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Bad facts make bad law (for employers): Court recognizes new tort of harassment #learnthelatest

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harassmentThe Ontario Superior Court recently recognized a new tort that would allow employees to sue their employers for harassment in civil court.

The case

In Merrifield v. The Attorney General, the employee worked for the RCMP in antiterrorist and serious crime policing. The employee alleged that he had been severely mistreated over an extended period of time by his superiors, and eventually transferred out of his job despite good reviews, in part because he ran for political office. He sued for harassment, among various other things.

The Court had to decide whether the tort of harassment existed, and was a recognized cause of action that would allow the employee to recover damages. The Court ruled affirmatively, and found that the elements of the tort were as follows:

  1. Outrageous conduct by the defendant;
  2. Intention on the part of the defendant to cause emotional distress or the defendant’s reckless disregard for causing emotional distress;
  3. The plaintiff’s suffering severe or extreme emotional distress; and,
  4. The defendant’s outrageous conduct to be the actual and proximate cause of the emotional distress.

The Court found that the employee had proved all elements of the tort, along with several other causes of action, and awarded him $100,000 in general damages.

The takeaway

The Court’s ruling means that employees can sue their employers for (civil) harassment in civil court. This is a controversial proposition that may be overturned on appeal to a higher court.

For the time being, it is not clear how this new tort will interact with the long-standing tort of intentional infliction of mental suffering. The elements of the torts seem to be very similar. Indeed, the employee in this case pleaded that established tort in addition to harassment, and was successful on both counts for nearly identical reasons.

The Court in Merrifield noted that the two torts overlap, and that the established tort also requires that a plaintiff prove that the defendant’s conduct was outrageous. The Court added that in addition to being outrageous, the defendant’s conduct must also be “flagrant” to make out the tort of intentional infliction of mental suffering.

This appears to be a distinction without a difference, as the Court defines flagrant as “conspicuously or obviously offensive”. The Court cites authorities which define outrageous conduct as deeply shocking and unacceptable, grossly cruel, extreme, and insensitive. It is difficult to imagine outrageous conduct that would not also be obviously offensive and therefore flagrant.

Another difference appears to be that, unlike the established tort, the tort of harassment does not require the plaintiff to show a “visible and provable illness”. Rather, to make out harassment, the plaintiff must show severe emotional distress “of such substantial quantity or enduring quality that no reasonable person in a civilized society should be expected to endure it.”

In reality, it would seem that there is an extremely fine line between emotional upset so severe that it would be compensable, and a “visible and provable illness”. This is especially so in light of the fact that the courts do not require medical evidence to establish a visible and provable illness. In fact, the Supreme Court of Canada recently released a decision affirming that it is not necessary to prove a recognized psychiatric illness in order to recover compensation for mental injury.

As such, we will have to wait and see whether this case is appealed, and how courts handle the tort of harassment in the future. Although the establishment of a new tort is worrying in the employment context, this may simply be a case of bad facts making bad law. The employer’s behavior was outrageous, but the employee could not sue in contract because he was a member of the RCMP and his employment relationship was governed by statute. As such, the employee could not avail himself of the type of contractual damages typically available in such cases, and the Court may have been more receptive to compensating him through unconventional means.

To find out more about how the new tort of harassment in the employment law context, register to Learn the Latest® at the Ontario Employment Law Conference.

A few days remaining to sign up for the Conference!

Registration will be closing on Friday, June 16, 2017. If you would like to register for the Conference but haven’t done so yet, click here!

Join First Reference, Stringer LLP, and Minister of Labour Kevin Flynn on June 20, 2017 to #learnthelatest and get up to date on the issues that are affecting your workplace. You can view the agenda for the entire day here.

The post Bad facts make bad law (for employers): Court recognizes new tort of harassment #learnthelatest appeared first on First Reference Talks.


Only one week left to register for the Ontario Employment Law Conference #learnthelatest

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conferenceThe 18th annual Ontario Employment Law Conference will be taking place on Tuesday, June 20, 2017 at the Corporate Event Center at CHSI in Mississauga. We are very much looking forward to hearing from Ontario Minister of Labour Kevin Flynn and the employment and labour law experts from Stringer LLP!

If you would like to register for the conference but haven’t done so yet, click here. Registration will be closing on Friday, June 16, 2017.

What employers will #learnthelatest about this year

The legal experts of Stringer LLP will be joining us again this year to discuss important employment and labour law topics such as:

  • WSIB claims for post-traumatic stress disorder (PTSD): What is the extent of the potential duty to accommodate employees with PTSD?
  • Resignations: How can employers ensure that a resignation has truly taken place and reduce the risk of being sued for wrongful termination?
  • ESA-only terminations clauses: When can you use them in employment offers or contracts, and when are they enforceable?
  • Defining your employment relationships: What is the legal test for determining whether an individual is an employee or a(n) independent/dependent contractor?
  • Employment Standards update: If Bill 148, The Fair Workplaces, Better Jobs Act passes as expected, what changes will employers need to make to their HR policies and practices?
  • Medical marijuana use in the workplace: How far must employers go in their duty to accommodate employees using medical marijuana at work?

You don’t want to miss this…

Also, Ontario Minister of Labour Kevin Flynn will be giving a special luncheon presentation on the government’s initial response to the Changing Workplaces Review. Minister Flynn will also be on hand for a short question and answer period with conference attendees.

At the end of the day, attendees will have the opportunity to take part in one of three breakout sessions covering:

  • AODA Employment Standards compliance
  • Workplace harassment investigations
  • Managing cyber-bullying, social media and other perils of the electronic workplace

You can view the agenda for the entire day here.

Registration closes soon

There’s only a few days remaining to sign up for the conference! Click here to register for this year’s conference and get ready to #learnthelatest with us on June 20!

The post Only one week left to register for the Ontario Employment Law Conference #learnthelatest appeared first on First Reference Talks.

2018 will be a pivotal year for employers and HR managers in Ontario – #LearnTheLatest

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Learn the Latest at the 19th annual Ontario Employment Law Conference

With most of the amendments of Bill 148 now in effect—along with significant updates to OHS and WCB provisions, the upcoming legalization of recreational marijuana, and more on the way—there are many substantial changes employers in Ontario have to deal with now and throughout 2018.

At the 19th annual Ontario Employment Law Conference, Stringer LLP and First Reference will make sure you are well informed and ready to manage the essential workplace issues in 2018 and beyond.

This year’s topics

  • Practical pointers for implementing the employment standards and labour relations changes brought in by Bill 148
  • Getting ready for legalized marijuana
  • Workplace harassment complaints and investigations: making it through the legal minefield
  • How to avoid legal trouble in employee discipline and termination
  • What you need to know now about occupational health and safety due diligence

Also, this year’s breakout sessions will cover:

  • How to appeal a decision at the WSIB or WSIAT
  • Accommodating employee disabilities: how to meet your legal duties without disrupting your operations
  • Employing foreign nationals in Canada: how to identify issues and do your HR due diligence

Essential one-day update

The Ontario Employment Law Conference is your essential one-day legal update. Join Stringer LLP and First Reference for a day of practical employment law information you can put to use right away! For more details or to register, visit www.firstreference.com/conference.

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Q&A: Bill 148 increases vacation entitlements for all employees

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vacation entitlementsIn this conference Q&A, we address the increases to vacation entitlements brought forth by Bill 148.

In partnership with Stringer LLP, First Reference Inc. recently hosted the 19th Annual Employment Law Conference on June 12, 2018, where we discussed the latest legal developments on topics including practical compliance strategies in light of Bill 148. While the law is clear in theory, its application tells many stories as employers and HR professionals deal in the practical world of differing employment dynamics.

We received a large amount of questions from conference attendants during the Q&A session. Though we could not answer them all during the conference, the First Reference Blog will be updated weekly to provide further clarity on this year’s hot topics based on the questions we received.

Q:

A conference attendee inquired about the practical implications of the increased vacation entitlements that came into effect on January 1, 2018. Her question was: Our standard vacation entitlement for a permanent salaried employee is 20 days. Some employees work various FTE [we presume that you mean “full-time equivalent”]. For an employee working 17.5 hours per week, they would receive half of the 20 days, which is 10 days. Do we need to top up their vacation to 15 days if they have five plus years of service?

A:

Previously, the Ontario Employment Standards Act (ESA) did not require vacation time and pay to increase with length of employment. All employees were statutorily entitled to two weeks of vacation per year at four percent vacation pay, regardless of how many years they continuously worked for the same employer.

However, effective January 1, 2018, the Fair Workplaces, Better Jobs Act, 2017 (Bill 148) updated the statutory minimum so that vacation time and pay increase with length of employment. This means that an employee, since January 1, 2018, is entitled in law to two weeks of vacation after each 12-month vacation entitlement year. Employees with five or more years of employment are entitled to three weeks of vacation time at six percent vacation pay. Ordinarily, a vacation entitlement year is a recurring 12-month period beginning on the date of hire.

The important thing here is that the Employment Standards Act does not differentiate between part-time or full-time employees, or between employees paid hourly or on a fixed salary—the vacation entitlement is the same under the law. What will be different is the calculation of the entitlement.

In the context of the above question, a workplace policy can offer a greater right or benefit than the statutory minimum and attribute the entitlement to employment status or hours worked, and calculate it in days or hours. But the employer must make sure that every employee still receives their statutory minimum entitlement under the Employment Standards Act.

To this effect, employers should pay special attention to wording choice whereby the ESA vacation entitlements are specifically expressed in weeks, not days. When converting weeks to days or hours, and basing vacation entitlement on hours worked, the employer must ensure that the policy at least offers equivalent entitlements as the statutory minimum under the ESA. As we don’t have further information regarding the context of the above question, the conference attendee must ensure the 10 days offered in the workplace policy equal the two weeks statutory minimum for every 12-month period of employment, and the proposed 15 days equal the three weeks statutory minimum the employee would be entitled to after 5 years or more of employment. Otherwise, the employer may be exposed to an unpaid vacation claim.

It is always recommended to abide by the language of the law and to just offer a percentage of gross wages (4% or 6%) depending on the length of employment as vacation pay.

Please Note: This article is prepared for information purposes only; it is not legal advice. Consult a lawyer before acting on it or to obtain legal advice or a legal opinion.

The post Q&A: Bill 148 increases vacation entitlements for all employees appeared first on First Reference Talks.

Q&A: Maximum age of child for domestic violence leave eligibility

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domestic violence leaveIn this conference Q&A, we address the eligibility criteria for domestic violence leave in relation to an employee’s child.

In partnership with Stringer LLP, First Reference Inc. recently hosted the 19th Annual Employment Law Conference on June 12, 2018, where we discussed the latest legal developments including issues surrounding practical strategies for compliance with Bill 148.

We received a large number of questions from conference attendees during the Q&A session. Though we could not answer them all during the conference, the First Reference Blog will be updated weekly to provide further clarity on this year’s hot topics based on the questions we received.

Q:

Is there a limit for age of child who is assaulted to access domestic violence leave?

A:

Effective January 1, 2018, Ontario has seen the introduction of the new domestic or sexual violence leave, which now forms section 49.7 of the Employment Standards Act (ESA).

Employees are entitled to up to 10 full days of domestic or sexual violence leave every calendar year, whether they are employed on a full- or part-time basis. The leave applies to those who have been employed by an employer for at least 13 consecutive weeks, who themselves or whose child has experienced domestic or sexual violence or the threat of domestic or sexual violence, and who wish to take time off for an approved purpose prescribed in the Act such as seeking medical attention, accessing victim services, receiving counselling, moving or seeking legal assistance.

Employees are also entitled to take up to 15 weeks of domestic or sexual violence leave within a calendar year for the purposes set out above.

The first five days of domestic or sexual violence leave taken in a calendar year must be paid. The rest are unpaid. The first five days are to be paid whether the employee takes leave from the 15-week entitlement or the 10-day entitlement.

According to s 49.7(1) of the ESA, a “child” means the employee’s child, step-child, child under legal guardianship or foster child who is under 18 years of age.

To learn more about eligibility, notice requirements and other important definitions surrounding domestic or sexual violence leave in Ontario, consult The Human Resources Advisor, Ontario edition. If you are not already a subscriber, try a 30-day free trial here.

Please Note: This article is prepared for information purposes only; it is not legal advice. Consult a lawyer before acting on it or to obtain legal advice or a legal opinion.

The post Q&A: Maximum age of child for domestic violence leave eligibility appeared first on First Reference Talks.

Q&A: Critical illness leave to take care of parent outside of Canada

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critical illness leaveIn this conference Q&A, we address whether employees are entitled to take critical illness leave to care for a parent who is not in Canada.

In partnership with Stringer LLP, First Reference Inc. recently hosted the 19th Annual Employment Law Conference on June 12, 2018, where we discussed the latest legal developments including issues surrounding practical strategies for compliance with Bill 148.

We received a large number of questions from conference attendees during the Q&A session. Though we could not answer them all during the conference, the First Reference Blog will be updated weekly (until further notice) to provide further clarity on this year’s hot topics based on the questions we received.

Q:

If the parent is not in Canada, can an employee still use critical illness leave?

A:

In Ontario, critical illness leave is protected under section 49.7 of the Employment Standards Act (ESA), entitling employees to an unpaid leave of up to 37 weeks to provide care for a critically ill child under the age of 18, and up to 17 weeks to provide care or support to a critically ill family member over the age of 18.

In order to be eligible to take critical illness leave, section 49.7 requires that the employee is covered under the ESA, has been employed by his or her employer for at least six consecutive months, and provides a medical certificate stating that the child or adult family member is critically ill and requires support within a specified time frame.

While there are detailed criteria on notice requirements, the length and timing of the leave, medical certification to justify the leave and so on, there are no eligibility criteria stipulating where the family member must reside in order for the employee to be eligible for the leave.

Rather, guidance from the Ministry of Labour on their website states that “the specified family members do not have to live in Ontario in order for the employee to be eligible for critical illness leave.”

As long as an employee meets all the eligibility requirements, the employee is free to take care of a family member who resides outside of Canada, however, it must still be for the time frame stated in the medical certificate and must not be over the 37 weeks allowed in law.

That said, when we look at the Employment Insurance benefit that provides compensation during critical illness leave, the Family Caregiver Benefit for Adults (which allows up to 15 weeks of financial assistance to provide care or support to a critically ill or injured adult), Service Canada states, “if you leave Canada to provide care or support to a person who is critically ill or injured, you may still be eligible to receive these benefits. You must submit an application and supporting documents with the same type of proof that is required for someone living in Canada.”

“The medical certificate for the person who is critically ill or injured should be completed by a medical doctor or nurse practitioner in the country where they are receiving care.”

To learn more about the law and best practices related to critical illness leave and other statutory leaves, consult The Human Resources Advisor, Ontario Edition. If you are not already a subscriber, try a 30-day free trial here.

Please Note: This article is prepared for information purposes only; it is not legal advice. Consult a lawyer before acting on it or to obtain legal advice or a legal opinion.

The post Q&A: Critical illness leave to take care of parent outside of Canada appeared first on First Reference Talks.

Q&A: What happens when an employee does not use their vacation entitlement?

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vacation entitlementIn this conference Q&A, we address the alternatives when an employee chooses to not use their vacation entitlement in the vacation entitlement year as prescribed by law.

In partnership with Stringer LLP, First Reference Inc. recently hosted the 19th Annual Employment Law Conference on June 12, 2018, where we discussed the latest legal developments including issues surrounding practical strategies for compliance with Bill 148.

We received a large number of questions from conference attendees during the Q&A session. Though we could not answer them all during the conference, the First Reference Blog will be updated weekly until further notice, to provide further clarity on this year’s hot topics based on the questions we received.

Q:

What happens with unused vacation not taken: How much or all can they carry over to next year? What happens if the employee leaves? Can we cap any of vacation to carry over to the next year?

A:

This question raises important issues on the mechanics of vacation entitlements under the Employment Standards Act (ESA) in Ontario, which are covered under Part XI. Given the multiple aspects of the question, we will address one aspect at a time below, but first let’s summarize the vacation time and pay entitlement in Ontario.

Employers must give employees both vacation time and vacation pay. Vacation time and vacation pay provisions are dealt with separately under the ESA and apply to all employees, regardless of their employment status (e.g., full-time, part-time) or how they are paid (e.g., hourly, salaried), unless exempt from the vacation provisions by regulations.

Employees are entitled to two weeks of vacation time after each 12-month vacation entitlement year, with vacation pay of at least four percent of their annual wages. Since January 1, 2018, employees with five years or more of service (as of January 1, 2018) are entitled to three weeks of vacation time after each 12-month vacation entitlement year and six percent vacation pay.

As always, employers have the option to provide a greater benefit with respect to vacation time and vacation pay than the statutory minimum requirement found in the ESA.

A vacation entitlement year is the 12-month period over which employees earn vacation.

A standard vacation entitlement year is a recurring 12-month period beginning on the date of the employee’s hire.

An employer may establish a vacation entitlement year that is different from the standard vacation entitlement year. The ESA refers to this as an “alternative vacation entitlement year” and is defined to mean, “with respect to an employee, a recurring 12-month period that begins on a date chosen by the employer, other than the first day of the employee’s employment.”

If the vacation entitlement year is a standard vacation entitlement year, the employee will be entitled to a minimum of two weeks of vacation time 12 months after the date of hire and after completing each of the next four 12-month vacation entitlement years. The employee will then be entitled to three weeks of vacation after completing the fifth vacation entitlement year and for each vacation entitlement year thereafter.

The Ontario Employment Standards Act says employees have to work for a year before they are entitled to vacation time off (whether two or three weeks, or whatever other entitlement under workplace policy or collective agreement.) Employers do not have to view vacation as accruing monthly and let employees take one or more vacation days before the end of the first entitlement year or any subsequent year. When an employer lets the employees take vacation right away in the first year, that is vacation time and money paid in advance. Technically, the employee should work one year and then the employee has earned his or her vacation entitlement. The employer is then required to make sure that the employee is taking his or her vacation time and money during the following 12 months, in other words during the employee’s second year. In the employee’s second year he or she is earning what is to be his or her entitlement up to the third year. So the first year, technically, there is no vacation time that the employee can take, but he or she is earning it all the way through. If the employee is taking it in advance and he or she is terminated before his or her time is up, the money has to be accounted for and paid out.

Usually for employees whose period of employment is less than five years, employers are required to schedule the vacation time earned for each vacation entitlement year in a block of two weeks or in two one-week blocks. For employees whose period of employment is five years or more, employers are required to schedule the vacation time earned for each vacation entitlement year in a block of three weeks, a two-week period and a one-week period, or three periods of one week each. However, if the employee makes an electronic or written request, and the employer agrees electronically or in writing, the employee can schedule the vacation in shorter periods.

The vacation must be completed no later than 10 months after the end of the vacation entitlement year for which it is given.

If an employee is not taking his or her vacation or refusing to schedule his or her vacation, in Ontario, employers are allowed under the ESA to schedule an employee’s vacation. The employer must schedule the vacation in two one-week blocks or a block of two weeks, for example, unless the employee and employer agree otherwise.

Carrying over unused vacation time and pay to next year

As stated earlier, the ESA requires employees to take vacation no later than 10 months after the end of the vacation entitlement year for which it is given. Therefore, employees should be required to take their full entitlement of vacation every year after the first year of employment. Under the law, there should not be any carry over. Moreover, employees cannot carry over their statutory minimum vacation time. If there is carry over, the employer has failed to comply with the Employment Standards Act. That means that the time and money are considered to be unpaid wages and a complaint for unpaid wages could be filed.

However, it happens frequently due to operational needs or workload, among other reasons. But it must be noted, an employer cannot infringe upon the rights of an employee and deny him or her vacation time or payment of vacation time whether it is taken or not. Employers cannot deprive employees of the right to vacation time and vacation pay.

Employees can give up their vacation time, but this requires both the agreement of the employer and the approval of the Director of Employment Standards with the Ministry of Labour. Vacation pay earned must still be paid out. Unlike vacation time, an employee cannot give up their entitlement to vacation pay.

That said, employers should have a vacation policy that outlines what happens with carryover of vacation, how many weeks can be carried over (cap), or if it is even allowed. Employers should clearly set out the rules for carrying over vacation time in their policy manual, and employees should make sure they are aware of the rules and take whatever steps are necessary to carry over their vacation time. Pre-arrangement must be made to establish and negotiate the carryover prior to year’s end. In principle, the carry over should only be for entitlements above the minimum statutory requirements under the ESA.

What happens to vacation upon termination?

Upon termination of an employee’s employment, the employer must pay out the employee’s accrued but unused vacation pay. This is because the employee has already earned that vacation pay. Some employers might allow employees to take vacation time and vacation pay before it is earned as explained above. In this case, the employer may require employees to pay back any such advanced vacation upon their employment ending. This should be done with a written authorization from the employee.

If an employee is entitled to statutory termination notice or pay in lieu of notice, the employee is also entitled to vacation pay accrued during the notice period.

To learn more about the law and best practices regarding vacation entitlements and related topics, consult The Human Resources Advisor, Ontario edition. If you are not already a subscriber, try a 30-day free trial here.

Please Note: This article is prepared for information purposes only; it is not legal advice. Consult a lawyer before acting on it or to obtain legal advice or a legal opinion.

The post Q&A: What happens when an employee does not use their vacation entitlement? appeared first on First Reference Talks.

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