Friday, February 28, 2014

140 Law - Legal Headlines for Friday, February 28, 2014

Here are the leading legal headlines from Wise Law on Twitter for Friday, February 28, 2014:
- Rachel Spence, Law Clerk

Visit our Toronto Law Office website: www.wiselaw.net

Thursday, February 27, 2014

140 Law - Legal Headlines for Thursday, February 27, 2014

Here are the leading legal headlines from Wise Law on Twitter for Thursday, February 27, 2014:

- Rachel Spence, Law Clerk

Visit our Toronto Law Office website: www.wiselaw.net

Wednesday, February 26, 2014

140 Law - Legal Headlines for Wednesday, February 26, 2014

Here are the leading legal headlines from Wise Law on Twitter for Wednesday, February 26, 2014:
- Rachel Spence, Law Clerk

Visit our Toronto Law Office website: www.wiselaw.net

Tuesday, February 25, 2014

140 Law - Legal Headlines for Tuesday, February 25, 2014

Here are the leadling legal headlines from Wise Law on Twitter for Tuesday, February 25, 2014:
- Rachel Spence, Law Clerk

Visit our Toronto Law Office website: www.wiselaw.net

Monday, February 24, 2014

140 Law - Legal Headlines for Monday, February 24, 2014

Here are the leading legal headlines from Wise Law on Twitter for Monday, February 24, 2014:
- Rachel Spence, Law Clerk

Visit our Toronto Law Office website: www.wiselaw.net

Thursday, February 20, 2014

Mitigation - A Dismissed Employee's Continuing Obligation

BY NITIN PARDAL, LAWYER, WISE LAW OFFICE

It is a well founded principle in the law of contracts that once a breach occurs, a plaintiff has an obligation to minimize their damages. In bringing an action against a defendant for breach of contract, a plaintiff would not be allowed to "rack up" their losses and expect a large payout. Instead, a plaintiff must do whatever a prudent and responsible person ought to do to mitigate his or her losses.

Although a contract of employment is not like an ordinary commercial contract, an employee does have an obligation after dismissal to mitigate his/her losses.

Mitigation in the Employment Context

The leading decision on an employee's duty to mitigate the loss of his or her employment is Red Deer College v. Michaels, where the Supreme Court of Canada held that:
  • an employee has a duty to take all reasonable steps to mitigate his or her losses;
  • an employee cannot claim for any damage which is due to his or her own neglect from not taking reasonable steps;
  • any benefit derived from complying with the duty to mitigate is deducted from the damages due in lieu of notice;
  • the burden of proof is on the employer to establish that: 
    1. through reasonable search, the employee could have found other similar employment that was reasonably adapted to the employee's abilities;
    2. the employee did not act reasonably in searching for alternate employment.
It is important to note that a dismissed employee's obligation here is only to establish that he or she took all reasonable steps to find alternate employment - this obligation does not mean the dismissed employee must act "perfectly."

Also of note is the fact that if a dismissed employee is able to find alternate employment during the reasonable notice period, the income earned would be credited against the damages for wrongful dismissal.

Delay in Mitigation

Courts are cognizant of the trauma a dismissal may cause an employee and the fact that it may be unreasonable to expect such an employee to "hit the ground running" on their job search. In Bustos v. Celestica International Inc., it was held that a "plaintiff is entitled to an appropriate amount of time to adjust to his [or her] situation and to plan for the future before fulfilling his [or her] duty to mitigate (Bustos, para 37)."

By the same token, it would be unreasonable for an employee to take an inordinate amount of time to begin mitigating their losses. In Dixon v. Sears Canada Inc., the British Columbia Supreme Court accepted the plaintiff's argument that she was "emotionally distraught" following her dismissal. However, in this case the plaintiff took more than a year to begin looking for a new job. In response to this unreasonable delay, the Court stated:
But the evidence shows that for over a year after her dismissal, she did little or nothing to find alternate employment. I would have been much more impressed by her argument had she been able to show that she had   sought counselling and assistance, and had begun her search for alternate employment, say, six months after her dismissal. (Dixon, at para 45).
Mitigating by Returning to Employer
         
As strange as it may seem, a dismissed employee may be even required to return to work for the dismissing employer as part of the employee's duty to mitigate.

The Supreme Court of Canada's landmark decision in Evans v. Teamsters Local No. 31, held that a reasonable person standard ought to be used to assess such cases- that is whether a reasonable person in the dismissed employee’s position would have mitigated his or her damages by accepting an offer of temporary work from a former employer. 

In making the assessment of whether an employee should return their former employer a number of factors are considered.

Factors For Returning:
  • the salary offered is the same;
  • the working conditions are not substantially different or the work is not demeaning;
  • the personal relationships involved are not acrimonious.
Factors Against Returning:
  • atmosphere of hostility, embarrassment or humiliation;
  • history and nature of the employment
  • whether or not the employee has commenced litigation (however as will be examined shortly, the commencement of litigation does not necessarily render it unreasonable to require the dismissed employee to mitigate damages by accepting an offer of re-employment);
  • whether the offer of re-employment was made while the employee was still working for the employer or after he/she had left.
Failure to Return - A Fatal Flaw

The Ontario Court of Appeal's September 2013 decision in Chevalier v. Active Tire & Auto Centre Inc. affirmed the Superior Court of Justice ruling regarding the detrimental impact an employee's failure to return to one's previous employer can have in a wrongful dismissal claim.

After nearly 33 years of continuous employment, Earl Chevalier ("Mr. Chevalier") was notified by his employer that he was being laid off. Two weeks after his dismissal, Mr. Chevalier commenced an action for wrongful dismissal, seeking 24 months in damages for pay in lieu of notice. However, after the commencement of his wrongful dismissal action, Mr. Chevalier's former employer "wrote to Mr. Chevalier calling him back to work ... confirmed Active Tire's willingness to continue Mr. Chevalier's employment and conveyed Active Tire's apology for its mistake in laying him off. Mr. Chevalier's counsel confirmed that Mr. Chevalier would not be returning to work, and would be continuing this litigation (Chevalier - Superior Court ruling at para 5)."

At trial, the employer conceded that Mr. Chevalier was constructively dismissed when he was laid off and would have been entitled to damages in lieu of notice in the range of 18 to 24 months. However, the employer raised the argument that because he failed to return to work following his dismissal, Mr. Chevalier failed to mitigate and was not entitled to recover any damages in lieu of notice.

Ultimately, both the Superior Court of Justice and the Ontario Court of Appeal held that a reasonable person in Mr. Chevalier's position, would have returned to work for Active Tire, for the following reasons:
  • "accepting the opportunity to return to Active Tire would not have obliged Mr. Chevalier to work in an atmosphere of hostility, embarrassment or humiliation" (Chevalier - Superior Court ruling at para 44);
  • "the decision to lay off Mr. Chevalier was made for economic reasons, given the financial performance of the Niagara Falls location, under the mistaken belief that Active Tire had the right to do so in these circumstances" (Chevalier - Superior Court ruling at para 51);
  • "once Active Tire received legal advice that they were not entitled to lay off Mr. Chevalier, Active Tire promptly called him back to work and apologized for their mistake" (Chevalier - Superior Court ruling at para 51);
  • "the fact that Mr. Chevalier had already left the employ of Active Tire, and the fact that he had already sued the company, when the offer of re-employment was made, while relevant, were not determinative of the reasonableness of his rejection of Active Tire's offer of re-employment" (Chevalier - Court of Appeal ruling at para 9).
Where the Law Stands

In this case, the employer raised two arguments with respect to Mr. Chevalier's mitigation efforts. First, that Mr. Chevalier's refusal to return to Active Tire resulted in his failure failure to mitigate. Second, that Mr. Chevalier "failed to diligently look for suitable work from another employer in the period following his departure from Active Tire (Chevalier - Superior Court ruling at para 10)."

It is interesting to note that the Superior Court only agreed with the employer's argument that Mr. Chevalier failure to return to work for them resulted in his failure to mitigate.

As previously stated, the employer's burden of establishing that a dismissed employee failed to act reasonably in searching for alternate employment is a very difficult test to meet. In this case, for instance, the Court held that "[w]hile it would have been reasonable to expect Mr. Chevalier to produce more extensive documentary evidence of his employment search, I accept his evidence on this subject nonetheless, and find that he made a reasonable effort to obtain suitable employment from other potential employers" (Chevalier - Superior Court ruling at para 55).

Let us assume for a moment that his former employer did not offer Mr. Chevalier his job back. It can be argued that the outcome of this decision would have been far more favourable for Mr. Chevalier.

- Nitin Pardal, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

Blurred Lines – Privacy and the Work/Personal Computer

BY ANA KRALJEVIC, LAWYER, WISE LAW OFFICE

In today’s computer age, almost all of our actions, from banking to online shopping to private communications with loved ones can be accessed and viewed with just a few clicks and single successful password attempt.  

And while this naturally raises security concerns regarding privacy in our private lives, is our expectation of privacy diminished when it comes to computers in the workplace? 

Does it make a difference if the computer issued by the workplace is also permitted for personal use?

This was precisely the question that was addressed by the court in the decision of R. v. Cole.  This ruling shed some light as to when an employee has a right to a reasonable expectation of privacy and under what circumstances this right can be curtailed.  It recognized that the intersection of law with technology in today’s modern workplace requires that we define who can be privy to the sensitive information accessible by computers and how the expectation of privacy must be harmonized with competing interests. 

The Facts
The accused, a high-school teacher, was supplied with a laptop computer by the school where he taught communication technology.  The computer was for work purposes as well as for personal use.  The teacher was also a sitting member of the school’s technology committee which conferred him with domain administration rights to the school network.  The appellant was authorized to remotely access the data stored on student computers connected to the school network for the purposes of policing and monitoring. This was how he was ultimately able to access a student’s e-mail account and view nude, sexually explicit photographs of an underage female student.  The appellant then copied the nude photographs onto the hard drive of his school-issued laptop.

A computer technician employed by the school board accessed the contents of the accused’s laptop while monitoring the integrity of the school network and performing a virus scan.  The technician discovered a hidden folder on the appellant’s hard drive that contained the images of the underage student.  The technician took a screen shot, verified that the girl was a student and promptly informed the principal.  The principal instructed him to copy the images onto a disc.  A school board official then searched the laptop and copied temporary Internet files from the accused’s browser history onto a second disc.  The teacher was suspended from school and the computer was seized by school officials.  The two discs and laptop were handed over to the police who searched them without a warrant.  The accused was charged with possession of child pornography and authorized use of a computer. 
The accused successfully applied to exclude the evidence of the images under s. 24(2) of the Canadian Charter of Rights and Freedoms on the grounds that the searches violated his rights pursuant to s. 8 of the Charter.  The summary conviction appeal court overturned that decision and sent the matter back for a retrial.  The accused appealed.

The Key Issues
On appeal, there were a number of issues that the court turned its mind to:

1)   Did the technician’s access of the teacher’s hard drive for maintenance purposes violate the teacher’s s. 8 Charter rights?

The accused had no expectation of privacy with respect to access to his hard drive by his employer’s technician for the limited purpose of maintaining the integrity of the school’s information network.  Section 8 of the Charter was not invoked by either the technician’s or the principal’s actions.  The principal acted reasonably and lawfully in instructing the technician to copy the images onto a disc and in seizing the laptop from the accused.  The accused’s rights under section 8 of the Charter were not infringed by the principal’s search of the computer or the school board’s search of the computer.

2)  Were the teacher’s rights under s. 8 of the Charter infringed when police searched the computer without a warrant?

While the court did not flinch in affirming that the school board had a right to access the appellant’s hard drive for certain limited purposes, the warrantless police search of the laptop crossed the proverbial line and triggered a Charter violation.

The court found that the police search of the computer was too broad in scope and constituted a significant breach of the appellant’s privacy.  The school board was not vested with the authority to authorize the search or seizure of the private files which contained his browser history and included photographs of his wife that he had specifically requested remain private.  

Moreover, the court’s truth-seeking function, as well as the Crown’s case, would not be defeated by excluding the computer and the mirror image of the hard drive. 

Consequently, the evidence was excluded under s. 24(2) of the Charter.  The court held that there were no exigent circumstances that precluded obtaining a warrant before the search was conducted.  There was no potential harm to the students as the teacher had already been suspended and the computer was in the custody of school officials.  Also, it was unclear as to what specific purpose would be served by including the use of the temporary internet files. 

This decision demarcates the boundaries of privacy interests when the boundaries of work and private life seemingly blur together.  Its practical implications demand that we shift or re-orient our expectations of privacy.  As R. v. Cole teaches us, information that we subjectively believe to be subject to privacy may not be accorded privacy from a legal standpoint. 
- Ana Kraljevic, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

140 Law - Legal Headlines for Thursday, February 20, 2014

Here are the leading legal headlines from Wise Law on Twitter for Thursday, February 20, 2014:
- Rachel Spence, Law Clerk

Visit our Toronto Law Office website: www.wiselaw.net

Wednesday, February 19, 2014

140 Law - Legal Headlines for Wednesday, February 19, 2014

Here are the leading legal headlines from Wise Law on Twitter for Wednesday, February 19, 2014:
- Rachel Spence, Law Clerk

Visit our Toronto Law Office website: www.wiselaw.net

Tuesday, February 18, 2014

140 Law - Legal Headlines for Monday, February 18, 2014

 Here are the leading legal headlines from Wise Law on Twitter for Monday, February 18, 2014:

- Elysia Cherry, Legal Assistant 
Visit our Toronto Law Office website: www.wiselaw.net