Privacy in the Workplace Established Rules – New

Transcription

Privacy in the Workplace
Established Rules – New Applications
Chantal Bernier
June 5, 2015
1
Established Rules
05 June 2015
2
1. Privacy Is A Fundamental Right
• Read into section 8 of the Charter on Rights and Freedoms
• Subject to “reasonable limits”, section 1
• “Reasonable limits” from R v. Oakes 1986, 1 SCR 103 ” 4 part test of
• Necessity
• Proportionality
• Effectiveness
• Lack of alternatives
• Federal applicable law deemed quasi-constitutional
• Privacy Act : Lavigne v. Canada 2000 214 D.L.R. (4th) 1
• PIPEDA: Alberta Information and Privacy Commissioner v. UFCW Local
401, 2013 SCC 62
• Significance: right to privacy is unalienable but may be limited
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2. Limits To Privacy In The Workplace
• “Personal information “does not include the name, title or business
address or telephone number of an employee of an organization”
• Personal Information Protection and Electronic Documents Act,
(PIPEDA) s. 2 (1)
• Proposed amendment to exclude “business contact information of an
individual (…) solely for the purpose of communicating or facilitating
communication with the individual in relation to their employment,
business or profession. “
• Bill S-4 Digital Privacy Act, clause 4
• Significance:
• Accountability is balanced with privacy in the workplace
• Bill S-4 seeks to correct anomaly of excluding professional email address from
business information
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3. Identifying The Permissible Limits
• Necessity: collection must be demonstrably necessary to the
professional relationship
• For e.g.: medical information: no more than medical certification of need for
leave and duration
• Proportionality: no collection beyond strict necessity
• For e.g.: no diagnosis information
• Effectiveness: the objective for collecting the information is fulfilled
• For e.g.: integrity of the sick leave plan
• Lack of a less intrusive alternative: no other way to fulfill objective
• For e.g.: allowing leave without medical information leads to abuse
• Significance: employers should assess, through a PIA, the privacy
implications of any planned workplace policy in light of the 4 part test
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4. Implementing The Permissible Limits
1. Identify applicable law
2. Adopt a governance structure to ensure privacy in the workplace
1.
Designated official with reporting structure for privacy compliance
2.
Regular audits to ensure privacy compliance
3. Devise workplace policies of the basis of evidence of operational need
4. Submit planned policies to PIA
5. Adopt privacy respectful workplace policy
6. Notify employees on a timely basis
7. Train employees on privacy in the workplace
8.
Safeguard employee information
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The Risks, if Not…
• Risk of unlawful collection or use of personal information
• E.g.: one organization requested diagnostic information about family member to
justify caregiving leave for the employer
• Unlawful disclosure
• E.g.: one executive performance assessment mistakenly sent to 321
employees
• Breach
• E.g.: lack of access controls allowed one employee unauthorized access to
personal information of another
• Implementation of overly intrusive practices
• E.g.: using GPS to track employees on and off duty
• Significance: loss of employee trust, exposure to tort liability
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Employee Remedies
• Federal public and private sector (Privacy Act and PIPEDA)
• Complaint to Office of the Privacy Commissioner of Canada (OPC)
• Possible naming
• Provincial public sector (Freedom of Information and Protection of
Privacy Act)
• Complaint to the Office of the Information and Privacy Commissioner(OIPC)
• Publication of report
• Provincial private sector
• Grievance where applicable
• Torts – intrusion upon seclusion (Jones v Tsige, 2012 ONCA 32
• Significance: legal gap in provincially regulated private sector in
provinces under PIPEDA (Ontario) and risk of litigation and reputational
damage
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New Applications
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Employee Computer Use Monitoring
• BC OIPC Investigation Report F 15-01 Use of Employee Monitoring Software
by the District of Saanich
• Employees have the right to privacy in the workplace
• Privacy may be restricted only as necessary and proportionate in relation to reasonable corporate
objectives
• To ensure proper balance of objectives, employers should
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Develop clear policies on privacy in the workplace
Have a governance structure to ensure compliance and conduct audits
Perform PIAs on any program that nay have privacy implications
Implement risk mitigations strategies to address privacy risks brought in the PIA
Notify employees
Train employees
• R v Cole 2012 S.C.C. 53 on employer access to employee computer content
• Employee expectation of privacy is limited by employer’s justified need to monitor
• Workplace privacy policies should be made clear to employees
• Significance: comprehensive workplace privacy policies are key
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Video Surveillance
• Eastwood v. Canadian Pacific Railway, 2004 F.C. 852
• Video surveillance is compliant with PIPEDA where
• There is demonstration of need (eg protecting property)
• Surveillance is proportionate to that need (e.g. limited to the area of the property that require
surveillance to meet the purpose
• There is no collection of information without consent in that employees are properly notified
• Surveillance information is used for the purpose announced
• Informtaion is kept secure
• Significance:
• Video surveillance is not prohibited
• But it must be needed, proportionate, effective and with no less intrusive
alternative
• This excludes, generally, employee performance surveillance
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GPS Tracking
• BC OIPC found GPS tracking at ThyssenKrupp Elevator Ltd and Kone
Inc, compliant considering:
• Reasonable purpose, namely efficiently deploy staff, locate mechanics in time
of emergency, and produce accurate billing
• No performance assessment
• Information accessed only in case of a complaint
• Proportionate and consistent use
• One policy well communicated (one was not and was found non-compliant)
• Significance:
• GPS tracking is allowed for safety, efficiency and productivity
• Staff must be duly notified for tracking to be compliant
• Tracking cannot be continuous
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Social Networking In The Workplace
• The OPC Guidance, for supervision:
• Employee expectations of privacy on Social Networking Sites (SNS) should be
low
• Employee privacy is further curtailed by employer right of supervision for SNS
use on work computers
• Personal information remains personal on SNS and employer collection of
employee personal informational on SNS is subject to privacy law
• Violation may lead to grievance, complaint or law suit
• For recruitment,
• Applicants should be aware of accessibility of personal information on SNS
• Information of SNS is not authoritative so request for access is not justified
• Significance:
• Grey area becoming clearer in the U.S. prohibiting access to SNS
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BYOD
• The privacy principles at play:
• Safeguards
• “Personal information shall be protected by security safeguards appropriate to
the sensitivity of the information”
• The measures of protection should include physical measures, organisational
measures, and technological measures
PIPEDA Schedule I 4.7
• Collection and use
• Limited to what is necessary
• The application:
• BYOD is a reality, officially or unofficially, not it needs to be managed
• Safeguards must correspond to organization’s type of data holdings
• Supervision may extend to collection and use corresponding to data holdings
• Significance: for or against, get a BYOD policy - now
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A Constant Risk - HR
• In most organisations, HR holds the most sensitive information
• In spite of heightened awareness, HR is major vulnerability with
consequential breaches, for e.g.:
• Email, used even in highly sensitive circumstances
• Collection of information is overly broad, and should be restricted even if
provided by the employee
• Employer-employee disputes are too often left to the manager where only HR
should be privy to the information
• Access controls are often too wide, allowing abuse of entitlement
• Generally, supervisors do not need to know the employees personal address
• In reference checks, only work-relevant information can be shared
• Significance: there should be specific employee privacy protection for
HR treatment of information
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The Upshot
• This is a situation where the employer and the employee “have the
goods on each other” – potential damage is high and must be managed
• Employees do not lose their right to privacy in the workplace; employers
cannot restrict it beyond what is necessary for objectives related to the
workplace and justified by necessity
• Even justified curtailment must be transparent
• Privacy policies in the workplace must stay abreast of constant and rapid
change in devices, platforms and social norms
• Privacy in the workplace is about being an employer of choice
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Thank you
Dentons Canada LLP
77 King Street West
Suite 400
Toronto, Ontario M5K 0A1
Canada
Dentons Canada LLP
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Suite 1420
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Canada
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OHS Caselaw Highlights from 2014-2015
Fines, jail, conviction trends, Facebook, privilege and
much more
Adrian Miedema and Chelsea Rasmussen
5 June 2015
$1.24 Million in Total Fines: Metron / Swing N Scaff
• Swing N Scaff Inc.: $350,000 (OHSA)
• Patrick Deschamps, Director of Swing N Scaff: $50,000 (OHSA)
• Metron Construction Corporation: $750,000 (Criminal Code – Bill C-45)
• Joel Swartz, Director of Metron: $90,000 (OHSA)
5 June 2015
Dentons Canada LLP
Company that met or exceeded many industry
standards still guilty of OHSA charges: Semple
Gooder
• Worker fell off roof after removing parts of guardrail system
• Company had “generally met or exceeded many industry standards in its
operations”, had clear internal policies, weekly production meetings to
discuss safety topics, and “Toolbox Talks”.
• None of that was enough to establish the “due diligence”
• Company convicted of two OHSA charges
5 June 2015
Dentons Canada LLP
“Zero Tolerance” Criticized: U.S. Steel
• Random vehicle search: flavoured vodka
• Zero-tolerance policy
• Automatic penalty rejected
5 June 2015
Dentons Canada LLP
MOL Sued in 2 Separate Actions:
Marupov and Quinte
• Marupov: lone survivor alleges MOL:
• failed to enforce statutory requirements for safety
• failed to properly train its employees to inspect the scaffolding
• hired employees who were incompetent and did not use the requisite care in inspecting
the premises and the scaffolding
• Quinte: Elliot Lake Mall collapse. Alleging that:
• More than 130 MOL inspections at the Mall over 30 years
• MOL had received numerous complaints, including water leakage
• MOL inspectors negligent: should have followed up with reasonable
investigations
5 June 2015
Dentons Canada LLP
Despite Having WSIB Coverage, Worker Permitted to
Sue Executive Officer: WSIAT Decision No. 727/13
• Executive allegedly “massaged” her neck, allegedly injuring her
• Executive officer known to be physically demonstrative and had been
warned by HR
• WSIAT decided that court action against Executive officer could proceed
because:
• Executive “deviated substantially from his regular activity as an executive officer”
• Had nothing to do with his work duties
• As such, he was not acting in an employment-related capacity
5 June 2015
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Growing Sensitivity about Privacy of Medical / OHSA
file: Feres v. TTC
• HRTO case: post-traumatic stress
• Subs. 63(2) of the OHSA states:
“No employer shall seek to gain access, except by an order of the court or other
tribunal or in order to comply with another statute, to a health record concerning a
worker without the worker’s written consent.”
• HRTO decision: granted access to Occupational Health and Claims
Management file
5 June 2015
Dentons Canada LLP
Notes Taken Post-Accident can Lose Privilege if
Used to Refresh Memory: R. v. Sachkiw
• Charge: failing to provide “Approved Screening Device” sample
• Took notes afterwards
• Used notes to refresh memory before testifying at trial
• Notes lost litigation privilege
5 June 2015
Dentons Canada LLP
OLRB Will Now Hear Harassment Cases:
Ljuboja v. Aim Group Inc.
• Reprisal / retaliation case
• No OHSA duty to prevent harassment
• But OLRB agreed to hear claim that employer retaliated against
employee for raising harassment issue
5 June 2015
Dentons Canada LLP
$20,000 Fine after HR Staff, Supervisor Fail to
Immediately Report Accident to MOL:
R. v. Walinga Inc.
• Loaded skid tipped and worker’s leg became trapped under parts
• Suffered broken bone: “critical injury” under the OHSA
• Employee told his supervisor and, later, human resources staff that he
had broken his leg
• Four days later, Ministry of Labour contacted company. HR staff said
company in the process of reporting to the Ministry of Labour
• Charged with failing to immediately report under s. 51(1). Fined $20,000
5 June 2015
Dentons Canada LLP
MOL Inspector Charged with Extortion:
Joseph Ah-Hone
• Allegedly requested money from the owner of a business after a safety
audit revealed the business did not comply with certain provincial
standards
• Charged with breach of trust, accepting a benefit from a person having
dealings with government, and extortion
5 June 2015
Dentons Canada LLP
Facebook threats get employee fired for cause:
Tenaris Algoma Tubes Inc.
• Employee displeased with female co-worker “X” after incident at work
• Went home and complained about X on Facebook
• Employee’s dismissal upheld
5 June 2015
Dentons Canada LLP
36-year employee dismissed for one incident of
violence: Firestone Textiles Company
• Lunch room incident – cut to forearm
• “You are lucky that I didn’t stab you in the heart”
• 36 years, 57 years old
• Employee’s dismissal upheld
5 June 2015
Dentons Canada LLP
Employee properly dismissed for yelling, swearing,
abusive conduct: Certainteed Insulation
• Altercation: yelling, swearing, “fatass”, reference to sexual orientation,
but no punches thrown
• Arbitrator: “particularly hurtful comments directed at an individual’s
appearance can, even in the absence of physical violence, warrant
termination of employment”
• Had read company’s “Golden Rules”, did not apologize
• Dismissal upheld
5 June 2015
Dentons Canada LLP
False assault allegation against supervisor was
cause for dismissal: DB Ontario Inc.
• Alleged that his supervisor deliberately ran into him with a sharp blow
from his shoulder
• Video camera evidence
• Arbitrator: false allegation “could have extremely negative
consequences” for supervisor
• Dismissal upheld
5 June 2015
Dentons Canada LLP
Supervisor Jailed 45 Days for Violation of OHSA:
R. v. Lootawan
• Garbage removal and hauling company
• Worker permanently paralyzed after fell off roof
• Supervisor convicted of failing to provide fall protection and ensure that
worker wore it
• Jailed for 45 days
• Previously convicted of 6 offences under the Environmental Protection
Act, including submitting false or misleading information to the Ministry of
Environment; have been previously jailed for EPA offences, and had
more than $50,000 in unpaid fines
5 June 2015
Dentons Canada LLP
Two company directors jailed: R. v. Purba and Saini
• Worker fell off order picker and died
• No health and safety training, fall protection equipment provided
• Two corporate directors pleaded guilty
• 25-day jail sentence, to be served on weekends
• Employer New Mex Canada Inc. was fined $250,000
5 June 2015
Dentons Canada LLP
Company owner fined for failing to cooperate with
MOL inspector: R. v. Malek
• Helicopter evacuation of crane operator
• Owner did not provide all information requested by MOL inspector
• Inspector unable to reach owner to interview him
• Owner personally fined $19,000.00: failing to furnish information, and
failing to assist inspector
• Company also fined $8,000.00
5 June 2015
Dentons Canada LLP
Company Found Guilty, Fined $110,000 For Failure to
Comply With Orders: R. v. Harbour Sports Grille
• Employer in Toronto failed to comply with 13 orders under OHSA
• Orders included failing to set up JHSC and failing to have harassment
and workplace violence policies in place.
• MOL charged company under OHSA with failing to comply with 13 orders
• The company fought the charges and lost: $110,000.00 fine
5 June 2015
Dentons Canada LLP
Results of Occupational Health and Safety Act Charges
(Combined for Corporations and Individuals)
Figure 1
Charges stayed
1%
Pleaded guilty and let the
court decide the amount of
the fine
6%
Pleaded guilty and negotiated
fine with MOL
55%
5 June 2015
Dentons Canada LLP
Withdrawn-other party
convicted
22%
Withdrawn-no other party
convicted
10%
Convicted after trial
4%
Acquitted after trial
2%
Number of OHSA Convictions Declining
Year
Convictions
2013/14
780
2012/13
814
2011/12
903
2010/11
948
2009/10
1,164
2008/09
1,303
5 June 2015
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Canadian OHS Blog
5 June 2015
Dentons Canada LLP
Employees, Dependent
Contractors and Independent
Contractors:
What Employers Need to Know
Andy Pushalik and Timothy Fitzsimmons
June 5, 2015
Agenda
• Employees vs. Independent Contractors – Why does it matter?
• The Legal Test –Employee or independent contractor? Factors?
• What is a Dependent Contractor?
• Consequences of Misclassification
• How to Minimize Your Risk of Misclassification
June 5, 2015
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2
Employees vs. Independent Contractors –
Why does it matter?
• Statutory Implications:
• Income Tax Act and Excise Tax Act
• Employment Insurance Act and Canada Pension Plan
• Employment Standards Act, 2000 / Canada Labour Code
• Workplace Safety and Insurance Act, 1997
• Occupational Health and Safety Act (maybe)
• Ownership of Intellectual Property
• Reasonable Notice of Termination
June 5, 2015
Dentons Canada LLP
3
The Legal Test
• Is worker performing services as his/her own business on his/her own
account?
• Search for the “total relationship” of the parties
• Whose business is it?
• Traditional Factors:
• Control
• Ownership of Tools
• Chance of Profit / Risk of Loss
• Wiebe Door Services Ltd. v. Canada (M.N.R.) [1986] 3 F.C. 553
• 1671122 Ontario Ltd. v. Sagaz Industries Canada Inc. (2011 SCC 59)
• But … intention of parties?
• Wolf v. The Queen, 2002 DTC 6053 (Fed C.A.)
• Royal Winnipeg Ballet v. Canada (M.N.R.), 2006 FCA 87
June 5, 2015
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The Legal Test - 1392644 Ontario Inc. (o/a Connor
Homes) et al. v. The Queen
• Two-step test:
• First, subjective intent of each party must be ascertained
• i.e., written contracts, invoices, documents, conduct, etc.
• Second, ascertain whether “objective reality” sustains the subjective intent of
the parties
• Consider the Wiebe Door factors to determine whether the facts are consistent with the
parties’ expressed intention (i.e., control, ownership of tools, chance of profit/risk of
loss)
• Central question remains whether the worker is performing services as a
person in business on his own account
• No particular factor is dominant and no set formula
June 5, 2015
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Dependent Contractors
• Falls between employee and independent contractor
• McKee v. Reid Heritage Homes, 2009 ONCA 916:
• “I conclude that an intermediate category exists, which consists, at least, of
those non-employment work relationships that exhibit a certain minimum
economic dependency, which may be demonstrated by complete or nearcomplete exclusivity. Workers in this category are known as “dependent
contractors” and they are owed reasonable notice upon termination.”
• How much reasonable notice?
June 5, 2015
Dentons Canada LLP
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Consequences of Misclassification
• How do investigations into the status of a worker arise?
• Audit/Investigations by government agency (i.e., CRA, WSIB)
• Worker applies for employment insurance benefits
• Worker applies for workers’ compensation benefits
• Work commences an employment standards complaint for vacation pay,
overtime pay, termination pay, etc.
June 5, 2015
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Consequences of Misclassification
• Failure to withhold and remit income tax from compensation paid to
worker
• Penalties (10%) and interest
• Failure to withhold and remit CPP contributions (employer and employee
portions) and EI premiums (employer and employee portions)
• Employer will be required to pay both the employee and employer
contributions/premiums
• Penalties (10%) and interest
• Employer Health Tax (Ontario)
• Failure to properly calculate WSIB Premiums
• Unpaid premiums for up to 2 years plus interest and penalties
June 5, 2015
Dentons Canada LLP
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Consequences of Misclassification – Directors’
Liability
• Employment Standards Penalties – All debts not exceeding 6 months’
wages that become payable while individuals are directors, for services
performed for the corporation and for the vacation pay accrued while
they are directors
• Tax – CPP contributions and EI premiums
• Due diligence defence
• Director not personally liable for failure to remit where the director exercised the
degree of care, diligence and skill to prevent the failure to remit that a
reasonably prudent person would have exercised in the circumstances
June 5, 2015
Dentons Canada LLP
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Audit – What Next?
• WSIB
• Audit
• Appeals Resolution Officer
• WSIAT
• Tax – Income Tax, CPP, EI, Ontario EHT
• Audit
• Objection
• Appeal
• Reassessment is not a determination of liability!
June 5, 2015
Dentons Canada LLP
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How to Minimize Your Risk of Misclassification
• Ensure initial classification is defensible
• Prepare a written contract
• Describe / confirm the parties’ intent to create an independent contractor
relationship and not an employment relationship
• Indemnity provisions
• Termination provisions
• Confirm that worker is responsible for payment of taxes, WSIB premiums,
CPP/EI remittances
• Use “contractor language” vs “employment language”
• i.e., fees vs. salary; fundamental breach vs. just cause
• No benefits for contractors
June 5, 2015
Dentons Canada LLP
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How to Minimize Your Risk of Misclassification
• Worker provides own tools
• Compensation
• Fees not salary
• Commissions
• Invoices (fee plus GST/HST)
• Expense reimbursement
• Minimize the amount of control exercised
• Uniforms? Business cards? Office space?
• Hours / scheduling?
• Outside activities? Non-competition?
• Performance review? Conduct manual?
June 5, 2015
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Questions and Thank you
Andy Pushalik
[email protected]
+1 416 862 3468
Timothy Fitzsimmons
[email protected]
+1 416 361 2339
© 2015 Dentons. Dentons is a global legal practice providing client services worldwide through its member firms and affiliates. This publication is not designed to provide legal or other advice and you should not take, or refrain from taking, action
based on its content. Please see dentons.com for Legal Notices.
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Termination Of Employment:
Update and Practical Tips
June 5, 2015
Matthew Curtis
Tel: 416 367-6767
[email protected]
Carmen Francis
Tel: 416 862-3452
[email protected]
Overview
1. Reasonable Notice Update
2. Just Cause Update
3. Tips on Managing a Termination of
Employment
05 June 2015
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Reasonable Notice – A Primer
• Employers terminating an employee on a “without cause” basis are
required to comply with minimum standards pursuant to the ESA
• Statutory notice of termination and benefit continuation
• In some cases, statutory severance pay
• However, absent a valid and enforceable termination clause, implied
obligation to provide common law reasonable notice of termination
• Rationale: provide employees with sufficient opportunity to seek alternate
employment
• Practical Reality: significantly increases costs associated with termination of
employment
05 June 2015
Dentons Canada LLP
3
How is Reasonable Notice Calculated?
• Bardal factors continue to govern:
• Age
• Length of service
• Character of employment
• Type of work
• Degree of expertise/training
• Compensation level
• Availability of comparable employment
(+ Circumstances surrounding the hiring)
• Distribution of weight?
05 June 2015
Dentons Canada LLP
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Reasonable Notice Update
• The Hyrniak Effect
• Hyrniak v. Mauldin 2014 SCC 7
• Confirms assessment of reasonable notice period can be made on motion
for summary judgment, where no other contentious issues
• Practical implications?
05 June 2015
Dentons Canada LLP
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Reasonable Notice Update – cont’d
• The reasonable notice “rules of thumb”
• One month per year of service
• Notice periods capped at 24 months
• Employees only “bridged” to age 65
Do these rules of thumb still apply?
05 June 2015
Dentons Canada LLP
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Reasonable Notice Update - cont’d
• Short service employees and “disproportionate” notice periods
• Cao v. SBLR LLP, 2012 CarswellOnt 9184
• Relevance of prevailing economic climate
• Gristey v. Emke Schaab Climatecare Inc., 2014 ONSC 1798
• Pushing the reasonable notice ceiling upwards?
• Hussain v. Suzuki Canada, 2011 O.J. No. 6355
• Presumptive retirement age of 65?
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Reasonable Notice Update – cont’d
Conclusion? Valid Termination Clause!
00 Month 2013
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Just Cause Update
General Rule: An employment contract can only be lawfully terminated by
an employer if the employer gives the employee reasonable notice of
termination or payment in lieu.
Exception: where there is just cause for dismissal, the employer may
terminate the employment relationship immediately without notice or
payment in lieu.
Dismissals for just cause should be approached with careful consideration
and thought beforehand.
05 June 2015
Dentons Canada LLP
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Just Cause Update – cont’d
The employer bears the onus to prove just cause.
Whether just cause exists is a question of fact and there is a high legal
threshold in Ontario.
Courts continue to use a contextual approach over an absolute rule that
certain kinds of misconduct are always just cause for dismissal
• whether the employee has engaged in misconduct to a degree
incompatible with continued employment.
• seek a balance or proportionality between the employee’s misconduct
and the sanction imposed.
05 June 2015
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Proving just cause under the common law may differ from proving it under
statute
Does the employee’s behaviour constitute wilful misconduct, disobedience
or wilful neglect of duty?
05 June 2015
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Off-Duty Conduct
• Does the employer’s policy apply to the conduct, such as
a social media policy?
• Did the conduct sufficiently harm the employer’s
reputation and/or interests?
05 June 2015
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Tips on Managing a Termination
• Is there an enforceable written offer letter or employment
contract with a termination clause that crystalizes the
employer’s notice obligation?
• Do you have just cause for termination of employment?
• Is there anything about the termination that makes it different
or unique such that it might pose additional risks? (i.e.
human rights consideration)
• Potential for workplace violence? Notify security and police
in advance.
05 June 2015
Dentons Canada LLP
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Tips on Managing a Termination – cont’d
• Have a witness present for the termination meeting.
• Have a termination script and do not deviate from it.
• A letter of termination should be handed to the employee at the end of the
meeting.
• Maintain a professional tone that is respectful but firm. This is not a negotiation.
• Have IT and security protocols in place to remove access immediately.
• Consider return of the employer’s property and the prompt return of employee’s
personal items.
• Arrange with payroll for statutory termination payments to be made quickly.
• Consider length of benefit continuance and whether to make a severance offer
for a signed Release.
05 June 2015
Dentons Canada LLP
14
Questions?
For more information, please feel free to contact:
Matthew Curtis
Associate
Carmen Francis
Associate
416 862-3452
[email protected]
416 367-6767
[email protected]
05 June 2015
Dentons Canada LLP
15
Ontario Retirement Pension Plan:
What You Need to Know Now
Heather Di Dio
June 5, 2015
1
Ontario Retirement Pension Plan (ORPP)
• Bill 56: An Act to require the establishment of the Ontario
Retirement Pension Plan received royal assent on May 5,
2015
• Requires Ontario government to establish ORPP by January
1, 2017
• New mandatory defined benefit type pension plan for Ontario
workers (with certain exceptions)
• Final details on plan design not yet released
05 June 2015
2
Similarities with the Canada Pension Plan (CPP)
• Predictable income stream in retirement for life
• Index benefits to inflation
• Pool longevity and investment risk
• Equal employer and employee contributions
• Aim to replace 15% of an individual’s earnings
• Benefits earned as contributions are made
• Locked-in contributions and accumulated benefits
05 June 2015
3
How the ORPP Will Work
• Employers and employees would be enrolled in stages
starting in 2017, beginning with the largest employers
• Employer and employee contributions of up to 1.9% each
(total 3.8%) on an employee’s annual earnings up to
$90,000
• Ontario government considering mirroring CPP’s minimum
earnings threshold of $3,500
• Contributions to be phased in over 2 years
• Benefit amount depends on years of contributions to the
ORPP and salary throughout those years
05 June 2015
4
Who Will Be Required to Participate?
• Unclear at this time
• Federally-regulated employees will be exempt
• Employees participating in a “comparable” workplace
pension plan will also be exempt; however, we do not know
what plans will be “comparable”
• Ontario government’s preferred approach is to only include
defined benefit and target-benefit multi-employer pension
plans as “comparable” plans
• ORPP proposed to be structured as a multi-employer
pension plan; current rules would preclude self-employed
individuals from participating
05 June 2015
5
Consultation with Stakeholders
• Consultation paper on key design questions released in
December 2014; invited feedback from stakeholders
(comments were due February 13, 2015)
• Over 1000 submissions received
• Associate Minister of Finance, Mitzie Hunter, also held series
of consultations in early 2015 on ORPP plan design
• Public hearings held by the Standing Committee of Social
Policy in Toronto on March 23, 24, 30 and 31, 2015
• Hearings showcased the division between businesses and labour groups
• Business organizations advocated for flexibility in the exemptions from
participation in the ORPP (e.g. DC pension plans = comparable plan)
• Labour organizations applauded the government’s efforts and some even
encouraged mandatory participation for everyone
05 June 2015
6
Interesting Issues To Consider
• Assume only defined benefit and target-benefit pension
plans are “comparable”
• If an employer has a defined benefit pension plan with an
eligibility waiting period, will those employee be required to
contribute to the ORPP during the waiting period?
• Should an employer who has a defined contribution pension plan
or group RRSP change its benefits program?
• If an employer is required to participate in the ORPP and has
employees in different jurisdictions, this could result in
employees being offered different benefits across Canada
05 June 2015
7
What’s Next
• Plan design details to be released “soon”
• Cost-benefit analysis to be prepared and a report tabled in
the legislative assembly by December 31, 2015
• Ontario Retirement Pension Plan Administration Corporation
to be created to administer the ORPP
•
•
•
•
Responsible for enrolment
Collect, hold and invest contributions
Administer benefits
Communications and annual report
• Federal government announced late May its intention to
explore the possibility of permitting voluntary contributions to
the CPP
05 June 2015
8
How to Prepare for the ORPP
• Employers should review their current employee benefit
arrangements and understand how their plans work
• Engage in discussions with service providers to discuss
possible impact to organization, including:
• Payroll support and administration
• Benefits consultants
• Legal advisors
• Internal discussions within organization on possible changes
to employee benefit plans, if the company is required to
participate in the ORPP
• Consider multi-jurisdictional issues, if applicable
05 June 2015
9
QUESTIONS?
05 June 2015
10
Thank you
Dentons Canada LLP
77 King Street West
Suite 400
Canada
Dentons Canada LLP
Accessibility for Ontarians with
Disabilities Act (AODA)
Update
Anneli LeGault
5 June 2015
Agenda
• What should be completed by now?
• What should be done next?
• What if it isn’t done?
Dentons Canada LLP
2
Recap
Customer Service
Accessible customer service plan
1 to 19 employees – Jan.1, 2012
20 to 49 employees – Jan. 1, 2012
50+ - Jan. 1, 2012
Training for public-facing employees
and those who prepare company’s
policies and practices
50+ - Jan. 1, 2012
Process for receiving and responding to 1 to 19 employees – Jan.1, 2012
feedback
50+ - Jan. 1, 2012
Notice of temporary disruptions in
services or facilities, if applicable
50+ - Jan. 1, 2012
Report online
1 to 19 employees – N/A
20 to 49 employees – Dec. 31, 2012
- Dec. 31, 2014
50+ - Dec. 31, 2012
- Dec. 31, 2014
Dentons Canada LLP
3
Recap
General Accessibility Requirements
Prepare accessibility policies
50+ - Jan. 1, 2014
Prepare statement of organizational
commitment
50+ - Jan. 1, 2014
Multi-year accessibility plan
50+ - Jan. 1, 2014
Training on AODA and Human Rights Code
disability provisions
(extra-provincial training requirement)
50+ - Jan. 1, 2015
Accessible self-service kiosks
50+ - Jan. 1, 2014
Accessible feedback process
50+ - Jan. 1, 2015
Dentons Canada LLP
4
What’s Next?
Stages of the employment relationship
• Recruitment
• Hiring
• Supports for employees
• Individual accommodation plan
• Return to work process
• Performance management
• Career development and advancement
• Redeployment (reassignment to avoid layoff)
Dentons Canada LLP
5
What’s Next?
Employment Standard
Individualized emergency response
information to employees with
disabilities
50+ - Jan. 1, 2012
Recruitment
Notify public of accommodations for
applicants with disabilities
50+ - Jan. 1, 2016
Inform employees, consult with
employees concerning accommodation, 20 to 49 employees – Jan. 1, 2017
provide communication support to
50+ - Jan. 1, 2016
employees
Dentons Canada LLP
6
What’s Next?
Employment Standard
In performance management take
accessibility of employees into account
50+ - Jan. 1, 2016
In career development and
advancement take accessibility needs
of employees into account
50+ - Jan. 1, 2016
Prepare individual accommodation
plans
50+ - Jan. 1, 2016
Return to work process
50+ - Jan. 1, 2016
Dentons Canada LLP
7
Employment
• Recruitment
• Notify public of accommodation for applicants with disabilities
• If select an applicant to participate in an assessment or selection
process, inform applicants that accommodations are available upon
request in relation to the materials or the processes
• If an accommodation request is received, consult with the applicant
about suitable accommodation and take into account accessibility
needs
Dentons Canada LLP
8
Employment
• Recruitment (contd.)
• Offers of employment
• Include notice of your policies for accommodating employees with
disabilities
Dentons Canada LLP
9
Employment Supports
• Inform employees of your policies used to support employees with
disabilities including a policy on providing job accommodations that take
into account an employee’s accessibility needs
• Inform new hires
• Inform employees when job accommodation policies are changed
• Upon request:
• Consult with the employee
• Accessible format
• Communication supports
Dentons Canada LLP
10
Individual Accommodation Plans (Small Employers
Are Exempt)
Establish a process for developing individual accommodation plans for
employees with disabilities
Contents –
• How the employee can participate in developing the plan
• How the employee will be assessed
• How outside medical and other experts will be involved
• How the employee can ask for union participation
• How the privacy of the employee’s personal information will be protected
• If the plan is denied, how reasons for denial will be forwarded to the
employee
Dentons Canada LLP
11
Return to Work (Small Employers Exempt)
• Return to work process for employees who are off due to disability and
require disability related accommodation to return to work
• Outline the steps
• Use individual accommodation plans as part of the process
• Accommodations may be temporary or permanent
• Often appropriate to work with the employee’s doctor on consent
Dentons Canada LLP
12
Performance Management
• If you use performance management ….
• Take accessibility needs of employees disabilities into account
• Take accommodation plans into account
Dentons Canada LLP
13
Career Development
• If you provide career development and advancement …
• Take accessibility needs of employees with disabilities into account
• Take individual accommodation plans into account
Dentons Canada LLP
14
Penalties For Non-compliance, Including Failure to
File an Accessibility Report
• Inspections
• Order to comply
• Failure to comply
administrative penalties $500 - $15,000
• Criminal prosecution
Dentons Canada LLP
15
Enforcement
• Ministry of Economic Development, Employment & Infrastructure has prepared a
Compliance Assurance Framework to ensure organizations will comply with the
AODA
• The process is not complaint based
• It is standards based
• Emphasis on education and outreach
• One on one assistance through the dedicated help-desk at ADO
• Audits are conducted to ensure organizations are fulfilling their obligations
• Companies are selected for audit based on risk and the answers provided in the
online accessibility report
• Audits are conducted on organizations that did not file a report, answered “No” to
one or more questions and also random audits on reports indicating full
compliance or exempt from reporting
Dentons Canada LLP
16
Audit
• If an organization is found to be non-compliant a Return to Compliance
Plan is negotiated
• Return to Compliance Plan will outline the steps to be taken, with
deadlines
• Failure to comply may lead to inspections or Director’s Orders
9 October 2013
Dentons Canada LLP
17
Inspection
• AODA Inspectors can conduct inspections, issue Director’s Orders to comply
and/or pay an administrative monetary penalty
• The government’s stated goal is compliance by 2025, not the issuance of fines
• A Notice of Proposed Order is issued before a Director’s Order can be issued
• The Notice explains why the company is not in compliance, what must be done to
comply and to avoid a penalty
• Usually 30 days to respond
• If an organization does not respond to the Notice a Director’s Order will be issued
• Director’s Order requires certain information to be filed, may include an
administrative penalty of $200 to $15,000
• Company may request review of Director’s Order within 30 days
• Companies may appeal a Director’s Order to the Licence Appeal Tribunal
• If an organization does not respond to the Director’s Order in any way it may face
fines and prosecution
Dentons Canada LLP
18
Licence Appeal Tribunal
• Tribunal hears appeals of Director’s Orders only
• It does not hear complaints from the public
• Members of public who complain are encouraged to contact the Human
Rights Commission/Human Rights Tribunal of Ontario
Dentons Canada LLP
19
Licence Appeal Tribunal
• Tribunal was created in 2000 to address appeals of decisions about licensing
activities regulated by a number of Ontario government ministries
• These include the Ministry of Economic Development, Employment &
Infrastructure as well as Community Safety and Correctional Services, Consumer
Services, Municipal Affairs and Housing, Transportation and the Attorney General
• The most common appeals involve liquor licence, motor vehicle impoundment,
medical suspension of driver’s licence, Ontario New Home Warranties Plan and
Motor Vehicle Dealers Act
Dentons Canada LLP
20
Licence Appeal Tribunal Decisions concerning the AODA
Examples:
Lafleur Restaurants – Failure to file online report
• $2,000 administrative penalty ordered
• Principal of Lafleur indicated he thought his bookkeeper had addressed the Order
• Penalty reduced to $500
Metaris Inc. – Failure to file online report
• $2,000 penalty
• Large company in the middle of a corporate re-organization
• Argued that they were not aware of the requirement to report
• Report was ultimately filed late
• Metaris argues that its business is not open to the public and there is no major impact
on the public and the penalty should be waived
Dentons Canada LLP
21
Licence Appeal Tribunal Decisions Concerning the AODA
– cont’d
J&A Creative Services Inc. – Failure to file online report
• $2,000 penalty
• Fewer than 20 employees
• However had 24 employees in 2012
• Correspondence from ADO not brought to the attention of the Principal of the company
• Company argues that it is an internet-based business and no customers enter its
premises
• Company currently has 16 employees
Echoworx Corporation – Failure to file online report
• $2,000 penalty
• Staffing changes; organization thought the report was done
Dentons Canada LLP
22
QUESTIONS?
Dentons Canada LLP
Thank you
Anneli LeGault
Dentons Canada LLP
[email protected]
+1 416 863 4450
© 2013 Dentons. Dentons is a global legal practice providing client services worldwide through its member firms and affiliates. This publication is not designed to provide legal or other advice and you should not take, or refrain from taking, action
based on its content. Please see dentons.com for Legal Notices.
Dentons Canada LLP
15399834
Dentons Canada LLP
Workplace Investigations:
Common Mistakes that Employers
Can Make – and How to Avoid Them
Blair McCreadie
June 5, 2015
Why this Matters to HR Professionals
• The role of an HR professional in conducting workplace
investigations is not new
• However, the expectations being placed on HR professionals are
increasing, given new statutory duties to prevent workplace
harassment and discrimination (and likely more to follow…)
• At the same time:
• Employees have a heightened awareness about their rights and employer
obligations; and
• The level of scrutiny being applied to internal investigations by judges,
arbitrators and administrative tribunals is also increasing
• Conducting an effective investigation can help an employer
manage its legal and reputational risk
June 5, 2015
Dentons Canada LLP
2
Common Mistakes that Employers can make in
Workplace Investigations
1. Failing to take proactive steps in response to “warning signs”
2. Failing to conduct an investigation
3. Failing to comply with applicable workplace policies
4. Failing to choose the right investigator
5. Failing to properly document the investigation
June 5, 2015
Dentons Canada LLP
3
Common Mistakes that Employers can make in
Workplace Investigations
6. Failing to provide procedural fairness to the respondent
7. Failing to remain neutral and objective throughout the
investigation
8. Failing to prepare an proper investigation report and/or to reach
a conclusion
9. Failing to advise the parties of the outcome
10. Failing to properly co-ordinate with other workplace
stakeholders or external third parties
June 5, 2015
Dentons Canada LLP
4
Mistake #1: Failing to Take Proactive Steps in
Response to “Warning Signs”
• Do not always wait for the formal complaint
• Where senior management is put on notice about alleged
misconduct, this may trigger a proactive obligation on the
employer to investigate in certain circumstances
• Recognize that due to workplace dynamics, it may be difficult for
certain complainants to come forward due to fear of reprisal
• Offer support through EAP
• Proceed cautiously but, if allegations are not isolated, then
employer may need to proactively launch investigation to avoid a
claim that it condoned the misconduct
June 5, 2015
Dentons Canada LLP
5
Mistake #2: Failing to Conduct an Investigation
• Courts, arbitrators and tribunals recognize that allegations of
harassment or serious misconduct may have a significant impact
on an employee
• An employee has the right to hear and respond to allegations
against them before a decision is made that will have a significant
impact on their employment
• Employer has obligation to conduct a fair and effective workplace
investigation – there can be additional liability where an employer
either fails to conduct a workplace investigation or fails to conduct
it properly
• Lessons learned: Disotell v. Kraft Canada (2010, Ont. S.C.J.)
June 5, 2015
Dentons Canada LLP
6
Mistake #2: Failing to Conduct an Investigation
• At outset, decide what type of investigation is required –
formal or informal?
• Consider the nature of the allegations
• A formal investigation is generally appropriate where:
• The allegations, if substantiated, would constitute serious misconduct
or prohibited discrimination or harassment;
• The allegations, if substantiated, could result in termination of
employment; or
• There is increased risk of litigation, public relations or media issues
• Even where a complaint is resolved informally, employer must
properly document the outcome and any resulting actions taken
June 5, 2015
Dentons Canada LLP
7
Mistake #3: Failing to Comply with Applicable
Workplace Policies
• Employers should have an anti-harassment policy that includes a
complaints procedure to investigate allegations of workplace
harassment or discrimination
• Before commencing a workplace investigation, review any
applicable workplace policies, codes of conduct and if unionized,
the collective agreement
• Determine whether those policies impose any additional
requirements or set any timelines for the investigation – and
comply with those obligations
• If unionized, an employer should also check when the right to
representation is triggered under their collective agreement
June 5, 2015
Dentons Canada LLP
8
Mistake #4: Failing to Select the Right Investigator
• Internal or external investigator?
• If external investigator, should it be a consultant or legal counsel?
• Some factors to consider include:
• The nature and severity of the allegations
• The identity of the person against whom the allegations are made
• Whether any particular expertise is required
• Workplace dynamics – is an external investigator seen as more impartial?
• Whether the parties have lawyers
• Whether there is a desire to maintain legal privilege over the investigation
• Financial cost
• Lessons learned: Elgert v. Home Hardware Stores (2011, Alberta
C.A.)
June 5, 2015
Dentons Canada LLP
9
Mistake #5: Failing to Properly Document the
Investigation
• The Complaint
• If it was made verbally, ask the complainant to set out the complaint in writing,
with as much detail as possible of the allegations
• If complainant is unable to provide a written summary, document the details of
complaint and provide it to complainant for comment
• Notice to Respondent
• Confirm any temporary changes to employment, if any (e.g. paid leave,
removing supervisory responsibilities)
• Caution against any interference with the investigation, including conversations
with potential witnesses and warn against taking any reprisal
• Remind respondent of any available counselling or EAP services
June 5, 2015
Dentons Canada LLP
10
Mistake #5: Failing to Properly Document the
Investigation
• Witness statements
• “Verbatim” notes are usually best – record just the facts and evidence
• Consider offering witness the opportunity to review and sign off
• If witness refuses to sign, document the refusal to sign and the basis for refusal
• Investigation report
• Communication of outcome to complainant and respondent
• Confirm outcome of investigation; general findings and conclusions only
• Emphasize importance of confidentiality and warn against taking any reprisal
• Lessons learned: Downham v. County of Lennox & Addington
(2005, Ont. S.C.J.)
June 5, 2015
Dentons Canada LLP
11
Mistake #6: Failing to Provide Procedural Fairness
• Identify the individuals who need to be interviewed as part of the
investigation:
• Complainant
• Respondent
• Other people who may have relevant evidence, or who have been identified by
the complainant or the respondent as potential witnesses
• Set the order of the interviews, and proceed on a timely basis
• When interviewing the respondent, must inquire with respect to all
material allegations, with particulars
• An employer must give the respondent a full and fair opportunity
to respond to all of the allegations made against him or her
June 5, 2015
Dentons Canada LLP
12
Mistake #6: Failing to Provide Procedural Fairness
• Ask each party to provide names of possible witnesses who
have material evidence, and follow up with those people
• Conduct follow up meetings with the complainant and
respondent, if required, to deal with additional information or
allegations that came to light during the other interviews
• Lessons learned: Chandran v. National Bank of Canada (2012,
Ont. C.A.)
June 5, 2015
Dentons Canada LLP
13
Mistake #7: Failing to Remain Neutral and Objective
• Do not “pre-judge” the outcome of the investigation
• Ensure that investigator has no connection to complaint or the
parties, and can truly be impartial and unbiased
• Review all interview scripts to confirm that questions are neutrally
framed
• Do not ask leading questions, or use “loaded” language that
suggests that a conclusion has already been made
• Do not prepare a termination letter or a letter of discipline – even
in draft – prior to the completion of the investigation
• Lessons learned: Vernon v. British Columbia (Liquor Distribution
Branch) (2012, BCSC); Stone v. SDS Kerr Beavers Dental (2006,
Ont. S.C.J.)
June 5, 2015
Dentons Canada LLP
14
Mistake #8: Failing to Prepare a Report and/or to
Reach a Conclusion
• Written report should be prepared at the conclusion of the
investigation, even if only a short summary memo
• Part One – Objective summary of allegations and evidence
(and make sure that it is complete and accurate)
• Part Two – Conclusions of fact and reasons
• Apply appropriate standard of proof, which is based on the “balance of
probabilities”
• Document any findings of credibility and the reasons for them
• Make sure conclusions are supported by the evidence that was received during
the investigation
• Part Three – Recommended course of action (if requested)
June 5, 2015
Dentons Canada LLP
15
Mistake #8: Failing to Prepare a Report and/or to
Reach a Conclusion
• Reach a conclusion as to whether or not complaint is
substantiated
• If report makes findings of credibility, say so and give reasons why
• If employer cannot determine who is telling the truth, then
determination may be that on a balance of probabilities, the
investigation was inconclusive
• In appropriate circumstances, decision-maker may adopt findings
of a well-reasoned investigation report
• Lessons learned: Downham v. County of Lennox & Addington
(2005, Ont. S.C.J.); but also Hoyes v. Woodbine Entertainment
Group (2011, HRTO), Newton v. City of Toronto (2010, HRTO)
June 5, 2015
Dentons Canada LLP
16
Mistake #9: Failing to Advise Parties of Outcome
• Once outcome of investigation has been determined, meet with
each of the complainant and respondent to advise them of the
outcome of the investigation – findings and conclusions only
• Remind parties about confidentiality and caution against reprisal
• Advise complainant of any recommended actions that will be
taken to prevent recurrence (and be sure to implement them)
• Employer has no obligation to advise complainant what
disciplinary action will be imposed, if any
• Absent litigation, no requirement to provide investigation report to
either party
June 5, 2015
Dentons Canada LLP
17
Mistake #9: Failing to Advise Parties of Outcome
• If the complaint is not substantiated or if findings are inconclusive,
consider whether any action is required to manage ongoing
relationship in workplace
• If the investigation determines that the complaint was false, or
made in bad faith, take appropriate disciplinary action
• If disciplinary action is taken, or if employment is terminated, any
letter summarizing the discipline or termination should:
• Set out summary or high level reasons
• Be 100% accurate and based on the facts gathered during the investigation
• Not overstate, or inaccurately state, any of the evidence gathered during the
investigation
June 5, 2015
Dentons Canada LLP
18
Mistake #10: Failing to properly Co-ordinate with
other Workplace Stakeholders or Third Parties
• Consider what reputational or risk management issues may exist
• Employer has no positive legal obligation to report potentially criminal
conduct to police, but consider possible public relations issues or
requirements of insurers
• If you decide to go to police before you have completed your internal
investigation, then seek direction from police before proceeding so that
you do not interfere in any way with criminal investigation
• Any decision to seek civil or criminal remedies must be made
independently of any decision to terminate employment
• Review your insurance policies for “employee fraud” coverage – be
aware of any limitations on the policy and any reporting deadlines to
preserve insurance coverage
June 5, 2015
Dentons Canada LLP
19
Core Principles of a Good Workplace Investigation
• Ensure that investigation complies with any relevant policy
• Give parties the opportunity to be heard
• Consider all relevant evidence
• Remain neutral and objective - keep an open mind until all
interviews have been completed
• Remember the duty to provide procedural fairness
• After reviewing and considering all of the evidence, prepare a
well-reasoned conclusion and report
• Respect confidentiality of the process, but do not guarantee it
• Good self-check: “What would a judge think if he or she
scrutinized everything that I did?”
June 5, 2015
Dentons Canada LLP
20
Questions?
21
Dentons Canada LLP
The Benefits and Pitfalls of
Employment Contracts
Jeffrey P. Mitchell
Dentons Canada LLP
416-863-4660
[email protected]
June 5, 2015
The Value of Employment Contracts
Primary Benefits:
• Minimize disputes by making everything clear up front
• Enhance flexibility by building in ability to change
• Minimize costs on employee exit
Primary Drawbacks:
• Drafting errors can lead to unanticipated costs, particularly across provinces
• Can be barrier to obtaining talent in competitive market
• Some consider it sets the wrong tone
Dentons Canada LLP
2
Hours of work/overtime eligibility provisions
• Whether eligible for overtime at all (ESA compliance issue)
• Threshold for overtime pay – 37.5, 40 or 44 hours (+ daily overtime??)
• Approval process for overtime (may be left to policy)
Vacation
• How vacation pay will be calculated; carryover
• Whether vacation pay will accrue during a leave of absence
Bonus/Variable Compensation
• Set out max, min and “stretch”
• Set out the criteria
• Set out entitlement on termination
• Provide flexibility to revise in future
Dentons Canada LLP
3
Benefits (medical, dental, etc.)
• Refer back specifically to, and make benefits subject to, underlying terms and
conditions of benefit plans, as they may be amended
• Make clear that benefits end at end of ESA notice period if that is the intent
(Alcatel Canada Inc. v. Egan, 2006 CanLII 108 (ON CA))
• Provide for ability to revise benefits, plans and policies in future
Signing Bonus/Clawback
• If there is an expectation that a signing bonus will be clawed back, include
specific provision, and make clear when (resignation, termination for cause,
termination without cause) and how (deductions from wages) it can be done
Conflict of Interest/External Employment
Compliance with policies
Dentons Canada LLP
4
Termination provision:
• Rebut the common law presumption of reasonable notice, and avoid/reduce
disputes on termination
• Must comply with employment standards in each province – Ontario benefits
Restrictive Covenants (non-compete/non-solicit)
Proprietary Rights (Intellectual Property)
Confidentiality
Travel Obligations
Expense Reimbursement
Dentons Canada LLP
5
Obligation to maintain any required professional designations
Assignment of Agreement to a Purchaser
Disclosure to a Potential Purchaser
Severability:
• In case one clause is declared void, remainder survives
Entire Agreement:
• Make clear no other promises the employee is relying on in accepting
employment – avoids/minimizes claims of misrepresentation
Dentons Canada LLP
6
The Pitfalls of Employment Contracts
Consideration:
• Agreement must be signed WHEN the person is offered employment, or the
offer must be specifically contingent on signing an agreement
• Must be signed BEFORE the employee starts work
“Guarantees”:
• If a provision is stated in an employment agreement (e.g. incentive pay), with
no ability to “amend or modify” in future, can be difficult to change absent
agreement
“Underlying Plan Text” for benefits/bonuses:
• Failure to refer to it may mean employee not bound to it
• Failure to provide for right to amend may mean plan terms “frozen”
Dentons Canada LLP
7
Fixed Terms:
• If no enforceable termination provision, may have to pay out full term if
terminate early (Spark v. Generex Pharmaceuticals Inc., 1999 CanLII 14873
(On. SC), affirmed 2003 CanLII 52138 (ON CA))
• If fixed term of more than one year, still have to give ESA notice (and
severance, if applicable) on “termination”
• What about employment after end of fixed term?
• Multiple fixed term contracts can become subject to common law (Ceccol v.
Ontario Gymnastic Federation, [2001] O.J. No. 3488 (CA))
Dentons Canada LLP
8
Termination Clauses:
• ESA violations can lead to unenforceability (Wright v. The Young and Rubicam
Group of Companies, 2011 ONSC 4720)
• Probation – must comply with ESA
• No mitigation unless it’s stated (Bowes v. Goss Power Products Ltd., 2012
ONCA 425)
Governing Law Clauses
Updating Employment Contracts
Dentons Canada LLP
9
Thank you
Dentons Canada LLP
77 King Street West
Suite 400
Canada
Employment and Labour
and Pensions
Toronto Contacts
Overview
The Employment and Labour Group at Dentons helps clients meet today’s workplace management challenges by
providing seasoned and creative advice on all aspects of labour relations and employment law. We believe that
resolving labour and employment issues requires a close working relationship with clients, a common-sense approach
to finding solutions and a solid base of professional experience.
Your Key Contacts
Anneli LeGault
Partner
Blair W. McCreadie
Partner
D +1 416 863 4450
[email protected]
D +1 416 863 4532
[email protected]
Adrian Miedema
Partner
Jeff Mitchell
Partner
D +1 416 863 4678
[email protected]
D +1 416 863 4660
[email protected]
Mary M. Picard
Partner
D +1 416 863 4469
Andy Pushalik
Partner
D +1 416 862 3468
[email protected]
[email protected]
Matthew J.G. Curtis
Associate
D +1 416 367 6767
Heather Di Dio
Associate
D +1 416 863 4429
[email protected]
[email protected]
Carmen Francis
Associate
Chelsea Rasmussen
Associate
D +1 416 862 3452
[email protected]
D +1 416 862 3464
[email protected]
Sabrina Serino
Associate
D +1 416 367 7746
Aiwen Xu
Associate
D +1 416 367 7747
[email protected]
[email protected]
Saba Zia
Associate
D +1 416 367 6832
[email protected]
© 2015 Dentons. Dentons is a global legal practice providing client services worldwide through its member firms and affiliates. Please see dentons.com for Legal Notices.
2
Applicable Canadian Privacy Legislation in the Workplace
British Columbia
Alberta
Saskatchewan
Manitoba
Federal Public
Sector
Federally Regulated
Private Sector
Provincial Public
Sector
Provincial Private Sector
Health Information
Privacy Act (1983)
Personal Information
Protection and
Electronic Documents
Act (2004) [PIPEDA]
Freedom of Information
and Protection of
Privacy Act (1993)
Protection Act (2004)*
governs the collection (s. 13),
use (s. 16), and disclosure (s.
19) of employee information.
--
Privacy Act (1983)
Protection and
Act (2004) [PIPEDA]
and Protection and
Privacy Act (1995)
Protection Act (2004)*
governs the collection (s. 15),
use (s. 18), and disclosure (s.
21) of employee information.
--
--
Occupational Health and
Safety Act (1996) s. 10(1)
governs disclosure
requirements of employee
medical information.
--
--
Privacy Act (1983)
Protection and
Act (2004) [PIPEDA]
Privacy Act (1983)
Protection and
Act (2004) [PIPEDA]
and Protection of
Privacy Act (1992) or
The Local Authority
and Protection of Privacy
Act (1990)
(municipalities)
and Protection of
Privacy Act (1998)
Federal Public
Sector
Ontario
Quebec
New Brunswick
Privacy Act (1983)
Federally Regulated
Private Sector
Protection and
Act (2004) [PIPEDA]
Privacy Act (1983)
Protection and
Act (2004) [PIPEDA]
Privacy Act (1983)
Protection and
Act (2004) [PIPEDA]
Provincial Public
Sector
and Protection of
Privacy Act (1988) or
Municipal Freedom of
Information and
Protection of Privacy Act
(1990)
An Act respecting
access to documents
held by public bodies
and the protection of
personal information
(1982)
Right to Information and
Protection of Privacy Act
(2010)
Health Information
--
The Occupational Health and
Safety Act (1990) [OHSA].
Section 63(2) provides that
"no employer shall seek to
gain access, except by an
order of the court or other
tribunal or in order to comply
with another statute, to a
health record concerning a
worker without the worker’s
written consent." Section
63(6) states that "[t]his
section prevails despite
anything to the contrary in
the Personal Health
Information Protection Act,
2004."
An Act respecting the
protection of personal
information in the private
sector (1994)*
Governed by provincial
public or provincial private
sector statute depending on
nature of the organization.
--
The Occupational Health and
Safety Act (1983) sections
40(d) and 40.1 govern
disclosure of medical
information of employees.
Nova Scotia
Prince Edward Island
Newfoundland and
Labrador
Federal Public
Sector
Federally Regulated
Private Sector
Provincial Public
Sector
Privacy Act (1983)
Protection and
Act (2004) [PIPEDA]
and Protection of
Privacy Act (1994) +
International Disclosure
Protection Act (2006)
Privacy Act (1983)
Protection and
Act (2004) [PIPEDA]
Privacy Act (1983)
Protection and
Act (2004) [PIPEDA]
and Protection of
Privacy Act (2002)
Access to Information
and Protection of
Privacy Act (2004)
Health Information
--
The Occupational Health
and Safety Act (1996)
section 62 governs
--
The Occupational Health
and Safety Act (1996)
section 39(d) governs
--
Under the Labour
Standards Act (1990), an
employer may make a
written request for
employee medical
information in when
granting a leave of
absence (section
43.15(1)), sick leave
(43.11(2)), pregnancy
leave (40(1)(b), or care of
a family member
(43.14(1)).
Federal Public
Sector
Provincial Public
Sector
Yukon
Privacy Act (1983)
and Protection of
Privacy Act (1996)
Northwest Territories
Privacy Act (1983)
and Protection of
Privacy Act (1996)
Nunavut
Privacy Act (1983)
and Protection of
Privacy Act (1996)
* Deemed substantially similar to PIPEDA.
Private Sector
Private territorial organizations that collect, use, or disclose personal information in the
course of commercial activities are within the legislative authority of the federal
Parliament, and thus governed by PIPEDA.
employmentandlabour.com
http://www.employmentandlabour.com/required-new-esa-poster-for-ontario-workplaces
Required New ESA Poster for Ontario Workplaces
By Catherine
Coulter
The Ontario Ministry of Labour has prepared and published a new Employment Standards Act, 2000 (“ESA”) poster
entitled “Employment Standards in Ontario”. The poster is version 6.0 in a long line of ESA posters and Ontario
employers were required to post it in the workplace effective as of May 1, 2015. The poster outlines for employees
their rights under the ESA and the requirements of employers under the ESA.
The Ministry’s rules regarding the new ESA poster are as follows:
The poster must be in English but if the majority workplace language is other than English and if the Ministry
has version 6.0 available in that language, then both posters must be posted side by side.
Version 5.0 should be removed at the time that version 6.0 is posted.
In addition to posting the poster in the workplace, employers are also required to give a copy of the poster to
each employee by June 19, 2015.
New employees hired after May 20, 2015 must be given a copy of the poster within 30 days of hire.
The poster may be given to employees in hard copy form, as an email attachment, or as a link to an internet
database (but then only if the employer ensures that the employee has reasonable access to the database, a
computer and a printer).
The poster is available in English, French, Arabic, Chinese, Hindi, Portuguese, Punjabi, Spanish, Tagalog,
Thai and Urdu.
An English copy of the poster can be obtained at http://www.labour.gov.on.ca/english/es/pdf/poster.pdf and a French
copy of the poster can be obtained at http://www.labour.gov.on.ca/french/es/pdf/poster.pdf. For copies of the poster in
other languages, please go to the following link: http://www.labour.gov.on.ca/english/es/pubs/poster.php.
4
• MAY 1 , 2015
THE LAWYERS WEEKLY
News
Awards
■Former prime minister Brian
Mulroney, a senior partner at
Norton Rose Fulbright, has
been honoured with the Order
of the Companions of OR
Tambo in South Africa, in the
Gold category. Mulroney was
scheduled to receive the award
in Pretoria April 27, “for his
exceptional contribution to the
liberation movement of South
Africa,” said a South Africa
presidency press release.
■ Geoffrey Creighton, president
of In-House Counsel Worldwide
and recently retired as general
counsel for IGM Financial, has
been honoured with this year’s
R.V.A. Jones Award, part of the
Canadian Corporate Council
Association’s 2015 roster of
awards. Also honoured at the
CCCA’s April 19 ceremony in
Toronto: CIBC’s legal contracting
team (Innovation Award); Adrian
Lang, BMO Financial Group
(Community Builder Award;
Lawna Hurl, Niska Gas Storage
Partners LLC (Up and Comer
Award); and the CCCA’s Ontario
chapter (Professional
Contribution Award).
Moves
■ Meaghan McCaw and Erin
Best have joined the St. John’s
office of Atlantic Canada law
firm Stewart McKelvey as
associates. McCaw’s practice
focuses on insurance and
construction law, while Best, a
registered trademark agent
previously at Cox & Palmer,
also focuses on litigation as
well as intellectual property
and media law.
■Former Clerk of the Privy
Council Wayne Wouters has
joined McCarthy Tétrault as
strategic and policy advisor to
the law firm. Wouters has
spent more than 30 years in
public service, and will advise
in a wide range of areas
including trade matters.
Publisher
Ann McDonagh
Editor In Chief
Rob Kelly
Senior Editor
Matthew Grace, LL.B.
Focus Editor
Richard Skinulis
B.C. privacy decision checks snooping
Keystrokes, e-mail monitoring of employee work stations out of bounds
ging and screenshot capturing
provided an ineffective and “purely
reactive” approach to IT security,
and that such levels of employee
surveillance “should be restricted
to use in specific investigations,
based on reasonable grounds for
suspicion of wrongdoing, and only
when other less privacy intrusive
measures have been exhausted.”
The report recommended
removal of the monitoring software from the Saanich computers,
destruction of any archived data
collected, training of staff in privacy issues and the appointment
of a privacy commissioner.
“I’m shocked that in today’s day
and age, people can be in charge
at such a high level and not be
aware of their legal obligations
when it comes to privacy issues,”
said Kris Klein, a partner with
nNovation LLP who teaches privacy law at the University of
Ottawa. “If you’re in the IT world,
every day the intersection between
IT and privacy is at the forefront
of what’s going on.”
Dan Michaluk, a partner with
Hicks Morley in Toronto and an
expert in workplace privacy
issues, said the report provides
useful commentary on issues of
security and privacy around the
monitoring of individual work
stations, or “end points” on a
computer network.
“(Saanich was) at the aggressive end of things and they did a
poor job of planning and executing,” Michaluk said. “(The commissioner) makes it loud and
clear that if you’re going to do
this stuff you need to recognize
there’s a privacy issue and you’ve
got to have a process of assessment that precedes your design
and implementation.”
While the report’s criticism of
the municipality wasn’t surprising,
Michaluk said he found it notable
that it also appears to provide
approval for a certain amount of
end-point monitoring.
Logs of websites visited, files
transferred or altered, and applications that connect to the Internet could “arguably assist” in
investigating and responding to
security breaches, the privacy
commissioner found.
“Does that mean a duly diligent
employer ought to be looking at
this type of end-point monitoring
at this point? I think that’s at least
a question to ask,” said Michaluk.
“Sure, the general lesson is to be
careful…but when you’re looking
at routine data security and generating logs that will help increase
response, she actually sets out
something new here and says these
are reasonable things to consider.”
Klein agreed the commissioner
appeared to sanction the use of
this type of surveillance software
for some purposes.
“She says that some of this
software can be installed legitimately and used legitimately if
there’s proper notice given to
the employees.”
The ruling offers an interesting
perspective on the balance organizations need to maintain
between protecting information
assets and protecting employee
privacy, said Klein.
With constant development of
new IT security solutions, he
believes the issue will continue to
be subject to complaints and rulings. “I think there are grey areas
where we still need a fair amount
of debate and guidance.”
As basic as it may seem to those
knowledgeable about privacy
issues, the ruling may serve as a
wake-up call to some employers,
said Jillian Frank, head of the
labour and employment group
with Dentons in Vancouver.
“Yes, employers have a right to
monitor their systems but there
still is an expectation of privacy
and you still need to have a policy
that defines (employees’) reasonable expectation of privacy,” she
noted. “The assumption can’t be
that you as an employer can just
do what you want to do.”
Frank added that the speed of the
investigation and report, and the
intent of the privacy commissioner
to issue guidelines regarding
employee privacy rights under
FIPPA are helpful for clarifying the
issues around such monitoring.
“It is a good indication that
this isn’t just a complaintsdriven process, it’s really meant
to look at B.C.’s practices as a
whole,” she said.
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Kim Arnott
A Vancouver Island municipality
violated privacy rights by capturing keystrokes, screenshots and
other data from computers used
by municipal staff and politicians,
British Columbia’s privacy commissioner has found.
While the employee-monitoring
software was installed as an IT
security measure, Information
and Privacy Commissioner Elizabeth Denham found that the
detailed data it collected breached
the province’s Freedom of Information and Protection of Privacy
Act (FIPPA).
“Employees do not check their
privacy rights at the office door,”
she noted. “There is a right to privacy in the workplace, which has
been upheld by Canadian courts
and must be respected by public
bodies as they consider what
security controls are necessary to
protect information in government networks.”
Using software known as Spector
360, the district of Saanich was
able to record screenshots captured at 30-second intervals, as
well as keystrokes, e-mail and
other detailed user information
from 13 employee work stations.
The surveillance software was
installed without the knowledge
of at least some of the users,
including the municipality’s newly
elected mayor. His discovery of
the software and subsequent public complaint during a press conference led the privacy commissioner to launch an investigation
into the circumstances.
In her report (2015 BCIPC No.
15), the commissioner found that
Saanich’s municipal officials had a
“disappointing” lack of knowledge
about their privacy obligations
under the 20-year-old legislation.
She added that information
gathered through keystrokes log-
I’m shocked that in
today’s day and age,
people can be in charge
at such a high level and
not be aware of their
legal obligations when it
comes to privacy issues.
Kris Klein
nNovation LLP
Correspondents
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employmentlawtoday.com
Apr 14, 2015
Manager was not 'competent person' to conduct harassment/violence
investigation under Canada Labour Code: Court
Health and Safety regulations require person investigating workplace violence complaint must be
approved by complainant as impartial
By Adrian Miedema
The Federal Court has held that a manager was not a "competent person" to conduct a workplace
harassment investigation under the Canada Labour Code because the employee who filed the complaint
had not agreed that the manager was an "impartial party."
In December 2011, an employee of the Canadian Food Inspection Agency (CFIA) filed a written
complaint alleging "miscommunication, favouritism, humiliation, unfair treatment and a lack of respect" on
the part of his supervisor.
The CFIA assigned a manager to undertake a "fact-finding" review of the concerns raised in the
complaint. The manager conducted internal investigations and concluded that there were communication
issues and unresolved tension, but no evidence of harassment.
The employee contacted a federal Health and Safety Officer, alleging that the manager was not
sufficiently impartial to conduct an investigation. The officer issued a direction requiring the CFIA to
appoint an impartial person to investigate the complaint pursuant to the Canada Labour Code. The CFIA
appealed that direction to an Appeals Officer of the Occupational Health and Safety Tribunal of Canada
(who sided with the CFIA), and the employee then appealed to the Federal Court.
The court noted that s. 20.9 of Part XX to the Canada Occupational Health and Safety Regulations under
the Canada Labour Code sets out procedural obligations of an employer if it receives a complaint of
"workplace violence." The court held that "harassment may constitute workplace violence, depending on
the circumstances." The court stated that the alleged harassment in this case could constitute "workplace
violence" if after a proper investigation by a competent person it is determined that the harassment could
reasonably be expected to cause harm or illness to the employee. Workplace violence is defined in that
Regulation 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 court noted that under the workplace violence provisions of the regulation, a person is a "competent
person" to conduct a workplace violence investigation if he or she is "impartial and is seen by the parties
to be impartial" and has the necessary knowledge, training and experience.
In this case, the employee who filed the complaint did not agree that the manager was impartial. The
court stated:
-2-
"What the employer did here was have the Regional Director, Mr. Schmidt, not only institute a prescreening and fact finding exercise to determine the nature of the complaint and attempt to facilitate
mediation, but also conduct a full investigation of the complaint, acting as a competent person under
section 20.9(3). In his report, Mr. Schmidt mentions ‘investigation’ eight times and refers to his review of
the evidence before him. He was not competent to do so, given there was no agreement that he was an
impartial party by the employee and therefore had no authority to conduct any investigation, once the
allegation of work place violence was unresolved at the pre-screening stage and still a live issue between
the parties."
As such, the manager’s investigation was essentially unusable, and the court referred the matter back to
the Appeals Officer for re-determination of the issues in accordance with the court’s decision.
This decision shows the importance of employers – at least federally-regulated employers who are
subject to the Canada Labour Code -- of strictly complying with the workplace violence and harassment
procedures set out in legislation or regulations.
For more information see:
Canadian Food Inspection Agency v. PSAC, 2014 CarswellNat 5290 (F.C.).
Adrian Miedema is a partner with Dentons Canada LLP in Toronto. He can be reached at (416) 863-4678
or [email protected]. Adrian's discussion of this case also appears in the Dentons blog
www.occupationalhealthandsafetylaw.com.
Full Text:
http://www.employmentlawtoday.com/articleview/24054-manager-was-not-competent-person-to-conductharassmentviolence-investigation-under-canada-labour-code-court#sthash.JlRfelSA.dpuf
Mar 31, 2015
No punches thrown, but employee properly dismissed for yelling, swearing and
abusive conduct
Workplace violence doesn't have to involve full-out phyical fighting: Arbitrator
By Adrian Miedema
An employee need not physically assault a co-worker in order to be dismissed for workplace violence, an
arbitrator’s decision shows.The employer had eight "Golden Rules" of workplace health, safety and
environmental standards.
The employee had signed a document that said he understood that failure to comply with the Golden
Rules and all other posted plant safety rules "may result in disciplinary action up to and including
termination.
"Less than three months later, the employee got into an altercation with a co-worker. There was yelling,
swearing and abusive language. A third employee intervened to separate the two employees when it
looked like they were about to hit each other.
The employer’s investigation found that the employee had called the other employee, who was said to
have a heavy build, a "fatass"and made a derogatory reference to the other employee’s sexual
orientation. When the third employee tried to break up the altercation, the employee continued to argue
with and antagonize the other employee. Also, both men had removed their hard hats, indicating that they
were preparing to hit each other with their fists.
The union argued that this incident of fighting and violence was at the "low end" of the spectrum. The
union noted that there was no physical contact between the fighting employees; “it was all words”. Also,
there were no physical injuries.
The arbitrator disagreed, finding that the employee chose to use words that directly attacked the other
employee’s physical appearance and his sexual orientation. This was "over and above both employees’
use of more traditional, garden-variety, profanities." Further, "particularly hurtful comments directed at an
individual’s appearance can, even in the absence of physical violence, warrant termination of
employment." Further, the employee continued to "egg on" the other employee after the third employee
tried to break up the altercation. Lastly, the plant operated around the clock and the employer required all
employees, who had been trained on its workplace violence policy, to exercise some degree of selfrestraint. The employee had, instead, tried to escalate to physical violence and likely would have done so
if the third employee had not intervened.
The employee had only 15 months of service, had received extensive training on the employer’s
workplace violence policy and harassment policy, and had been given a copy of the employer’s “Golden
-2-
Rules." He showed very little insight into how his own behaviour was a contributing factor. He did not see
himself as accountable for his own actions. He did not apologize until the day of the hearing.
The arbitrator upheld the dismissal.
Certainteed Insulation Canada and Unifor, Local 80-0 (Zimba), Re, 2015 CarswellOnt 187 (Ont. Arb.).
Adrian Miedema is a partner with Dentons Canada LLP in Toronto. He can be reached at (416) 863-4678
or [email protected]. Adrian's discussion of this case also appears in the Dentons blog
www.occupationalhealthandsafetylaw.com.
Full Text:
http://www.employmentlawtoday.com/articleview/23930-no-punches-thrown-but-employee-properlydismissed-for-yelling-swearing-and-abusive-conduct
Detecting employee fraud
Tuesday December 09, 2014
Written by Jordan Deering
No workplace is immune from fraud and theft. The Association of Certified Fraud Examiners Report to the
Nations on Occupational Fraud and Abuse (2012) estimates that a typical organization loses five per cent
of its annual revenues to fraud. Often, one of the biggest causes of fraud losses are the business’ own
employees.
What can employers do? Here are five strategies they should implement:
• Decrease the opportunity. Anti-fraud controls and procedures are the first step. Employers should
implement policies and procedures addressing mandatory vacation — in addition to statutory holidays —
for employees, as well as rotation and separation of duties. This is particularly important in accounting or
other financially sensitive roles.
• Set the right tone. The message needs to come from the top of the organization: we do not tolerate
fraud or theft. Management needs to actively support anti-fraud training, controls and audits.
• Give your employees support. Personal pressures, such as financial hardships, addictions and mental
health concerns, underlie most employee-related fraud. Employers should offer programs and support to
employees to assist with the resolution of these issues.
• Consider a whistleblower line. Employees are often the first to notice something out of place. Employers
can implement a mechanism to empower their employees to report their concerns in a safe and
confidential way. Tips from employees are one of the most effective means of detecting employee fraud.
• Watch for the behavioural red flags. Employers cannot afford to ignore the obvious red flags. It may be
an employee living well beyond their salary, taking extravagant vacations or making large purchases.
Organizations avoiding the implementation of anti-fraud policies and procedures have too much at risk. A
proactive approach by an employer to prevent and detect fraud will reduce the risk and is ultimately a
cost-saving decision.
Jordan Deering is a partner with Dentons Canada LLP (www.dentons.com).
Full Text:
http://www.canadiansecuritymag.com/detecting-employee-fraud-2605#sthash.3ALApzXB.dpuf
Dec 1, 2014
Fake e-mail to other employees results in criminal mischief conviction
Worker's conviction on mischief charged stemmed from email to other employees degrading coworker
By Adrian Miedema
An Ontario employee has been convicted of criminal mischief after sending a fake e-mail to fellow
employees, degrading another co-worker.
The employee, apparently upset that the co-worker rejected his request that they be more than friends,
sent an e-mail to nine other employees, purportedly from the female co-worker. The e-mail degraded the
co-worker professionally, sexually and physically.
The employee pleaded guilty to criminal mischief.
The employee also pleaded guilty to separate criminal harassment charges, apparently unrelated to the
workplace. He received a suspended sentence and two years’ probation on the mischief charge, and 90
days’ imprisonment (in addition to 2 months’ time served) on the criminal harassment charge.
R. v. Dewan, 2014 CarswellOnt 15048 (Ont. C.A.). Adrian Miedema is a partner with Dentons Canada
LLP in Toronto. He can be reached at (416) 863-4678 or [email protected]. Adrian's
discussion of this case also appears in the Dentons blog www.occupationalhealthandsafetylaw.com .
Full Text:
http://www.employmentlawtoday.com/articleview/22974-fake-e-mail-to-other-employees-results-incriminal-mischief-conviction#sthash.fEcAJHwY.dpuf

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