Ontario’s Top Court Confirms that Employees May Sometimes be Required to Attend Medical Examination by Doctor of Employer’s Choosing

(c) istock/vadimguzhva

“The motion for leave to appeal is dismissed with costs fixed at $1,000.” With those thirteen simple words, Ontario’s top court has confirmed that employees in Ontario may sometimes be required to submit to an invasive medical examination - by a doctor of their employer’s choosing - as part of the duty to accommodate and return to work process.

On August 25, 2017, the Court of Appeal for Ontario released its endorsement on a motion for leave [read: “permission”] to appeal the decision of the Ontario Divisional Court in Bottiglia v Ottawa Catholic School Board, 2017 ONSC 2517 (CanLII).

This is a big deal for Ontario employment and human rights law.

Labour Pains Turns Five: Lessons Learned

(c) istock/seriga

On April 1, 2012, I published my first post to what was then called “Sean Bawden’s Law Blog for Suddenly Unemployed.” That was five years and over 330 posts ago. Some things, such as this blog’s title, have changed. Other things, like who is behind the keyboard, have not.

As regular readers of this blog will know, from time-to-time I try to take an introspective look at how we got here. Also, in the spirit of inspiring others to do the same, here is my ‘look behind the curtain’ at what is now Labour Pains.

Why You Should Hire Me Before You Hire Another Employee

If you are an employer and you are looking to hire one or more new employees for your company, let me explain to you why you should hire me first to prepare your company’s employment contracts: it will (almost assuredly) save you money.

I know it sounds contradictory that you can likely save money by hiring a lawyer to prepare your employment contract, for which there will be a very reasonable cost, but believe me it is true. Please allow me to explain – there is no charge for reading and if you are not convinced by the end of this post, you can move on to something else and it will not have cost you a dime.

Why is it Time to Fix the Discriminatory EI Regime? Because It’s 2016.

New Year’s Eve is a time of resolution making. Most people take this time to reflect on the year past and look ahead to what they wish to achieve in the year ahead. I am no different.

In 2015, I started work on a project in an attempt to have the Employment Insurance regime amended. Specifically, I believe that the provisions governing maternity/parental leave should be removed from the EI regime and made a stand-alone system. (Standard disclaimer that this is a personal opinion, which may not necessarily be shared by the firm that employs me.) In starting this process I wrote the following executive summary:

By placing the provisions of income replacement benefits for new and expectant parents within Canada’s Employment Insurance regime, the current law creates unexpected and discriminatory consequences for parents who lose their employment either during or shortly following the taking of maternity and/or parental leave. Such a regime would likely not withstand judicial scrutiny in the face of the Federal Court of Appeal’s decision in Canada (Attorney General) v. Johnstone. While the societal benefits of providing publicly funded income replacement benefits to new and expectant parents cannot be challenged, by associating the provision of such benefits with the provision of benefits for the unexpected loss of employment, the present law defeats the intended purposes of both regimes. The recommended solution to this problem is to disassociate the provision of income replacement benefits for new and expectant parents from the Employment Insurance regime, by creating a new regime exclusively for the provision of such benefits.

From there I set about drafting a paper that would address the problems with the current system. It is still a work in progress. The EI system is complicated and has evolved over time, through a series of governments of different political stripes.

Canada now has a new government. New governments, like new years, bring change with them. Whether this government will be interested in such a proposal I cannot say.

What I can say is that the current EI system is broken. Too many people lose their employment as a result of taking time off for maternity and/or parental leave. Changes to the EI regime will not change that unfortunate fact. However, by changing the EI regime insult will not be added to injury.

Thus my resolution for 2016 is this: First and foremost finish what I started, i.e. the paper. Second, find a way to have this idea placed onto the national agenda.

If you’re interested in this project and want to help, please email me at sbawden@kellysantini.com. Assistance can come in any manner of ways, from legal research, to writing, to editing, to public relations. We have all skills and talents.

Happy New Year, dear reader. Why is it time to fix this problems with the EI system? Because it’s 2016.

Bill 132... Picking Up Where Bill 168 Left Off?

Will the recently proposed changes to the Ontario Occupational Health and Safety Act finally bring about the workplace violence and harassment protections that so many believed would be implemented as a result of “Bill 168?” It’s possible.

For years I have been critical of the actual effects of the changes to the law brought about by Bill 168. Heralded by many at the time as a necessary change to the law, the experience of the interpretation and implementation of those changes has been grossly underwhelming.

Now the Ontario government is proposing further changes to the law by way of Bill 132, the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015. The Bill passed first reading in the Legislative Assembly of Ontario on October 27, 2015.

A reading of the proposed amendments to the law leaves one with cautious optimism that perhaps change will finally come about.

Judge's Wrongful Dismissal Decision is Itself Wrongful

From time-to-time a decision will come along that will leave me not only confused, but frustrated. Wyllie v Larche, 2015 ONSC 4747 is one of those cases.

Yesterday, I wrote about the court’s decision not to award punitive damages in that case. With respect to that issue, the court decided that the employer’s refusal to pay the statutory minimum amount of severance to a dismissed employee was excused because the employer had offered the employee an extra $546.25 (gross of tax) to waive all of his rights. See: Failure to Pay Statutory Severance ‘Okay’ because Employer Offered to Do So.

In my earlier commentary I had written the following:

I have a number of issues with Justice Price’s decisions. Principally His Honour’s decision to award Mr. Wyllie no more than his five days of statutory severance and his decision to not award punitive damages.

I have already explained my concerns with respect to the punitive damages decision, this post examines the severance issue.

There is More to Employment Law in Ontario than Just the Employment Standards Act

There is more to employment law in Ontario than just the Employment Standards Act, 2000. While this point should be obvious, a recent article in the Toronto Star, Ontario allowing employers to fire workers without cause begs for this point of clarification.

Terminations without Cause are not Automatically Unjust: Federal Court of Appeal

In a landmark decision, the Federal Court of Appeal has said that terminations without cause are not automatically “unjust” as defined by the terms of the Canada Labour Code. In “breaking the tie” between competing lines of jurisprudence, the Federal Court of Appeal in Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17 (CanLII) has unequivocally said that the purpose of the “unjust dismissal” provisions of the Canada Labour Code is not to elevate non-unionized employees to the same status as those who are unionized. Put another way, there is no longer any security of employment under the Canada Labour Code. For those employees working in such industries, this is huge.

NOTE: This is a summary of a decision of the Federal Court of Appeal. This decision has since been overturned by the Supreme Court of Canada.

Hitting the “Target” with Mass Terminations

A lot has already been said about Target’s abrupt decision to close all of its Canadian stores; but one story has dominated headlines more than others: Target’s ‘decision’ to provide its employees with 16 weeks of ‘severance.’ As some employees are discovering, that ‘severance’ is really nothing more than working notice. What is more, the ‘decision’ was pretty much already made for Target as the amount is dictated by Ontario law.

Working through the mechanics of the situation, one can see that Target’s ‘decision’ is hardly as generous as it was first touted.

Court Says Age Limit on Receipt of WSIB Loss of Earnings Benefits is Constitutional

Is the limit on the receipt of WSIB loss of earnings benefits unconstitutional because is discriminates on the basis of age? According to a decision of the Ontario Divisional Court, Gouthro v. Workplace Safety and Insurance Appeals Tribunal et al., 2014 ONSC 7289, the law is just fine.

Court of Appeal says Group LTD Policies are not "Business Agreements"

Is a group policy of insurance a “business agreement” for the purpose of ss. 22(5) and (6) of the Limitations Act, 2002? In a reversing an earlier decision of the Superior Court of Justice, Kassburg v. Sun Life Assurance Company of Canada, 2014 ONSC 1523, considered by this blog in the post Time Limit to Sue for LTD benefits, the Court of Appeal for Ontario in the case of Kassburg v. Sun Life Assurance Company of Canada, 2014 ONCA 922 has clearly said that such contracts are not.

Comments on Facebook "Just Cause" for Dismissal

Can posts to one’s Facebook profile about a co-worker be grounds for “just cause” for dismissal? In yet another case from the labour world to consider this subject, United Steelworkers of America, Local 9548 v Tenaris Algoma Tubes Inc, 2014 CanLII 26445 (ON LA), Arbitrator Laura Trachuk has said “yes”.

Stated Intention to Retire May Reduce Wrongful Dismissal Damages

Can publicly announcing one’s intention to retire from employment serve to reduce an employee’s entitlement to wrongful dismissal damages if the employee is later terminated without cause?

According to a decision from the Ontario Superior Court of Justice, Kimball v Windsor Raceway Inc, 2014 ONSC 3286, an employee’s stated intention to retire and therefore not look for new employment following termination "may well be relevant in assessing what constitutes reasonable notice.”

Federal Court says Terminations Without Cause are Not Intrinsically "Unjust"

Did the Federal Court’s decision in Atomic Energy of Canada Limited v Wilson, 2013 FC 733 put an end to federally regulated employees’ complaints of unjust dismissal?

For the reasons that follow, I argue that it did not – although the decision did certainly curtail the opportunity for employees to complain of having been unjustly dismissed.

Judge says 30-Day Notice Provision is Okay

For years this blog has taken the position that if a termination provision in an employment contract does not technically violate the provisions of the Ontario Employment Standards Act, 2000 at the time of termination, but has the potential to do so at other times, it is legally unenforceable at all times. Period. For my earlier commentary on this subject see Poorly Drafted Employment Agreement Proves Costly.

The position and statement of law is premised upon a decision made by the Honourable Justice Wailan Low of the Ontario Superior Court of Justice: Wright v. The Young and Rubicam Group of Companies (Wunderman), 2011 ONSC 4720 (CanLII).

A more recent decision from the same court, this time authored by the Honourable Justice David Price, Ford v. Keegan, 2014 ONSC 4989 (released August 28, 2014) specifically rejects Justice Low’s decision on this point.

The Rita Hayworthing of Ontario's Workplaces

For those who feel like their workplaces are already too much like a prison, May 20, 2015, will not be a happy day. For on that day the workplaces of Ontario will resemble Andy Dufresne’s prison cell at the fictitious Shawshank State Prison.

For those who have not seen the movie The Shawshank Redemption my first question is “how?” But, if you have not, and sorry to spoil it for you, the movie focuses on Andy Dufresne, a innocent man sentenced to life in prison at Shawshank State Prison, from which he eventually escapes by tunnelling through the prison’s walls. Dufresne conceals his tunnel with a large poster of Rita Hayworth.

Unfortunately, the poster that employers must distribute to all employees as of May 20, 2015, is not of Rita Hayworth; it is of the salient provisions of Ontario’s Employment Standards Act, 2000.

Unpaid Interns Become "Workers" Under OHSA

On November 20, 2014, unpaid interns in Ontario gained a modicum of protection under some of Ontario’s employment laws. No, the government did not make any changes to minimum wage provisions relevant to unpaid labour (although the government did change the minimum wage law to make the same reflective of the Consumer Price Index, effective October 1, 2015), the government amended the Occupational Health and Safety Act to make that law applicable to unpaid labourers.

Unpaid Articling Positions: Opportunity or Exploitation?

"Will litigate for food?" Earlier this month a community legal clinic in Oshawa drew fire after it advertised a 10-month unpaid articling position on Legal Aid Ontario’s official website. But can it do that? Shouldn’t lawyers know better?

Incredibly, the law concerning minimum wage does not apply to everyone. Some employees are expressly exempted from the protections of the minimum standards of the Employment Standards Act, 2000. Among those who are exempted are articling students.

The Scope of the Employer's Duty to Investigate Sexual Harassment Complaints

To what extent must an employer investigate allegations of sexual harassment? This question comes to the fore as a result of a recent episode of CBC’s The Fifth Estate, The Unmaking of Jian Ghomeshi, in which the Executive Director of Radio at CBC, Mr. Chris Boyce, defended his decision to limit his investigate of Ghomeshi’s behaviour by saying he is “not the police.”

But is that position really defensible? The Fifth Estate certainly made it appear that Mr. Boyce had been confronted with a number of allegations of serious concerns with Mr. Ghomeshi’s behaviour both inside and outside the workplace. Could Mr. Boyce, as a member of CBC management really turn a blind eye to the entire situation?

While there are several cases concerning this issue, the case of Menagh v. Hamilton (City), 2005 CanLII 36268 (ON SC) provides a paradigmatic example of poor employee behaviour and how the courts of Ontario will respond to such actions.

SCC Refuses to Hear Case from Unionized Employee who Sued for Breach of Confidence and Defamation

A recent decision from the Supreme Court of Canada, in which leave to appeal a decision from the Court of Appeal of Alberta, Beaulieu v University of Alberta, 2014 ABCA 137 (CanLII), was denied, further bolsters all predictions that Jian Ghomeshi’s case against the CBC is doomed to failure.

In its decision, the Court of Appeal of Alberta affirmed the legal principle that unionized employees must subject all disputes arising out of the employment situation to the mediation/arbitration process contained within the employee’s collective bargaining agreement – not the civil courts.