On November 4, 2017, RavenLaw participated in the 6^th annual Workers’ Bowl, an annual fundraiser in Toronto for the Workers’ Action Centre, a worker-based organization that advocates for fair working conditions for vulnerable workers. The Workers’ Action Centre has a Workers’ Rights Info Line that workers can call for support, offers workshops on workers’ rights and is part of the campaign to raise the minimum wage to $15.

The bowling tournament is hosted by the Ontario Employment Education & Research Centre (OEERC), a non-profit that works with community partners such as the Workers’ Action Centre to educate workers on their rights and provide supports to workers whose rights have been violated.

This is the second year that the RavenLaw team – Wassim Garzouzi, Morgan Rowe, Anna Lichty, and Marlee Olson – has joined bowlers from unions and union-side labour firms, among other supporters, to help raise funds for these important initiatives.

In a recent decision, the Ontario Superior Court affirmed that departing employees can owe a duty of good faith and a fiduciary duty to their former employer, and a violation of those duties can give rise to a significant damages award. This decision marks an important reminder to employees regarding their obligations when leaving their employment.

Background

The Prim8 Group Inc. is a communications agency who hired Richard Tisi, initially on a contract basis and then as a one-third shareholder, director and officer of the agency, to develop websites for Prim8 clients. Tisi, together with an employee, Ian MacArthur, developed customized management software for Prim8.

A dispute arose between Tisi and Prim8, and Tisi left his employment. When he left, he took his computer equipment, including access to the customized management software. Shortly thereafter, MacArthur also left Prim 8, and he and Tisi began working on a competing business. Prim8 sued for inducement to breach contract, as well as conversion and breach of fiduciary duty.

Judgment of the Ontario Superior Court

In The Prim8 Group Inc. v. Tisi and MacArthur 2016 ONSC 5662, Prim8 was successful in its action against Tisi and MacArthur. The Court found that Prim8 had established its claims for breach of duty, conversion and inducing breach of contract, and awarded approximately $100,000 in damages, together with costs, against the Defendants.

The Court found that “employees owe their employers a general duty of good faith and loyalty (or fidelity) as an implied term of their employment contract.” The Court further held that, as a senior officers of the corporation, Tisi owed a fiduciary duty of “loyalty, good faith and avoidance of conflict of duty and self-interest.” The Court held that Tisi had breached his fiduciary duty in taking the computer equipment and customized management software assets of Prim8, and converting them to his own use. The Court also found that Tisi actively impeded Prim8’s ability to make changes to its client websites. The Court assessed damages for the replacement of the assets taken by Tisi, together with damages for lost billings to Prim8’s former clients.

Both Tisi and MacArthur were also held liable for a failure to give proper notice of their departure. Tisi was also found to have induced MacArthur to breach his contract with Prim8.

Discussion

Tisi and MacArthur found themselves in a position that no employee wants or expects to be in—having moved on to new employment, they were taken to court by their former employer because of breaches of their obligations upon departure. This case stands as an important reminder to employees, particularly senior employees, that their duties to their employer do not necessarily end at the moment they tender their resignation. All employees should seek legal advice concerning notice and fiduciary obligations to their former employers, if they are planning to leave their employment.

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

On November 8, 2017, Michael Fisher spoke as part of the panel “Fitness to Work: Ensuring a Safe Work Environment in an Era of Marijuana, Opioids, and Other Drugs,” at Lancaster House’s Human Rights and Labour Law Conference in Ottawa. The panel focused on the common misperceptions on the use of medical marijuana and other drugs, impairment testing in safety sensitive workplaces, an employee’s duty to disclose their use of medical marijuana and other prescription drugs, and balancing accommodation and safety obligations.

In a pair of recent decisions, the Federal Public Sector Labour Relations and Employment Board confirmed the broad and purposive approach to the statutory freeze on terms and conditions of employment during collective bargaining. In Public Service Alliance of Canada v Treasury Board (Correctional Service Canada) and Public Service Alliance of Canada v Canada Revenue Agency, the Board found that the employer had violated the freeze by altering terms and conditions of employment without the union’s consent.

The Federal Public Sector Labour Relations Act, like labour law in most jurisdictions, contains a prohibition on altering the terms and conditions of employment while a union and employer are engaged in collective bargaining. The provision states that, unless the parties otherwise agree, “each term and condition of employment applicable to the employees in the bargaining unit to which the notice relates that may be included in a collective agreement, and that is in force on the day on which the notice is given, is continued in force and must be observed by the employer, the bargaining agent for the bargaining unit and the employees in the bargaining unit” until either a collective agreement is reached or a strike could be commenced. This is referred to as a “freeze” on terms and conditions of employment. The purpose of the statutory freeze is to maintain the status quo, and provide stability during the collective bargaining process.

In the Correctional Service Canada case, the Union argued that the employer had violated the freeze by reducing the hours of work of full-time term employees to four days per week, contrary to its longstanding practice. The Board agreed, finding that there was “no evidence that the respondent had made any reductions to the hours of work of the affected employees before the freeze period”, and therefore there was an established pattern of full-time employment for term employees, which created a reasonable expectation that hours would not be reduced during the freeze period.

In the Canada Revenue Agency case, the Union argued that the employer violated the freeze by eliminating the ability of employees to select variable and flexible work hours commencing before 8:00 a.m. The Board agreed, holding: “It was demonstrated that before September 2014, employees had been able to request flexible and super-compressed work schedules for years and that their requests had been approved. Thus, a pattern had been established. Once notice to bargain was given, it was reasonable for the employees to expect that it would continue.”

Both decisions endorse the “business as before” approach to statutory freeze complaints, which requires consideration of the entire pattern of the employment relationship prior to the freeze, in order to determine whether there was a violation. The Board rejected the narrower approach advocated by the employer in both cases, and also rejected the claim that the employer retained discretion to modify hours of work pursuant to legislation. As the Board stated in Canada Revenue Agency, to accept that argument “would render the protection conferred under the statutory freeze provision meaningless and it could lead to an absurd interpretation of the Act.”

The Public Service Alliance of Canada was represented in both cases by Amanda Montague-Reinholdt of RavenLaw.

Morgan Rowe is honored to be a “Featured Volunteer” on the REACH Canada website.  Morgan has volunteered with REACH as part of its pilot project providing legal information clinics to individuals with disabilities in Ottawa.  Morgan also provides pro bono legal services through REACH’s lawyer referral service.  REACH has provided this service and public education for individuals living with disabilities since 1981. RavenLaw is a long-term, proud supporter of REACH.

Amanda Montague-Reinholdt has been elected to the Board of Directors for the Magnetic North Theatre Festival. Amanda has also been elected to serve as Secretary on the Board’s Executive Committee.

Magnetic North is Canada’s only national theatre festival, showcasing the very best of contemporary Canadian theatre. It has its home base in Ottawa, which hosts the festival every second year. The festival also has a unique travelling mandate, hosting the festival in a different community across Canada in alternate years, including the incredibly successful 2016 festival in Whitehorse. The next festival will take place in Ottawa in June 2017, coinciding with the celebrations of Canada’s 150^th anniversary.

The partners of Raven, Cameron, Ballantyne & Yazbeck are pleased to announce the selection of the successful 2017 Raven, Cameron, Ballantyne & Yazbeck Human Rights/Social Justice Internship candidates, Megan Fultz and Emily Cumbaa. Both Megan and Emily are in the second year of their studies at the University of Ottawa, Faculty of Law. We congratulate Megan and Emily on their achievement and look forward to working with them this summer when the internship takes place.

This is the twelfth  consecutive year that our firm has offered this Human Rights/Social Justice internship. Every summer, we provide paid employment to a student from the University of Ottawa Law School with placements in our firm and two social justice or human rights organizations. This year, Megan and Emily will be working with the Feminist Alliance for International Action (FAFIA) and the Economic and Social Council of Ottawa-Carleton. Previous placements for our internship have included the Workers’ History Museum, International Development Research Centre, EGALE Canada, Amnesty International, the Ottawa Coalition to End Violence Against Women, the Council of Canadians, REACH Canada, National Educational Association of Disabled Students and many other organizations which provide significant contributions in the areas of social justice and human rights.

The group of former military members who launched a class action regarding sexual misconduct in the Armed Forces has now filed a Statement of Claim in the Superior Court of Ontario. Amy Graham, Nadine Schultz-Nielsen, and Larry Beattie filed their full Statement of Claim on December 13, 2016, setting out their personal experiences of sexual assault and harassment, as well as the remedies that they are seeking on behalf of all class members.

The class action covers all current and former members of the Canadian Armed Forces who have experienced sexual assault, sexual harassment and abuse of power in the course of their education, training and service in the military. The Statement of Claim seeks compensation for affected members, as well as declarations and systemic orders against the government to change a system that condones a culture of sexual misconduct and punishes victims instead of perpetrators.

You can read more about the Statement of Claim here:

• CBC News: Sexual-misconduct lawsuit against Armed Forces alleges ‘reckless’ conduct

• Radio-Canada: Les Forces canadiennes visées par un recours collectif de 1 milliard de dollars

• Le Journal de Montréal: Un recours collectif d’un milliard $ contre l’armée

For more information, or if you or your family member may be affected by the class action, you can contact Raven Law at armedforcesclassaction@ravenlaw.com.

On March 22, 2017, RavenLaw sponsored Reach Canada’s Jamming for Justice event. The concert celebrated the opening of Reach’s new headquarters and was emceed by RavenLaw’s own David Yazbeck. Reach Canada is a legal referral organization for persons with disabilities and is dedicated to providing education and information on all matters pertaining to disabilities. RavenLaw was proud to support Reach’s event and to help raise funds for its important work.

It is with great sadness that we announce the passing of our dear friend and colleague, Mary Mackinnon. Mary joined the firm in 2006 and became a partner in 2008. She was a tireless advocate for workers’ rights who was highly respected in the legal community. Her work on behalf of individual employees, human rights claimants and unions is a testament to her deep personal commitment to social justice and equality. Mary was a wonderful colleague and a generous mentor to new lawyers. We will all miss her tremendously.

Donations in Mary’s memory can be made to Kidney Cancer Canada: www.kidneycancercanada.ca