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“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

Will your workplace drug policies and procedures go up in smoke? Recreational marijuana becomes legalized in Canada in October 2018

The hype around the legalization of marijuana in Canada is becoming a reality. On June 20, 2018, Prime Minister Trudeau announced the legalization of recreational marijuana effective October 17, 2018, making Canada the first G7 country to legalize marijuana for recreational use. According to Health Canada, the use of marijuana in Canada has increased in recent years.

While the legalization of marijuana has been highly anticipated, employers must ensure that they are prepared for the transition. This involves examining workplace policies to address the use and influence on workers of recreational marijuana in the workplace.

This leads to important questions: do employees now have an absolute right to use marijuana in the workplace, and are employers bound to let them do so?

The Human Rights Tribunal of Ontario (HRTO) rendered a decision earlier this year regarding the use of medical marijuana in the workplace, in the case of Aitchison v L & L Painting and Decorating Ltd.  Mr. Aitchison worked as a seasonal painter of high-rise buildings, and used marijuana to help cope with this chronic neck and back pain, but never raised the issue of accommodation with his employer. In June 2015, Mr. Aitchison was working on a high-rise building and was observed smoking marijuana on a swing set at the 37th floor. Mr. Aitchison was subsequently dismissed for breaching the employer’s “zero tolerance” smoking policy. Mr. Aitchison contested the termination on the grounds of the employer’s unwillingness to accommodate. There were a number of considerations that weighed in favour of the employer, which were crucial to the decision. The HRTO decided that Mr. Aitchison would never have been prescribed medical marijuana for use at work had his treating physician been aware of the safety-sensitive nature of his job. Moreover, accommodating Mr. Aitchison would have placed an undue hardship on the employer given the safety-sensitive nature of the work he performed. Finally, Mr. Aitchison was aware of the zero-tolerance policy when he breached it. The Tribunal therefore held that the workplace policy was reasonable and non-discriminatory.

The decision confirmed that employees do not have an absolute right to use marijuana, medical or otherwise, in the workplace, and employers still have the right to implement policies, so long as they consider their duties regarding accommodation under the Ontario Human Rights Code.

The legalization of recreational marijuana will not give employees the right to freely use marijuana in the workplace or to be under its influence. Employees are still expected to show up to work sober and to be able to safely complete their assigned tasks.  Where the use of marijuana has an adverse impact on job performance, employees may still be subject to disciplinary measures.

Want to know more? Please feel free to contact Matthew Curtis or any other team member in our Labour and Employment group.

This article was co-authored by Daniela Acevedo, a summer student in the Toronto office.

Will your workplace drug policies and procedures go up in smoke? Recreational marijuana becomes legalized in Canada in October 2018