Thoughts from a Management Lawyer

Court of Appeal Releases a "Top 10 in 2010 Case"

The Court of Appeal released an important decision on May 28, 2010 Piresferreira v. Ayotte in which it considered, among other things, negligent infliction of mental suffering in the employment setting. 

This was an appeal of the judgment of Aitken, J. and will be on the "Top 10 Employment Law Cases in 2010".

It is a significant decision both for the analysis and the result.  Employer's will, generally, be pleased with the outcome, though it may not represent the end of the debate.

Because of the scope of the case, I will pick it up in a few posts starting with this one dealing with the issue of "Negligent Infliction of Mental Suffering" and the availability of this tort in the employment context. 

This is, probably, the most important/controversial aspect of the case and employers will be pleased that the Court of Appeal held that this tort was not available (for policy reasons) in the employment context.

Background

The plaintiff, Marta Piresferreira (“Piresferreira”) had been employed by Bell Mobility for 10 years and was 64 years of age.  She worked in Ottawa as one of six account managers reporting, since 1997 Piresferreira received good performance reviews, except for 2004 where Richard Ayotte ("Ayotte") indicated that she needed to show improvement.  According to the Court of Appeal:

"Ayotte was a critical, demanding, loud and aggressive manager.  Other employees corroborated Piresferreira’s testimony that he would yell and swear at employees, had a temper, and would bang his fist on the table to make a point.  He had high expectations for the account managers on his team.  Other employees described Piresferreira as nervous and sensitive, not taking responsibility for problems but instead blaming others, and not dealing well with criticism – regardless of how it was delivered.  The two personalities could hardly be less complementary."

There was discussion of putting Piresferreira on a Performance Improvement Plan ("PIP").

Assault/Battery

On Thursday, May 12, 2005, Ayotte learned that Piresferreira had failed to arrange a meeting with a client.   According to the Court "he yelled and swore at Piresferreira while criticizing her for failing to do her job." There was an exchange between the two during which Perisferreira asked Ayotte to look at an email on her Blackberry in a persistent way, while following Ayotte.  The Court noted:

[Ayotte] told her to get away from him and when she held up the Blackberry in front of him, he pushed her on her left shoulder, repeating that she should get away from him. The trial judge found that “[t]he push carried enough force that Piresferreira was pushed approximately a foot. Piresferreira took a step backward and balanced herself against a filing cabinet.”

Ayotte went back to his office and sat at his desk.  Piresferreira followed him and said that he should not have pushed her.  According to the Court:

Ayotte told her “to get the hell out of his office” and that he was in the process of preparing a PIP regarding her performance.  Piresferreira went back to her desk and began to cry.  After speaking to colleagues, she collected her things and went home. 

After the Events of May 12, 2005

Ayotte delivered the PIP to HR asking them, in his cover memo, for a quick turnaround as he was concerned that "she would go on sick leave as soon as the PIP was presented".  He "did not mention the confrontation with Piresferreira earlier that day or that she was upset because he had pushed her".

Piresferreira returned to the office on May 19, 2005 following a scheduled vacation and Ayotte presented her with the PIP he had prepared on May 12. On May 20, 2005, Piresferreira lodged a formal complaint with HR against Ayotte.  An investigation was pursued during which:

He admitted pushing her but claimed he was provoked by her persistence in trying to get him to read an email on the Blackberry that she was brandishing in his face.  Shiu [general manager to whom Ayotte reported], did not contact Piresferreira to obtain her version of the incident.

HR sent an email to Piresferreira indicating that a meeting had been arranged "for tomorrow morning May 25th at 9h30 to  review the performance improvement plan" with HR and Ayotte.  Piresferreira tendered a doctor's certificate indicating that she would be off work on May 25 due to “stress leave due to anxiety – dealing with work harassment.”

Though the stated "purpose of the meeting" was to review the PIP, later in the day, HR sent Piresferreira a letter "that claimed that she had declined to attend a meeting to allow Ayotte to apologize." in which it concluded by noting that "We, therefore, consider this case closed." 

Ayotte was subsequently issued a disciplinary warning for unacceptable behaviour.

Piresferreira never returned to work.  She commenced litigation against Ayotte and Bell Mobility on August 11, 2005.

Efforts to Return Piresferreira to Work

Bell Mobility made a number of unsuccessful attempts to return Piresferreira to work.

On March 9, 2006, Piresferreira was advised that Ayotte had been “relocated within the Bell Family” and that she could return to her employment and would not have to work with him.  Piresferreira refused as she was informed that Ayotte still "worked out of the Ottawa office in the same capacity".

Piresferreira was under the care of a psychologist and psychiatrist who diagnosed her with post-traumatic stress and a major depressive disorder with symptoms of anxiety respectively.  In terms of causation, the psychologist's opinion was that the "symptoms related to the assault and what she perceived as a betrayal and injustice on the part of Bell Mobility" and the psychiatrist opinion was that the "depression and anxiety were triggered by Ayotte’s physical assault, followed by his failure to apologize and then Bell Mobility’s failure to apologize and take concrete steps to remove Ayotte from a position of authority and supervision over Piresferreira".

Trial Judgment

The Trial judge found that Ayotte and Bell Mobility were jointly and severally liable for the torts of battery, intentional infliction of mental suffering, and negligent infliction of mental suffering.

With respect to the tort of intentional infliction of mental suffering, the trial judge set out the elements of this tort as stated in Prinzo v. Baycrest Centre for Geriatric Care:

(1) flagrant or outrageous conduct;

(2) calculated to produce harm; and

(3) resulting in a visible and provable illness.

Next, the trial judge found Ayotte and Bell Mobility both liable for the tort she described as "Negligent Infliction of Emotional Distress, Mental Suffering, Nervous Shock and/or Psycho-traumatic Disability".  She found that Bell Mobility as Piresferreira's employer and Ayotte as her immediate supervisor "owed Piresferreira a duty of care to ensure that Piresferreira was working in a safe and harassment-free environment without verbal abuse, intimidation or physical assault, all in accordance with Bell Mobility's Code of Business Conduct."

The Trial judge found that Ayotte breached the duty of care by "by yelling and swearing at Piresferreira particularly during 2004 and 2005, and including on May 12, 2005 when he berated her in front of other employees, physically assaulted her and added insult to injury by, without apologizing, issuing a PIP."  With respect to her employer, the judge held that they breached their duty to Piresferreira because, according to the Court of Appeal:

... neither HR nor [the general manager to whom Ayotte reported] contacted Piresferreira to express Bell Mobility's concern as to how she had been treated, to apologize on Bell Mobility's behalf, and to see how she was doing.  Instead, Bell Mobility's communications conveyed to Piresferreira that its priority was the PIP not Ayotte's behaviour.  The disciplinary measures that Bell Mobility told Piresferreira it would impose on Ayotte were inappropriately mild and ignored Ayotte's failure to apologize to Piresferreira, his use of a PIP to intimidate her, his failure to report the assault and the immediate imposition of a PIP. Moreover, no one from Bell Mobility contacted Piresferreira to get her input on what steps could be taken to ensure that she would feel physically and emotionally safe at her workplace in the future.

The trial judge also made a number of other damages awards.

The Court of Appeal

Negligent Infliction of Mental Suffering

Though the issue was not raised at trial, the Court of Appeal nonetheless considered whether this tort existed in an employment context.  The Court of Appeal noted that "the argument raises a pure question of law of broad importance in employment law."  No kidding, this would, if allowed to stand, significantly open the door to a host of claims in the employment setting (recently, the cases show a judicial reluctance to broaden these types of claims).

The Trial judge found that the duty of care for the tort rested squarely on the contractual relationship between the parties (the Code of Conduct).  Even assuming that the Code of Conduct formed part of the employment contract, the Court of Appeal held:

1. "a breach of a contractual duty cannot be the basis for the recognition of a common law tort." and
2. "there must be a common law duty of care that would exist even in the absence of the specific contractual term which created the corresponding contractual obligation."
3. The trial judge erred in basing the standard of care on a contractual obligation.

The Court then went on to consider the Anns v. Merton London Borough Council case for determining whether a duty of care arises which:

.... involves asking first whether the relationship between the plaintiff and the defendant is sufficiently close or "proximate" to render damages reasonably foreseeable and justify the imposition of a duty of care, and second, whether there are countervailing policy considerations why a duty of care should be limited or not recognized.

The Court of Appeal held that there was a sufficiently close relationship between an employer and employee and that the damages suffered were reasonable foreseeable.  This was probably not surprising given some earlier cases.

It then turned to whether there were policy considerations that would foreclose the recognition of a duty of care. 

The Court found that they did.

The Court stated that "the Supreme Court has already strongly intimated that the recognition of such a tort in the employment context is better left to the legislature." And further:

A general duty to take care to shield an employee during the entire course of his or her employment from acts in the workplace that might cause mental suffering strikes me as far more expansive than a duty to act fairly and in good faith during just the termination process. The duty rejected in Wallace would have applied only at the time of termination and to the manner of termination. The duty put forward in this case would apply in the course of employment as well as to its termination. The general duty postulated would require employers to take care to shield employees from the acts of other employees that might cause mental suffering.

The Court then considered whether the tort added anything to the existing remedies available to an employee.

If the employee were terminated, he or she could claim damages for mental distress under the framework the Supreme Court has set out in Keays v. Honda Canada.  Accordingly, the Court held that the "recognition of the tort is not necessary".

If an employee is not terminated outright, he or she may advance a claim based on the offensive conduct and allege that he or she has been constructively dismissed (see Shah v. Xerox Canada Ltd.).  The Court held that it is:

... often called upon to review the work performance of employees and the content and manner of their supervision in dismissal cases. It is unnecessary and undesirable to expand the court's involvement in such questions. It is unnecessary because if the employees are sufficiently aggrieved, they can claim constructive dismissal.  It is undesirable because it would be a considerable intrusion by the courts into the workplace, it has a real potential to constrain efforts to achieve increased efficiencies, and the postulated duty of care is so general and broad it could apply indeterminately.

The Court held that the "tort of negligent infliction of mental suffering as the tort is not available in the employment context".

In reaching this conclusion, the Court was clearly concerned with the repercussions of allowing the Trial judges decision to stand on this point.  Leaving aside the practical issues, the policy considerations were paramount in the Court's reasoning. 

Employers can, for the moment, breathe a sigh of relief, though this may not be the end of the matter if leave to appeal to the Supreme Court of Canada is sought.

Procedural Protection in Comtempt Proceedings

One would hope that civil contempt proceedings are rare (which they are).  The suggestion that someone is in contempt of a court order is, to say the least, a serious allegation and one that requires considerable care before launching.  An Ontario Court recently considered the procedural protections to be afforded to defendants in these cases in Vale v.USWA Local 6500, et al..

After noting that "Civil and criminal contempt have enjoyed something of a renaissance in recent years" (a frightening comment), the Court quoted from Bell ExpressVu Limited Partnership v. Torrini noted that:

"A finding of contempt of court is a serious matter that is quasi-criminal in nature.  It is “first and foremost a declaration that a party has acted in defiance of a court order”:  Pro-Swing Inc. v. Elta Golf Inc., 2006 SCC 52 (CanLII), [2006] 2 S.C.R. 612, [2006] S.C.J. No. 52, at paragraph 35.  The potential penal sanctions facing a contemnor underscore the seriousness of such a finding.  As the Supreme Court of Canada has observed, “the penalty for contempt of court, even when it is used to enforce a purely private order, still involves an element of ‘public law’, in a sense, because respect for the role and authority of the courts, one of the foundations of the rule of law, is always at issue”:  Pro-Swing, at para. 34, citing Videotron Ltee v. Industries Microlec Produits Electroniques Inc., 1992 CanLII 29 (S.C.C.), [1992] 2 S.C.R. 1065, [1992] S.C.J. No. 79, at p. 1075 S.C.R.  This court has recently reaffirmed these principles in Chiang (Trustee of) v. Chiang 2009 ONCA 3 (CanLII), (2009), 93 O.R. (3d) 483, [2009] O.J. No. 41, 2009 ONCA 3, at paras. 10-11. [page 621] It is for these reasons that motions for contempt are often said to be strictissimi, i.e., that all proper procedures must be strictly complied with:  see Dare Foods (Biscuit Divisions) Ltd., v. Gill, [1973] 1 O.R. 637, [1973] O.J. No. 21 (H.C.J.); Toronto Transit Commission v. Ryan reflex, (1988), 37 O.R. (3d) 266, [1988] O.J. No. 51 (Gen. Div.)."

Strictissimi?  I like it.

Anyway, the Court outlined the following five (5) protections afforded to the alleged contemnor:

1. The right to be provided with particularized allegations of the contempt;
2. The right to a hearing;
3. The right to be presumed innocent until such time as guilt is proved beyond a reasonable doubt;
4. The right to make full answer and defence, including the right to retain and instruct counsel, the right to cross-examine witnesses and the right to submit or call evidence; and
5. The right not to be compelled to testify at the hearing.

In looking at these issues, the Court will engage in a balancing of interests analysis.  On the one hand we have the contemnor's right to make full answer and defence.  On the other hand:

... is to be balanced the interests of the administration of justice in ensuring that allegations of non-compliance with orders of the court are dealt with expediently, particularly when the dispute between the litigants is ongoing and the court’s decision may have an effect on the conduct of the parties.  

The nature and extent of disclosure must be assessed by looking at:

1. The relief being sought by the party bringing the motion for contempt.  If the motion is brought essentially for the purpose of ending the unlawful conduct that is one thing; if the motion is brought with a request for significant penal sanction, that is another thing entirely;
2. Whether the alleged contempt is ongoing, resulting in an urgent need to  preserve order and protect the authority of the court;
3. If the alleged contempt is not ongoing, whether the relationship between the parties is such that the impugned conduct might reasonably be expected to resume without timely intervention by the court;
4. The nature of the conduct alleged; and
5. The nature and extent of the materials of which disclosure is sought and the time expected to produce it.

In addition, the court will consider whether the purpose for which disclosure is sought are legitimate (i.e. is the underlying reason to delay the proceedings or as a tactic to disuade the plaintiff from pursuing the matterr by making the request so onerous) and whether the ends of justice would be achieved by making the requested order.  The Court found that the defendants request for disclosure was reasonable and made the appropriate order and imposed a timetable.

Again, Civil contempt proceedings are rare (though, as I said earlier, the judge noted that they "have enjoyed something of a renaissance in recent years").  Fairness will dictate the result when it comes to disclosure, while balancing interests.  It should be expected that overly broad requests for disclosure or requests that are so onerous as to be unreasonable or suggestive of a tactic to delay the proceedings will not be allowed or will be restricted.

Thinking of Jumping Ship?

A recent decision from the Ontario Court of Justice clarifies the rules when a fiduciary jumps ship.  The case, Aquafor Beech Ltd. v. Whyte was decided on May 14, 2010 and involved a claim by a company against a number of professional engineers who resigned.  The case involved whether there was a breach of fiduciary duties.  The Court found that there was not in this case.  Here is a summary and CTV has an article.

Toxic Bosses and Workplace Bullying

We put on a seminar for clients (and others) last Thursday on Bill 168. It was really well attended so thanks to all those who came out and I hope you found it of value in getting everything buttoned down for June 15, 2010.

I read a really interesting article in the Wall Street Journal Who's afraid of the big, bad boss? that was fascinating in the shadow of Bill 168 and other such Canadian legislation.   According to the article, the New York Bill (which is not law):

New York's anti-bullying bill defines bullying broadly and includes the repeated use of derogatory remarks, insults and epithets, as well as conduct that a "reasonable person" would find threatening, intimidating or humiliating.

Some of the comments and observations in the article were eye-opening. 

I've written before (here, here, here and here) about the office jerk and not dealing with him/her and about the best-titled book I've seen in recent memory -The No Asshole Rule: Building a Civilized Workplace and Surviving One That Isn't by Bob Sutton whose blog, Work Matters, is just a great read. 

One of the fears expressed at our seminar was "how far the harassment provisions in Bill 168 go?"  Pretty far and while normal performance management, for example, is not captured (even according to the Ministry) harassing behaviour, that comes within the broad definition in the Bill, would, of course, be.

Update:  New York Labour Law Report has a blog on the bullying legislation that would establish a civil cause of action for those subjected to an "abusive work environment.".

Overview of proposed PIPEDA amendments

Have a read of David Fraser's post on his always excellent Canadian Privacy Law Blog.  For employers falling under PIPEDA, have a read of David's comments under "Employee Personal Information" and the "breach notification" proposals.

Thanks David.

Disability and Perceived Disability Under the Code

It is not only taking action against an employee because of an actual disability that can get an employer in hot water under the Human Rights Code.  Where the employer takes action because of a perceived disability, trouble can also follow.  Such was the case in McLean v. DY 4 Systems.

Background

The applicant, who was a diabetic, had been employed at the respondent’s factory for approximately seven years when her employment was terminated on December 3, 2008.  According to the Tribunal, the employer's position was that:

"... the applicant was dismissed because she came in to work thinking that she had tuberculosis, with a reckless disregard for the health and safety of others, and because she made a remark that appeared to indicate a prejudiced attitude toward a co-worker (VN) who is Vietnamese in origin. The applicant alleges that she was dismissed for reasons that included a connection with disability."

The applicant believed she had Tuberculosis and that it had been contracted at work.  She went to her supervisor, with a pamphlet from the Lung Association, in November.  She admitted having said, "“I have TB and I'm told that a lot of Asians have it. I'm sure I got it from [VN]. She’s been coughing for two weeks and her kid is sick.”.

The employer was surprised that the employee had been cleared to return to work (she had been hospitalized).  

By December 1, 2008, the employer "had been reassured that the applicant did not have active TB. This was confirmed on the morning of December 2 when the applicant brought in the note" from her doctor.

A physician called on behalf of the applicant testified that "the applicant's December test for tuberculosis was negative, and that this was confirmed with the applicant" She testified that she believed the applicant understood at this point that she did not have TB".

The applicant was terminated on December 3.

According to a number of cases, including Chen v. Ingenierie Electro-Optique Exfo the definition of disability under the Code:

The definition of disability is interpreted in a broad manner and extends to the actual or perceived possibility that an individual has or may develop a disability in the future: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City), 2000 SCC 27 (CanLII), [2000] 1 S.C.R. 665, 2000 SCC 27 (CanLII) [reported 37 C.H.R.R. D/271]. For example, if an employer believes that an employee's condition will interfere with business operations and or profitability and for that reason dismisses an employee, this perception and consequent treatment can give rise to a finding of discrimination on the basis of a disability under the Code: Boodhram v. 2009158 Ontario Ltd., 2005 HRTO 54 (CanLII), 2005 HRTO 54 (CanLII) [C.H.R.R. Doc. 05-738]. emphasis added)

The employer argued that the applicant had "inactive TB" which it analogized to an everyday illness and, according to the Tribunal, the focus of the employer's submissions was "on whether inactive TB is a disability".  The Tribunal observed that, in this case, "there was more than one health problem at issue in this Application" notably the applicant's diabetes and:

In addition, there is no dispute that the applicant thought, albeit incorrectly, that she had contracted some form of tuberculosis. However, the respondent maintains that the applicant was never perceived to have a disability.

The Tribunal considered a number of cases that dealt with when an employer could be said to have enough knowledge of an employee's disability to trigger responsibilities under human rights legislation.  Citing Wall the Tribunal noted:

As stated in other cases dealing with the test for establishing a prima facie case of discrimination, the question is whether the respondents knew or ought reasonably to have known that the complainant was suffering from a disability. For those purposes, there is no absolute requirement that a complainant communicate the nature of the disability to her or his employer: Sylvester v. British Columbia Society of Male Survivors of Sexual Abuse (2002), 43 C.H.R.R. D/55; 2002 BCHRT 14, at para. 35 (summarizing the authorities).

When dealing with a corporation (as was the case here), the Tribunal held that "it is appropriate to look at the knowledge of decision-makers within the corporation".  The Tribunal cited the following in support of their conclusion that the employer had requisite knowledge:

All the involved Directors and Ms Cox of the Human Resources Department were on notice as of November 28 that the applicant had stated that she had been “sick for the past year”. In addition, Mr. McGrath knew that the applicant had multiple health-related problems. The Human Resources Department clearly had information on record that the applicant had used all of her available sick days, as well as having worked make-up hours because she had used more than her sick day allotment; she justified her absences with doctor’s notes as required. Indeed, Human Resources admitted that the applicant's doctor had been contacted directly earlier in the year, apparently in an attempt to verify whether she did in fact have an appointment with her doctor. This indicates that the applicant’s absences from work were under some scrutiny by the respondent. In these circumstances, it was clearly open to the respondent to ask the applicant for the information concerning her health status.

Clearly, decision-makers at all levels of the respondent corporation were also aware that the applicant might have inactive TB at the time the decision was made to fire the applicant. It was not until well after the applicant had been fired that anyone could be sure that she did not have TB at all. Further, the respondent’s witnesses were aware that the applicant intended to pursue a Workers’ Compensation claim, which indicates that the applicant, at least, thought that her ability to continue regular attendance at work and handle her normal workload was in doubt for health-related reasons.

The Tribunal found that the "position of the respondent is that it dismissed the applicant solely for her “poor judgement” in coming in to work when she might have had a condition that might be dangerous to the health and safety of others in the workplace, and a remark that the respondent considered racist, and as implicating its anti-harassment policy".

The Tribunal noted, that the logical thing for an employer to do when it hears that aracist remark has been made was to "investigate the circumstances surrounding the remark to be as sure as possible about what was said, and to investigate (for example by questioning other employees) whether any other racist conduct has occurred".  According to the Tribunal "there was no effort to determine exactly what was said, and no effort to speak to any other employees, including VN. The absence of such follow-up raises doubt about whether the respondent was concerned as alleged".

In the end the Tribunal found that the employer had breached the Code when it terminated the applicant:

I conclude that at least one reason for the rapid decision taken by [the employer] was concern that the applicant would need still more time away from work, at a very busy period, to deal with disability-related medical needs.

Orders

The Tribunal made various Orders and made a number of observations in doing so that are worth noting

The Tribunal made an order for loss of salary and benefits for 13.5 months from the date of termination to the last day of the hearing (less amounts paid)  plus RRSP ($111 per month) and $300 month for extended medical insurance.

The most troubling aspect of this case is the Tribunal's discussion of prospective orders.

The applicant was 62 years of age at the time of her termination and says she would have remained at work until age 65 (29 months after her termination and 11 months after the date of the decision of the Tribunal).

The following comments are of interest:

"This is certainly not a type of order that is frequently made, but in this case, there are circumstances that support it." 

"The contemplated period is fairly brief."

"It is foreseeable that a person in these circumstances might have great difficulty finding alternative employment.  The applicant’s experience in her attempts to mitigate have borne this out."

"I conclude that she is not likely to find permanent employment prior to her 65^th birthday".

The employer asked that the Tribunal apply a contingency factor of 20% if it was going to make a prospective order.  The Tribunal commented (it is not clear if it refused):

By contrast, all the evidence here was that the respondent was in the fortunate position of doing extremely well and hiring more staff. Further, in this case the respondent had no concerns with the applicant’s performance on the job; while she may not have received as much in bonus payments, she may have received some such payments or a raise in pay, which possibility will not be reflected in this order.

Though making all of these statements and observations, the Tribunal indicated that it would allow the parties to make representations about whether such an order was appropriate in the circumstances.

The Tribunal also ordered the employer to pay $20,000 in compensation for the intangible harm caused by the infringement of her rights under the Code. In doing so, it applied the following:

1. Quantifying intangible loss and distress is a difficult exercise.
2. The impact of the discriminatory action on the individual applicant’s subjective experience clearly has considerable weight in arriving at a compensatory order, although the impact may be difficult to assess, both because of individual differences and because of ways of self-expression, some of which may be linked to personal characteristics protected under the Code.
3. The concepts of “dignity” and “self-respect”, while certainly including factors that are subjective in nature, import considerations that are broader than the individual’s reaction to how he or she was treated.
4. It is also appropriate to apply a degree of objectivity in recognising and evaluating the importance of a violation of the Code.
5. The Tribunal has recognised that it should not set the quantum too low, since doing so would trivialize the social importance of the Code by effectively creating a "license fee" to discriminate

Conclusion

Once again, this case, while important for its discussion on the merits, is most illuminating in the discussion of remedies and orders.  It's actually a fascinating discussion and may signal, along with the other recent cases, a direction in awards that is being taken by the Tribunal.  If that is so, it should be of concern to employers.

Religious, Philanthropic, Educational (etc) Exception under the Code

The Ontario Divisional Court, on May 14, 2010 released its decision in Ontario Human Rights Commission v. Christian Horizons in which it considered whether a limited exception from discrimination found in section 24(1)(a) of the Ontario Human Rights Code applied.

Subsection 5(1) of the Code confers a right to equality in employment in the following terms:

Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

This right is not infringed if an institution comes within s. 24(1)(a), which reads:

The right under section 5 to equal treatment with respect to employment is not infringed where,

(a)   a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by their race, ancestry, place of origin, colour, ethnic origin, creed, sex, age, marital status or disability employs only, or gives preference in employment to, persons similarly identified if the qualification is a reasonable and bona fide qualification because of the nature of the employment.

As you'd expect, this is a narrow exception that should not apply in many cases, but what does it mean?  When does an organization bring itself withing the exception?  That's one of the issues that the Divisional Court had to decide.  The other being whether the organization allowed a poisoned work environment to exist and a consideration of the scope of remedies awarded by the Tribunal. 

Background

In 1995 the complainant, Ms. Heintz, began employment as a support worker at a community living residence operated by the employer.  Four years after beginning her employment with the employer, Ms. Heintz "came to an understanding of her sexual orientation and entered into a same sex relationship in October 1999.  In April 2000, she advised two co-workers of her relationship and subsequently, in answer to a question put by her supervisor, agreed that she was in a same sex relationship."

Ms. Heintz went on medical leave effective August 28, 2000, and on September 22, 2000, she resigned from her employment.

Christian Horizons conceded that it was discriminating against Ms. Heintz contrary to the Code unless it came within s. 24(1)(a).  The Human Rights Board of Inquiry (now Tribunal) concluded that Christian Horizons did not come within section 24(1)(a).  Furthermore, "The Tribunal also found that Christian Horizons had created a poisoned work environment in its treatment of Ms. Heintz after it became known that she was lesbian."

Divisional Court

The main issue was whether the Tribunal erred in its interpretation of section 24(1)(a) of the Code. 

In order for s. 24(1)(a) to be available the Court determined that the following had to exist:

1. Christian Horizons is a “religious organization”;
2. Christian Horizons is “primarily engaged in serving the interests of persons identified by” their creed and employs only people who are similarly identified; and
3. Religious adherence is a reasonable and bona fide qualification because of the nature of the employment.

While the Tribunal held that the first element was met, it concluded that the  second and third were not.

After conducting a thorough, and detailed analysis of the legislation, the applicable principles of interpretation, the Divisional Court concluded the the Tribunal erred when it found that the employer could not rely on the exemption "because of the nature of its activity and the clientele served" (point #2).

The Court held that the Tribunal had ignored the purpose of the exception which was "to confer a right to associate on certain groups so that they can join together to express their views and carry out their joint activities".

The Court further held that the Tribunal's interpretation of section 24(1)(a) was so narrow as to result in an absurd result that could not have been intended by the Legislature.  According to the Court:

If the Tribunal’s strict, plain language approach is correct, a religious institution will not be able to rely on s. 24(1)(a) in order to argue that religious adherence is a bona fide qualification, even with respect to those directing a religious missionary or charitable activity, if the activity is offered to those outside the particular faith community.  In effect, the religious character of the charitable mission would be rendered impossible if the mission served individuals outside of the faith group. 

The nature of the particular activity engaged in by a religious organization must be analyzed to determine whether it "is seen by the group as fundamentally a religious activity".  This must be followed by an assessment of whether that activity "furthers the religious purposes of the organization and its members, thus serving the interests of the members of the religious organization".

If the organization falls within the exemption, a Bona Fide Occupational Qualification ("BFOQ") assessment must follow.

Bona Fide Occupational Qualification

The Court went on to consider the so called BFOQ defence.  

The Supreme Court of Canada in Ontario (Human Rights Commission) v. Etobicoke (Borough),  discussed the BFOQ defence:

To be a bona fide occupational qualification and requirement a limitation, such as a mandatory retirement at a fixed age, must be imposed honestly, in good faith, and in the sincerely held belief that such limitation is imposed in the interests of the adequate performance of the work involved with all reasonable dispatch, safety and economy, and not for ulterior or extraneous reasons aimed at objectives which could defeat the purpose of the Code. In addition it must be related in an objective sense to the performance of the employment concerned, in that it is reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public. [emphasis added]

According to the Divisional Court:

A discriminatory qualification cannot be justified in the absence of a direct and substantial relationship between the qualification and the abilities, qualities or attributes needed to satisfactorily perform the particular job.  The Tribunal must consider the employment or job function of providing care and support to people with developmental disabilities and not extraneous or collateral circumstances (see Ontario (Human Rights Commission) v. London Monenco Consultants Limited, [1992] O.J. No. 1599 (C.A.) at para. 21).

In the circumstances, the Divisional Court held that the employer had failed to establish that a BFOQ defence existed in this case given the position of support worker held by Ms. Heintz:

.... from an objective perspective, the support workers are not actively involved in converting the residents to, or instilling in them, a belief in Evangelical Christianity.  There is nothing in the nature of the employment itself which would make it a necessary qualification of the job that support workers be prohibited from engaging in a same sex relationship.

The Court found that there was evidence to support the Tribunal's decision on this point. 

Poisoned Work Environment

The Court then went on to consider the Tribunal's decision regarding the creation of  a poisoned work environment.  The Court concluded that "there was evidence to support the Tribunal’s findings." though observing that their role was not to retry the case, merely to "determine whether the Tribunal’s decision was reasonable, based on the evidence."

Remedies

The Court then considered the Tribunal's remedies.  It did not interfere with the award of general and special damages, but did intervene and overturn some of the Tribunal's "public interest remedy" which would have required the employer to "develop and adopt an anti-discrimination and anti-harassment policy and a training program."  The Court narrowed this to require the employer to "develop a policy and provide training for its employees and managers that targets discrimination on the basis of sexual orientation".

The Court also found the Tribunal's decision to require the employer to cease imposing, as a condition of employment, adherence to a Life Style and Morality Statement to be over-broad.  The offending part of the Statement was the requirement that employees not engage in same sex relationships and the Court ordered this deleted.

Finally, the Court found the Tribunal's order which require a review of "all Christian Horizons’ employment policies in consultation with the Commission and, after receiving comments from the Commission and Ms. Heintz, approval by the Tribunal" to be over-reaching in that "the complaint was with respect to discrimination on the basis of sexual orientation".  Orders related to this ground, according to the Court, would be reasonable.

Conclusion

This is an interesting and helpful case when considering the analysis of the section 24(1)(a) exemption.  As can be seen, each case will have to be assessed on its own merits (right down to a consideration of whether, in the circumstances of the particular employment, a BFOQ exists). 

Further, the case is of interest because of the manner in which the Court dealt with the remedies awarded by the Tribunal, particularly the "public interest remedies" which, in some respects, it found to be overly broad having regard to the nature of the case.

Not Happy with Your Severance Deal.... Pick Your Forum Carefully

Many plant closures came out of the economic crisis.  In a unionized environment, the union and company will typically negotiate a closure agreement that will set out the manner in which the windup will be effected including, in some cases, severance.  Sometimes the employees want "more" and are not happy with the deal their union negotiated on their behalf.  They will try to get more - somehow, somewhere.

A number of employees sued their employer and union in Sidhu v. Affinia Canada Corporation claiming additional severance.  The employer brought a motion to dismiss the claim on the basis that the Court did not have jurisdiction over the subject matter of the dispute and that the proper forum for the resolution of the plaintiffs’ complaints was at arbitrator under the Collective Agreement or before the Ontario Labour Relations Board.

The company then met with Union representatives and negotiated a Plant Closure Agreement ("PCA") that included a provision dealing with severance pay that would be calculated in accordance with the Employment Standards Act, 2000.  Certain employees wanted more, and sued the union and employer.

The plaintiffs claimed that:

1. Affinia and the Union entered into the PCA secretly and without the knowledge and consent of Union members;
2. The defendants breached a duty of care to the plaintiffs;
3. The Union lacked the proper authority to enter into the PCA with Affinia;
4. The Union breached its “professional and fiduciary obligations” to the plaintiffs;
5. The negligence and breach of duty by the defendants caused losses to the plaintiffs; and,
6. The plaintiffs sought punitive damages against both defendants.

Counsel wrote asking that the plaintiffs discontinue their action on the basis that the Court had no jurisdiction.  The action was not discontinued and they brought this motion.

The leading case is Weber v. Ontario Hydro, written about numerous times on this blog.  The test according to the Supreme Court of Canada, is “where the dispute, regardless of how it may be characterized legally, arises under the collective agreement, then the jurisdiction to resolve it lies exclusively with the labour tribunal and the courts cannot try it.”

According to the Court, after analyzing the statement of claim:

"From these surrounding circumstances I conclude that, giving the Statement of Claim a broad and generous reading, the essential character of the plaintiffs’ complaint against Affinia is that they did not receive adequate compensation upon the termination of their employment."  

The Court went on to consider what was the effect of the PCA and stated:

"Although the PCA did not state that it formed part of the Collective Agreement, it is not possible to give meaning or operative effect to portions of the PCA unless it did."

In passing, I argued a case before the Ontario Labour Relations Board which concluded that the closure agreement, in the circumstances of that case, was a "collective agreement" within the meaning of the Labour Relations Act, 1995 because:

"The Closure Agreement, being a signed and dated written agreement governing the terms and conditions of work, which was ratified by a secret ballot vote of bargaining unit members, meets the basic statutory requirements of a collective agreement."

The Court in the Sidhu case concluded that it "has no jurisdiction over the plaintiffs’ claim against Affinia, and I therefore dismiss their claim against Affinia."

The plaintiffs also claimed that the union "had not represented them properly in respect of matters relating to the closure of the Plant".  The Court held that this claim fell within the exclusive jurisdiction of the Ontario Labour Relations Board.  For some reason, though, the union did not bring a motion to dismiss this claim and, in those circumstances, all the Court could do was "declare that this court lacks jurisdiction to hear the plaintiffs’ action against the Union."

When you're represented by a union, your recourse to the courts is very limited.  For example, as the Court noted in this case, "If a cause of action falls outside the collective agreement, such as a claim under a contract predating a collective agreement, the courts have jurisdiction over the claim."

Ontario Proposes the Open For Business Act

On May 17, the Open for Business Act was introduced in the Legislature. 

Through this broad and all-encompassing Bill, the Ministry of Labour is proposing amendments to, among other things, the Employment Standards Act, 2000 that would:

• Allow the Director of Employment Standards to require claimants to provide specific information and let their employer know about their Employment Standards complaint before the claim is assigned to an officer.
• Authorize employment standards officers to attempt settlements of complaints.
• Allow officers to make decisions on claims when parties fail to attend decision-making meetings or provide evidence on time.

These initiatives include:

• Launching a task force in August 2010 to eliminate the backlog of 14,000 claims in two years.
• The new online severance pay decision tool for employers and employees.
• The future launch of a termination of employment/temporary layoff tool that determines when a layoff becomes a termination, the termination date and any termination pay owing.

There are some significant amendments set out in the Bill that, if passed, will make the somewhat delay-ridden employment standards system more efficient.

Additional comment can be found at First Reference Talks and in this Backgrounder.

Another Blog Anniversary Comes and Goes

I guess I missed the anniversary of the blog (what's the saying, the older you get, the more you try to forget the birthdays?).  Seven years is a long time.  A lot has happened in 7 years.  More recently, lots of truly amazing professional changes.

Back in 2003 there were a handful of labour (actually labor) and employment law blogs (many are still going strong - Jotting's by a Labor Lawyer, George's Employment Law Blog and Ross Runkel) now, well, there are dozens (check out the blogroll) including some great Canadian blogs Employment & Human Rights Law in Canada,  Human Rights in the Workplace, Greg Gowe's Labour and Employment Law Blog and Doorey's Workplace Law Blog.

Posting here has been lighter than in the past, but I expect more consistent posting this year, (famous last words).  Thanks for all those who continue to follow this blog and email with encouragement, comments and ideas.