1 FALL EMPLOYMENT & LABOUR LAW UPDATE 8:00 a.m. Registration 8:30 a.m. Seminar October 9, 2013
2 Fall Employment & Labour Law Update Table of Contents PRESENTATIONS AODA update: What employers should know about the Accessibility for Ontarians with Disabilities Act, 2005 Anneli LeGault... Tab 1 Returning sick and disabled employees to work Jeff Mitchell... Tab 2 Non-solicitation and non-competition covenants: Making them enforceable Andy Pushalik... Tab 3 ARTICLES Fired employee failed to prove depression, harassment drove him to fight: Court Adrian Miedema, Canadian Employment Law Today, September 18, Tab 4 Internet usage may lead to dismissal Norm Emblem and Geoff Janoscik, Legal Alert, v.32 no.5, August Tab 5 Technology in the workplace A brief overview Catherine Coulter, CCH Canadian Employment Law Guide, No. 144, August Tab 6 Inherently dangerous business requires high degree of attention to detail; in safety training and supervision: Court Adrian Miedema, Canadian Employment Law Today, August 8, Tab 7 Historic $150 million pension deal signed With comments by Scott Sweatman, The Lawyers Weekly, v.33, n.12, July 19, Tab 8 Natural disasters in the workplace Catherine Coulter, Labour Notes, No. 1478, July 10, Tab Dentons. Dentons is a global legal practice providing client services worldwide through its member firms and affiliates. This publication is not designed to provide legal or other advice and you should not take, or refrain from taking, action based on its content. Dentons Canada LLP. Please see dentons.com for Legal Notices.
3 Fall Employment & Labour Law Update Sun Life Financial and Canadian Wheat Board announce $150 million inflation-linked pension deal the first of its kind in Canada (CWB was advised by Steve Windsor of Aon Hewitt, as well as Scott Sweatman and Mary Picard of Dentons Canada LLP) Canada Newswire, June 18, Tab 10 sinks employer in safety retaliation case Adrian Miedema, Canadian Employment Law Today, June 11, Tab 11 Companies, supervisors facing added scrutiny With comments by Adrian Miedema, Law Times, v.24, no. 18, May 27, Tab 12 ADDITIONAL MATERIALS Employment & Labour and Pensions Toronto Contact List... Tab Dentons. Dentons is a global legal practice providing client services worldwide through its member firms and affiliates. This publication is not designed to provide legal or other advice and you should not take, or refrain from taking, action based on its content. Dentons Canada LLP. Please see dentons.com for Legal Notices.
4 Sep 18, 2013 Fired employee failed to prove depression, harassment drove him to fight: Court Employee didn't provide explanation about effects of harassment or medical evidence of depression that excused starting fight for which he was fired By Adrian Miedema An employee who was fired for fighting after being harassed, did not prove that his harassment or depression caused him to fight. Therefore, the Human Rights Tribunal of Ontario was wrong to find that his firing was discriminatory, the Ontario Divisional Court has ruled. The employee, Paul Lombardi, had been diagnosed with hypothyroidism and depression. He had suffered verbal abuse from a co-worker who also sent text messages with homophobic slurs. Later, Lombardi got into a fist fight with another co-worker. The employer fired Lombardi, concluding that he had started the fight. Lombardi filed a discrimination application with the Human Rights Tribunal of Ontario. He claimed that the fight was at least in part a reaction to being harassed because of depression, perceived obesity and perceived homosexuality. The tribunal agreed. The employer challenged the decision in court. The court decided that the Tribunal had made only a bald statement that the fight was at least in part a reaction to the harassment. Lombardi had the onus of proving a link between the harassment or discrimination and the fight, but he had failed to prove the link. The court stated, Given the evidence as to Mr. Lombardi s responsibility for starting the fight, the lack of any explanation to the Employer about the impact of the harassment, the lack of any medical evidence relating to mental distress and given the seriousness of the misconduct, the conclusion that the dismissal was discriminatory was unreasonable, as the adjudicator failed to show why she reached that conclusion. The court sent the matter back to the Tribunal for a new hearing on whether the dismissal was discriminatory, as well as whether the $20,000 damage award for harassment was appropriate. This is an interesting and nuanced decision showing that the fact that an employee is harassed does not automatically justify or explain a violent response by the employee. Instead, the employee must prove, through medical and/or other evidence, that his or her response resulted from the harassment.
5 - 2 - For more information see: Walton Enterprises v. Lombardi, 2013 CarswellOnt 9732 (Ont. Div. Ct.). Adrian Miedema is a partner with Dentons Canada LLP in Toronto. He can be reached at (416) or Adrian's discussion of this case also appears in the Dentons blog To see more Canadian Employment Law Today articles visit
8 CANADIAN EMPLOYMENT LAW GUIDE 6 TECHNOLOGY IN THE WORKPLACE A BRIEF OVERVIEW By Catherine Coulter. Dentons Canada LLP. I have trouble programming my television and need my teenage daughter to lend a hand. I also know that I am not alone in this world of rapidly changing technology. It is of little wonder then, that even the best HR professionals can sometimes use a reminder of best practices when it comes to the use of technology in the workplace. This ever-changing area encompasses so many technological issues that this is only intended to provide a very high-level overview. Workplace Surveillance For employers in a unionized workplace or employers which are federally regulated (e.g., banks, telecoms), collective agreements and federal privacy legislation respectively set out strict parameters with respect to what sort of workplace surveillance is permitted. For employers in British Columbia, Alberta, and Quebec, applicable provincial privacy legislation may also set out parameters with respect to permitted workplace surveillance. For all other employers, the workplace surveillance findings of the Privacy Commissioner of Canada are instructive but not generally applicable. With regard to the Privacy Commissioner s findings, the use of video surveillance and GPS is generally not permitted for productivity management although it may be permitted if the employer can show a bona fide safety or security reason for the surveillance. In those cases, employees should be given advance written notice of the surveillance and the surveillance must be reasonable in scope. On the other hand, unionized workplace arbitration findings sometimes permit keystroke monitoring to manage productivity, but it is considered intrusive and other means of monitoring productivity should be used if possible. Computer Use in the Workplace Much has been written about the extent to which employers can monitor an employee s computer use in the workplace, particularly in light of the Supreme Court of Canada s 2012 decision in the case of R v. Cole. In that decision, the Court held that employees have a reasonable expectation of privacy in connection with personal information on workplace computers. This criminal decision involving Charter rights is only directly applicable to public sector employers, but it gives employers some idea of where the courts may go on this issue in the future. As a result of this decision and the apparent desire of the courts to protect employee personal information even when located on company property, it is absolutely necessary for employers to have a computer use policy which confirms that: (i) the employer s computer systems are company property and should only be used for company business; and (ii) employees should understand that they have no expectation of privacy when it comes to personal information when using the employer s computer systems. Employees should be regularly reminded about the policy and asked to confirm their understanding and agreement. Teleworking The two biggest issues with allowing employees to work from home are productivity and confidentiality. With respect to confidentiality, employers should assist in the set-up of the home office and insist upon some or all of the following protections: (i) home computers which are password enabled, encrypted, firewalled, and/or subject to biometric ID; (ii) all company work must go through the company s internal network through a platform such as Citrix; (iii) sensitive company and customer information should not be maintained on laptop computers, cellphones, or other portable devices; (iv) hard copies of sensitive company or customer information kept at home should be stored in a locked filing cabinet; and (v) home computers used for work purposes should not be accessible to family members. It is also a good idea to conduct periodic checks in order to ensure that your employees are following proper procedures. Social Media If your organization decides that it wants to permit social media in the workplace, drafting a good policy is your starting point. Among other things, the policy should: (i) make it clear that employees cannot use social media to
9 CANADIAN EMPLOYMENT LAW GUIDE 7 disclose company or customer confidential information, engage in workplace gossip, do anything discriminatory or harassing, or otherwise say anything which might harm the company or its customers; (ii) advise employees that their use of social media may be monitored; (iii) advise employees that the use of social media at work is for work purposes only; (iv) require workplace bloggers to identify themselves by their real names and make it clear that the views expressed are not necessarily those of the organization (unless the organization requires blog entries to be approved prior to posting); and (v) require employees to have a stand-alone work account for their blogs so that they do not use a personal account for work-related matters. Online Recruiting To understand what you can and cannot do on an online basis when it comes to recruiting, you need to understand what you can and cannot do offline. One of the general rules of thumb is that you cannot make a decision to not hire based on an employee s age, race, religion, ethnicity, sexual orientation, etc. If an employee is looked up online before a decision is made whether or not to hire, or even whether or not to interview, one runs the risk of finding out something about the employee s personal background which could lead to a human rights complaint. As a result, it remains best practice to interview first, and then make any hiring decision subject to reference checks and other background checks (and to obtain the prospective employee s consent for those checks before undertaking them). Closing Although technology is ever-changing and some of the issues set out above will become non-issues with the passage of time and technologies, the one constant thread which runs through most of these issues is the need to have strong policies which outline what is and isn t permitted in the workplace. Notwithstanding the same, employers should be aware of the fact that employees may have reasonable expectations of privacy in the workplace, even when using company technology.
10 Aug 8, 2013 Inherently dangerous business requires high degree of attention to detail in safety training and supervision: Court Accident not foreseeable but danger of employee working alone at night in propane facility was By Adrian Miedema Dangerous workplaces require particularly careful training and supervision, a judge has stated in convicting an Ontario propane company. The judge found a worker s reaction to the sound of an explosion showed that he was not properly trained. A series of massive explosions at a propane facility in Toronto in 2008 killed a worker and damaged a number of nearby buildings. Sunrise Propane Energy Group, the operator of the propane facility, was charged with failing to provide information, instruction and supervision to the worker, and with failing to take every reasonable precaution for the protection of the worker. The court rejected Sunrise s submissions that, because there had been no complaints against the employee, the court could infer that the employee had been adequately trained. The court also found that because the worker ran in the direction of the explosion rather than away from it, the only rational inference was that he had not been properly trained. Further, the court held that the employee had not been properly supervised. The employer did not take the simple step of giving the employee a phone number to call if he had any questions, nor did any supervisors call to check in on him. The employee should not have been put in charge of the propane yard on the night in question, given his lack of experience. Sunrise also argued it had proved due diligence because the accident was not foreseeable. The court rejected that argument and noted the question was not whether the accident was foreseeable, but whether a reasonable person would have foreseen that having this worker working alone at night was dangerous. Referring to the dangerous nature of this workplace, the court stated:
11 - 2 - I am sure that the defendants were well meaning, to a degree, but in an inherently dangerous business such as this there must be a high degree of attention to detail and processes in place that address day-to-day issues, particularly instructing, training and supervision for people handling this very dangerous fuel. People make mistakes and processes assist in mitigating any damage that arises when employees make those mistakes. The company was also found guilty, after the same trial, of charges under the Environmental Protection Act. This case demonstrates that courts will hold employers that operate safety-sensitive businesses to high safety standards, and training and supervision practices will be carefully scrutinized. For more information see: Ontario (Ministry of Labour) v. Sunrise Propane Energy Group Inc., 2013 CarswellOnt 9062 (Ont. C.J.). Adrian Miedema is a partner with Dentons Canada LLP in Toronto. He can be reached at (416) or Adrian's discussion of this case also appears in the Dentons blog To see more Canadian Employment Law Today articles visit
12 22 JULY 19, 2013 THE LAWYERS WEEKLY Business & Careers Historic $150 million pension deal signed DONALEE MOULTON he Canadian Wheat Board and Sun T Life Assurance Company of Canada have signed a $150 million pension agreement that makes history in this country in at least three ways. We believe this is a game changer, said Brent Simmons, senior managing director, defined-benefit solutions with Sun Life Financial in Toronto. The multi-million dollar agreement the largest of its kind in the country is an annuity buy-in that transfers investment and continuing risk from the plan holders to an insurance company, without any impact on pension payments. It increases long-term pension security to members, said Scott Sweatman, a partner with Dentons Canada in Vancouver who was one of the advisors to the wheat board during the deal. Pension security has proven elusive in today s market, he noted. What s scary about [defined-benefit] pension plans in Canada is that solvency liability. The volatility is all over the place. People are looking for stability. The deal, signed in June, provides stability in one unique way: it is tied to inflation. There is uncertainty about what future inflation will do, said Simmons. You need to find assets that will move the same way as inflation. That s tricky, but we were able to come up with a portfolio to absorb the risk, he said. On the surface, it would appear that the deal favours the Canadian Wheat Board, whose plan members are guaranteed to receive their promised pensions, linked to inflation. The risk falls to Sun Life Assurance, a subsidiary of insurer Sun Life Financial Inc., to make sure this happens and to absorb the financial fallout if it doesn t. That is business as usual for the financial firm, said Hugh Kerr, Sun Life Financial s vice-president and associate general counsel. Insurance companies have the experience and the infrastructure to address the issues as they arise. This is our core business. Companies like Sun Life have seen the writing on the wall, said Sweatman. They Are you looking to utilize your accounting and leadership skills to help drive results? If so, is the place for you. Zarek Taylor Grossman Hanrahan is an insurance boutique law rm, located in Downtown Toronto, with a demonstrated pattern of excellence in defending tort, accident bene t, property and general insurance matters. From our 6 lawyer inception in 1997, we have grown to 45 lawyers in We are currently seeking a Controller to manage all accounting and nancial operations for the rm and work closely with the partners on budget and nancial planning matters. 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The most popular option for action is the adoption of a national pension strategy. The remaining respondents are looking to employers and individuals to solve the problem. see that risk transference is very big in Canada. Companies want to get out of pension management, and they can do this by buying [an annuity] product. The scope of the deal the largest single-day purchase of inflation-linked annuities in the country is also a reflection of the strength of Canada s regulatory market. We have a strong reputation in this country to prevent our financial organizations from going under, said Sweatman. Annuity buy-ins like this one have received the green light from the Office of the Superintendent of Financial Institutions, which commented publicly last year on their acceptability as a potential investment option for pension plans. According to the OSFI, we would have no objections in principle to a federally regulated pension plan investing in a buy-in annuity issued by a life insurance company for pensions in pay. That official approval is likely reassuring to companies looking to get out of the business of managing their definedbenefit pension plans in an era of low interest rates, a stock market rollercoaster, and longer-living members. Some companies find their pension plans are so large they are swamping the core business, said Simmons. In response, companies are becoming more open to de-risking deals like the one signed between Sun Life and the Canadian Wheat Board. While this isn t the first such deal in the country, it is the first that has been made public. In its wake, other companies are starting to explore You need to find assets that will move the same way as inflation. That s tricky, but we were able to come up with a portfolio to absorb the risk. Brent Simmons Sun Life Financial similar options for their plans. We are now working on a number of different quotes that are worth more than $1 billion, said Simmons. Interest in annuity buy-ins was sparked last year U.S. companies Verizon Communications Inc. and General Motors Co. signed annuity buy-in agreements with Prudential Financial Inc. to transfer part of their pension fund responsibilities U.S.$7.5 billion and U.S.$29 billion, respectively to the American insurer. That led to interest from Canadian employers, noted Simmons. Now we ve gotten even more interest. We want to hear from you! Send us your verdict: The Children s Aid Society of the Districts of Sudbury and Manitoulin is an organization that values children, and is respectful and sensitive to their needs. 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13 LABOUR NOTES 7 NATURAL DISASTERS IN THE WORKPLACE By Catherine Coulter. Dentons Canada LLP. Whether your business is facing a weather-related closure, a pandemic or some other kind of natural disaster, the likelihood is that the Human Resources department will be expected to navigate any employment-related issues. As a result, good risk management planning includes an understanding of some of the legislation which applies and the issues which arise in the event of natural disasters in the workplace. Legislation Believe it or not, there are at least a dozen pieces of legislation which may have an impact on the response of an Ontario company in the event of a natural disaster. Some of them are outlined below. The Emergency Management and Civil Protection Act (Ontario) defines what a public emergency is and grants powers to the Premier, Cabinet, and Ontario judges to declare emergencies and make orders for the good of the public. Similarly, the Health Protection and Promotion Act (Ontario) gives power to public officials to make orders and direct the public while attempting to control public health emergencies. This includes the imposition of quarantines. Likewise, the federal Quarantine Act permits quarantines to be imposed on people entering Canada where there are reasonable grounds to presume the transmission of a communicable disease. The Employment Standards Act, 2000 (Ontario) introduced the concept several years ago of emergency leave for declared emergencies such as natural disasters (as opposed to the personal emergency leave provisions which apply in the event of illness or another emergency for the employee or an immediate family member). The Emergency Management Act is federal legislation which outlines the powers and responsibilities of the Minister of Public Safety and Emergency Preparedness, and which even allows for the coordination of certain emergency plans with U.S. authorities. The Occupational Health and Safety Act (Ontario) prohibits employers from disciplining or dismissing employees who refuse to attend work in certain circumstances, including those who fear being exposed to a communicable disease. That said, the right to refuse to work does not apply to certain defined individuals such as law enforcement officers, firefighters, hospital workers, ambulance drivers, and laundry and food service workers, as well as employees at correctional institutions, laboratories, and group homes. Likewise, there is a similar right to refuse to work for certain federally regulated employers under the Canada Labour Code. For those employees who are able to refuse to work under the provisions of the OHSA, there is sometimes an ability to claim benefits under the Workplace Safety and Insurance Act, 1997 (Ontario) ( WSIA ). In the event of a public health emergency such as the SARS crisis several years ago, there is the risk that employer insurance premiums under the WSIA may increase significantly. While a bit more of a stretch, it is possible for legislation like the Human Rights Code (Ontario) to come into play for diseases such as SARS and bird flu epidemics, which seem to bear the connotation of having originated in Asia. In addition, discrimination on the basis of disability needs to be kept in mind in the event of an epidemic which leads to the illness of employees. Other Considerations The Ontario Ministry of Labour has issued a Q&A on how to deal with natural disasters in the workplace. The Q&A covers issues such as whether or not employees can be forced to take vacation days in the event of a natural disaster which prohibits them from working, and whether employees must be paid if they are told not to come to work during a disaster.
14 LABOUR NOTES 8 In addition to understanding the legal obligations, some of the following items may be worth considering when developing an employer natural disaster plan: (1) Development of a workplace evacuation plan, including ensuring appropriate on-site safety equipment including but not limited to flashlights, blankets, air masks, emergency communications equipment, a first aid kit, and possibly extra water and food; (2) Development of an emergency communications plan (often a communications pyramid is most effective in these situations). Keep in mind that power outages may necessitate non-electronic communications; (3) Development of an emergency transportation plan; (4) Development of an emergency decision-making committee; (5) Consideration of the use of work from home plans during emergencies. The use of a company intranet or a secure portal can assist with employee communications during this period; (6) Development of a means of communication with customers during emergencies; and (7) Examination of employer insurance policies to determine whether short-term disability coverage takes into account absences due to communicable diseases or quarantine. Closing Although most employers will never face a natural disaster scenario, the risk of potential harm to employees and the business alike necessitates the consideration of an emergency response plan for the workplace. With an understanding of some of the legal requirements imposed on employers, together with the sort of risk management planning which all good workplaces should undertake from time to time, employers can be fully equipped to deal with the unexpected in times of crisis.
15 Register for my CNW Sun Life Financial and Canadian Wheat Board announce $150 million inflation-linked pension deal the first of its kind in Canada Risk reduction for Canadian Wheat Board's defined benefit pension plan TORONTO, June 18, 2013 /CNW/ - Sun Life Assurance Company of Canada, a wholly-owned subsidiary of Sun Life Financial Inc. (TSX/NYSE: SLF), has signed a $150 million annuity policy with Canadian Wheat Board (CWB) that transfers investment and longevity risk from CWB's defined benefit pension plan to Sun Life Financial. The agreement is unique in the Canadian market because it involves pension income that grows with inflation as well as the innovative "annuity buy-in" solution. In addition, Sun Life Financial provided the investment management expertise to transition CWB's existing asset portfolio to purchase the annuity policy. "We're extremely pleased to partner with Canadian Wheat Board to provide an annuity solution that is the first of its kind in Canada," said Brent Simmons, Senior Managing Director, Defined Benefit Solutions, Sun Life Financial. "It is a gamechanging transaction for our industry, and highlights our ability to provide competitive pricing for inflation-linked annuities through superior investment management. Our agreement is designed to provide long-term security to Canadian Wheat Board's pension plan members." "The deal is a 'win-win' for Canadian Wheat Board and its plan members," said Andrea Carlson, Vice-President, Corporate Finance & Strategy, CWB. "Sun Life is now managing all of the market-related risks of our pension plan through an annuity buy-in, providing an indexed solution that others in the market told us couldn't be done. We selected Sun Life because of their expertise in investing and managing risk, their high credit rating and their reputation for innovation." An annuity buy-in is an investment that a pension plan makes to transfer investment and longevity risk to an insurance company, without any impact on plan members' pensions. It increases benefit security by allowing the pension plan to better match its assets and with the pension promises it has made. This $150 million transaction is the largest single day purchase of inflation-linked annuities in Canada, and the largest single day purchase of a next generation annuity buy-in in Canada. CWB was advised by Steve Windsor of Aon Hewitt, as well as Scott Sweatman and Mary Picard of Dentons Canada LLP. "Aon Hewitt guided Canadian Wheat Board through the many complex decisions required for securing pension plan obligations, and the annuity buy-in was the best solution for Canadian Wheat Board," said Steve Windsor, Associate Partner, Aon Hewitt. About Defined Benefit Solutions Sun Life Financial launched Defined Benefit Solutions in late 2008 to help Canadian companies more effectively manage risks in their defined benefit (DB) plans. Sun Life Financial provides a full suite of de-risking products and services, including annuity buyouts, annuity buy-ins, customized liability-driven investment portfolios and longevity insurance. These solutions allow plan sponsors to mitigate DB risk or transfer a portion of the DB risk from their balance sheet to Sun Life Financial and take advantage of Sun Life Financial's investment, asset-liability management and longevity expertise. Defined Benefit Solutions sold the largest Canadian annuity buy-out of $400 million in About Canadian Wheat Board Canadian Wheat Board is one of the most experienced wheat and barley marketers in the world. The Winnipeg-based organization has sold grain to over 70 countries, based on a reputation for high-quality product, reliable service and trusted international relationships. CWB offers a range of marketing programs to Canadian farmers, including its popular pool contracts, providing solid returns and significant risk-management benefits. About Sun Life Financial Sun Life Financial is a leading international financial services organization providing a diverse range of protection and wealth accumulation products and services to individuals and corporate customers. Sun Life Financial and its partners have operations in key markets worldwide, including Canada, the United States, the United Kingdom, Ireland, Hong Kong, the