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WORKPLACE INVESTIGATION AND CHARTER RIGHTS
The police were not required to obtain the accused’s consent before proceeding with an investigation nor were the police required to have the accused present during its inspection or testing of physical evidence. … Rather, the police were required to preserve the vehicle and its contents for testing or examination by the accused. Therefore, it would not be reasonable to provide the subjects of an OHSA investigation with Charter rights extending beyond those provided to the subjects of a criminal investigation. Requiring the knowledge, consent, and indeed, the presence of the person under investigation, could not only interfere with and delay timely investigations, it could also endanger the very workers and the public the legislation was meant to protect.
read morePOLICY REQUIRING MANDATORY VACCINATION NOT CONTRARY TO CHARTER – NO INJUNCTION
The applicants have failed to establish a strong prima facie case, which as I have found they must do here in order to succeed on the first prong of RJR.
With respect to irreparable harm, the evidence shows that the harms the applicants allege – diminishing memory of their courses, emotional distress, and earning a lower income while waiting to complete their courses – are exaggerated or misstated, are in large measure self‑made, and are not in any event irreparable in that they are quantifiable in monetary terms or can be cured.
In Sinai Health, Akbarali J. held that the balance of convenience and particularly the public interest weighed in favour of maintaining a mandatory vaccination policy and against the request for an injunction. Her Honour noted the medical evidence that the vaccines provide “a higher level of protection than regular antigen testing would afford” and accepted TTC’s evidence that based on “its experience, and the best scientific and public health information available …it would face greater risk to the health and safety of its workforce and its riders if it is required to permit unvaccinated employees to continue to attend the workplace”. Akbarali J. found, and I agree (substituting Seneca for the TTC), that by acting in compliance with public health guidance, TTC conducted itself in a fashion which the Court must assume is “in the public interest, especially in a pandemic”: at para. 107.
COVID CASE – Alberta Queen’s Bench – UNPAID LEAVE OF ABSENCE DUE TO MANDATORY MASK POLICY IS NOT CONSTRUCTIVE DISMISSAL
In Benke v. Loblaw Companies Limited, 2022 ABQB 461, the Alberta Court of Queen’s Bench, handed down July 5, 2022, ruled that a former employee, the plaintiff, who had a received work absence certificate from his doctor to the effect that he was unable to wear face mask as per City’s mask by-law due to illness. The employee had worked for the employer for some 18 years. The defendant employer later adopted mandatory mask policy that applied to all its stores in Canada. The employee sought an exemption based on a form completed by doctor that had check mark beside statement “is unable to wear a face mask” but words “due to the following medical condition/s or disabilities” were crossed out. The employer placed the employee on indefinite unpaid leave because he refused to wear mask in stores without medical justification and thereby did not comply with mask by-law and mask policy. The former employee brought action for wrongful (constructive) dismissal seeking damages in lieu of notice. The Court dismissed the action following a summary trial.
read moreSURREPTITIOUS RECORDINGS IN THE WORKPLACE – CAUSE FOR DISMISSAL
On the plaintiff side, the issue of surreptitious recordings comes up often. In support of their grievances or concerns, employees sometimes turn to surreptitious recording conversations, meetings and other events in the workplace. The modern cell phone is a useful and readily accessible tool. Aside from the difficulties, often garbled and unintelligible information – who’s who? saying what – the costs of proper transcription, reliability, authenticity and verification etc., there are certainly ethical issues in such conduct. In this case, the Court concluded that such conduct justified the termination of the employee. The employee was a professional (CPA), in a senior position, who, as well, was bound by professional standards of his profession. Whether it applies more broadly remains to be seen.
In Shalagin v Mercer Celgar Limited Partnership, the plaintiff, a CPA, commenced employment with the employer as a financial analyst in January 2010. He was later promoted to senior analyst. There was no written contract governing his employment relationship. However, the plaintiff agrees that he was bound by Mercer’s policies including: a Code of Business Conduct and Ethics; and a confidentiality policy. He also agreed that he was bound by CPA’s Code of Conduct. In March 2020, he was terminated without cause after a disagreement about discrimination and the 2019 bonus.
Moore test applies to alleged discrimination in family status cases
The Alberta Court of Appeal concluded that “the Supreme Court of Canada mandates that it is at the later justification stage, after prima facie discrimination has been established, that the onus shifts to the employer to show alternative approaches were investigated, and the prima facie discriminatory conduct was “reasonably necessary” in order to accomplish a broader goal. “In other words, an employer or service provider must show ‘that it could not have done anything else reasonable or practical to avoid the negative impact on the individual’” [citations omitted]: Moore at para 49; Meiorin at para 38.” The Court concluded that “Johnstone and like cases importing a fourth requirement of self-accommodation into the Moore test for prima facie discrimination are wrong, and inappropriately hold family status claimants to a higher standard than other kinds of discrimination. The Supreme Court of Canada has set the test for prima facie discrimination, without limitation, and without evidentiary embellishments. In Alberta, the debate must end: the test for prima facie discrimination ought to be exactly the same whether in the context of direct or adverse effects discrimination based on prohibited grounds, or in cases advanced under human rights legislation or under a collective agreement or otherwise, or before the courts on review. Different tests, or evidentiary gradations of the same test, beget inequality.”
read moreEMPLOYER COVID POLICIES – ENFORCEABLE OR NOT
Although the “jury” is still out, carefully crafted employer policies with respect to vaccination covid – 19 may be upheld by arbitrators, boards, tribunals and courts. Among others the policies should note exemptions, including those set out in human rights legislation, and provide procedures for addressing exemptions. The enforceability vaccine mandates may also depend on the workplace context, for example, health care employment and elder care.
read moreTOP COURTS LIMITS ACCESS TO HUMAN RIGHTS FOR UNIONIZED EMPLOYEES
Part of the Court majority’s wrongheaded reasoning is the reliance on the so-called duty of fair representation to mitigate the limitations on individual human rights: Anyone with any experience in duty of fair representation complaints knows that these complaints do not provide much if any protection for employees. From the BC Labour Relations Board annual report (20230): In BC in 2020, precisely NIL section 12 (duty of fair representation) complaints were granted. In the last 10 years, 15 complaints were granted. In the past 10 years, the Board disposed on 747 complaints.
read moreCONSTRUCTIVELY DISMISSED EMPLOYEE ENTITLED TO INCENTIVE PLAN
First, courts should “consider the [employee’s] common law rights” (para. 30). That is, courts should examine whether, but for the termination, the employee would have been entitled to the bonus during the reasonable notice period. Second, courts should “determine whether there is something in the bonus plan that would specifically remove the [employee’s] common law entitlement” (para. 31). “The question”, van Rensburg J.A. explained, “is not whether the contract or plan is ambiguous, but whether the wording of the plan unambiguously alters or removes the [employee’s] common law rights” (para. 31).
read moreThe respondent was an employee of the appellant for approximately 11 years and was terminated in June 2015. The respondent brought an action for wrongful dismissal, and also claimed aggravated damages and punitive damages. The trial judge found the respondent was wrongfully dismissed, and awarded $15,000 in aggravated damages. The appellant appeals the aggravated damage award. Held: appeal allowed. An employee must provide an evidentiary foundation establishing that the manner of dismissal caused them mental distress beyond that which accompanies any termination. The trial judge erred in principle in awarding aggravated damages for mental distress when there was no evidence that the manner of dismissal caused the respondent mental distress beyond that caused by the dismissal itself.
read moreRoyal Bank of Canada’s Deductions of $1,000 per Pay Cheque from Long Term Employee – Constructive Dismissal
The Royal Bank of Canada deducted $1,000 per paycheque from long serving employee. The Bank recovering alleged “overpayments” on commissions going back several years. Adjudicator concluded: “The decision to reduce the Complainant’s pay by $1000 per pay cheque appears to have been made with little or no regard to the significant financial consequences for the Complainant; and with no apparent consideration of reasonably available less severe alternatives. She remained a Bank employee, with a sizeable salary and almost seven years remaining before retirement. The decision to recover the total amount over 24 months ignored even the Bank’s own draft March 9, 2015 proposal of 36 months, albeit undelivered. A more attentive and less oblivious recovery schedule stretched over a longer portion of the Complainant’s reasonably anticipated remaining working years would have significantly reduced the hardship on the Complainant, and more important in terms of the employment contract, would have allowed her to remain at a living wage in her Senior Account Manager position. As it was, I find that the $1000 per cheque reduction in her bi-weekly take home pay was neither reasonable nor fair, and obviated the fundamental purpose of the employment contract, denying suitable income to the employee and thereby, in the circumstances, amounts to constructive dismissal. I agree with the Court in Farquhar, supra, that “the question of salary goes to the very root of the contract. So the 30 per cent reduction was an anticipatory breach of a fundamental term and, thus, a repudiation of the whole contract.” The Adjudicator also disagreed with the Bank’s interpretation of the employment contract between the Employee and the Bank with respect to recovery of alleged overpayments.
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