December is often a month for list making, whether it be
gifts one wants from Santa Claus (yours truly very nerdishly celebrated his
receipt of an original copy of the 1960 Ontario Weekly Notes earlier this
month), or Top X lists of Y things. In the spirit of the latter, here are my
Top Five Cases of Importance to Ontario Employment Lawyers.
Number 5: Brito v. Canac Kitchens
CanLII: 2012
ONCA 61
Brito is one of those cases that an employees’ lawyer
cannot help but love. The original decision was authored by the late Justice
Randal Echlin, who was one of the deans of employment law. In upholding the
salient points of Justice Echlin’s decision, the Court of Appeal affirmed an
Order against an employer who had provided to its employees a group insurance
plan to essentially stand in the disability insurer’s shoes when the employee
was dismissed and the employer made no arrangements for the dismissed employee
to maintain that insurance coverage beyond the statutory notice period; a
decision that cost the employer nearly $200,000 in what was otherwise a modest
wrongful dismissal case.
Number 4: Dominguez v. Northland Properties Corporation
CanLII: 2012 BCSC 328
Not on this Blog
Dominguez could serve to be a very interesting case
as we go forward. Dominguez concerned an application for certification
of a class proceeding by a number of temporary foreign workers in British
Columbia. As the Honourable Justice Fitzpatrick observed in her reasons for
decision:
I am advised that this is the first case in Canada to address claims of temporary foreign workers who contend that a Canadian employer is liable for breaches of obligations or duties relating to their employment in Canada. The facts in Kumar v. Sharp Business Forms Inc. (2001), 5 C.P.C. (5th) 128 (Ont. Sup. Ct. J.), discussed in more detail below, are somewhat similar in that certification was sought by employees who, for the most part, were recent immigrants to Canada for claims for overtime, holiday pay and vacation pay. That case, however, did not involve allegations that the employer had systematically taken advantage of those employees as a vulnerable or disadvantaged group, as is the situation in this proceeding. (Para. 5)
Ultimately Justice Fitzpatrick certified the class
proceeding, which is often the critical step in any Canadian class action.
The case is important because it is a well-recognized fact
that if Canada wishes to remain competitive in the global market place it will
require more skilled workers, including those coming to this country through
the temporary foreign worker program. How employers chose to treat those
workers will be of greater interest in the future and Dominguez may
serve to be the tipping point towards greater employee rights.
Number 3: Seberras v. Workplace Safety and Insurance Board
CanLII: 2012 HRTO 115
Not on this Blog
Seberras is important for a number of reasons. First,
with respect to the decision cited, the decision affirms that the Human Rights
Tribunal of Ontario has jurisdiction over a statutory body, in this case, the
Ontario Workplace Safety and Insurance Board (WSIB).
Of greater importance however is why Mr. Seberras is
bringing his application, which is currently stayed pending the resolution of a
matter before the Ontario Workplace Safety and Insurance Appeals Tribunal (see
2012 HRTO 1513).
Mr. Seberras is seeking to advance the position that sections 13(4) and 13(5)
of the Ontario Workplace Safety and Insurance Act, 1997 are
discriminatory and violate his Charter-protected rights. The case is the
Ontario continuation of the decision taken in late 2009 by the British Columbia
Court of Appeal in Plesner v. British Columbia Hydro and Power Authority, 2009 BCCA 188.
Seberras will be one to watch in 2013 to see what the
WSIAT does, what the HRTO does (if required to act) and how the legislature
reacts. Claims for mental stress will be, in my opinion, one of the most
important areas for workers compensation in the next five to ten years. If Seberras
falls in line with Plesner, then in my opinion there will be a flood of
applications for benefits in the near future.
Number 2: R. v. Cole
CanLII: 2012 SCC 53
This Blog: Rights to Privacy and Remedies for Breach
Cole is a very interesting entry onto this list
because it is a criminal case. It is my observation that Cole is being
much more celebrated in the employment law world than it is at the criminal
bar.
The reason that Cole is of interest to employment
lawyers is because the Supreme Court of Canada confirmed that employees have a
reasonable expectation of privacy in their employer-provided equipment, such as
laptops, smartphones, etc. Of critical importance, Justice Fish for the
majority observed that:
As Mr. Cole had a reasonable expectation of privacy in his Internet browsing history and the informational content of his work-issued laptop, any non-consensual examination by the state was a “search”; and any taking, a “seizure”. [Para. 59.]
Cole is of even greater importance when one considers
what I would argue is the most important decision for employment lawyers of
2012:
Number 1: Jones v. Tsige
CanLII: 2012 ONCA 32
This Blog: Rights to Privacy and Remedies for Breach
It may be hard to believe, but Jones v. Tsige was
released less than a year ago. Released in the middle of January in 2012, Jones
has already been trumpeted as a sea-change in Ontario law. A google search of
the case name produces a summary compiled by almost every law firm in Ontario,
and beyond.
Jones is regarded as being the first case in Ontario
to recognize that private individuals may sue other private individuals for
‘invasion of privacy,’ although the Court of Appeal for Ontario declined to
specifically use that term, preferring “intrusion upon seclusion.”
As speculated upon in this blog, Rights to Privacy and Remedies for Breach,
Jones provides employees with an opportunity to bring a case against
their employers for breach of privacy when employers overstep the line with
respect to their ability to monitor employee actions. Where that line will be
drawn is of course yet to be seen, but Jones at least opens the door to
claims.
Looking Ahead
Looking ahead to 2013 it is hard to tell where the law may
head next. As mentioned, all eyes will be on what happens in Seberras as
well as what plaintiffs choose to do with Jones.
Will a challenge be taken to Ontario’s Bill 115? And what
will the court do with it?
The Supreme Court of Canada has indicated that it will hear
the appeal of Association of Justice Counsel v. Canada (Attorney General), 2012 ONCA 530,
which will hopefully address the question of whether the right to association
guaranteed by section 2(d) of the Charter is simply more than
procedural.
As always this blog will endeavour to stay up-to-date with
the most recent employment law decisions of interest to those in Ontario.
Thanks to all readers in 2012 and we look forward to 2013.
--
As
always, everyone’s situation is different. The above is not intended to
be legal advice for any particular situation and it is always prudent to seek professional
legal advice before taking any decisions on one’s own case.
Sean
Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer
practicing with Kelly Santini LLP. He tweets from @SeanBawden.
No comments:
Post a Comment