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2015 IN REVIEW – A Look Back at the Top Cases and Key Legislative Changes that Impacted your Workplace

Many important decisions and legislative changes occurred in 2015. Over the course of the year, CCP blogged these developments – here is a recap of our “top 10” cases and most significant changes along with links to the original blogs. Enjoy!

Top Labour and Employment Cases of 2015

1. Wilson v Atomic Energy of Canada 2015 FCA 17: In January, the Federal Court of Appeal clarified that federally-regulated employees may be dismissed on a without cause basis under the Canada Labour Code. The Federal Court of Appeal determined that s.240 of the Code should not be interpreted in a way that an employer was required to prove just cause or risk reinstatement of the terminated employee.Read more here.
2. Patridge v Botony Dental Corp 2015 ONSC 343: In January, Ontario adopted the Federal Court’s approach to determining claims of family status. Ontario clarified that in order for a complainant to make out a claim based on family status he or she would be required to prove that the child is under the individual’s supervision, that the obligation at issue is a legal responsibility, that reasonable alternatives have been pursued and that the workplace rule interferes in a way that is more than trivial or insubstantial. Read more here.
3. Baroch v Canada Cartage 2015 ONSC 40: In January, the Ontario Superior Court certified another class action for overtime for $100 million. This class action was for unpaid overtime under the Canada Labour Code. This case served as a reminder for employers of the potential costs of non-compliance with provincial or federal overtime requirements. Read more here.
4. Federation of Labour v Saskatchewan 2015 SCC 4: Also in January, the Supreme Court of Canada affirmed that the “right to strike” is part of collective bargaining and that this right is protected by section 2(d) of the Canadian Charter. Read more here.
5. Potter v New Brunswick (Legal Aid Services Commission) 2015 SCC 10: In March, the Supreme Court of Canada weighed in on a second employment related issue when it ruled that an administrative suspension constituted a constructive dismissal. The Court held that when the employer placed the employee on suspension without adequate reasons that constructive dismissal occurred. The Court also established that the employer had the onus to demonstrate that the suspension was reasonable and justified. Employers should keep the Court’s decision in mind when using an administrative suspension. Read more here.
6. Kielb v National Money Mart Company 2015 ONSC 3790: In April, Susan Crawford, successfully argued for the enforcement of termination provisions in a wrongful dismissal lawsuit. The employer successfully relied on the termination provisions and avoided paying out a bonus. Despite the plaintiff being sophisticated, employers can still take away the principle that clearly worded termination provisions can successfully be relied on. Read more here.
7. O.P.T. v Presteve Foods Ltd 2015 HRTO 675: In May, the Ontario Human Rights Tribunal made the highest general damages award in Canadian Human Rights history. An order was made against the personal respondent and the company to pay $150,000.00 as compensation for injury to her dignity, feelings and self-respect. Human Rights damages also made headlines in British Columbia in November when British Columbia’s Supreme Court overturned a damage award of $75,000.00. Read more here.
8. Calgary (City) v Canadian Union of Public Employees, Local 38 2015 CanLII 43613: The impact of an employee’s behavior, outside of work, on their employment made news in 2015 as both the Jian Ghomeshi story and the harassing remarks of a Hydro One engineer at an MLS game compelled employers and employees alike to consider how off duty conduct impacts the employment relationship. In June, we wrote about how a Facebook post led an arbitrator to refuse to reinstate an employee. Read more here.
9. R v Vadim Kazenelson 2015 ONSC 3639: The project manager of the incident in December 2009 where four (4) workers fell to their deaths while repairing balconies was found guilty in June, 2015. Recently, the sentence for Mr. Kazenelson was announced as 3.5 years of jail time. Read more here.
10. Steel v Coast Savings Credit Union 2015 BCCA 127: In September, the Supreme Court denied leave to appeal from a decision where the British Columbia Court of Appeal upheld a just cause termination for a single incident that breached the trust fundamental to employment. Read more here.

Legislative Changes

1. Accessibility for Ontarians with Disabilities Act (AODA): Although AODA has been in force since 2005, 2015 was a year of preparation for upcoming compliance deadlines for many employers. Read more here.
2. Employment Standards Act: As of February 20, 2015 there is no longer a cap on unpaid wages that can be ordered by an officer.Self-auditing requirements came into force on May 20, 2015. Additionally, as of November 20, 2015 clients of temporary help agencies are deemed to be employers of assignment employees.Read more here.
3. Employees Voting Rights Act: The Act came into force on June 16, 2015. With respect to certification of federally regulated employers, the option of card based certification was removed and replaced with a right to a secret-ballot vote. The Act also introduced a lower threshold, 40%, that needs to be obtained for a representation vote in the decertification process. Additionally, decertification is now possible even if no collective agreement is in place. Read more here.
4. Labour Relations Act:Changes to the construction industry provisions came into effect on May 20, 2015. The open period was shortened to two months and a separate two month period was made available to employees to apply to the Board for a declaration that a trade union no longer represents them as bargaining agent.Read more here.
5. Occupational Health and Safety Act: On April 1, 2015 the new Working at Heights Training Standard came into effect. New training was set out under the standard as well as deadlines for compliance. Read more here.
6. Ontario Retirement Pension Plan Act, 2015: The Ontario Government continued to move forward with its plan to implement the ORPP in 2015. The Government passed legislation indicating that the government will establish the ORPP by January 1, 2017. Read more here.
7. Proposed New WSIB Premium Wage Rate Framework: Although no legislative changes have yet been implemented consultation occurred in 2015 regarding a proposed reform of the employer classification and experience rating systems. Read more here.
8. Sexual Violence and Harassment Action Plan Act, 2015: Ontario took legislative steps this year to crackdown on sexual violence and harassment in the workplace.If this Bill successfully passes the legislative process it will amend the Occupational Health and Safety Act. Read more here.
9. Violence Prevention for Health Care Workers: Although there are no legislative changes yet, 2015 prompted discussion by the Ontario government and key stakeholders on how best to address workplace violence and harassment for health care workers. Read more here.
10. Bill 12, Protecting Employees’ Tips Act, 2015: The Ontario government passed legislation in December which made it illegal for employers to withhold tips from workers. This new legislation allows the Ministry of Labour to collect tips as if they were unpaid wages under the Employment Standards Act. This legislation will come into force in June 2016. Read more here.