Nowadays most employees spend at least a portion of their workday using a computer, raising important privacy questions of what kinds of computer surveillance employers can implement on their employees’ work computers and under what circumstances.

Questions relating to employer surveillance – when? why? how much is too much? – are long-standing issues in both unionized and non-unionized workplaces. Traditionally, decision-makers have been sharply divided over when employers can implement surreptitious video surveillance over their employees, for example, and then rely on videotape evidence for later discipline.

This division has largely centred on a fundamental disagreement between decision-makers as to whether employees have a right to privacy in the workplace. This same disagreement carried over into the early computer surveillance decisions, where courts and arbitrators routinely found that employees had no expectation of privacy in work computers and upheld discipline and even termination based on non-work computer use.

Protecting the “Biographical Core”: R v Cole

That perception was shaken by a number of cases in the early 2000’s, but none moreso than the Ontario Court of Appeal’s 2011 and the Supreme Court’s 2012 decisions in R v Cole. While Cole dealt with a challenge to the search and seizure of an employee’s work computer by police, the Supreme Court took the opportunity to comment more broadly on employees’ right to privacy in their work computers. The Court found that an expectation of privacy could be inferred where personal computer use was permitted or reasonably expected:

Computers that are reasonably used for personal purposes – whether found in the workplace or the home – contain information that is meaningful, intimate, and touching on the user’s biographical core. Vis-à-vis the state, everyone in Canada is constitutionally entitled to expect privacy in personal information of this kind.

While workplace policies and practices may diminish an individual’s expectation of privacy in a work computer, these sorts of operational realities do not in themselves remove the expectation entirely: The nature of the information at stake exposes the likes, interest, thoughts, activities, and searches for information of the individual user.

Implications for Employees: Right to Privacy at Work

While the long-term implications of Cole are not yet clear – particularly given that the Court declined to comment specifically on employer computer surveillance or the ability of an employer to seize and search a work computer – decision-makers have begun to adopt its reasoning to find a breach of employee privacy rights when employers engage in surreptitious, unjustified computer surveillance. For example:

• The British Columbia Information and Privacy Commissioner found an employer internet usage audit to be a breach of privacy where the employee had never attempted to hide his internet usage and had never been approached about it by the employer prior to the audit.
• The Alberta Office of the Information and Privacy Commissioner found that an employer had contravened privacy legislation when it installed keystroke logging software on an employee’s computer to monitor productivity. The Commissioner particularly noted the availability of less intrusive measures and the failure to limit the scope of the employer’s investigation.

These examples aside, however, decision-makers have yet to fully address the question of what Cole will mean for the traditional approaches to employer surveillance. While older cases extended employers a nearly unfettered right to set ethical, professional and operational standards for their workplace, Cole recognized that employer policies and practices may diminish a privacy right but cannot remove it entirely. Whether future decision-makers will accept a robust conception of employee privacy rights or will return to tests largely based on employer reasonableness remains to be seen.

A Right Without A Remedy

In any event, the suggestion in some post-Cole case law that employers ought to undertake less intrusive steps prior to surveilling employee computers raises a separate, perplexing question: what happens if employers don’t?

So far, Privacy Commissioners, in large part because of the nature of their authority, have provided for little in the way of remedy beyond ordering that the surveillance cease. For employees whose privacy was breached or who have been disciplined as a result of this intrusion, this may provide little comfort.

More recently, the New Brunswick Court of Queen’s Bench upheld the decision of a labour arbitrator which relied in part on an employee’s privacy interest in her work computer to reduce a termination for inappropriate email use to a suspension.

Other decision-makers, however, have found that an employer’s violation of privacy rights cannot lessen the seriousness of inappropriate work computer use. In these circumstances, it has been suggested that decision-makers can do no more than recommend that the employer take privacy interests into account in the future.

The decisions in Cole took significant steps towards changing how we discuss employee privacy in relation to work computers. As the trial judge in Cole stated, office computers are much like office desks and personal papers much like personal computer files. However, until decision-makers develop a substantive way to provide remedies for the breach of an employee’s privacy interest in his or her work computer, the change in how we talk about privacy rights at work cannot translate into protection for employees.

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

On January 13, 2015, Daniel Tucker-Simmons, an articling student at RavenLaw, won a case before the Landlord and Tenant Board on behalf of ACORN (Association of Community Organizations for Reform Now). ACORN has been fighting for years to improve housing conditions in the low – mid income areas in Ottawa for its members and others.

The case involved a landlord’s failure to repair a 150-meter stretch of walkway which had fallen into disrepair, creating a serious safety hazard for residents. Despite years of repair requests by residents, including ACORNmember Mavis Finnamore, prior landlords and the current landlords did not repair the walkway.

After Ms. Finnamore filed an application with the Board, RavenLaw provided Daniel’s services to represent ACORN member Mavis Finnamore at the Board hearing. Daniel’s victory before the Board means that the landlord will have to pay to fix the walkway. The victory is also the latest in a series of big wins for ACORN’s housing justice campaign, which stretches back to 2011 and has helped residents achieve over $200,000 in rent abatements and repair work.

Read more about the case on ACORN’s blog.

On November 13, 2014, in PSAC v Attorney General of Canada, 2014 FC 1066, the Federal Court considered Part XX of the Canada Occupational Health and Safety Regulations, which imposes a host of obligations on employers to prevent and respond to workplace violence. The Court’s decision affirmed the broad definition of workplace violence under the Regulations, and the mandatory obligations on employers to appoint an impartial person to investigate employee complaints.

The Court clearly held that the definition of workplace violence is broad enough to include harassing conduct that causes mental or psychological harm, stating that “to find otherwise would unduly restrict the definition of work place violence and not give a purposive construction to that definition.” The Court also held that the employer may not act unilaterally as an investigator of workplace violence and that, unless it is plain and obvious on the face of the complaint that it does not relate to workplace violence, the employer is under a mandatory duty to appoint an impartial person to investigate the complaint.

This judgment is an important gain for workers, because it grants access to the mechanisms under Part XX to seek redress for harassment in the workplace. The process under Part XX—particularly, the mandatory appointment of an impartial investigator—is now available for federally regulated workers that experience harassment.

The case was argued by Andrew Raven of our firm. You can read more about this case in on our blog.

In Mounted Police Association of Ontario v Attorney General of Canada, the Supreme Court of Canada today ruled that all workers have a constitutional right to be represented in collective bargaining by an association of their choosing that is independent of the employer.

Members of the Royal Canadian Mounted Police (RCMP) are excluded from the Public Service Labour Relations Act. Instead, they are required to address labour relations issues through the Staff Relations Representative Program (SRRP), an internal process lacking independence from the employer. The Court ruled that both the exclusion from the Act and the imposition of the SRRP violate the freedom of association protected under section 2(d) of the Charter, and that this violation is not a justifiable limitation under section 1 of the Charter.

The Court’s reasons emphasize the crucial role that collective bargaining plays in empowering workers:

“[o]nly by banding together in collective bargaining associations, thus strengthening their bargaining power with their employer, can [workers] meaningfully pursue their workplace goals”. […] Just as a ban on employee association impairs freedom of association, so does a labour relations process that substantially interferes with the possibility of having meaningful collective negotiations on workplace matters”.

The Court clarified its previous ruling on the constitutional right to collective bargaining, confirming that the test for a section 2(d) violation remains “substantial interference” with meaningful collective bargaining, rather than “effective impossibility”. The Court also rejected the Government’s interpretation of the “derivative” nature of the right to collectively bargain, reiterating that “collective bargaining is a necessary precondition to the meaningful exercise of the constitutional guarantee of freedom of association”.

The Court’s decision in this case confirms what unions and workers’ rights advocates have long maintained: a representative process under the control or influence of the employer is directly contrary to the freedom of association and the constitutional right to collective bargaining. This ruling sets the stage for the Supreme Court’s highly anticipated decision in the Saskatchewan Federation of Labour case, which will determine whether the freedom of association also includes the right to strike.

Andrew Raven, Andrew Astritis and Morgan Rowe of our firm represented the Public Service Alliance of Canada, which appeared as intervener before the Supreme Court of Canada in support of the appeal.

One of the questions employment lawyers hear most frequently is whether an employer is allowed to terminate an employee for no reason. The short answer? Yes. Unless your employment contract states otherwise, your employer does not need a good reason, or indeed any reason, to terminate your employment. A termination without a reason is called termination “without cause”.

Termination without a reason—termination with notice

A termination without cause does not mean you have no rights as an employee. Generally speaking, if you are terminated for no reason or “without cause”, then you must be provided with notice of the termination, or payment in lieu of notice. The amount of notice required is determined by the terms of your employment contract, relevant legislation, and common law legal principles. (See “Know Your Rights—Determining the Terms and Conditions of your Employment”  and “What is reasonable notice?”  for more information.)

Termination with a reason—termination for just cause

There are circumstances where an employer fires an employee for good reason, and as a result does not provide any notice to the employee. This is called a termination “for cause” or “with just cause”—if the employer has just cause to terminate the employee, the employer is not required to give notice of the termination. (See “What is just cause for termination?”  for more information.)

One reason the employer cannot terminate you—a discriminatory reason

There is an important exception to the rule that you can be fired for any reason: the employer cannot fire you for a discriminatory reason. For example, your employer cannot terminate you because of your sex, race, sexual orientation, age, or disability, because that would violate human rights legislation. You should consult an employment lawyer if you have reason to believe you have been fired for discriminatory reasons.

Conclusion

Absent any discrimination, your employer can terminate you without cause, but with notice; or it can terminate you with just cause, and without notice. If you believe you have been terminated without just cause, and without adequate notice, you may have a case of wrongful dismissal, and you should seek advice from an employment lawyer.

We are here to help: Consult one of our experienced employment lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are considering making a claim for wrongful dismissal. 

[The following information applies to non-unionized employees. 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 24, 2014, the Canadian Artists’ Representation/Le Front des artistes canadiens (CARFAC) and the Regroupement des artistes visuels du Québec (RAAV) reached a tentative agreement with the National Gallery of Canada on the terms and conditions for the exhibition and reproduction of works of art, as well as the provision of professional services by living Canadian artists at the National Gallery. As CARFAC/RAAV explain, “The parties are proud to have reached this ground-breaking agreement to remunerate living Canadian artists, a historic milestone that will undoubtedly contribute to the long-term sustainability of the visual arts in Canada.” The agreement will now proceed to a ratification vote by members.

The ability of CARFAC/RAAV to reach this historic agreement is due in large part to the Supreme Court of Canada’s decision in Canadian Artists’ Representation v National Gallery of Canada in June of this year. CARFAC/RAAV were represented by David Yazbeck, Michael Fisher and Wassim Garzouzi from RavenLaw in this successful appeal to the Supreme Court.

If your employer terminates you without just cause (see: “Can my employer fire me for no reason?” ), they are required to provide you with notice of the termination. That notice can be given in two possible forms: “working notice” or “pay in lieu of notice”.

 “Working notice” is when you are given advance notice that your employment is going to end, but you continue to work and receive your regular compensation for the length of the notice period. Once the notice period is up, your employment ends, and the employer has no further obligations. The theory is that the employer has given you sufficient advance notice that your employment will be ending, to permit you to look for other work.  During the notice period, you will be required not only to look for other employment, but also to perform your usual tasks at the usual standard.  Failure to do so could result in termination for just cause .  The employer should provide reasonable time off to attend job.

“Pay in lieu of notice” is the more typical form of notice received when an employee is terminated without cause. In this case, you stops work on the day of termination, but receive payment equal to what you would have received if you had continued working through the notice period.

Length of Notice

Whether notice is given to you as working notice or pay in lieu of notice, the important question becomes: what amount of notice is reasonable notice?

Much like an employee’s general terms and conditions of employment (see: “Know Your Rights—Determining the Terms and Conditions of your Employment” ), there are three main places to look when calculating your notice period: legislation, your employment contract, and the law as developed through legal decisions.

In Ontario, the Employment Standards Act sets out a notice period based on an employee’s length of employment. This is the minimum amount that most employees in Ontario are entitled to. The basic entitlements under the Act are:

Your contract may also contain terms which specify the notice period that will apply if you are terminated without cause. If your contract contains a notice period term, this calculation will apply in most – but not all – circumstances, unless it is inconsistent with the minimums outlined in the Employment Standards Act.

Where there is no provision in your contract, however, you are not restricted to the minimum notice periods set out in the Employment Standards Act. Instead, you are entitled to “reasonable notice,” which is calculated based on the law as it has been developed through legal decisions.

Determining a reasonable notice period requires a review of your individual circumstances with the aim of estimating how long you will take to find a new, comparable job. The main factors that are considered are age, length of service, character of employment (for instance, an employee’s level of responsibility), and the availability of similar employment. In special circumstances, other factors can be considered, such as whether you were induced to leave a previous position by the employer.

A very general rule is that you are entitled to one month per year of service with the employer, up to a maximum of 24 months. This general rule is modified by the criteria listed above, as well as your duty to mitigate and other factors (see Mitigation ). Individual cases are very fact-dependent, and require legal advice.

Conclusion

You are entitled to notice of termination, usually in the form of a working notice period or pay in lieu of that working notice period. Notice periods may be set out in your contract or by reference to the Employment Standards Act. Where no notice period is set by contract, you are entitled to reasonable notice. Because reasonable notice is calculated through an individualized, case-by-case assessment, you should consult an employment lawyer for assistance estimating what a reasonable notice period would be in your circumstances.

We are here to help: Consult one of our experienced employment lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are considering making a claim for wrongful dismissal. 

[The following information applies to non-unionized employees. This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

On December 9, David Yazbeck will be appearing in Federal Court on a judicial review of a decision of the Public Sector Integrity Commissioner. In the decision under review, the Commissioner dismissed a complaint by Charbel El-Helou that the Courts Administration Service took reprisals against him after he made protected disclosures of wrongdoing, pursuant to the Public Servants Disclosure Protection Act (“PSDPA”).

Our firm is arguing on behalf of Mr. El-Helou that the decision of the Commissioner should be set aside because Mr. El-Helou was treated unfairly in the process. The judicial review also raises important questions involving the proper legal framework for determining if reprisals were taken against a whistleblower after making a protected disclosure under the PSDPA.

Unless your employment contract states otherwise, your employer does not need a reason to terminate  your employment as long as it provides you with sufficient notice  of your termination or payment in lieu of notice.  Your employer can, however, terminate your employment without any notice if it has “ “just cause” to do so.  This will include situations in which you have breached your terms of employment either through misconduct, disobedience, or incompetence.

Contextual Approach to Just Cause for Termination

What constitutes just cause depends on a number of factors. In Canada, the courts use a contextual approach to determine whether an employee was terminated for just cause.  They consider the nature and extent of the misconduct, the context and surrounding circumstances and whether the termination or dismissal is warranted (in other words, whether the punishment fits the crime).

Grounds for Termination

1. Neglect of Duty

Whether or not you have a written employment contract, you have an obligation to perform your employment duties. Failure to perform your duties can lead to dismissal. Constantly arriving late for work or simply not showing up for work on a regular basis may be also considered just cause for dismissal if you do not have a reasonable explanation for this behavior.

2. Dishonesty

Trustworthiness is a key factor in any employment relationship. Acts of dishonesty may therefore constitute just cause for dismissal depending on the context and the circumstances of the case. For example, lying to your employer about an important qualification for the position can constitute just cause for dismissal.  Lying to the employer in order to cover up misconduct can also lead to dismissal unless there are mitigating circumstances such as an immediate retraction of the lie.  Whatever the circumstances, honesty is always the best policy.

3. Theft and Fraud

Theft and fraud constitute serious misconduct which, even if isolated, may amount to just cause for termination. Examples of such behavior include improper use of company funds, wrongful use of the employer’s property, abuse of sick leave and conducting personal business on company time. Because these are serious allegations, an employer must be able to prove that you intended to steal or commit fraud. As stated above, the context and surrounding circumstances must be considered in order to determine if there is just cause for dismissal.  For example, an employer may not have just cause to terminate an employee who makes an error in judgment if there was no dishonest motive.  Given the seriousness of allegations of theft or fraud, the employer must also give an employee an opportunity to provide a reasonable explanation for his conduct.

4. Misconduct

An employee may be terminated for cause for engaging in serious misconduct. Such misconduct is usually incompatible with the employee’s duties and prejudicial to the employer’s business.  Examples may include sexual harassment or assault of a co-worker and off-duty criminal conduct which is prejudicial to the employer’s reputation.  Once again, whether the misconduct constitutes just cause for dismissal will largely depend on the nature of the misconduct, the context and surrounding circumstances and whether the termination is reasonable.

5. Incompetence

An employer may not terminate you simply because he is dissatisfied with your performance. In order for an employer to allege just cause in terminating you for incompetence, the employer will have to show that you were warned that you were failing to meet objective standards of performance and that, despite these warnings and the opportunity to improve, you continued to underperform.

Conclusion

Many factors need to be taken into consideration in order to determine whether the employer had just cause to terminate your employment. If you have been terminated without notice for “just cause”, you should seek advice from an employment lawyer.

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.

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

The scheme recently enacted under the Canada Labour Code to address workplace violence was recently subject to its first interpretation by the courts: in PSAC v Attorney General of Canada, 2014 FC 1066, the Federal Court considered Part XX of the Canada Occupational Health and Safety Regulations, which imposes a host of obligations on employers to prevent and respond to workplace violence. The Court’s decision affirmed the broad definition of workplace violence under the Regulations, and the mandatory obligations on employers to appoint an impartial person to investigate employee complaints.

Part XX of the Canada Occupational Health and Safety Regulations

Part XX of the Regulations, titled “Violence Prevention in the Work Place”, was enacted in 2008. It forms part of the health and safety scheme under the Code, and therefore its purpose is to prevent accidents and injury to health.

Part XX defines workplace violence as “any action, conduct, threat or gesture of a person towards an employee in their work place that can reasonably be expected to cause harm, injury or illness to that employee.” The Regulations impose several obligations on employers to address workplace violence, including:

• To develop a workplace violence prevention policy;
• To identify the factors that contribute to workplace violence;
• To assess the potential for violence in the employer’s workplace, and to develop and implement controls to eliminate or minimize violence;
• To train employees on the factors that contribute to workplace violence.

Section 20.9 of the Regulations requires the employer to appoint a “competent person” to investigate any allegation of workplace violence that comes to the employer’s attention. A “competent person” is defined as someone who is impartial and seen to be impartial, has expertise related to workplace violence, and has knowledge of the legislation. It was the interpretation of this provision that formed the subject matter of the recent Federal Court decision.

Federal Court judgment interpreting Part XX of the Regulations

On January 27, 2014, an Appeals Officer of the Occupational Health and Safety Tribunal Canada issued the Tribunal’s first decision interpreting Part XX of the Regulations. The Appeals Officer found that the complaint at issue in the case—a complaint of psychological harassment by a supervisor—did not constitute an allegation of workplace violence, and therefore the employer was under no duty to appoint an investigator. The Federal Court overturned that decision in its judgment, dated November 13, 2014. The Court’s judgment clarifies the interpretation of section 20.9 in several key respects, and supports a broad reading of the Regulations and the obligations on employers to respond to complaints of workplace violence.

1. Harassment may constitute workplace violence

The Court clearly held that the definition of workplace violence is broad enough to include harassing conduct that causes mental or psychological harm, thus flatly rejecting the Appeals Officer’s finding that workplace violence excludes harassment. The Court held that “to find otherwise would unduly restrict the definition of work place violence and not give a purposive construction to that definition.”

2. The Employer may not unilaterally act as investigator of a complaint of workplace violence

The Court found that employers are permitted to engage in fact-finding in order to facilitate possible resolution of employee complaints, but an employer representative cannot act as the investigator, unless the employee agrees that the representative is an impartial person. The Court therefore held that the member of management who purported to conduct an investigation in this case was not competent to do so.

3. The obligation to appoint an impartial investigator is mandatory

The Court made a clear finding that, unless it is plain and obvious on the face of the complaint that it does not relate to workplace violence, the employer is under a mandatory duty to appoint an impartial person to investigate the complaint. The Court therefore overturned the Appeals Officer’s decision, which permitted the employer to conduct its own inquiry into the bona fides of the complaint before deciding whether to appoint an investigator.

Important gains for federally regulated workers

The Court’s conclusions in this case corrected obvious errors in the Appeals Officer’s decision: the finding that harassment may constitute violence within the meaning of the Code brings this area of the law in line with the Tribunal’s past cases interpreting similar provisions. Interestingly, it is also consistent with the definition of workplace violence articulated by the government agency established to promote workplace health and safety—the Canadian Centre for Occupational Health and Safety defines workplace violence broadly, and as including harassment and verbal abuse.

This judgment was nonetheless an important gain for workers, because it grants access to the mechanisms under Part XX to seek redress for harassment in the workplace. Harassment is a difficult issue, and it is often inadequately addressed by employers’ internal harassment policies. It is therefore encouraging to know that the process under Part XX—particularly, the mandatory appointment of an impartial investigator—is now available for federally regulated workers that experience harassment. The regime under Part XX differs significantly from traditional mechanisms to address harassment: the emphasis is on taking measures to prevent a recurrence. Time will tell whether this approach, rather than one focused on discipline or monetary compensation, is more effective at resolving situations of workplace harassment.

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