof of holding all applicable licences for the occupationndash Resumendash Employment Offer and Employment Agreement from Canadian employer detailing the

professional duties the applicant will be providing to the Canadian corporationndash Document checklist Citizenship and Immigration formndash Photocopies of passport pagesndash Pay applicable fee of $15000

26

Intra‐Company Transferees

27

Intra‐Company Transfereesbull The applicant must be working for an American or Mexican company that is directly related to the Canadian company as a parent company branch or subsidiary relationship

bull Intra‐company Transferees must have been employed full‐time with an American or Mexican company hold for at least one year in an executive senior managerial or specialized knowledge position within the last three years and must be entering Canada to assume a similar position

bull Intra‐company Transferee applicants like professionals need to apply for work permits Work permits are generally granted for an initial period up to three (3) years Applicants can apply for extensions of two (2) years at a time up to a maximum

bull This is the only NAFTA category that has a ldquocaprdquo that limits the overall length of time that a foreign worker may hold a work permit The total period of stay for a person employed in an executive or managerial capacity is seven years The total period of stay for a person employed in a position requiring specialized knowledge is five years Applicants are eligible for a new work permit after one year has passed after the time cap

28

Intra‐Company Transferees require a Work Permitbull In order for the Intra‐company Transferee to obtain the work permit they need to show the Canadian Border Officer if they apply at a Canadian port of entry or send to a Canadian Visa office the following

ndash Proof of American or Mexican citizenshipndash Confirmation has been employed with the American or Mexican company for one

year continuously within the last three years before making the applicationndash Wage and Tax statements proving paid in the USA or Mexico in the last yearndash Organizational chart showing the corporate relationship between the USA or

Mexican company and Canadian companyndash Employment Agreement with USA company or Mexican company (proof of work

for one year in the last three years)ndash Document checklist Citizen and Immigration Canada formndash Photocopies of passport pagesndash Use of a Representative formndash Current employment contract to work as Intra‐company Transfereendash Resumendash Letter from employer confirmation of employmentndash Pay fee of $15000

29

Traders and Investors

30

A Traders

bull In order to qualify as a Trader an American or Mexican citizen must enter Canada to be involved in substantial trade in goods or services

bull To be considered substantial trade more than 50 percent of the total volume of international trade conducted must be between Canada and the United States or Mexico Traders must be employed in a supervisory or executive position or in one that involves essential skills that are vital to the effectiveness of the firmrsquos Canadian operations

31

Traders require a Work Permit

bull These applications are rather complex Traders need to apply to a Canadian Visa office before traveling to Canada Initial work permits given are for one (1) year And extension up to two (2) years is then usually granted

bull Traders must provide the followingndash Proof of American or Mexican citizenshipndash Proof that the enterprise in Canada the Trader is coming to has American or

Canadian Nationality (this has been defined to mean that the individual or corporate persons owns at least 50 (directly or by stock) in the entity established in Canada must hold American or Mexican citizenship)

ndash Trade is primarily between USA or Mexico and Canada andndash The Trader is working in a managerial or executive capacity Alternatively the

Trader could be working to provide Essential Skills and services (define have qualifications that are vital to the success of the Canadian Enterprises operations)

32

B Investors

bull Investors must have made or be in the process in making a substantial investment in an enterprise in Canada and intend to enter Canada to develop and direct the enterprise

bull There is no minimum investment to qualify Rather the application is assessed based on the circumstances and nature of the business The amount an applicant invests will be weighed against the total value of the current enterprise or against the total amount needed to establish the new enterprise As with Traders Investors must also be in a supervisory or executive role by directing controlling and guiding employees

33

Investors require a Work Permit

bull Like Traders these applications are complex and should be sent to a Canadian Visa office for approval prior to travelling to Canada The Investor will need to provide the following

ndash Proof of American or Mexican citizenshipndash Proof that the Investor made or is in the process of making a

substantial investment in an enterprise in Canadandash The enterprise in Canada in which the Investor is coming has American

or Mexican Nationality andndash The Investor is seeking entry solely to develop and direct the

enterprise in Canada

34

We Need Foreign Workers Now

Presenter Shawna Vogel

Partner

354178217_1

We Need Foreign Workers Now

General Rule ndash prove no Canadian can fill the job unless exception applies

bullNAFTA WORK PERMITS

‐ Professional

‐ Intracompany Transferee

bullGATS WORK PERMITS

‐ Professional ‐ limited

‐ Intracompany Transferee ndash same rules

364178217_2

A LMO and A‐LMO

1 Key Elements

bull Advertise position

bull Qualify candidates

bull Apply for and obtain Labour Market Opinion Confirmation (ldquoLMOrdquo)

bull Obtain work permit

374178217_2

2 Changes ‐ A‐LMO ndash Accelerated LMO

bull 10 day processing

bull Advertising and all other requirements still apply ndashpost issuance VERIFICATION

bull Only applies if positive LMO issued to employer in last 2 years

bull Positions ndash NOC O A B (management professional technical)

38

3 Changes ndash Wages under LMO

bull New Rule ndash must pay (i) same wage to TFW as to Canadian employees and (ii) median wage (or up to 5 ‐15 variance)

4178217_2

394178217_2

B Alberta 7 Occupation Pilot Project

Focus on semi‐skilled workerbull Steamfitterpipefitter

bull Welder

bull Estimator

bull Heavy duty equipment mechanic

bull Carpenter

bull Ironworker

bull Millwright and industrial mechanic

bull Estimator

404178217_2

C New

bull Compliance Requirements

bull AB Pilot project for working‐age dependent children of skilled workers

414178217_2

1 Passport expiry

2 Medical TRV Criminalitybull Delays due to need of medicals (where employee has

been in ldquomedically‐required country for 6 months in last year)

bull Delays (and change of venue of application) because of nationality (and not residence) of employee

bull Criminal record ndash be prepared

D Tips

42

R v COLE 2012 SCC 53

Presenter Fausto Franceschi

Partner

43

Background

bull Richard Cole was a high school computer science teacher in Ontario who was given a work‐issued laptop computer

bull He was permitted to use the laptop for incidental personal purposes

bull While performing maintenance activities on Colersquos laptop a school board technician found a hidden folder containing nude photos of a grade 10 female student which Cole had copied from the schoolrsquos network The technician notified the school principal who directed the technician to copy the photos onto a CD

44

Background

bull The principal seized the laptop from Cole and copied the internet browsing history (which contained a large amount of pornographic images) from it onto a second CD and handed over the laptop and the CDrsquos to the police who without a warrant reviewed their contents and created a mirror image of the hard drive for forensic purposes

bull The police decided it was not necessary to obtain a search warrant because the laptop was school property

bull Cole was charged with possession of child pornography

45

The Schoolrsquos Policy on Computer Use

bull The school had an Acceptable Use Policy which regulated access to the schoolrsquos computer network The policy provided that the school ldquomay monitor all student work and email including material saved on laptop hard drives Users should NOT assume that files stored on network servers or hard drives of individual computers will be privaterdquo This policy also applied to staff

46

The Schoolrsquos Policy on Computer Use

bull The School Board also had a policy applicable to teachers governing the acceptable use of school information technology The policy provided that ldquoall data and messages generated on or handled by board equipment are considered to be the property of the [school]rdquo The policy also allowed limited ldquoincidental personal userdquo of information technology prohibited the posting or accessing of certain inappropriate content (such as sexually explicit material) and provided that while email was considered private the School Board could open email in certain circumstances such as if inappropriate use was suspected

47

Issue

bull Whether the evidence found on the laptop could be admitted at trial or whether it was obtained by way of an unreasonable search and seizure contrary to section 8 of the Charter

48

Supreme Court of Canada

bull Cole had a privacy interest in his personal information on the computer

bull Just as Canadians have a reasonable expectation of privacy in their own personal computers they also have a privacy interest in their work computers ldquoat least where personal use is permitted or reasonably expectedrdquo

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

19

General Contrsquod

bull Research Assistant (working in a post‐secondary educational institution) ‐Baccalalaureate or Licenciatura Degree

bull Scientific TechnicianTechnologist ndash Possession of (a) theoretical knowledge of any of the following disciplines agricultural sciences astronomy biology chemistry engineering forestry geology geophysics meteorology or physics and (b) the ability to solve problems in any of those disciplines to basic or applied research

bull Social Worker ‐ Baccalalaureate or Licenciatura Degreebull Sylviculturist (including Forestry Specialist) ‐ Baccalalaureate or Licenciatura Degree

bull Technical Publications Writer ‐ Baccalalaureate or Licenciatura Degree or PostSecondary Diploma or PostSecondary Certificate and three years experience

bull Urban Planner (including Geographer) ‐ Baccalalaureate or Licenciatura Degree

bull Vocational Counsellor ‐ Baccalalaureate or Licenciatura Degree

20

MedicalAllied Professionalbull Dentist ndash DDS DMD Doctor en Odontologia or Doctor en Cirugia Dental or stateprovincial license

bull Dietician ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Medical Laboratory Technologist (Canada) Medical Technologist (Mexico and the United States) ‐ Baccalalaureate or Licenciatura Degree or PostSecondary Diploma or PostSecondary Certificate and three years experience

bull Nutritionist ‐ Baccalalaureate or Licenciatura Degreebull Occupational Therapist ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Pharmacist ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Physician (teaching or research only) ndash MD or Doctor en Medicina or stateprovincial license

21

MedicalAllied Professional continued

bull PhysiotherapistPhysical Therapist ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Psychologist ndash Stateprovincial license or Licenciatura Degreebull Recreational Therapist ‐ Baccalaureate or Licenciatura Degreebull Registered Nurse ‐ Stateprovincial license or Licenciatura Degreebull Veterinarian ndash DVM DMV or Doctor en Veterinaria or stateprovincial license

22

Scientists

bull Agriculturist (including Agronomist) ‐ Baccalaureate or Licenciatura Degreebull Animal Breeder ‐ Baccalaureate or Licenciatura Degreebull Animal Scientist ‐ Baccalaureate or Licenciatura Degreebull Apiculturist ‐ Baccalaureate or Licenciatura Degreebull Astronomer ‐ Baccalaureate or Licenciatura Degreebull Biochemist ‐ Baccalaureate or Licenciatura Degreebull Biologist ‐ Baccalaureate or Licenciatura Degreebull Chemist ‐ Baccalaureate or Licenciatura Degreebull Dairy Scientist ‐ Baccalaureate or Licenciatura Degreebull Entomologist ‐ Baccalaureate or Licenciatura Degreebull Epidemiologist ‐ Baccalaureate or Licenciatura Degreebull Geneticist ‐ Baccalaureate or Licenciatura Degree

23

Scientists Contrsquod

bull Geologist ‐ Baccalaureate or Licenciatura Degreebull Geochemist ‐ Baccalaureate or Licenciatura Degreebull Geophysicist (including Oceanographer in Mexico and the United States) ‐Baccalaureate or Licenciatura Degree

bull Horticulturist ‐ Baccalaureate or Licenciatura Degreebull Meteorologist ‐ Baccalaureate or Licenciatura Degreebull Pharmacologist ‐ Baccalaureate or Licenciatura Degreebull Physicist (including Oceanographer in Canada) ‐ Baccalaureate or Licenciatura Degree

bull Plant Breeder ‐ Baccalaureate or Licenciatura Degreebull Poultry Scientist ‐ Baccalaureate or Licenciatura Degreebull Soil Scientist ‐ Baccalaureate or Licenciatura Degreebull Zoologist ‐ Baccalaureate or Licenciatura Degree

24

Teachers

bull College ‐ Baccalaureate or Licenciatura Degree

bull Seminary ‐ Baccalaureate or Licenciatura Degree

bull University ‐ Baccalaureate or Licenciatura Degree

25

Professionals require a Work Permitbull These applicants must also apply for and obtain a work permit These professionals usually apply for their Canadian work permits at a Canadian port of entry but could do it in advance by making an application to a Canadian Visa office The work permit is usually granted for one (1) year however there is no limit on the number of extensions granted under this category

bull When applying the applicant will need to provide the Canadian Border Officer (or Canadian Visa office) the following

ndash Proof of American or Mexican citizenshipndash Proof of professional degrees diplomas or related accreditations andor related experiencendash Proof of holding all applicable licences for the occupationndash Resumendash Employment Offer and Employment Agreement from Canadian employer detailing the

professional duties the applicant will be providing to the Canadian corporationndash Document checklist Citizenship and Immigration formndash Photocopies of passport pagesndash Pay applicable fee of $15000

26

Intra‐Company Transferees

27

Intra‐Company Transfereesbull The applicant must be working for an American or Mexican company that is directly related to the Canadian company as a parent company branch or subsidiary relationship

bull Intra‐company Transferees must have been employed full‐time with an American or Mexican company hold for at least one year in an executive senior managerial or specialized knowledge position within the last three years and must be entering Canada to assume a similar position

bull Intra‐company Transferee applicants like professionals need to apply for work permits Work permits are generally granted for an initial period up to three (3) years Applicants can apply for extensions of two (2) years at a time up to a maximum

bull This is the only NAFTA category that has a ldquocaprdquo that limits the overall length of time that a foreign worker may hold a work permit The total period of stay for a person employed in an executive or managerial capacity is seven years The total period of stay for a person employed in a position requiring specialized knowledge is five years Applicants are eligible for a new work permit after one year has passed after the time cap

28

Intra‐Company Transferees require a Work Permitbull In order for the Intra‐company Transferee to obtain the work permit they need to show the Canadian Border Officer if they apply at a Canadian port of entry or send to a Canadian Visa office the following

ndash Proof of American or Mexican citizenshipndash Confirmation has been employed with the American or Mexican company for one

year continuously within the last three years before making the applicationndash Wage and Tax statements proving paid in the USA or Mexico in the last yearndash Organizational chart showing the corporate relationship between the USA or

Mexican company and Canadian companyndash Employment Agreement with USA company or Mexican company (proof of work

for one year in the last three years)ndash Document checklist Citizen and Immigration Canada formndash Photocopies of passport pagesndash Use of a Representative formndash Current employment contract to work as Intra‐company Transfereendash Resumendash Letter from employer confirmation of employmentndash Pay fee of $15000

29

Traders and Investors

30

A Traders

bull In order to qualify as a Trader an American or Mexican citizen must enter Canada to be involved in substantial trade in goods or services

bull To be considered substantial trade more than 50 percent of the total volume of international trade conducted must be between Canada and the United States or Mexico Traders must be employed in a supervisory or executive position or in one that involves essential skills that are vital to the effectiveness of the firmrsquos Canadian operations

31

Traders require a Work Permit

bull These applications are rather complex Traders need to apply to a Canadian Visa office before traveling to Canada Initial work permits given are for one (1) year And extension up to two (2) years is then usually granted

bull Traders must provide the followingndash Proof of American or Mexican citizenshipndash Proof that the enterprise in Canada the Trader is coming to has American or

Canadian Nationality (this has been defined to mean that the individual or corporate persons owns at least 50 (directly or by stock) in the entity established in Canada must hold American or Mexican citizenship)

ndash Trade is primarily between USA or Mexico and Canada andndash The Trader is working in a managerial or executive capacity Alternatively the

Trader could be working to provide Essential Skills and services (define have qualifications that are vital to the success of the Canadian Enterprises operations)

32

B Investors

bull Investors must have made or be in the process in making a substantial investment in an enterprise in Canada and intend to enter Canada to develop and direct the enterprise

bull There is no minimum investment to qualify Rather the application is assessed based on the circumstances and nature of the business The amount an applicant invests will be weighed against the total value of the current enterprise or against the total amount needed to establish the new enterprise As with Traders Investors must also be in a supervisory or executive role by directing controlling and guiding employees

33

Investors require a Work Permit

bull Like Traders these applications are complex and should be sent to a Canadian Visa office for approval prior to travelling to Canada The Investor will need to provide the following

ndash Proof of American or Mexican citizenshipndash Proof that the Investor made or is in the process of making a

substantial investment in an enterprise in Canadandash The enterprise in Canada in which the Investor is coming has American

or Mexican Nationality andndash The Investor is seeking entry solely to develop and direct the

enterprise in Canada

34

We Need Foreign Workers Now

Presenter Shawna Vogel

Partner

354178217_1

We Need Foreign Workers Now

General Rule ndash prove no Canadian can fill the job unless exception applies

bullNAFTA WORK PERMITS

‐ Professional

‐ Intracompany Transferee

bullGATS WORK PERMITS

‐ Professional ‐ limited

‐ Intracompany Transferee ndash same rules

364178217_2

A LMO and A‐LMO

1 Key Elements

bull Advertise position

bull Qualify candidates

bull Apply for and obtain Labour Market Opinion Confirmation (ldquoLMOrdquo)

bull Obtain work permit

374178217_2

2 Changes ‐ A‐LMO ndash Accelerated LMO

bull 10 day processing

bull Advertising and all other requirements still apply ndashpost issuance VERIFICATION

bull Only applies if positive LMO issued to employer in last 2 years

bull Positions ndash NOC O A B (management professional technical)

38

3 Changes ndash Wages under LMO

bull New Rule ndash must pay (i) same wage to TFW as to Canadian employees and (ii) median wage (or up to 5 ‐15 variance)

4178217_2

394178217_2

B Alberta 7 Occupation Pilot Project

Focus on semi‐skilled workerbull Steamfitterpipefitter

bull Welder

bull Estimator

bull Heavy duty equipment mechanic

bull Carpenter

bull Ironworker

bull Millwright and industrial mechanic

bull Estimator

404178217_2

C New

bull Compliance Requirements

bull AB Pilot project for working‐age dependent children of skilled workers

414178217_2

1 Passport expiry

2 Medical TRV Criminalitybull Delays due to need of medicals (where employee has

been in ldquomedically‐required country for 6 months in last year)

bull Delays (and change of venue of application) because of nationality (and not residence) of employee

bull Criminal record ndash be prepared

D Tips

42

R v COLE 2012 SCC 53

Presenter Fausto Franceschi

Partner

43

Background

bull Richard Cole was a high school computer science teacher in Ontario who was given a work‐issued laptop computer

bull He was permitted to use the laptop for incidental personal purposes

bull While performing maintenance activities on Colersquos laptop a school board technician found a hidden folder containing nude photos of a grade 10 female student which Cole had copied from the schoolrsquos network The technician notified the school principal who directed the technician to copy the photos onto a CD

44

Background

bull The principal seized the laptop from Cole and copied the internet browsing history (which contained a large amount of pornographic images) from it onto a second CD and handed over the laptop and the CDrsquos to the police who without a warrant reviewed their contents and created a mirror image of the hard drive for forensic purposes

bull The police decided it was not necessary to obtain a search warrant because the laptop was school property

bull Cole was charged with possession of child pornography

45

The Schoolrsquos Policy on Computer Use

bull The school had an Acceptable Use Policy which regulated access to the schoolrsquos computer network The policy provided that the school ldquomay monitor all student work and email including material saved on laptop hard drives Users should NOT assume that files stored on network servers or hard drives of individual computers will be privaterdquo This policy also applied to staff

46

The Schoolrsquos Policy on Computer Use

bull The School Board also had a policy applicable to teachers governing the acceptable use of school information technology The policy provided that ldquoall data and messages generated on or handled by board equipment are considered to be the property of the [school]rdquo The policy also allowed limited ldquoincidental personal userdquo of information technology prohibited the posting or accessing of certain inappropriate content (such as sexually explicit material) and provided that while email was considered private the School Board could open email in certain circumstances such as if inappropriate use was suspected

47

Issue

bull Whether the evidence found on the laptop could be admitted at trial or whether it was obtained by way of an unreasonable search and seizure contrary to section 8 of the Charter

48

Supreme Court of Canada

bull Cole had a privacy interest in his personal information on the computer

bull Just as Canadians have a reasonable expectation of privacy in their own personal computers they also have a privacy interest in their work computers ldquoat least where personal use is permitted or reasonably expectedrdquo

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

20

MedicalAllied Professionalbull Dentist ndash DDS DMD Doctor en Odontologia or Doctor en Cirugia Dental or stateprovincial license

bull Dietician ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Medical Laboratory Technologist (Canada) Medical Technologist (Mexico and the United States) ‐ Baccalalaureate or Licenciatura Degree or PostSecondary Diploma or PostSecondary Certificate and three years experience

bull Nutritionist ‐ Baccalalaureate or Licenciatura Degreebull Occupational Therapist ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Pharmacist ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Physician (teaching or research only) ndash MD or Doctor en Medicina or stateprovincial license

21

MedicalAllied Professional continued

bull PhysiotherapistPhysical Therapist ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Psychologist ndash Stateprovincial license or Licenciatura Degreebull Recreational Therapist ‐ Baccalaureate or Licenciatura Degreebull Registered Nurse ‐ Stateprovincial license or Licenciatura Degreebull Veterinarian ndash DVM DMV or Doctor en Veterinaria or stateprovincial license

22

Scientists

bull Agriculturist (including Agronomist) ‐ Baccalaureate or Licenciatura Degreebull Animal Breeder ‐ Baccalaureate or Licenciatura Degreebull Animal Scientist ‐ Baccalaureate or Licenciatura Degreebull Apiculturist ‐ Baccalaureate or Licenciatura Degreebull Astronomer ‐ Baccalaureate or Licenciatura Degreebull Biochemist ‐ Baccalaureate or Licenciatura Degreebull Biologist ‐ Baccalaureate or Licenciatura Degreebull Chemist ‐ Baccalaureate or Licenciatura Degreebull Dairy Scientist ‐ Baccalaureate or Licenciatura Degreebull Entomologist ‐ Baccalaureate or Licenciatura Degreebull Epidemiologist ‐ Baccalaureate or Licenciatura Degreebull Geneticist ‐ Baccalaureate or Licenciatura Degree

23

Scientists Contrsquod

bull Geologist ‐ Baccalaureate or Licenciatura Degreebull Geochemist ‐ Baccalaureate or Licenciatura Degreebull Geophysicist (including Oceanographer in Mexico and the United States) ‐Baccalaureate or Licenciatura Degree

bull Horticulturist ‐ Baccalaureate or Licenciatura Degreebull Meteorologist ‐ Baccalaureate or Licenciatura Degreebull Pharmacologist ‐ Baccalaureate or Licenciatura Degreebull Physicist (including Oceanographer in Canada) ‐ Baccalaureate or Licenciatura Degree

bull Plant Breeder ‐ Baccalaureate or Licenciatura Degreebull Poultry Scientist ‐ Baccalaureate or Licenciatura Degreebull Soil Scientist ‐ Baccalaureate or Licenciatura Degreebull Zoologist ‐ Baccalaureate or Licenciatura Degree

24

Teachers

bull College ‐ Baccalaureate or Licenciatura Degree

bull Seminary ‐ Baccalaureate or Licenciatura Degree

bull University ‐ Baccalaureate or Licenciatura Degree

25

Professionals require a Work Permitbull These applicants must also apply for and obtain a work permit These professionals usually apply for their Canadian work permits at a Canadian port of entry but could do it in advance by making an application to a Canadian Visa office The work permit is usually granted for one (1) year however there is no limit on the number of extensions granted under this category

bull When applying the applicant will need to provide the Canadian Border Officer (or Canadian Visa office) the following

ndash Proof of American or Mexican citizenshipndash Proof of professional degrees diplomas or related accreditations andor related experiencendash Proof of holding all applicable licences for the occupationndash Resumendash Employment Offer and Employment Agreement from Canadian employer detailing the

professional duties the applicant will be providing to the Canadian corporationndash Document checklist Citizenship and Immigration formndash Photocopies of passport pagesndash Pay applicable fee of $15000

26

Intra‐Company Transferees

27

Intra‐Company Transfereesbull The applicant must be working for an American or Mexican company that is directly related to the Canadian company as a parent company branch or subsidiary relationship

bull Intra‐company Transferees must have been employed full‐time with an American or Mexican company hold for at least one year in an executive senior managerial or specialized knowledge position within the last three years and must be entering Canada to assume a similar position

bull Intra‐company Transferee applicants like professionals need to apply for work permits Work permits are generally granted for an initial period up to three (3) years Applicants can apply for extensions of two (2) years at a time up to a maximum

bull This is the only NAFTA category that has a ldquocaprdquo that limits the overall length of time that a foreign worker may hold a work permit The total period of stay for a person employed in an executive or managerial capacity is seven years The total period of stay for a person employed in a position requiring specialized knowledge is five years Applicants are eligible for a new work permit after one year has passed after the time cap

28

Intra‐Company Transferees require a Work Permitbull In order for the Intra‐company Transferee to obtain the work permit they need to show the Canadian Border Officer if they apply at a Canadian port of entry or send to a Canadian Visa office the following

ndash Proof of American or Mexican citizenshipndash Confirmation has been employed with the American or Mexican company for one

year continuously within the last three years before making the applicationndash Wage and Tax statements proving paid in the USA or Mexico in the last yearndash Organizational chart showing the corporate relationship between the USA or

Mexican company and Canadian companyndash Employment Agreement with USA company or Mexican company (proof of work

for one year in the last three years)ndash Document checklist Citizen and Immigration Canada formndash Photocopies of passport pagesndash Use of a Representative formndash Current employment contract to work as Intra‐company Transfereendash Resumendash Letter from employer confirmation of employmentndash Pay fee of $15000

29

Traders and Investors

30

A Traders

bull In order to qualify as a Trader an American or Mexican citizen must enter Canada to be involved in substantial trade in goods or services

bull To be considered substantial trade more than 50 percent of the total volume of international trade conducted must be between Canada and the United States or Mexico Traders must be employed in a supervisory or executive position or in one that involves essential skills that are vital to the effectiveness of the firmrsquos Canadian operations

31

Traders require a Work Permit

bull These applications are rather complex Traders need to apply to a Canadian Visa office before traveling to Canada Initial work permits given are for one (1) year And extension up to two (2) years is then usually granted

bull Traders must provide the followingndash Proof of American or Mexican citizenshipndash Proof that the enterprise in Canada the Trader is coming to has American or

Canadian Nationality (this has been defined to mean that the individual or corporate persons owns at least 50 (directly or by stock) in the entity established in Canada must hold American or Mexican citizenship)

ndash Trade is primarily between USA or Mexico and Canada andndash The Trader is working in a managerial or executive capacity Alternatively the

Trader could be working to provide Essential Skills and services (define have qualifications that are vital to the success of the Canadian Enterprises operations)

32

B Investors

bull Investors must have made or be in the process in making a substantial investment in an enterprise in Canada and intend to enter Canada to develop and direct the enterprise

bull There is no minimum investment to qualify Rather the application is assessed based on the circumstances and nature of the business The amount an applicant invests will be weighed against the total value of the current enterprise or against the total amount needed to establish the new enterprise As with Traders Investors must also be in a supervisory or executive role by directing controlling and guiding employees

33

Investors require a Work Permit

bull Like Traders these applications are complex and should be sent to a Canadian Visa office for approval prior to travelling to Canada The Investor will need to provide the following

ndash Proof of American or Mexican citizenshipndash Proof that the Investor made or is in the process of making a

substantial investment in an enterprise in Canadandash The enterprise in Canada in which the Investor is coming has American

or Mexican Nationality andndash The Investor is seeking entry solely to develop and direct the

enterprise in Canada

34

We Need Foreign Workers Now

Presenter Shawna Vogel

Partner

354178217_1

We Need Foreign Workers Now

General Rule ndash prove no Canadian can fill the job unless exception applies

bullNAFTA WORK PERMITS

‐ Professional

‐ Intracompany Transferee

bullGATS WORK PERMITS

‐ Professional ‐ limited

‐ Intracompany Transferee ndash same rules

364178217_2

A LMO and A‐LMO

1 Key Elements

bull Advertise position

bull Qualify candidates

bull Apply for and obtain Labour Market Opinion Confirmation (ldquoLMOrdquo)

bull Obtain work permit

374178217_2

2 Changes ‐ A‐LMO ndash Accelerated LMO

bull 10 day processing

bull Advertising and all other requirements still apply ndashpost issuance VERIFICATION

bull Only applies if positive LMO issued to employer in last 2 years

bull Positions ndash NOC O A B (management professional technical)

38

3 Changes ndash Wages under LMO

bull New Rule ndash must pay (i) same wage to TFW as to Canadian employees and (ii) median wage (or up to 5 ‐15 variance)

4178217_2

394178217_2

B Alberta 7 Occupation Pilot Project

Focus on semi‐skilled workerbull Steamfitterpipefitter

bull Welder

bull Estimator

bull Heavy duty equipment mechanic

bull Carpenter

bull Ironworker

bull Millwright and industrial mechanic

bull Estimator

404178217_2

C New

bull Compliance Requirements

bull AB Pilot project for working‐age dependent children of skilled workers

414178217_2

1 Passport expiry

2 Medical TRV Criminalitybull Delays due to need of medicals (where employee has

been in ldquomedically‐required country for 6 months in last year)

bull Delays (and change of venue of application) because of nationality (and not residence) of employee

bull Criminal record ndash be prepared

D Tips

42

R v COLE 2012 SCC 53

Presenter Fausto Franceschi

Partner

43

Background

bull Richard Cole was a high school computer science teacher in Ontario who was given a work‐issued laptop computer

bull He was permitted to use the laptop for incidental personal purposes

bull While performing maintenance activities on Colersquos laptop a school board technician found a hidden folder containing nude photos of a grade 10 female student which Cole had copied from the schoolrsquos network The technician notified the school principal who directed the technician to copy the photos onto a CD

44

Background

bull The principal seized the laptop from Cole and copied the internet browsing history (which contained a large amount of pornographic images) from it onto a second CD and handed over the laptop and the CDrsquos to the police who without a warrant reviewed their contents and created a mirror image of the hard drive for forensic purposes

bull The police decided it was not necessary to obtain a search warrant because the laptop was school property

bull Cole was charged with possession of child pornography

45

The Schoolrsquos Policy on Computer Use

bull The school had an Acceptable Use Policy which regulated access to the schoolrsquos computer network The policy provided that the school ldquomay monitor all student work and email including material saved on laptop hard drives Users should NOT assume that files stored on network servers or hard drives of individual computers will be privaterdquo This policy also applied to staff

46

The Schoolrsquos Policy on Computer Use

bull The School Board also had a policy applicable to teachers governing the acceptable use of school information technology The policy provided that ldquoall data and messages generated on or handled by board equipment are considered to be the property of the [school]rdquo The policy also allowed limited ldquoincidental personal userdquo of information technology prohibited the posting or accessing of certain inappropriate content (such as sexually explicit material) and provided that while email was considered private the School Board could open email in certain circumstances such as if inappropriate use was suspected

47

Issue

bull Whether the evidence found on the laptop could be admitted at trial or whether it was obtained by way of an unreasonable search and seizure contrary to section 8 of the Charter

48

Supreme Court of Canada

bull Cole had a privacy interest in his personal information on the computer

bull Just as Canadians have a reasonable expectation of privacy in their own personal computers they also have a privacy interest in their work computers ldquoat least where personal use is permitted or reasonably expectedrdquo

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

21

MedicalAllied Professional continued

bull PhysiotherapistPhysical Therapist ‐ Baccalalaureate or Licenciatura Degree or stateprovincial license

bull Psychologist ndash Stateprovincial license or Licenciatura Degreebull Recreational Therapist ‐ Baccalaureate or Licenciatura Degreebull Registered Nurse ‐ Stateprovincial license or Licenciatura Degreebull Veterinarian ndash DVM DMV or Doctor en Veterinaria or stateprovincial license

22

Scientists

bull Agriculturist (including Agronomist) ‐ Baccalaureate or Licenciatura Degreebull Animal Breeder ‐ Baccalaureate or Licenciatura Degreebull Animal Scientist ‐ Baccalaureate or Licenciatura Degreebull Apiculturist ‐ Baccalaureate or Licenciatura Degreebull Astronomer ‐ Baccalaureate or Licenciatura Degreebull Biochemist ‐ Baccalaureate or Licenciatura Degreebull Biologist ‐ Baccalaureate or Licenciatura Degreebull Chemist ‐ Baccalaureate or Licenciatura Degreebull Dairy Scientist ‐ Baccalaureate or Licenciatura Degreebull Entomologist ‐ Baccalaureate or Licenciatura Degreebull Epidemiologist ‐ Baccalaureate or Licenciatura Degreebull Geneticist ‐ Baccalaureate or Licenciatura Degree

23

Scientists Contrsquod

bull Geologist ‐ Baccalaureate or Licenciatura Degreebull Geochemist ‐ Baccalaureate or Licenciatura Degreebull Geophysicist (including Oceanographer in Mexico and the United States) ‐Baccalaureate or Licenciatura Degree

bull Horticulturist ‐ Baccalaureate or Licenciatura Degreebull Meteorologist ‐ Baccalaureate or Licenciatura Degreebull Pharmacologist ‐ Baccalaureate or Licenciatura Degreebull Physicist (including Oceanographer in Canada) ‐ Baccalaureate or Licenciatura Degree

bull Plant Breeder ‐ Baccalaureate or Licenciatura Degreebull Poultry Scientist ‐ Baccalaureate or Licenciatura Degreebull Soil Scientist ‐ Baccalaureate or Licenciatura Degreebull Zoologist ‐ Baccalaureate or Licenciatura Degree

24

Teachers

bull College ‐ Baccalaureate or Licenciatura Degree

bull Seminary ‐ Baccalaureate or Licenciatura Degree

bull University ‐ Baccalaureate or Licenciatura Degree

25

Professionals require a Work Permitbull These applicants must also apply for and obtain a work permit These professionals usually apply for their Canadian work permits at a Canadian port of entry but could do it in advance by making an application to a Canadian Visa office The work permit is usually granted for one (1) year however there is no limit on the number of extensions granted under this category

bull When applying the applicant will need to provide the Canadian Border Officer (or Canadian Visa office) the following

ndash Proof of American or Mexican citizenshipndash Proof of professional degrees diplomas or related accreditations andor related experiencendash Proof of holding all applicable licences for the occupationndash Resumendash Employment Offer and Employment Agreement from Canadian employer detailing the

professional duties the applicant will be providing to the Canadian corporationndash Document checklist Citizenship and Immigration formndash Photocopies of passport pagesndash Pay applicable fee of $15000

26

Intra‐Company Transferees

27

Intra‐Company Transfereesbull The applicant must be working for an American or Mexican company that is directly related to the Canadian company as a parent company branch or subsidiary relationship

bull Intra‐company Transferees must have been employed full‐time with an American or Mexican company hold for at least one year in an executive senior managerial or specialized knowledge position within the last three years and must be entering Canada to assume a similar position

bull Intra‐company Transferee applicants like professionals need to apply for work permits Work permits are generally granted for an initial period up to three (3) years Applicants can apply for extensions of two (2) years at a time up to a maximum

bull This is the only NAFTA category that has a ldquocaprdquo that limits the overall length of time that a foreign worker may hold a work permit The total period of stay for a person employed in an executive or managerial capacity is seven years The total period of stay for a person employed in a position requiring specialized knowledge is five years Applicants are eligible for a new work permit after one year has passed after the time cap

28

Intra‐Company Transferees require a Work Permitbull In order for the Intra‐company Transferee to obtain the work permit they need to show the Canadian Border Officer if they apply at a Canadian port of entry or send to a Canadian Visa office the following

ndash Proof of American or Mexican citizenshipndash Confirmation has been employed with the American or Mexican company for one

year continuously within the last three years before making the applicationndash Wage and Tax statements proving paid in the USA or Mexico in the last yearndash Organizational chart showing the corporate relationship between the USA or

Mexican company and Canadian companyndash Employment Agreement with USA company or Mexican company (proof of work

for one year in the last three years)ndash Document checklist Citizen and Immigration Canada formndash Photocopies of passport pagesndash Use of a Representative formndash Current employment contract to work as Intra‐company Transfereendash Resumendash Letter from employer confirmation of employmentndash Pay fee of $15000

29

Traders and Investors

30

A Traders

bull In order to qualify as a Trader an American or Mexican citizen must enter Canada to be involved in substantial trade in goods or services

bull To be considered substantial trade more than 50 percent of the total volume of international trade conducted must be between Canada and the United States or Mexico Traders must be employed in a supervisory or executive position or in one that involves essential skills that are vital to the effectiveness of the firmrsquos Canadian operations

31

Traders require a Work Permit

bull These applications are rather complex Traders need to apply to a Canadian Visa office before traveling to Canada Initial work permits given are for one (1) year And extension up to two (2) years is then usually granted

bull Traders must provide the followingndash Proof of American or Mexican citizenshipndash Proof that the enterprise in Canada the Trader is coming to has American or

Canadian Nationality (this has been defined to mean that the individual or corporate persons owns at least 50 (directly or by stock) in the entity established in Canada must hold American or Mexican citizenship)

ndash Trade is primarily between USA or Mexico and Canada andndash The Trader is working in a managerial or executive capacity Alternatively the

Trader could be working to provide Essential Skills and services (define have qualifications that are vital to the success of the Canadian Enterprises operations)

32

B Investors

bull Investors must have made or be in the process in making a substantial investment in an enterprise in Canada and intend to enter Canada to develop and direct the enterprise

bull There is no minimum investment to qualify Rather the application is assessed based on the circumstances and nature of the business The amount an applicant invests will be weighed against the total value of the current enterprise or against the total amount needed to establish the new enterprise As with Traders Investors must also be in a supervisory or executive role by directing controlling and guiding employees

33

Investors require a Work Permit

bull Like Traders these applications are complex and should be sent to a Canadian Visa office for approval prior to travelling to Canada The Investor will need to provide the following

ndash Proof of American or Mexican citizenshipndash Proof that the Investor made or is in the process of making a

substantial investment in an enterprise in Canadandash The enterprise in Canada in which the Investor is coming has American

or Mexican Nationality andndash The Investor is seeking entry solely to develop and direct the

enterprise in Canada

34

We Need Foreign Workers Now

Presenter Shawna Vogel

Partner

354178217_1

We Need Foreign Workers Now

General Rule ndash prove no Canadian can fill the job unless exception applies

bullNAFTA WORK PERMITS

‐ Professional

‐ Intracompany Transferee

bullGATS WORK PERMITS

‐ Professional ‐ limited

‐ Intracompany Transferee ndash same rules

364178217_2

A LMO and A‐LMO

1 Key Elements

bull Advertise position

bull Qualify candidates

bull Apply for and obtain Labour Market Opinion Confirmation (ldquoLMOrdquo)

bull Obtain work permit

374178217_2

2 Changes ‐ A‐LMO ndash Accelerated LMO

bull 10 day processing

bull Advertising and all other requirements still apply ndashpost issuance VERIFICATION

bull Only applies if positive LMO issued to employer in last 2 years

bull Positions ndash NOC O A B (management professional technical)

38

3 Changes ndash Wages under LMO

bull New Rule ndash must pay (i) same wage to TFW as to Canadian employees and (ii) median wage (or up to 5 ‐15 variance)

4178217_2

394178217_2

B Alberta 7 Occupation Pilot Project

Focus on semi‐skilled workerbull Steamfitterpipefitter

bull Welder

bull Estimator

bull Heavy duty equipment mechanic

bull Carpenter

bull Ironworker

bull Millwright and industrial mechanic

bull Estimator

404178217_2

C New

bull Compliance Requirements

bull AB Pilot project for working‐age dependent children of skilled workers

414178217_2

1 Passport expiry

2 Medical TRV Criminalitybull Delays due to need of medicals (where employee has

been in ldquomedically‐required country for 6 months in last year)

bull Delays (and change of venue of application) because of nationality (and not residence) of employee

bull Criminal record ndash be prepared

D Tips

42

R v COLE 2012 SCC 53

Presenter Fausto Franceschi

Partner

43

Background

bull Richard Cole was a high school computer science teacher in Ontario who was given a work‐issued laptop computer

bull He was permitted to use the laptop for incidental personal purposes

bull While performing maintenance activities on Colersquos laptop a school board technician found a hidden folder containing nude photos of a grade 10 female student which Cole had copied from the schoolrsquos network The technician notified the school principal who directed the technician to copy the photos onto a CD

44

Background

bull The principal seized the laptop from Cole and copied the internet browsing history (which contained a large amount of pornographic images) from it onto a second CD and handed over the laptop and the CDrsquos to the police who without a warrant reviewed their contents and created a mirror image of the hard drive for forensic purposes

bull The police decided it was not necessary to obtain a search warrant because the laptop was school property

bull Cole was charged with possession of child pornography

45

The Schoolrsquos Policy on Computer Use

bull The school had an Acceptable Use Policy which regulated access to the schoolrsquos computer network The policy provided that the school ldquomay monitor all student work and email including material saved on laptop hard drives Users should NOT assume that files stored on network servers or hard drives of individual computers will be privaterdquo This policy also applied to staff

46

The Schoolrsquos Policy on Computer Use

bull The School Board also had a policy applicable to teachers governing the acceptable use of school information technology The policy provided that ldquoall data and messages generated on or handled by board equipment are considered to be the property of the [school]rdquo The policy also allowed limited ldquoincidental personal userdquo of information technology prohibited the posting or accessing of certain inappropriate content (such as sexually explicit material) and provided that while email was considered private the School Board could open email in certain circumstances such as if inappropriate use was suspected

47

Issue

bull Whether the evidence found on the laptop could be admitted at trial or whether it was obtained by way of an unreasonable search and seizure contrary to section 8 of the Charter

48

Supreme Court of Canada

bull Cole had a privacy interest in his personal information on the computer

bull Just as Canadians have a reasonable expectation of privacy in their own personal computers they also have a privacy interest in their work computers ldquoat least where personal use is permitted or reasonably expectedrdquo

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

22

Scientists

bull Agriculturist (including Agronomist) ‐ Baccalaureate or Licenciatura Degreebull Animal Breeder ‐ Baccalaureate or Licenciatura Degreebull Animal Scientist ‐ Baccalaureate or Licenciatura Degreebull Apiculturist ‐ Baccalaureate or Licenciatura Degreebull Astronomer ‐ Baccalaureate or Licenciatura Degreebull Biochemist ‐ Baccalaureate or Licenciatura Degreebull Biologist ‐ Baccalaureate or Licenciatura Degreebull Chemist ‐ Baccalaureate or Licenciatura Degreebull Dairy Scientist ‐ Baccalaureate or Licenciatura Degreebull Entomologist ‐ Baccalaureate or Licenciatura Degreebull Epidemiologist ‐ Baccalaureate or Licenciatura Degreebull Geneticist ‐ Baccalaureate or Licenciatura Degree

23

Scientists Contrsquod

bull Geologist ‐ Baccalaureate or Licenciatura Degreebull Geochemist ‐ Baccalaureate or Licenciatura Degreebull Geophysicist (including Oceanographer in Mexico and the United States) ‐Baccalaureate or Licenciatura Degree

bull Horticulturist ‐ Baccalaureate or Licenciatura Degreebull Meteorologist ‐ Baccalaureate or Licenciatura Degreebull Pharmacologist ‐ Baccalaureate or Licenciatura Degreebull Physicist (including Oceanographer in Canada) ‐ Baccalaureate or Licenciatura Degree

bull Plant Breeder ‐ Baccalaureate or Licenciatura Degreebull Poultry Scientist ‐ Baccalaureate or Licenciatura Degreebull Soil Scientist ‐ Baccalaureate or Licenciatura Degreebull Zoologist ‐ Baccalaureate or Licenciatura Degree

24

Teachers

bull College ‐ Baccalaureate or Licenciatura Degree

bull Seminary ‐ Baccalaureate or Licenciatura Degree

bull University ‐ Baccalaureate or Licenciatura Degree

25

Professionals require a Work Permitbull These applicants must also apply for and obtain a work permit These professionals usually apply for their Canadian work permits at a Canadian port of entry but could do it in advance by making an application to a Canadian Visa office The work permit is usually granted for one (1) year however there is no limit on the number of extensions granted under this category

bull When applying the applicant will need to provide the Canadian Border Officer (or Canadian Visa office) the following

ndash Proof of American or Mexican citizenshipndash Proof of professional degrees diplomas or related accreditations andor related experiencendash Proof of holding all applicable licences for the occupationndash Resumendash Employment Offer and Employment Agreement from Canadian employer detailing the

professional duties the applicant will be providing to the Canadian corporationndash Document checklist Citizenship and Immigration formndash Photocopies of passport pagesndash Pay applicable fee of $15000

26

Intra‐Company Transferees

27

Intra‐Company Transfereesbull The applicant must be working for an American or Mexican company that is directly related to the Canadian company as a parent company branch or subsidiary relationship

bull Intra‐company Transferees must have been employed full‐time with an American or Mexican company hold for at least one year in an executive senior managerial or specialized knowledge position within the last three years and must be entering Canada to assume a similar position

bull Intra‐company Transferee applicants like professionals need to apply for work permits Work permits are generally granted for an initial period up to three (3) years Applicants can apply for extensions of two (2) years at a time up to a maximum

bull This is the only NAFTA category that has a ldquocaprdquo that limits the overall length of time that a foreign worker may hold a work permit The total period of stay for a person employed in an executive or managerial capacity is seven years The total period of stay for a person employed in a position requiring specialized knowledge is five years Applicants are eligible for a new work permit after one year has passed after the time cap

28

Intra‐Company Transferees require a Work Permitbull In order for the Intra‐company Transferee to obtain the work permit they need to show the Canadian Border Officer if they apply at a Canadian port of entry or send to a Canadian Visa office the following

ndash Proof of American or Mexican citizenshipndash Confirmation has been employed with the American or Mexican company for one

year continuously within the last three years before making the applicationndash Wage and Tax statements proving paid in the USA or Mexico in the last yearndash Organizational chart showing the corporate relationship between the USA or

Mexican company and Canadian companyndash Employment Agreement with USA company or Mexican company (proof of work

for one year in the last three years)ndash Document checklist Citizen and Immigration Canada formndash Photocopies of passport pagesndash Use of a Representative formndash Current employment contract to work as Intra‐company Transfereendash Resumendash Letter from employer confirmation of employmentndash Pay fee of $15000

29

Traders and Investors

30

A Traders

bull In order to qualify as a Trader an American or Mexican citizen must enter Canada to be involved in substantial trade in goods or services

bull To be considered substantial trade more than 50 percent of the total volume of international trade conducted must be between Canada and the United States or Mexico Traders must be employed in a supervisory or executive position or in one that involves essential skills that are vital to the effectiveness of the firmrsquos Canadian operations

31

Traders require a Work Permit

bull These applications are rather complex Traders need to apply to a Canadian Visa office before traveling to Canada Initial work permits given are for one (1) year And extension up to two (2) years is then usually granted

bull Traders must provide the followingndash Proof of American or Mexican citizenshipndash Proof that the enterprise in Canada the Trader is coming to has American or

Canadian Nationality (this has been defined to mean that the individual or corporate persons owns at least 50 (directly or by stock) in the entity established in Canada must hold American or Mexican citizenship)

ndash Trade is primarily between USA or Mexico and Canada andndash The Trader is working in a managerial or executive capacity Alternatively the

Trader could be working to provide Essential Skills and services (define have qualifications that are vital to the success of the Canadian Enterprises operations)

32

B Investors

bull Investors must have made or be in the process in making a substantial investment in an enterprise in Canada and intend to enter Canada to develop and direct the enterprise

bull There is no minimum investment to qualify Rather the application is assessed based on the circumstances and nature of the business The amount an applicant invests will be weighed against the total value of the current enterprise or against the total amount needed to establish the new enterprise As with Traders Investors must also be in a supervisory or executive role by directing controlling and guiding employees

33

Investors require a Work Permit

bull Like Traders these applications are complex and should be sent to a Canadian Visa office for approval prior to travelling to Canada The Investor will need to provide the following

ndash Proof of American or Mexican citizenshipndash Proof that the Investor made or is in the process of making a

substantial investment in an enterprise in Canadandash The enterprise in Canada in which the Investor is coming has American

or Mexican Nationality andndash The Investor is seeking entry solely to develop and direct the

enterprise in Canada

34

We Need Foreign Workers Now

Presenter Shawna Vogel

Partner

354178217_1

We Need Foreign Workers Now

General Rule ndash prove no Canadian can fill the job unless exception applies

bullNAFTA WORK PERMITS

‐ Professional

‐ Intracompany Transferee

bullGATS WORK PERMITS

‐ Professional ‐ limited

‐ Intracompany Transferee ndash same rules

364178217_2

A LMO and A‐LMO

1 Key Elements

bull Advertise position

bull Qualify candidates

bull Apply for and obtain Labour Market Opinion Confirmation (ldquoLMOrdquo)

bull Obtain work permit

374178217_2

2 Changes ‐ A‐LMO ndash Accelerated LMO

bull 10 day processing

bull Advertising and all other requirements still apply ndashpost issuance VERIFICATION

bull Only applies if positive LMO issued to employer in last 2 years

bull Positions ndash NOC O A B (management professional technical)

38

3 Changes ndash Wages under LMO

bull New Rule ndash must pay (i) same wage to TFW as to Canadian employees and (ii) median wage (or up to 5 ‐15 variance)

4178217_2

394178217_2

B Alberta 7 Occupation Pilot Project

Focus on semi‐skilled workerbull Steamfitterpipefitter

bull Welder

bull Estimator

bull Heavy duty equipment mechanic

bull Carpenter

bull Ironworker

bull Millwright and industrial mechanic

bull Estimator

404178217_2

C New

bull Compliance Requirements

bull AB Pilot project for working‐age dependent children of skilled workers

414178217_2

1 Passport expiry

2 Medical TRV Criminalitybull Delays due to need of medicals (where employee has

been in ldquomedically‐required country for 6 months in last year)

bull Delays (and change of venue of application) because of nationality (and not residence) of employee

bull Criminal record ndash be prepared

D Tips

42

R v COLE 2012 SCC 53

Presenter Fausto Franceschi

Partner

43

Background

bull Richard Cole was a high school computer science teacher in Ontario who was given a work‐issued laptop computer

bull He was permitted to use the laptop for incidental personal purposes

bull While performing maintenance activities on Colersquos laptop a school board technician found a hidden folder containing nude photos of a grade 10 female student which Cole had copied from the schoolrsquos network The technician notified the school principal who directed the technician to copy the photos onto a CD

44

Background

bull The principal seized the laptop from Cole and copied the internet browsing history (which contained a large amount of pornographic images) from it onto a second CD and handed over the laptop and the CDrsquos to the police who without a warrant reviewed their contents and created a mirror image of the hard drive for forensic purposes

bull The police decided it was not necessary to obtain a search warrant because the laptop was school property

bull Cole was charged with possession of child pornography

45

The Schoolrsquos Policy on Computer Use

bull The school had an Acceptable Use Policy which regulated access to the schoolrsquos computer network The policy provided that the school ldquomay monitor all student work and email including material saved on laptop hard drives Users should NOT assume that files stored on network servers or hard drives of individual computers will be privaterdquo This policy also applied to staff

46

The Schoolrsquos Policy on Computer Use

bull The School Board also had a policy applicable to teachers governing the acceptable use of school information technology The policy provided that ldquoall data and messages generated on or handled by board equipment are considered to be the property of the [school]rdquo The policy also allowed limited ldquoincidental personal userdquo of information technology prohibited the posting or accessing of certain inappropriate content (such as sexually explicit material) and provided that while email was considered private the School Board could open email in certain circumstances such as if inappropriate use was suspected

47

Issue

bull Whether the evidence found on the laptop could be admitted at trial or whether it was obtained by way of an unreasonable search and seizure contrary to section 8 of the Charter

48

Supreme Court of Canada

bull Cole had a privacy interest in his personal information on the computer

bull Just as Canadians have a reasonable expectation of privacy in their own personal computers they also have a privacy interest in their work computers ldquoat least where personal use is permitted or reasonably expectedrdquo

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

23

Scientists Contrsquod

bull Geologist ‐ Baccalaureate or Licenciatura Degreebull Geochemist ‐ Baccalaureate or Licenciatura Degreebull Geophysicist (including Oceanographer in Mexico and the United States) ‐Baccalaureate or Licenciatura Degree

bull Horticulturist ‐ Baccalaureate or Licenciatura Degreebull Meteorologist ‐ Baccalaureate or Licenciatura Degreebull Pharmacologist ‐ Baccalaureate or Licenciatura Degreebull Physicist (including Oceanographer in Canada) ‐ Baccalaureate or Licenciatura Degree

bull Plant Breeder ‐ Baccalaureate or Licenciatura Degreebull Poultry Scientist ‐ Baccalaureate or Licenciatura Degreebull Soil Scientist ‐ Baccalaureate or Licenciatura Degreebull Zoologist ‐ Baccalaureate or Licenciatura Degree

24

Teachers

bull College ‐ Baccalaureate or Licenciatura Degree

bull Seminary ‐ Baccalaureate or Licenciatura Degree

bull University ‐ Baccalaureate or Licenciatura Degree

25

Professionals require a Work Permitbull These applicants must also apply for and obtain a work permit These professionals usually apply for their Canadian work permits at a Canadian port of entry but could do it in advance by making an application to a Canadian Visa office The work permit is usually granted for one (1) year however there is no limit on the number of extensions granted under this category

bull When applying the applicant will need to provide the Canadian Border Officer (or Canadian Visa office) the following

ndash Proof of American or Mexican citizenshipndash Proof of professional degrees diplomas or related accreditations andor related experiencendash Proof of holding all applicable licences for the occupationndash Resumendash Employment Offer and Employment Agreement from Canadian employer detailing the

professional duties the applicant will be providing to the Canadian corporationndash Document checklist Citizenship and Immigration formndash Photocopies of passport pagesndash Pay applicable fee of $15000

26

Intra‐Company Transferees

27

Intra‐Company Transfereesbull The applicant must be working for an American or Mexican company that is directly related to the Canadian company as a parent company branch or subsidiary relationship

bull Intra‐company Transferees must have been employed full‐time with an American or Mexican company hold for at least one year in an executive senior managerial or specialized knowledge position within the last three years and must be entering Canada to assume a similar position

bull Intra‐company Transferee applicants like professionals need to apply for work permits Work permits are generally granted for an initial period up to three (3) years Applicants can apply for extensions of two (2) years at a time up to a maximum

bull This is the only NAFTA category that has a ldquocaprdquo that limits the overall length of time that a foreign worker may hold a work permit The total period of stay for a person employed in an executive or managerial capacity is seven years The total period of stay for a person employed in a position requiring specialized knowledge is five years Applicants are eligible for a new work permit after one year has passed after the time cap

28

Intra‐Company Transferees require a Work Permitbull In order for the Intra‐company Transferee to obtain the work permit they need to show the Canadian Border Officer if they apply at a Canadian port of entry or send to a Canadian Visa office the following

ndash Proof of American or Mexican citizenshipndash Confirmation has been employed with the American or Mexican company for one

year continuously within the last three years before making the applicationndash Wage and Tax statements proving paid in the USA or Mexico in the last yearndash Organizational chart showing the corporate relationship between the USA or

Mexican company and Canadian companyndash Employment Agreement with USA company or Mexican company (proof of work

for one year in the last three years)ndash Document checklist Citizen and Immigration Canada formndash Photocopies of passport pagesndash Use of a Representative formndash Current employment contract to work as Intra‐company Transfereendash Resumendash Letter from employer confirmation of employmentndash Pay fee of $15000

29

Traders and Investors

30

A Traders

bull In order to qualify as a Trader an American or Mexican citizen must enter Canada to be involved in substantial trade in goods or services

bull To be considered substantial trade more than 50 percent of the total volume of international trade conducted must be between Canada and the United States or Mexico Traders must be employed in a supervisory or executive position or in one that involves essential skills that are vital to the effectiveness of the firmrsquos Canadian operations

31

Traders require a Work Permit

bull These applications are rather complex Traders need to apply to a Canadian Visa office before traveling to Canada Initial work permits given are for one (1) year And extension up to two (2) years is then usually granted

bull Traders must provide the followingndash Proof of American or Mexican citizenshipndash Proof that the enterprise in Canada the Trader is coming to has American or

Canadian Nationality (this has been defined to mean that the individual or corporate persons owns at least 50 (directly or by stock) in the entity established in Canada must hold American or Mexican citizenship)

ndash Trade is primarily between USA or Mexico and Canada andndash The Trader is working in a managerial or executive capacity Alternatively the

Trader could be working to provide Essential Skills and services (define have qualifications that are vital to the success of the Canadian Enterprises operations)

32

B Investors

bull Investors must have made or be in the process in making a substantial investment in an enterprise in Canada and intend to enter Canada to develop and direct the enterprise

bull There is no minimum investment to qualify Rather the application is assessed based on the circumstances and nature of the business The amount an applicant invests will be weighed against the total value of the current enterprise or against the total amount needed to establish the new enterprise As with Traders Investors must also be in a supervisory or executive role by directing controlling and guiding employees

33

Investors require a Work Permit

bull Like Traders these applications are complex and should be sent to a Canadian Visa office for approval prior to travelling to Canada The Investor will need to provide the following

ndash Proof of American or Mexican citizenshipndash Proof that the Investor made or is in the process of making a

substantial investment in an enterprise in Canadandash The enterprise in Canada in which the Investor is coming has American

or Mexican Nationality andndash The Investor is seeking entry solely to develop and direct the

enterprise in Canada

34

We Need Foreign Workers Now

Presenter Shawna Vogel

Partner

354178217_1

We Need Foreign Workers Now

General Rule ndash prove no Canadian can fill the job unless exception applies

bullNAFTA WORK PERMITS

‐ Professional

‐ Intracompany Transferee

bullGATS WORK PERMITS

‐ Professional ‐ limited

‐ Intracompany Transferee ndash same rules

364178217_2

A LMO and A‐LMO

1 Key Elements

bull Advertise position

bull Qualify candidates

bull Apply for and obtain Labour Market Opinion Confirmation (ldquoLMOrdquo)

bull Obtain work permit

374178217_2

2 Changes ‐ A‐LMO ndash Accelerated LMO

bull 10 day processing

bull Advertising and all other requirements still apply ndashpost issuance VERIFICATION

bull Only applies if positive LMO issued to employer in last 2 years

bull Positions ndash NOC O A B (management professional technical)

38

3 Changes ndash Wages under LMO

bull New Rule ndash must pay (i) same wage to TFW as to Canadian employees and (ii) median wage (or up to 5 ‐15 variance)

4178217_2

394178217_2

B Alberta 7 Occupation Pilot Project

Focus on semi‐skilled workerbull Steamfitterpipefitter

bull Welder

bull Estimator

bull Heavy duty equipment mechanic

bull Carpenter

bull Ironworker

bull Millwright and industrial mechanic

bull Estimator

404178217_2

C New

bull Compliance Requirements

bull AB Pilot project for working‐age dependent children of skilled workers

414178217_2

1 Passport expiry

2 Medical TRV Criminalitybull Delays due to need of medicals (where employee has

been in ldquomedically‐required country for 6 months in last year)

bull Delays (and change of venue of application) because of nationality (and not residence) of employee

bull Criminal record ndash be prepared

D Tips

42

R v COLE 2012 SCC 53

Presenter Fausto Franceschi

Partner

43

Background

bull Richard Cole was a high school computer science teacher in Ontario who was given a work‐issued laptop computer

bull He was permitted to use the laptop for incidental personal purposes

bull While performing maintenance activities on Colersquos laptop a school board technician found a hidden folder containing nude photos of a grade 10 female student which Cole had copied from the schoolrsquos network The technician notified the school principal who directed the technician to copy the photos onto a CD

44

Background

bull The principal seized the laptop from Cole and copied the internet browsing history (which contained a large amount of pornographic images) from it onto a second CD and handed over the laptop and the CDrsquos to the police who without a warrant reviewed their contents and created a mirror image of the hard drive for forensic purposes

bull The police decided it was not necessary to obtain a search warrant because the laptop was school property

bull Cole was charged with possession of child pornography

45

The Schoolrsquos Policy on Computer Use

bull The school had an Acceptable Use Policy which regulated access to the schoolrsquos computer network The policy provided that the school ldquomay monitor all student work and email including material saved on laptop hard drives Users should NOT assume that files stored on network servers or hard drives of individual computers will be privaterdquo This policy also applied to staff

46

The Schoolrsquos Policy on Computer Use

bull The School Board also had a policy applicable to teachers governing the acceptable use of school information technology The policy provided that ldquoall data and messages generated on or handled by board equipment are considered to be the property of the [school]rdquo The policy also allowed limited ldquoincidental personal userdquo of information technology prohibited the posting or accessing of certain inappropriate content (such as sexually explicit material) and provided that while email was considered private the School Board could open email in certain circumstances such as if inappropriate use was suspected

47

Issue

bull Whether the evidence found on the laptop could be admitted at trial or whether it was obtained by way of an unreasonable search and seizure contrary to section 8 of the Charter

48

Supreme Court of Canada

bull Cole had a privacy interest in his personal information on the computer

bull Just as Canadians have a reasonable expectation of privacy in their own personal computers they also have a privacy interest in their work computers ldquoat least where personal use is permitted or reasonably expectedrdquo

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

24

Teachers

bull College ‐ Baccalaureate or Licenciatura Degree

bull Seminary ‐ Baccalaureate or Licenciatura Degree

bull University ‐ Baccalaureate or Licenciatura Degree

25

Professionals require a Work Permitbull These applicants must also apply for and obtain a work permit These professionals usually apply for their Canadian work permits at a Canadian port of entry but could do it in advance by making an application to a Canadian Visa office The work permit is usually granted for one (1) year however there is no limit on the number of extensions granted under this category

bull When applying the applicant will need to provide the Canadian Border Officer (or Canadian Visa office) the following

ndash Proof of American or Mexican citizenshipndash Proof of professional degrees diplomas or related accreditations andor related experiencendash Proof of holding all applicable licences for the occupationndash Resumendash Employment Offer and Employment Agreement from Canadian employer detailing the

professional duties the applicant will be providing to the Canadian corporationndash Document checklist Citizenship and Immigration formndash Photocopies of passport pagesndash Pay applicable fee of $15000

26

Intra‐Company Transferees

27

Intra‐Company Transfereesbull The applicant must be working for an American or Mexican company that is directly related to the Canadian company as a parent company branch or subsidiary relationship

bull Intra‐company Transferees must have been employed full‐time with an American or Mexican company hold for at least one year in an executive senior managerial or specialized knowledge position within the last three years and must be entering Canada to assume a similar position

bull Intra‐company Transferee applicants like professionals need to apply for work permits Work permits are generally granted for an initial period up to three (3) years Applicants can apply for extensions of two (2) years at a time up to a maximum

bull This is the only NAFTA category that has a ldquocaprdquo that limits the overall length of time that a foreign worker may hold a work permit The total period of stay for a person employed in an executive or managerial capacity is seven years The total period of stay for a person employed in a position requiring specialized knowledge is five years Applicants are eligible for a new work permit after one year has passed after the time cap

28

Intra‐Company Transferees require a Work Permitbull In order for the Intra‐company Transferee to obtain the work permit they need to show the Canadian Border Officer if they apply at a Canadian port of entry or send to a Canadian Visa office the following

ndash Proof of American or Mexican citizenshipndash Confirmation has been employed with the American or Mexican company for one

year continuously within the last three years before making the applicationndash Wage and Tax statements proving paid in the USA or Mexico in the last yearndash Organizational chart showing the corporate relationship between the USA or

Mexican company and Canadian companyndash Employment Agreement with USA company or Mexican company (proof of work

for one year in the last three years)ndash Document checklist Citizen and Immigration Canada formndash Photocopies of passport pagesndash Use of a Representative formndash Current employment contract to work as Intra‐company Transfereendash Resumendash Letter from employer confirmation of employmentndash Pay fee of $15000

29

Traders and Investors

30

A Traders

bull In order to qualify as a Trader an American or Mexican citizen must enter Canada to be involved in substantial trade in goods or services

bull To be considered substantial trade more than 50 percent of the total volume of international trade conducted must be between Canada and the United States or Mexico Traders must be employed in a supervisory or executive position or in one that involves essential skills that are vital to the effectiveness of the firmrsquos Canadian operations

31

Traders require a Work Permit

bull These applications are rather complex Traders need to apply to a Canadian Visa office before traveling to Canada Initial work permits given are for one (1) year And extension up to two (2) years is then usually granted

bull Traders must provide the followingndash Proof of American or Mexican citizenshipndash Proof that the enterprise in Canada the Trader is coming to has American or

Canadian Nationality (this has been defined to mean that the individual or corporate persons owns at least 50 (directly or by stock) in the entity established in Canada must hold American or Mexican citizenship)

ndash Trade is primarily between USA or Mexico and Canada andndash The Trader is working in a managerial or executive capacity Alternatively the

Trader could be working to provide Essential Skills and services (define have qualifications that are vital to the success of the Canadian Enterprises operations)

32

B Investors

bull Investors must have made or be in the process in making a substantial investment in an enterprise in Canada and intend to enter Canada to develop and direct the enterprise

bull There is no minimum investment to qualify Rather the application is assessed based on the circumstances and nature of the business The amount an applicant invests will be weighed against the total value of the current enterprise or against the total amount needed to establish the new enterprise As with Traders Investors must also be in a supervisory or executive role by directing controlling and guiding employees

33

Investors require a Work Permit

bull Like Traders these applications are complex and should be sent to a Canadian Visa office for approval prior to travelling to Canada The Investor will need to provide the following

ndash Proof of American or Mexican citizenshipndash Proof that the Investor made or is in the process of making a

substantial investment in an enterprise in Canadandash The enterprise in Canada in which the Investor is coming has American

or Mexican Nationality andndash The Investor is seeking entry solely to develop and direct the

enterprise in Canada

34

We Need Foreign Workers Now

Presenter Shawna Vogel

Partner

354178217_1

We Need Foreign Workers Now

General Rule ndash prove no Canadian can fill the job unless exception applies

bullNAFTA WORK PERMITS

‐ Professional

‐ Intracompany Transferee

bullGATS WORK PERMITS

‐ Professional ‐ limited

‐ Intracompany Transferee ndash same rules

364178217_2

A LMO and A‐LMO

1 Key Elements

bull Advertise position

bull Qualify candidates

bull Apply for and obtain Labour Market Opinion Confirmation (ldquoLMOrdquo)

bull Obtain work permit

374178217_2

2 Changes ‐ A‐LMO ndash Accelerated LMO

bull 10 day processing

bull Advertising and all other requirements still apply ndashpost issuance VERIFICATION

bull Only applies if positive LMO issued to employer in last 2 years

bull Positions ndash NOC O A B (management professional technical)

38

3 Changes ndash Wages under LMO

bull New Rule ndash must pay (i) same wage to TFW as to Canadian employees and (ii) median wage (or up to 5 ‐15 variance)

4178217_2

394178217_2

B Alberta 7 Occupation Pilot Project

Focus on semi‐skilled workerbull Steamfitterpipefitter

bull Welder

bull Estimator

bull Heavy duty equipment mechanic

bull Carpenter

bull Ironworker

bull Millwright and industrial mechanic

bull Estimator

404178217_2

C New

bull Compliance Requirements

bull AB Pilot project for working‐age dependent children of skilled workers

414178217_2

1 Passport expiry

2 Medical TRV Criminalitybull Delays due to need of medicals (where employee has

been in ldquomedically‐required country for 6 months in last year)

bull Delays (and change of venue of application) because of nationality (and not residence) of employee

bull Criminal record ndash be prepared

D Tips

42

R v COLE 2012 SCC 53

Presenter Fausto Franceschi

Partner

43

Background

bull Richard Cole was a high school computer science teacher in Ontario who was given a work‐issued laptop computer

bull He was permitted to use the laptop for incidental personal purposes

bull While performing maintenance activities on Colersquos laptop a school board technician found a hidden folder containing nude photos of a grade 10 female student which Cole had copied from the schoolrsquos network The technician notified the school principal who directed the technician to copy the photos onto a CD

44

Background

bull The principal seized the laptop from Cole and copied the internet browsing history (which contained a large amount of pornographic images) from it onto a second CD and handed over the laptop and the CDrsquos to the police who without a warrant reviewed their contents and created a mirror image of the hard drive for forensic purposes

bull The police decided it was not necessary to obtain a search warrant because the laptop was school property

bull Cole was charged with possession of child pornography

45

The Schoolrsquos Policy on Computer Use

bull The school had an Acceptable Use Policy which regulated access to the schoolrsquos computer network The policy provided that the school ldquomay monitor all student work and email including material saved on laptop hard drives Users should NOT assume that files stored on network servers or hard drives of individual computers will be privaterdquo This policy also applied to staff

46

The Schoolrsquos Policy on Computer Use

bull The School Board also had a policy applicable to teachers governing the acceptable use of school information technology The policy provided that ldquoall data and messages generated on or handled by board equipment are considered to be the property of the [school]rdquo The policy also allowed limited ldquoincidental personal userdquo of information technology prohibited the posting or accessing of certain inappropriate content (such as sexually explicit material) and provided that while email was considered private the School Board could open email in certain circumstances such as if inappropriate use was suspected

47

Issue

bull Whether the evidence found on the laptop could be admitted at trial or whether it was obtained by way of an unreasonable search and seizure contrary to section 8 of the Charter

48

Supreme Court of Canada

bull Cole had a privacy interest in his personal information on the computer

bull Just as Canadians have a reasonable expectation of privacy in their own personal computers they also have a privacy interest in their work computers ldquoat least where personal use is permitted or reasonably expectedrdquo

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

25

Professionals require a Work Permitbull These applicants must also apply for and obtain a work permit These professionals usually apply for their Canadian work permits at a Canadian port of entry but could do it in advance by making an application to a Canadian Visa office The work permit is usually granted for one (1) year however there is no limit on the number of extensions granted under this category

bull When applying the applicant will need to provide the Canadian Border Officer (or Canadian Visa office) the following

ndash Proof of American or Mexican citizenshipndash Proof of professional degrees diplomas or related accreditations andor related experiencendash Proof of holding all applicable licences for the occupationndash Resumendash Employment Offer and Employment Agreement from Canadian employer detailing the

professional duties the applicant will be providing to the Canadian corporationndash Document checklist Citizenship and Immigration formndash Photocopies of passport pagesndash Pay applicable fee of $15000

26

Intra‐Company Transferees

27

Intra‐Company Transfereesbull The applicant must be working for an American or Mexican company that is directly related to the Canadian company as a parent company branch or subsidiary relationship

bull Intra‐company Transferees must have been employed full‐time with an American or Mexican company hold for at least one year in an executive senior managerial or specialized knowledge position within the last three years and must be entering Canada to assume a similar position

bull Intra‐company Transferee applicants like professionals need to apply for work permits Work permits are generally granted for an initial period up to three (3) years Applicants can apply for extensions of two (2) years at a time up to a maximum

bull This is the only NAFTA category that has a ldquocaprdquo that limits the overall length of time that a foreign worker may hold a work permit The total period of stay for a person employed in an executive or managerial capacity is seven years The total period of stay for a person employed in a position requiring specialized knowledge is five years Applicants are eligible for a new work permit after one year has passed after the time cap

28

Intra‐Company Transferees require a Work Permitbull In order for the Intra‐company Transferee to obtain the work permit they need to show the Canadian Border Officer if they apply at a Canadian port of entry or send to a Canadian Visa office the following

ndash Proof of American or Mexican citizenshipndash Confirmation has been employed with the American or Mexican company for one

year continuously within the last three years before making the applicationndash Wage and Tax statements proving paid in the USA or Mexico in the last yearndash Organizational chart showing the corporate relationship between the USA or

Mexican company and Canadian companyndash Employment Agreement with USA company or Mexican company (proof of work

for one year in the last three years)ndash Document checklist Citizen and Immigration Canada formndash Photocopies of passport pagesndash Use of a Representative formndash Current employment contract to work as Intra‐company Transfereendash Resumendash Letter from employer confirmation of employmentndash Pay fee of $15000

29

Traders and Investors

30

A Traders

bull In order to qualify as a Trader an American or Mexican citizen must enter Canada to be involved in substantial trade in goods or services

bull To be considered substantial trade more than 50 percent of the total volume of international trade conducted must be between Canada and the United States or Mexico Traders must be employed in a supervisory or executive position or in one that involves essential skills that are vital to the effectiveness of the firmrsquos Canadian operations

31

Traders require a Work Permit

bull These applications are rather complex Traders need to apply to a Canadian Visa office before traveling to Canada Initial work permits given are for one (1) year And extension up to two (2) years is then usually granted

bull Traders must provide the followingndash Proof of American or Mexican citizenshipndash Proof that the enterprise in Canada the Trader is coming to has American or

Canadian Nationality (this has been defined to mean that the individual or corporate persons owns at least 50 (directly or by stock) in the entity established in Canada must hold American or Mexican citizenship)

ndash Trade is primarily between USA or Mexico and Canada andndash The Trader is working in a managerial or executive capacity Alternatively the

Trader could be working to provide Essential Skills and services (define have qualifications that are vital to the success of the Canadian Enterprises operations)

32

B Investors

bull Investors must have made or be in the process in making a substantial investment in an enterprise in Canada and intend to enter Canada to develop and direct the enterprise

bull There is no minimum investment to qualify Rather the application is assessed based on the circumstances and nature of the business The amount an applicant invests will be weighed against the total value of the current enterprise or against the total amount needed to establish the new enterprise As with Traders Investors must also be in a supervisory or executive role by directing controlling and guiding employees

33

Investors require a Work Permit

bull Like Traders these applications are complex and should be sent to a Canadian Visa office for approval prior to travelling to Canada The Investor will need to provide the following

ndash Proof of American or Mexican citizenshipndash Proof that the Investor made or is in the process of making a

substantial investment in an enterprise in Canadandash The enterprise in Canada in which the Investor is coming has American

or Mexican Nationality andndash The Investor is seeking entry solely to develop and direct the

enterprise in Canada

34

We Need Foreign Workers Now

Presenter Shawna Vogel

Partner

354178217_1

We Need Foreign Workers Now

General Rule ndash prove no Canadian can fill the job unless exception applies

bullNAFTA WORK PERMITS

‐ Professional

‐ Intracompany Transferee

bullGATS WORK PERMITS

‐ Professional ‐ limited

‐ Intracompany Transferee ndash same rules

364178217_2

A LMO and A‐LMO

1 Key Elements

bull Advertise position

bull Qualify candidates

bull Apply for and obtain Labour Market Opinion Confirmation (ldquoLMOrdquo)

bull Obtain work permit

374178217_2

2 Changes ‐ A‐LMO ndash Accelerated LMO

bull 10 day processing

bull Advertising and all other requirements still apply ndashpost issuance VERIFICATION

bull Only applies if positive LMO issued to employer in last 2 years

bull Positions ndash NOC O A B (management professional technical)

38

3 Changes ndash Wages under LMO

bull New Rule ndash must pay (i) same wage to TFW as to Canadian employees and (ii) median wage (or up to 5 ‐15 variance)

4178217_2

394178217_2

B Alberta 7 Occupation Pilot Project

Focus on semi‐skilled workerbull Steamfitterpipefitter

bull Welder

bull Estimator

bull Heavy duty equipment mechanic

bull Carpenter

bull Ironworker

bull Millwright and industrial mechanic

bull Estimator

404178217_2

C New

bull Compliance Requirements

bull AB Pilot project for working‐age dependent children of skilled workers

414178217_2

1 Passport expiry

2 Medical TRV Criminalitybull Delays due to need of medicals (where employee has

been in ldquomedically‐required country for 6 months in last year)

bull Delays (and change of venue of application) because of nationality (and not residence) of employee

bull Criminal record ndash be prepared

D Tips

42

R v COLE 2012 SCC 53

Presenter Fausto Franceschi

Partner

43

Background

bull Richard Cole was a high school computer science teacher in Ontario who was given a work‐issued laptop computer

bull He was permitted to use the laptop for incidental personal purposes

bull While performing maintenance activities on Colersquos laptop a school board technician found a hidden folder containing nude photos of a grade 10 female student which Cole had copied from the schoolrsquos network The technician notified the school principal who directed the technician to copy the photos onto a CD

44

Background

bull The principal seized the laptop from Cole and copied the internet browsing history (which contained a large amount of pornographic images) from it onto a second CD and handed over the laptop and the CDrsquos to the police who without a warrant reviewed their contents and created a mirror image of the hard drive for forensic purposes

bull The police decided it was not necessary to obtain a search warrant because the laptop was school property

bull Cole was charged with possession of child pornography

45

The Schoolrsquos Policy on Computer Use

bull The school had an Acceptable Use Policy which regulated access to the schoolrsquos computer network The policy provided that the school ldquomay monitor all student work and email including material saved on laptop hard drives Users should NOT assume that files stored on network servers or hard drives of individual computers will be privaterdquo This policy also applied to staff

46

The Schoolrsquos Policy on Computer Use

bull The School Board also had a policy applicable to teachers governing the acceptable use of school information technology The policy provided that ldquoall data and messages generated on or handled by board equipment are considered to be the property of the [school]rdquo The policy also allowed limited ldquoincidental personal userdquo of information technology prohibited the posting or accessing of certain inappropriate content (such as sexually explicit material) and provided that while email was considered private the School Board could open email in certain circumstances such as if inappropriate use was suspected

47

Issue

bull Whether the evidence found on the laptop could be admitted at trial or whether it was obtained by way of an unreasonable search and seizure contrary to section 8 of the Charter

48

Supreme Court of Canada

bull Cole had a privacy interest in his personal information on the computer

bull Just as Canadians have a reasonable expectation of privacy in their own personal computers they also have a privacy interest in their work computers ldquoat least where personal use is permitted or reasonably expectedrdquo

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

26

Intra‐Company Transferees

27

Intra‐Company Transfereesbull The applicant must be working for an American or Mexican company that is directly related to the Canadian company as a parent company branch or subsidiary relationship

bull Intra‐company Transferees must have been employed full‐time with an American or Mexican company hold for at least one year in an executive senior managerial or specialized knowledge position within the last three years and must be entering Canada to assume a similar position

bull Intra‐company Transferee applicants like professionals need to apply for work permits Work permits are generally granted for an initial period up to three (3) years Applicants can apply for extensions of two (2) years at a time up to a maximum

bull This is the only NAFTA category that has a ldquocaprdquo that limits the overall length of time that a foreign worker may hold a work permit The total period of stay for a person employed in an executive or managerial capacity is seven years The total period of stay for a person employed in a position requiring specialized knowledge is five years Applicants are eligible for a new work permit after one year has passed after the time cap

28

Intra‐Company Transferees require a Work Permitbull In order for the Intra‐company Transferee to obtain the work permit they need to show the Canadian Border Officer if they apply at a Canadian port of entry or send to a Canadian Visa office the following

ndash Proof of American or Mexican citizenshipndash Confirmation has been employed with the American or Mexican company for one

year continuously within the last three years before making the applicationndash Wage and Tax statements proving paid in the USA or Mexico in the last yearndash Organizational chart showing the corporate relationship between the USA or

Mexican company and Canadian companyndash Employment Agreement with USA company or Mexican company (proof of work

for one year in the last three years)ndash Document checklist Citizen and Immigration Canada formndash Photocopies of passport pagesndash Use of a Representative formndash Current employment contract to work as Intra‐company Transfereendash Resumendash Letter from employer confirmation of employmentndash Pay fee of $15000

29

Traders and Investors

30

A Traders

bull In order to qualify as a Trader an American or Mexican citizen must enter Canada to be involved in substantial trade in goods or services

bull To be considered substantial trade more than 50 percent of the total volume of international trade conducted must be between Canada and the United States or Mexico Traders must be employed in a supervisory or executive position or in one that involves essential skills that are vital to the effectiveness of the firmrsquos Canadian operations

31

Traders require a Work Permit

bull These applications are rather complex Traders need to apply to a Canadian Visa office before traveling to Canada Initial work permits given are for one (1) year And extension up to two (2) years is then usually granted

bull Traders must provide the followingndash Proof of American or Mexican citizenshipndash Proof that the enterprise in Canada the Trader is coming to has American or

Canadian Nationality (this has been defined to mean that the individual or corporate persons owns at least 50 (directly or by stock) in the entity established in Canada must hold American or Mexican citizenship)

ndash Trade is primarily between USA or Mexico and Canada andndash The Trader is working in a managerial or executive capacity Alternatively the

Trader could be working to provide Essential Skills and services (define have qualifications that are vital to the success of the Canadian Enterprises operations)

32

B Investors

bull Investors must have made or be in the process in making a substantial investment in an enterprise in Canada and intend to enter Canada to develop and direct the enterprise

bull There is no minimum investment to qualify Rather the application is assessed based on the circumstances and nature of the business The amount an applicant invests will be weighed against the total value of the current enterprise or against the total amount needed to establish the new enterprise As with Traders Investors must also be in a supervisory or executive role by directing controlling and guiding employees

33

Investors require a Work Permit

bull Like Traders these applications are complex and should be sent to a Canadian Visa office for approval prior to travelling to Canada The Investor will need to provide the following

ndash Proof of American or Mexican citizenshipndash Proof that the Investor made or is in the process of making a

substantial investment in an enterprise in Canadandash The enterprise in Canada in which the Investor is coming has American

or Mexican Nationality andndash The Investor is seeking entry solely to develop and direct the

enterprise in Canada

34

We Need Foreign Workers Now

Presenter Shawna Vogel

Partner

354178217_1

We Need Foreign Workers Now

General Rule ndash prove no Canadian can fill the job unless exception applies

bullNAFTA WORK PERMITS

‐ Professional

‐ Intracompany Transferee

bullGATS WORK PERMITS

‐ Professional ‐ limited

‐ Intracompany Transferee ndash same rules

364178217_2

A LMO and A‐LMO

1 Key Elements

bull Advertise position

bull Qualify candidates

bull Apply for and obtain Labour Market Opinion Confirmation (ldquoLMOrdquo)

bull Obtain work permit

374178217_2

2 Changes ‐ A‐LMO ndash Accelerated LMO

bull 10 day processing

bull Advertising and all other requirements still apply ndashpost issuance VERIFICATION

bull Only applies if positive LMO issued to employer in last 2 years

bull Positions ndash NOC O A B (management professional technical)

38

3 Changes ndash Wages under LMO

bull New Rule ndash must pay (i) same wage to TFW as to Canadian employees and (ii) median wage (or up to 5 ‐15 variance)

4178217_2

394178217_2

B Alberta 7 Occupation Pilot Project

Focus on semi‐skilled workerbull Steamfitterpipefitter

bull Welder

bull Estimator

bull Heavy duty equipment mechanic

bull Carpenter

bull Ironworker

bull Millwright and industrial mechanic

bull Estimator

404178217_2

C New

bull Compliance Requirements

bull AB Pilot project for working‐age dependent children of skilled workers

414178217_2

1 Passport expiry

2 Medical TRV Criminalitybull Delays due to need of medicals (where employee has

been in ldquomedically‐required country for 6 months in last year)

bull Delays (and change of venue of application) because of nationality (and not residence) of employee

bull Criminal record ndash be prepared

D Tips

42

R v COLE 2012 SCC 53

Presenter Fausto Franceschi

Partner

43

Background

bull Richard Cole was a high school computer science teacher in Ontario who was given a work‐issued laptop computer

bull He was permitted to use the laptop for incidental personal purposes

bull While performing maintenance activities on Colersquos laptop a school board technician found a hidden folder containing nude photos of a grade 10 female student which Cole had copied from the schoolrsquos network The technician notified the school principal who directed the technician to copy the photos onto a CD

44

Background

bull The principal seized the laptop from Cole and copied the internet browsing history (which contained a large amount of pornographic images) from it onto a second CD and handed over the laptop and the CDrsquos to the police who without a warrant reviewed their contents and created a mirror image of the hard drive for forensic purposes

bull The police decided it was not necessary to obtain a search warrant because the laptop was school property

bull Cole was charged with possession of child pornography

45

The Schoolrsquos Policy on Computer Use

bull The school had an Acceptable Use Policy which regulated access to the schoolrsquos computer network The policy provided that the school ldquomay monitor all student work and email including material saved on laptop hard drives Users should NOT assume that files stored on network servers or hard drives of individual computers will be privaterdquo This policy also applied to staff

46

The Schoolrsquos Policy on Computer Use

bull The School Board also had a policy applicable to teachers governing the acceptable use of school information technology The policy provided that ldquoall data and messages generated on or handled by board equipment are considered to be the property of the [school]rdquo The policy also allowed limited ldquoincidental personal userdquo of information technology prohibited the posting or accessing of certain inappropriate content (such as sexually explicit material) and provided that while email was considered private the School Board could open email in certain circumstances such as if inappropriate use was suspected

47

Issue

bull Whether the evidence found on the laptop could be admitted at trial or whether it was obtained by way of an unreasonable search and seizure contrary to section 8 of the Charter

48

Supreme Court of Canada

bull Cole had a privacy interest in his personal information on the computer

bull Just as Canadians have a reasonable expectation of privacy in their own personal computers they also have a privacy interest in their work computers ldquoat least where personal use is permitted or reasonably expectedrdquo

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

27

Intra‐Company Transfereesbull The applicant must be working for an American or Mexican company that is directly related to the Canadian company as a parent company branch or subsidiary relationship

bull Intra‐company Transferees must have been employed full‐time with an American or Mexican company hold for at least one year in an executive senior managerial or specialized knowledge position within the last three years and must be entering Canada to assume a similar position

bull Intra‐company Transferee applicants like professionals need to apply for work permits Work permits are generally granted for an initial period up to three (3) years Applicants can apply for extensions of two (2) years at a time up to a maximum

bull This is the only NAFTA category that has a ldquocaprdquo that limits the overall length of time that a foreign worker may hold a work permit The total period of stay for a person employed in an executive or managerial capacity is seven years The total period of stay for a person employed in a position requiring specialized knowledge is five years Applicants are eligible for a new work permit after one year has passed after the time cap

28

Intra‐Company Transferees require a Work Permitbull In order for the Intra‐company Transferee to obtain the work permit they need to show the Canadian Border Officer if they apply at a Canadian port of entry or send to a Canadian Visa office the following

ndash Proof of American or Mexican citizenshipndash Confirmation has been employed with the American or Mexican company for one

year continuously within the last three years before making the applicationndash Wage and Tax statements proving paid in the USA or Mexico in the last yearndash Organizational chart showing the corporate relationship between the USA or

Mexican company and Canadian companyndash Employment Agreement with USA company or Mexican company (proof of work

for one year in the last three years)ndash Document checklist Citizen and Immigration Canada formndash Photocopies of passport pagesndash Use of a Representative formndash Current employment contract to work as Intra‐company Transfereendash Resumendash Letter from employer confirmation of employmentndash Pay fee of $15000

29

Traders and Investors

30

A Traders

bull In order to qualify as a Trader an American or Mexican citizen must enter Canada to be involved in substantial trade in goods or services

bull To be considered substantial trade more than 50 percent of the total volume of international trade conducted must be between Canada and the United States or Mexico Traders must be employed in a supervisory or executive position or in one that involves essential skills that are vital to the effectiveness of the firmrsquos Canadian operations

31

Traders require a Work Permit

bull These applications are rather complex Traders need to apply to a Canadian Visa office before traveling to Canada Initial work permits given are for one (1) year And extension up to two (2) years is then usually granted

bull Traders must provide the followingndash Proof of American or Mexican citizenshipndash Proof that the enterprise in Canada the Trader is coming to has American or

Canadian Nationality (this has been defined to mean that the individual or corporate persons owns at least 50 (directly or by stock) in the entity established in Canada must hold American or Mexican citizenship)

ndash Trade is primarily between USA or Mexico and Canada andndash The Trader is working in a managerial or executive capacity Alternatively the

Trader could be working to provide Essential Skills and services (define have qualifications that are vital to the success of the Canadian Enterprises operations)

32

B Investors

bull Investors must have made or be in the process in making a substantial investment in an enterprise in Canada and intend to enter Canada to develop and direct the enterprise

bull There is no minimum investment to qualify Rather the application is assessed based on the circumstances and nature of the business The amount an applicant invests will be weighed against the total value of the current enterprise or against the total amount needed to establish the new enterprise As with Traders Investors must also be in a supervisory or executive role by directing controlling and guiding employees

33

Investors require a Work Permit

bull Like Traders these applications are complex and should be sent to a Canadian Visa office for approval prior to travelling to Canada The Investor will need to provide the following

ndash Proof of American or Mexican citizenshipndash Proof that the Investor made or is in the process of making a

substantial investment in an enterprise in Canadandash The enterprise in Canada in which the Investor is coming has American

or Mexican Nationality andndash The Investor is seeking entry solely to develop and direct the

enterprise in Canada

34

We Need Foreign Workers Now

Presenter Shawna Vogel

Partner

354178217_1

We Need Foreign Workers Now

General Rule ndash prove no Canadian can fill the job unless exception applies

bullNAFTA WORK PERMITS

‐ Professional

‐ Intracompany Transferee

bullGATS WORK PERMITS

‐ Professional ‐ limited

‐ Intracompany Transferee ndash same rules

364178217_2

A LMO and A‐LMO

1 Key Elements

bull Advertise position

bull Qualify candidates

bull Apply for and obtain Labour Market Opinion Confirmation (ldquoLMOrdquo)

bull Obtain work permit

374178217_2

2 Changes ‐ A‐LMO ndash Accelerated LMO

bull 10 day processing

bull Advertising and all other requirements still apply ndashpost issuance VERIFICATION

bull Only applies if positive LMO issued to employer in last 2 years

bull Positions ndash NOC O A B (management professional technical)

38

3 Changes ndash Wages under LMO

bull New Rule ndash must pay (i) same wage to TFW as to Canadian employees and (ii) median wage (or up to 5 ‐15 variance)

4178217_2

394178217_2

B Alberta 7 Occupation Pilot Project

Focus on semi‐skilled workerbull Steamfitterpipefitter

bull Welder

bull Estimator

bull Heavy duty equipment mechanic

bull Carpenter

bull Ironworker

bull Millwright and industrial mechanic

bull Estimator

404178217_2

C New

bull Compliance Requirements

bull AB Pilot project for working‐age dependent children of skilled workers

414178217_2

1 Passport expiry

2 Medical TRV Criminalitybull Delays due to need of medicals (where employee has

been in ldquomedically‐required country for 6 months in last year)

bull Delays (and change of venue of application) because of nationality (and not residence) of employee

bull Criminal record ndash be prepared

D Tips

42

R v COLE 2012 SCC 53

Presenter Fausto Franceschi

Partner

43

Background

bull Richard Cole was a high school computer science teacher in Ontario who was given a work‐issued laptop computer

bull He was permitted to use the laptop for incidental personal purposes

bull While performing maintenance activities on Colersquos laptop a school board technician found a hidden folder containing nude photos of a grade 10 female student which Cole had copied from the schoolrsquos network The technician notified the school principal who directed the technician to copy the photos onto a CD

44

Background

bull The principal seized the laptop from Cole and copied the internet browsing history (which contained a large amount of pornographic images) from it onto a second CD and handed over the laptop and the CDrsquos to the police who without a warrant reviewed their contents and created a mirror image of the hard drive for forensic purposes

bull The police decided it was not necessary to obtain a search warrant because the laptop was school property

bull Cole was charged with possession of child pornography

45

The Schoolrsquos Policy on Computer Use

bull The school had an Acceptable Use Policy which regulated access to the schoolrsquos computer network The policy provided that the school ldquomay monitor all student work and email including material saved on laptop hard drives Users should NOT assume that files stored on network servers or hard drives of individual computers will be privaterdquo This policy also applied to staff

46

The Schoolrsquos Policy on Computer Use

bull The School Board also had a policy applicable to teachers governing the acceptable use of school information technology The policy provided that ldquoall data and messages generated on or handled by board equipment are considered to be the property of the [school]rdquo The policy also allowed limited ldquoincidental personal userdquo of information technology prohibited the posting or accessing of certain inappropriate content (such as sexually explicit material) and provided that while email was considered private the School Board could open email in certain circumstances such as if inappropriate use was suspected

47

Issue

bull Whether the evidence found on the laptop could be admitted at trial or whether it was obtained by way of an unreasonable search and seizure contrary to section 8 of the Charter

48

Supreme Court of Canada

bull Cole had a privacy interest in his personal information on the computer

bull Just as Canadians have a reasonable expectation of privacy in their own personal computers they also have a privacy interest in their work computers ldquoat least where personal use is permitted or reasonably expectedrdquo

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

28

Intra‐Company Transferees require a Work Permitbull In order for the Intra‐company Transferee to obtain the work permit they need to show the Canadian Border Officer if they apply at a Canadian port of entry or send to a Canadian Visa office the following

ndash Proof of American or Mexican citizenshipndash Confirmation has been employed with the American or Mexican company for one

year continuously within the last three years before making the applicationndash Wage and Tax statements proving paid in the USA or Mexico in the last yearndash Organizational chart showing the corporate relationship between the USA or

Mexican company and Canadian companyndash Employment Agreement with USA company or Mexican company (proof of work

for one year in the last three years)ndash Document checklist Citizen and Immigration Canada formndash Photocopies of passport pagesndash Use of a Representative formndash Current employment contract to work as Intra‐company Transfereendash Resumendash Letter from employer confirmation of employmentndash Pay fee of $15000

29

Traders and Investors

30

A Traders

bull In order to qualify as a Trader an American or Mexican citizen must enter Canada to be involved in substantial trade in goods or services

bull To be considered substantial trade more than 50 percent of the total volume of international trade conducted must be between Canada and the United States or Mexico Traders must be employed in a supervisory or executive position or in one that involves essential skills that are vital to the effectiveness of the firmrsquos Canadian operations

31

Traders require a Work Permit

bull These applications are rather complex Traders need to apply to a Canadian Visa office before traveling to Canada Initial work permits given are for one (1) year And extension up to two (2) years is then usually granted

bull Traders must provide the followingndash Proof of American or Mexican citizenshipndash Proof that the enterprise in Canada the Trader is coming to has American or

Canadian Nationality (this has been defined to mean that the individual or corporate persons owns at least 50 (directly or by stock) in the entity established in Canada must hold American or Mexican citizenship)

ndash Trade is primarily between USA or Mexico and Canada andndash The Trader is working in a managerial or executive capacity Alternatively the

Trader could be working to provide Essential Skills and services (define have qualifications that are vital to the success of the Canadian Enterprises operations)

32

B Investors

bull Investors must have made or be in the process in making a substantial investment in an enterprise in Canada and intend to enter Canada to develop and direct the enterprise

bull There is no minimum investment to qualify Rather the application is assessed based on the circumstances and nature of the business The amount an applicant invests will be weighed against the total value of the current enterprise or against the total amount needed to establish the new enterprise As with Traders Investors must also be in a supervisory or executive role by directing controlling and guiding employees

33

Investors require a Work Permit

bull Like Traders these applications are complex and should be sent to a Canadian Visa office for approval prior to travelling to Canada The Investor will need to provide the following

ndash Proof of American or Mexican citizenshipndash Proof that the Investor made or is in the process of making a

substantial investment in an enterprise in Canadandash The enterprise in Canada in which the Investor is coming has American

or Mexican Nationality andndash The Investor is seeking entry solely to develop and direct the

enterprise in Canada

34

We Need Foreign Workers Now

Presenter Shawna Vogel

Partner

354178217_1

We Need Foreign Workers Now

General Rule ndash prove no Canadian can fill the job unless exception applies

bullNAFTA WORK PERMITS

‐ Professional

‐ Intracompany Transferee

bullGATS WORK PERMITS

‐ Professional ‐ limited

‐ Intracompany Transferee ndash same rules

364178217_2

A LMO and A‐LMO

1 Key Elements

bull Advertise position

bull Qualify candidates

bull Apply for and obtain Labour Market Opinion Confirmation (ldquoLMOrdquo)

bull Obtain work permit

374178217_2

2 Changes ‐ A‐LMO ndash Accelerated LMO

bull 10 day processing

bull Advertising and all other requirements still apply ndashpost issuance VERIFICATION

bull Only applies if positive LMO issued to employer in last 2 years

bull Positions ndash NOC O A B (management professional technical)

38

3 Changes ndash Wages under LMO

bull New Rule ndash must pay (i) same wage to TFW as to Canadian employees and (ii) median wage (or up to 5 ‐15 variance)

4178217_2

394178217_2

B Alberta 7 Occupation Pilot Project

Focus on semi‐skilled workerbull Steamfitterpipefitter

bull Welder

bull Estimator

bull Heavy duty equipment mechanic

bull Carpenter

bull Ironworker

bull Millwright and industrial mechanic

bull Estimator

404178217_2

C New

bull Compliance Requirements

bull AB Pilot project for working‐age dependent children of skilled workers

414178217_2

1 Passport expiry

2 Medical TRV Criminalitybull Delays due to need of medicals (where employee has

been in ldquomedically‐required country for 6 months in last year)

bull Delays (and change of venue of application) because of nationality (and not residence) of employee

bull Criminal record ndash be prepared

D Tips

42

R v COLE 2012 SCC 53

Presenter Fausto Franceschi

Partner

43

Background

bull Richard Cole was a high school computer science teacher in Ontario who was given a work‐issued laptop computer

bull He was permitted to use the laptop for incidental personal purposes

bull While performing maintenance activities on Colersquos laptop a school board technician found a hidden folder containing nude photos of a grade 10 female student which Cole had copied from the schoolrsquos network The technician notified the school principal who directed the technician to copy the photos onto a CD

44

Background

bull The principal seized the laptop from Cole and copied the internet browsing history (which contained a large amount of pornographic images) from it onto a second CD and handed over the laptop and the CDrsquos to the police who without a warrant reviewed their contents and created a mirror image of the hard drive for forensic purposes

bull The police decided it was not necessary to obtain a search warrant because the laptop was school property

bull Cole was charged with possession of child pornography

45

The Schoolrsquos Policy on Computer Use

bull The school had an Acceptable Use Policy which regulated access to the schoolrsquos computer network The policy provided that the school ldquomay monitor all student work and email including material saved on laptop hard drives Users should NOT assume that files stored on network servers or hard drives of individual computers will be privaterdquo This policy also applied to staff

46

The Schoolrsquos Policy on Computer Use

bull The School Board also had a policy applicable to teachers governing the acceptable use of school information technology The policy provided that ldquoall data and messages generated on or handled by board equipment are considered to be the property of the [school]rdquo The policy also allowed limited ldquoincidental personal userdquo of information technology prohibited the posting or accessing of certain inappropriate content (such as sexually explicit material) and provided that while email was considered private the School Board could open email in certain circumstances such as if inappropriate use was suspected

47

Issue

bull Whether the evidence found on the laptop could be admitted at trial or whether it was obtained by way of an unreasonable search and seizure contrary to section 8 of the Charter

48

Supreme Court of Canada

bull Cole had a privacy interest in his personal information on the computer

bull Just as Canadians have a reasonable expectation of privacy in their own personal computers they also have a privacy interest in their work computers ldquoat least where personal use is permitted or reasonably expectedrdquo

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

29

Traders and Investors

30

A Traders

bull In order to qualify as a Trader an American or Mexican citizen must enter Canada to be involved in substantial trade in goods or services

bull To be considered substantial trade more than 50 percent of the total volume of international trade conducted must be between Canada and the United States or Mexico Traders must be employed in a supervisory or executive position or in one that involves essential skills that are vital to the effectiveness of the firmrsquos Canadian operations

31

Traders require a Work Permit

bull These applications are rather complex Traders need to apply to a Canadian Visa office before traveling to Canada Initial work permits given are for one (1) year And extension up to two (2) years is then usually granted

bull Traders must provide the followingndash Proof of American or Mexican citizenshipndash Proof that the enterprise in Canada the Trader is coming to has American or

Canadian Nationality (this has been defined to mean that the individual or corporate persons owns at least 50 (directly or by stock) in the entity established in Canada must hold American or Mexican citizenship)

ndash Trade is primarily between USA or Mexico and Canada andndash The Trader is working in a managerial or executive capacity Alternatively the

Trader could be working to provide Essential Skills and services (define have qualifications that are vital to the success of the Canadian Enterprises operations)

32

B Investors

bull Investors must have made or be in the process in making a substantial investment in an enterprise in Canada and intend to enter Canada to develop and direct the enterprise

bull There is no minimum investment to qualify Rather the application is assessed based on the circumstances and nature of the business The amount an applicant invests will be weighed against the total value of the current enterprise or against the total amount needed to establish the new enterprise As with Traders Investors must also be in a supervisory or executive role by directing controlling and guiding employees

33

Investors require a Work Permit

bull Like Traders these applications are complex and should be sent to a Canadian Visa office for approval prior to travelling to Canada The Investor will need to provide the following

ndash Proof of American or Mexican citizenshipndash Proof that the Investor made or is in the process of making a

substantial investment in an enterprise in Canadandash The enterprise in Canada in which the Investor is coming has American

or Mexican Nationality andndash The Investor is seeking entry solely to develop and direct the

enterprise in Canada

34

We Need Foreign Workers Now

Presenter Shawna Vogel

Partner

354178217_1

We Need Foreign Workers Now

General Rule ndash prove no Canadian can fill the job unless exception applies

bullNAFTA WORK PERMITS

‐ Professional

‐ Intracompany Transferee

bullGATS WORK PERMITS

‐ Professional ‐ limited

‐ Intracompany Transferee ndash same rules

364178217_2

A LMO and A‐LMO

1 Key Elements

bull Advertise position

bull Qualify candidates

bull Apply for and obtain Labour Market Opinion Confirmation (ldquoLMOrdquo)

bull Obtain work permit

374178217_2

2 Changes ‐ A‐LMO ndash Accelerated LMO

bull 10 day processing

bull Advertising and all other requirements still apply ndashpost issuance VERIFICATION

bull Only applies if positive LMO issued to employer in last 2 years

bull Positions ndash NOC O A B (management professional technical)

38

3 Changes ndash Wages under LMO

bull New Rule ndash must pay (i) same wage to TFW as to Canadian employees and (ii) median wage (or up to 5 ‐15 variance)

4178217_2

394178217_2

B Alberta 7 Occupation Pilot Project

Focus on semi‐skilled workerbull Steamfitterpipefitter

bull Welder

bull Estimator

bull Heavy duty equipment mechanic

bull Carpenter

bull Ironworker

bull Millwright and industrial mechanic

bull Estimator

404178217_2

C New

bull Compliance Requirements

bull AB Pilot project for working‐age dependent children of skilled workers

414178217_2

1 Passport expiry

2 Medical TRV Criminalitybull Delays due to need of medicals (where employee has

been in ldquomedically‐required country for 6 months in last year)

bull Delays (and change of venue of application) because of nationality (and not residence) of employee

bull Criminal record ndash be prepared

D Tips

42

R v COLE 2012 SCC 53

Presenter Fausto Franceschi

Partner

43

Background

bull Richard Cole was a high school computer science teacher in Ontario who was given a work‐issued laptop computer

bull He was permitted to use the laptop for incidental personal purposes

bull While performing maintenance activities on Colersquos laptop a school board technician found a hidden folder containing nude photos of a grade 10 female student which Cole had copied from the schoolrsquos network The technician notified the school principal who directed the technician to copy the photos onto a CD

44

Background

bull The principal seized the laptop from Cole and copied the internet browsing history (which contained a large amount of pornographic images) from it onto a second CD and handed over the laptop and the CDrsquos to the police who without a warrant reviewed their contents and created a mirror image of the hard drive for forensic purposes

bull The police decided it was not necessary to obtain a search warrant because the laptop was school property

bull Cole was charged with possession of child pornography

45

The Schoolrsquos Policy on Computer Use

bull The school had an Acceptable Use Policy which regulated access to the schoolrsquos computer network The policy provided that the school ldquomay monitor all student work and email including material saved on laptop hard drives Users should NOT assume that files stored on network servers or hard drives of individual computers will be privaterdquo This policy also applied to staff

46

The Schoolrsquos Policy on Computer Use

bull The School Board also had a policy applicable to teachers governing the acceptable use of school information technology The policy provided that ldquoall data and messages generated on or handled by board equipment are considered to be the property of the [school]rdquo The policy also allowed limited ldquoincidental personal userdquo of information technology prohibited the posting or accessing of certain inappropriate content (such as sexually explicit material) and provided that while email was considered private the School Board could open email in certain circumstances such as if inappropriate use was suspected

47

Issue

bull Whether the evidence found on the laptop could be admitted at trial or whether it was obtained by way of an unreasonable search and seizure contrary to section 8 of the Charter

48

Supreme Court of Canada

bull Cole had a privacy interest in his personal information on the computer

bull Just as Canadians have a reasonable expectation of privacy in their own personal computers they also have a privacy interest in their work computers ldquoat least where personal use is permitted or reasonably expectedrdquo

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

30

A Traders

bull In order to qualify as a Trader an American or Mexican citizen must enter Canada to be involved in substantial trade in goods or services

bull To be considered substantial trade more than 50 percent of the total volume of international trade conducted must be between Canada and the United States or Mexico Traders must be employed in a supervisory or executive position or in one that involves essential skills that are vital to the effectiveness of the firmrsquos Canadian operations

31

Traders require a Work Permit

bull These applications are rather complex Traders need to apply to a Canadian Visa office before traveling to Canada Initial work permits given are for one (1) year And extension up to two (2) years is then usually granted

bull Traders must provide the followingndash Proof of American or Mexican citizenshipndash Proof that the enterprise in Canada the Trader is coming to has American or

Canadian Nationality (this has been defined to mean that the individual or corporate persons owns at least 50 (directly or by stock) in the entity established in Canada must hold American or Mexican citizenship)

ndash Trade is primarily between USA or Mexico and Canada andndash The Trader is working in a managerial or executive capacity Alternatively the

Trader could be working to provide Essential Skills and services (define have qualifications that are vital to the success of the Canadian Enterprises operations)

32

B Investors

bull Investors must have made or be in the process in making a substantial investment in an enterprise in Canada and intend to enter Canada to develop and direct the enterprise

bull There is no minimum investment to qualify Rather the application is assessed based on the circumstances and nature of the business The amount an applicant invests will be weighed against the total value of the current enterprise or against the total amount needed to establish the new enterprise As with Traders Investors must also be in a supervisory or executive role by directing controlling and guiding employees

33

Investors require a Work Permit

bull Like Traders these applications are complex and should be sent to a Canadian Visa office for approval prior to travelling to Canada The Investor will need to provide the following

ndash Proof of American or Mexican citizenshipndash Proof that the Investor made or is in the process of making a

substantial investment in an enterprise in Canadandash The enterprise in Canada in which the Investor is coming has American

or Mexican Nationality andndash The Investor is seeking entry solely to develop and direct the

enterprise in Canada

34

We Need Foreign Workers Now

Presenter Shawna Vogel

Partner

354178217_1

We Need Foreign Workers Now

General Rule ndash prove no Canadian can fill the job unless exception applies

bullNAFTA WORK PERMITS

‐ Professional

‐ Intracompany Transferee

bullGATS WORK PERMITS

‐ Professional ‐ limited

‐ Intracompany Transferee ndash same rules

364178217_2

A LMO and A‐LMO

1 Key Elements

bull Advertise position

bull Qualify candidates

bull Apply for and obtain Labour Market Opinion Confirmation (ldquoLMOrdquo)

bull Obtain work permit

374178217_2

2 Changes ‐ A‐LMO ndash Accelerated LMO

bull 10 day processing

bull Advertising and all other requirements still apply ndashpost issuance VERIFICATION

bull Only applies if positive LMO issued to employer in last 2 years

bull Positions ndash NOC O A B (management professional technical)

38

3 Changes ndash Wages under LMO

bull New Rule ndash must pay (i) same wage to TFW as to Canadian employees and (ii) median wage (or up to 5 ‐15 variance)

4178217_2

394178217_2

B Alberta 7 Occupation Pilot Project

Focus on semi‐skilled workerbull Steamfitterpipefitter

bull Welder

bull Estimator

bull Heavy duty equipment mechanic

bull Carpenter

bull Ironworker

bull Millwright and industrial mechanic

bull Estimator

404178217_2

C New

bull Compliance Requirements

bull AB Pilot project for working‐age dependent children of skilled workers

414178217_2

1 Passport expiry

2 Medical TRV Criminalitybull Delays due to need of medicals (where employee has

been in ldquomedically‐required country for 6 months in last year)

bull Delays (and change of venue of application) because of nationality (and not residence) of employee

bull Criminal record ndash be prepared

D Tips

42

R v COLE 2012 SCC 53

Presenter Fausto Franceschi

Partner

43

Background

bull Richard Cole was a high school computer science teacher in Ontario who was given a work‐issued laptop computer

bull He was permitted to use the laptop for incidental personal purposes

bull While performing maintenance activities on Colersquos laptop a school board technician found a hidden folder containing nude photos of a grade 10 female student which Cole had copied from the schoolrsquos network The technician notified the school principal who directed the technician to copy the photos onto a CD

44

Background

bull The principal seized the laptop from Cole and copied the internet browsing history (which contained a large amount of pornographic images) from it onto a second CD and handed over the laptop and the CDrsquos to the police who without a warrant reviewed their contents and created a mirror image of the hard drive for forensic purposes

bull The police decided it was not necessary to obtain a search warrant because the laptop was school property

bull Cole was charged with possession of child pornography

45

The Schoolrsquos Policy on Computer Use

bull The school had an Acceptable Use Policy which regulated access to the schoolrsquos computer network The policy provided that the school ldquomay monitor all student work and email including material saved on laptop hard drives Users should NOT assume that files stored on network servers or hard drives of individual computers will be privaterdquo This policy also applied to staff

46

The Schoolrsquos Policy on Computer Use

bull The School Board also had a policy applicable to teachers governing the acceptable use of school information technology The policy provided that ldquoall data and messages generated on or handled by board equipment are considered to be the property of the [school]rdquo The policy also allowed limited ldquoincidental personal userdquo of information technology prohibited the posting or accessing of certain inappropriate content (such as sexually explicit material) and provided that while email was considered private the School Board could open email in certain circumstances such as if inappropriate use was suspected

47

Issue

bull Whether the evidence found on the laptop could be admitted at trial or whether it was obtained by way of an unreasonable search and seizure contrary to section 8 of the Charter

48

Supreme Court of Canada

bull Cole had a privacy interest in his personal information on the computer

bull Just as Canadians have a reasonable expectation of privacy in their own personal computers they also have a privacy interest in their work computers ldquoat least where personal use is permitted or reasonably expectedrdquo

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

31

Traders require a Work Permit

bull These applications are rather complex Traders need to apply to a Canadian Visa office before traveling to Canada Initial work permits given are for one (1) year And extension up to two (2) years is then usually granted

bull Traders must provide the followingndash Proof of American or Mexican citizenshipndash Proof that the enterprise in Canada the Trader is coming to has American or

Canadian Nationality (this has been defined to mean that the individual or corporate persons owns at least 50 (directly or by stock) in the entity established in Canada must hold American or Mexican citizenship)

ndash Trade is primarily between USA or Mexico and Canada andndash The Trader is working in a managerial or executive capacity Alternatively the

Trader could be working to provide Essential Skills and services (define have qualifications that are vital to the success of the Canadian Enterprises operations)

32

B Investors

bull Investors must have made or be in the process in making a substantial investment in an enterprise in Canada and intend to enter Canada to develop and direct the enterprise

bull There is no minimum investment to qualify Rather the application is assessed based on the circumstances and nature of the business The amount an applicant invests will be weighed against the total value of the current enterprise or against the total amount needed to establish the new enterprise As with Traders Investors must also be in a supervisory or executive role by directing controlling and guiding employees

33

Investors require a Work Permit

bull Like Traders these applications are complex and should be sent to a Canadian Visa office for approval prior to travelling to Canada The Investor will need to provide the following

ndash Proof of American or Mexican citizenshipndash Proof that the Investor made or is in the process of making a

substantial investment in an enterprise in Canadandash The enterprise in Canada in which the Investor is coming has American

or Mexican Nationality andndash The Investor is seeking entry solely to develop and direct the

enterprise in Canada

34

We Need Foreign Workers Now

Presenter Shawna Vogel

Partner

354178217_1

We Need Foreign Workers Now

General Rule ndash prove no Canadian can fill the job unless exception applies

bullNAFTA WORK PERMITS

‐ Professional

‐ Intracompany Transferee

bullGATS WORK PERMITS

‐ Professional ‐ limited

‐ Intracompany Transferee ndash same rules

364178217_2

A LMO and A‐LMO

1 Key Elements

bull Advertise position

bull Qualify candidates

bull Apply for and obtain Labour Market Opinion Confirmation (ldquoLMOrdquo)

bull Obtain work permit

374178217_2

2 Changes ‐ A‐LMO ndash Accelerated LMO

bull 10 day processing

bull Advertising and all other requirements still apply ndashpost issuance VERIFICATION

bull Only applies if positive LMO issued to employer in last 2 years

bull Positions ndash NOC O A B (management professional technical)

38

3 Changes ndash Wages under LMO

bull New Rule ndash must pay (i) same wage to TFW as to Canadian employees and (ii) median wage (or up to 5 ‐15 variance)

4178217_2

394178217_2

B Alberta 7 Occupation Pilot Project

Focus on semi‐skilled workerbull Steamfitterpipefitter

bull Welder

bull Estimator

bull Heavy duty equipment mechanic

bull Carpenter

bull Ironworker

bull Millwright and industrial mechanic

bull Estimator

404178217_2

C New

bull Compliance Requirements

bull AB Pilot project for working‐age dependent children of skilled workers

414178217_2

1 Passport expiry

2 Medical TRV Criminalitybull Delays due to need of medicals (where employee has

been in ldquomedically‐required country for 6 months in last year)

bull Delays (and change of venue of application) because of nationality (and not residence) of employee

bull Criminal record ndash be prepared

D Tips

42

R v COLE 2012 SCC 53

Presenter Fausto Franceschi

Partner

43

Background

bull Richard Cole was a high school computer science teacher in Ontario who was given a work‐issued laptop computer

bull He was permitted to use the laptop for incidental personal purposes

bull While performing maintenance activities on Colersquos laptop a school board technician found a hidden folder containing nude photos of a grade 10 female student which Cole had copied from the schoolrsquos network The technician notified the school principal who directed the technician to copy the photos onto a CD

44

Background

bull The principal seized the laptop from Cole and copied the internet browsing history (which contained a large amount of pornographic images) from it onto a second CD and handed over the laptop and the CDrsquos to the police who without a warrant reviewed their contents and created a mirror image of the hard drive for forensic purposes

bull The police decided it was not necessary to obtain a search warrant because the laptop was school property

bull Cole was charged with possession of child pornography

45

The Schoolrsquos Policy on Computer Use

bull The school had an Acceptable Use Policy which regulated access to the schoolrsquos computer network The policy provided that the school ldquomay monitor all student work and email including material saved on laptop hard drives Users should NOT assume that files stored on network servers or hard drives of individual computers will be privaterdquo This policy also applied to staff

46

The Schoolrsquos Policy on Computer Use

bull The School Board also had a policy applicable to teachers governing the acceptable use of school information technology The policy provided that ldquoall data and messages generated on or handled by board equipment are considered to be the property of the [school]rdquo The policy also allowed limited ldquoincidental personal userdquo of information technology prohibited the posting or accessing of certain inappropriate content (such as sexually explicit material) and provided that while email was considered private the School Board could open email in certain circumstances such as if inappropriate use was suspected

47

Issue

bull Whether the evidence found on the laptop could be admitted at trial or whether it was obtained by way of an unreasonable search and seizure contrary to section 8 of the Charter

48

Supreme Court of Canada

bull Cole had a privacy interest in his personal information on the computer

bull Just as Canadians have a reasonable expectation of privacy in their own personal computers they also have a privacy interest in their work computers ldquoat least where personal use is permitted or reasonably expectedrdquo

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

32

B Investors

bull Investors must have made or be in the process in making a substantial investment in an enterprise in Canada and intend to enter Canada to develop and direct the enterprise

bull There is no minimum investment to qualify Rather the application is assessed based on the circumstances and nature of the business The amount an applicant invests will be weighed against the total value of the current enterprise or against the total amount needed to establish the new enterprise As with Traders Investors must also be in a supervisory or executive role by directing controlling and guiding employees

33

Investors require a Work Permit

bull Like Traders these applications are complex and should be sent to a Canadian Visa office for approval prior to travelling to Canada The Investor will need to provide the following

ndash Proof of American or Mexican citizenshipndash Proof that the Investor made or is in the process of making a

substantial investment in an enterprise in Canadandash The enterprise in Canada in which the Investor is coming has American

or Mexican Nationality andndash The Investor is seeking entry solely to develop and direct the

enterprise in Canada

34

We Need Foreign Workers Now

Presenter Shawna Vogel

Partner

354178217_1

We Need Foreign Workers Now

General Rule ndash prove no Canadian can fill the job unless exception applies

bullNAFTA WORK PERMITS

‐ Professional

‐ Intracompany Transferee

bullGATS WORK PERMITS

‐ Professional ‐ limited

‐ Intracompany Transferee ndash same rules

364178217_2

A LMO and A‐LMO

1 Key Elements

bull Advertise position

bull Qualify candidates

bull Apply for and obtain Labour Market Opinion Confirmation (ldquoLMOrdquo)

bull Obtain work permit

374178217_2

2 Changes ‐ A‐LMO ndash Accelerated LMO

bull 10 day processing

bull Advertising and all other requirements still apply ndashpost issuance VERIFICATION

bull Only applies if positive LMO issued to employer in last 2 years

bull Positions ndash NOC O A B (management professional technical)

38

3 Changes ndash Wages under LMO

bull New Rule ndash must pay (i) same wage to TFW as to Canadian employees and (ii) median wage (or up to 5 ‐15 variance)

4178217_2

394178217_2

B Alberta 7 Occupation Pilot Project

Focus on semi‐skilled workerbull Steamfitterpipefitter

bull Welder

bull Estimator

bull Heavy duty equipment mechanic

bull Carpenter

bull Ironworker

bull Millwright and industrial mechanic

bull Estimator

404178217_2

C New

bull Compliance Requirements

bull AB Pilot project for working‐age dependent children of skilled workers

414178217_2

1 Passport expiry

2 Medical TRV Criminalitybull Delays due to need of medicals (where employee has

been in ldquomedically‐required country for 6 months in last year)

bull Delays (and change of venue of application) because of nationality (and not residence) of employee

bull Criminal record ndash be prepared

D Tips

42

R v COLE 2012 SCC 53

Presenter Fausto Franceschi

Partner

43

Background

bull Richard Cole was a high school computer science teacher in Ontario who was given a work‐issued laptop computer

bull He was permitted to use the laptop for incidental personal purposes

bull While performing maintenance activities on Colersquos laptop a school board technician found a hidden folder containing nude photos of a grade 10 female student which Cole had copied from the schoolrsquos network The technician notified the school principal who directed the technician to copy the photos onto a CD

44

Background

bull The principal seized the laptop from Cole and copied the internet browsing history (which contained a large amount of pornographic images) from it onto a second CD and handed over the laptop and the CDrsquos to the police who without a warrant reviewed their contents and created a mirror image of the hard drive for forensic purposes

bull The police decided it was not necessary to obtain a search warrant because the laptop was school property

bull Cole was charged with possession of child pornography

45

The Schoolrsquos Policy on Computer Use

bull The school had an Acceptable Use Policy which regulated access to the schoolrsquos computer network The policy provided that the school ldquomay monitor all student work and email including material saved on laptop hard drives Users should NOT assume that files stored on network servers or hard drives of individual computers will be privaterdquo This policy also applied to staff

46

The Schoolrsquos Policy on Computer Use

bull The School Board also had a policy applicable to teachers governing the acceptable use of school information technology The policy provided that ldquoall data and messages generated on or handled by board equipment are considered to be the property of the [school]rdquo The policy also allowed limited ldquoincidental personal userdquo of information technology prohibited the posting or accessing of certain inappropriate content (such as sexually explicit material) and provided that while email was considered private the School Board could open email in certain circumstances such as if inappropriate use was suspected

47

Issue

bull Whether the evidence found on the laptop could be admitted at trial or whether it was obtained by way of an unreasonable search and seizure contrary to section 8 of the Charter

48

Supreme Court of Canada

bull Cole had a privacy interest in his personal information on the computer

bull Just as Canadians have a reasonable expectation of privacy in their own personal computers they also have a privacy interest in their work computers ldquoat least where personal use is permitted or reasonably expectedrdquo

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

33

Investors require a Work Permit

bull Like Traders these applications are complex and should be sent to a Canadian Visa office for approval prior to travelling to Canada The Investor will need to provide the following

ndash Proof of American or Mexican citizenshipndash Proof that the Investor made or is in the process of making a

substantial investment in an enterprise in Canadandash The enterprise in Canada in which the Investor is coming has American

or Mexican Nationality andndash The Investor is seeking entry solely to develop and direct the

enterprise in Canada

34

We Need Foreign Workers Now

Presenter Shawna Vogel

Partner

354178217_1

We Need Foreign Workers Now

General Rule ndash prove no Canadian can fill the job unless exception applies

bullNAFTA WORK PERMITS

‐ Professional

‐ Intracompany Transferee

bullGATS WORK PERMITS

‐ Professional ‐ limited

‐ Intracompany Transferee ndash same rules

364178217_2

A LMO and A‐LMO

1 Key Elements

bull Advertise position

bull Qualify candidates

bull Apply for and obtain Labour Market Opinion Confirmation (ldquoLMOrdquo)

bull Obtain work permit

374178217_2

2 Changes ‐ A‐LMO ndash Accelerated LMO

bull 10 day processing

bull Advertising and all other requirements still apply ndashpost issuance VERIFICATION

bull Only applies if positive LMO issued to employer in last 2 years

bull Positions ndash NOC O A B (management professional technical)

38

3 Changes ndash Wages under LMO

bull New Rule ndash must pay (i) same wage to TFW as to Canadian employees and (ii) median wage (or up to 5 ‐15 variance)

4178217_2

394178217_2

B Alberta 7 Occupation Pilot Project

Focus on semi‐skilled workerbull Steamfitterpipefitter

bull Welder

bull Estimator

bull Heavy duty equipment mechanic

bull Carpenter

bull Ironworker

bull Millwright and industrial mechanic

bull Estimator

404178217_2

C New

bull Compliance Requirements

bull AB Pilot project for working‐age dependent children of skilled workers

414178217_2

1 Passport expiry

2 Medical TRV Criminalitybull Delays due to need of medicals (where employee has

been in ldquomedically‐required country for 6 months in last year)

bull Delays (and change of venue of application) because of nationality (and not residence) of employee

bull Criminal record ndash be prepared

D Tips

42

R v COLE 2012 SCC 53

Presenter Fausto Franceschi

Partner

43

Background

bull Richard Cole was a high school computer science teacher in Ontario who was given a work‐issued laptop computer

bull He was permitted to use the laptop for incidental personal purposes

bull While performing maintenance activities on Colersquos laptop a school board technician found a hidden folder containing nude photos of a grade 10 female student which Cole had copied from the schoolrsquos network The technician notified the school principal who directed the technician to copy the photos onto a CD

44

Background

bull The principal seized the laptop from Cole and copied the internet browsing history (which contained a large amount of pornographic images) from it onto a second CD and handed over the laptop and the CDrsquos to the police who without a warrant reviewed their contents and created a mirror image of the hard drive for forensic purposes

bull The police decided it was not necessary to obtain a search warrant because the laptop was school property

bull Cole was charged with possession of child pornography

45

The Schoolrsquos Policy on Computer Use

bull The school had an Acceptable Use Policy which regulated access to the schoolrsquos computer network The policy provided that the school ldquomay monitor all student work and email including material saved on laptop hard drives Users should NOT assume that files stored on network servers or hard drives of individual computers will be privaterdquo This policy also applied to staff

46

The Schoolrsquos Policy on Computer Use

bull The School Board also had a policy applicable to teachers governing the acceptable use of school information technology The policy provided that ldquoall data and messages generated on or handled by board equipment are considered to be the property of the [school]rdquo The policy also allowed limited ldquoincidental personal userdquo of information technology prohibited the posting or accessing of certain inappropriate content (such as sexually explicit material) and provided that while email was considered private the School Board could open email in certain circumstances such as if inappropriate use was suspected

47

Issue

bull Whether the evidence found on the laptop could be admitted at trial or whether it was obtained by way of an unreasonable search and seizure contrary to section 8 of the Charter

48

Supreme Court of Canada

bull Cole had a privacy interest in his personal information on the computer

bull Just as Canadians have a reasonable expectation of privacy in their own personal computers they also have a privacy interest in their work computers ldquoat least where personal use is permitted or reasonably expectedrdquo

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

34

We Need Foreign Workers Now

Presenter Shawna Vogel

Partner

354178217_1

We Need Foreign Workers Now

General Rule ndash prove no Canadian can fill the job unless exception applies

bullNAFTA WORK PERMITS

‐ Professional

‐ Intracompany Transferee

bullGATS WORK PERMITS

‐ Professional ‐ limited

‐ Intracompany Transferee ndash same rules

364178217_2

A LMO and A‐LMO

1 Key Elements

bull Advertise position

bull Qualify candidates

bull Apply for and obtain Labour Market Opinion Confirmation (ldquoLMOrdquo)

bull Obtain work permit

374178217_2

2 Changes ‐ A‐LMO ndash Accelerated LMO

bull 10 day processing

bull Advertising and all other requirements still apply ndashpost issuance VERIFICATION

bull Only applies if positive LMO issued to employer in last 2 years

bull Positions ndash NOC O A B (management professional technical)

38

3 Changes ndash Wages under LMO

bull New Rule ndash must pay (i) same wage to TFW as to Canadian employees and (ii) median wage (or up to 5 ‐15 variance)

4178217_2

394178217_2

B Alberta 7 Occupation Pilot Project

Focus on semi‐skilled workerbull Steamfitterpipefitter

bull Welder

bull Estimator

bull Heavy duty equipment mechanic

bull Carpenter

bull Ironworker

bull Millwright and industrial mechanic

bull Estimator

404178217_2

C New

bull Compliance Requirements

bull AB Pilot project for working‐age dependent children of skilled workers

414178217_2

1 Passport expiry

2 Medical TRV Criminalitybull Delays due to need of medicals (where employee has

been in ldquomedically‐required country for 6 months in last year)

bull Delays (and change of venue of application) because of nationality (and not residence) of employee

bull Criminal record ndash be prepared

D Tips

42

R v COLE 2012 SCC 53

Presenter Fausto Franceschi

Partner

43

Background

bull Richard Cole was a high school computer science teacher in Ontario who was given a work‐issued laptop computer

bull He was permitted to use the laptop for incidental personal purposes

bull While performing maintenance activities on Colersquos laptop a school board technician found a hidden folder containing nude photos of a grade 10 female student which Cole had copied from the schoolrsquos network The technician notified the school principal who directed the technician to copy the photos onto a CD

44

Background

bull The principal seized the laptop from Cole and copied the internet browsing history (which contained a large amount of pornographic images) from it onto a second CD and handed over the laptop and the CDrsquos to the police who without a warrant reviewed their contents and created a mirror image of the hard drive for forensic purposes

bull The police decided it was not necessary to obtain a search warrant because the laptop was school property

bull Cole was charged with possession of child pornography

45

The Schoolrsquos Policy on Computer Use

bull The school had an Acceptable Use Policy which regulated access to the schoolrsquos computer network The policy provided that the school ldquomay monitor all student work and email including material saved on laptop hard drives Users should NOT assume that files stored on network servers or hard drives of individual computers will be privaterdquo This policy also applied to staff

46

The Schoolrsquos Policy on Computer Use

bull The School Board also had a policy applicable to teachers governing the acceptable use of school information technology The policy provided that ldquoall data and messages generated on or handled by board equipment are considered to be the property of the [school]rdquo The policy also allowed limited ldquoincidental personal userdquo of information technology prohibited the posting or accessing of certain inappropriate content (such as sexually explicit material) and provided that while email was considered private the School Board could open email in certain circumstances such as if inappropriate use was suspected

47

Issue

bull Whether the evidence found on the laptop could be admitted at trial or whether it was obtained by way of an unreasonable search and seizure contrary to section 8 of the Charter

48

Supreme Court of Canada

bull Cole had a privacy interest in his personal information on the computer

bull Just as Canadians have a reasonable expectation of privacy in their own personal computers they also have a privacy interest in their work computers ldquoat least where personal use is permitted or reasonably expectedrdquo

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

354178217_1

We Need Foreign Workers Now

General Rule ndash prove no Canadian can fill the job unless exception applies

bullNAFTA WORK PERMITS

‐ Professional

‐ Intracompany Transferee

bullGATS WORK PERMITS

‐ Professional ‐ limited

‐ Intracompany Transferee ndash same rules

364178217_2

A LMO and A‐LMO

1 Key Elements

bull Advertise position

bull Qualify candidates

bull Apply for and obtain Labour Market Opinion Confirmation (ldquoLMOrdquo)

bull Obtain work permit

374178217_2

2 Changes ‐ A‐LMO ndash Accelerated LMO

bull 10 day processing

bull Advertising and all other requirements still apply ndashpost issuance VERIFICATION

bull Only applies if positive LMO issued to employer in last 2 years

bull Positions ndash NOC O A B (management professional technical)

38

3 Changes ndash Wages under LMO

bull New Rule ndash must pay (i) same wage to TFW as to Canadian employees and (ii) median wage (or up to 5 ‐15 variance)

4178217_2

394178217_2

B Alberta 7 Occupation Pilot Project

Focus on semi‐skilled workerbull Steamfitterpipefitter

bull Welder

bull Estimator

bull Heavy duty equipment mechanic

bull Carpenter

bull Ironworker

bull Millwright and industrial mechanic

bull Estimator

404178217_2

C New

bull Compliance Requirements

bull AB Pilot project for working‐age dependent children of skilled workers

414178217_2

1 Passport expiry

2 Medical TRV Criminalitybull Delays due to need of medicals (where employee has

been in ldquomedically‐required country for 6 months in last year)

bull Delays (and change of venue of application) because of nationality (and not residence) of employee

bull Criminal record ndash be prepared

D Tips

42

R v COLE 2012 SCC 53

Presenter Fausto Franceschi

Partner

43

Background

bull Richard Cole was a high school computer science teacher in Ontario who was given a work‐issued laptop computer

bull He was permitted to use the laptop for incidental personal purposes

bull While performing maintenance activities on Colersquos laptop a school board technician found a hidden folder containing nude photos of a grade 10 female student which Cole had copied from the schoolrsquos network The technician notified the school principal who directed the technician to copy the photos onto a CD

44

Background

bull The principal seized the laptop from Cole and copied the internet browsing history (which contained a large amount of pornographic images) from it onto a second CD and handed over the laptop and the CDrsquos to the police who without a warrant reviewed their contents and created a mirror image of the hard drive for forensic purposes

bull The police decided it was not necessary to obtain a search warrant because the laptop was school property

bull Cole was charged with possession of child pornography

45

The Schoolrsquos Policy on Computer Use

bull The school had an Acceptable Use Policy which regulated access to the schoolrsquos computer network The policy provided that the school ldquomay monitor all student work and email including material saved on laptop hard drives Users should NOT assume that files stored on network servers or hard drives of individual computers will be privaterdquo This policy also applied to staff

46

The Schoolrsquos Policy on Computer Use

bull The School Board also had a policy applicable to teachers governing the acceptable use of school information technology The policy provided that ldquoall data and messages generated on or handled by board equipment are considered to be the property of the [school]rdquo The policy also allowed limited ldquoincidental personal userdquo of information technology prohibited the posting or accessing of certain inappropriate content (such as sexually explicit material) and provided that while email was considered private the School Board could open email in certain circumstances such as if inappropriate use was suspected

47

Issue

bull Whether the evidence found on the laptop could be admitted at trial or whether it was obtained by way of an unreasonable search and seizure contrary to section 8 of the Charter

48

Supreme Court of Canada

bull Cole had a privacy interest in his personal information on the computer

bull Just as Canadians have a reasonable expectation of privacy in their own personal computers they also have a privacy interest in their work computers ldquoat least where personal use is permitted or reasonably expectedrdquo

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

364178217_2

A LMO and A‐LMO

1 Key Elements

bull Advertise position

bull Qualify candidates

bull Apply for and obtain Labour Market Opinion Confirmation (ldquoLMOrdquo)

bull Obtain work permit

374178217_2

2 Changes ‐ A‐LMO ndash Accelerated LMO

bull 10 day processing

bull Advertising and all other requirements still apply ndashpost issuance VERIFICATION

bull Only applies if positive LMO issued to employer in last 2 years

bull Positions ndash NOC O A B (management professional technical)

38

3 Changes ndash Wages under LMO

bull New Rule ndash must pay (i) same wage to TFW as to Canadian employees and (ii) median wage (or up to 5 ‐15 variance)

4178217_2

394178217_2

B Alberta 7 Occupation Pilot Project

Focus on semi‐skilled workerbull Steamfitterpipefitter

bull Welder

bull Estimator

bull Heavy duty equipment mechanic

bull Carpenter

bull Ironworker

bull Millwright and industrial mechanic

bull Estimator

404178217_2

C New

bull Compliance Requirements

bull AB Pilot project for working‐age dependent children of skilled workers

414178217_2

1 Passport expiry

2 Medical TRV Criminalitybull Delays due to need of medicals (where employee has

been in ldquomedically‐required country for 6 months in last year)

bull Delays (and change of venue of application) because of nationality (and not residence) of employee

bull Criminal record ndash be prepared

D Tips

42

R v COLE 2012 SCC 53

Presenter Fausto Franceschi

Partner

43

Background

bull Richard Cole was a high school computer science teacher in Ontario who was given a work‐issued laptop computer

bull He was permitted to use the laptop for incidental personal purposes

bull While performing maintenance activities on Colersquos laptop a school board technician found a hidden folder containing nude photos of a grade 10 female student which Cole had copied from the schoolrsquos network The technician notified the school principal who directed the technician to copy the photos onto a CD

44

Background

bull The principal seized the laptop from Cole and copied the internet browsing history (which contained a large amount of pornographic images) from it onto a second CD and handed over the laptop and the CDrsquos to the police who without a warrant reviewed their contents and created a mirror image of the hard drive for forensic purposes

bull The police decided it was not necessary to obtain a search warrant because the laptop was school property

bull Cole was charged with possession of child pornography

45

The Schoolrsquos Policy on Computer Use

bull The school had an Acceptable Use Policy which regulated access to the schoolrsquos computer network The policy provided that the school ldquomay monitor all student work and email including material saved on laptop hard drives Users should NOT assume that files stored on network servers or hard drives of individual computers will be privaterdquo This policy also applied to staff

46

The Schoolrsquos Policy on Computer Use

bull The School Board also had a policy applicable to teachers governing the acceptable use of school information technology The policy provided that ldquoall data and messages generated on or handled by board equipment are considered to be the property of the [school]rdquo The policy also allowed limited ldquoincidental personal userdquo of information technology prohibited the posting or accessing of certain inappropriate content (such as sexually explicit material) and provided that while email was considered private the School Board could open email in certain circumstances such as if inappropriate use was suspected

47

Issue

bull Whether the evidence found on the laptop could be admitted at trial or whether it was obtained by way of an unreasonable search and seizure contrary to section 8 of the Charter

48

Supreme Court of Canada

bull Cole had a privacy interest in his personal information on the computer

bull Just as Canadians have a reasonable expectation of privacy in their own personal computers they also have a privacy interest in their work computers ldquoat least where personal use is permitted or reasonably expectedrdquo

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

374178217_2

2 Changes ‐ A‐LMO ndash Accelerated LMO

bull 10 day processing

bull Advertising and all other requirements still apply ndashpost issuance VERIFICATION

bull Only applies if positive LMO issued to employer in last 2 years

bull Positions ndash NOC O A B (management professional technical)

38

3 Changes ndash Wages under LMO

bull New Rule ndash must pay (i) same wage to TFW as to Canadian employees and (ii) median wage (or up to 5 ‐15 variance)

4178217_2

394178217_2

B Alberta 7 Occupation Pilot Project

Focus on semi‐skilled workerbull Steamfitterpipefitter

bull Welder

bull Estimator

bull Heavy duty equipment mechanic

bull Carpenter

bull Ironworker

bull Millwright and industrial mechanic

bull Estimator

404178217_2

C New

bull Compliance Requirements

bull AB Pilot project for working‐age dependent children of skilled workers

414178217_2

1 Passport expiry

2 Medical TRV Criminalitybull Delays due to need of medicals (where employee has

been in ldquomedically‐required country for 6 months in last year)

bull Delays (and change of venue of application) because of nationality (and not residence) of employee

bull Criminal record ndash be prepared

D Tips

42

R v COLE 2012 SCC 53

Presenter Fausto Franceschi

Partner

43

Background

bull Richard Cole was a high school computer science teacher in Ontario who was given a work‐issued laptop computer

bull He was permitted to use the laptop for incidental personal purposes

bull While performing maintenance activities on Colersquos laptop a school board technician found a hidden folder containing nude photos of a grade 10 female student which Cole had copied from the schoolrsquos network The technician notified the school principal who directed the technician to copy the photos onto a CD

44

Background

bull The principal seized the laptop from Cole and copied the internet browsing history (which contained a large amount of pornographic images) from it onto a second CD and handed over the laptop and the CDrsquos to the police who without a warrant reviewed their contents and created a mirror image of the hard drive for forensic purposes

bull The police decided it was not necessary to obtain a search warrant because the laptop was school property

bull Cole was charged with possession of child pornography

45

The Schoolrsquos Policy on Computer Use

bull The school had an Acceptable Use Policy which regulated access to the schoolrsquos computer network The policy provided that the school ldquomay monitor all student work and email including material saved on laptop hard drives Users should NOT assume that files stored on network servers or hard drives of individual computers will be privaterdquo This policy also applied to staff

46

The Schoolrsquos Policy on Computer Use

bull The School Board also had a policy applicable to teachers governing the acceptable use of school information technology The policy provided that ldquoall data and messages generated on or handled by board equipment are considered to be the property of the [school]rdquo The policy also allowed limited ldquoincidental personal userdquo of information technology prohibited the posting or accessing of certain inappropriate content (such as sexually explicit material) and provided that while email was considered private the School Board could open email in certain circumstances such as if inappropriate use was suspected

47

Issue

bull Whether the evidence found on the laptop could be admitted at trial or whether it was obtained by way of an unreasonable search and seizure contrary to section 8 of the Charter

48

Supreme Court of Canada

bull Cole had a privacy interest in his personal information on the computer

bull Just as Canadians have a reasonable expectation of privacy in their own personal computers they also have a privacy interest in their work computers ldquoat least where personal use is permitted or reasonably expectedrdquo

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

38

3 Changes ndash Wages under LMO

bull New Rule ndash must pay (i) same wage to TFW as to Canadian employees and (ii) median wage (or up to 5 ‐15 variance)

4178217_2

394178217_2

B Alberta 7 Occupation Pilot Project

Focus on semi‐skilled workerbull Steamfitterpipefitter

bull Welder

bull Estimator

bull Heavy duty equipment mechanic

bull Carpenter

bull Ironworker

bull Millwright and industrial mechanic

bull Estimator

404178217_2

C New

bull Compliance Requirements

bull AB Pilot project for working‐age dependent children of skilled workers

414178217_2

1 Passport expiry

2 Medical TRV Criminalitybull Delays due to need of medicals (where employee has

been in ldquomedically‐required country for 6 months in last year)

bull Delays (and change of venue of application) because of nationality (and not residence) of employee

bull Criminal record ndash be prepared

D Tips

42

R v COLE 2012 SCC 53

Presenter Fausto Franceschi

Partner

43

Background

bull Richard Cole was a high school computer science teacher in Ontario who was given a work‐issued laptop computer

bull He was permitted to use the laptop for incidental personal purposes

bull While performing maintenance activities on Colersquos laptop a school board technician found a hidden folder containing nude photos of a grade 10 female student which Cole had copied from the schoolrsquos network The technician notified the school principal who directed the technician to copy the photos onto a CD

44

Background

bull The principal seized the laptop from Cole and copied the internet browsing history (which contained a large amount of pornographic images) from it onto a second CD and handed over the laptop and the CDrsquos to the police who without a warrant reviewed their contents and created a mirror image of the hard drive for forensic purposes

bull The police decided it was not necessary to obtain a search warrant because the laptop was school property

bull Cole was charged with possession of child pornography

45

The Schoolrsquos Policy on Computer Use

bull The school had an Acceptable Use Policy which regulated access to the schoolrsquos computer network The policy provided that the school ldquomay monitor all student work and email including material saved on laptop hard drives Users should NOT assume that files stored on network servers or hard drives of individual computers will be privaterdquo This policy also applied to staff

46

The Schoolrsquos Policy on Computer Use

bull The School Board also had a policy applicable to teachers governing the acceptable use of school information technology The policy provided that ldquoall data and messages generated on or handled by board equipment are considered to be the property of the [school]rdquo The policy also allowed limited ldquoincidental personal userdquo of information technology prohibited the posting or accessing of certain inappropriate content (such as sexually explicit material) and provided that while email was considered private the School Board could open email in certain circumstances such as if inappropriate use was suspected

47

Issue

bull Whether the evidence found on the laptop could be admitted at trial or whether it was obtained by way of an unreasonable search and seizure contrary to section 8 of the Charter

48

Supreme Court of Canada

bull Cole had a privacy interest in his personal information on the computer

bull Just as Canadians have a reasonable expectation of privacy in their own personal computers they also have a privacy interest in their work computers ldquoat least where personal use is permitted or reasonably expectedrdquo

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

394178217_2

B Alberta 7 Occupation Pilot Project

Focus on semi‐skilled workerbull Steamfitterpipefitter

bull Welder

bull Estimator

bull Heavy duty equipment mechanic

bull Carpenter

bull Ironworker

bull Millwright and industrial mechanic

bull Estimator

404178217_2

C New

bull Compliance Requirements

bull AB Pilot project for working‐age dependent children of skilled workers

414178217_2

1 Passport expiry

2 Medical TRV Criminalitybull Delays due to need of medicals (where employee has

been in ldquomedically‐required country for 6 months in last year)

bull Delays (and change of venue of application) because of nationality (and not residence) of employee

bull Criminal record ndash be prepared

D Tips

42

R v COLE 2012 SCC 53

Presenter Fausto Franceschi

Partner

43

Background

bull Richard Cole was a high school computer science teacher in Ontario who was given a work‐issued laptop computer

bull He was permitted to use the laptop for incidental personal purposes

bull While performing maintenance activities on Colersquos laptop a school board technician found a hidden folder containing nude photos of a grade 10 female student which Cole had copied from the schoolrsquos network The technician notified the school principal who directed the technician to copy the photos onto a CD

44

Background

bull The principal seized the laptop from Cole and copied the internet browsing history (which contained a large amount of pornographic images) from it onto a second CD and handed over the laptop and the CDrsquos to the police who without a warrant reviewed their contents and created a mirror image of the hard drive for forensic purposes

bull The police decided it was not necessary to obtain a search warrant because the laptop was school property

bull Cole was charged with possession of child pornography

45

The Schoolrsquos Policy on Computer Use

bull The school had an Acceptable Use Policy which regulated access to the schoolrsquos computer network The policy provided that the school ldquomay monitor all student work and email including material saved on laptop hard drives Users should NOT assume that files stored on network servers or hard drives of individual computers will be privaterdquo This policy also applied to staff

46

The Schoolrsquos Policy on Computer Use

bull The School Board also had a policy applicable to teachers governing the acceptable use of school information technology The policy provided that ldquoall data and messages generated on or handled by board equipment are considered to be the property of the [school]rdquo The policy also allowed limited ldquoincidental personal userdquo of information technology prohibited the posting or accessing of certain inappropriate content (such as sexually explicit material) and provided that while email was considered private the School Board could open email in certain circumstances such as if inappropriate use was suspected

47

Issue

bull Whether the evidence found on the laptop could be admitted at trial or whether it was obtained by way of an unreasonable search and seizure contrary to section 8 of the Charter

48

Supreme Court of Canada

bull Cole had a privacy interest in his personal information on the computer

bull Just as Canadians have a reasonable expectation of privacy in their own personal computers they also have a privacy interest in their work computers ldquoat least where personal use is permitted or reasonably expectedrdquo

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

404178217_2

C New

bull Compliance Requirements

bull AB Pilot project for working‐age dependent children of skilled workers

414178217_2

1 Passport expiry

2 Medical TRV Criminalitybull Delays due to need of medicals (where employee has

been in ldquomedically‐required country for 6 months in last year)

bull Delays (and change of venue of application) because of nationality (and not residence) of employee

bull Criminal record ndash be prepared

D Tips

42

R v COLE 2012 SCC 53

Presenter Fausto Franceschi

Partner

43

Background

bull Richard Cole was a high school computer science teacher in Ontario who was given a work‐issued laptop computer

bull He was permitted to use the laptop for incidental personal purposes

bull While performing maintenance activities on Colersquos laptop a school board technician found a hidden folder containing nude photos of a grade 10 female student which Cole had copied from the schoolrsquos network The technician notified the school principal who directed the technician to copy the photos onto a CD

44

Background

bull The principal seized the laptop from Cole and copied the internet browsing history (which contained a large amount of pornographic images) from it onto a second CD and handed over the laptop and the CDrsquos to the police who without a warrant reviewed their contents and created a mirror image of the hard drive for forensic purposes

bull The police decided it was not necessary to obtain a search warrant because the laptop was school property

bull Cole was charged with possession of child pornography

45

The Schoolrsquos Policy on Computer Use

bull The school had an Acceptable Use Policy which regulated access to the schoolrsquos computer network The policy provided that the school ldquomay monitor all student work and email including material saved on laptop hard drives Users should NOT assume that files stored on network servers or hard drives of individual computers will be privaterdquo This policy also applied to staff

46

The Schoolrsquos Policy on Computer Use

bull The School Board also had a policy applicable to teachers governing the acceptable use of school information technology The policy provided that ldquoall data and messages generated on or handled by board equipment are considered to be the property of the [school]rdquo The policy also allowed limited ldquoincidental personal userdquo of information technology prohibited the posting or accessing of certain inappropriate content (such as sexually explicit material) and provided that while email was considered private the School Board could open email in certain circumstances such as if inappropriate use was suspected

47

Issue

bull Whether the evidence found on the laptop could be admitted at trial or whether it was obtained by way of an unreasonable search and seizure contrary to section 8 of the Charter

48

Supreme Court of Canada

bull Cole had a privacy interest in his personal information on the computer

bull Just as Canadians have a reasonable expectation of privacy in their own personal computers they also have a privacy interest in their work computers ldquoat least where personal use is permitted or reasonably expectedrdquo

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

414178217_2

1 Passport expiry

2 Medical TRV Criminalitybull Delays due to need of medicals (where employee has

been in ldquomedically‐required country for 6 months in last year)

bull Delays (and change of venue of application) because of nationality (and not residence) of employee

bull Criminal record ndash be prepared

D Tips

42

R v COLE 2012 SCC 53

Presenter Fausto Franceschi

Partner

43

Background

bull Richard Cole was a high school computer science teacher in Ontario who was given a work‐issued laptop computer

bull He was permitted to use the laptop for incidental personal purposes

bull While performing maintenance activities on Colersquos laptop a school board technician found a hidden folder containing nude photos of a grade 10 female student which Cole had copied from the schoolrsquos network The technician notified the school principal who directed the technician to copy the photos onto a CD

44

Background

bull The principal seized the laptop from Cole and copied the internet browsing history (which contained a large amount of pornographic images) from it onto a second CD and handed over the laptop and the CDrsquos to the police who without a warrant reviewed their contents and created a mirror image of the hard drive for forensic purposes

bull The police decided it was not necessary to obtain a search warrant because the laptop was school property

bull Cole was charged with possession of child pornography

45

The Schoolrsquos Policy on Computer Use

bull The school had an Acceptable Use Policy which regulated access to the schoolrsquos computer network The policy provided that the school ldquomay monitor all student work and email including material saved on laptop hard drives Users should NOT assume that files stored on network servers or hard drives of individual computers will be privaterdquo This policy also applied to staff

46

The Schoolrsquos Policy on Computer Use

bull The School Board also had a policy applicable to teachers governing the acceptable use of school information technology The policy provided that ldquoall data and messages generated on or handled by board equipment are considered to be the property of the [school]rdquo The policy also allowed limited ldquoincidental personal userdquo of information technology prohibited the posting or accessing of certain inappropriate content (such as sexually explicit material) and provided that while email was considered private the School Board could open email in certain circumstances such as if inappropriate use was suspected

47

Issue

bull Whether the evidence found on the laptop could be admitted at trial or whether it was obtained by way of an unreasonable search and seizure contrary to section 8 of the Charter

48

Supreme Court of Canada

bull Cole had a privacy interest in his personal information on the computer

bull Just as Canadians have a reasonable expectation of privacy in their own personal computers they also have a privacy interest in their work computers ldquoat least where personal use is permitted or reasonably expectedrdquo

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

42

R v COLE 2012 SCC 53

Presenter Fausto Franceschi

Partner

43

Background

bull Richard Cole was a high school computer science teacher in Ontario who was given a work‐issued laptop computer

bull He was permitted to use the laptop for incidental personal purposes

bull While performing maintenance activities on Colersquos laptop a school board technician found a hidden folder containing nude photos of a grade 10 female student which Cole had copied from the schoolrsquos network The technician notified the school principal who directed the technician to copy the photos onto a CD

44

Background

bull The principal seized the laptop from Cole and copied the internet browsing history (which contained a large amount of pornographic images) from it onto a second CD and handed over the laptop and the CDrsquos to the police who without a warrant reviewed their contents and created a mirror image of the hard drive for forensic purposes

bull The police decided it was not necessary to obtain a search warrant because the laptop was school property

bull Cole was charged with possession of child pornography

45

The Schoolrsquos Policy on Computer Use

bull The school had an Acceptable Use Policy which regulated access to the schoolrsquos computer network The policy provided that the school ldquomay monitor all student work and email including material saved on laptop hard drives Users should NOT assume that files stored on network servers or hard drives of individual computers will be privaterdquo This policy also applied to staff

46

The Schoolrsquos Policy on Computer Use

bull The School Board also had a policy applicable to teachers governing the acceptable use of school information technology The policy provided that ldquoall data and messages generated on or handled by board equipment are considered to be the property of the [school]rdquo The policy also allowed limited ldquoincidental personal userdquo of information technology prohibited the posting or accessing of certain inappropriate content (such as sexually explicit material) and provided that while email was considered private the School Board could open email in certain circumstances such as if inappropriate use was suspected

47

Issue

bull Whether the evidence found on the laptop could be admitted at trial or whether it was obtained by way of an unreasonable search and seizure contrary to section 8 of the Charter

48

Supreme Court of Canada

bull Cole had a privacy interest in his personal information on the computer

bull Just as Canadians have a reasonable expectation of privacy in their own personal computers they also have a privacy interest in their work computers ldquoat least where personal use is permitted or reasonably expectedrdquo

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

43

Background

bull Richard Cole was a high school computer science teacher in Ontario who was given a work‐issued laptop computer

bull He was permitted to use the laptop for incidental personal purposes

bull While performing maintenance activities on Colersquos laptop a school board technician found a hidden folder containing nude photos of a grade 10 female student which Cole had copied from the schoolrsquos network The technician notified the school principal who directed the technician to copy the photos onto a CD

44

Background

bull The principal seized the laptop from Cole and copied the internet browsing history (which contained a large amount of pornographic images) from it onto a second CD and handed over the laptop and the CDrsquos to the police who without a warrant reviewed their contents and created a mirror image of the hard drive for forensic purposes

bull The police decided it was not necessary to obtain a search warrant because the laptop was school property

bull Cole was charged with possession of child pornography

45

The Schoolrsquos Policy on Computer Use

bull The school had an Acceptable Use Policy which regulated access to the schoolrsquos computer network The policy provided that the school ldquomay monitor all student work and email including material saved on laptop hard drives Users should NOT assume that files stored on network servers or hard drives of individual computers will be privaterdquo This policy also applied to staff

46

The Schoolrsquos Policy on Computer Use

bull The School Board also had a policy applicable to teachers governing the acceptable use of school information technology The policy provided that ldquoall data and messages generated on or handled by board equipment are considered to be the property of the [school]rdquo The policy also allowed limited ldquoincidental personal userdquo of information technology prohibited the posting or accessing of certain inappropriate content (such as sexually explicit material) and provided that while email was considered private the School Board could open email in certain circumstances such as if inappropriate use was suspected

47

Issue

bull Whether the evidence found on the laptop could be admitted at trial or whether it was obtained by way of an unreasonable search and seizure contrary to section 8 of the Charter

48

Supreme Court of Canada

bull Cole had a privacy interest in his personal information on the computer

bull Just as Canadians have a reasonable expectation of privacy in their own personal computers they also have a privacy interest in their work computers ldquoat least where personal use is permitted or reasonably expectedrdquo

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

44

Background

bull The principal seized the laptop from Cole and copied the internet browsing history (which contained a large amount of pornographic images) from it onto a second CD and handed over the laptop and the CDrsquos to the police who without a warrant reviewed their contents and created a mirror image of the hard drive for forensic purposes

bull The police decided it was not necessary to obtain a search warrant because the laptop was school property

bull Cole was charged with possession of child pornography

45

The Schoolrsquos Policy on Computer Use

bull The school had an Acceptable Use Policy which regulated access to the schoolrsquos computer network The policy provided that the school ldquomay monitor all student work and email including material saved on laptop hard drives Users should NOT assume that files stored on network servers or hard drives of individual computers will be privaterdquo This policy also applied to staff

46

The Schoolrsquos Policy on Computer Use

bull The School Board also had a policy applicable to teachers governing the acceptable use of school information technology The policy provided that ldquoall data and messages generated on or handled by board equipment are considered to be the property of the [school]rdquo The policy also allowed limited ldquoincidental personal userdquo of information technology prohibited the posting or accessing of certain inappropriate content (such as sexually explicit material) and provided that while email was considered private the School Board could open email in certain circumstances such as if inappropriate use was suspected

47

Issue

bull Whether the evidence found on the laptop could be admitted at trial or whether it was obtained by way of an unreasonable search and seizure contrary to section 8 of the Charter

48

Supreme Court of Canada

bull Cole had a privacy interest in his personal information on the computer

bull Just as Canadians have a reasonable expectation of privacy in their own personal computers they also have a privacy interest in their work computers ldquoat least where personal use is permitted or reasonably expectedrdquo

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

45

The Schoolrsquos Policy on Computer Use

bull The school had an Acceptable Use Policy which regulated access to the schoolrsquos computer network The policy provided that the school ldquomay monitor all student work and email including material saved on laptop hard drives Users should NOT assume that files stored on network servers or hard drives of individual computers will be privaterdquo This policy also applied to staff

46

The Schoolrsquos Policy on Computer Use

bull The School Board also had a policy applicable to teachers governing the acceptable use of school information technology The policy provided that ldquoall data and messages generated on or handled by board equipment are considered to be the property of the [school]rdquo The policy also allowed limited ldquoincidental personal userdquo of information technology prohibited the posting or accessing of certain inappropriate content (such as sexually explicit material) and provided that while email was considered private the School Board could open email in certain circumstances such as if inappropriate use was suspected

47

Issue

bull Whether the evidence found on the laptop could be admitted at trial or whether it was obtained by way of an unreasonable search and seizure contrary to section 8 of the Charter

48

Supreme Court of Canada

bull Cole had a privacy interest in his personal information on the computer

bull Just as Canadians have a reasonable expectation of privacy in their own personal computers they also have a privacy interest in their work computers ldquoat least where personal use is permitted or reasonably expectedrdquo

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

46

The Schoolrsquos Policy on Computer Use

bull The School Board also had a policy applicable to teachers governing the acceptable use of school information technology The policy provided that ldquoall data and messages generated on or handled by board equipment are considered to be the property of the [school]rdquo The policy also allowed limited ldquoincidental personal userdquo of information technology prohibited the posting or accessing of certain inappropriate content (such as sexually explicit material) and provided that while email was considered private the School Board could open email in certain circumstances such as if inappropriate use was suspected

47

Issue

bull Whether the evidence found on the laptop could be admitted at trial or whether it was obtained by way of an unreasonable search and seizure contrary to section 8 of the Charter

48

Supreme Court of Canada

bull Cole had a privacy interest in his personal information on the computer

bull Just as Canadians have a reasonable expectation of privacy in their own personal computers they also have a privacy interest in their work computers ldquoat least where personal use is permitted or reasonably expectedrdquo

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

47

Issue

bull Whether the evidence found on the laptop could be admitted at trial or whether it was obtained by way of an unreasonable search and seizure contrary to section 8 of the Charter

48

Supreme Court of Canada

bull Cole had a privacy interest in his personal information on the computer

bull Just as Canadians have a reasonable expectation of privacy in their own personal computers they also have a privacy interest in their work computers ldquoat least where personal use is permitted or reasonably expectedrdquo

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

48

Supreme Court of Canada

bull Cole had a privacy interest in his personal information on the computer

bull Just as Canadians have a reasonable expectation of privacy in their own personal computers they also have a privacy interest in their work computers ldquoat least where personal use is permitted or reasonably expectedrdquo

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

49

Supreme Court of Canada

bull When used for personal use such computers regardless of where they are located ldquocontain information that is meaningful intimate and touching on the userrsquos biographical corerdquo

bull However in light of the schoolrsquos workplace policies and because the computer was school property Cole had a ldquodiminished expectation of privacyrdquo in comparison to the privacy interest he would have had in his own personal computer

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

50

Supreme Court of Canada

bull Even though there was a diminished expectation of privacy the police still violated Colersquos section 8 Charter rights

bull But the evidence was not excluded because the Court found that the conduct of the police was not an ldquoegregious breach of the Charterrdquo given that the law governing privacy interests at the time this occurred (2006) was ldquostill unfoldingrdquo

bull The police also recognized and respected Colersquos privacy interests in certain private material on the laptop (ie pictures of his wife)

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

51

Supreme Court of Canada

bull The Court also emphasized Colersquos diminished privacy interest in the computer and the fact that the material would have been discovered if the police had obtained a warrant

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

52

Implication for Employers

bull The Court expressly stated that because Cole was not challenging the actions of the school it would leave ldquofor another day the finer points of an employerrsquos rights to monitor computers issued to employeesrdquo

bull Where personal use of a work computer is permitted or reasonably expected employees will have an expectation of privacy in personal information stored on the computer

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

53

Implication for Employers

bull All of the circumstances including the employerrsquos computer use policies will be considered in determining whether there is a diminished expectation of privacy

bull If there is a breach of an employeersquos expectation of privacy then any evidence obtained by the breach may not be admissible in a lawsuit or a grievance arbitration

bull Employers should consider having an Acceptable Computer Use policy

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

54

United Food and Commercial Workers Local 401 v Alberta (Attorney General) 2012 ABCA 130Presenter Fausto Franceschi

Partner

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

55

Facts

bull Arose out of a strike in 2006 by the UFCW at Palace Casino located at West Edmonton Mall

bull Both the UFCW and Palace Casino video taped and photographed picket line activities

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

56

Facts

bull UFCW posted signs in the area of the picket line stating that images of persons crossing the picket line could be placed on its website wwwcasinoscabsca

bull Complainants to the Commissioner under the Personal Information Protection Act (ldquoPIPArdquo) included employees and officers of the employer as well as members of the public

bull Notwithstanding the warning the Union did not actually post recordings of any of the complainants on its website

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

57

Facts

bull UFCW conceded that the photos and videos were ldquopersonal informationrdquo under the PIPA

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

58

Issue

bull Does the UFCW have a constitutionally protected right to collect and use images of persons crossing the picket line

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

59

Findings

bull An adjudicator under PIPA concluded that the UFCW did not have the right to collect and use the recordings other than for use in an investigation or legal proceeding or to provide information to the police and that the use for any other purpose without consent was contrary to PIPA

bull Adjudicatorrsquos decision set aside on judicial review by Alberta Court of Queenrsquos Bench judge as the decision violated the Unionrsquos constitutional rights of freedom of expression under the Charter of Rights

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

60

Alberta Court of Appeal

bull The Unionrsquos attack on the legislation was three pronged

1 Recordings of the picket line were done for ldquojournalistic purposesrdquo and therefore itrsquos completely outside the ambit of PIPA as PIPA does not apply to the collection use or disclosureof personal information for journalistic purposes

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

61

Alberta Court of Appeal

2 Alternatively the recordings of the picket line were done in anticipation of legal proceedings as PIPA allows the collection of such information without consent for the purposes of an investigation or legal proceeding which is reasonably anticipated

3 If the recordings were not otherwise permitted the UFCW argued that PIPA is too sweeping in its reach and therefore violates the Charter

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

62

Alberta Court of Appeal

bull S2(b) of the Charter provides

Everyone has the following fundamental freedoms

hellip

(b) freedom of thought belief opinion and expression including freedom of the press and other media of communication

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

63

Alberta Court of Appeal

bull PIPA would preclude the union from using the disputed images for

ndash Placing the images in a newsletter and strike leafletsndash Dissuading people from crossing the picket linendash Acting as a deterrent to violencendash Creating material for use as a training tool for union membersndash Providing material to other unions for educational purposesndash Supporting morale on the picket line with the use of humorndash Generally achieving a resolution to the labour dispute favourable to

the union

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

64

Alberta Court of Appeal

bull Does PIPA therefore inhibit the Unionrsquos freedom of expression If so is that restriction demonstrably justified in a free and democratic society

bull Labour picketing is an expressive activity

bull Recording and distributing images of those crossing the picket line serves to inform members of the public of the strike and to discourage or even intimidate people into suspending their relationships with the employer

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

65

Alberta Court of Appeal

bull Cross the picket line and risk that a wider audience of friendsneighbours business associates and other members of the public may see the crossing of the picket line Recording the picket line therefore also has an expressive purpose

bull The Attorney General argued that the Unionrsquos use of the images amounted to ldquothreatsrdquo

bull CA states ldquostrikes are not tea partiesrdquo and that so long as there is no promotion of violence or other illegal activity a reasonable amount of psychological pressure may be brought to bear on all those involved

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

66

Alberta Court of Appeal

ldquoDissuading people from crossing the picket line enhancing morale of the strikers deterring violence and threats and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression Persuading people to think or act in a certain way is a direct purpose of free expressionrdquo

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

67

Alberta Court of Appeal

bull The Court concluded that the government was not able to justify the infringement of free expression arising from PIPA The Court said

ldquoWhile the protection of personal information is important it is no more important than collective bargaining and the rights of workers to organize It is also no more important than the right of the union to communicate its message to the public On the other hand the privacy interest being protected here is minimal The persons who were videotaped were in a public place crossing an obvious picket line in the face of warning signs that images were being collected The privacy expectations were very low Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted form the Adjudicators orderrdquo

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

68

Alberta Court of Appeal

bull The legislature was directed to amend PIPA to bring it in line with the Charter

bull Decision appealed to the SCC

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

69

Consequences of Decision

bull Outlines the importance of a unionrsquos right to freedom of expression in exerting pressures during a labour dispute

bull Impacts the ability of individuals to control personal information about their activities in public places

bull SCC decision will deal with balancing privacy rights versus freedom of expression

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

70

ADM Measurements Ltd v Bullet Electric LtdImplied Fiduciary Duties and Post Employment Restrictions

Presenter Alison Walsh

Associate

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

71

The Parties

bullThe Plaintiff ndash ADM Measurements Ltd company servicing oil and gas companies in northern Alberta

bullThe Defendants ndash Greg Young ADMrsquos former managerndash Bullet Electric company competing with ADM started by Young

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

72

Fiduciary Relationship

bull A fiduciary relationship can arise in two circumstances

bull 1 Fiduciary by Contract and

bull 2 Fiduciary as a Key Senior Manager

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

73

Implications of Wrongful Termination on Fiduciary Obligations

bull Specific Contract Terms ndash when an employer wrongfully dismisses an employee the employer is said to have repudiated the contract and can no longer enforce the contracts benefits (Globex Foreign Exchange Corp v Kelcher 2011 ABCA 240)

bull Common Law Fiduciary Obligations ndash fiduciary duties end when an employer wrongfully dismisses a fiduciary a fiduciary employee is only expected to serve the interests of the employer as long as the employer maintains clean hands (ADM Measurements Ltd v Bullet Electric Ltd 2012 ABQB 150)

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

74

Take Home

bull Reasonable restrictive covenants and fiduciary duties are enforceable when an employee is terminated for cause or with reasonable notice or the employee resigns

bull A wrongfully dismissed employee may be released from the terms of restrictive covenants previously agreed to with the employer or implied common law fiduciary duties

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

75

Heil v Canada Safeway LimitedKeeping Releases Enforceable

Presenter Adrian Elmslie

Partner

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

76

Introduction

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

77

Facts

bull Night shift warehouse manager

bull Injured as a result of a slip and fall while at work

bull Employer conducted an investigation after the fall which raised three concerns

ndash Video of the Complainantrsquos fall did not support the Complainantrsquos claim that he had hit his head

ndash The employer had since learned that the Complainant went on vacation when he was off work as a result of the injuries he allegedly suffered from the slip and fall and

ndash Surveillance video indicated that the Complainant had been making prank phone calls to the warehouse superintendent in the middle of the night

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

78

Facts

bull Supervisor and HR Representative interviewed the Complainant

bull Two days later Complainant was called into a second meeting during which he was informed that his employment was terminated for cause

bull The Complainant was provided with a letter which advised him theemployer was prepared to offer him $4500 in return for a release

bull The Complainant was given 7 days to accept the offer

bull The Complainant consulted with a lawyer (the cost of which was covered under an Employee Assistance Plan) and asked a number of follow up question about when he would receive money that was owing to him

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

79

Facts

bull On the morning of the deadline Complainant left a voicemail with the employer indicated that did not intend to sign a release and would be consulting with the Human Rights Commission

bull At 2pm that same day the Complainant signed and faxed the release to the employer with the phrase ldquosigned under duressrdquo under the signature line That same afternoon the Complainant filed a human rights complaint against the employer

bull The employer then applied to have the complaint dismissed based on the fact that the Complainant had signed a release

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

80

Decision ndash The Enforceability of Releases

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

81

General Principles

bull A Release is to be presumed valid and binding only if the validity of the Release is not reasonably put in issue or the issue is conceded by the complainant

bull If the validity of the Release is put into issue and there is some reasonable basis to believe the issue is ldquotriablerdquo then the Commission has the jurisdiction to determine the validity of the Release

bull The criteria that the Human Rights Tribunal will use to determine the validity of a Release is the same as would be applied by any court of competent jurisdiction

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

82

General Principles

Criterea Considerations that can affect enforceability

1 Language of the release

2 Unconscionability

3 Undue influence

4 Independent legal advice

5 Duress

6 Knowledge of rights

7 Other considerations lack of capacity mutual mistake fraud etc

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

83

Decision

The Tribunal Considered three challenges

bull Duress

bull Unconscionability

bull Undue Influence

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

84

Duress

Requirements

1) Pressure amounting to compulsion of the will of the victim and

2) Pressure exerted must be illegitimate

Pressure ne Duress

Mere Stress or Unhappiness ne Duress

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

85

Duress

Argument of duress rejected1) The Release was read to the Complainant at the termination meeting

and it was clear that the Complainant would receive any amounts owed to him (ie wages earned pension benefits) regardless of whether or he signed the Release

2) The termination letter clearly stated that it was the payment of the lump sum of $4500 which was subject to the signing of the Release not outstanding wages and the issuing of the ROE

3) Evidence of actual economic duress was weak The Complainant wasworried about his financial future generally but he was not facing severe and immediate economic issues at the time he signed the Release

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

86

Duress

4) Complainant was provided access to legal counsel obtained independent legal advice and was alive to his legal rights

5) Complainant had adequate opportunity (7 days) to weigh his options

6) Complainant did not take any steps to avoid the Agreement

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

87

Unconscionability

Four Elements required

1) A grossly unfair and improvident transaction

2) Victimrsquos lack of independent legal advice or other suitable advice

3) Overwhelming imbalance in bargaining power caused by victimrsquos ignorance of business illiteracy ignorance of the language of the bargain etc and

4) Other partyrsquos knowingly taking advantage of this vulnerability

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

88

Unconscionability

Unconscionability argument was rejected

bull $4500 was not improvident considering the full context of the offer

bull Complainant had access to legal advice and

bull There were potential grounds for a termination for just cause

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

89

Undue Influence

Two types

1) Presumed ‐ arises normally from a special dependency relationship between the parties eg solicitor and client parent and child guardian and ward etc

2) Actual ‐ requires proof of actual undue influence by the party alleging undue influence

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

90

Undue Influence

Undue influence argument rejected

bull The amount of time between the meeting where the Complainant was accused of wrongdoing his termination and the signing of the Release negated the argument that there was undue influence

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

91

Result

bull Complainant failed to demonstrate that the release was unenforceable

bull Complaint dismissed

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

92

Lessons Learned

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

93

Best Practices

bull Make sure the terms of the release and the conditions under which it is requested are clear

bull Make sure that the release covers all claims that could arise from a termination of employment

bull Do not threaten to withhold benefits or entitlements already owed contingent on the signing of a release

bull Provide the employee with an opportunity to consider the offer and seek advice

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

94

Best Practices

bull Encourage or remind the employee to seek advice

bull Be careful and thoughtful when answering any follow up questions from the employee

bull Do not use ldquostrong armrdquo or pressure tactics to get the employee to sign a release

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face If you are faced with one of these issues please retain professional assistance as each situation is

unique

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom

96

Thank you for Joining Us

Colleen Verville 7804237103 e colleenvervillefmc‐lawcomShawna Vogel 7804237335 e shawnavogelfmc‐lawcomJoe Hunder 7804237354 e joehunderfmc‐lawcomAdrian Elmslie 7804237364 e adrianelmsliefmc‐lawcomFausto Franceschi 7804237348 e faustofranceschifmc‐lawcomAlison Walsh 7804237147 e alisonwalshfmc‐lawcom