In its decision in Potter v New Brunswick Legal Aid Services Commission, 2015 SCC 10, released earlier this year, the Supreme Court of Canada examined the test applicable for cases of constructive dismissal, as well as the defences available to such a claim. The Court’s decision provides new clarity in some areas, while leaving certain questions unanswered.

Background

The Appellant, Mr. Potter, was suspended with pay from his functions as Executive Director of the New Brunswick Legal Aid Services Commission without reasons. The Commission, at the time of the suspension, was seeking the government’s permission to terminate his employment with cause. Mr. Potter filed a suit for constructive dismissal against the Commission. He lost at both the trial and appellate levels, with the lower courts rejecting his claim that the indefinite suspension without pay amounted to constructive dismissal. The Supreme Court allowed the appeal and found in Mr. Potter’s favour, although the majority and minority disagreed on the basis of this result.

Majority’s Decision

The majority held that there are two tests by which a finding of constructive dismissal can be made. In both cases, the burden of proof will be on the employee to establish on an objective basis that the test has been met.

The first test is composed of two parts:

a) Identifying an expressed or implied contractual term that has been unilaterally breached. This is an objective test; if the authority to make the change exists or consent is given, then there will be no breach; and

b) Determining whether the breach was sufficiently serious to constitute constructive dismissal. Typically, issues of compensation, work assignments or place of work are raised. All are questions of degree.

The second test is: Looking at the conduct of the employer, in light of all of the circumstances, and determining whether a reasonable person would conclude that the employer no longer intended to be bound by the terms of the contract. The employee is not required to point to a specific breach of the contract, but rather whether the course of conduct cumulatively amounts to an actual breach.

The majority applied the first test for constructive dismissal to the facts of an administrative suspension. It held that if the employer is unable to establish that the suspension is justified, then the first branch of the first test is met. The question of whether the suspension is justified includes consideration of: the duration of the suspension, whether pay is continued, whether the decision is made in good faith, and whether there is a legitimate business reason. The Court found that in most cases where the suspension is unauthorized, such a suspension will also amount to a “substantial change” such that the second branch of the first test is also met. Any exceptions would likely be for suspensions that are particularly short in duration.

In Mr. Potter’s case, the majority found that there was an indefinite suspension with no valid business reason to suspend and that it had not been made in good faith. The suspension was therefore not justified and both branches of the first test had been met.

Minority’s Decision

The minority adopted a somewhat different analysis. It noted that the whole of wrongful dismissal law is grounded in broader contract law principles relating to repudiation and anticipatory breach. It stated that constructive dismissal can be shown either by showing a significant breach going to the root of the contract or by conduct which demonstrates the employer no longer intended to be bound by the contract.

The minority found that the trial judge erred by failing to recognize that the employer can repudiate the contract of employment other than by breaching an important term of the contract. Even if the suspension on its own is not sufficiently serious to constitute repudiation, in light of all of the circumstances, the employer’s conduct had manifested an intention not to be bound by the terms of the contract in the future. The surrounding circumstances, taken as a whole, clearly demonstrated intent by the employer to repudiate the contract.

New answers and remaining questions in constructive dismissal

The Supreme Court used this opportunity to reiterate some key concepts, set out some new directions and signal areas that remain in dispute:

• Emphasis on the importance of work: The Court made several comments on the importance of an employee’s work: “The employer does not have an unfettered discretion to withhold work” (para 82). Work is considered to be “one of the most fundamental aspects in a person’s life, providing the individual with the means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his/her sense of identity, self-worth and emotional well-being” (para 83). “No employer is a liberty to withhold work from an employee either in bad faith or without justification” (para 85). As a result, a suspension, even if it is with pay, can constitute constructive dismissal.
• Deduction of pension payments: The Court clarified that an employer is not entitled to deduct pension payments from constructive dismissal damages.
• Disagreement re: evidence not known to employee: The majority and minority differed as to whether an employee can rely on evidence which exists, but is unknown to the employee at the time, to show that the employer intended to repudiate the contract. The majority found that a court must not consider evidence that was neither known to the employee nor reasonably foreseeable. The minority disagreed and found that the trial judge erred by excluding the employer letter seeking the dismissal for cause of Mr. Potter, even though he was unaware of the existence of the letter at the time: “to exclude this evidence from consideration, as I see it, would be to make the employee’s right to claim constructive dismissal depend on whether the employer succeeded in concealing his/her true state of mind. Happily, the authorities do not support that unattractive position” (para 173).
• No answer on resignation issue: The Court declined to deal with the issue of whether an unsuccessful constructive dismissal suit by the employee automatically constitutes a resignation of employment. This question is thus left unanswered for future cases.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

On May 11, in its decision in Kirby v Correctional Services Canada, 2015 PSLREB 41, the Public Service Labour Relations and Employment Board ordered Correctional Services Canada (CSC) to pay $12,500 in back-wages and damages for pain and suffering for having discriminated against an employee on the basis of disability.

The employee, Larry Kirby, had been working as an institutional driver for the CSC when he injured his back in 2005 and became unable to perform some of the duties of his position. Initially, the CSC accommodated Mr. Kirby by reorganizing his position so that he could focus solely on duties he was medically able to perform.

In 2009, after three years of accommodating Mr. Kirby, CSC received a Health Canada assessment indicating that Mr. Kirby’s disability was permanent and that he should be accommodated in his current position on a permanent basis. Despite the CSC’s admission that there was sufficient work for Mr. Kirby, and that allowing him to perform it permanently wouldn’t cause undue hardship, CSC sent Mr. Kirby home on sick leave. The CSC alleged that it simply wasn’t its practice to create a position in which to accommodate a disabled employee.

The PSLREB Adjudicator found that that CSC could have continued to accommodate Mr. Kirby on a permanent basis in his former position with modified duties, and that the failure to do so was in violation of the Canadian Human Rights Act and the collective agreement. CSC was ordered to pay $12,500 damages for pain and suffering and wilful and reckless disregard of its obligations under the Canadian Human Rights Act.

Mr. Kirby was represented by David Yazbeck of RavenLaw.

We are very proud to announce that Elyssa Yoo has been awarded this year’s Raven, Cameron, Ballantyne & Yazbeck LLP Prize for achieving the highest standing in the Human Rights Laws in Canada course at the University of Ottawa Faculty of Law, Common Law Section.

Every year, our firm sponsors a prize for the student who achieves the highest standing in the “Human Rights Laws in Canada” course at the law school. Human rights law is a fundamental component of our legal system and a major component of our law practice. It is important to recognize achievements in this area, and to encourage students to pursue human rights law when they practice.

Congratulations Elyssa, and best of luck in your legal career!

Canadian law protects workers from being treated differently based on certain prohibited grounds of discrimination. The prohibited grounds are set out in human rights legislation, such as the Canadian Human Rights Act and the Ontario Human Rights Code. They include race, ethnic origin, religion, sex, sexual orientation, disability, and family status, among others. The Ontario Code also provides explicit protection on the basis of gender identity and gender expression.

The following provides answers to some common questions about discrimination in the workplace. Questions about your particular circumstances should be reviewed with a lawyer experienced in employment and human rights matters.

How do I know if my employer is discriminating against me based on a prohibited ground?

It is sometimes easy to draw a link between an employer’s actions and a prohibited ground of discrimination. A policy refusing to hire workers of a particular nationality, for instance, is plainly discriminatory. But discrimination is rarely this blatant or obvious. More often we have to look at other evidence to determine whether discrimination is taking place, such as whether an employer applies its rules differently to individuals based on prohibited ground.

Differential treatment based on other factors can also be discriminatory if it has a disproportionate impact on individuals who share a characteristic protected by a prohibited ground. As noted below, workplace rules that appear to be neutral on their face can, nonetheless, be discriminatory. Drawing this link would require evidence that the employer’s conduct would have a disproportionate impact on an individual or group of individuals based on prohibited ground.

What if my employer claims its actions were based on something other than a prohibited ground?

Employers often claim that there were other, non-discriminatory reasons that justify their actions, such as a decision to terminate an employee. The law in Canada, however, is clear: discrimination has taken place so long as a prohibited ground is one of the factors behind the employer’s decision. For example, if there is evidence that an employer fired an employee in part because they were uncomfortable with her same-sex relationship, it is no defence to say that the employee also had performance issues.

Does it matter if my employer did not intend to discriminate against me?

It is not necessary that an employer intend to discriminate against an individual or group for the behaviour to be discriminatory. Workplace rules and policies that appear to be neutral can have unintended or disproportionate impact on particular groups. Some examples based on previous decisions include:

• A workplace rule that requires all employees to rotate through Saturday shifts may discriminate against certain religious groups.
• A seemingly objective fitness standard may discriminate if it disproportionately excludes women.
• A requirement that all employees perform a particular task may discriminate against an individual whose disability prevents them from doing so.

This is because the purpose of human rights legislation is not to lay blame but to eradicate discrimination.

My manager and co-workers are making offensive comments. Does it matter if they say they are joking?

Human rights legislation protects against harassment based on a prohibited ground. This includes a course of conduct or comments that someone knows are unwelcome, or ought reasonably to know are unwelcome. Whether jokes constitute harassment will depend on the circumstances, but the fact that someone says they were just joking is not an excuse.

Does my employer have to make changes in the workplace to accommodate my needs?

Human rights law also requires employers to take steps to ensure that all employees can participate fully in the workplace despite any limitations they may have that are linked to a prohibited ground. Human rights tribunals and courts have required employers to make physical changes to workplaces to accommodate an employee’s mobility issues. They have also required employers to provide employees with a shift schedule that accommodates their family obligations. Whether or not your employer must accommodate you in such a manner will depend on your particular situation. (Click here to read more about the employer’s duty to accommodate.)

Can an employer ever justify discriminatory conduct?

In certain circumstances an employer can justify a rule or policy that has a discriminatory impact on employees. For instance, an employer can try to prove that it requires a particular rule that has a discriminatory impact, or that it has done as much as it can to accommodate an employee. The test, however, is high, and requires an employer to demonstrate that it cannot accommodate further without suffering “undue hardship”.

We are here to help: Consult one of our experienced human rights lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are considering making a complaint of discrimination against your employer.

On May 12, 2015, Wassim Garzouzi presented on Human Rights at the Workplace. The panel presentation was hosted by the North Bay Chapter of the Human Resources Professional Association and included counsel from both labour and management side firms.

In Ottawa, many workers believe themselves to be “independent contractors” either because they prefer this characterization or because their employers have described them in those terms. Unfortunately, both might be incorrect and being improperly considered an independent contractor when you are actually an employee can have weighty implications for your annual tax payments and also your legal entitlements if and when the employment relationship ends.

What’s in a name?

Like our dear (albeit impulsive) Juliet, who recognized early on “that which we call a rose by any other name would smell as sweet”, the Ontario courts have long recognized that, when it comes to a potential employer-employee relationship, it is not the title one is assigned, but rather the nature of the relationship that is determinative.

To complicate matters further, the courts have created a third category between employees and independent contractors: these individuals are named “dependent contractors”. Once again, the crucial question is the nature of relationship.

Factors for determining if you are an employee or a contractor

To determine the relationship between the parties, one must first determine whether an employment relationship exists. The leading case on the first step is 671122 Ontario Ltd. V. Sagaz Industries Canada Inc., [2001] 2 SCR 983. According to that case,  the central question is whether the person who has been engaged to perform the services is performing them as a person in business on his own account. In making this determination, the level of control the employer has over the worker’s activities will always be a factor. The Court also identified the following (non-exhaustive) factors to consider:

[i] whether the worker provides his or her own equipment,

[ii]whether the worker hires his or her own helpers,

[iii] the degree of financial risk taken by the worker,

[iv] the degree of responsibility for investment and management held by the worker, and

[v] the worker’s opportunity for profit in the performance of his or her tasks.

If those factors signal that the worker is a contractor rather than an employee, the second step in the inquiry is to determine whether the engaged party is an Independent or a Dependent contractor: McKee v. Reid’s Heritage Homes Ltd. 2009 ONCA 916 (CanLII).

In McKee, the Ontario Court of Appeal noted, “the dependent contractor category arises as a ‘carve-out’ from the non-employment category and does not affect the range of the employment category.” The Court held that the most significant factor for identifying a dependent contractor is an exclusive relationship (i.e. the contractor provides his or her services only to one business or enterprise). The Court noted that this factor is also relevant at the first stage of the test:

[T]he proper initial step is to determine whether a worker is a contractor or an employee… Under that analysis, the exclusivity of the worker is listed as a factor weighing in favour of the employee category (Belton’s first principle). The next step, required only if the first step results in a contractor conclusion, determines whether the contractor is independent or dependent, for which a worker’s exclusivity is determinative, as it demonstrates economic dependence. Therefore, exclusivity might be a “hallmark” of the dependent contractor category vis-à-vis the broader category of contractors. However, it continues also as a factor in determining whether the worker is not a contractor at all, but rather an employee, in the first-step analysis.

Implications of being an employee vs contractor

The taxation implications if CRA deems you to be an employee are significant, as are the implications to the employer, who will be then obligated to provide you with employment benefits as per the Employment Standards Act, 2000, as well as make the necessary EI and CPP contributions. If you are not an employee under the law, there may still be important consequences, depending on whether you are characterized as independent vs dependent. The most important consequence is that a “dependent contractor” is owed some form of reasonable notice of termination of employment. Click here  to read more about reasonable notice.

When entering into any employment or contractual agreement, individuals are well advised to obtain independent legal advice in order to fully understand the implications of the agreement they are entering into.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

All employees have the right to work in a safe and healthy workplace, free of harassment and violence.  Harassment in the workplace often lead to a toxic working environment filled with stress and anxiety. In some cases, it may even lead to physical violence. All workplace parties, including employees, have a role to play in maintaining a safe and healthy workplace.

What is Harassment?

Workplace harassment is defined in the Occupational Health and Safety Act as “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome”. Harassment on the basis of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability also violates the Ontario Human Rights Code.

While harassment is usually defined as a series of incidents, one serious incident may be sufficient to meet the definition of harassment. For example, one disrespectful remark about a person’s physical appearance would be considered rude but not necessarily harassment. However, a series of repeated rude and degrading remarks would constitute harassment.

Here are some examples of harassment:

• Making rude, degrading or offensive remarks
• Yelling at an employee or co-worker
• Excluding someone from social gatherings, isolating a person
• Withholding information
• Spreading rumors, gossip
• Requesting the performance of a task inferior to a person’s competencies that is demeaning or belittling

Here are examples of conduct that, under normal circumstances, are not harassment:

• Normal exercise of supervisory responsibilities including performance reviews, performance improvement plans, feedback, direction, counselling, provided they are conducted in a respectful manner
• A friendly gesture (i.e. a pat on the back)
• Workplace conflict

The context or circumstances in which the conduct occurred will be extremely important in determining whether the conduct is considered to be harassment.

Employer Responsibilities

Employers have a legal obligation under the Occupational Health and Safety Act to protect the health and safety of employees, including an obligation to take every reasonable precaution to protect workers from workplace violence. Specifically, the employer must establish and implement policies and procedures to help supervisors and employees recognize inappropriate behaviors and to inform them about their rights and responsibilities. The employer must also establish measures and procedures to allow employees to report incidents of workplace harassment or bullying. Reported incidents must be investigated and dealt with in a timely fashion and in accordance with the workplace harassment policy.

Employee’s Responsibilities

Employees should not engage in intimidating or harassing behavior. If they are the target of such behavior, they have a responsibility to speak up either by asking the person to stop or by reporting the incident or behavior in accordance with the procedures established by the employer. Co-workers also have a duty to report incidents of harassment in the workplace as they are a potential hazard which may lead to workplace violence.

How to Foster a Respectful Workplace

A safe and healthy workplace is a respectful workplace. When workers treat each other with respect, there are fewer negative interactions.   Employers may implement a number of strategies to foster a respectful workplace including:

• Discussions about key organizational and human values
• Training
• Policy review
• Encouraging communication
• Establishing clear consequences
• Leaders must be role models

Employees and co-workers also have a role to play in fostering a respectful workplace. They should:

• Not engage in workplace harassment or bullying
• Speak up
• Tell the person the behavior is unwanted/unacceptable
• Ask the person to stop
• Co-workers should intervene if appropriate and if they feel comfortable doing so
• Identify and report incidents to supervisors in accordance with the workplace procedures
• Support co-workers by listening
• Document details of events with detailed information in the event of an investigation including dates, times, details, names of witnesses
• DO NOT RETALIATE

Conclusion

The key to preventing harassment in the workplace is early intervention. Ignoring problems will not make them go away and often will only make them worse. Employees should not hesitate to speak up and report incidents of harassment when they occur as early and informal intervention may resolve the issue. Employees who feel intimidated or are afraid to speak up may seek assistance from co-workers, from their union or from outside legal counsel. 

We are here to help. Consult one of our experienced Employment lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you have been terminated from your employment.

Live-in caregivers sadly face the risk of abuse and exploitation due to their vulnerable position, an issue most commonly arising in the criminal or immigration context. A recent decision of the British Columbia Human Rights Tribunal, PN v FR and another, 2015 BCHRT 60 , addressed this issue through a human rights lens. The Tribunal allowed a complaint of discrimination and harassment from a live-in nanny who was subjected to horrific treatment by the family employing her. The decision highlights both the benefits and the limitations of using human rights law to redress exploitation of vulnerable workers.

Background

The Complainant, PN, was a live-in caregiver from the Philippines who worked for the Respondents in Hong Kong for a year before moving with them to Canada. The Tribunal’s account of PN’s treatment during her employment with the Respondents is harrowing: she borrowed money to pay for the training and travel necessary to obtain the job with the Respondents, and she was paid roughly $600 per week while working more than 17 hours per day. She was demeaned and berated by the wife and sexually exploited by the husband. After a year working for the family in Hong Kong, she was pressured to accompany the family to Canada, and signed a contract agreeing to repay visa and travel costs in excess of $13,000 if she changed her mind about moving with them.

In Canada, she lived with the family in a hotel suite, sleeping on a couch with no privacy. After six weeks in which the abuse and exploitation continued, she fled, moving into a women’s shelter. At the shelter, she was able to access counselling and legal representation, and brought a complaint of discrimination under the B.C. Human Rights Code.

Decision of the B.C. Human Rights Tribunal

The Tribunal found that the Complainant had been sexually harassed and exploited by the Respondents as her employer. The Tribunal held that PN’s protected characteristics were factors in this treatment:

PN is a young mother from the Philippines without supports in Canada. This gave rise to a situation where it was possible to take unfair advantage of her. The way that MR treated her and the expectations of PN working all the time at the beck and call of the respondents have their roots in her hiring from the Philippines and the factors emphasized of youth, hard work and unlikeliness to complain, which are characteristics attributed to Filipino workers by stereotype and prejudice.

The Tribunal further found that the Respondents retaliated against PN by demanding repayment of the costs of her travel to Canada, in response to the filing of the human rights complaint.

In light of the egregious nature of the discriminatory conduct, the significant impact that it had on PN, and her vulnerable position, the Tribunal awarded $50,000 in damages.

A new avenue of redress for exploited, vulnerable workers?

In addition to the exceptionally high damages award, the Tribunal’s decision is significant for its analysis of the nexus between PN’s mistreatment by her employer and her protected characteristics. The Tribunal found that PN’s status (a young, Filipino mother) created an opportunity for the Respondents to take unfair advantage of her. A similar line of analysis could potentially be applied to other categories of vulnerable workers in Canada: for example, migrant agricultural workers are often foreign nationals with precarious immigration status and limited resources. Thus, this decision could point towards opportunities for other workers to seek redress under human rights legislation when they are mistreated or exploited by their employers due to their vulnerable position.

However, the case also highlights the limitations of the human rights regime as an avenue to fight against exploitation of workers. For example, the Tribunal had no authority to grant PN immigration or employment status in Canada. Moreover, a significant portion of the mistreatment suffered by PN predated her arrival in Canada, leaving the Tribunal with no jurisdiction to award a remedy regarding those events. Thus, a human rights complaint presents a promising, but imperfect, avenue to potentially seek damages against employers who have taken advantage of vulnerable workers in Canada.

UPDATE: OPT v Presteve Foods Ltd­—another victory for exploited foreign workers

Subsequent to the decision in PN, above,  a similar case was decided by the Human Rights Tribunal of Ontario in OPT v Presteve Foods Ltd, 2015 HRTO 675 . In that case, two temporary foreign workers complained that they were subject to repeated, unwanted sexual advances and sexual assaults by their employer. They felt unable to refuse his sexual solicitations and advances because of threats that they would be returned to their home country. The employer was criminally charged in connection with these incidents and similar assaults on other workers, and pled guilty to some charges.

Like the PN case, this decision is remarkable for the exceptionally high damages award: the Tribunal found that the seriousness of the conduct was “unprecedented”, and that the complainants were particularly vulnerable due to their status as migrant workers. On the basis of these considerations, the Tribunal awarded compensation for injury to dignity, feelings, and self-respect in the amount of $150,000 to one of the workers, and $50,000 to the second.

Despite this significant damages award, this case further illustrates the inherent limitations of the human rights forum to address the broader issues facing foreign workers. Justicia for Migrant Workers intervened in OPT and asked the Tribunal to grant public interest remedies related to the temporary foreign worker program. The Tribunal’s response to this intervention demonstrates that many systemic remedies to the exploitation of foreign workers are beyond the scope of the human rights regime:

Finally, I was invited by the intervenor to make comment upon certain aspects of temporary foreign worker programs in Canada. As these programs fall within federal jurisdiction, it would not be appropriate for me to do so… I have commented in this Decision and in my decision in Peart v. Ontario (Attorney General), above, regarding the particular and special vulnerabilities of migrant workers in Ontario, especially in light of the closed work permit that requires them to be tied to one employer and so be under the constant threat and fear of losing their employment and being repatriated without reason and without any avenue for appeal or review. Dr. Preibisch testified that, in her opinion, it may be helpful to institute a registry for companies who employ migrant workers, such as the one that exists in Manitoba, and to take other steps identified by her to address the vulnerabilities of migrant workers. However, I do not have jurisdiction in this proceeding to make any such order. As a result, the intervenor’s request is denied.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

On June 11, David Yazbeck will be moderating a Lancaster House Conference on “The ABCs of IMEs: When are they useful, when are the required?” The conference will discuss the ins and outs of employer requests for independent medical examinations (“IMEs”) to verify or obtain information about an employee’s medical condition. The panel will discuss the ground rules for employer requests for IMEs, whether such requests are becoming more common, whether IMEs should be sought only as a “last resort”, how the parties can ensure that privacy rights are being respected in the IME process, and what consequences an employee may face on refusing an IME.

More information about the conference can be found here.

In a recent decision, the Federal Court of Appeal revived a pay equity complaint made by the Public Service Alliance of Canada (“PSAC”) on behalf of workers in certain female-dominated groups at Nav Canada. PSAC filed the complaint in 2002, but the Canadian Human Right Commission dismissed the complaint without an investigation in 2012. In its decision of July 28, 2015, the Federal Court of Appeal ruled that the Commission’s decision was unreasonable and sent the complaint against Nav Canada back to the Commission for further proceedings.

The Nav Canada employees received pay equity cheques for the years 1985 – 1996, years when they worked for Transport Canada, but did not receive wage adjustments for the years following the creation of Nav Canada in 1996. This has meant that the Nav Canada workers have lost out on the full benefits of a 1999 pay equity settlement between PSAC and the government. As counsel for PSAC, Andrew Raven of RavenLaw, told the Ottawa Citizen, the Court’s decision “has important implications for all pay equity complainants” and could make it possible for the Nav Canada employees to receive retroactive wage adjustments for the years between 1997 – 2011.

PSAC was represented at the Federal Court of Appeal by Andrew Raven and Amanda Montague-Reinholdt of RavenLaw.