Articles 2019

The #metoo movement has crystallized the need for employers to actively mitigate the risk of sexual harassment and discrimination class actions. The flood of sexual harassment class actions in the U.S. demonstrates the urgency of this issue. In this article, the authors identify trends emerging from U.S. sexual harassment and discrimination class actions which are or could be making their way to Canada; and they identify lessons learned and proactive advice for employers.

In its recent decision in Watson v. The Governing Council of the Salvation Army of Canada, the Ontario Superior Court of Justice found that sexual harassment, intimidation and other "improper conduct" at work were not connected to employment. Inna Koldorf reviews this decision, highlighting the implications for employers.

In the wake of the #MeToo campaign, which has grown to include several shocking revelations of sexual harassment on Parliament Hill, the Government of Canada has introduced Bill C-65 – An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1.

The recent case of USW Locals 7884 and 9346 v Teck Coal Ltd (Fording River and Elkview Operations) affirms the general arbitral consensus that, absent sufficient evidence of a workplace problem with drug and alcohol use, the implementation of a random drug and alcohol testing policy is likely to be dismissed as an unreasonable exercise of management rights.

A recent Alberta Court of Appeal decision ruled that a clause indicating that upon termination the employee would only receive notice “in accordance with the provincial legislation for the province of employment" was not sufficient to oust the employee's entitlement to common law reasonable notice.

A recent Ontario Court of Appeal decision confirmed that that test set out in Paquette continues to govern the determination of whether an employee is entitled to a bonus over the notice period. Further, the assessment of an employee’s damages on account of lost benefits is not based on the employee’s replacement costs of those benefits over the notice period, but rather on the pecuniary value of lost benefits flowing from termination.

In Manak v Workers' Compensation Board of British Columbia, 2018 BCSC 182, the British Columbia Supreme Court held that where a managerial employee breaches his or her confidentiality obligations, the employer may have just cause for dismissal. This decision not only shows that breach of confidentiality obligations can constitute just cause for dismissal, but also emphasizes the importance of a properly executed release.

Employees are protected from all workplace harassment according to the Supreme Court of Canada in a recent case in British Columbia.