employment & labour breakfast for the mind seminar

Employment & LabourBreakfast for the Mind

October 24, 2013

Update on Foreign Workers LMO Requirements

Colleen VervillePartner

What is an LMO?

• It is a document called a positive Labour Market Opinion (LMO) issued by Human Resources and Skills Development Canada (HRSDC) which states that hiring a foreign worker will have a positive or neutral effect on the Canadian Labour Market

• All Canadian Employers must secure a positive LMO before they can hire and pursue a work permit for a temporary foreign worker, unless the foreign worker or the job being offered in Canada can be classified as exempt from this requirement

What are the Exemptions from Receiving an LMO?

There are a number of scenarios in which an Employer may be exempt from the requirements to secure an LMO. These include:

1. North American Free Trade Agreement (NAFTA)

• Workers covered under the North American Free Trade Agreement (NAFTA). These workers are either American or Mexican citizens and fit into one of the following NAFTA categories:• Business visitor;

• Professional;

• Intra-company transferee; and,

• Management Consultant.

2. Temporary Foreign Worker (TFW) Annex Project (Alberta Pilot Project)

• This Pilot project had the application deadline extended to July 31, 2014, thereby extending the participation period to July 31, 2017.

• The Pilot Project applies to the following approved Pilot occupations:

1) Steamfitter/pipefitter (NOC 7252);

2) Welder (NOC 7265);

3) Heavy Duty Equipment Mechanic (NOC 7312);

4) Ironworker (NOC 7264);

5) Millwright and Industrial Mechanic (NOC 7311);

6) Carpenter (NOC 7271); and,

7) Estimator (NOC 2234).

• To qualify for this Pilot Project, the TFW must have an initial job offer from an Alberta Employer or an Employer acting on behalf of a recognized Group of Employers under the CIC – HRSDC GOE Pilot

• The job offer must contain the prevailing wage rate paid to Canadians in the same occupation in the region

• TFW applicants who have a job offer in one of the Pilot Occupations for a position located in Alberta are eligible for one (1) of the following: • A one (1) year work permit that is both occupation specific and employer

specific. The TFW must be in possession of a valid Alberta Apprenticeship and Industry Training (AAIT) approval letter and valid job offer;

• A two (2) year occupation specific open work permit for the Province of Alberta. To obtain this the TFW must be a certified journeyman or be approved by AAIT as having a recognized or equivalent trade certificate; and,

• A short term employer specific work permit issued for the duration authorized by AAIT (generally does not exceed ninety (90) days). The TFW must have an AAIT Authorization letter and must be obtained prior to the TFW coming to Canada.

What are the New LMO Procedures?

If one of the exemptions do not apply then all Canadian Employers must comply with the following new LMO procedures that came into effect on July 31, 2013.

1. All LMO applications (with the exception of certain seasonal agricultural workers) will require a fee payment of $275 for each position.

2. The only acceptable languages that can be identified as a job requirement are English and French unless employers can demonstrate that another language is essential for the job

3. New advertising requirements for low skilled positions (NOC C and D) and for high skilled positions (NOC O, A or B) require that employers make greater efforts to hire Canadians before hiring foreign workers:

• National Occupational Classification (NOC)• NOC C = Occupations usually require secondary school and /or occupation

specific

• NOC D = On the job training usually provided

• NOC O = Management Occupations(skill level “A”)

• NOC A = Occupations usually require University Education

• NOC B = Occupations usually require College Education or Apprenticeship Training

(3 continued)

• The postings must be active for 4 weeks (no longer 14 days) from the day the posting is available to the public;

• Canada Job Bank posting must be active of a minimum of 4 weeks and until the Employer receives a positive LMO;

• 2 additional postings consistent with normal practice for the occupation are required for a minimum of 4 weeks• 1 of which must be National in scope and the other may be more Locally

focused

(3 continued)

• Examples of additional posting include: • Print media such as newspapers, journals, magazines, specialized journals,

professional association magazines, newsletters;

• General employment websites such as monster, Workopolis, vault, canadastop100 etc.; and,

• Specialized websites for specialized occupations (such as accounting, marketing, biotechnology, education, engineering etc.).

• The Advertisement must include the following: • Company operating name;

• Business address;

• Title of position;

• Job duties (for each position, if advertising more than one vacancy);

• Terms of employment (e.g. project based, permanent position);

• Wage;

• Benefits package being offered (if applicable);

• Location of work (local area, city or town);

• Contact information: telephone number, cell phone number, email address, fax number, or mailing address; and

• Skills requirements: • Education

• Work experience

4. The new LMO application form EMP 5517 now asks questions regarding the impact on the Canadian job market and outsourcing of jobs. In addition to questions on outsourcing, it includes questions relating to the hiring of other foreign workers in LMO exempt categories (such as intra-company transfers, NAFTA Professionals etc.)

Hidden Dangers in Employment Contracts and Terminations – What you don’t know can hurt you

Adrian Elmslie & Fausto FranceschiPartners

Part 1Hidden Dangers in Employment Contracts

Introduction

• Lovely v. Prestige Travel et al., 2013 ABQB 467

• Involves a claim for wrongful dismissal

• Highlights the hidden perils in “loose” negotiations and the use of fixed term employment agreements

Facts - Lovely v. Prestige Travel

• Mr. Lovely was an American citizen who had over twenty years’ experience in the travel business and who was interested in starting a travel agency in Edmonton

• In early 2008 Mr. Lovely met with one of the owners of Prestige Travel who wanted to hire Mr. Lovely to turn the business around

• Mr. Lovely was optimistic that he could do this

• The parties had several meetings to work out Mr. Lovely’s terms of employment

• March 11, 2008 - Mr. Lovely indicated that because it would take him two years to turn the business around, he wanted to ensure that he was employed under a two year employment contract

• March 13, 2008 - Mr. Lovely provided the owners of Prestige Travel with a written memorandum entitled “Prestige Travel Employment Contract” which recorded his understanding of the employment terms discussed at the March 11, 2008 meeting

• Negotiations produced some revisions to the March 13, 2008 term sheet

• March 17, 2008 – One of the owners informed Mr. Lovely at a lunch meeting that he and the other owners were excited about the project and wanted Mr. Lovely to start work right away

• Mr. Lovely indicated that he could start right away if there was a written employment contract in place before he started

• The parties finalized the terms of employment over lunch and Mr. Lovely was asked to prepare an agreement

• March 20, 2008 - Mr. Lovely met with another owner and presented him with two documents – a “Prestige Travel Employment Contract” and a “Prestige Travel Job Description”

• The employment contract contained the terms that had been discussed at the March 17, 2008 lunch meeting and included a term that required Prestige to pay Mr. Lovely one year’s base salary if his employment was terminated before the end of March 2010

• The owner signed both the March 20, 2008 employment contract and the job description, but both parties agreed that the agreement was incomplete and would require some further discussion

• April 2008 - Mr. Lovely was presented with a draft employment contract from the owners, which included a clause that allowed Prestige to terminate the contract without notice after one year if Mr. Lovely failed to meet certain undefined objectives

• The assessment of whether the objectives had been met and the decision to terminate were left within the absolute discretion of Prestige

• The proposed April 2008 agreement was never signed and no objectives were ever provided to Mr. Lovely

• However, there was overlap between the March 20, 2008 contract and the April 2008 proposal. Both documents stated that:• Employment ends on March 31, 2010;

• Annual salary - $75,000

• Entitlement to a substantial bonus;

• Employee benefits;

• 3 weeks vacation; and,

• Summary dismissal for “illegal or overtly unethical actions”

• Mr. Lovely’s employment was terminated on March 31, 2009

• The owners alleged that in accordance with the April 2008 proposal they had an unqualified right to dismiss Mr. Lovely summarily without notice or termination pay if they were dissatisfied with the performance of the travel business he led

• Mr. Lovely was of the view that the termination provision in the March 20, 2008 employment contract governed and required the employer to pay him one year’s base salary unless the termination was attributable to the employee’s “illegal or overtly unethical actions”

Issues

• Mr. Lovely sued for wrongful dismissal claiming one year’s salary.

• In determining Mr. Lovely’s entitlements, the court addresses a number of principles that apply to written employment contracts which in turn highlight some of the hidden dangers that can accompany incomplete negotiations and fixed term employment agreements.

1) Employment Agreements May Modify Common Law Obligations

• The presumption in Canada is that all employment agreements are for an indefinite term and can only be terminated upon reasonable notice in the absence of cause

• The common law principle that employment agreements can only be terminated on reasonable notice is a rebuttable presumption if the contract of employment clearly specifies some other period of notice, whether expressly or impliedly

• Both parties claimed that there were agreements in place which modified the normal common law obligations

2) In Order to Modify Common Law Obligations, the Employment Agreement Must be Enforceable

• The court determined that the April 2008 proposal was unenforceable for two reasons

• First, there was no “agreement”. The April 2008 proposal was never signed and there was no evidence that Mr. Lovely had orally agreed to the termination provisions.

• Second, the April 2008 proposal was contrary to the Employment Standards Code in that it allowed for summary termination without cause

• Where termination provisions are contrary to the Employment Standards Code, those provisions are null and void

3) Contract Negotiations Can Result in Enforceable Employment Agreements

• After determining that the April 2008 proposal was not enforceable the court concluded that Mr. Lovely was entitled to one year’s base salary

• The court outlines three ways that this conclusion could be reached

• The first basis upon with Mr. Lovely was entitled to one year’s base salary was the March 20, 2008 agreement

3) Contract Negotiations Can Result in Enforceable Employment Agreements

• Although incomplete, the March 20, 2008 agreement contained the key employment terms and was sufficient to constitute an enforceable employment agreement

• The agreement contained a termination clause that required the payment of one year’s base salary if the agreement was terminated before the end of the 2 year term. This clause formed part of a signed contract and was enforceable.

• Further, because the contract contained an express termination provision without mention of mitigation, Mr. Lovely was under no obligation to mitigate his damages

4) Damages for the Early Termination of a Fixed Term Contract are Equal to the Balance of the Term.

• The second basis upon which Mr. Lovely was entitled to one year’s base salary was through the obligations arising out of a fixed term employment contract

• The court found that even if the March 20, 2008 agreement was unenforceable, there was sufficient overlap between the April 2008 proposal and the March 20, 2008 contract to form the basis of an employment agreement

• This was sufficient for the court to conclude that one of the agreed upon terms was that Mr. Lovely’s employment would end March 31, 2010

• As a result, the court concluded that there was an agreement that Mr. Lovely’s contract was for a fixed term of 2 years.

• The two year fixed term was significant in two ways.

• First, an employer who dismisses an employee before a fixed-term contract has expired must pay the dismissed employee the salary she would have received had she worked until the end date unless there is a provision which states otherwise

• Second, the court suggests that in such circumstances there may not be an obligation on the part of the plaintiff to mitigate

5) With No Agreement, Common Law Obligations Will Apply

• The final basis upon which Mr. Lovely was entitled to one year’s base salary was through the application of common law reasonable notice

• The court concluded that had there been no agreement on the fixed term or had it found that the fixed term agreement was not enforceable due to the Statute of Frauds, Mr. Lovely’s damages would be assessed in accordance with the common law

• Mr. Lovely’s common law entitlement was set at 12 months

Lessons Learned

1. Employment agreements can be useful in limiting employer liability if properly drafted, but can actually increase liability if improperly drafted

2. Negotiations can form the foundation for an employment contract even if they are incomplete or if the parties intend to ultimately enter into a written agreement

3. Fixed term contracts tend to increase an employer’s exposure to liability

Lessons Learned

4. If a fixed term employment is contemplated, it should include early termination provisions

5. Early termination provisions must meet or exceed the Employment Standards Code minimum obligations

Bonus Lesson:

Continuously renewed fixed term contracts do not allow an employer to avoid common law notice obligations

Part 2Hidden Dangers in Terminations

Hidden Danger - Enticement

• When a Plaintiff is enticed to leave his or her current position by a new employer, the reasonable notice period owed to the Plaintiff by that new employer in the event of a subsequent termination can be increased [Crisall v. Western Pontiac Buick GMC (1999) Ltd., 2003 ABQB 255]

• Increasing the notice period safeguards the employee’s reliance and expectation interest

What constitutes enticement?

• Discussions between a potential employee and employer always involve an element of persuasion by both parties

• To reach the level of enticement that attracts an elevated award for reasonable notice “something beyond the ordinary degree of persuasion must be shown” [Crisall]

• Enticement generally requires an unsolicited offer of employment to a person secure in his or her employment with a different company. The cases refer to “active recruitment”

• Misleading representations by an employer can also result in a finding of enticement

• As Don Corleone would say, “Make him an offer he can’t refuse”!

• Actions of the Defendant in Crisall did not amount to much and yet enticement was found

• Crisall was a Business Manager for Denny Andrews Ford for 10 months – she was contacted by the GM of a rival dealership and met with him “with some reluctance”

• Second interview two weeks later where Plaintiff stated she did not intend to leave her position with Denny Andrews

• Money talks – offered a 6% commission increase and she accepted

• Two months after beginning her new job the company was purchased by the Defendant and she was terminated shortly thereafter with one week’s severance

• Court found the actions of the Defendant’s predecessor went beyond the ordinary degree of persuasion and constituted enticement, which increased the notice period

• Awarded 3 months’ pay

Kozak v. Montreal Engineering Co. [1985] 2 W.W.R. 641 (Alta Q.B.)

• Plaintiff induced to leave England to commence employment in Calgary

• Terminated after 15 months of employment with 30 days’ notice

• Court considered enticement and the newspaper ad in England that referred to “long term career opportunities in Canada”

• Prospects in Canada expressed to the employee in “very buoyant terms”

• Court found that enticement to move from England to Canada on the prospects of long-term employment added 2 months to the notice period for a total of 5 months

• Representations to the prospective employee were misleading

• Merely placing an ad for an employment opportunity and arranging subsequent interviews for those who reply will not amount to enticement that will attract an elevated damages award. But, if an employer over promises to the point of being misleading, enticement can be found.

How long does a person have to work at their new employment before a court will refuse to consider enticement?

• Impact of enticement on the notice period diminishes over time

• Enticement increased the notice period after employment with new employer of 4 years and 9 months. [Gillies v. Goldman Sachs Canada Inc., 2001 BCCA 683]

• Enticement did not increase the Plaintiff’s notice period after 8 years of employment. [Wadmosday Enterprises Inc. v. Modern Building Cleaning Inc. 1999 Carswell BC 1170 (SC)]

• Courts are willing to award elevated damages for enticement up to approximately 5 years after beginning employment with the new employer

• The longer an employee remains with the new employer, the less likely they are considered to be prejudiced by the enticement

Impact of enticement on length of reasonable notice

No specific formula that tells you what the appropriate increase in notice should be in any given enticement scenario

Each case is to be assessed on its own facts

Courts:

1. Focus on the amount of disruption caused in the employee’s life due to the enticement; and,

2. The expectation of the employee based on the representations made by the employer.

How long does a person have to work at their new employment before a court will refuse to consider enticement?

• Some cases take the entirety of the service with the previous employer into account in determining the notice period. [Johnson v. James Western Star Ltd., 2001 BCSC 1008 aff’d by 2003 BCCA 151]

• 21 years of previous service combined with 3.5 years of service with new employer resulted in award of 24 months’ notice

• Most cases simply look at enticement as one more factor to consider (in addition to age, length of service, duties and responsibilities and earnings) in assessing the reasonable notice period

Lessons Learned

• Do not over promise

• Do not embellish the job-opportunity and long term employment prospects

• Be realistic when discussing career advancement opportunities and when discussing job responsibilities, security and compensation with a prospective employee

• Make enticement a non-factor by inserting termination provisions into your job offers!

Case Law Updates: Drug and Alcohol Testing,General Damage Awards &Reinstatement

Lauren IgnaczAssociate

Drug and Alcohol Testing

• Communications, Energy and Paperworks’ Union of Canada, Local 30 v. Irving Pulp & Paper Ltd. (2013 SCC 34)

• Facts• Irving, Unionized Kraft Papermill

• 2006 – Unilaterally adopted a drug and alcohol policy without consulting the union

• 10% of employees in safety-sensitive positions would be randomly selected

• Employees could also be tested for reasonable cause, post-incident or part of a return to work plan

• Positive Test = Disciplinary action, including dismissal

• Irving randomly tested an employee who abstained from alcohol

• Union challenged the ‘random’ and ‘without cause’ testing on the employees’ behalf

Drug and Alcohol Testing (Irving cont’d)

• The Challenge• After 22 months of the policy, no employees had tested positive on a random or

reasonable cause test

• Arbitration Board – While the workplace was dangerous, it was not “ultra-dangerous”. Policy was unjustified due to the lack of evidence of an existing problem with alcohol use in the workplace.

• Court of Queen’s Bench – Found the Arbitration Board’s decision to be unreasonable

• Court of Appeal – Agreed with the Court of Queen’s Bench. Irving Pulp & Paper Kraft Mill was “inherently dangerous”, therefore no evidence of existing alcohol problems was required to support the policy.

Drug and Alcohol Testing (Irving cont’d)

• Supreme Court Decision• Split Decision (6:3) held that the Arbitration Board’s decision was reasonable

• Any rule/policy unilaterally imposed by an employer must be consistent with the collective agreement and must be reasonable

• Need for the rule/policy must outweigh the harmful impact on employees’ privacy rights

• In Irving, safety gains were uncertain to minimal, while the impact on employees’ privacy was severe

• To be successful, must be a “proportionate response” in light of safety concerns and privacy interests, especially where unilaterally imposed

Drug and Alcohol Testing - Conclusions

• Employers are free to negotiate a Drug & Alcohol Testing Policy with the unions

• Where unilaterally imposed, must be justified:• Evidence of a real safety risk as well as a general problem with alcohol or drug

use in the workplace

• Same for non-unionized workplaces• High value on employee’s privacy

• Clear that without an identifiable drug and alcohol problem in the workplace, a random Drug & Alcohol Testing Policy will be vulnerable to challenge• Document incidents in order to provide the proper evidence to justify the testing

General Damage Awards in Human Rights Complaints

• Walsh v Mobile Oil Canada, (2013 ABQB 527)

• Walsh suffered a stress disorder as a result of her employment• 1st Complaint: Discrimination based on gender: unequal pay, emotional

harassment • Complaint dismissed Employment terminated

• Second complaint, employer retaliated against first complaint by terminating her employment

• HR Tribunal awarded $35,000 in general damages • $10,000 for the 1st complaint

• $25,000 for the 2nd complaint

General Damage Awards in Human Rights Complaints (Walsh, cont’d)

• Mobile Oil appealed: “There is no precedent for a $25,000 award”

• The purpose of the Human Rights Act is to compensate the victim, as in tort law

• There is no maximum award stipulated by the Act

• Tort law award would be > $40,000

• High awards encourage respect for the legislation

• Although no cap, General Damage awards have historically been nominal

• Tribunals have used caps established by other provinces as a guideline

• Agreed that there is no statutory limit in Alberta

• Did not agree with the Tort Law analysis

• Factors:• Effect of the discrimination on the complainant

• Whether the discrimination was engaged in willfully or recklessly

• Walsh:• Mobil’s conduct was highly damaging to Walsh: Emotional distress leading to

depression

• The willfulness, duration and damaging impact of Mobil’s conduct was egregious

• Award upheld (Should have been higher)

General Damage Awards in Human Rights Complaints

• Conclusions

• Court of Appeal upheld the high award, expect to see higher awards in the future

• Awards are discretionary, difficult to overrule unless “unreasonable”

• Calculate your risk when dealing with a HR complaint

Reinstatement

• Cowling v. Her Majesty the Queen in Right of Alberta as represented by Alberta Employment and Immigration, (2012 AHRC 12 )

• Facts• Cowling hired (59 years old) Mediation Services, 3 consecutive contracts,

position was ‘downsized’

• Cowling applied for downsized position. Unsuccessful despite “fully meeting expectations”.

• Human Rights complaint based on discrimination for age (67 years old). Requested reinstatement.

Reinstatement

• Outcome• The tribunal found that the non-renewal of contractual employment of a 67-

year-old employee was due to age discrimination in contravention of the Alberta Human Rights Act

• Ordered Cowling to be reinstated for a 1 year contract, lost wages, general damages $15,000

Reinstatement

• REINSTATEMENT• Usually not a workable solution, but the facts of this case supported it:

1. The trust essential in employment relationships did not appear to be irrevocably damaged. Cowling harbored no ill will. Alberta’s witnesses did not harbor animosity.

2. There is currently an open position, the ‘downsized position’

3. Even if relations were bad, the large and varied workforce of the employer would allow Cowling to be placed in another work setting

4. Cowling had no work performance issues. She received positive reviews.

Occupational Health and Safety Update

Cristina WendelPartner

OH&S Update - Overview

• Recent and upcoming changes to Alberta’s occupational health and safety legislation

• Due diligence defence – the latest from the Alberta Court of Appeal

• Harassment as grounds for refusing work

Recent and upcoming legislative changes – administrative penalties and ticketing

OH&S Compliance/Enforcement

• The Government’s OH&S Compliance Policy is based on the concept of internal responsibility

• Various parties with duties and obligations under the OH&S legislation share responsibility and accountability for occupational health and safety

• The Government’s OH&S Branch undertakes compliance activities to ensure the system is working, and enforces the OH&S legislation

• A variety of tools are available to OH&S Officers when enforcing the OH&S legislation

OH&S Compliance/Enforcement Options

Four categories of tools for dealing with non-compliance or violations of the OH&S legislation are available to Officers:

• Education

• Enforcement/Compliance

• Enhanced Enforcement/Enhanced Compliance

• Prosecution

Compliance Options Prior to Changes

• Prior to recent changes to the OH&S legislation, the primary compliance options available for an OH&S Officer were to issue an Order or commence a prosecution

• Recent and upcoming changes provide additional compliance options to OH&S Officers – administrative penalties and tickets

Administrative Penalties

• Amendments to the OH&S legislation came into force on October 1, 2013

• An OH&S Officer can now issue administrative penalties against any party regulated by the OH&S legislation for violating or failing to comply with the legislation

• Employers, workers, contractors, prime contractors, and suppliers

Administrative Penalties (cont’d)

• The penalty may be up to $10,000 per violation per day

• The amount of the penalty is determined by the OH&S officer based on:• The seriousness of the contravention or non-compliance

• The risk of harm

• Any other relevant factors

Administrative Penalties (cont’d)

• Parties are given at least 30 days to pay

• The administrative penalty may be appealed to the OH&S Council

• A party cannot be charged with an offence for the same contravention or non-compliance

• 2 year limitation period

• Can be enforced as a judgment

Tickets

• As of January 1, 2014, further changes to Alberta’s OH&S legislation will come into force which provide a new compliance option for OH&S Officers – tickets

• OH&S Officers will be able to issue tickets to workers or employers who are in contravention of certain listed provisions of the OH&S legislation

• Tickets will range from $100 to $500

• Tickets will be essentially the same as traffic tickets

• given on the spot

• can plead not guilty and go to Court

Due Diligence Defence – R v. XI Technologies Inc.

Facts – R v. XI Technologies Inc.

• Incident arose at a customer appreciation event during the Calgary Stampede on July 12, 2007

• XI Technologies had rented a calf roping machine to entertain clients

• The machine was delivered by the supplier, Radar’s Rentals, without an operator or instruction manual

• XI Technologies employees figured out how to operate the machine

Facts – R v. XI Technologies Inc. (cont’d)

• The machine was not functioning properly – it needed an operator to manually disengage a hinge hook which held the calf in place

• A rider prematurely released the calf, causing a steel lever to spring forward striking a XI Technologies worker, Nathan Shair, in the head

• Shair died as a result

Charges against XI Technologies

• Count 1 – failed to ensure the health and safety of its workers

• Count 2 – failed to ensure that all equipment used at the work site would safely perform the function for which it was intended or designed

What about Radar’s Rentals?

• Radar’s Rentals as the supplier of the machine was charged with failing to ensure that the equipment it supplied complied with the OH&S legislation

• Radar’s Rentals applied to quash the charge prior to trial, based on the wording of the particulars provided by the Crown

• The Court agreed – the particulars referenced the wrong section of the legislation (R v. 402485 Alberta Ltd., 2011 ABPC 91)

• The limitation period for commencing a prosecution had since expired

Trial Decision – R v. XI Technologies Inc., 2011 ABPC 313

• Accepted that Shair was engaged in an occupation at the material time

• Determined that the machine was used at a work site for a business purpose

• The Crown had proven the actus reus, thus it was up to XI Technologies to establish a due diligence defence

Trial Decision – Due Diligence

• XI Technologies had done all that it could to ensure that Shair was safe

• The accident was not foreseeable

• The risks were obvious only with the benefit of hindsight, not to a reasonable person at the time

Summary Conviction Appeal Decision – R v. XI Technologies Inc., 2012 ABQB 549

• The Crown appealed the acquittal

• The Court allowed the appeal and entered convictions on both counts against XI Technologies

• The trial judge had properly identified the test for due diligence

• The trial judge’s verdict was unreasonable as she failed to properly apply the law to the facts as she had found them

Summary Conviction Appeal Decision - Liability

• The potential danger of being struck by the lever upon a premature release was reasonably foreseeable

• Liability was due to XI Technologies’ decision to continue operating the machine once the danger was apparent

• XI Technologies could not rely on the event organizer providing a safe ride

Court of Appeal Decision– R v. XI Technologies Inc., 2013 ABCA 282

• XI Technologies appealed from the Summary Conviction Appeal decision

• The issue was whether the trial judge’s verdict was unreasonable

• The Court of Appeal held that the trial judge’s conclusion was inconsistent with the evidence

Court of Appeal Decision

• The trial judge’s verdict that XI Technologies was duly diligent was unreasonable

• This verdict was inconsistent with the evidence that XI Technologies knew the machine was not working properly and required the operator to reach in to manually detach the hinge hook

• The trial judge had concluded that the possibility of Shair reaching into the machine at the precise moment of a premature release was not remote

• This conclusion was incompatible with her finding that the risk was only foreseeable with the benefit of hindsight

• The test for foreseeability was whether the danger was reasonably apparent to a reasonable person in the circumstances – not to a specific worker

What Does This Mean for Employers?

• Confirms the high onus on employers to ensure the safety of its workers

• Due diligence must be determined by objectively examining the employer’s conduct against that of a reasonable employer in the circumstances

• The legal test for due diligence includes an assessment of foreseeability

• For a potential danger to be foreseeable, there must be at least a reasonable prospect or expectation that it will arise

• A supplier’s breaches will not relieve an employer of liability

• An employer’s obligations may extend beyond the traditional work site and will not be limited strictly to “work” activities

Can an Employee Refuse Work on the Basis of Harassment – Nunavut v. Worker’s Safety and Compensation Commission (WSCC)

The Right to Refuse Work

• Section 35 of Alberta’s OH&S Act gives workers the right to refuse to do unsafe work

• The worker must have reasonable and probable grounds to believe there is an “imminent danger” to the health and safety of the worker or another worker

• An “imminent danger” is defined as a danger that is not normal for the occupation, or a danger under which a person engaged in the occupation would not normally carry out the work

• The worker must notify the employer as soon as practical of the refusal and the reason for the refusal

The Right to Refuse Work (cont’d)

• The employer is required to investigate and take action to eliminate the imminent danger

• If the worker believes there are reasonable grounds to continue to refuse to do the work, the worker can file a complaint with an OH&S Officer who will investigate

• Section 36 of the OH&S Act prohibits disciplinary action against a worker acting in compliance with the OH&S legislation

Nunavut v. WSCC, 2013 NUCJ 11 - Facts

• A worker, Debbie Jenkins, a wildlife biologist with the government of Nunavut, refused to work on the basis that she was being harassed by another worker

• She had made several complaints against the co-worker to the Government as her employer

• The Government followed its harassment policy and disciplined the co-worker, including issuing three suspensions

• After the third suspension, Jenkins refused to return to work and reported that to the WSCC

Nunavut v. WSCC - Facts

• The Government investigated but was hampered by Jenkins’ refusal to cooperate

• A Safety Officer employed with the WSCC undertook an investigation and upheld the work refusal

• He found that Jenkins was subjected to harassment which was an unusual danger under the Nunavut Safety Act

• The Safety Officer’s decision was appealed to the Chief Safety Officer who dismissed the appeal

• The Government sought judicial review

Nunavut v. WSCC - Decision

• The Court determined that the Chief Safety Officer’s decision that workplace harassment was an unusual danger was not reasonable

• The Safety Act was “dated” legislation which was silent on workplace violence and harassment

• Under the Safety Act, a Safety Officer could not issue an order to stop harassment

• To permit work refusals due to workplace harassment, workers who were being harassed would have no remedy under the Safety Act except to refuse work. This was not reasonable.

Nunavut v. WSCC - Decision

• The safety legislation was directed towards physical hazards

• It was up to the Legislature to decide whether or not to address issues of workplace violence and harassment

Would an Alberta Court Agree?

• The definition of “imminent danger” in Alberta’s OH&S Act is similar to that for “unusual danger” in Nunavut’s Safety Act

• In Alberta the OH&S legislation does not specifically reference workplace harassment. However, it does deal with workplace violence and imposes certain obligations on employers.

• “Violence” is defined as the “threatened, attempted or actual conduct of a person that causes or is likely to cause physical injury”

Would an Alberta Court Agree?

• In the appropriate circumstances, this definition could potentially encompass workplace harassment

• requires that there be an element of physical injury - whether threatened, attempted or actual

• Absent this element, harassment likely would not properly form the basis for a refusal to work

Questions?

Thank you! Adrian Elmslie adrian.elmslie@dentons.com 780 423 7364Fausto Franceschi fausto.franceschi@dentons.com 780 423 7348Joe Hunder joseph.hunder@dentons.com 780 423 7354Cristina Wendel cristina.wendel@dentons.com 780 423 7353Colleen Verville colleen.verville@dentons.com 780 423 7103Alison Walsh alison.walsh@dentons.com 780 423 7147Lauren Ignacz lauren.ignacz@dentons.com 780 423 7252

employment & labour breakfast for the mind seminar

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