Thursday 26 February 2015

Court of Appeal Determines PHIPA Does Not Preclude Action for Privacy Breach

The Personal Health Information Protection Act ("PHIPA") creates a myriad of obligations for "personal health information custodians", as defined by the Act.  In a decision, that will be of particular interest to employers in the healthcare sector, the Ontario Court of Appeal has ruled that the legislative scheme does not close the door on a potential action for breach of privacy involving the personal health information ("PHI") of patients or clients.

After approximately 280 patient records were improperly accessed by an employee of the Peterborough Regional Health Centre (the "Hospital"), and the patients advised of the privacy breach, three (3) representative plaintiffs commenced a class action lawsuit (Hopkins v. Kay) against the Hospital, claiming "intrusion upon seclusion" (the privacy tort first recognized by the Ontario courts in Jones v. Tsige ("Jones")).  According to the Statement of Claim, a Registered Practical Nurse (who was later terminated as a result of her actions) and other Hospital employees accessed patient records without authorization.  The Claim alleged that the Hospital had not taken proper measures to implement policies and monitor staff to prevent unauthorized access to PHI.  Although the Claim had originally relied on provisions of PHIPA as a basis for relief, it was later amended to rely solely on the common law tort of intrusion upon seclusion. The Hospital brought a motion to dismiss the action, claiming that the plaintiffs' rights were entirely governed by PHIPA, which created an exhaustive code in relation to PHI, and that there was no access to a common law remedy for the privacy breach.  The motion was dismissed and the Hospital appealed.

On appeal, the Hospital argued that PHIPA created a comprehensive scheme, including complaint and enforcement mechanisms, that was intended to be the sole means to remedy violations of privacy related to PHI.  The Hospital argued that the Act set up adequate methods of redress, and it was clearly the intention of the Legislature that PHIPA was to occupy this field of the law, to the exclusion of the common law of tort.  The Court reviewed the history of the statute, and provided an overview of its mechanisms.  The Court observed that the Commissioner (who oversees the Act) has broad investigative and procedural powers, but that there was no "adversarial" dispute resolution contemplated and that orders of the Commissioner only became enforceable upon being filed with the Superior Court.  Moreover, upon a finding of a violation by the Commissioner, a complainant was expressly entitled to pursue a claim for damages in the courts, including a claim for mental anguish (s. 65 of the Act).  The Act also provides immunity for "good faith" acts or omissions that violate the legislation, but provides for fines for willful violations.

The Court found that there was nothing express or implied in PHIPA that would suggest the Legislature intended PHIPA to exclusively occupy the field of PHI protection.  While PHIPA provides an expansive and detailed regime for the collection, use and disclosure of personal information, it does not provide a dispute resolution mechanism that allows complainants to present and challenge evidence, instead focusing on the Commissioner's investigative authority.  The legislation expressly contemplates the possibility that a complaint might be more properly addressed through some other procedure, and permits individuals to pursue claims for damages in the courts.  While there was some overlap between proving a violation of the Act and making out the Jones tort, the two proceedings are sufficiently different that there was no reason to conclude that allowing an action to proceed would undermine the enforcement provisions of the Act.  Finally, the Court found that the Commissioner has broad discretion on whether to investigate a particular complaint, but that the Commissioner focuses on systemic issues.  While the remedies available to a complainant may be similar, there was significantly less chance of achieving redress through the PHIPA procedure since individual complaints rarely resulted in an order by the Commissioner.  The authorities advanced by the Hospital were also distinguished.  In the result, the appeal was dismissed and the matter was permitted to proceed in the courts.

It remains to be seen whether the class proceeding will be certified by the Superior Court, but given the decision in Evans v. The Bank of Nova Scotia (discussed here), it is likely that the representative plaintiff can get past this hurdle.  So, what does it mean for employers who are responsible for collecting, using and disclosing PHI?  Well, in addition to the risk of being publicly shamed through the PHIPA enforcement procedure, personal health information custodians also bear the risk of being held vicariously liable for breaches of privacy by their employees.  Employers who possess PHI (whether covered by PHIPA as "personal health information custodians" or not) will want to ensure that they have robust policies, clearly communicate expectations to employees, provide adequate training on privacy protection, and implement effective safeguards to prevent unauthorized access and disclosure of such information.  Failing to take these steps could result in significant liability.

Do you have questions about the protection of personal information?  Concerned about a potential "intrusion upon seclusion" claim?  Contact Lance Ceaser for cost-effective and expert help.

Wednesday 25 February 2015

Trying to Stop Shoplifter While on a Break Not "In the Course of Employment": WSIAT

In a recent decision, the Workplace Safety and Insurance Appeals Tribunal ("WSIAT" or the "Tribunal") has ruled that an employee of a supermarket can sue her employer and a third-party for injuries she incurred when she was run over in the parking lot by a suspected shoplifter.  The employee was on a break at the time that she became involved in trying to apprehend the shoplifter. In its decision, WSIAT determined that neither the employee nor the personal defendant (the grocery manager) were "in the course of employment" when the employee was injured, and that she was not therefore precluded from pursuing a civil claim.

In Guizzo v. Metro Ontario Inc., the Tribunal initially focused on whether it could be said that the grocery manager (Mr. Hughes, a defendant in the action by cross-claim) was in the course of employment, taking into consideration the factors of time, place and activity. At the point when Mr. Hughes pursued the suspected shoplifter, he had completed his shift.  The pursuit led to a shared parking lot that was not part of the employer's premises, and the employer had a violence prevention policy that prohibited employees from trying to apprehend thieves. Pursuing shoplifters was not part of the defendant's job, in any event.

Likewise, the Tribunal found that Ms. Guizzo was on a break, and the employer had an expectation that she would be available to be called back to work if needed.  She had varied from her usual routine of spending her breaks near the exit door of the store.  The employer did not expect the employee (a cashier) to attempt to stop a suspected shoplifter, and such activity was expressly prohibited by the violence prevention policy.  Ms. Guizzo's injuries were incurred in the parking lot, which was not part of the employer's premises.

Under the WSIB's policies (OPM Document No. 15-02-02, "Accident in the Course of Employment"), an accident is deemed to be work-related where "the worker was engaged in the performance of a work-related duty or in an activity reasonably incidental to (related to) the employment" (emphasis added).  However, OPM Document No. 15-03-04 specifies that "[w]orkers are not in the course of employment in public parking areas not under the employer’s control".  Moreover, where an employee is doing something that is outside their duties, or that he or she was not reasonably expected to do, this will generally take an employee outside the course of employment (OPM Document No. 15-03-08).  In addition to Board policy, the Tribunal also considered a list of factors that had been determined to be relevant in previous decisions:
1. Whether the employer derived a benefit from the activity performed by the worker.
2. Whether the worker was paid by the employer for the activity.
3. Whether the accident occurred while the worker was using equipment or materials supplied by the employer.
4. Whether the risk to which the employee was exposed was the same as the risk to which he would normally be exposed in the course of his employment.
5. Whether the activity was a result of instructions received by the employer.
6. Whether the accident occurred during the worker's normal working hours or overtime hours.
7. Whether the activity was reasonably incidental to the worker's normal employment duties.
In reviewing these factors, the Tribunal concluded that neither employee was doing something from which the employer derived a benefit, and that the time and place of the accident suggested that neither was performing their duties or an activity "reasonably incidental" to those duties when the accident occurred.

Despite the obvious connection with the workplace, the Tribunal concluded that neither Ms. Guizzo nor Mr. Hughes were "in the course of employment" when Ms. Guizzo was injured.  Because of this finding, the WSIAT concluded that section 28 of the Workplace Safety and Insurance Act did not remove Ms. Guizzo's right to sue for her injuries.

For employers, the moral of the story is that despite WSIB coverage, there will still be instances in which an employee's injuries may not be covered by the statutory regime.  Where employees are engaged in activities that take them outside the normal course of their duties (even where the employer has a policy prohibiting such behaviour), an employee may still retain a right to bring a civil action naming the employer.  It must be remembered, however, that this decision does not determine fault with respect to the employee's injuries.  It remains open to the defendants to argue contributory negligence on the part of the plaintiff, relying on the employer's violence prevention policy.

Do you have questions about what it means to be "in the course of employment"?  Need guidance on a WSIB claim or civil action by an employee?  Contact Lance Ceaser for expert advice.





 

 

Monday 23 February 2015

Drug & Alcohol Testing - The State of the Law

Over the last couple of years, the law on workplace drug and alcohol testing has become significantly clearer - to the point where it's arguable that there is little ambiguity left.  It is widely accepted that alcohol and drug dependency are 'disabilities' protected by human rights legislation, and that drug testing tends to impose differential treatment on those who suffer from these conditions or presupposes that those who test positive are "addicts" and more likely to be impaired in the workplace.  In the absence of evidence to establish that testing (to ensure freedom of impairment) is a bona fide occupational requirement (i.e., rationally connected to preventing impairment, adopted in good faith, reasonably necessary to achieve that end, and that no other reasonable accommodation of disabled employees is possible, without incurring undue hardship), alcohol and drug testing will be found to be discriminatory.

So what are employers allowed to do in the name of workplace health and safety?  What is out of bounds?  Here's an overview of how the law has evolved, and where employers and employees stand following the most recent pronouncements of the courts and arbitrators.

Entrop v. Imperial Oil

The debate about the competing interests of employers (maintaining a safe workplace) and employees (protecting privacy and dignity) really got started with the decision of the Ontario Court of Appeal in Entrop v. Imperial Oil ("Entrop").  In that case, the employee had disclosed a past substance abuse problem, in line with the employer's alcohol and drug policy, and was transferred out of a safety-sensitive position as a result.  In order to be reinstated to his former job, the employee was required to complete a company-approved two-year rehabilitation program followed by five years of abstinence and to sign an undertaking to abide by specified post-reinstatement controls (such as unannounced testing).  The policy also provided for random testing for all employees in safety-sensitive roles, providing for termination for a failed test.  The employee complained to the Ontario Human Rights Commission, and his complaint was upheld by a Board of Inquiry.

On appeal from the judicial review decision, the Court of Appeal found that alcohol and drug dependency were forms of "disability" protected by the Human Rights Code.  The Court went on to find that testing was rationally connected to the legitimate goal of preventing potentially "catastrophic" incidents at an oil refinery, which is an inherently safety-sensitive workplace.  However, drug testing (at the time) did not establish "present impairment", and therefore could not establish that an employee's condition, following a positive test, posed an actual danger.  While alcohol testing could establish impairment, it could not be justified unless the sanction imposed by the employer was tailored to the individual's circumstances and was supportive of accommodating his or her disability.  The Court of Appeal agreed with the Board of Inquiry that the provisions on disclosure, reassignment and reinstatement also violated the Human Rights Code, in that the employer did not establish that these rules were reasonably necessary to ensure that employees were not impaired in the workplace. The mandatory disclosure of a past substance abuse problem, no matter how long ago, was unreasonable, particularly once an employee was no more at risk of relapse than a member of the general population. Requiring that an employee be reassigned out of a safety-sensitive position once they had disclosed a past substance abuse problem was also not reasonable because it failed to offer any accommodation to the employee who had disclosed a disability.  The obligations that the policy imposed post-reinstatement were overly broad and unnecessarily rigorous.  The Court, however, found that reasonable cause and post-incident testing were defensible, provided they were part of a broader assessment of impairment by alcohol and drugs in the workplace.

Since the Entrop decision, there has been a vast amount of litigation on the subject of whether an employer can legitimately test employees for impairment by alcohol or drugs.  Here's a summary of where the law currently stands in Ontario:

Random Testing

Following the decision of the Supreme Court of Canada in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. ("Irving"), it is now accepted that a unionized employer cannot justify the random testing of employees in safety-sensitive positions, unless the employer can establish that there is an actual workplace problem with drug and alcohol impairment which threatens health and safety. On the facts, the employer could only point to eight (8) safety incidents over a 15-year period that were caused or attributable to drug or alcohol impairment, so the employer was unable to establish that the balance of interests favoured intruding upon employee's autonomy by imposing random, unannounced testing.
 
However, in the non-union setting, employers may have slightly more leeway.  In Irving, the SCC expressly distinguished the Entrop decision, as non-union employers are not subject to the same managerial fetters as they are under a collective agreement.  It remains to be seen whether the analysis in Irving will ultimately influence human rights decision-makers when addressing complaints from employees who do not have union representation.

Pre-Access Testing

In a recent decision, the Ontario Superior Court of Justice upheld the decision of Arbitrator George Surdykowski in Mechanical ContractorsAssn. Sarnia v. United Assn. of Journeymen and Apprentices of the Plumbing & Pipefitting Industry, in which the Arbitrator determined that pre-access testing was more akin to random testing, and therefore unreasonable unless it can be established that:   
... such testing will probably have a meaningful ameliorating effect on an actual substance abuse problem at that work site, and so long as such pre-access testing is part of a broader alcohol and drug policy which includes an individualized approach to dealing with employee alcohol and drug issues which is consistent with the Ontario Human Rights Code. 
In short, unless the employer can establish both an actual workplace problem with alcohol or drugs and the availability of accommodation for employees who test positive, pre-access testing will not be reasonable in unionized workplaces.  Whether pre-access testing is permissible in non-union settings (following Entrop) remains to be conclusively determined.

For Cause, Post-Incident and Testing Following Return from Treatment

Following Entrop, there has been little argument about an employer's right to perform drug and alcohol testing where there is reasonable cause to suspect impairment (e.g., where an employee is behaving in a manner that raises a suspicion of substance abuse), or following an incident or near-miss in the workplace.  In order to qualify, the employee must be in a safety-sensitive position, and there must be objective reasons to consider drug or alcohol impairment as a potential cause or contributor to the employee's behaviour or performance.  Likewise, when an employee in a safety-sensitive job has disclosed an addiction and has sought treatment, an employer has a right to require testing for a reasonable period of time following the employee's return to work to monitor compliance with the employee's rehabilitation program.  Of course, the response to a positive test in any of these circumstances must be tailored to the employee's personal circumstances and provide the potential for accommodation of a disability, but it is otherwise permissible.

The East-West Divide

Ontario employer may have heard of more lenient decisions emanating from the courts of Alberta (most notably the 2007 decision of the Alberta Court of Appeal in Alberta (Human Rights and Citizenship Commission) v. Kellogg Brown & Root (Canada) Company, leave to appeal to the Supreme Court of Canada denied).  However, don't be confused.  As recognized by Arbitrator Surdykowski in the Mechanical Contractors' Association Sarnia decision (above), there is truly a divide in the approach as between Alberta and all points east.  In Ontario, the reasons of the Alberta courts have not found favour, and the approach continues to be much more restrictive.  Unless an employer can point to safety-sensitive positions (or a workplace that is inherently dangerous) and evidence of a workplace 'problem' related to alcohol or drug impairment (i.e., erratic behaviour, an accident or near miss, an employee returning from drug or alcohol rehabilitation, or a proven substance abuse problem in the workplace generally), testing under a policy will be a tough sell.  Most adjudicators in Ontario will find in these situations that an employee's interest in personal dignity, autonomy and privacy will trump the employer's concerns for workplace health and safety, no matter how sincerely held those beliefs may be.

Do you have questions about how to formulate or apply a drug and alcohol policy in your workplace?  Need advice on what to do in the event of a positive drug or alcohol test?  Contact Lance Ceaser for expert guidance.




 

Thursday 19 February 2015

Employee Unable to Establish Entitlement Based on Purported 5-Year Contract

Where an employee is retained for a fixed-term and is dismissed prior to the expiry of the contract, the employer may be liable for any compensation and benefits that the employee would have been entitled to for the remaining term (subject to a provision setting describing the parties' rights and obligations in the event of an early termination).  However, what happens when there is disagreement between the parties about the existence of a fixed-term contract?  The Ontario Superior Court of Justice recently wrestled with this very issue.

In Tossonian v. Cynphany Diamonds Inc., the plaintiff alleged that the employer had 'guaranteed' him employment for 5 years as part of their contractual arrangement.  The plaintiff was working for a jewellery store in British Columbia, but was interested in a position in the Toronto area.  He had discussions with the owner of Cynphany Diamonds (which operated as Symphony Diamonds) about a position managing two of the company's stores.  The parties had two conversations on the terms and conditions under which the plaintiff would be employed.  Following the second conversation, the plaintiff wrote to his potential employer, setting out what he expected in his contract.  His email message included reference to a fixed, 5-year term, as well as compensation, bonus and moving expenses in line with their earlier conversation.  When the owner of Symphony Diamonds replied to the plaintiff a few days later, his email made no reference to a 'guarantee' or a fixed-term.  The plaintiff did not object, although he alleged that the parties had a subsequent conversation during which he claimed that the employer told him that it was "not a problem.  I will guarantee you."

The plaintiff commenced working for the defendant company, and a couple of months later the contract was reduced to writing.  The initial "Employment Contract" set out the terms of employment, but did not make mention of a fixed term.  Subsequently, the employer did sign two letters that the plaintiff provided, which included a 5-year term, but the owner explained that both of these documents were provided solely to assist the plaintiff in obtaining a mortgage for a property in the Toronto area.  There was also evidence that the employer confirmed this information on a call with a representative of the bank that offered the plaintiff a mortgage.

Only a few months later, there was a dispute between the parties surrounding the plaintiff's decision to take employment with a competitor.  While the employer alleged that the plaintiff had resigned his employment with Symphony, the plaintiff claimed that he was dismissed when the employer learned that he had been negotiating with the competitor, and suspected that the plaintiff was also encouraging other employees to leave the employer. 

The Court concluded that the owner had, in fact, terminated the employment of the plaintiff, after only 8 months, so the primary issue was whether or not the plaintiff was working on a 5-year contract, or had been hired indefinitely (and was entitled to "reasonable notice" at common law).  The Court considered the case law that analyzed when a contract was formed.  In the Court's opinion, the plaintiff's contract of employment came into existence when the owner emailed the plaintiff with the terms of their agreement, excluding the fixed term.  The plaintiff had failed to ensure that the 5-year 'guarantee' was incorporated into that agreement, and the evidence did not establish that Symphony had subsequently to make such a promise.  The parties' agreement was evidenced in the formal "Employment Contract" that they signed after the commencement of employment.  The Court also accepted the employer's evidence that the other documentation that was signed by the parties was solely for the purpose of helping the plaintiff to obtain a mortgage, and did not amend their agreement.  Given that the plaintiff had not established the parties' mutual intention that he would be employed for a 5-year term, the plaintiff's entitlement was to be determined in accordance with the common law factors applicable to "reasonable notice". In light of his short service, the fact that he relocated to take the job, and the availability of other similar work, the Court concluded that he was entitled to pay in lieu of two (2) months' notice (not the outstanding 52 months remaining on the purported contract claimed by the plaintiff).

The decision in Tossonian highlights the importance of clear communication and documentation.  The parties' agreement on the fundamental terms and conditions of employment should be reduced to writing, and signed by both parties prior to the commencement of employment.  If a party feels that the written agreement omits some important detail, their objection should also be put in writing and addressed in the contract (assuming they agree on its inclusion).  Where the contract consists of an exchange of correspondence or email, the parties would still be wise to create a formal document to memorialize their agreement prior to the employee starting work.  Doing so avoids confusion or misunderstandings that may arise later (when memories are not as clear and valuable evidence of negotiations may be gone).

Do you have questions about how to structure an employment agreement?  Need guidance on whether a fixed-term or indefinite contract is right for you?  Contact Lance Ceaser for expert assistance with your labour and employment law issues.

Wednesday 18 February 2015

Corporate Directors Jailed After Worker Falls to His Death

Any employer who has not yet received the memo, should pay close attention to some recent decisions of the Ontario courts. In cases where employees are seriously injured or killed following a workplace accident, the courts are increasingly willing to impose jail sentences in addition to substantial fines.

In R. v. New Mex Canada Inc., a decision of the Provincial Offences Court (summarized here), the employee was using an "order-picker" (a combination forklift/operator-up platform) which had been modified by tack-welding an additional platform onto the forks of the device.  There was no guarding surrounding the added platform, and the employee was not wearing fall-arrest protection.  The employee fell from the machine and died of blunt-force trauma to the head.  The Ministry of Labour found a number of violations of the Occupational Health and Safety Act (the "OHSA"), including the lack of fall-arrest equipment and the failure to provide health and safety training to employees.

The Ministry prosecuted the company and two of its directors.  The corporation pleaded guilty, and Justice of the Peace C. Jill Fletcher imposed a fine of $250,000 (plus the 25% victim surcharge) for failing to provide information and instruction to a worker about fall-arrest protection when the worker is working at heights.  The two directors also pleaded guilty, and were each given 25 days in jail (to be served on weekends) for failing to ensure that the corporation complied with its OHSA obligations.  In addition, they were ordered to take a health and safety training course within the next 60 days.

Sadly, this is not the first time that the Provincial Court has attempted to send this message.  It's troubling that an employer today would still not be providing the rudiments of workplace health and safety.  Still, the decision stands as one of many reminders to employers (and their corporate directors, supervisors, etc.) about the risks inherent in failing to take health and safety obligations seriously.  To avoid this outcome, employers must:
  • Ensure that they have a health & safety policy, and procedures that explain to employees how to perform their duties safely.  Review policies on a regular basis to ensure they remain relevant and up-to-date;
  • Ensure that corporate directors are familiar with the employer obligations under the OHSA and Regulations;
  • Ensure that employees receive health and safety training (including, but not limited to, the "basic awareness training" mandated by Regulation 297/13), and provide regular refreshers;
  • Be particularly diligent in training and supervising young workers and employees who are new to the workplace, as they are most vulnerable to hazards;
  • Ensure that supervisors are "competent", by providing enhanced training designed to identify and alleviate workplace hazards.  Also make sure that supervisors are aware of and consistently enforcing workplace rules and policies regarding health and safety; 
  • Conduct regular inspections of the workplace to identify any hazards, and be aware of any attempts by employees to circumvent safety measures.
Employers who make health and safety a 'front-of-mind' consideration are much less likely to end up on the wrong side of the Ministry of Labour or the courts.  And their directors probably won't end up in jail.

Do you have questions about your responsibilities under the OHSA and Regulations?  Need guidance in responding to a critical incident?  Contact Lance Ceaser for expert advice.

Monday 9 February 2015

Federal Court of Appeal Upholds Decision That There is No Independent Procedural Duty to Accommodate

In a brief decision that will hopefully clarify the law, the Federal Court of Appeal has found that there is no independent procedural duty to accommodate an employee, despite previous findings to that effect.  In the Court's opinion, once an employer establishes that it cannot accommodate an employee without incurring undue hardship, it is unreasonable for an adjudicator to award remedies to a claimant on the basis that the accommodation process was flawed or inadequate.
 
In Canada (Human Rights Commission) v. Canada (Attorney General), the Court was considering an appeal from the Canadian Human Rights Commission (the "CHRC") of a decision by the Federal Court, which had overturned the Commission's decision in the case of Bronwyn Cruden.  Ms. Cruden had been seeking overseas experience, so that she could qualify for the position of Development Officer with the Canadian International Development Agency ("CIDA"), and was successful in obtaining two temporary assignments to Afghanistan.  Ms. Cruden has Type 1 Diabetes, but CIDA did not initially require medical clearance for assignments to Afghanistan. There were no issues during Ms. Cruden's first stint in Afghanistan, but during her second assignment she experienced a hypoglycemic episode and was sent back to Canada.  Shortly thereafter, Health Canada introduced its Afghanistan Guidelines, which required medical assessments prior to posting to Afghanistan, and which precluded anyone with a chronic medical condition from serving in Afghanistan.  Although Ms. Cruden was a satisfactory employee, she was not offered any further assignments in Afghanistan because of her medical condition.
 
Ms. Cruden filed a complaint against CIDA and Health Canada, alleging discrimination on the basis of disability.  In its decision, the Canadian Human Rights Tribunal found that neither Health Canada nor CIDA had complied with their procedural duty to accommodate the complainant, as they had not explored accommodative options short of a complete prohibition.  However, the Tribunal also found that in the circumstances, there was nothing that CIDA could have done to accommodate Ms. Cruden in an assignment to Afghanistan without incurring undue hardship.  Despite this finding, the Tribunal awarded Ms. Cruden certain remedies for the violation of the procedural duty to accommodate.
 
On judicial review, the CHRC did not challenge the finding that CIDA could not accommodate the complainant without undue hardship, but supported the Tribunal's decision on the existence of an independent procedural duty.  The Federal Court found that the Canadian Human Rights Act (the "CHRA"), interpreted correctly, did not provide for a separate procedural duty to accommodate.  Once a respondent employer established that a workplace rule was a bona fide occupational requirement, on the basis of the test in British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union ("Meiorin"), [1999] 3 S.C.R. 3, it was unreasonable for an adjudicator to find a procedural breach and provide any kind of remedy.  The essence of the analysis to be conducted is to determine whether substantive accommodation was or was not possible without undue hardship.  The wording of the CHRA did not provide for a separate analysis of the process by which accommodation was sought. In the result, the Federal Court held that the Tribunal's decision could not stand.
 
On appeal, the Federal Court of Appeal upheld the decision of the Federal Court below. At paragraph 21, Justice Webb (writing for a unanimous Court) wrote:
I agree with the Federal Court Judge that the Supreme Court of Canada [in Meiorin] was not intending to create a separate procedural right to accommodate. There is simply one question for the purposes of the third step of the test: has the employer “demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer”? Once the employer has established this, then it has satisfied the requirements of the third step. Assuming that the first two steps are also satisfied (which they were in this case), it is a bona fide occupational requirement and it is not a discriminatory practice.

The Court acknowledged that a separate procedural duty to accommodate had been recognized in other decisions of lower courts, such as that of the Ontario Divisional Court in ADGA Group Consultants Inc. v. Lane, but held that the court in that case "did not examine the statutory basis for this procedural duty but rather it appears to have assumed its existence as it commenced its analysis of the procedural duty to accommodate" (para. 23).  Given that this decision, and those of other human rights tribunals, upholding the existence of a procedural duty were not grounded in an interpretation of the underlying legislation, they did not constitute authority for the proposition that there was such a free-standing duty.  Given that there was no dispute that CIDA could not accommodate Ms. Cruden in a posting to Afghanistan without undue hardship, the Tribunal should have dismissed the complaint against both CIDA and Health Canada, and no remedies were available to the complainant.
 
This decision, if it is followed and applied under other provincial human rights legislation (such as the Ontario Human Rights Code), should bring much needed clarity to an area of law that has grown muddied over the years.  While employers still must ensure that they take all reasonable steps to assess the availability of accommodation for employees, flaws in that process should not become more important than the question of whether accommodation is possible without undue hardship, no matter how flawed the search for accommodation may be.  Unless it can be established that the employer has discriminated (by imposing workplace rules that cannot be justified under the test in Meiorin), the procedural aspects of the duty to accommodate cannot give rise to a remedy.  It remains to be seen whether this decision will be appealed further and whether the Supreme Court of Canada will weigh in.
 
Do you have questions about the accommodation process?  Need guidance on the forms of accommodation that an employer may be required to provide?  Contact Lance Ceaser for expert legal advice.
 


 
 
 

Wednesday 4 February 2015

Claiming Privilege Over Workplace Investigation Records

Often employers will retain the services of an independent investigator (typically a lawyer) to investigate issues in the workplace, either expecting or assuming that the investigator's work product (such as notes and the written report) will be privileged and not subject to disclosure and production obligations.  However, if the work of the investigator is to be protected from later disclosure in the course of litigation, the employer must carefully consider the law of privilege prior to retaining a third-party investigator.  The recent decision of Master Short of the Ontario Superior Court of Justice in Howard v. London (City) illustrates the challenges.

Background

In 2012, a resident of the Dearness Home (a nursing home operated by the City of London) packed up his belongings and left the facility, unbeknownst to staff.  The resident had recently been moved from a secure part of the facility to an area that did not have the same access controls.  The resident managed to wander some distance up a very heavily travelled road before he stepped into traffic, was struck, and subsequently died from his injuries.  The death of the resident was widely reported in local media, which raised questions about how such a tragedy could have occurred.  The administrator of the Home was away on vacation at the time, but commenced an investigation immediately upon her return.  However, after only a few days, she was instructed to cease her inquiries, as the City had decided (on advice from external counsel) to conduct an independent investigation, using the services of a local lawyer.  At the same time, the Ministry of Health and Long-Term Care was also conducting its own investigation. Ultimately, the investigator was retained by the Interim City Manager to conduct an investigation into the City's policies, procedures and actions, oversight by the City Council, the City's procedures for investigating critical incidents, and whether City employees and representatives had complied with applicable standards, and to provide legal advice on same.

Before and during the investigation, there was evidence of several "Strictly Privileged and Confidential" email messages among a number of City staff, including the administrator of the Home, regarding the scope of the investigation.  The administrator was interviewed twice and provided some documentation requested by the investigator.  She was repeatedly reassured that she need not be concerned about the outcome of the investigation for her employment, and was specifically told that she could not have her lawyer present during the interviews.  At the end of the investigation, the administrator was advised that she could resign, failing which her employment would be terminated for cause.  She did not receive a copy of any interview notes or the investigator's report, and was given no opportunity to respond to its findings before she was terminated.  She commenced a wrongful dismissal claim and sought production of the investigator's file, including any notes and the report.  The City resisted the motion, claiming solicitor-client privilege and litigation privilege.

The Production Motion

In his decision, Master Short reviewed the evidence that was presented, including a number of the email messages among senior City staff that debated whether the investigation was for human resources purposes or to establish due diligence vis-a-vis resident care (in anticipation that the resident's family would likely bring an action against the City). In one email, the City Solicitor suggested that he would be prepared to seek Council's approval to retain "independent legal counsel... to provide advice and an independent privileged legal opinion" concerning the issues that were ultimately referred to the investigator.  The Master observed that this email was focused on obtaining advice in relation to potential civil liability regarding the death of the resident and made no mention of legal advice on potentially terminating an employee. It was also clear from the email that the City was retaining the lawyer to conduct a fact-finding investigation, not seeking a legal opinion (as suggested by the City Solicitor). Despite the reassurances allegedly given to the administrator, it was also clear that the investigation did have a HR focus, and was intended to determine outcomes for staff who may have had involvement in the incident.

The Master also considered the fact that the City had relied on the investigation in determining that the administrator should be terminated, and had disclosed this reliance to the media on more than one occasion.  The London Free Press reported extensively on the story, and quoted the Mayor tying the termination of the administrator to the report prepared by the investigator.

Under the Rules of Civil Procedure, all relevant documents are to be disclosed to the opposing party, "whether or not privilege is claimed in respect of the document".  Where a party claims privilege over a document, it must set out the basis for its privilege claim, and bears the onus of establishing that privilege applies.  The City claimed both that the investigation documents were covered by solicitor-client privilege, as the investigator was a lawyer whose retainer included the provision of legal advice, and litigation privilege, which applies to documents created by a party when litigation is occurring or is contemplated.  Master Short conducted an extensive review of the law applicable to both types of privilege and made several very helpful findings:
  • Although solicitor-client privilege is designed to ensure justice and fairness, by allowing the free exchange of information necessary to a lawyer's representation of a client, it has its limits. For example, the exchange of communication between a client and a lawyer who has been retained only to address a specific legal matter will not be protected if the communication is unrelated to the retainer. Likewise, if the lawyer has been retained in some other capacity unrelated to providing legal advice or exercising the skills of a lawyer (i.e., acting as a fact-finder where legal skills are not required), no privilege will attach.
  • In those cases where privileged applied to the findings of a lawyer-acting-as-an-investigator, the retainer was clear that the lawyer was to provide legal advice on the specific subject matter of the investigation or was using the specific skills of a lawyer (such as where a lawyer was investigating whether a member of the judiciary had acted inappropriately during a trial).
  • When considering whether solicitor-client privilege attaches to records, the understanding of the parties is a factor.  Where the lawyer is presented solely as a fact-finder, and explains that his/her assignment is limited to certain factual matters, it is unlikely that privilege will attach or that it will be limited to those legal issues within the investigator's mandate.
  • Unless the retainer specifies that the lawyer-investigator is to provide "legal advice" (rather than just "advice"), a court is less likely to find that solicitor-client privilege applies.
  • One party to a privileged communication cannot assert privilege against someone else who also received the advice from the same lawyer, on the basis that the parties have "joint interests".
  • In order for litigation privilege to apply, it must be contemplated that a specific claim will be made by or against a particular party.  Where communications involve an incident that may give rise to one particular type of claim (e.g., liability due to negligence), they will not be privileged in relation to a different type of claim (e.g., wrongful dismissal of the person who is found to be negligent).
In the result, Master Short concluded that the investigation file was not privileged, and ordered the City to produce it to the plaintiff (with any personal information of third parties redacted in accordance with the Municipal Freedom of Information and Protection of Privacy Act).  The investigator had been retained not as a lawyer (i.e., to provide legal advice or representation), but to find certain facts.  While the investigation may have been conducted in the contemplation of litigation by the family of the deceased resident, it was not related to a potential wrongful dismissal claim by the plaintiff.  Moreover, the City could not assert privilege against the administrator when she had been part of the communication with respect to the conduct of the investigation.

What Does It Mean?

For employers, this case provides some important guidance:
  • Determine whether the employer wishes to maintain privilege over the investigation file.  If it is unlikely to be crucial, it may be advisable to retain a non-lawyer or hire a lawyer to act solely as a fact-finder to contain the costs of the investigation.  It is advisable to obtain legal advice before deciding whether privilege ought to be claimed.
  • If a claim of solicitor-client privilege will be made, ensure that the retainer letter is clear that the lawyer-investigator is to make findings of fact and to provide legal advice or opinion on the basis of those findings.  Also ensure that the scope of the retainer is broad enough to cover the personal conduct or blameworthiness of individual employees, and that the advice sought includes labour and employment law advice and recommendations.
  • If it's likely that some form of labour or employment litigation may arise from the matter under investigation, such as a civil action, grievance or human rights complaint, then there may be a basis for litigation privilege.  In that case, the investigator need not be retained to provide legal advice.  However, if the investigator will be only a fact-finder in this scenario, he/she should be retained by counsel for the employer (whether external or in-house), rather than by some other representative of the employer, and it should be clear that the investigator's findings are necessary for counsel to advise and represent the "client" (i.e., the employer) in relation to all potential forms of litigation.
  • Communication with an investigator or in regards to the investigation must be handled delicately.  It is preferable for communication with the investigator to be with only one or two representatives of the employer, or with counsel for the employer (if possible).  Anyone who may fall within the scope of the investigation should not be included on any 'privileged' communication.  Erect a 'cone of silence' and carefully maintain it, or privilege may be "waived".
Unfortunately, the law of legal privilege is a very complicated area.  While the foregoing recommendations may prove helpful, they cannot be construed as legal advice, in the absence of a very fact-specific analysis of a particular situation.  If you are uncertain about how to undertake an investigation or whether you can assert privilege over the findings of an investigator, obtain legal advice.  Feel free to contact Lance Ceaser for guidance or to ask about investigation services.

Tuesday 3 February 2015

Supreme Court of Canada "Constitutionalizes" the Right to Strike

In a decision that will have deep reverberations throughout the broader public sector across Canada, the Supreme Court has ruled that section 2(d) of the Canadian Charter of Rights and Freedoms protects the right to strike for all workers in Canada, including those public sector employees who are currently covered by labour legislation that limits or eliminates the right to strike.

In Saskatchewan Federation of Labour v. Saskatchewan, the Supreme Court held (in a 5-2 decision) that the right to strike is a merely an extension of the right to engage in meaningful collective negotiation of working conditions, which was previously found to be protected as part of Canadians' "freedom of association", guaranteed by section 2(d) of the Charter.  The majority of the Court found that removing the right to strike curtails this freedom in a manner that is not justified under section 1 of the Charter.  In particular, the Court found that rights under section 2(d) were not "minimally impaired" as the legislation introduced by the Government of Saskatchewan in 2007 gave the employer (the Province) the unilateral discretion to identify the number and identity of workers who would be providing "essential" public services, required those workers to perform all of their regular duties (not just provide services that were deemed to be essential), and offered no alternative mechanism for the resolution of collective bargaining impasses.  In short, the legislation eliminated the right of certain workers to strike (without any negotiation on which services or workers were "essential") and offered no meaningful scheme (such as binding arbitration) to resolve disputes that might otherwise lead to the withdrawal of employees' services. The majority suspended the application of the decision for one year to allow the Government to make necessary modifications to the legislation to comply with the Charter.

The minority (Rothstein and Wagner JJ) held that the majority's decision overstepped the bounds of judicial intervention, effectively ensconcing a right that had previously been found to not exist (in a decision of the Court from 1987).  The minority Justices were of the opinion that the majority's approach removed the flexibility that Government required to balance the interests of employers, employees and the public. In the minority's opinion, recognizing a constitutional right to strike would upset that balance, in favour of employees.

While it remains to be seen how this decision will be interpreted and applied outside Saskatchewan, where legislative schemes differ, it is likely to change the tenor of public sector collective bargaining everywhere.  Public sector employers will likely have to, at least, engage in meaningful negotiation with public sector trade unions regarding which and how many employees are required to perform essential services during a work stoppage.  Those who are required to work during a strike will only have to perform those functions necessary to continue the essential service in question. Where regimes provide for a complete ban on strikes, legislation will have to be amended to provide for some other dispute resolution mechanism as an alternative. 

One outcome is clear, however.  This decision represents a significant victory for the labour movement in Canada, as it has redefined and broadened the meaning of "freedom of association" beyond what it has been for the last 30 years.

Do you have questions about labour relations or employees' right to strike?  Contact Lance Ceaser for expert guidance.