Employment & labour

Employment & LabourBreakfast for the Mind

June 10, 2014

Employment Standards Code Refresher: Things you Forgot or Never Knew

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Lauren IgnaczAssociate

Employment Standards

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• Minimum standards for employer and employees in Alberta

• Mandatory standards that employers must provide

• Employment Standards Code, RSA 2000, c E-9

• Employment Standards Regulation, Alta Reg 14/1997• Exemptions from the Code

Application

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• Applies to most employers and employees in Alberta:• Full-time;• Part-time;• Casual; • Temporary;• Student;• Commissioned sales; and • Salaried employees

• Does not apply to:• Federally regulated corporations;• Federal government, agencies and boards;• Federally regulated industries: banks, interprovincial trucking, radio and television;• Employers regulated by other legislation (Police Act); and• Most agricultural employees

Outline

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• Record Keeping Obligations• What records to keep under the Code• Why you should keep adequate records

• Overtime Obligation• Overtime requirements under the Code• Common myths regarding payment of overtime• Time off in lieu of overtime

• Vacation Obligations• Vacation pay vs. vacation leave

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Record Keeping

Record Keeping Standards

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• Employee records which must be kept under the Code:

• Regular hours of work – must be recorded daily

• Overtime hours of work – must be recorded daily

• Wage rate

• Overtime rate

• Earnings paid for each pay period with a breakdown of each component of the earnings

• Deductions from earnings and reasons for deductions

• Time off in lieu of overtime pay provided and taken

Record Keeping Standards

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• Employer must also keep up to date records of the following:

• Employee’s name, address, date of birth

• Date that employment started – present period

• Date on which a general holiday is taken (New Year’s Day, Good Friday, Thanksgiving, etc.)

• Each annual vacation –start and date and the period of employment it covered

• Wage rate and overtime rate – must be updated when changed

• Documents relating to maternity or parental leave and reservist leave

• Copies of any termination notice and written requests to employees to return to work after a layoff

• Employer must keep records for a period of 3 years from the date the record is made

How to Keep Good Records

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• Keep employee file up to date

• Make notes/changes contemporaneously with event

• Keep professional records – assume someone else will read them

• Carefully control access to employee files

Why Should You Keep Good Records?

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1. Failure to keep records is prohibited under the Code

2. Protects employers from Employment Standards Complaints • If Employment Standards Complaint made, will ask for employer records• In the absence of Employer Records, will rely on Employee records:• Osteria De Medici Restaurant Ltd. v. Yaworski, (2008, ABESU)

• Employer thought the employee was exempt from overtime, did not keep hours of work records

• Officer relied upon employee’s records, even though they were exaggerated• Officer “discounted” some of the employees hours• Employer appealed the award. Umpire upheld the award because to discount

the hours further, without evidence to the contrary, would have been arbitrary

3. Good Practice • Helps preserve Corporate memory – Supervisors/Managers may change• Adds to Employer’s credibility when facing litigation or other type of complaint

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Overtime Pay and Overtime Agreements

Overtime Standards

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• Overtime is triggered where employee works:> 8 hours per day> 44 hours per week

• Overtime rate = 1.5 of the employee’s regular wage

• ALL employees are entitled to overtime except:• Supervisors;• Managers; or• Employees dealing with confidential information

• Also:• Salespersons• Professionals• Other

Common Myths1021462 Alberta Ltd. v. Chow (2004, ABESU)

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• Employee approached Employer • $1,000 per month plus commission• Allowed to eat and drink without paying• Alarm code to lock up at night

• Employee terminated, brought ESC complaint for unpaid wages, overtime, vacation pay and holiday pay

• Employment Standards Officer awarded $2,874 to Employee

• Employer Appealed:1. Employee was a salaried employee, exempt from hours of work provisions

2. Employee was a manager, exempt from overtime

3. Employee proposed the wage of $1000 per month

Common Myths: 1021462 Alberta Ltd. v. Chow (2004, AB ESU)

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Myth 1: Employee was a salaried employee, exempt from hours of work provisions

Lesson:• Only managers, supervisors and employees dealing with matters of a confidential

nature are exempt• Salaried employees are entitled to overtime

Myth 2: Employee was a manager, exempt from overtimeLesson:

• Substance of the job matters. Cannot be a manager in name only• No difference between Chow and other employee’s duties

Myth 3: Employee proposed wage of $1000 per monthLesson:• Cannot contract for less that the Employment Standards Code provides• No “bulk payments” allowed

Common Myths: Class Actions

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Myth: If OT is not approved, employer does not have to pay

• Dara Fresco v. Canadian Imperial Bank of Commerce: $651 Million• 2012 ONCA – Certified as a class action, leave to appeal refused

• Fulawka v the Bank of Nova Scotia: $350 Million • 2012 ONCA – Certified as a class action, leave to appeal refused

• Employer: OT must be approved• Employees: Workload too heavy, employer would not approve or pay overtime

Lesson:• Employer must tell employee to stop working OT hours if

they will not approve the hours • Cannot be willfully blind • Cannot “look the other way” while OT being worked

Common Myths: Class Actions

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Myth: If the employee is a manager, they are not entitled to OT

• McKracken v Canadian National Railway Company: $300 Million• 2012 ONCA – Was not certified as a class action, leave to appeal pending• Employer classified employees as managers and did not pay overtime

Lesson: • If their primary duties are managerial/supervisory/of a

confidential manner, then exempt

• Job title does not matter

• Substance of the job should be analyzed

Time Off in Lieu of Overtime

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• Banking time or “pay in lieu” of overtime requires an overtime agreement

• Elements of a valid overtime agreement include:• In writing

• Time off with pay will be provided at the employee’s regular wage rate

• Time off must be provided and taken within three months

• If time off is not provided and taken as required, the employee must be paid overtime of at least 1.5 times the employee’s wage rate for the overtime hours worked

• 1month’s written notice to terminate or amend the agreement

• Myth: When employee is terminated, any unused time in lieu is forfeited or paid at regular wage rate

• Lesson:• Any unused OT must be paid at 1.5 the wage rate upon resignation/termination

Summary of Lessons Learned: Overtime

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• OT triggered when employee works > 8 hours/day or 44 hours/week

• Paid at 1.5 wage rate, unless have OT agreement• Cannot provide bulk OT payments

• Salaried employees are not necessarily exempt from OT• Supervisor• Manager• Employed in a capacity concerning confidential matters• Job title does not matter. The duties must fall into one of the above categories

• If unwilling to approve OT hours, must tell employee to stop working OT

• Time off in lieu – Must have a written OT Agreement• Must pay out unused hours at 1.5 wage rate

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Vacation Pay and Vacation Leave

Vacation Pay Standards

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• Most employees, including part time, are entitled to vacation pay and vacation leave

• Employee entitled to vacation pay upon hiring

• Exception = Construction Industry, 6% minimum

• Exempt = Listed in Regulations (Salespersons, Realtors, etc.)

• Amount of Pay• Monthly employees: Divide monthly pay by 4 1/3• Other than monthly: 4% (1-4 years of employment) to 6% (5+ years of employment) of

their wages• “Wages,” does not include overtime earnings, general holiday pay, vacation pay, termination pay,

discretionary bonuses, tips and gratuities, or expenses and allowances• “Wages" does include salary, money paid for time off instead of overtime pay or commission

• Must be paid out at least 1 day prior to vacation, or next regular pay day, if not regularly paid

Myths: Vacation Pay

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• Myth 1: Vacation pay can form a part of other earnings• Growth Marketing Inc. v. Churchill (2004, ABESU)

• Contract with employees: “vacation pay will form a part of commission payments”• Cannot merge wages with vacation pay• Employer must pay employee vacation pay + wages• Must account to the employee for this amount separate from wage entitlements

Lesson: • Employer must remit the vacation pay to the employee in addition to wages• Vacation pay must be an amount separate from earnings• Employer must account for this amount separate from wage entitlement, even

for salaried employees

• Myth 2: Vacation pay does need to be accounted for to salaried employees

Lesson: • Employer must account for this amount separate from wage entitlement on pay

cheque, even for salaried employees• Must specify the amount of vacation pay on paystubs/employee file to comply

with record-keeping requirements

Vacation Leave Standards

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• After 1st year of employment, employee entitled to vacation leave• 2 weeks after each of the first four years of employment • 3 weeks after five consecutive years of employment

• Employer must give and Employee must take vacation in the 12 months after employee entitled to vacation

• Vacations must be given in one unbroken period • Exception: employee may take shorter period at their request, must be at least 1 day

long

• If employer and employee cannot agree on vacation date, employer can give 2 weeks’ notice of employee’s vacation time

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Conclusion

In Summary

Record Keeping• Required under the Code

• Section 14 sets out required information

• Good records protect employers from complaints/litigation

Overtime• All employees, including salaried

employees, entitled unless exempt

• Exempt employees’ job must significantly encompass the duties of the exempt category

• “Bulk payments” cannot be made instead of overtime – 1.5 wage rate

• If unwilling to approve OT hours, must tell employee to stop working OT

• Time off in lieu – Must have a written OT Agreement• Must pay out unused hours at

1.5 wage rate

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In Summary

Vacation Pay• Entitled immediately

• 4 – 6% of wage

• Must be paid over and above regular wage

• Must be accounted for separately on pay cheques

Vacation Leave• Entitled after 1 year of employment

• 2 – 3 weeks of leave per year

• 1 unbroken period

• Shorter periods, minimum 1 day of leave

• Employer should encourage employees to take leave

• Employer must allow and employee must take leave

• Where cannot agree, employer will determine leave

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Family Obligations: a Burden for Employers?

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Fausto FranceschiPartner

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1. Alberta Compassionate Care Leave Requirements

2. Johnston v. Canada (Border Services Agency), 2014 F.C.A. 110 (May 2, 2014)

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1. Compassionate Care Leave

• February 1, 2014 – Alberta amends Employment Standards Code

• Introduces Compassionate Care Leave provisions

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Pre-condition

• Family member at risk of death within 26 weeks of leave request

• Family member not required to live in Alberta

• Employee is primary caregiver (primarily responsible for providing care or support to a seriously ill family member for that family)

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Eligibility Requirements• At least 52 weeks of consecutive employment (either full-time or part-

time)

Length of Leave• Maximum is 8 weeks

• May be broken into 2 different periods

• Leave must be taken before the 26 week “at risk of death” period expires

Further Leave• If family member does not die within 26 week “at risk of death” period, a

further 8 weeks leave may be taken within the next 26 week period

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Doctor’s Certificate Required

• Employee to provide certificate from the Doctor caring for the ill family member

• Certificate must contain the following information:

1. Family member has serious medical condition and there is a significant risk that he/she will die within 26 weeks (26 weeks calculated by the earlier of the day the certificate is issued OR the day the leave began if it begins before the certificate is issued)

2. Family member requires care or support of one or more family members

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Starting and Ending the Leave Period

• Except in emergency situations, employee to provide 2 weeks’ notice of start date (could be less than 2 weeks if circumstances warrant it)

• Employee to provide 2 weeks’ written notice of return to work (can be less if employer and employee agree)

• If employee does not comply with 2 week return to work written notice, employer may postpone return to work for up to 4 weeks after the day it receives notification from employee of intention to resume work. Must provide written notification to employee of postponement

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Employment Deemed Continuous

• Employee on compassionate leave is deemed to be continuously employed for the purposes of calculating other Employment Standards Code entitlements (e.g.. vacation and termination)

Employer Obligations

• Like Maternity Leave obligations

• Must grant leave if eligibility requirements met

• May not terminate or lay off once leave begins unless there is a suspension or discontinuance of business operations

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Payment Obligations• Leave is without pay

• Employment Insurance benefits available

• EI Stats:

- 80% of EI Compassionate Care benefits relate to claims for a gravely ill parent or spouse/partner

Family Member

Broad definition

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• Spouse, common-law partner, or adult interdependent partner of the employee;• Child of the employee;• Step-child of the employee (child of the employee's spouse, common-law partner, or adult interdependent partner;• Father or mother of the employee;• Step-father, step-mother of the employee (spouse, common-law partner, or adult interdependent partner of the employee's

mother or father);• Father-in-law, mother-in-law of the employee (parent or step-parent of the employee's spouse, common-law partner, or

adult interdependent partner);• Brother, half-brother, step-brother, sister, half-sister, or step-sister of the employee;• Brother, half-brother, step-brother, sister, half-sister, or step-sister of the employee's spouse, common-law partner, or adult

interdependent partner;• Grandfather or grandmother of the employee;• Step-grandfather, step-grandmother of the employee (spouse, common-law partner, or adult interdependent partner of the

employee's grandmother or grandfather);• Grandfather or grandmother of the employee's spouse, common-law partner, or adult interdependent partner;• Grandchild of the employee;• Spouse, common-law partner, or adult interdependent partner of the employee's grandchild;• Step-grandchild of the employee (grandchild of the employee's spouse, common-law partner, or adult interdependent

partner);• Son-in-law, step-son-in-law, daughter-in-law, or step-daughter-in-law of the employee, whether by marriage, common-law

partnership, or adult interdependent partnership;

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• Brother-in-law, step-brother-in-law, sister-in-law, or step-sister-in-law of the employee, whether by marriage, common-law partnership, or adult interdependent partnership;

• Uncle, step-uncle, aunt, or step-aunt of the employee, whether by marriage, common-law partnership, or adult interdependent partnership;

• Uncle or aunt of the employee's spouse, common-law partner, or adult interdependent partner;• Nephew or niece of the employee;• Spouse, common-law partner, or adult interdependent partner of the employee's niece or nephew;• Nephew or niece of the employee's spouse, common-law partner, or adult interdependent partner;• Current or former foster parent of the employee or the employee’s spouse, common-law partner, or adult interdependent

partner;• Current or former foster child of the employee;• Spouse, common-law partner, or adult interdependent partner of the current or former foster child of the employee;• Current or former ward of the employee or the employee's spouse, common-law partner, or adult interdependent partner;• Current or former guardian of the employee;• Spouse, common-law partner, or adult interdependent partner of the current or former guardian of the employee;• A person to whom the employee is not related but considers to be like a close relative.

Commentary

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• Introduction of compassionate care leave brings Alberta in line with other jurisdictions

• Many employers already have leave policies

• Likely not too burdensome for large employers – although can create some difficulties

• For smaller employers, an 8 week compassionate care leave can be quite burdensome

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2. Johnstone v. Canada (Border Services Agency), 2014 F.C.A. 110 (May 2, 2014)

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Facts

• Complaint under the Canadian Human Rights Act on grounds of “family status” for refusing to accommodate childcare needs through work scheduling arrangements

• Both Complainant and her husband worked for the Canada Border Services Agency (“CBSA”)

• 2 children

• Work schedule based on a rotating shift plan (5 days on, 3 days off) with full-time employees rotating through 6 different start times over the course of days, afternoons and evenings with no predictable pattern and the requirement to work different days of the week during the schedule

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• Schedule based on 56 day pattern and employees given 15 days notice of each new shift schedule, subject to employer’s discretion to change the schedule on 5 days notice

• Complainant was a full-time employee working 37.5 hours per week

• Complainant’s husband faced the same scheduling issues and neither could provide the necessary childcare on a reliable basis

• CBSA policy allowed employees with childcare obligations to work fixed schedules, but required employees to assume part-time status with a maximum 34 hour per week schedule

• Part-time employees had fewer benefits than full-time employees. This particularly impacted pension entitlements, training, transfer and promotion opportunities

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• Complainant sought fixed schedule on a full-time basis asking to work 3 days per week and13 hours a day (including a one half-hour meal break)

• Complainant only had access to childcare arrangements with family members for the three days she was able to work and was unable to make other childcare arrangements on a reasonable basis

• CBSA position was that it had no legal duty to accommodate Complainant’s child care responsibilities

• Did not argue undue hardship

Original Canadian Human Rights Commission Decision

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• Dismissed the complaint

• Complainant was accommodated in the form of a 34 per hour week part-time fixed work schedule

• Found that CBSA policy did not constitute a serious interference with Complainant’s duties as a parent or that it had a discriminatory impact on the basis of family status

• Complainant sought judicial review

First Federal Court Judicial Review

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• Found that there was a prima facie case made out for discrimination and referred the matter back to the Commission

Matter Proceeds to Commission Tribunal

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• Found that “family status” grounds includes family and parental obligations such as childcare obligations

• The CBSA engaged in a discriminatory practice by pursuing a policy which affected the Complainant’s employment opportunities relating to promotion, training, transfers and benefits on the grounds of family status

• CBSA had not established undue hardship so as to be relieved of its accommodation obligations

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• CBSA ordered to:

› Cease its discriminatory practice› Consult with the Canadian Human Rights Commission to develop a plan

to prevent further incidents of discrimination based on family status› Establish a written policy satisfactory to the Complainant and the

Commission where family status accommodation requests would be addressed within 6 months, and was to include a process for individualized assessments of the accommodation requests

› Compensation for lost wages and benefits for the period between the commencement of her part-time employment to date of decision

› $15,000.00 for pain and suffering› $20,000.00 special compensation for “wilfully and recklessly” engaging in

a discriminatory practice

Second Federal Court Judicial Review

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• Minor variance of Tribunal decision

• Referred matter back to tribunal to reconsider its lost wages and benefits award for the period during which Complainant opted for an unpaid leave period to accompany her husband to Ottawa for one year (she had been awarded lost wages for this period)

• Excluded the Complainant as a party to be consulted with respect to a development of a written remedial policy by the CBSA

• CBSA appealed the decision to the Federal Court of Appeal

Federal Court of Appeal

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• CBSA argued for a narrow interpretation of “family status” and argued that it should define a legal status, like the ground of “marital status”

• This would result in the ground of “family status” being limited to the personal characteristics of whether or not one is part of a family or had a particular family relationship, but it would not include any substantive parental obligations such as childcare obligations

• But human rights legislation has always been given a broad interpretation to ensure that the stated objects of the legislation are fulfilled

• Human rights legislation has a unique quasi-constitutional nature and is interpreted in a liberal and purposive manner


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• Consistent with this approach, the Court said “without reasonable accommodation for parents’ childcare obligations, many parents will be impeded from fully participating in the workforce so as to make for themselves the lives they are able and wish to have. The broad and liberal interpretation of human rights legislation requires an approach that favours a broad participation and inclusion in employment opportunities for those parents who wish or need to pursue such opportunities.”

• Childcare obligations contemplated under family status does NOT extend to protect personal family choices, such as participation of children in dance classes, sporting events or similar voluntary activities


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• Rather, the childcare obligations contemplated under family status should be those that have “immutable characteristics, such as those that form an integral component of the legal relationship between a parent and a child. As a result, the childcare obligations at issue are those which a parent cannot neglect without engaging his or her legal liability.”

• For example, a parent cannot leave a young child without supervision at home in order to pursue his or her work, since this would constitute a form of neglect, which in extreme examples could be a Criminal Code offence or a breach of child welfare legislation

• Voluntary family activities such as family trips and sports activities are parental “choices” rather than parental “obligations”, and would not attract human rights protection


The Test to Determine Prima Facie Discrimination Based on Childcare Obligations on the Protected Ground of Family Status

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The court laid out a 4 part test:

1. That a child is under his or her care and supervision

2. That the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a parental choice

3. That he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no alternative solution is reasonably accessible. Complainant will need to show:

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(i) that neither the Complainant nor his/her spouse can meet their childcare obligations while continuing to work

(ii) that an available childcare service or an alternative arrangement is not reasonably accessible to them so as to meet their work needs

→ bona fide childcare problem

→ fact specific

4. That the workplace rule interferes in a manner that is more than trivial orinsubstantial with the fulfillment of the childcare obligations

• Once a prima facie case has been made out by the Complainant, the employer must show that the Complainant cannot be accommodated without undue hardship

The Test Applied to the Johnstone Case

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• Complainant made out a prima facie case of discrimination

• The Complainant made serious but unsuccessful efforts to secure reasonable alternative child care arrangements

• She investigated numerous regulated childcare providers, both near her home and near her work

• None of these provided services outside standard hours

• Regarding unregulated childcare providers, no reasonable solution was available from family members. A live in nanny was not an appropriate option because the Complainant’s home could not accommodate another adult person living there.

The Test Applied to the Johnstone Case

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• Complainant’s husband had similar work schedule issues

• Virtually impossible to find a paid third-party provider of childcare, regulated or unregulated, because of the unpredictability of work hours

• Prima facie case of discrimination made out

• CBSA did not assert an undue hardship in providing the Complainant with fixed shifts on a full-time basis, so the complaint was upheld

Cause for Concern?

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• Decision strikes a balance between the needs of employers and those of parents who fully wish to participate in the work force so as to make for themselves the lives they are able and wish to have

• Flood gates unlikely to open because of this decision

• Primary obligation to achieve work/family balance is with the parents

• They must exhaust all reasonable efforts to meet childcare obligations through reasonable alternative solutions

Cause for Concern?

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• Unique scheduling issues in this case

• Accommodation not required in situations where parents work obligations inconvenience their childcare obligations. The work schedule interference must be “more than trivial or insubstantial” and it must impact legal obligations as opposed to personal family choices

• But employers must evaluate accommodation requests made due to childcare issues seriously. May be required to assist their employees in exceptional or unusual circumstances

From Tickets to Fines to Jail Time: Increasing Penalties for Occupational Health and Safety Breaches

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Cristina WendelPartner

What are the consequences of breaching occupational health and safety requirements in Alberta?

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• Tickets

• Administrative penalties

• Orders

• Prosecutions

• Occupational health and safety

• Criminal Code

Tickets

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• As of January 1, 2014

• Can be issued to workers or employers

• Specific listed contraventions only

• Range from $100 - $500

• Similar to traffic tickets

Administrative Penalties

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• As of October 1, 2013

• Can be issued against any party regulated by the OH&S legislation

• Up to $10,000 per violation per day

• Amount determined by the OH&S Officer

• 30 days to pay

• May be appealed to OH&S Council

Orders

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• Compliance Order (s. 9 of the OH&S Act)

• Stop work Order (s. 10 of the OH&S Act)

• Stop use Order (s. 11 of the OH&S Act)

Prosecutions – OH&S

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• S. 41(1) OH&S Act – a person guilty of an offence under the Act is liable for:• First offence –

• Fine of not more than $500,000 and if a continuing offence, up to an additional $30,000 per day the offence continues; or

• Imprisonment of up to 6 months; or • Fine and imprisonment.

• Second or subsequent offence –• Fine of not more than $1,000,000 and if a continuing offence, up to an additional

$60,000 per day the offence continues; or • Imprisonment of up to 12 months; or• Fine and imprisonment.

Prosecutions – OH&S

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• S. 41(2) – a person who fails to comply with a stop work order is liable to a fine of not more than $1,000,000 or imprisonment of up to 12 months or both.

• S. 41(3) – a person who knowingly makes a false statement or knowingly gives false information to an Officer engaged in an inspection or investigation is liable to a fine of not more than $1,000 or imprisonment of up to 6 months or both.

• S. 41.1 OH&S Act – alternative penalties

• Victim fine surcharge – 15% of the amount of the fine

Alberta OH&S Sentencing TrendsSource: http://work.alberta.ca/occupational-health-safety/5538.html

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CalendarYear

Number of Prosecutions

Completed

Total Penalties(fines, alternate penalties

& victim surcharge)

Range of Court Penalties(fines & alternate

penalties)

2013 7 $2,615,750 $35,750 - $1,500,000

2012 10 $3,332,500 $70,000 - $1,250,000

2011 20 $3,457,750 $10,000 - $400,000

2010 11 $1,737,250 $10,000 - $400,000

2009 7 $457,225 $4,025 - $100,750

2008 22 $5,083,000 $45,750 - $425,000

2007 12 $1,720,000 $70,750 - $350,000

2006 10 $1,534,500 $40,000 - $500,000

2005 12 $554,050 $2,000 - $100,000

2004 9 $597,500 $10,000 - $120,000

R. v. Sureway Construction Ltd., 2013 ABPC 355

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Facts• Sureway was involved in a project in Edmonton installing a storm sewer pipe.

• The crew was working on installing a vertical manhole barrel weighing 11,000 kg to be connected to horizontal piping.

• The barrel was lowered into the excavation by an excavator and 5 workers were assigned to stand at the bottom to rotate and align the barrel.

• One worker was designated as the signaler to provide directions to the excavator operator.

• The operator opened the door to clarify something with the signaler and a gust of wind blew the door open.

• The operator reached for the door and his elbow struck a control which caused the excavator to rotate.

• One of the workers in the bottom of the excavation was struck by the swinging barrel. He sustained fatal crush injuries and was pronounced dead at the work site.

R. v. Sureway Construction Ltd.

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Charges and Sentencing Submissions• Sureway was charged under the OH&S Code with failing to use a tag line

where workers are in danger due to movement of a load.

• Sureway pled guilty to the charge.

• This was Sureway’s first offence under the OH&S Act.

• The parties entered a joint submission that the appropriate quantum for the fine was $275,000.

• Sureway asked the Court to exercise its discretion under s. 41.1 of the Act to allow it to pay the amount to a specified program rather than as a fine.


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Sentencing Considerations• Guidance from R. v. Cotton Felts Ltd. (1982 Ontario Court of Appeal)

• Each case must be decided based on its own circumstances• Goal of deterrence is of “paramount importance”• Other factors include: size of the company; scope of the economic activity; extent of

actual and potential harm to the public; and the amount of the maximum penalty.

• Goal of deterrence relates not only to the accused but to other employers engaged in similar activities.

• While the financial status of the accused is relevant, it need not be minutely analyzed.

• Other factors: nature of the victim; degree of negligence; extent of attempts to comply with the legislation; degree of risk; remorse; prior record of non-compliance; extent of harm; economic impact of fine on offender; post accident activities; and reasonable foreseeability of harm that resulted.


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Sentencing Considerations Applied• Mitigating factors - long established company; no prior record; death was felt throughout

company; accepted responsibility; aware of obligations and demonstrated resolve to avoid similar accidents in the future.

• Aggravating factors – foreseeable risks at the worksite; risk that resulted in death specifically dealt with in OH&S Code; fatality was the result of the employer’s failure to comply with the clear direction in the OH&S Code.

• Sureway’s post-accident conduct – reached out to family; constructed a memorial hockey arena in the deceased’s name; developed procedure to assist in managing hazards of manhole barrels; worked with manufacturer to create new design which permitted the use of a tag-line system; policies were revised. • But the Court stated the engineering and procedural changes could and should have

been done before the fatality – they were mandated or contemplated by the OH&S Act and Code.

• High monetary penalty was needed to achieve deterrence - $275,000 was appropriate, inclusive of the victim fine surcharge.


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Alternative Penalties• Sureway proposed that the $275,000 be invested in an academic

proposal to enhance educational programming related to engineering safety and risk management or into a bursary or prize fund.

• Court found this was not appropriate under section 41.1 of the OH&S Act – death was not due to deficient engineering education and programming.

R. v. XI Technologies Inc. – 2013 ABQB 651

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Facts• XI Technologies was having a customer appreciation event during the

Calgary Stampede.

• They rented a calf roping machine to entertain clients.

• The machine did not work properly but the employees developed a procedure which required someone (an employee) 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, fatally striking an employee in the head.

R. v. XI Technologies Inc.

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Charges and Sentencing Submissions• XI Technologies was found guilty of failing to ensure the health and

safety of its workers and failing to ensure that all equipment used at the work site would safely perform the function for which it was intended or designed.

• The Crown proposed a fine of $400,000.

• XI Technologies argued that was too high given the unique circumstances.


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Sentencing Considerations• Noted the Legislature’s increase to the maximum fines under the OH&S

Act from $150,000 to $500,000 for a first offence – highlighted the significance placed on worker safety and acted to ensure the fines were a sufficient deterrent for larger corporations.

• Highlighted importance of deterrence, quoting from Cotton Felts: “…without being harsh, the fine must be substantial enough to warn others that the offence will not be tolerated. It must not appear to be a mere licence fee for illegal activity.”

• Fines should be higher in cases of gross negligence or where the consequences of the breach are serious such as a fatality.


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Sentencing Considerations Applied• Mitigating factors – the work environment was not the usual workplace and the

employee’s activities were unique; employer was not operating the machine to make a profit; the risk of death was not probable; employer had taken sincere, albeit inadequate steps to ensure safety; employer was genuinely remorseful; no prior record, donation made to fund a memorial bursary.

• Aggravating factors – need for deterrence; resulted in fatality.

• XI Technologies was sentenced to a $275,000 fine inclusive of the victim fine surcharge -

• Count 1 - $100,000;

• Count 2 - $175,000.

• This took into account the donation made but not dollar-for-dollar.

Recent Examples of the Alberta Courts’ Willingness to Impose Very Large Penalties

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R. v. SSEC Canada Ltd. – sentencing January 24, 2013

• Two workers were fatally injured, two were seriously injured and three received minor injuries when a tank roof support structure collapsed at the work site.

• SSEC pled guilty to three charges of failing to ensure the health and safety of a worker.

• Sentenced to a $1.5 million penalty -

• $200,000 fine; and

• $1.3 million payment to the Alberta Law Foundation to support an outreach and education program.

Recent Examples of the Alberta Courts’ Willingness to Impose Very Large Penalties

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R. v. Perera Development Corp. – sentencing June 4, 2012

• Dump truck driver was fatally injured when a 15 metre high wall of dirt and rock collapsed on him at an excavation site, crushing him inside the cab of the truck.

• Two related companies were convicted of multiple violations as employer and/or prime contractor.

• The judge described their conduct as “egregious and outrageous”.

• Perera Development Corporation was fined a total of $1.25 million plus the 15% victim fine surcharge.

• Perera Shawnee Ltd. was fined a total of $900,000 plus the 15% victim fine surcharge.

Jail Time for OH&S Offences?

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• Imprisonment for OH&S offences is rare.

• Two recent cases from Ontario may signal a trend that courts are becoming more willing to impose jail terms.


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R. v. J.R. Contracting Property Services et al, 2014 ONCJ 115

• A worker was permanently paralyzed when he slipped and fell from a roof over 3 metres high while throwing down loose shingles.

• There was no fall protection on site at the time and the employee had never been trained on the use of fall protection equipment.

• The corporation was charged as an employer and a female employee was charged as a supervisor under Ontario’s OH&S Act. Following a trial, the defendants were convicted of all charges.


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R. v. J.R. Contracting Property Services• The court sentenced the supervisor to 45 days in jail based on the

following factors:• She had several unpaid fines for environmental violations (totaling over

$50,000), displaying a “serious disregard for public welfare statutes”;• She had previously been sent to jail for two prior offences;• She continued to flout various regulatory standards in the workplace;• There was little hope for her rehabilitation;• There was a need for specific and general deterrence;• She did not express remorse; and• Even though the convictions were not for OH&S offences, the law permitted the

court to consider them.

• The court’s ability to consider previous convictions under other Acts was found in an obscure Ontario statute.


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R. v. Roofing Medics Ltd. et al., 2013 ONCJ 646• A worker was fatally injured when he fell from a ladder while working on a

roofing project, landing on a fence.

• The worker was wearing a harness and a lanyard but the lanyard was not attached to anything.

• The corporation was convicted as an employer and the owner/operator was convicted as a supervisor for failing to ensure the worker used a fall arrest system and for furnishing an inspector with false information.

• He had initially told police that the worker had been helping him install roofing at his house as a friend. 7 days later, he told the inspectors the truth that the worker had been injured at the workplace.


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R. v. Roofing Medics Ltd.• The court sentenced the owner to 10 days in jail for the fall arrest offence and 5 days in jail

for deceiving the inspectors. The following factors were key:• The court recognized that historically, jail sentences were the exception.• Individual deterrence was not a significant concern vis-à-vis the owner.• A jail sentence was necessary to deter others from ignoring the legislated fall protection

requirements –

“Others in the industry must pause to consider that each and every time they embark on a roofing project they may go to jail if one of their employees does not use fall protection gear. It is unacceptable for any roofer to be injured or to die as a result of a fall off a roof. These injuries and deaths can be prevented. Since the industry has not been able to accomplish prevention to date, it is appropriate for the Court to send a message that offenders will be dealt with harshly.”

• While the owner was not being made an example, it was clear in the industry and for the owner, that fines were not sufficient deterrence for these offences.

• The Court warned that in future cases, jail sentences could be longer and could become the norm.

Managing Harassment in the Workplace: Lessons Learned from The City of Calgary v. Canadian Union of Public Employees, Local 38 and Boucher v. Wal-Mart

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Adrian ElmsliePartner

Introduction

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City of Calgary v. Canadian Union of Public Employees, Local 38

• Grievance arbitration award arising out of a sexual harassment and retaliation complaint.

• Primary focus of the award is the “flawed nature of the City’s response” to the complaints.

• Provides an extremely good example of what not to do when investigating and reacting to a harassment complaint.

Facts - Background

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Parties Involved:

• City of Calgary – the Employer;

• The Grievor – a clerk working at one of the City’s road maintenance divisions;

• Terry Mutton (“Mutton”) - Senior Foreman who held or had held local, provincial and national executive positions with CUPE;

• Mike Wierzbicki (“Wierzbicki”) - Manager of the District (Mutton’s direct supervisor);

• Dean Bell ('Bell") - Manager of Road Maintenance (Wierzbicki’s direct supervisor); and

• Ryan Jestin ("Jestin") - Director of Roads to whom Bell reported.

The Sexual Assaults

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• The Grievor was sexually assaulted by Mutton on November 8, 15, 16, 17, 18, 22, 23 and 24, 2010 while at work.

• Assaults consisted of fondling while she was at her desk.

• Grievor reported the assaults to Wierzbicki on November 24, 2010.

• Grievor did not provide a name to Wierzbicki, but did provide enough information to Wierzbicki for him to at least have a clue as to who was perpetrating the assaults.

The Sexual Assaults

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• Wierzbicki proposed a solution - an extension to the Grievor’s desk to make it more difficult to approach her from behind (which was installed two weeks later).

• Wierzbicki did not initiate any investigation or take any further steps to address the Grievor’s concerns.

• Wierzbicki then left on a one week vacation leaving Mutton in charge of the Grievor’s workplace.

• Mutton continued to assault the Grievor during the entire week of November 29, 2010.

The Sexual Assaults

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• Fearing that she would not be believed the Grievor and her husband installed a spy camera at her desk on December 2, 2010 which caught Mutton's assault of December 3, 2010 on camera.

• The Grievor's husband contacted Jestin and a meeting was arranged for December 10, 2010.

• The Grievor and her husband met with Bell and the Grievor described the assaults and provided still pictures from the camera.

• There were discussions at that meeting about a number of items including the necessity for an investigation and information about counseling.

• Bell returned the photos to the Grievor.

The Sexual Assaults

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• After the meeting Bell sent an e-mail to Corporate Security about the Grievor’s allegations requesting an investigation, but stated that the photos were, “in his opinion, inconclusive”.

• On December 13, 2010, Mutton was suspended.

• The Grievor called the police and on December 15, 2010 and they attended the worksite and later picked up the photos.

• The Grievor remained in the workplace.

The Retaliation

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• On December 20, 2010 when the Grievor arrived at work it appeared that her keyboard had been sabotaged with what she believed was rat poison.

• City management was concerned that it was part of the "rat culture" that was well known to exist among outside workers at the City.

• An investigation into the rat poison incident was commenced but never completed.

• As a result of that incident the Grievor was temporarily moved to a different facility.

Return to Previous Position

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• Mutton was charged with sexual assault on January 5, 2011.

• Mutton ultimately pled guilty to the charge and was sentenced on April18, 2012 to 90 days incarceration to be served intermittently followed by two years' probation.

• On January 15, 2011 Bell directed the Grievor to return to her previous position even though the investigation with respect to the keyboard was still outstanding.


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• When the Grievor raised concerns about her return, Wierzbicki suggesting that the contaminants on the keyboard were mouse droppings.

• The Grievor responded to this with a pointed reply which resulted in a rebuke of the Grievor from Bell who stated:

"Mike was and will soon again be, your supervisor. You needto think hard about how you speak to people, specifically thelack of respect that you consistently display. I suggest you re-read the city's Respectful Workplace policy. Consider thiscounseling".


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• On January 6, 2011 Bell learned that the Grievor intended to meet with the mayor.

• In response, the City decided to require the Grievor to attend a mandatory psychiatric IME on January 10, 2011.

• The Grievor refused to go through with the assessment and took vacation for the week of January 10, 2011.

• After her vacation the Grievor returned to work at which time Wierzbicki required her to provide a fitness to return to work certificate.


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• The Grievor provided a note from her doctor who reported continued anxiety about the events and reported adverse effects on the Grievor including her relationship with her husband.

• When the Grievor returned to work Wierzbicki reviewed the City’s rules of conduct with her and she was warned that "any types of disrespectful workplace behavior will be dealt with in a disciplinary manner''.

• The Grievor took exception to this and asserted that she was being blamed for what had occurred but she was the victim.

The Grievance

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• In late January 2011 the Grievor filed a grievance and a human rights complaint.

• As a result of the grievance, the Grievor was temporarily transferred to a new division and it was agreed that the grievance would deal with both the alleged breach of the collective agreement and the human rights complaint.

• Bell responded to the grievance indicating that he was “satisfied that management acted appropriately"

The Grievor’s New Position – Continued Problems

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• The Grievor was off on STD from March 2 to March 13, 2011 (diagnosed with PTSD).

• The Grievor was off work again from early April 2011 to June 8, 2011.

• On May 11, 2011, the Grievor’s family doctor directed that the Grievor not be returned to her previous position.

• The Grievor was placed in a one year term clerical position in a different department based at City Hall.

• The Grievor worked in that position from June 8, 2011 to August 3, 2011 during which the City raised concerns about the Grievor’s performance.

The Grievor’s New Position – Continued Problems

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• The Grievor never returned to work after August 3, 2011.

• The Grievor was hospitalized on a number of occasions due to suicidal ideation and continued to received medical treatment and counseling.

• A joint psychiatric assessment obtained by the City and the Union indicated that the Grievor’s ongoing problems were a direct result of the sexual assaults and aftermath.

The Decision – General Comments

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• Arbitration Panel was extremely critical of the City’s handling of the Grievor’s complaint:

What is particularly troubling is what occurred after she reported the sexual assaults perpetrated upon her. [When the City’s conduct is reviewed]… the only conclusion that can be reached is that there was a total failure on the part of those responsible to meet the obligations under the Collective Agreement, human rights legislation, occupational and health safety legislation and the City's Respectful Workplace Policy.

…

The history of this matter demonstrates that at best there was a flawed observation of [the City’s Respectful Workplace Policy] and at worse no compliance at all. In the result the Griever was a treated as a problem to be managed, as opposed to a victim to be supported, and it is that treatment which contributed significantly to the ultimate state in which the Griever finds herself.

The Decision - Specific Criticisms

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1. The failure to initiate an investigation in the first instance.

2. Wierzbicki going on vacation leaving the perpetrator of the abuse in charge of the worksite.

3. Bell’s conclusion that the photographic evidence provided to him was “inconclusive” and his failure to remove the Grievor from the workplace or take any steps to ensure that there were no reprisals.

4. Bell’s failure to ensure the completion of the investigation into the rat poison allegation.

5. Bell’s ordering of the Grievor back to her previous position even though the rat poison allegation had not been investigated.

The Decision - Specific Criticisms

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6. Bell’s taking offence when the Grievor complained about her safety and “counseling” her for being disrespectful.

7. Sending the Grievor for an IME with a psychiatrist.

8. Ordering the Grievor to provide a fitness to return to work certificate from her doctor even though she was on vacation and had not claimed she was sick.

9. Wierzbicki warning the Grievor upon her return any disrespect would result in discipline.

10.The City’s constant denial of any wrongdoing throughout the grievance procedure.

The Decision – The Award

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1. General Damages in the sum of $125,000;

2. Loss of past income in the sum of $135,630;

3. Loss of future income of $512,149 less the reduction arising from the application of the 10% part-time contingency and the application of the discount rate of 2.25%;

4. Pension loss of $68,243, less the reduction arising from the application of the discount rate of 2.25%; and

5. Special damages in the sum of $28,000.

Total – Over $700,000

Common Law Case - Boucher v. Wal-Mart, 2014 ONCA 419

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• Ontario Court of Appeal partially upholding a jury award for constructive dismissal that was the result of supervisor harassment.

• Wal-Mart criticized for failures in its investigation process:

a. Disclosed the Plaintiff’s confidential complaint contrary to its own policies;

b. Concluded that the Plaintiff’s complaint was “unsubstantiated” without interviewing several witnesses to the abusive behaviour;

c. Threatened to discipline the Plaintiff when she brought forward a claim for retaliation;

d. Did nothing to stop the abuse and harassment.

Recent Common Law Case - Boucher v. Wal-Mart, 2014 ONCA 419

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At trial jury awarded the Plaintiff:

• $100,000 against the supervisor personally for intentional infliction of mental suffering;

• $150,000 punitive damages against the supervisor personally;

• $200,000 aggravated damages against Wal-Mart;

• $1,000,000 Punitive damages against Wal-Mart; and

• 20 weeks’ pay in lieu of notice in accordance with the Plaintiff’s employment contract.

Total: $1,450,000

Recent Common Law Case - Boucher v. Wal-Mart, 2014 ONCA 419

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Court of Appeal upheld the awards, but reduced some of the damages:

• $100,000 against the supervisor personally for intentional infliction of mental suffering (upheld);

• Punitive damages against the supervisor personally reduced to $10,000;

• $200,000 aggravated damages against Wal-Mart (upheld);

• Punitive damages against Wal-Mart reduced to $100,000; and

• 20 weeks’ pay in lieu of notice in accordance with the Plaintiff’s employment contract.

Total: $410,000

Lessons Learned

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1. Treat complaints seriously.

2. Act promptly.

3. Diffuse workplace tensions and risks pending investigation (separate the Respondent from the Complainant).

4. Review applicable policies (and collective agreements) and ensure that the investigation is conducted in accordance with such documents.

5. Do not jump to conclusions or make assumptions regarding the outcome of the investigation or the legitimacy of the complaint.

Lessons Learned

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6. Notify the Respondent and warn about interference with the investigation and retaliation.

7. Speak to all potential witnesses and consider all available evidence.

8. Finish the investigation and draft a report that includes details regarding the evidence considered and the conclusions reached.

9. Implement any recommendations made in the report.

Questions?

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Thank you! Adrian Elmslie [email protected] 780 423 7364Fausto Franceschi [email protected] 780 423 7348Joe Hunder [email protected] 780 423 7354Cristina Wendel [email protected] 780 423 7353Colleen Verville [email protected] 780 423 7103Alison Walsh [email protected] 780 423 7147Lauren Ignacz [email protected] 780 423 7252