1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar

Hot topics and recent developments in labour and employment law

Date and time: November 26, 2019

12 p.m. – 1 p.m. ET
10 a.m. – 11 a.m. MT
9 a.m. – 10 a.m. PT

This session is only available via webinar

LSBC: This session is registered for 1 hour of CPD credit with the Law Society of British Columbia.

LSO: This program is eligible for up to 1 Substantive Hour with the Law Society of Ontario.

Join us for a complimentary 1-hour webinar where we will highlight the changes you need to know about and identify the trends that we expect to affect your workplace in 2019.
Topics will include:

  • Managing Harassment Investigations under the OHSA: Requirements and Pitfalls
  • A Case Law Update on Sexual Harassment
  • Creating Enforceable Contracts: Consideration in the Employment Context

Please confirm your attendance by Thursday, November 21.



Please contact Carla Vasquez, Events Manager, at carla.vasquez@dentons.com or +1 416 361 2377.

Register now

Hot topics and recent developments in labour and employment law

“Communications and conduct” of employer’s lawyer regarding sexual harassment investigation were not privileged, could be referred to in Claim, court decides

Over the objections of a company’s employment lawyer, an Ontario court has permitted an employee to refer, in her Statement of Claim for constructive dismissal and bad faith, to the “communications and conduct” of the company’s lawyer in respect of a sexual harassment investigation.

The employee made sexual harassment and bullying allegations against a coworker. The employer investigated and concluded, without speaking with the employee, that the allegations were not substantiated. During this period, the employee was placed on a Performance Improvement Plan.

The employee eventually retained counsel who requested a severance package. The employer then also retained counsel. For a few months, the lawyers communicated by phone and correspondence. They discussed the investigation. The employee’s counsel urged the company to conduct a new or more thorough investigation, which the employer did. The employee then started her constructive dismissal lawsuit and included, in some paragraphs of her Statement of Claim, reference to some of counsel’s discussions and conduct.

The company moved to strike those paragraphs from the Statement of Claim on the basis that the discussions between counsel were “without prejudice” settlement discussions. The Master refused to strike the paragraphs. She held that the discussions and conduct of the company’s lawyer with respect to the harassment investigation did not relate to a “litigious dispute” but rather to the company’s statutory obligation under the Occupational Health and Safety Act to investigate the sexual harassment allegations. The sexual harassment investigation report itself was not privileged. Counsel’s conduct during the sexual harassment investigation was “highly relevant and both counsel must have understood its relevance should litigation ensue”. Finally, although the outcome of negotiations between counsel may have led to a severance settlement, and the employer’s lawyer told the employee’s lawyer that she wished to engage in without prejudice settlement discussions prior to sharing any information with him, the communications in relation to the investigation and the PIP were directly relevant to the employee’s claim for constructive dismissal and bad faith.

In the result, the communications between counsel regarding the sexual harassment investigation and the PIP were not “settlement privileged” and were not struck from the employee’s Statement of Claim.

Clayton v. SPS Commerce Canada Ltd., 2018 ONSC 5017 (CanLII)

“Communications and conduct” of employer’s lawyer regarding sexual harassment investigation were not privileged, could be referred to in Claim, court decides

Employee Jailed for Accepting Bribe

An employee of a drive test centre has been jailed for accepting a bribe from a driving instructor, who has also been jailed.

Harvey Aitchison worked as a driving examiner for DriveTest Centre, the agency that tests Ontario drivers, in Oakville. He accepted bribes from Cyril Julius Marques, who was the owner and driver instructor of a driving school, to guarantee that that Marques’ driving students passed their Ministry of Transportation road examination.

Marques would charge $450.00 to his driver students, $300.00 of which he would give to Aitchison.  Marques would keep the remaining $150.00.  The bribing came to light after Marques offered a DriveTest coordinator a pack of cigarettes if she assigned Aitchison to test his student.  The coordinator blew the whistle.  Aitchison resigned from his job.

Both Aitchison and Marques pleaded quilty to accepting a bribe, contrary to section 426(1)(a) of the Criminal Code. That section provides:

426 (1) Every one commits an offence who

(a) directly or indirectly, corruptly gives, offers or agrees to give or offer to an agent or to anyone for the benefit of the agent — or, being an agent, directly or indirectly, corruptly demands, accepts or offers or agrees to accept from any person, for themselves or another person — any reward, advantage or benefit of any kind as consideration for doing or not doing, or for having done or not done, any act relating to the affairs or business of the agent’s principal, or for showing or not showing favour or disfavour to any person with relation to the affairs or business of the agent’s principal

Aitchison claimed the he accepted the bribes out of frustration towards his employer; Marques said that his actions were caused by his financial problems and his wife’s health problems.

The court sentenced Aitchison, a 64-year-old man with no criminal record, to a jail term of 4 months to be followed by 2 years of probation. The court sentenced Marques, a 58-year-old man who also did not have a criminal record, to a jail term of 90 days, which he was permitted to serve intermittently given his employment status and his wife’s medical needs.  The court stated that their corrupt scheme was a breach of trust offence that put the public at real risk of harm: sending unqualified drivers onto the roads.  The court pointed out that, “Public corruption is of significant concern to the citizens of Canada and general deterrents and denunciation must be the dominant sentencing factors.”

While there is no indication in this decision that the employer was charged or implicated in this case, employers that knowingly permit employees to accept bribes could also be subject to prosecution under the Criminal Code: subsection 426(2) of the Criminal Code provides that, “Every one commits an offence who is knowingly privy to the commission of an offence under subsection (1)”.

R. v. Aitchison, 2013 ONCJ 74 (CanLII)


Employee Jailed for Accepting Bribe

Terminated Employee who signed Release Still Entitled to Accumulated Sick Leave Benefits

Employers are often concerned about whether terminated employees can claim entitlement to accumulated sick leave credits. This case shows how important it is to scrutinize every word in termination agreements; unclear language can come back to haunt the employer.

The employee had been employed for 29 years with the County of Haldimand and its predecessor municipalities. He was presented with and accepted a severance package. He signed a Release and in essence retired.

The severance agreement was incorporated into the Release and allowed for a claim for “usual retiree benefits.” The employee relied on that language to claim payment of accumulated sick leave pursuant to a section of the employer’s Policy Manual which stated:

“An employee hired prior March 12, 1981 and who has a minimum of five (5) years of continuous service will be entitled to a payment equal to the value of one-half (.5) of the balance of the employee’s accumulated sick leave credits to a maximum of one hundred thirty (130) days pay at current salary, upon termination of employment for any reason.”

At trial, judgment was awarded to the plaintiff for payment of accumulated sick leave credits. The employer appealed and argued that the severance agreement did not specifically give entitlement to sick leave credits, and the Release barred the employee’s lawsuit.

The court decided that the only “retiree benefit” that the employee had was the payment of accumulated sick leave pursuant to the Policy Manual. As such, the severance agreement’s reference to “retiree benefits” must mean the accumulated sick leave credits.

The court also held that the Release did not bar the claim because the severance agreement was incorporated into the Release.

Lastly, the court rejected the employer’s argument that the two-year limitation period started when the employee signed the severance agreement. Instead, because sick leave credits are part of retiree benefits, the court decided that the limitation period should begin May 31, 2008, the day when he “retired”.

Daniel John Burgener v. Corporation of Haldimand County, 2012 ONSC 5230

The author gratefully acknowledges the assistance of Simmy Yu in the writing of this article.


Terminated Employee who signed Release Still Entitled to Accumulated Sick Leave Benefits

Employee with “Anger Management Issues” was not Disabled

A police officer who “suffered from bad temper and anger management problems” but said he was able to perform his job duties, was not disabled under the Ontario Human Rights Code, an Ontario court has decided.

Because the employee had failed a “use of force test”, he was required to surrender his weapon.  His “temper erupted”.  Four police officers were called to a domestic incident later that day at his home.  He assaulted all four officers and threatened to kill two of them.  He was subdued with a taser.  He had abused alcohol and disclosed a twelve-year history of binge drinking.  A psychologist stated that the employee had work-induced post-traumatic stress disorder.

The court stated that is was “not aware of any jurisprudence which established that anger management issues will support a finding of disability.”

The court went on to say:

“Addiction arising from alcoholism and/or drug abuse or post traumatic stress disorder may amount to a disability within the meaning of the Code.  However, the onus on a person claiming a disability is to prove it. There was some evidence that the applicant was addicted to alcohol and some medically prescribed drugs. There was also some evidence that the applicant was suffering from post traumatic stress disorder.  However, there was no evidence that any of those conditions rendered him unable to perform any aspect of his job description.  Indeed, quite the opposite was claimed.  In submitting through his counsel that the appropriate penalty was simply a demotion, the applicant took the position that he was able to perform and carry out his essential employment duties.”

Because the employee was not disabled, the police service had no duty to accommodate him.

This case demonstrates that employees who request accommodation of a disability must prove the disability.  This employee, who claimed to be able to carry out his police duties, was not disabled and therefore was not entitled to accommodation under human rights legislation.

Gulick v. Ottawa Police Service, 2012 ONSC 5536 (CanLII)


Employee with “Anger Management Issues” was not Disabled

Terminated Employee Entitled to Profit Sharing Bonus Declared After Termination but During Employment Standards Notice Period

Employers often assert that a terminated employee is not entitled to a bonus for the termination year. A decision of an Ontario court may put a small qualification on that assertion. Employers should review their bonus policies in light of this decision.

The employer terminated the employee’s employment on May 25, 2010 on a without-cause basis. On June 18, 2010 – within the employee’s four-week Employment Standards Act notice period – the employer announced its profit sharing bonus for the recently-ended fiscal year and paid it out. The employer did not pay that bonus to the employee. The employee had been paid the bonus for her three previous years of employment. The bonus was a “very significant financial part of her overall compensation.”

Mr. Justice Ricchetti of the Ontario Superior Court of Justice held that section 61(1)(a) of the Employment Standards Act “permits the employer to terminate without notice but only if the employee receives what the employee would otherwise been entitled to receive from the employer under the terms and conditions of employment during the statutory notice.”

The judge held that under the employer’s bonus plan and practices, the decision as to whether to award profit sharing at all may have been discretionary, but once the bonus had been declared, the employer had no discretion to exclude a particular employee from entitlement. As such, all employees who were employed on June 18, 2010 were entitled to the profit sharing bonus. Because that date was within the employee’s four-week Employment Standards Act notice period, she was deemed to be “employed” at that time, and was thus entitled to the profit sharing bonus payment. An employer memo, issued a few months earlier, to the effect that only “active” employees were entitled to the bonus, did not override the statutory obligation to pay the bonus to the employee.

Sandhu v. Solutions 2 go Inc., 2012 ONSC 2073 (CanLII)


Terminated Employee Entitled to Profit Sharing Bonus Declared After Termination but During Employment Standards Notice Period

“Holder of a Religious Office” Exemption under Ontario ESA Interpreted

The Ontario Employment Standards Act excludes from its protection holders of a “religious office”. The Ontario Labour Relations Board has issued a decision interpreting this rarely-litigated provision.

The organization, the Kashruth Council, is a not-for-profit organization the main objective of which is to ensure the availability of Kosher food products through Kashruth (Jewish dietary laws) certification and supervision of food service production and manufacturing businesses.

To do this, the Kashruth Council engages Kosher food inspectors, referred to as “Mashgiachim”, to supervise hundreds of industrial food establishments. Rand was one such inspector.

A series of events resulted in the Kashruth Council issuing a letter to Rand advising that his “employment . . . is terminated effective immediately for just cause”. Rand filed a claim for amounts owing to him as an “employee” under the Employment Standards Act.

The OLRB found that the Mashgiach was a “religious position” which has “no duties which do not serve a religious purpose”. However, Rand did not hold a “religious office”.

The OLRB held that, “The essential feature of the holder of a political or religious office is independence. A person is elected or appointed to the office and then acts in that capacity with minimal oversight”. Also, the functions or work that the person performs must be significant or important to fulfill religious obligation or ritual. According to the OLRB, Rand was not independent. The council exercised employment control over him. Also, the manner in which the Kashruth Council carried out the termination suggested that Rand was subject to the Kashruth Council’s control, which pointed to an employment relationship. The Council even referred to him, in the termination letter, as an “employee”.

One wonders whether the OLRB’s “independence” test is correct. It would seem that the test should be whether the person holds an “office” that is “religious”; independence does not seem to be a hallmark of either of those two factors.  The exemption would appear to have been intended to exclude, from the protection provided to “employees”, people who are not seen, and do not see themselves, as employees, but rather as in a spiritual or religious position. It remains to be seen whether future panels of the OLRB will apply the same test.

Kashruth Council of Canada v. Rand, 2011 CanLII 71786 (OLRB)


“Holder of a Religious Office” Exemption under Ontario ESA Interpreted

“The Next Element to Attack is Fire”: Employee Properly Dismissed for Threatening / Intimidating Statement

This article originally appeared on www.occupationalhealthandsafetylaw.com.

An Ontario arbitrator has upheld the discharge of a “modern day prophet” who stated, “the first element to attack is water – the next is fire” after being told that she was suspended for five days.

The employer had issued the five-day suspension to the employee for carelessly packing defective product.  The employee asked to speak with the plant manager, and then made the water-fire statement.  Her statement had particular poignancy because of a serious flood at the facility approximately one year earlier.

The employer discharged the employee.  The union grieved.  At the arbitration hearing, the employee testified that “there was too much wickedness in the plant” and that the manager’s disciplinary decisions had been wicked and unreasonable.  She stated that she was a religious person and that she believed that bad things happen to wicked people.  She also said that she had no intention of starting any fires and did not intend any threat.  She refused to apologize.

Arbitrator Norman Jesin referred to Bill 168 which added workplace violence provisions to the Ontario Occupational Health and Safety Act.  He decided that the employer had just cause to discharge the employee.  Even if the water-fire statement was not a threat, it was made in a loud and aggressive manner and was an attempt to intimidate the plant manager into reconsidering the five-day suspension.  The arbitrator stated that, “The grievor would have me believe that she is a modern day prophet simply issuing a warning for the benefit” of the plant manager. “But I have no doubt that the comments were designed to scare [the manager] into rescinding the suspension.”

In light of the employee’s disciplinary record (a previous one-day and three-day suspension), and particularly in light of the employee’s failure to show any remorse, the arbitrator upheld the termination.

This decision is part of what appears to be a trend towards arbitrators taking a hard line on threats of violence (see a previous blog post on this issue here).

U.S.W. v. Plastipak Industries Inc., 2012 CarswellOnt 7659 (Ontario Arbitrator)


“The Next Element to Attack is Fire”: Employee Properly Dismissed for Threatening / Intimidating Statement

Employer’s Response to ESA Claim Cannot Form Basis for Defamation Action: Ontario Court

Employers faced with an Employment Standards Act complaint may air the employee’s dirty laundry, so to speak, in that proceeding without fearing a defamation lawsuit, an Ontario court decision suggests.

Justice E.M. Morgan of the Ontario Superior Court decided that allegations made by an employer to an Employment Standards Officer in response to an employee’s Employment Standards Act complaint were protected by “absolute privilege”, so that the employee’s defamation suit was dismissed.

The employee had filed a complaint with the Ontario Ministry of Labour claiming that the employer failed to pay public holiday pay and overtime pay.  The Employment Standards Officer ordered that the employer pay compensation, which the employer did.

The employee had then filed a defamation suit in the courts, claiming that allegations of fraud and dishonesty were made by the employer to the Employment Standards Officer during the ESA proceeding which were injurious to the employee’s emotional and psychological health.

Justice Morgan noted that statements made in the course of a proceeding in court or before a board or tribunal (including before an Employment Standards Officer), were absolutely privileged, meaning that those statements cannot be the basis for a defamation lawsuit.

Employers, when faced with a legal claim by an employee before the courts or a tribunal, may state their position – and the employee’s shortcomings – frankly and directly in that proceeding, without attracting liability for defamation.  Statements made outside such proceedings, however, may attract liability.

Satkunan v. Gnanatheepam et al., 2012 ONSC 4654 (CanLII)


Employer’s Response to ESA Claim Cannot Form Basis for Defamation Action: Ontario Court

Boss’s “Stern Talk”, “No Nonsense” Style did Not Cause Constructive Dismissal

An Ontario judge has decided that an employee who resigned due to her boss’s stern talk and businesslike management style was not constructively dismissed.  This will be a welcome decision to employers.

The employee, who worked for a travel agency, went off work on a “stress leave”.  When she returned to work, she presented the owners with 17 “expectations” that she wanted met upon her return to work.  The expectations include having a “comfortable, even temperature in the office”, “even distribution of workload”, “no more derogatory comments or putdowns about my work or my personal appearance”, and “a little more relaxed atmosphere in the office”. She also complained that company uniforms were “funereal”.

Mr. Justice James Wilcox decided that the employee had not been constructively dismissed.  While the employee had complained about being “yelled” at, the plaintiff’s in-court demonstration of her boss’s “yelling” showed that it was “not particularly loud, falling well short of a yell” and was more “tone” than volume and was “more in the nature of stern talk”.

Justice Wilcox stated,

“I accept that the defendant’s is a busy office and there are pressures of deadlines and volumes to contend with.  In addition, [the boss’s] personality and management style might not be to everyone’s liking.  She had expectations of the staff and made them known.  There is definitely an edge to how she comports herself, which she would describe as ‘no nonsense’.  Clearly, it would be uncomfortable to be on the wrong side of her.  On the other hand, her testimony about purchasing clothes or personal services for the staff, for example, reveals another dimension of her, as does a comment recorded by Dr. Beck after the plaintiff had returned from stress leave as follows: ‘Her boss seems to be making some effort to try and accommodate her.'”

Finally, Justice Wilcox noted that the job was inherently stressful, and the plaintiff had other non-work related problems including financial challenges and pre-existing health conditions.  The employee’s personal conclusion that she needed to quit her job was not relevant; objectively speaking, she was not constructively dismissed.

Chartrand v. R.W. Travel Limited, 2011 ONSC 2148 (CanLII)


Boss’s “Stern Talk”, “No Nonsense” Style did Not Cause Constructive Dismissal