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Supreme Court of Canada to Federally Regulated Employers: No “Without Cause” Dismissals Under Canada Labour Code

In a decision which returns us to what many thought was the status quo, the Supreme Court of Canada has ruled that, (save for exempt employees), the unjust dismissal scheme in the Canada Labour Code (the “Code”) does not permit federally regulated employers to dismiss employees without cause once they have one year of service or more. This decision reverses the decisions of the Federal Court and Federal Court of Appeal, which had ruled that nothing in the Code precluded federally regulated employers from dismissing non-unionized employees on a without cause basis. As a result, for federally regulated employers, when it comes to dismissal, the right of non-union employees to protection from dismissal tracks the right of their unionized counterparts.

Facts:

In November 2009, Atomic Energy Canada Limited (“AECL”) dismissed a procurement supervisor after four and a half years of service. The employee promptly filed an “Unjust Dismissal” complaint, claiming that he had been unjustly dismissed contrary to the Code. In response, AECL argued that because it had provided the employee with a generous severance package well in excess of his minimum statutory entitlements (i.e. 6 months’ pay), the employee had not been unjustly dismissed. The Adjudicator appointed to hear the matter disagreed with AECL and ruled that an employer could not rely on severance payments, however generous, to avoid a finding that an employee had been unjustly dismissed under the Code.

In a surprise to many, the Federal Court of Canada, and then the Federal Court of Appeal, disagreed with the Adjudicator, holding that nothing in the Code prevented federally regulated employers from dismissing non-unionized employees without cause. The employee appealed to the Supreme Court of Canada.

Supreme Court of Canada:

Writing for the majority, Justice Abella stated that the purpose of the Code’s unjust dismissal scheme was to provide “…a cost-effective alternative to the civil court system for dismissed employees to obtain meaningful remedies which are far more expansive than those available at common law”. In Justice Abella’s view, the remedies contemplated by the Code for non-unionized employees were meant to reflect those generally available in the collective bargaining context. As such, in the federal sphere, the common law right of employers to dismiss “…whomever they want for whatever reason they want so long as they give reasonable notice or pay in lieu” was superseded by the Code, which did not give federally regulated employers such a right.

What this means for Federally Regulated Employers:

For better or for worse, the Supreme Court of Canada’s decision provides legal certainty for Canada’s federally regulated employers, as it ends the debate about whether the Code permits without cause dismissals. That said, the Supreme Court of Canada’s decision does not mean that an employee’s right to sue his or her former employer in court for wrongful dismissal has been extinguished. As the minority noted in this case, due to a legislative wrinkle, a federally regulated employer can dismiss an employee without cause as long as that employee chooses to challenge the lawfulness of the dismissal in the civil courts.  However, if the employee files a complaint under the Code’s unjust dismissal scheme, the notice provided to the employee will not insulate the employer from an adjudicator’s finding that the dismissal was nonetheless unjust.

Accordingly, unless and until the Code’s unjust dismissal scheme is amended to allow for without cause dismissals, federally regulated employers can only dismiss an employee with one year of service or more due to performance issues, a lack of work or the discontinuance of a function. Failure to meet this requirement could result in significant liability for the employer, including reinstatement.

Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29 (http://www.canlii.org/en/ca/scc/doc/2016/2016scc29/2016scc29.pdf)

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Supreme Court of Canada to Federally Regulated Employers: No “Without Cause” Dismissals Under Canada Labour Code

The Countdown is On: The New OHSA Amendments Come into Force in Less Than 60 Days

As we previously reported, the amendments to the Occupational Health and Safety Act introduced by Ontario’s Sexual Violence and Harassment Legislation, An Act to amend various statutes with respect to sexual violence, sexual harassment, domestic violence and related matters, come into force on September 8, 2016.

By way of reminder, the OHSA amendments expand the Act’s definition of “workplace harassment” to expressly include “workplace sexual harassment”. The amendments also impose additional obligations on employers with respect to their workplace harassment policies, programs and investigations.

With September 8th quickly approaching, the countdown to compliance is on and employers must take the following steps to ensure they meet the Act’s requirements:

  1. Review and revise existing workplace harassment policies and programs to ensure that they specifically contemplate “workplace sexual harassment”.
  2. Work in consultation with the joint health and safety committee or health and safety representative (if applicable) to develop and maintain a written workplace harassment program, which sets out:
  • reporting measures and procedures for workers to report incidents of workplace harassment to their employer or supervisor and, in the event that the employer or supervisor is the alleged harasser, to a person other than the employer or supervisor;
  • how incidents or complaints of workplace harassment will be investigated and dealt with;
  • how information obtained about an incident or complaint of workplace harassment, including identifying information about any individuals involved, will not be disclosed unless the disclosure is necessary for investigating, taking corrective action, or by law; and
  • how a worker who has allegedly experienced workplace harassment and the alleged harasser (if s/he is a worker of the employer) will be informed of the results of the investigation and of corrective action that has been, or will be, taken.
  1. Establish internal timelines and practices to ensure that the written workplace harassment program is reviewed as often as necessary, but at least annually.
  2. Ensure that internal processes are developed and implemented to:
  • conduct investigations into all incidents and complaints of workplace harassment; and
  • inform the workers involved in the incident and/or complaint of the results of the investigation and of any corrective action that has been, or will be, taken as a result.
  1. Develop and maintain resources that provide workers with information and instruction on the contents of the workplace harassment policy and program.

In addition to the OHSA’s existing enforcement mechanisms, the amended Act grants inspectors the power to order an employer to have an impartial third party conduct a workplace harassment investigation, at the employer’s expense. Notably, the OHSA amendments do not detail the circumstances in which an inspector can, or will, issue such an order.

The Ontario Government’s It’s Never Okay Action Plan, which led to the OHSA amendments, indicates that the Government intends to issue a new “Code of Practice” for employers, which will describe in more detail the steps that employers must take to comply with the OHSA amendments. The Code of Practice is expected to be released on or around the September 8th coming into force date and will hopefully provide more guidance on the implementation of the Act.  Stay tuned as we will provide a further update upon its release.

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The Countdown is On: The New OHSA Amendments Come into Force in Less Than 60 Days

Sale of a Business is Not Constructive Dismissal

In the decision 2108805 Ontario Inc. v. Boulad[1] rendered on January 25, 2016, the Quebec Court of Appeal overruled the trial judge who had considered that the change of employer resulting from a change of ownership constituted a unilateral and substantial modification of Mr. Boulad’s essential terms and conditions of employment and therefore awarded him an indemnity in lieu of notice of termination of employment equivalent to 24 months of salary and benefits.

Mr. Boulad was director of a hotel owned by the Westmount Hospitality Group (“Westmount“) an important international hotel group. Westmount sold the hotel for which Mr. Boulad was responsible to Jesta, a much smaller hotel group.  Pursuant to the transaction and to section 2097 of the Civil Code of Quebec (“CCQ“), Jesta undertook to continue Mr. Boulad’s employment under the same terms and conditions of employment.  Mr. Boulad refused to pursue employment with Jesta and asked Westmount to relocate him at another hotel or pay him a severance package.  Westmount denied Mr. Boulad’s request as it considered his employment was being continued with Jesta pursuant to section 2097 CCQ.  Mr. Boulad sued Westmount claiming that the change of employer amounted to a constructive dismissal, namely considering the loss of prestige associated with his employment with an important hotel group and the loss of transfer and promotion opportunities at the international level.

In its decision, the Court of Appeal confirmed the imperative and declaratory nature of section 2097 CCQ which stipulates that the employment contract continues to be in force and binding following the alienation of an enterprise.

The change of employer shall not be considered a substantial modification of the essential terms and conditions of employment for the sole reason that the new employer becomes the debtor of the previous employer’s obligations. The Court of Appeal also acknowledged that a business is not static and may evolve through time.  The workplace atmosphere and environment, as well as transfer and promotion opportunities are generally not part of the terms and conditions of employment unless expressly stipulated in the employment contract. In this particular case, the evidence fell short from demonstrating that Westmount and Mr. Boulad had agreed to such considerations being part of the terms and conditions of employment.  Both Westmount and Jesta abided by their legal obligations pursuant to section 2097 CCQ and Mr. Boulad could not legally or contractually require Westmount to relocate him or pay him severance. Mr. Boulad’s refusal to work for Jesta therefore constituted a voluntary resignation.

Accordingly, an employee who does not wish to continue employment with a successor employer may resign from employment but will have no recourse against the vendor or the purchaser, subject to specific undertakings in the employment agreement.

[1] 2016 QCCA 75.

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Sale of a Business is Not Constructive Dismissal

Pension Plan Governance Policies: Have You Reviewed Yours Lately?

When was the last time you thought about pension plan governance? Or reviewed your pension governance policies? It would be great if your answer is “recently”. However, if you’re like many organizations whose answer is “I can’t remember” or “a while ago”, then you need to be aware of the potential risks of not regularly reviewing your pension plan governance structure.

Pension governance is often referred to as the decision-making structure and supporting policies and processes for overseeing, managing and administering a pension plan to ensure that fiduciary and other obligations of the plan are met.

Under pension standards legislation, the plan administrator is ultimately responsible for the governance of the pension plan. Plan administrators have a statutory fiduciary obligation to ensure that the plan is administered in accordance with the best interests of the plan members. Using “best efforts” is not sufficient. Fostering good governance practices, including having a written pension governance policy, will help you discharge this obligation. Without them, the likelihood of breaching your fiduciary standard of care increases. This could lead to claims and litigation against the pension plan and those responsible for plan administration, and even offences under pension standards legislation. It was only a few years ago that the trustees of a large multi-employer pension plan, who were responsible for plan administration, were charged and convicted under the Ontario Pension Benefits Act for breaching their fiduciary duty with respect to the plan’s investments, and fined a record-setting amount.

As a result, if you already have a written pension governance policy in place, now is a good time to review it. Conducting periodic reviews will assist you in making sure any required changes to that policy are made, and that your governance framework as a whole continues to be relevant and adequate to discharge your fiduciary duty. This in turn will ensure that there is proper oversight of the plan’s day-to-day operations, plan member interests are protected, and the risk of member complaints and claims against the pension plan are reduced.

If you don’t already have a written pension governance policy in place, now is the time to create one! A written pension governance policy can be an effective tool for improving your pension governance system. It’s also something that most regulators will ask for when conducting an examination of your pension plan.

As a starting point, any person involved in pension governance should be familiar with the guidelines published by the Canadian Association of Pension Supervisory Authorities (CAPSA) and in particular, Guideline No. 4. Originally released in 2004, CAPSA is currently updating Guideline No. 4, which sets out guiding principles and established best practices for pension plan governance. CAPSA has also developed several other guidelines that will assist plan administrators in developing good governance policies such as Guideline No. 3 on Capital Accumulation Plans, Guideline No. 5 on Fund Holder Arrangements, Guideline No. 6 on Pension Plan Prudent Investment Practices, and Guideline No. 8 on Defined Contribution Pension Plans. For a link to all of CAPSA’s guidelines, click here.

Although the CAPSA guidelines are not legally binding, pension regulators and most (if not all) pension practitioners expect plan administrators to follow them as industry standard. For that reason, establishing a written pension governance policy that takes into account the principles from the guidelines, after consultation with legal counsel, is recommended.

So if you haven’t reviewed your pension governance structure lately, or you don’t have a pension governance policy, now is the time to take action. Doing so will help ensure your plan is administered in accordance with applicable legislation (including your fiduciary obligation), and help avoid potential claims and deficiencies in the event of pension plan examinations.

Pension Plan Governance Policies: Have You Reviewed Yours Lately?

July 1 Changes to AODA Customer Service Standards

Effective July 1, 2016, the Customer Service Standard Regulation will be revoked.  An expanded Integrated Accessibility Standards Regulation will include all standards, including customer service requirements.

Following public consultations, there are certain changes to the accessible customer service standard:

Training Required for ALL Employees 

The primary change is with respect to the extent of training required on accessible customer service.  As you will recall, training on accessible customer service has been required for employees and third parties who work with customers or who participate in developing your policies on accessible customer service.  As of July 1, 2016 all employees must be trained on accessible customer service, as well as any third parties who provide goods, services or facilities on your behalf to the public or participate in developing your policies (for example, a member of your board of directors).  While the government has been notifying organizations that the training must be completed by July 1, 2016, the Regulation states that the training must take place “as soon as practicable”.  Ongoing training is also required on any changes to the company’s policy.  All organizations with 50 or more employees must keep records of the training provided, including the dates of training and the number of people trained.  We advise sign-in sheets or on-line logs with names included.  In addition, all organizations with 50+ employees must prepare a document that describes the training policy, summarizes the content of the training, specifies when training is to be provided and, on request, provide a copy of this document to any person who so requests.

Expanded Definition of “Service Animal”

While this is unlikely to affect many customer service policies, the definition of a service animal has been expanded to include a number of ways in which the individual with the service animal can confirm that they need the service animal for reasons relating to a disability.  Documentation from a number of different regulated health professionals will be acceptable, including, for example, a member of the College of Psychologists of Ontario.

Support Persons

In the event that your organization has health and safety reasons  to require a person with a disability to be accompanied by a support person when on your premises, you must consult first with the person with the disability, consider the available evidence and make a determination that the support person is necessary and there is no other reasonable alternative.

Expanded Feedback Process

The feedback process that you have established under the Accessible Customer Service Standard to allow the public to comment on how you provide accessible customer service has been expanded.  The feedback process must be accessible to people with disabilities, and accessible formats and communication supports must be provided on request.  Organizations with 50 or more employees must prepare a document describing the feedback process, provide this document to anyone on request and include a notice on the premises and/or on the website (or any other reasonable method) that this document is available upon request.

Because the Regulation now defines a large organization as having 50 or more employees, a business with 20 to 49 employees is no longer legally required to have the accessible customer service policy in writing or to make it public.  However, it is advisable, in our view, to have the policy in writing in the event of any complaints or disputes.

Reporting Online

As a reminder, the Regulation sets out the following timetable for filing the online compliance report:

  • Government of Ontario – annually commencing December 31, 2013
  • Public sector organizations – every 2 years commencing December 31, 2013
  • Large organizations with 50 or more employees – every 3 years commencing December 31, 2014
  • Organizations with 20 to 49 employees – every 3 years commencing December 31, 2014, but only with respect to the accessibility standards for customer service
  • Organizations with 1 to 19 – no online compliance reporting is required.

The Ontario government is preparing a new training module, expected to be available in August 2016.  In the meantime, you can access a free customer service training module at: http://curriculum.org/sae-en/index2.php Just click on the “Start course” button.

July 1 Changes to AODA Customer Service Standards

A Reference Guide for Reference Letters

One of the more confusing issues that employers deal with is what to do in the face a request for a reference letter by a departing employee. While dealing with a reference letter for a stellar employee is easy, the task becomes more difficult when determining what to do with a request for a reference letter from an employee whom the employer was glad to see go or whom the employer was forced to dismiss.

A.  When should a reference letter be provided?

There are two reasons why an employer should think carefully before refusing to provide a letter of reference to a departing employee.

First, a reference letter generally assists a departing employee in finding new employment. As a result, on a practical level it is usually in the best interest of both the employer and the employee for the employer to provide a reference letter.

Second, in Canada the courts impose a duty of good faith and fair dealing in their treatment of departing employees. As part of this duty, employers are expected to be candid, reasonable and honest in dealing with departing employees. Where an employer breaches this duty, the employer may be held liable for damages to the employee that arise as a result of the breach.

One of the obligations that has been identified as part of the duty of good faith and fair dealing is for the employer to provide a letter of reference to a departing employee where there is no legitimate reason for refusing the request. For example, employers have been found to have breached their duties of good faith where the refusal to provide a letter of reference was calculated to purposefully make it harder for an employee to find new employment, to pressure the employee into settling a wrongful dismissal claim or to punish the employee. As a result, an employer must have a legitimate reason for refusing to provide a letter of reference. Where there are no specific performance issues and the employee was not terminated for cause, the safest course is to provide a letter of reference.

As a consequence, the better practice is to only refuse to provide a letter of reference in cases where the employer has a legitimate reason for the refusal, such as where the employee’s performance during employment was unsatisfactory.

B.  What should the reference letter say?

Reference letters can cover the range from a glowing endorsement, to a neutral confirmation of employment to a warning to prospective employers regarding a highly unsuitable employee. In order to know how to approach the reference letter, it is important to know something of potential liabilities.

For the most part the liability that arises out of authoring a reference letter is governed by the law of tort with liability focusing on two primary groups of potential claimants – the former employee and the new employer.

a) Liability Toward the Departing Employee

With respect to the former employee, claims will generally arise as a result of a negative reference letter that damages the former employee’s reputation or interferes with the former employee’s ability to find work and maintain employment. In order for liability to attach, the former employee will have to show that the letter materially affected his or her ability to find work and that the negative reference was either untruthful or misleading in some way. Common examples of such liability include:

  • Liability in defamation for statements made about the employee in a reference letter that are untrue and are damaging to the employee’s reputation;
  • Liability under the principles of interference with contractual relations or inducement of breach of contract where an untrue reference provided by the former employer causes the employee’s current employer to terminate the former employee’s employment. A common example of this would be where a former employer decides to unfairly “blackball” a former employee in a particular industry;
  • Liability in the form of increased exposure to damages in the case of a wrongfully dismissed employee where the employee is unable to find alternative employment as quickly as he or she may have otherwise found alternative employment due to a misleading or untruthful reference; and
  • Liability imposed as a result of a breach of the duty of good faith as a result of the employer providing a misleading or untruthful reference.

b) Liability Toward a Prospective Employer

In contrast to the liabilities that may arise with respect to former employees, the liability that may arise with respect to prospective employers is usually based on reference letters that are unjustifiably positive.

In general terms such liability arises out of the principles of negligent misrepresentation. Liability for negligent misrepresentation can arise where a prospective employer reasonably relies on a misleading positive reference from a former employer in making a hiring decision that goes very badly.

An example of such a situation might be where a former employer who has terminated an employee for theft proceeds to negligently provide a positive reference for the employee to a prospective employer for a position where the employee will be handling large sums of cash in an unsupervised position. Should the employee subsequently steal from his or her new employer, the former employer may be held at least partially liable for the loss.

c) Avoiding Problems

To avoid problems, there are a number of guidelines to follow.

  1. Make sure the information in your reference letters is accurate. Most if not all liability arises out of reference letters that are either misleading or untrue.
  2. Avoid subjective opinions and stick to objective facts.
  3. Do not use reference letters to “punish” a former employee or make it more difficult for the former employee to find alternate employment.
  4. Use caution in drafting negative reference letters. Negative reference letters should be reserved for the clearest of cases involving employee misconduct that is objectively verifiable and well documented. When in doubt, the employer should err on the side of caution and either refuse to provide a reference or in more marginal cases provide a neutral reference that merely provides confirmation of past employment without any comment on the employee’s suitability.

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A Reference Guide for Reference Letters

CPP Expansion

Retirement savings in this country has been a hot topic of late, and yesterday evening in Vancouver the federal government and (most of) the provinces announced that they have reached a deal to expand the Canada Pension Plan. The deal must be approved by July 15 of this year.

The proposed changes will roll out over seven years, beginning in 2019, and mean both a bigger benefit to retirees and bigger monthly contributions by employers and employees.

Under the current CPP, employers and employees each contribute 4.95% of income between $3,500 and $54,900. The proposed plan would see that annual pensionable income increase up to $82,700 by 2025. For example, contributions for a typical worker earning about $55,000 would initially increase by $7 a month in 2019, eventually increasing to $34 a month in 2025. Employers would match those contributions.

The current CPP replaces 25% of earnings up to $54,900, with a maximum CPP benefit of $13,110. The average annual payment is $7,974.84. The expanded CPP would aim to replace one third of income up to the new $82,700 ceiling. The maximum annual payout would increase by about one third to $17,478.

CPP reform requires the approval of the federal government and seven of the provinces containing two thirds of Canada’s population. All of the provinces except Manitoba and Quebec have signed on to the agreement announced yesterday. Quebec Finance Minister Carlos Leitao said he supported the agreement but that Quebec would be proposing an alternate version of the expansion in Quebec.

What about the ORPP?

Ontario’s Finance Minister, Charles Sousa, has announced that this new deal will signal the end of his government’s proposed Ontario Retirement Pension Plan.

What does this mean for you?

These changes raise many important issues for unionized and non-union employers across Canada. We will be providing further insights as things develop and more details become available. In the meantime, if you have any questions about what an expanded CPP means for you, please contact us.

CPP Expansion

Limiting Liability: Incentives and Benefits on Termination of Employment

You’ve terminated an employee without cause, what do you owe them? It may be more than you think.

As a starting position, employees are entitled to compensation for what they would have earned during a reasonable period of notice, unless that right is limited by specific agreement. This includes all elements of an employee’s compensation.

Employment agreements often set an agreed notice period in the event of without-cause termination, limiting the broad and unpredictable common law notice period to some other (presumably shorter) length of time, such as the minimum notice period under employment standards legislation. In any event, if the employer wants to provide payment in lieu of working notice, what must be paid?

Not all of an employee’s compensation is contained in the four corners of the employment agreement. The entitlements under any benefit or incentive plan (such as a bonus, stock option or registered pension plan) need to be accounted for when determining damages arising from termination without cause. For instance, what is the terminated employee’s entitlement to options that vest during the notice period? What about scheduled bonuses? Is an employee entitled to remain a member of the pension plan throughout any notice period?

The answer lies in the text of the relevant agreement, be it a stock option agreement, a particular stock option grant, a bonus plan, a pension plan or some other agreement. Just as with employment agreements, the terms of a benefit or incentive plan can limit an employee’s post-termination entitlement – including restricting participation to periods of active employment – but only to the extent that the plan terms are clear and unambiguous, and are brought to the employee’s attention when they are introduced. The general legal principles are:

  • An employee’s rights and obligations are generally governed by the terms of the agreement.
  • If an employee’s entitlement is limited, but the limiting language is ambiguous, a court will typically resolve the ambiguity in the employee’s favour. This is especially true if the agreement was imposed by the employer without negotiation.
  • If the agreement is unambiguous and clearly states that the employee’s rights are limited in a specific way, including on a dismissal without cause, the agreement should govern, as long as (1) the employee was provided with a copy of the plan and/or advised of the plan language during employment, such as through a benefit booklet; and (2) the plan otherwise complies with employment standards legislation.

So a plan/agreement may rebut the principle that the benefit continues during the common law notice period, as long as it clearly and unambiguously states that any right to participate in the plan ends on the later of (i) the day active employment ends (i.e., does not continue into the notice period); or (ii) the end of the minimum period during which benefits must be continued by legislation (for instance, Ontario’s Employment Standards Act, 2000 requires that employers maintain a terminated employee’s benefits during the statutory notice period).  In that case, the agreement will stand and plan participation will end accordingly. However, if the language of the plan is unclear, the employee will be entitled to any benefit that would have accrued during the notice period.

It is important to keep in mind that the threshold for clarity is high and can be difficult to meet in cases of termination without cause. For example, Canadian courts have, in certain circumstances, decided that the terms “termination for any cause” or “involuntary termination” were not sufficiently clear or unambiguous to prohibit continuation during the reasonable notice period, because it was not clear in the plan whether employment was “terminated” as of the last day of work, or at the end of the common law notice period.

If you are looking for clarity and predictability in settling severance packages, you should set clear and unambiguous parameters on notice periods and post-termination entitlements, not only in your employment agreements, but also in the documents that make up your benefits and incentive programs.

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Limiting Liability: Incentives and Benefits on Termination of Employment

The Final Word? The Ontario Court of Appeal upholds an astounding 10 years of back pay and employee reinstatement

Readers of this blog may recall reading in 2014 about the Ontario Divisional Court upholding the Ontario Human Rights Tribunal’s order for 10 years of back pay and employee reinstatement.  The decision was reached in the case of Hamilton-Wentworth District School Board v. Fair and can be read about in more detail here:  http://www.employmentandlabour.com/school-board-taught-a-costly-lesson-court-upholds-reinstatement-with-10-years-of-back-pay.

Not surprisingly, the Hamilton-Wentworth District School Board (“the “Board”) decided to appeal the Divisional Court’s decision and late last month, the Ontario Court of Appeal rendered its own decision on the same matter.  In doing so, it agreed with the Divisional Court on virtually every point, thereby upholding the astounding 2013 decision of the Human Rights Tribunal for 10 years of back pay, as well as employee reinstatement a decade after termination.

In summary, Ms. Fair was an employee with the Board who was on disability leave for about 3 years prior to being terminated.  At the time of termination she had sought a return to work but the employer refused to accommodate her into another position.  The standard of review on an appeal such as that before the Court of Appeal is one of “reasonableness” – namely, was the Tribunal’s decision reasonable?  Under that test, the Ontario Court of Appeal unanimously determined that the Human Rights Tribunal’s decision was reasonable with regard to the facts and law before it.

Although no new law was made by the Ontario Court of Appeal, it did reaffirm the law in areas that employers should pay particular heed to.  First, the Court confirmed that in order for an employer to fulfil its duty to accommodate an employee’s disability, the employer may be required in an appropriate case to place the disabled employee into a position for which he or she is qualified but not necessarily the most qualified.  Second, the Court confirmed that the passage of years is not determinative of whether reinstatement is an appropriate remedy; rather, context is key.  In this case, the evidence was that Ms. Fair’s relationship with the Board had not been fractured and the passage of time had not materially affected her capabilities, both of which led to the conclusion that reinstatement after a decade was not unreasonable.

Employers would do well to keep in mind the inherent uncertainties of litigation, the fact that the Human Rights Tribunal can order reinstatement, and the fact that a complaint which moves slowly through the system can ultimately increase the bottom line for an unsuccessful employer.  While not every case should necessarily be settled, Hamilton-Wentworth District School Board v. Fair is a good example of a case which became far more costly to the employer due to the passage of time.

The Ontario Court of Appeal’s decision in Hamilton-Wentworth District School Board v. Fair can be found here:  http://www.ontariocourts.ca/decisions/2016/2016ONCA0421.htm.

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The Final Word? The Ontario Court of Appeal upholds an astounding 10 years of back pay and employee reinstatement

Critical employment issues facing multinational employers

Join Dentons’ global Employment and Labour practice group for a unique, multi-country panel discussion examining critical employment issues that multinational employers face. The event will be held in person in our New York office and broadcast via webinar.

Agenda and speakers
Panels moderated by global practice leader Brian Cousin

Wednesday, June 29, 2016
3:45 p.m. – Registration
4:30 p.m. – Program
7 p.m. – Cocktail reception

Registration (3:45–4:30 p.m.)

Avoiding Violations of Employee Privacy Rights (4:30–5:20 p.m.) Neil Capobianco (US), Dante Trevedan (Mexico), Michael Bronstein (UK), Katell Deniel-Allioux (France), Markus Diepold (Germany), Grace Aoshuang Young (China), Jeff Mitchell (Canada)

Break (5:20–5:30 p.m.)

Implementing an Effective Restrictive Covenants Strategy (5:30–6:30 p.m) Richard Scharlat (US), Dante Trevedan (Mexico), Michael Bronstein (UK), Katell Deniel-Allioux (France), Markus Diepold (Germany), Grace Aoshuang Young (China), Jeff Mitchell (Canada)

Best Practices in Coordinating Global Human Resource Solutions (6:30–7 p.m.) Richard Scharlat (US), Katell Deniel-Allioux (France)

After the discussion, please stay for a networking cocktail reception.

Venue
Dentons
Tribeca conference room
1221 Avenue of the Americas
New York, NY | Map

Questions For more information, please contact Susan DeLeva at +1 212 398 8474.

Click here to RSVP

Critical employment issues facing multinational employers