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By MacLeod Law Firm, April 22, 2013 4:05 pm

At MacLeod Law Firm, we restrict our practice to labour and employment law. There are many statutes that apply to employees and employers and only a firm specializing in this area understands these numerous laws and how they apply and more importantly knows the exceptions to these general obligations. These exceptions can save employers money and allow greater management flexibility.

Legal obligations imposed on Employers that do not necessarily apply to all Employees

For example, under Ontario’s Employment Standards Act (ESA):

• dentists, doctors, lawyers, chiropractors and architects are 5 of at least twelve different types of employees who are not entitled to certain pay like overtime pay;
• these same 12 professionals and registered practitioners are not entitled to certain pay;
• certain persons like persons who are training and certain co-op students are not required to be paid;
• some employees are exempt from or can be paid less than the minimum wage of $10.25/hr;

Wouldn’t it be helpful and cost-effective for these practitioners to know this at the time of hiring or staff layoffs?

Legal Obligations Imposed on Some Employers that do not apply to all Employer

For example, property management and “building services” have one section of the ESA devoted just to them and relate only to a building.

Under this section of the ESA, when one property management company takes over from another and does not employ all the original staff, the new provider must generally provide termination pay and severance pay. In other words, the new provider must pay termination and severance pay to a person it has never employed!

Of course, just like every other law, there are exceptions to this general rule. For example, this obligation does not apply to an employee who refuses an offer of employment with the new provider that is reasonable in the circumstances.

Wouldn’t it be helpful and cost-effective for property managers to factor this into the contract negotiations?

Exceptions – The Devil is in the Details

Each year, a book called “Ontario Labour & Employment Legislation” is published. The 2012 edition is 1297 pages long and includes 14 employment laws and numerous associated regulations.

In an effort to keep you current with recent changes to Ontario employment law, MacLeod Law Firm publishes regular articles on our website.

Recent changes to statute and common employment law that an employer should know are the following:

1. The provincial government regularly amends existing laws and introduces new laws. This is called statute law. Recent blogs discussing changes to statute law include AODA and Bill 30 .
2. Ontario judges regularly change the law. This is called judge made law or the common law. Recent blogs on changes to the common law include Monitoring Employee Emails and , Wrongful Dismissal Update: What is Just Cause?

If you have any employment law questions, please contact MacLeod Law Firm at 1 (888) 640-1728 or at inquiry@macleodlawfirm.ca. To subscribe to our blog for employers, click here

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By MacLeod Law Firm, March 25, 2013 9:25 am

A New Right to Privacy – Employers May Face Liability for Monitoring Employees E-mails

Today, it is common for employees to browse the Internet and handle personal emails on their company computers and for employers to monitor this activity. Employers will need to think twice about this as a result of two important court decisions in 2012.

A New Right to Privacy

Canadian courts were reluctant to recognize a common law right to privacy until January, 2012 when the Ontario Court of Appeal recognized the right to privacy in a new tort called the  “inclusion upon seclusion”. [Jones v. Tsige, 2012 ONCA 32 (CanLII)]

To obtain damages for this new tort, a person must prove: (i) the actions were intentional;
(ii) the person/entity must have invaded, without lawful justification, the plaintiff’s private
 affairs or concerns;
and, (iii) a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

An Employee’s Reasonable Expectation of Privacy

The second case from last year came in October when the Supreme Court of Canada in R v. Cole, 2012 SCC 53 (CanLII), considered an employee’s privacy rights under the Charter of Rights and Freedoms,  and observed, in orbiter:

1. Canadians may reasonably expect privacy in the information contained on their work computers, at least where personal use is permitted or reasonably expected.

2. “Informational privacy” is: “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others” In this regard: “Mr. Cole’s direct interest and subjective expectation of privacy in the informational content of his computer can readily be inferred from his use of the laptop to browse the Internet and to store personal information on the hard drive.”

3. Mr. Cole’s personal use of his work-issued laptop generated information that is meaningful, intimate, and organically connected to his biographical core.

4. Privacy is a matter of reasonable expectations.

5. While workplace policies and practices may diminish an individual’s expectation of privacy in a work computer, these sorts of operational realities do not in themselves remove the expectation entirely: The nature of the information at stake exposes the likes, interests, thoughts, activities, ideas, and searches for information of the individual user.

In light of the Jones v. Tsige and R. v. Cole decisions, what is an employer’s potential liability for monitoring employee emails and Internet Use?

1. An employer could be ordered to pay an employee damages for violating the tort of inclusion of seclusion. Where a plaintiff has suffered no pecuniary loss, the Ontario Court of Appeal has fixed damages at up to $20,000. (Jones v. Tsige, 2012 ONCA 32 (CanLII) at par. 87).

2. An employer could be found to have improperly gathered an employee’s “personal information” under federal, provincial, or municipal privacy legislation. In this regard, a privacy commission could conclude that personal emails are “personal information”. It should be noted that privacy legislation does not apply to many private sector employers.

3. An employer could be found to have improperly gathered an employee’s personal health records if the employer monitors an email that contains personal health information. The Occupational Health & Safety Act allows for access to health records only with an employee’s written consent or an order of a court or tribunal or in order to comply with another statute.

4. A unionized employer could be found to have improperly monitored the employee. It could be argued that monitoring emails is analogous to video surveillance which has been the subject of a number of arbitration awards. With respect to video surveillance, one arbitrator has observed: “Arbitrators have distinguished between the reasonableness standards required to justify overt video recording of the workplace, and the much more restrictive standards required to justify covert recording of employees…That case law recognizes that covert surveillance is severely and inherently privacy-intrusive. By its nature it is intended to catch a person in some act, unaware that they are being observed.”

What is an employer to do?

If an employer plans to monitor an employee’s email or Internet use then ideally the employer should obtain the employee’s written consent in advance via a computer-use policy. Such a policy tells the employee that the employer will be monitoring emails and Internet use and that the employee should have no expectation of privacy if he uses the company network to send or receive personal emails or use the Internet for personal purposes.

The employer can require all new employees to sign a computer use policy which obtains the employee’s written consent as a condition of employment.

If you have any questions about monitoring employee internet use we can be reached at 1–888-640-1728 or at doug@macleodlawfirm.ca . You can subscribe to our employment law blog for employers at  employment law blog

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By MacLeod Law Firm, February 20, 2013 11:03 am

For over 20 years, the MacLeod Law Firm has been advising non-profit executives and boards of directors. Here are the five most important issues that non-profit boards and their executives should consider regarding employee liability:

1. A director can be held personally liable if the non-profit doesn’t comply with an employment law.

A director can be held liable for things like payroll taxes, vacation pay, and wages. Directors can also be charged and fined under various legislations, including the Ontario Occupational Health & Safety Act. Accordingly, we recommend that a non-profit organization purchase directors and officer insurance for its directors.

2. Who has the authority to hire and instruct a lawyer on behalf of the non-profit?

This depends on the non-profit’s by-laws. In most cases, someone from the board will hire a lawyer. We usually recommend that the board decide who will retain the lawyer on its behalf. In most cases, this is the Board Chair or Chair of the Human Resource Committee (if one exists). In some cases, it is the Executive Director. A special committee should be formed to specifically deal with the legal issue. The Board determines the committee’s mandate, its scope and what decisions must be voted on by the full Board.

3. Who will pay the legal and settlement costs related to a legal dispute?

If the non-profit has litigation insurance, the insurer will pay these costs. If the non-profit receives government funding, sometimes the government will pay a portion of these costs. If a settlement must be paid out of operating funds and the position can remain vacant, the non-profit may be able to use funds it receives for the position to cover the settlement.

4. How can the Board keep legal advice confidential?

Communication between a lawyer and a board is generally privileged & confidential.  Boards however, may have competing factions in dealing with a legal dispute (i.e. to offer payment or not in settling a claim). The distribution of written legal advice must be carefully managed as we have witnessed occasions where legal advice was “leaked” for strategic maneuvering.

5. What involvement should the Executive Director (ED) of a non-profit have with a lawyer?

This depends on whether there is a conflict of interest between the ED’s interests and the board’s interests and whether the ED or the board made the decision that is being challenged. We recommend that a board decide what type of employment decisions can be made by the ED and what decisions must be approved by the board. We often recommend that a board or its sub-committee approve all employee terminations assuming these decisions can be made quickly by way of conference call or email.

Please contact us at inquiry@macleodlawfirm.ca or 1-888-640-1728 if you wish to discuss the information contained in this blog.

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By MacLeod Law Firm, February 1, 2013 10:36 am

Many employers do not know about Accessibility for Ontarians with Disabilities Act (AODA).

This law came into effect in 2005 however it did not impose any obligations on most small, private sector employers until January 1, 2012. Many employers are not aware of these obligations.

About two weeks ago, one of our client’s received a letter from the Ontario government. Her organization was given 15 business days to comply with AODA. Thereafter the organization was subject to a fine of $ 50 000 for each day the organization did not comply with AODA.

This article addresses five commonly asked questions about AODA.

Does the AODA apply to your organization?

This law applies to organizations that provide goods or services to members of the public or other third parties and that has at least one employee (a provider). This includes organizations that only sell products and services to other businesses. It does not apply to sole proprietors or federally regulated organizations like banks.

Who needs to receive accessibility training?

Every person who deals with members of the public or other third parties on behalf of the provider including employees, agents, and volunteers. And every person who participates in developing the provider’s policies, practices and procedures governing the provision of goods or services to members of the public or other third parties.

What are the provider’s obligations under the Customer Standard of AODA?

Obligations include:  establishing policies, practices and procedures on providing goods or services to people with disabilities; providing people with disabilities with notice of a temporary disruption in facilities or services; and providing training to certain persons about the provision of its goods or services to persons with disabilities

When are providers required to comply with the AODA?

Most organizations were required to comply with Accessibility Standards for Customer Service (the Customer Standard) by January 1, 2012. A provider with at least 20 employees was required to file an accessibility report by December 31, 2012.

How many written policies and procedures is a provider required to prepare under the Customer Standard?

A provider can create one document that incorporates most required policies and procedures, or a provider can create more than one document. Providers with at least 20 employees are required to create more written documents.

If you have any questions about AODA compliance, you can contact us at 1888-640-1728 or at inquiry@macleodlawfirm.ca