Photo: © Tourism Toronto, 2003 EMPLOYMENT LAW UPDATE FOR CHUBB WEBCAST ON JUNE 8, 2010 Jeffrey E. Goodman - Partner

Key distinctions between Canadian and American Employment Law  No “At-Will” employment in Canada  Reasonable notice of termination if not capped in contract  But no less than statutory notice  No fixed formula (Bardal factors)  Plaintiff must be put in same position as if given working notice (i.e. bonus, benefits).

What is Constructive Dismissal?  Test:  Where employer unilaterally makes substantial changes to the essential elements of an employee’s contract of employment without employee’s consent

What is Constructive Dismissal?  Changes in remuneration, status, responsibilities, reporting relationships and office location  Harassment or abusive conduct

Class Actions  mass termination class actions are possible In Canada  Wage and hour claims may be possible  Discrimination class actions not possible  Canada Opt Out while most of U.S. is Opt In regime  Can use statistical evidence to determine damages

Occupation Health and Safety  Right to refuse unsafe work  Criminal prosecution for failure to take reasonable care to ensure safety of workers  Bill 168 creates violence and harassment protections  Right to refuse work where threat of violence  Must create policies and train workers

Discrimination in Employment  Protection against discrimination consolidated in single human rights statute in each province.  No cause of action in court for discrimination except in Ontario  Grounds of discrimination broader than in U.S.  “Taint test” as opposed to U.S. “But For” test.

 What is discrimination ?  Differential treatment based on prohibited grounds  Purpose of human rights legislation remedial not punitive  Discrimination measured by impact not intention or motive

Prohibited Grounds  Section 5 of the Ontario Code no discrimination or harassment based on: RaceSex AncestrySexual Orientation Place of OriginAge ColourMarital Status CitizenshipSame-Sex Partnership Creed (Religion)status DisabilityFamily Status

Key Terms and Concepts “Direct Discrimination”  “Only people under 65 need apply” “Indirect Discrimination” “6 feet tall to be a police officer”

Changes to the Human Rights System  Bill Human Rights Code Amendment Act, 2006  Introduced sweeping changes, which has already:  Significantly increased number of complaints  Remove incentives to settle  Increase expense to defend and settle  $20,000 to defend average claim

Old Indirect Access Human Rights Complaint Model Complaints filed with the Commission (2,400 per year; 80% of which relate to employment) Commission screens complaints Complaint rejected Mediation Investigation Phase Case Analysis Complaint referred to Tribunal for hearing (only 6% of complaints) Complaint dismissed

New Direct Access Human Rights Complaint Model Complaint filed directly with the Tribunal Mediation? Hearing before the Ontario Human Rights Tribunal Legal Support Centre Commission intervention

Choice of Venue  Can now sue in Court for discrimination Complaint CourtTribunal

Removal of Punitive Damages Cap CAP 10,000

Range of Remedies  Restoring the complainant to the position she would have held  Compensation for loss of earnings or job opportunities- No cap  Damages for mental anguish ($10,000 maximum removed)

Range of Remedies  An organization may be required to:  change its policies  implement training initiatives  establish a way to resolve human rights complaints  apologize  introduce anti-discrimination and harassment policies …reinstatement?

Case Update  Piresferreira v. Bell Mobility  COA reduces huge award  No right to sue employer for negligent infliction mental suffering  Very difficult to prove intentional infliction mental suffering

Case Update  Aquafor v. Whyte  Departing professionals can set up new business before they leave  Must be on own time  No breach loyalty or confidentiality