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WSIB’s New Rate Framework For Employers

Following policy consultations that took place from August 14, 2017 to January 15, 2018, the Workplace Safety and Insurance Board (WSIB or the Board) announced its new rate framework for employers. This framework will replace current WSIB policies on classification structure, rate setting, and retroactive experience rating on January 1, 2020. As such, employers should take note that there may be a change to how their business is classified and how premium rates are set as of January 1, 2020.

The new framework introduces six (6) core policies to replace the current thirteen (13) that make up the present system.  Notably, the new Employer Level Premium Rate Setting policy replaces current policies on the Merit Adjustment Premium Program, the Construction Industry Plan, and the New Experimental Experience Rating Plan (NEER). In preparing for the new system, employers should note that the severity of workplace accidents (as affected by the length of time that injured employees spend away from work) will become increasingly important for setting premium rates.

According to the Board, the new framework will be simpler and much easier for employers to understand. Additionally, the Board states that the new framework promises predictability and a more accurate reflection of the level of risk that individual employers and industries bring to the system. Under the new model, the WSIB limits an employer’s potential rate increase to a maximum of three risk bands per year. Employers will also be able to access their projected premium rates for future years. Additionally, the rate setting window used to set premium rates has been extended from three (3) or four (4) years to six (6) years. This change will reduce the impact that a single year has on an employer’s premium rate.

Every business registered with the WSIB should receive a letter about premium rates under the new framework later this year. More information on the upcoming rate framework changes can be found here.

Also co-authored by Jessica Hardy-Henry.

WSIB’s New Rate Framework For Employers

A Rose by Any Other Name is Not as Sweet: When a Non-Solicit is Actually a Non-Compete

The Ontario Court of Appeal has held that the words “accept business”, in what the employer intended to be a non-solicitation clause, served to restrict competition and is therefore not merely a non-solicitation clause.

In this case, the personal defendant, Mary Murphy, was employed by the plaintiff Donaldson Travel Inc. (“DTI”) as a travel agent from October 2004 to April 2007 and then again from June 2007 to February 3, 2012, when she resigned from that employment. On February 6, 2012, Ms. Murphy commenced employment as a travel agent with the defendant, Goliger’s TravelPlus (“Goliger’s”).

Following Ms. Murphy’s resignation, DTI brought claims of breach of contract, misappropriation of confidential information, inducing breach of contract and interference with contractual relations against Ms. Murphy, Goliger’s and its President and director. Its claims were dismissed on a summary judgment motion, and DTI appealed to the Court of Appeal.

One of the issues on appeal was whether the motion judge erred in finding that the restrictive covenant in Ms. Murphy’s contract with DTI was in fact a non-competition clause rather than a non-solicitation clause, and therefore that it was unreasonable and unenforceable.

The clause at issue stated:

Mary agrees that in the event of termination or resignation that she will not solicit or accept business from any corporate accounts or customers that are serviced by Uniglobe Donaldson Travel, directly, or indirectly.

The Court of Appeal agreed with the motion judge that, based primarily on the language “or accept business”, the restrictive covenant did in fact restrict competition and was therefore a non-competition clause. Further, the Court of Appeal held that since this non-competition clause contained no temporal limitation, there was no basis on which to interfere with the motion judge’s conclusion that the clause was unreasonable and therefore unenforceable.

DTI’s appeal was dismissed with costs of $7,500.00 awarded to each defendant.

The key takeaway from this case is to ensure that the language of restrictive covenants is carefully chosen, so as to avoid inadvertently going beyond what is considered sufficient in the circumstances (in this case a non-solicitation clause) to protect an employer’s proprietary interest.

The Court of Appeal’s decision in Donaldson Travel Inc. v. Murphy, 2016 ONCA 649 (CanLII) can be found here:  https://www.canlii.org/en/on/onca/doc/2016/2016onca649/2016onca649.html.

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A Rose by Any Other Name is Not as Sweet: When a Non-Solicit is Actually a Non-Compete

Join Us for a Legal Update at Dentons’ June 10th employment law seminar in Toronto

Dentons will be providing a complimentary half-day employment law seminar in Toronto on Friday, June 10th.  You are welcome to join us.

Presentations at the seminar will be as follows:

  • Recent OHS Cases of Interest”, presented by Adrian Miedema
  • “Workplace confidential: How to maintain privilege over workplace investigations”, presented by Andy Pushalik and Rahim Punjani
  • “Bill 132: Ontario’s new sexual violence and harassment legislation – what employers need to know”, presented by Sabrina Serino
  • “To compete or not to compete? Tips and traps when drafting restrictive covenants”, presented by Jeff Mitchell and Chelsea Rasmussen
  • “How to support transgender employees”, presented by Anneli LeGault
  • “You tweeted what?!: Tips on effectively managing social media in the workplace”, presented by Matthew Curtis and Saba Zia
  • “Covering your assets: Common employer liabilities and best practices for managing HR risk”, presented by Blair McCreadie and Carmen Francis
  • “Do you sponsor a Group RRSP or defined contribution pension plan? Beware of “estimates” that your provider wants to give your employees”, presented by Mary Picard and Aiwen Xu

Date & Time Friday, June 10, 2016 Registration and breakfast:  8:30-9:00 a.m. Welcome remarks and special guest speaker:  9:00-9:30 a.m. Breakout sessions:  9:45-12:15 p.m. Lunch and special guest speaker:  12:15 p.m.

Location Dentons Canada LLP 77 King Street West 5th Floor Toronto, ON

Click here to RSVP

Contact Please contact toronto.events@dentons.com for any questions.

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Join Us for a Legal Update at Dentons’ June 10th employment law seminar in Toronto

Sexist Comments in Blog Post by Union President not Discrimination “With Respect to Employment”

In Taylor-Baptiste v. Ontario Public Service Employees Union, the Ontario Court of Appeal was faced with the question of whether sexist and offensive posts on a blog created by a union member to discuss workplace issues amounted to discrimination “with respect to employment” contrary to s. 5(1) of the Human Rights Code (the “Code”).

The appellant, Mariann Taylor-Baptiste and the individual respondent, Jeff Dvorak, both worked at the Toronto Jail. Ms. Taylor-Baptiste was Mr. Dvorak’s manager, and Mr. Dvorak was the president of the jail’s local branch of the respondent union, the Ontario Public Service Employees Union (“OPSEU”). Mr. Dvorak operated a blog about union matters. During a period of labour unrest in early 2009, Mr. Dvorak authored a blog post, and approved the posting of a comment written by another worker, that accused Ms. Taylor-Baptiste of, among other things, nepotism (suggesting she only obtained her position because of her relationship with her boyfriend) and incompetence. Ms. Taylor-Baptiste brought an application to the Human Rights Tribunal (the “Tribunal”), alleging discrimination “with respect to employment” contrary to s. 5(1) of the Code and harassment “in the workplace” contrary to s. 5(2) of the Code.

The Tribunal found that although postings on blogs can form part of or an extension of the workplace and the postings were sexist and offensive, these particular blog posts did not amount to harassment “in the workplace” contrary to s. 5(2) of the Code. This finding was not challenged on appeal to the Court of Appeal. With respect to the allegation of discrimination “with respect to employment”, the Tribunal considered that the comments were made by Mr. Dvorak “in the course of his duties as a … union president”, and therefore his comments enjoyed the protection of the rights of freedom of expression and freedom of association guaranteed by ss. 2(b) and (d) of the Canadian Charter of Rights and Freedom (the “Charter”). As a result, the Tribunal found that the blog posts did not contravene either section of the Code. At the request of Ms. Taylor-Baptiste, the Tribunal reconsidered its decision and upheld the initial decision.

The Divisional Court dismissed Ms. Taylor-Baptiste’s application for judicial review, holding that the Tribunal’s decision was reasonable.

Ms. Taylor-Baptiste appealed to the Court of Appeal. The Court of Appeal considered whether the Divisional Court properly applied the reasonableness standard to the Tribunal’s decision that the blog posts did not infringe her right to equal treatment “with respect to employment” without discrimination under s. 5(1) of the Code.

The Court of Appeal found that the Tribunal was entitled to take into account Charter values within its scope of expertise, and that interpreting the meaning of the words “with respect to employment” in s. 5(1) of the Code fell within the very core of the Tribunal’s expertise. The Court of Appeal also found that the Tribunal properly identified freedom of expression and freedom of association as relevant Charter rights in regard to the circumstances of this case. Section 2(b) of the Charter (freedom of expression) protects a broad range of expressive activity, including “distasteful” expression, so long as it does not reach the point of violent expression or is not, for example, hate speech. Freedom of association, on the other hand, was relevant because the blog posts dealt with union-management relations and were related to union issues, notwithstanding the sexist language. [In fact, the Supreme Court has held that expressive activity in the labour context is directly related to the Charter-protected right of workers to associate to further workplace goals under s. 2(d) of the Charter.]

The Court of Appeal then considered whether the Tribunal properly balanced the relevant Charter values with the objective of the Code. The Court of Appeal found that the Tribunal appropriately balanced the statutory objective of protecting of Ms. Taylor-Baptiste from a poisoned work environment against the Charter rights of freedom of expression and freedom of association. Based on the foregoing reasons, the Court of Appeal concluded that the Tribunal’s decision was reasonable, and upheld the dismissal of Ms. Taylor-Baptiste’s Application.

The implications of this decision remain to be seen, but it is important to note that the Court of Appeal was careful to state that its decision applied only to the facts at hand, and that it was not creating a “blanket exemption” protecting all forms of union speech from the requirements of s. 5 of the Code.

 

Human Rights Tribunal of Ontario: Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 HRTO 1393 (CanLII).

Human Rights Tribunal of Ontario (Reconsideration Decision): Taylor-Baptiste v. Ontario Public Service Employees Union, 2013 HRTO 180 (CanLII).

Divisional Court: Taylor-Baptiste v. O.P.S.E.U., 2014 ONSC 2169 (CanLII).

Court of Appeal: Taylor-Baptiste v. Ontario Public Service Employees Union, 2015 ONCA 495 (CanLII).

Sexist Comments in Blog Post by Union President not Discrimination “With Respect to Employment”

20-Day Jail Sentence for Employee who Released Employer’s Confidential Information in Breach of Court Order

A former employee received a 20-day jail sentence after she flagrantly disregarded a court order by disclosing the plaintiffs’ confidential business methods and disparaging their business reputation.

Background

In July 2013, Ceridian entered into an agreement with Pendylum Inc. (“Pendylum”) to assist in the delivery of services to Ceridian’s customers. Under the terms of its agreement with Pendylum, Ceridian required that all of Pendylum’s subcontractors, including the Defendant, submit to a background check.  The Defendant refused.  As a result, Pendylum terminated the Defendant’s contract.

Following her dismissal, the Defendant embarked on an email campaign with Pendylum and Ceridian that culminated in threats and conduct akin to extortion.  In November 2013, the Defendant sent a letter to Ceridian advising that unless she received the sum of $23.2 million, she would disclose confidential information relating to the Plaintiffs’ business and their customers.  The Defendant subsequently reduced her demand to $500,000.00. On April 24, 2014, the Defendant sent another letter to Ceridian, in which she threatened to circulate a “press release” on May 12, 2014 containing the Plaintiff’s confidential information to “every press agency and HR and payroll agency across Canada and the U.S.”.  By letter dated May 8, 2014, the Defendant repeated her threat of disclosing her “press release” on May 12, 2014.

In response to the Defendant’s threats, the Plaintiffs brought an ex parte motion for, amongst other things, an interim injunction. The Court granted a five-day interim injunction prohibiting the Defendant from publishing the press release. Although the Defendant had knowledge of the court order, she disregarded the order and proceeded to issue the press release, which was widely disseminated on the internet by numerous news outlets.

The Finding of Contempt

The Court concluded that the Defendant knowingly and deliberately breached the court order by:

  1. releasing the enjoined document to press agencies;
  2. making absolutely no effort to stop the public release despite the pleas and offers of assistance from the Plaintiffs; and
  3. failing to provide the Plaintiffs with the list of persons to whom she had disclosed the confidential information.

The Court noted that if the Defendant disagreed with the court order, then the proper route would have been for her to challenge it by appeal or by another proceeding before the courts, not by ignoring its terms.

The Sentence

When considering the appropriate sentence for the Defendant’s non-compliance, the Judge commented that in his nine years as a judge he had “never encountered a more defiant or less remorseful Defendant”.  The Court found that the Defendant was deserving of significant sanction for, inter alia, the following reasons:

  • The Defendant knowingly and deliberately breached the court order, which can be evidenced by the emails that she exchanged with the Plaintiffs’ counsel in which she wrote “the court order has no effect” and “[the judge] cannot violate my right to free speech.”
  • The Defendant took no steps to retract the press release even after she was aware of the court order.
  • The Defendant continued to attempt to extort a settlement even after she had knowledge of the court order.
  • The Defendant continued to refuse to provide a list of the persons to whom the press release/confidential information had been disclosed.
  • There was uncontroverted evidence that the Plaintiffs may sustain significant harm as a result of the press release, which may have an impact on the Ceridian’s business and position in a competitive market.

Based on the foregoing, the Court found the Defendant’s breach of the order to be serious and continuing.  Moreover, the Court found no mitigating factors – the Defendant did not show remorse; she did not apologize; she made no attempt to purge the contempt; she made no effort to stop the press release when she had days to do so; and she refused to provide the names of persons to whom the confidential information was disclosed.  Furthermore, at the sentencing hearing she continued to argue that: this is nothing more than a defamation case; the order should never have been issued; the order was not breached; and that the Court and counsel have “colluded.”

The Court determined that a fine was an inappropriate sanction on the facts of this case.  The Defendant was a single mother and the costs awards to date, totaling approximately $27,500, had not been paid and the Court accepted would probably never be paid.

Typically, incarceration for civil contempt is a sanction of last resort.  However, the Court held that where the “the administration of justice has been flouted or ignored in public, imprisonment may be necessary for the court to send a clear a message that society as a whole disapproves of anyone who deliberately disobeys a court order”. The Defendant was sentenced 20 days in jail, to be served intermittently over five weekends so as not to jeopardize her employment income as the sole provider for her family.

Ceridian Canada Ltd. v. Azeezodeen, 2014 ONSC 4162 (CanLII)

20-Day Jail Sentence for Employee who Released Employer’s Confidential Information in Breach of Court Order

Criminal Sentence for Unauthorized Access of Former Co-Worker’s E-mail Reduced on Appeal

A terminated employee was convicted of “Mischief to Data” and “Unauthorized use of a Computer” contrary to the Criminal Code after he remotely accessed a former co-worker’s e-mail without her authorization and forwarded several e-mails to his personal account. In this recent appeal decision, the Summary Conviction Appeal Court reduced the terminated employee’s sentence to a conditional discharge after taking into consideration, among other things, the potential impact of a criminal conviction on his current and potential employment opportunities.

In R. v. Charania, the appellant was terminated from his employment as the Director of Care at a nursing home. Later that same evening, the appellant used the username and password of Ms. Caven, the Human Resources Coordinator at the nursing home, to remotely access her e-mail. Once in her e-mail, the appellant forwarded several e-mails relating to their meeting and his employment to his personal e-mail account. At the same time, Ms. Caven was also attempting to remotely access her e-mail using her username and password. She was repeatedly denied access and eventually locked out of the system, which led to a complaint to IT, and subsequently, to an investigation by the nursing home and the police.

Contrary to the appellant’s claim, Ms. Caven denied providing the appellant with her username and password. Based on the totality of the evidence, the trial judge found the appellant guilty of the offences charged. She conditionally stayed one count and on the other count sentenced the employee to a fine of $1,300.00 and placed him on probation for 18 months with terms including restitution. The appellant appealed his sentence.

The Summary Conviction Appeal Court found that the trial judge committed an error by considering the appellant’s defence as an aggravating factor and again when considering the viability of a conditional discharge. In considering whether to vary the sentence imposed by the trial judge, the court stated that the potential impact of a criminal conviction on the offender’s current and potential employment opportunities is a relevant consideration in deciding between a criminal conviction and a conditional discharge. The court went on to consider that the appellant was a first time offender with no prior criminal record. He had a Bachelor of Science in Nursing, with a minor in healthcare administration and was studying for his Master’s degree. Prior to these offences he had a solid employment history and had contributed to the community through volunteer work. Further, as a registered nurse the appellant was facing additional consequences for his conduct as a result of disciplinary proceedings by the College of Nurses of Ontario.

Ultimately, the Summary Conviction Appeal Court held that, in these particular circumstances, a conditional discharge would neither be contrary to the public interest nor would be inconsistent with the fundamental purpose and principles of sentencing in the Criminal Code.

R. v. Charania, 2014 ONSC 1695

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Criminal Sentence for Unauthorized Access of Former Co-Worker’s E-mail Reduced on Appeal

Direct Evidence of Discrimination not Required: Ontario Human Rights Tribunal

Direct evidence of discrimination is not required for an employee to succeed before the Human Rights Tribunal of Ontario, the Tribunal has decided.  The decision provides guidance as to what evidence is required to prove discrimination.

In Islam v. Big Inc., 2013 HRTO 2009, the Human Rights Tribunal of Ontario ordered a Toronto restaurant to pay nearly $100,000 in damages to three former kitchen employees.

The former employees alleged discrimination in employment contrary to the Ontario Human Rights Code after their employment ended (two of the employees were dismissed while the third quit). The applicants were immigrants from Bangladesh who spoke Bengali and were practising Muslims. They alleged discrimination by their employer on the grounds of race, colour, ancestry, place of origin, ethnic origin and creed. Their complaints included allegations that the owners mocked them when they spoke Bengali, implemented an “English in the kitchen” rule, insisted that two of the employees taste pork even though it was against their religious beliefs, and forced one worker to taste the food he was preparing while he was fasting during Ramadan.

In its decision, the Tribunal discusses what evidence is required to prove discrimination:

Direct evidence of discrimination, such as testimony from a witness to discriminatory conduct, is not necessary to establish a breach of the Code. The applicant may rely on circumstantial evidence, which may include evidence of actions or omissions on the part of the respondent that raise inferences that a Code provision has been breached. The inference drawn need not be inconsistent with any other rational explanation to provide evidence of discrimination. Rather, it must be reasonable and more probable than not, based on all the evidence, and more probable than the explanation offered by the respondent. Evidence must always be sufficiently clear, convincing and cogent to satisfy the “balance of probabilities” test stated by the Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53 (CanLII).

In this case, the parties disagreed as to whether many of the alleged incidents had occurred at all. The Tribunal held that “finding that it is more probable than not that a contested event occurred or did not occur is not the same as finding that any particular witness is not speaking the truth”. There is a difference between credibility (i.e. a willingness to speak the truth as the witness believes it to be) and reliability (i.e. the actual accuracy of the witness’s testimony). The Tribunal outlined the following factors to be considered in appraising reliability and credibility of witnesses:

  • The internal consistency or inconsistency of evidence;
  • The witness’s ability and/or capacity to apprehend and recollect;
  • The witness’s opportunity and/or inclination to tailor evidence;
  • The witness’s opportunity and/or inclination to embellish evidence;
  • The existence of corroborative and/or confirmatory evidence;
  • The motives of the witnesses and/or their relationship with the parties;
  • The failure to call or produce material evidence.

Despite the fact that the Tribunal found “[t]here is little uncontested or objectively verifiable evidence available to guide [it] in making findings of fact”, the Tribunal ordered the respondent to pay to the three applicants close to $28,000, plus interest, to compensate for loss of income. In addition, the Tribunal awarded damages to the three employees, in the amounts of $37,000, $22,000 and $12,000 respectively, to compensate for violations of the inherent right to be free from discrimination, and for injury to dignity, feelings and self-respect, including the continuing stress caused by failure to investigate his complaints of discrimination.

Islam v. Big Inc., 2013 HRTO 2009

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Direct Evidence of Discrimination not Required: Ontario Human Rights Tribunal