LawFact of the Day: Employment Law

Here is your daily LawFact from Wise Law for Tuesday August 30, 2016. Today we are talking about Employment Law.

A video posted by Wise Law Office (@wiselaw) on Aug 30, 2016 at 7:05am PDT

Ontario employers are prohibited from discrimination and harassment against any employee.

Employers may not discriminate on the basis of race, religion, colour, citizenship, creed, gender, disability, sexual orientation, gender identity or expression, age, record of offences, marital status or family status. 

- Garry J. Wise, Toronto

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LawFact of the Day: Employment Law

Here is your daily LawFact from Wise Law for Tuesday July 19, 2016. Today we are talking about Employment Law.

A video posted by Wise Law Office (@wiselaw) on Jul 19, 2016 at 6:21am PDT

Under Ontario’s Human Rights Code, where discrimination or harassment has been proven the Tribunal can award significant remedies to employees.  

A Human Rights Tribunal has power to order reinstatement of employment, restitution, monetary compensation for wage loss, and damages  for injury to dignity, feelings and self-respect.

- Garry J. Wise, Toronto

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

Bill 168: Ontario Workplace Harassment and Violence Legislation In Force

Bill 168, an Act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace, comes into force today.

Our previous report on the Bill's requirements is here.

As noted by Ogilvie Renault's Mary J. Gleason and Richard J. Charney in their paper, Bill 168 - countdown to compliance and the new obligations for Ontario employers:

What are the basic obligations for employers in respect of written policies for both workplace violence and workplace harassment?

The Bill 168 amendments to OHSA require employers to develop and maintain policies that address harassment, violence and threats of violence in the workplace. Such policies must be reviewed at least annually. In workplaces of more than five employees, the policies are to be written and posted in a conspicuous place in the workplace.

What should the workplace violence and harassment policy include?

Current legislation and regulations require the workplace violence policy to:

• Provide a mechanism for workers to report incidents or threats of workplace violence to the employer or supervisor;
• Provide a process for the investigation of incidents, complaints or threats of workplace violence;
• Control the risks identified in the workplace violence assessment; and
• Set out a procedure for contracting assistance when workplace violence occurs, may occur or when threats are made.

In the video below, two Ontario Ministry of Labour workplace safety inspectors describe the requirements of the new legislation:

- Garry J. Wise, Toronto

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EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

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Ontario Human Rights Tribunal Orders Money Mart to Pay $30,000 for Failure to Investigate Harassment

The Ontario Human Rights Tribunal has increasingly become the judicial body to watch for developments in Ontario's employment law.

Most recently, in a decision released February 17, 2010, the Tribunal ordered National Money Mart Company to pay $30,000 in compensation to a former, one-year employee of the company who had been subjected to ongoing, serious sexual harassment by her workplace supervisor.

In its decision, the Tribunal emphasized the employer's failure to investigate serious incidents of harassment at a Money Mart outlet on Danforth Avenue in Toronto, despite repeated reports by the employee, a Customer Service Representative, as to ongoing sexual misconduct by her Branch Manager.

CBC reports:

The claim was filed by Marjorie Harriott, a Toronto woman who worked as a customer service representative at a Toronto Money Mart store from April 2007 until she was fired in June 2008.

Harriott told the Ontario Human Rights Tribunal she was sexually harassed by her manager while she worked at a Money Mart store on Danforth Avenue, in the city's east end.

She told the tribunal that her supervisor would leer at her buttocks and breasts, make inappropriate comments, and touch her when there was no need — adding that the harassment was so unbearable that she suffered from panic attacks while she worked there.

Harriott said she and several other women who worked at the store complained repeatedly to the district manager in 2007 and 2008, but the manager didn't investigate the complaints.

The Tribunal's decision serves as an excellent primer on the law of sexual harassment applicable to Ontario's workplaces. Vice Chair Allan Whyte's discussion on the damages award, in particular, provides considerable guidance:

[149] I find that an appropriate total for the damages under the three headings above is $30,000. In my opinion, this is an appropriate level of compensation for the applicant, taking into account the three breaches of the Code involved, and allowing for the fact that I have found that her termination from employment was not an act of reprisal. The applicant submitted certain sexual harassment cases in argument which involved higher awards of general damages: see for example S.H v. M[…] Painting, 2009 HRTO 595 (CanLII), 2009 HRTO 595 (CanLII) ($40,000), and Smith, supra (total of $50,000). However, these cases involved situations either where the applicants left their employment because of the sexual harassment they were experiencing (or were reprised against) and such leaving was found to be tantamount to dismissal, as a result of which the damages were increased. In this case, I have found the termination of the applicant’s employment to not be an act of reprisal.

[150] I have also reviewed two other recent sexual harassment cases, Ratneiya v. Daniel & Krumeh, 2009 HRTO 1824 (CanLII), 2009 HRTO 1824 (CanLII) and Hill-Leclair v. Booth, 2009 HRTO 1629 (CanLII), 2009 HRTO 1629 (CanLII), both of which awarded damages for the infringement of the Code in the amount of $25,000. Neither of those cases contained the elements of poisoned work environment and a failure to investigate. In the Hill-Leclair case, the Tribunal observed as follows:

Historically, sexual harassment under human rights statutes has tended to attract a comparatively higher quantum of damages than simple discrimination, see: Domingues v. Fortino, 2007 HRTO 19 (CanLII), 2007 HRTO 19 (CanLII),2007 HRTO 19 (CanLII), 2007 HRTO 19 (CanLII), Sanford v. Koop, supra; Colvin v. Gillies Hillcrest Variety,2004 HRTO 3 (CanLII), 2004 HRTO 3 (CanLII), 2004 HRTO 3 (CanLII), 2004 HRTO 3 (CanLII). This can be rationalized by the vulnerability of victims, the heightened personal impact and the more severe dignity interests implicated.

[151] In terms of the liability of the respondents, counsel for the respondents agreed that in the event that I found that there was liability for Mr. Wade, the company agreed to be responsible for any such liability. I therefore find that the liability for the harassment and poisoned work environment damages awarded, which I assess at $22,500, is joint and several as between the company and Mr. Wade, whereas the liability for the failure to investigate in the amount of $7,500 is that of the company only.

See the Tribunal's full decision: Marjorie Harriott and National Money Mart Company and Desmond Wade.

- Garry J. Wise, Toronto

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EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

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Workplace Harassment and Bill 168 - A New Remedy for an Old Problem

Workplace bullying is a serious problem for thousands of Canadians at work. It can degrade one’s self worth and create serious health problems for workers and their families.

There has often been very little that could be done to stop the workplace bully in his or her tracks. But, in Ontario, there is now hope around the corner.

This month, Ontario’s Standing Committee on Social Policy will wrap up public hearings regarding Ontario's Bill 168, An Act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace. The Bill, which will place heavier obligations on employers to prevent and manage workplace violence and harassment, has already been given second reading in the Legislature, and will likely become law sometime next year.

The new law defines "workplace harassment" and "workplace violence" in the following manner:

"Workplace harassment" means engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.

"Workplace violence" means:

a. the exercise of physical force by a person against a worker in a workplace that causes or could cause physical injury to the worker,

b. an attempt to exercise physical force against a worker in a workplace that could cause physical injury to the worker.

This type of legislative initiative should be welcomed. Many employees live with the often horrific reality that the workplace can be a war zone from which there is no shelter.

Researchers Charlotte Rayner, Helge Hoel and Cary L. Cooper have contributed to our understanding of what may constitute workplace bullying.

In their book, Workplace Bullying: What We Know, Who is to Blame, and What We Can Do, they suggest that bullying may include:

• Threat to professional status (e.g., damaging the person's reputation, humiliating the person in public or accusing him or her of lack of effort).
• Threat to personal standing (e.g., calling the person names; insulting, teasing or intimidating him or her; or devaluing the person based on age).
• Isolation (e.g., preventing access to opportunities, deliberately withholding important information or isolating the person physically or socially).
• Overwork (e.g., imposing undue pressure to produce work, setting impossible deadlines or making consistent and unnecessary disruptions).
• Destabilization (e.g., failing to give credit where it is due, assigning meaningless tasks, removing responsibility or setting the person up for failure).

Certainly the costs of workplace violence and harassment can be profound for victims. Bill 168 is a welcome step in the right direction.

......

Tort Remedies for Harassment

The Ontario Superior Court's December 2009 ruling in Piresferreira v. Ayotte and Bell Mobility Inc., [2008] O.J. No. 518, provides a dramatic example of the civil remedies available in Ontario in extreme cases of harassment and bullying.

In that case, an employee was abused by a manager who frequently yelled and swore at her, and berated her in front of other employees. The culminating incident occurred when the manager became frustrated with the employee and pushed her aside, and the employee (who was 60 years old) lost her balance and fell back against a filing cabinet. Soon thereafter, the employee was presented with a performance improvement plan prepared by the manager. The employee was diagnosed with post-traumatic stress disorder, and left her employment permanently.

The court awarded the employee $45,000 in damages for assault, battery, intentional and negligent infliction of emotional distress, mental suffering and psycho-traumatic disability; $450,832 for loss of past and future income; and $5,123 for special damages.

Garry has also addressed this ruling in a previous post.

- Stephen Ellis, Toronto

Stephen Ellis is a Toronto lawyer practicing in association with Wise Law Office, Toronto

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

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

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Canada: Employment Law Update

I'll note two good articles on recent Canadian employment law rulings that are of considerable importance:

• Lawyers Weekly has Suing abusive employers in tort, a fine piece by Steve Levitt on the December, 2008 decision of the Ontario Superior Court in Piresferrerira v. Ayotte and Bell Mobility, [2008] O.J. No. 518. In that case, the employer, Bell Mobility was ordered to pay damages to an employee of $500,095, largely for the abusive and tortious acts of a Bell supervisor. Last month, the telecommunications giant was ordered to pay the additional sum of $225,000.00 in costs

• In Judicial Interpretation Of Restrictive Covenants, Ottawa Business Journal provides a good summary by Jordan Plener on the January, 2009 ruling of the Supreme Court of Canada in Shafron v. KRG Insurance Brokers (Western) Inc., 2009 SCC 6 (CanLII). In Shafron, the Supreme Court of Canada overturned a ruling of the British Columbia Court of Appeal that had liberally interpreted and enforced a non-competition covenant that purported to restrict a former employee's ability to work in the Greater Vancouver area. The Supreme Court of Canada held the employer to the strict wording of the covenant, which referred to the non-existent entity of the "Metropolitan City of Vancouver" and refused to enforce the covenant. As Mr. Plener succinctly put it, "In arriving at this conclusion, the Supreme Court held that an ambiguous restrictive covenant is prima facie unreasonable and unenforceable."

- Garry J. Wise, Toronto

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

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

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U.S. Attorney Purge - Congressional Hearings Begin

Andrew Sullivan has this hard-hitting commentary from an observer of the Congressional hearings that began today into the dismissals of eight US Attorneys in December, 2006:

On another explosive front, a lawyer writes:

I have spent much of today watching the webcast of the Judiciary Committee hearings with the dismissed US Attorneys - from California, New Mexico and Arkansas. The testimony has been the most riveting I can remember in many years, and what's coming out is shocking.

Remember, all of these US attorneys are highly qualified, smart, professional REPUBLICANS. People who expect to have a career in elective politics, usually picked, among other things, for their long-term potential as political candidates. No problem with that after all. And that's what makes their testimony so compelling. Because they're portraying Alberto Gonzales and his deputy Paul J McNulty like figures out of a play by Bertolt Brecht.

The key is crude political direction of the prosecutorial service - go get Democrats, and do it in a way to get maximum electoral benefit; lay off the corrupt Republicans; use your prosecutorial authority for voter suppression projects targeting minorities. This is exactly the sort of conduct that the system is constructed to make impossible. For three years now I've heard a steady flow of whispers from DOJ professionals that this sort of stuff is going on, and even I (certainly no friend of the Administration) kept thinking: no, it can't be. But it is. This will call for very stringent action: the appointment of a special prosecutor, an independent investigation, and certainly the dismissal of Gonzales and McNulty.

Ultimately perhaps their prosecution.

-Garry J Wise, Toronto

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The "No Asshole Rule" - Professor Robert Sutton

As an employment lawyer who quite regularly acts on behalf of employees who have been victimized by workplace harassment, discrimination and bullying - often with very dire professional and medical consequences - I was intrigued by this review of Stanford Professor Robert I. Sutton's new book, The No Asshole Rule - Building a Civilized Workplace and Surviving One that Isn't:

This meticulously researched book, which grew from a much buzzed-about article in the Harvard Business Review, puts into plain language an undeniable fact: the modern workplace is beset with assholes. Sutton (Weird Ideas that Work), a professor of management science at Stanford University, argues that assholes-those who deliberately make co-workers feel bad about themselves and who focus their aggression on the less powerful-poison the work environment, decrease productivity, induce qualified employees to quit and therefore are detrimental to businesses, regardless of their individual effectiveness. He also makes the solution plain: they have to go.

Lawyer-coach Julie Fleming-Brown also reviews Professor Sutton's work in her blog, Life at the Bar:

Dr. Robert I. Sutton is a champion of the civilized workplace, created and maintained through careful enforcement of the “no asshole rule.” Expanding and deepening his 2004 Harvard Business Review article entitled “More Trouble Than They’re Worth,” Sutton’s forthcoming book The No Asshole Rule (to be published on February 22, 2007, by Warner Business Books, but apparently shipping now through Amazon) offers valuable tips for eliminating or avoiding nasty people in business. In less than 200 pages, Bob explains how to identify a workplace asshole (even how to tell if you’re the asshole) and describes the damage these assholes wreak on the organizations in which they work and the clients and colleagues with whom they come into contact. He even addresses how to handle a workplace asshole, while warning of the dangers of “asshole poisoning.” This is a must-read. Seriously.

With a bit of Googling, I came upon Work Matters, Professor Sutton's blog, and this short video clip, in which he introduces himself and his basic thesis.

In the video clip, he also shares a rather humourous anecdote. In his original article submission to the pristine Harvard Business Review, he intentionally included the "a-word" in the draft an exaggerated eight times, hoping that at best, perhaps one might survive editing. When the article was ultimately published, however, Sutton was surprised to find that all eight remained intact. His career path thus becase inexorably linked to this epithet.

Finally, for the courageous, take this self-test to find out if you might just be one of the people Professor Sutton is talking about...

- Garry J. Wise, Toronto

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