Consequences For Failing to Disclose Covert Surveillance

In a decision that could have repercussions for employers, the Ontario Court of Appeal has overturned a trial decision where the defendant 'ambushed' the plaintiff with surveillance evidence that it had failed to disclose in its Affidavit of Documents.
 
In Iannarelli v. Corbett, a motor vehicle accident case, the plaintiff sued after his pick-up truck was struck from behind by a cement-mixer driven by the defendant.  At trial, the parties presented their evidence regarding the weather and road conditions on the evening of the accident, and the defendant also introduced footage of video surveillance that had been shot without the plaintiff's knowledge over a period of two and one-half years following the accident.  The video was shown during the cross-examination of the plaintiff, in an effort to impeach his credibility, as it tended to refute his evidence regarding the extent of his injuries.  The surveillance evidence was not mentioned in the defendant's Affidavit of Documents (which should contain a reference to any and all arguably relevant evidence), but the trial judge admitted it despite the failure to disclose.  Ultimately, the jury found that the defendant was not liable for the plaintiff's injuries.  The plaintiff appealed.

The Ontario Court of Appeal reviewed the judge's charge to the jury and determined that his instructions on the onus to be applied were in error.  Accordingly, the trial finding was overturned and the defendants were found liable.  With respect to the video evidence, the Court reviewed the Rules of Civil Procedure governing the disclosure and production of arguably relevant materials, which is supposed "to prevent surprise and trial by ambush".  Despite the plaintiff's failure to request production of an Affidavit of Documents by the defendants, the defendant had a positive obligation to disclose and produce any document or thing that it intended to rely on at trial.  Moreover, even if the surveillance evidence was arguably privileged (as being created at a time when litigation was ongoing or contemplated), the defendants also would have had to disclose its existence and make a claim for privilege before the evidence could be presented in an effort to impeach the plaintiff's credibility.  The Court noted that the disclosure of such evidence can also assist parties in assessing their relative legal positions and may encourage settlement.  Even where an Affidavit of Documents has been served, and the surveillance is conducted afterward, the Court of Appeal found that the Rules require the party to produce a Supplementary Affidavit, which discloses the existence of the surveillance evidence.

The Court concluded that the trial judge erred in a number of ways, stating (at paras. 69 and 70):

The trial judge erred at the trial management conference. He ought to have ordered the respondents to serve an affidavit of documents disclosing the surveillance or at least to disclose such particulars as are ordinarily provided through a discovery undertaking. He should have offered the appellants an adjournment of the trial, and dealt with the issue of costs thrown away, since the appellants were not without fault. This would have permitted the appellants to access at least some of the advantages of disclosure. Even a relatively short adjournment to permit counsel to plan Mr. Iannarella’s examination-in-chief in light of the surveillance particulars would have been appropriate, in the event that the appellants did not want a lengthy adjournment. None of this was offered.

Instead, the trial judge enabled what amounted to a trial by ambush, which is completely inappropriate under the Rules (see Ceci, at para. 10). In the circumstances, the respondents cannot be absolved of the disclosure obligations set out above. I do not excuse the lapse in good trial practice by appellants’ trial counsel (not Mr. Zuber), by failing to pursue the appellants’ entitlements at an earlier stage. However, the weight of the disclosure obligations falls on the respondents, and rule 48.04 does not provide them with an escape route.

The Court of Appeal concluded that the trial judge should not have permitted the defendants to introduce the surveillance evidence.  Although the Rules permit the admission of evidence in these circumstances, the prejudice suffered by the plaintiff in the instant case was significant and could not be remedied by an adjournment or the award of costs, and the judge had also failed to conduct a voir dire on whether the evidence should be played for the jury.

In the result, the Court of Appeal threw out the jury's provisional damages assessment, and ordered a new trial on the issue of damages.

While the decision arises in the context of a personal injury case, it is instructive for counsel and employers in wrongful dismissal and other employment-related cases.  The Court of Appeal made clear that failure to comply with the Rules which results in prejudice and unfairness to the other party will have repercussions.  In this case, despite the fact that the defendants had good evidence suggesting that the plaintiff was overstating his injuries, the unfair way in which that evidence was introduced resulted in liability which may end up being significantly more than it would have otherwise been.  Employers and their lawyers will need to ensure that they comply with their disclosure obligations, even in relation to video that is shot well after the fact, and that they are careful in how they go about impeaching the credibility of an employee who is claiming damages for wrongful dismissal.

Need advice on a wrongful dismissal claim or demand?  Contact Lance Ceaser for expert advice.

Dealing with Off-Duty Driving Offences

While it’s easy to say that what an employee does on his or her time off is none of the employer’s business, this is not always true.  When an employee’s off-duty conduct has an impact on the employer’s operations or reputation, or interferes significantly with the employee’s ability to perform the job, the employer has a legitimate interest in addressing that behaviour.  As discussed in an earlier post on the Ghomeshi fiasco, employees can incur employment-related repercussions for actions they take in their personal capacity.

But what about driving infractions?  Can offences behind the wheel have employment ramifications?  What about an employee who suffers from alcoholism?  Can they rely on their disability to excuse charges under the Highway Traffic Act or the Criminal Code?  As seems to generally be the case in matters like this, the answer to these questions is “it depends”.

As the Court said in Pearce v. Foster et al. (a “master-servant” case from the late 19^th Century):

If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal. That misconduct, according to my view, need not be misconduct in the carrying on of the service of the business. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, and the master will be justified, not only if he discovers it at the time, but also if he discovers it afterwards, in dismissing that servant.

Of course, the determination of whether particular actions amount to cause for dismissal is a much less black-and-white affair than it was 130 years ago.  However, the principle is still observed:  an employee’s behaviour outside of work may have repercussions for the employment relationship (up to and including dismissal) where the behaviour is prejudicial to the employer’s interests.

Typically, whether or not off-duty driving offences or license suspensions (or other off-duty conduct) can be treated as ‘misconduct’ will turn on the nature and scope of the employee’s duties, the amount of notoriety their actions have attracted, the seriousness of the charges, the duration of the license restrictions or suspension, and the availability of other work or roles that don’t require driving. 

Before considering how to respond, an employer must make the necessary enquiries to determine what has occurred and how significant an event it is.  Obviously, the employee should be interviewed and any other available information gathered.  In some cases, this process may be hampered if the employee has received legal advice from a criminal lawyer and decides to exercise his or her ‘right to remain silent’.  At very least, however, the employer should require the employee to provide a copy of the information or ticket that was issued, and/or any documentation that may have been provided by the Ministry of Transportation (for example, where the licensing issue results from administrative reasons or an accumulation of lesser driving offences) to establish what charges and/or driving conditions apply.

Perhaps most crucial to the employer’s decision-making will be the nature of the employee’s role and responsibilities.  Is possession of a valid driver’s license a requirement of the position?  Is driving the primary or an essential duty of the employee’s job?  If not, how often is the employee expected to drive in the course of performing the job?  Does the employee operate an employer vehicle or his/her own car?  Does the employer maintain fleet insurance and what are its terms?  The more central that driving is to the employee’s duties, the more stringent the employer can be in its scrutiny of the circumstances of the loss of license.  However, it is also essential for the employer to understand the duration of the license suspension or conditions.  The shorter the suspension, the more carefully the employer should consider other options short of termination, such as an administrative suspension or reassignment to other duties (if they are available), to keep the individual employed until they regain the ability to drive.

The seriousness of the infraction and the employee’s explanation and display of remorse (if any) are also important factors to consider.  If the employee’s license was suspended administratively or for reasons unrelated to behaviour behind the wheel (for example, due to a failure to renew on time, failure to provide required medical information, or due to arrears in spousal or child support), the employer should consider options short of significant discipline or discharge.  On the other hand, conduct that suggests poor judgment or risk-taking (e.g., drunk driving, over 80 mg, or so-called ‘stunt-driving’), may attract more significant sanctions (and , therefore, less empathy).  Likewise, the attitude of the employee and any explanation they may provide must be weighed.  An absence of contrition or insight into the seriousness of the situation are poor indicators of likely good behaviour when driving for work in the future.  Of course, the employer must also consider the employee’s general history in terms of performance and behaviour – an employee with long, good service will obviously expect to receive more leniency than a short-term employee or one with a chequered past.

In some cases, the nature of the employer’s business and/or the notoriety of the employee’s behaviour may also be an aggravating factor.  Where charges against the individual have been reported in the media, the employer’s reputation may be at stake, particularly in a smaller community.  In some cases, the extreme safety sensitivity of the work may dictate that the employee be pulled off the road immediately (e.g., a truck driver who works for a company that hauls fuel oil or other dangerous goods on public roadways).  If there’s a risk that the employee’s behaviour may impact public confidence in the services provided by the employer (such as would be the case in policing), this will also be relevant to how seriously the misconduct is treated.

In any event, it cannot be assumed that the loss or suspension of an employee’s driver’s license will necessarily result in termination, even where driving is a significant component of their job.  As Arbitrator Owen Shime observed in one of the seminal arbitration cases on the subject (Re Bell Canada and C.W.C. (Shime), 24 L.A.C. (4th) 116):

An employee who loses his or her driving licence for violation of the Highway Traffic Act, [citation omitted], or a similar statute need not suffer a loss of employment, even where the employee is required to have a driving licence in order to perform his or her duties.  An employer is required to act reasonably and must balance its interests in maintaining production with the grievor’s interest in retaining his or her employment.  Also some care should be taken to ensure that the employee is not penalized twice for off-duty conduct but rather that there is a legitimate and significant employer interest that is being protected.  And finally, in the loss of licence cases there is a presumption that an employee should be suspended until other work is available or the employee’s driving privileges are restored.

Alternatively, a number of adjudicators have also held that an employer should consider the possibility of offering other, non-driving duties to an employee pending reinstatement of their driver’s license.  However, this option should only be considered in cases where the period of suspension or driving conditions is known and relatively short.  And of course, this alternative should never be considered where it would result in displacing another employee.  Only available work should be offered to accommodate the employee who has lost his/her driving privileges.

But what about the employee whose license is suspended due to charges related to impairment by alcohol or drugs, but who suffers from a known addiction?  What weight should the employer give the employee’s disability?  Is it an excuse or a mitigating factor?

In English v. Treasury Board (Solicitor GeneralCanada - Correctional Service), 2003 PSSRB 72, Board Member Guindon was dealing with the case of a correctional officer who was terminated for failing to disclose off-duty conduct (i.e., criminal charges related to drunk driving) that compromised his ability to perform his duties.  The officer had not told the employer that he had been convicted or that his license had been suspended for two (2) years.  In addition, he continued to operate employer vehicles (performing inmate transfers) after he lost his license.  Prior to the arbitration hearing, the employee expressed remorse and took steps to address his acknowledged problems with alcohol abuse.  The Board Member observed that the employee’s alcoholism had to be considered in assessing the appropriate penalty for his wrongful behaviour.  Citing an earlier decision, the Board Member wrote:

What emerges from these cases and the other material cited to the board is a recurring set of considerations and principles arbitrators take into account when dealing with discipline as it is applied to the alcohol and/or drug-addicted employee. These principles and considerations include the following:

1.            Alcoholism is recognized as an illness albeit one with an element of volition, that can attract varying levels of justifiable disciplinary response from the employer up to and including discharge;

2.            An adjudication board is entitled to look at the rehabilitative progress made by an employee subsequent to the employer's decision to discipline and is likely to modify that discipline if the employee can demonstrate that he has been successful in his recovery;

3.            The discipline imposed by an employer should only be modified in "exceptional circumstances" and those circumstances exist where an employee has shown genuine prospects for recovery and the restoration of a productive employer-employee relationship;

4.            The employer is entitled to insist that the employee perform the work for which he is paid and is not obliged to bear all the costs and consequences associated with an employee's inability to perform his duties as a result of his alcoholism;

5.            An adjudication board should consider the extent to which and the duration for which an employee is unable to perform his employment obligations;

6.            That where reinstatement occurs in substitution for discharge arbitrators are prepared to attach conditions to such reinstatement. Recognizing that alcoholism and drug addiction are not curable and can only be arrested by total abstinence, one such condition often attached to reinstatement is the requirement that the employee remain drug and alcohol-free.

In short, where it is established that an employee’s misconduct (in this case, off-duty driving offences) are related to a proven medical condition (i.e., alcoholism), the focus of the analysis will be on whether the employee acknowledges and seeks treatment for his/her problem, as well as the likelihood for recovery.  Evidence that the employee has sought treatment even after termination may be relevant.  However, the employer can in these cases impose conditions on the employee to ensure that the employee completes any rehabilitation program and complies with prescribed after-care (including abstinence from alcohol).

Where dismissal is not the appropriate course of action, an employer can consider withholding assignments that involve driving, transferring the employee to another position or other duties that don’t require a license, suspending the employee (where no other suitable work is available) or demoting the employee to a role where driving is not required.

While driving offences can have a significant impact in the workplace – hindering efficient operations or drawing unwanted scrutiny on an organization – employers need to be aware that not every loss of a driver’s license should attract the same penalty.  A careful, fact-specific assessment is required in each and every case.

Do you have questions how to deal with an employee who has lost their driving privileges?  Need guidance on whether or not to discipline for off-duty conduct?  Contact Lance Ceaser for expert advice.

Summary Judgment - The Way of the Future for (Some) Wrongful Dismissal Cases

When the Supreme Court of Canada issued its decision in Hryniak v. Mauldin last year, it was not clear whether the Court's guidance on the use of summary judgment motions (under Rule 20 of the Rules of Civil Procedure) would be applicable to wrongful dismissal actions.  The Supreme Court made clear that unnecessarily protracted proceedings were not necessary in all cases, and in some cases the delays and expense of a prolonged trial could result in a denial of justice.  So what about your average allegation of wrongful dismissal?

In its recent decision in Arnone v. Theratronics Ltd., the Ontario Court of Appeal has suggested that some wrongful dismissal cases may be ideal candidates for summary judgment, in keeping with the Supreme Court's decision, particularly those where the only issue is the quantum of reasonable notice that the employee ought to have received.  In Arnone, the employer had not asserted cause for termination or any other form of justification, so the only outstanding question to be decided was the period of reasonable notice.  The plaintiff brought a motion for summary judgment under Rule 20, claiming that the matter could be disposed of in a summary fashion because there was no 'genuine issue' requiring a trial.  The motion judge agreed, and granted summary judgment to the plaintiff.

On appeal, the employer argued that the motion judge had erred as there was disagreement between the parties as to whether the plaintiff was a supervisor or a manager, a factor going to the analysis of appropriate notice under Bardal v. The Globe & Mail Ltd.  The Court of Appeal rejected this argument, finding that the judge had sufficient material before him, including documentary evidence submitted by the employer, that would allow him to make a determination without conducting a trial.  Moreover, the employee had conceded, for purposes of the motion, that he may have been supervisory rather than managerial.  The Court observed that this objection did not necessitate a full trial, particularly as the nature of the employment was only one Bardal factor to be considered in determining reasonable notice.  The Court then stated:

Finally, while the appropriateness of bringing a summary judgment motion must be assessed in the particular circumstances of each case, a straight-forward claim for wrongful dismissal without cause, such as the present one, strikes me as the type of case usually amenable to a Rule 20 summary judgment motion.

The Court of Appeal concluded that the motion judge had not erred, as there was no genuine issue for trial (although other aspects of the judge's decision were altered on the appeal).

Provided parties to a wrongful dismissal case marshal the necessary documentary and affidavit evidence, it is likely that the courts will be prepared to entertain summary judgment motions in most 'notice period' cases. Hearing a motion is much more timely and cost-effective, and preserves judicial resources that would otherwise be expended hearing a trial.  If there are factual issues that require a more thorough analysis, employers will have to persuade a motion judge that documentary evidence and affidavits are insufficient to resolve the dispute.  It will therefore be imperative that employers ensure that they prepare for a summary judgment motion as if it may be determinative.  In many cases, it could be. 

Do you have questions about wrongful dismissals?  Need guidance to make sure that the notice provided is "reasonable"?  Contact Lance Ceaser for expert advice.

False Harassment Claim Warrants Discharge

While it may be foolish for an employer to take a complaint of harassment or bullying lightly, it is equally unwise to assume that all complainants are making claims for legitimate reasons.  When an employer determines that an employee has fabricated or greatly embellished a complaint against a co-worker or supervisor for some improper purpose, the employer should seriously consider taking action against the complainant.  As a recent decision of a labour arbitrator recognizes, making false and bad faith accusations may warrant severe discipline.

In Canadian Union of Public Employees, Local 3261 v. University of Toronto, the union grieved the discharge of an employee after the employer determined that the grievor had fabricated an allegation of workplace bullying and violence against a co-worker.  The grievor claimed that he had been the victim of an escalating pattern of harassment and bullying which culminated in the co-worker threatening him in a stairwell with a knife.  Over the course of several years, the employee had frequently complained about the tradespeople who he interacted with, and claimed that his supervisor and other members of management were complicit in his being harassed.  The employer adduced evidence that the grievor had a history of making complaints against co-workers to deflect blame whenever his performance or conduct was brought into issue.  The employer conducted an investigation and became dubious of the legitimacy of the complaint.  The complainant had initially given one date for the incident and when he reported it, but then provided different information.  When he first spoke to a manager about the alleged incident, it was after an issue of his behaviour had been raised, and he seemed to suggest that it was a "little thing".  He also declined to provide any details (such as the date and location where the incident occurred), although the union provided this information weeks later when it questioned why the employer had not investigated the alleged threat.  Ultimately, the investigation team compared their notes, and the inconsistencies and discrepancies in the complainant's reporting of the incident, and concluded that he had fabricated the situation.  Although the grievor had relatively little discipline on his record, the employer decided that his falsification of a complaint of workplace violence was sufficiently egregious that he should be discharged.  After he was fired, the grievor made a claim to the WSIB, indicating yet another date for the incident and adding further details about being bumped and having a chair kicked out from under him.

After reviewing the evidence, Arbitrator Cummings agreed with the employer's decision and found that the University "came to the correct conclusion" (i.e., that the grievor made up the story in an effort to get the co-worker in trouble and deflect attention away from his own bizarre behaviour).  In the Arbitrator's view, the employee routinely offered inconsistent accounts of what had occurred or when, and sought to take breaks or adjourn the hearing whenever he was challenged on these inconsistencies, so he would have time to develop an explanation. Moreover, the grievor's failure to document and provide details of the incident was not in keeping with his past practice when complaining about co-workers or supervisory staff.  In short, the Arbitrator found that the grievor was not credible and his evidence was unreliable.

In terms of the penalty of discharge, the Arbitrator acknowledged being troubled by the way in which the grievor's co-workers had openly shunned and bullied him in the past. At least one of the grievor's co-workers had admitted to trying to exclude him from eating in the trades shop.  However, given the gap in time between the last incident of bullying and when the false accusation was laid, the Arbitrator did not consider this mistreatment to be a mitigating factor.  The grievor's failure to admit his wrongdoing, however, was a seriously aggravating factor:

The aggravating factor is Mr. Tropak’s failure to take any responsibility for his termination. Making an unfounded allegation of a threat of workplace violence is malicious. Mr. Tropak has aggravated that misconduct by lying to the employer, the union and to the arbitrator in maintaining to the end that Mr. Ford threatened him with a knife. I echo the concerns of the employer that it is hard to imagine rebuilding an employment relationship with someone who lies about such a serious matter. It is also hard to imagine requiring other employees to work with Mr. Tropak, knowing that he has made and maintained such serious, unfounded allegations about another employee.

In the result the grievance was dismissed.

It is not often that an employee will make an unfounded complaint as was the case in this decision, and evidence of the falsehood will seldom be so obvious.  However, in order to ensure that action can be taken in the event of a false complaint, it's important to be prepared:

• Make sure you're workplace harassment and/or violence policies expressly provide for sanctions for fabricated or bad faith complaints;
• Ensure investigations are conducted in a thorough manner.  The investigator should take all reasonable steps to resolve any inconsistencies in the complainant and respondent's accounts;
• Whenever possible, assign the inquiry to an investigator who will be perceived as unbiased.  In appropriate circumstances, consider retaining a third-party to conduct the investigation where there is a lot of history with the complainant, the respondent(s) or both.

By exercising a degree of due diligence, an employer can greatly improve the likelihood of being able to address false claims when they arise.

Do you need advice on conducting workplace investigations?  Need an experienced investigator?  Contact Lance Ceaser for expert assistance.

 

The FCA Has Established the Test for Family Status Discrimination ... Or Has It?

As earlier reported, the Federal Court of Appeal established a test for prima facie discrimination on the basis of "family status" in its decisions in Johnstone and Seeley (reported on here).  The Court stated that a claimant must establish not only that he or she had legitimate family obligations that the workplace rule interfered with, but that the claimant had made reasonable efforts to address his or her family obligations.  Under this approach, the employer would have no onus to respond, by establishing that it had made reasonable accommodation efforts (short of undue hardship), unless and until the claimant had shown that attempts to 'self-accommodate' had been unsuccessful.  Many wondered if this formulation of the prima facie test for family status discrimination would be the final word on the subject, but it's now clear that it was not.  The Alberta Court of Queen's Bench has now weighed in, and the Court is not in agreement with the test set by the Federal Court of Appeal.

In SMS Equipment Inc. v. Communications, Energy and Paperworkers Union, Local 707, the employee was a single mother of two children who was required to work day and night shifts.  When she sought accommodation of her childcare obligations, by being assigned to a straight day shift, her employer declined, even though there was another employee who was willing to switch to a straight night shift.  The labour arbitrator hearing the employee's grievance determined that the employer had discriminated against the employee on the basis of family status, and that the employer had not discharged its duty to accommodate. The employer sought judicial review and was unsuccessful.  In dismissing the application, Justice Ross of the Alberta Court of Queen's Bench offered the following opinion on the test formulated by the Federal Court of Appeal (at para. 77):

A flexible and contextual application of the Moore test does not justify the application of an entirely different test of prima facie discrimination, and particularly does not justify including within that test a self-accommodation element that is not required with respect to other prohibited grounds of discrimination. This is unnecessary and contrary to the objects of human rights law. It is unnecessary because a finding of discrimination does not automatically follow once a prima facie case is established. It is only when the complainant establishes a prima facie case and the respondent fails to justify the rule or conduct that discrimination will be found. It is contrary to the objects of human rights law because it imposes one-sided and intrusive inquiries on complainants in family status discrimination cases. Complainants are not only required to prove that a workplace rule has a discriminatory impact on them, but that they were unable to avoid that impact. Thus the Grievor was subjected to an examination regarding her relationship or lack thereof with the biological fathers of her children, her choice of caregivers for her children and her personal financial circumstances. She had to undergo this examination before the Employer would even consider a request for an accommodation in the form of a shift exchange that she had arranged with another willing employee. The search for accommodation is intended to be “a multi-party inquiry,” involving the employer, the union and the complainant: Central Okanagan School District No 23 v Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970 at 994, 141 NR 185 [Central Okanagan], cited in Arbitrator’s Decision at para 69. Converting this multi-party inquiry into a one-sided investigation could certainly deter complainants from pursuing claims for discrimination based on family status, and thus detract from the policy goal of removing discriminatory barriers to full participation in the workforce.  

In short, the Alberta Court was of the view that the test for prima facie family status discrimination was the same as applied in relation to any other prohibited ground of discrimination. The complainant must show that:

1.      The complainant has a characteristic that is protected from discrimination;

2.      The complainant has experienced an adverse impact; and

3.      The complainant must show that the protected characteristic was a factor in the adverse impact.

Under this analysis, the efforts made by the employee to accommodate his or her family obligations would not be relevant to whether or not the employer had discriminated against the employee.  However, relying on the decision in Central Okanagan (cited in the paragraph quoted above), an employer could still argue that the employee had not met his or her share of the duty by not looking into options that would have eliminated or reduced the need for workplace accommodation (e.g., by seeking assistance from a spouse or family member).  To date, the issue of the test in the Johnstone/Seeley decisions has not been determined by the courts in Ontario.  It will be interesting to see which side of this debate they land on.  Stay tuned...

Do you need assistance with complex accommodation issues?  Need to better understand your workplace obligations?  Contact Lance Ceaser for expert guidance.