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Court Refuses to Issue Injunction Against Termination of Unvaccinated Hospital Employees

In a recent Ontario case that made headlines, a court first issued and then dissolved an interim injunction against the termination of hospital employees who had failed to comply with the employer’s mandatory COVID-19 vaccination policy.

Employer Adopts Mandatory COVID-19 Vaccination Policy

The employer, Toronto’s University Health Network, which is made up of a collection of hospitals and other healthcare facilities, had recently adopted an employment policy requiring all of its more than 17,000 employees to be fully vaccinated or face termination of their employment commencing October 22, 2021.

In response, on Friday, October 22, 2021, a group of its employees, some of whom were part of the union and some who were not, brought an urgent motion before the court. The urgent motion was for an interim injunction against the employer on behalf of the approximately 180 employees who were at risk of termination for their refusal to accept the COVID-19 vaccine.

In response, the employer argued that the court had no jurisdiction to issue an injunction for the unionized employees. It submitted that the unionized employees had to proceed through arbitration, not through the courts.

Court Issues Interim Injunction Against Employee Termination

Following the emergency hearing on October 22, 2021, and despite the employer’s jurisdictional objection, the court issued the injunction stating:

“I am satisfied that the status quo can be preserved without irreparable harm to any party until a proper hearing can take place on Thursday next. The harm raised by the [employees] is potentially serious and cannot be undone. It is alleged that some or all of them may be compelled to take the vaccine against their will because they cannot in their personal and family circumstances take the risk of being left destitute by the policy they are seeking to challenge.

It appears from the limited evidence before me that nothing material need happen before Thursday at all events. The affected employees are not scheduled to be working in the first few days of next week. What danger their presence at work might potentially have posed is not in issue because they will not be working anyway. All or most of them may have been scheduled to be formally terminated this afternoon.”

The court then issued several procedural orders relating to the subsequent hearing, which was scheduled for the following Thursday, October 28, 2021.

Court Asked to Issue Injunction At Subsequent Hearing

The subsequent hearing was held on October 28, 2021 and the court’s decision was issued the following day.

At the outset, the court set out the three-part test the employees had to meet in order for it to issue an injunction, as set out by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), namely:

Is there a serious issue to be tried on the question of liability?

Is there a real potential for irreparable harm to ensue if relief is not granted? and

Does the balance of convenience favour the granting of relief at this early stage?

Court Examines Whether Unionized Employees Have Standing to Bring Claim

The first question the court addressed was whether the unionized employees had standing to seek relief with the court. The employer argued that the unionized employees had to resolve their dispute through arbitration.

The court then reviewed the principles regarding the question of “exclusive jurisdiction” as set out by the Supreme Court of Canada in Weber v. Ontario Hydro. One of the Weber principles asks the court to determine the “essential character” of the dispute in order to determine the proper jurisdiction for its resolution.

Court Determines Essential Character of Dispute

The court ultimately held that the essential character of the dispute before it went to the very core of the parties’ collective bargaining and relationship. The court found that because the employees’ claim called into question the employer’s right to enact and enforce its COVID-19 policy, the employer’s management rights as well as the parties’ bargained-for health and safety policies under the relevant collective agreements had to be given consideration and were fundamental to the dispute. In addition, the court observed:

“The claim disputes the right of the employer to terminate the employment of the affected employees. There are few aspects of a collective agreement more fundamental than establishing what does and does not constitute just cause for the discipline or termination of employment of an employee subject to it. The very foundation of the dispute depends on the existence of the collective agreements since … there is simply no general right to interfere with the decision of an employer to terminate the employment of an employee with or without cause.”

Finally, the court found that it was significant that all the affected unions had filed a variety of individual and policy grievances in relation to the vaccination policy.

Court Rules That Unionized Employees Do Not Have Standing to Bring Claim

As such, the court held that the essential character of the dispute advanced by the employees fell squarely within the ambit of the collective agreements to which the unionized members were party.

The court therefore ruled that the unionized employees did not have standing to seek relief before the court.

As such, the court ruled that they had failed the first part of the RJR-MacDonald test because their lack of standing meant that they could not prove that there was a serious issue to be tried on the question liability. Thus, the court stated that no injunction could be issued for unionized employees and dissolved the previously issued injunction in their regard.

Court Dissolves Interim Injunction for Unionized and Non-Unionized Employees

Having refused to issue an injunction for unionized employees, the court then turned to the issue of the non-unionized employees.

Ultimately, the court found that because private-sector employment may be terminated at will, subject to rules surrounding compensation, the non-unionized employees would have difficulty proving irreparable harm arising from threatened termination of employment, stating:

“If the termination of their employment is not justified, they are not entitled to their job back – they are entitled to money. Money, by definition is not only an adequate remedy it is the only remedy.”

The court therefore dissolved the interim injunction as it related to non-union employees as well.

Contact Peter McSherry, Guelph Employment Lawyer for Experienced Advice on Mandatory Employer Policies

If you are an employee concerned about the legality of workplace policies, or an employer looking to ensure you stay compliant with health and safety regulations as they relate to COVID-19, contact the offices of Peter McSherry Employment Lawyer in Guelph. We regularly assist employees with employment and labour issues. Contact us online or by phone at 519-821-5465 to schedule a consultation with Peter A. McSherry.

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#COVID-19 and the Workplace

Supreme Court of Canada Extends Labour Arbitration Jurisdiction to Human Rights Dispute

Last week, the Supreme Court of Canada released a decision in which it ruled that a unionized employee’s claim of discrimination should be heard by an arbitrator, rather than a human rights adjudicator.

Employee Fired for Alcohol Consumption

The employee was part of a union.

In 2011, she was suspended by the employer for attending work under the influence of alcohol. She subsequently disclosed to the employer that she had an addiction to alcohol. The employer offered to enter into a “last chance agreement” with her wherein she would be required to abstain from alcohol and engage in addiction treatment.

After the employee refused to sign the agreement, she was fired.

However, the union filed a grievance and she was reinstated by the arbitrator under similar terms to those in the agreement.

Shortly thereafter, she was fired again for an alleged breach of those terms.

Employee Files Complaint of Discrimination

Following her second termination, the employee filed a complaint with the Manitoba Human Rights Commission (the “Commission”) alleging that the employer had failed to sufficiently accommodate her disability as it related to her alcohol addiction.

The complaint was heard by an adjudicator appointed under Manitoba’s Human Rights Code. However, the employer objected to the adjudicator’s jurisdiction, arguing that the 1995 Supreme Court of Canada Weber v. Ontario Hydro had recognized the exclusive jurisdiction of an arbitrator appointed under a collective agreement, and that exclusive arbitral jurisdiction extended to human rights complaints arising from a unionized workplace.

Adjudicator Rules on Jurisdictional Matter

The adjudicator rejected the employer’s submissions on jurisdiction, holding that the essential character of the employee’s dispute was an alleged human rights violation and the Commission therefore had jurisdiction.

The employer filed for judicial review of the adjudicator’s decision with the court.

Lower Court Finds in Favour of Arbitral Jurisdiction

On juridical review, the court found that the adjudicator had erred in characterizing the essential character of the dispute. It found that the essential character was whether the employer had just cause to fire the employee and ruled that a dispute that included a human rights violation that was associated with termination was within the exclusive jurisdiction of labour arbitration. The court therefore set aside the adjudicator’s decision on the issue of jurisdiction.

The employee and the Commission appealed.

Court of Appeal Finds Against Arbitral Jurisdiction

The Court of Appeal agreed with the lower court’s conclusion that disputes concerning the termination of a unionized worker lie within the exclusive jurisdiction of a labour arbitrator, including where the dispute alleges human rights violations. However, it ultimately allowed the appeal, finding that the adjudicator had jurisdiction for several reasons.

The employer appealed the decision to the Supreme Court of Canada.

The main issue before the Supreme Court of Canada was whether the exclusive jurisdiction of a labour arbitrator appointed under a collective agreement extended to human rights disputes that arise therefrom.

Supreme Court of Canada Explains Principles of Exclusive Arbitral Jurisdiction

The Supreme Court of Canada began by reviewing and explaining the general principles underlying an exclusive arbitral jurisdiction determination as follows:

“[R]esolving jurisdictional contests between labour arbitrators and competing statutory tribunals entails a twostep analysis. First, the relevant legislation must be examined to determine whether it grants the arbitrator exclusive jurisdiction and, if so, over what matters …. Where the legislation includes a mandatory dispute resolution clause, an arbitrator empowered under that clause has the exclusive jurisdiction to decide all disputes arising from the collective agreement, subject to clearly expressed legislative intent to the contrary.

If at the first step it is determined that the legislation grants the labour arbitrator exclusive jurisdiction, the next step is to determine whether the dispute falls within the scope of that jurisdiction …. The scope of an arbitrator’s exclusive jurisdiction will depend on the precise language of the statute but, in general, it will extend to all disputes that arise, in their essential character, from the interpretation, application, or alleged violation of the collective agreement. This requires analysing the ambit of the collective agreement and accounting for the factual circumstances underpinning the dispute …. The relevant inquiry is into the facts alleged, not the legal characterization of the matter.

Where two tribunals have concurrent jurisdiction over a dispute, the decisionmaker must consider whether to exercise its jurisdiction in the circumstances of a particular case.”

Supreme Court of Canada Rules That Complaint Must be Decided by Arbitration

In the result, the court allowed the appeal, ruling that the dispute fell within the exclusive jurisdiction of arbitration and, thus, the human rights adjudicator did not have jurisdiction in this case.

Ultimately, the court found that the essential character of the employee’s complaint was an allegation of a violation of the collective agreement, and it thus fell squarely within the arbitrator’s mandate. Because the Human Rights Code does not clearly express legislative intent to grant concurrent jurisdiction to the adjudicator over such disputes, the court ruled that the adjudicator did not have jurisdiction over the complaint, and the appeal was allowed.

Contact Guelph Employment Lawyer Peter A. McSherry for Experienced Advice on Discrimination in the Workplace

At Peter A. McSherry Employment Lawyer in Guelph, Peter McSherry has represented clients in all areas of employment since being called to the Ontario Bar in 1997. Peter provides each of my clients with compassionate care, attentive service and the efficient resolution of legal issues. If you are a unionized or non-unionized worker who has been discriminated against in the workplace, contact Peter to schedule an initial consultation by calling 519-821-5465 or by e-mailing. Harassment and discrimination cases are not to be taken lightly. Your rights deserve protection, and you deserve to work in a non-hostile work environment.

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#Discrimination

Employer Discriminated Against Pregnant Employee Despite Claiming to Not Know About Pregnancy

In a recent Alberta case, the Human Rights Tribunal ruled that an employer had discriminated against an employee on the basis of gender (pregnancy) despite its claim that it had no knowledge of her pregnancy at the time it fired her.

Law on Discrimination Based on Pregnancy in Ontario and Alberta

In Alberta, as in Ontario, it is illegal to discriminate against a person based on gender/sex. Discrimination based on gender/sex includes discrimination based on pregnancy.

Specifically, s. 10(2) of Ontario’s Human Rights Code states:

“Pregnancy (2) The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.”

Similarly, s. 44(2) of Alberta’s Human Rights Code states:

“(2) Whenever this Act protects a person from being adversely dealt with on the basis of gender, the protection includes, without limitation, protection of a female from being adversely dealt with on the basis of pregnancy.”

Pregnant Employee Seeks Accommodation

The employee had worked as an instructor at a technical college in Alberta for approximately two years.

On May 8, 2013, the employee found out that she was pregnant after going to see her doctor. They discussed the high-risk nature of the pregnancy and the need for accommodation at work, including a reduced workload, changing her hours of work to address acute morning sickness, and imposing a physical lifting restriction.

The next day, she met with the employer and advised that she had a medical issue that required accommodation, including a reduced workload and no morning teaching duties.

There was a brief discussion about the lifting restriction and the possibility of a leave of absence but no resolution on the accommodation request occurred during the meeting. Instead, the parties agreed to meet again the next morning to continue the discussion.

Employee Terminated After Seeking Accommodation

On the morning of May 10, 2013, the employee again met with the employer. It was a short meeting at which the employer told the employee that her employment was being terminated.

As a result, the employee filed a complaint with the Human Rights Tribunal alleging discrimination based on gender (pregnancy). She claimed that when she asked for accommodation, she specifically told the employer that she was asking on the basis of her pregnancy.

In response, the employer claimed to have no knowledge of the employee’s pregnancy. It stated that the employee only told it that she had a medical condition and was seeking accommodation. The employer contended that it did not inquire into the nature of her medical condition and that its decision to terminate her employment the next day was due to her request for accommodation. It argued that in order to prove discrimination based on pregnancy/gender, the employee had to prove that it had specific knowledge of the pregnancy, which it denied.

Court Rejects Employer’s Claim On Pregnancy

At the outset, the Tribunal rejected the employer’s claim and found that the employee had made out a prima facie case of discrimination, stating:

“It is unnecessary to resolve the dispute in the evidence about whether the complainant told [the employer] that she was pregnant or not, because discrimination is established either way. It is undisputed that the complainant informed the [employer] of a medical issue and requested accommodation. The medical issue and request for accommodation were both related to her pregnancy. [The employer] conceded that [it] did not inquire into the nature of the complainant’s medical condition, and that [its] decision to terminate her employment the next day was due to her request for accommodation. The complainant’s pregnancy was a factor in the termination because her pregnancy was the medical condition that required accommodation. That accommodation triggered her termination….

The [employer] chose not to make further inquiries about the nature of the medical condition or possible accommodation. It cannot hide behind its own inaction to say that the wrong protected ground was cited. A “medical condition” could relate to several protected grounds, including physical disability, mental disability and, as here, gender (pregnancy). The fact that the [employer] did not know exactly what protected ground the medical condition related to does not insulate it from liability for discrimination when it knew that a protected ground was involved and decided to terminate her because she asked for accommodation.”

Tribunal Rules in Favour of Employee

Because the employee had proven a prima facie case of discrimination, the Tribunal stated that the legal burden shifted to the employer to establish a defence.

Ultimately, the Tribunal held that the employer had not established a valid legal defence and upheld the employee’s complaint.

In the result, the Tribunal, therefore, ordered the employer to pay the employee $35,000 in damages to dignity and lost wages.

Contact Guelph Employment Lawyer Peter A. McSherry for Experienced Advice on Discrimination in the Workplace

If you feel that your rights have been violated, seeking the advice of an experienced and informed employment lawyer can help you understand your rights and your options to remedy the situation.

The Ontario Human Rights Code prohibits discrimination and harassment based on race, colour, ethnic origin, religion, gender, age, disability, sexual orientation, marital status and family status. If you feel that your rights have been violated, seeking the advice of an experienced and informed employment lawyer can help you understand your options to remedy the situation. At Peter A. McSherry Employment Lawyer in Guelph, I have represented clients in all areas of employment since being called to the Ontario Bar in 1997. When you work with me, you will meet and discuss your case only with me. I provide each of my clients with compassionate care, attentive service and the efficient resolution of legal issues. Contact me today to schedule an initial consultation by calling my office at 519-821-5465 or by e-mail. Harassment and discrimination cases are not to be taken lightly. Your rights deserve protection, and you deserve to work in a non-hostile work environment.

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#Discrimination #Employment Law #Maternity Leave

Restaurant Worker Wins Human Rights Complaint Over Manager’s Use of Wrong Pronouns

In a recent Human Rights Tribunal of British Columbia decision that made headlines, a restaurant worker was awarded $30,000 in damages after the bar manager consistently refused to address the worker by their correct pronouns. The restaurant owners, in addition to the bar manager, were also found liable for terminating the worker following complaints about the manager’s conduct.

Worker Called Wrong Pronouns by Manager

The complainant, J, began working as a server at a restaurant in British Columbia beginning on May 27, 2019.

J is a non-binary, gender fluid, transgender person who uses they/them pronouns.

During the time of J’s employment at the restaurant, the restaurant’s bar manager persistently referred to J with she/her pronouns and with gendered nicknames like “sweetheart”, “honey”, and “pinky”. This occurred despite the fact that the manager had been informed of the proper pronouns used by the worker. When J asked the bar manager to stop, he did not.

Worker Files Human Rights Complaint for Use of Wrong Pronouns and Nicknames

Subsequently, J asked management to intervene on the issue, but was told to wait.

Later, J again tried to speak to the bar manager about the issue and the discussion became heated. Four days later, on June 28, 2019, J was fired.

When asked to explain the termination, one of the restaurant’s owners said that J had simply come on “too strong too fast” and was too “militant”.

In March 2020, J filed a complaint with the Human Rights Tribunal of British Columbia, alleging that the bar manager’s conduct, as well as the employer’s response, amounted to discrimination in employment based on gender identity and expression, in violation of s. 13 of the Human Rights Code (the “Code“).

Tribunal Rules That Manager’s Conduct Amounted to Discrimination

The first issue before the Tribunal was whether the bar manager’s conduct towards J amounted to discrimination.

Ultimately, the Tribunal ruled that the bar manager’s conduct did amount to discrimination against J, stating:

“All employees have the right to a workplace free of discrimination. Trans employees are entitled to recognition of, and respect for, their gender identity and expression. This begins with using their names and pronouns correctly. This is not an ‘accommodation’, it is a basic obligation that every person holds towards people in their employment….

I am satisfied that [the bar manager]’s conduct towards [J] amounted to discrimination. He was told, by his managers and directly by [J], that they are trans, non-binary, and use they/them pronouns. They are not a woman. And yet, he persisted in referring to them with female pronouns and gendered nicknames. This adversely impacted [J] in their employment based on their gender identity…

Like a name, pronouns are a fundamental part of a person’s identity. They are a primary way that people identify each other. Using correct pronouns communicates that we see and respect a person for who they are. Especially for trans, non-binary, or other non-cisgender people, using the correct pronouns validates and affirms they are a person equally deserving of respect and dignity. As [J] explained in this hearing, their pronouns are “fundamental to me feeling like I exist”. When people use the right pronouns, they can feel safe and enjoy the moment. When people do not use the right pronouns, that safety is undermined and they are forced to repeat to the world: I exist.”

Additionally, the Tribunal held that the bar manager’s use of nicknames towards J also amounted to discrimination and had undermined, erased, and degraded J’s gender identity in their place of work.

Tribunal Finds That Employer’s Response Was Discriminatory

The other issues the Tribunal addressed were whether the employer’s response to J’s complaints was reasonable and appropriate and whether J’s gender identity and expression had been a factor in J’s termination.

First, the Tribunal held that the employer’s response to J’s complaints about the bar manager’s conduct fell short of what was required by the Code.

Further, the Tribunal found that there was a clear connection between J’s gender identity and their termination and, as such, that J’s termination had violated s. 13 of the Code.

In the result, the Tribunal, therefore, upheld J’s complaint against the restaurant, the bar manager and the restaurant owners. In total, the Tribunal ordered them to pay $30,000 as compensation for injury to J’s dignity, feelings, and self-respect.

Contact Guelph Employment Lawyer Peter A. McSherry for Experienced Advice on Discrimination in the Workplace

The Ontario Human Rights Code prohibits discrimination and harassment based on race, colour, ethnic origin, religion, gender, age, disability, sexual orientation, marital status and family status. If you feel that your rights have been violated, seeking the advice of an experienced and informed employment lawyer can help you understand your options to remedy the situation. At Peter A. McSherry Employment Lawyer in Guelph, I have represented clients in all areas of employment since being called to the Ontario Bar in 1997. When you work with me, you will meet and discuss your case only with me. I provide each of my clients with compassionate care, attentive service and the efficient resolution of legal issues. Contact me today to schedule an initial consultation by calling my office at 519-821-5465 or by e-mailing me. Harassment and discrimination cases are not to be taken lightly. Your rights deserve protection, and you deserve to work in a non-hostile work environment.

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#Discrimination

University Employee Fired for Using Dating App to Meet Students

In a recent British Columbia court decision, a university employee was ultimately unsuccessful in a claim of discrimination based on sexual orientation after he was fired when the university discovered he was using a gay dating app.

University Employee Uses Dating App

The employee was an academic advisor in the Faculty of Arts at the University of British Columbia from 2006 to 2016.

Between approximately 2013 and 2016, the employee used location-based apps such as Scruff, Grindr, Manhunt and Squirt, to connect with other gay men. His Scruff profile identified himself as an employee of the University and included a photo but did not use his real name.

Over time, the employee met approximately 150 men through these apps, some of whom were other University employees and about 20 of who were University students. On one occasion, a student that the employee had previously advised at a drop-in session contacted him on Scruff, although they never met up.

University Learns of Employee’s Dating App Use

In early August 2016, an anonymous package was left for the Assistant Dean, Facilities and Human Resources in the Faculty of Arts. It contained screenshots of the employee’s profile on Scruff. One screenshot showed his location as Totem Park, a University residence.

Subsequently, the University met with the employee and showed him the screenshots. The employee agreed the screenshots depicted his profile on Scruff and admitted to meeting up with other University employees and students. At the end of the meeting, the University placed the employee on administrative leave.

University Fires Employee For Using Dating App

Later, the University met again with the employee and a union representative. The University explained its concern that the employee was identifying himself as a University employee and engaging in romantic/sexual relationships with students on social networks.

The next day, the University terminated the employee’s employment. In the termination letter, the University specifically highlighted the fact that the employee identified himself as a University employee on the app. It also highlighted his interaction through the app with a student he had advised, his admitted liaisons with students via the app, and his sexual preferences listed therein. Finally, the letter stated:

“By publicly linking your employment at the University to your profiles on social networks specifically geared towards facilitating romantic and/or sexual connections, you have clearly acted in a conflict of interest. Given your role as an Academic Advisor, your actions in declaring your employment at UBC while posting from one of our residences and expressing those preferences and interests have clearly compromised the University’s interests and risked undermining the confidence and trust of our students, their families, and the public. You were employed in a position of trust and authority with respect to students of the University and you traded on your employment to cultivate romantic and/or sexual relationships with students.”

Employee Alleges Discrimination Based on Sexual Orientation

The employee later alleged that the University and its representatives had demonstrated a discriminatory motivation and/or reliance on discriminatory stereotypes in terminating his employment. He filed a complaint with the British Columbia Human Rights Tribunal (the “Tribunal”).

Specifically, the employee alleged that his sexual orientation had been a factor in his termination based on the following arguments:

The University treated him differently than other University employees who use private dating apps but are not gay men;

The University relied on stereotypical views of gay males in interpreting his profile and concluding that he was actively seeking to hook up with students; and

The University’s reliance on its conflict of interest policy was illegitimate since the University does not prohibit sexual relationships between employees and students.

Tribunal Rejects Employee’s Complaint

In a first decision, the Tribunal member reviewed the employee’s arguments. In the result, the member determined the evidence before her was insufficient to take the complaint out of the realm of conjecture and therefore, that the University had established that it had no reasonable prospect of success, stating:

“While [the employee] need only prove that his sexual orientation was a factor in UBC’s termination of his employment, I am satisfied that he has no reasonable prospect of doing so. In that regard, I am sensitive to the fact that UBC was likely reacting to the Terms [used in his profile] through a heteronormative lens. I am also sensitive to the fact that gay men have historically been and continue to be subject to pernicious stereotypes about the way in which they express their sexuality. I have accordingly taken considerable time in contemplating [the employee]’s arguments and reviewing the evidence in that light. However, in all of the circumstances of this case, I do not see anything beyond [the employee]’s conjecture to support an inference that his sexual orientation was a factor in UBC’s placing him on administrative leave and the ultimate decision made in light of his revelation that he had in fact hooked‐up with students via the App.”

The employee sought reconsideration of the member’s decision.

Upon reconsideration, the Tribunal member also concluded that the employee’s claim had no reasonable prospect of success and confirmed the original decision.

The employee applied to the Supreme Court of British Columbia seeking judicial review of the Tribunal’s two decisions. In order to succeed, the employee had to demonstrate the decisions were patently unreasonable.

Court Rejects Employee’s Application for Judicial Review

After reviewing the Tribunal’s decisions, the court found that the Tribunal members had in fact considered the employee’s arguments but were not convinced by them. As such, it did not find the decisions to be patently unreasonable.

In the result, the court, therefore, dismissed the employee’s application for judicial review.

Contact Peter A. McSherry for Experienced Advice on Discrimination in the Workplace

If you feel that your rights have been violated, seeking the advice of an experienced and informed employment lawyer can help you understand your rights and your options to remedy the situation. Peter McSherry has extensive experience and knowledge handling cases on behalf of employees in a variety of industries. If you have been the victim of harassment or discrimination, he can help you evaluate your options and pursue the resolution that can best serve your interests and compensate for the pain and damages you have suffered. Contact Peter A. McSherry Employment Lawyer online or by calling 519-821-5465 to schedule an initial consultation. Harassment and discrimination cases are not to be taken lightly. Your rights deserve protection, and you deserve to work in a non-hostile work environment.

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#Discrimination

Ontario Human Rights Commission Issues Policy Statement on COVID-19 Proof of Vaccination Requirement

We recently wrote about a British Columbia Human Rights Tribunal decision in which it refused to allow a human rights complaint filed against the province’s COVID-19 proof of vaccination requirement on the basis of the protected characteristic of political belief in the area of employment.

Since then, the CBC has reported that the BC Human Rights Tribunal is being inundated with complaints about mask and vaccine mandates.

Ontario’s COVID-19 Proof of Vaccination

Meanwhile, Ontario, along with many other provinces, has implemented a proof of vaccination requirement for entry to many settings as of September 22, 2021. As such, people in Ontario are required to be fully vaccinated against COVID-19 and provide proof of vaccination along with photo ID to access certain public settings and facilities. By October 22, the province intends on introducing a QR code to be scanned as proof of vaccination status.

In response, the Ontario Human Rights Commission (the “OHRC”) released a policy statement last week on the COVID-19 vaccine mandates and proof of vaccination certificates.

This policy statement, while not having any force in law, should be reviewed by businesses and employers who must comply with the new requirements as well as those who intend on implementing their own policies on the issue.

Are The Vaccination Requirements Permissible?

In its policy statement, the OHCR has taken the position that mandating and requiring proof of vaccination is generally permissible under Ontario’s Human Rights Code (the “Code”).

However, the OHCR also clarified that employers and business who enforce such requirements must ensure that people who are unable to be vaccinated for Code-related reasons are reasonably accommodated. As such, organizations must balance the rights of those who are unvaccinated based on a Code-protected ground, namely disability, with the rights of others in regards to individual and collective health and safety.

When Will the Duty to Accommodate Be Triggered?

The OHCR set out the situations that will trigger an organization’s duty to accommodate, and those that won’t.

First, it explained that there are people who are unable to receive the COVID-19 vaccine for medical or disability-related reasons. In such situations, there will be a duty to accommodate as those persons are protected from discrimination under the Code. However, it should be noted that the duty to accommodate is always subject to the concept of “undue hardship” and is thus not without limits. Additionally, accommodation may not be available where it would significantly interfere with people’s health and safety.

It should also be noted that Ontario’s regime requires that people who are unable to receive the vaccine for medical or disability-related reasons must provide written proof. The OHCR has determined that exempting individuals with a documented medical inability to receive the vaccine is a reasonable accommodation within the meaning of the Code.

However, the OHCR also clarified situations in which the duty to accommodate will not be triggered. In particular, it stated that a person who chooses not to be vaccinated based on personal preference does not have the right to accommodation under the Code. Noting that creed is a protected ground under the Code, the OHRC stated that it is not aware of any tribunal or court decision that found a singular belief against vaccinations or masks amounted to a creed. The policy statement further expanded on the issue, stating:

“While the Code prohibits discrimination based on creed, personal preferences or singular beliefs do not amount to a creed for the purposes of the Code.

Even if a person could show they were denied a service or employment because of a creed-based belief against vaccinations, the duty to accommodate does not necessarily require they be exempted from vaccine mandates, certification or COVID testing requirements. The duty to accommodate can be limited if it would significantly compromise health and safety amounting to undue hardship – such as during a pandemic.”

Recommendations for Employers and Businesses

For those employers, businesses and organizations that are not required under the Ontario regime to mandate proof of vaccination but choose to implement such policies, the OHRC recommends that they use the provincial proof of vaccine certificate with the written documentation showing medical inability to receive the vaccine as their way of meeting the duty to accommodate where needed.

Additionally, it recommends that such organizations also put in place COVID-19 testing as an alternative to mandatory vaccinations or as an option for accommodating people who are unable to receive a vaccine for medical reasons. However, the OHRC noted that such testing costs would need to be covered by the organization itself as part of the duty to accommodate.

Further, the OHCR stated that organizations should ensure that any related policies also include rights-based legal safeguards for the appropriate use and handling of personal health information.

Finally, the OHRC provided the following general guidance:

“Proof of vaccine and vaccine mandate policies, or any COVID testing alternatives, that result in people being denied equal access to employment or services on Code grounds, should only be used for the shortest possible length of time. Such policies might only be justifiable during a pandemic. They should regularly be reviewed and updated to match the most current pandemic conditions, and to reflect up-to-date evidence and public health guidance.”

Concerns Raised by Proof of Vaccination Policies

Finally, the OHRC raised several concerns regarding barriers that exist for equitable vaccine access and COVID testing and the enforcement of such policies stating:

“The OHRC urges governments and organizations to take proactive steps to make sure any enforcement of vaccine mandates or proof of vaccination policies does not disproportionately target or criminalize Indigenous peoples, Black and other racialized communities, people who are experiencing homelessness, or with mental health disabilities and/or addictions.”

Contact Peter McSherry Employment Lawyer

If you are an employee concerned about the legality of workplace policies, or an employer looking to ensure you stay compliant with health and safety regulations as they relate to COVID-19, contact the offices of Guelph Peter McSherry Employment Lawyer. We regularly assist employees with employment and labour issues. Contact us online or by phone at 519-821-5465 to schedule a consultation.

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#COVID-19 and the Workplace

Two Employees Ordered to Pay Former Employer Over $1.1 Million Based on Noncompete Clauses

Noncompete clauses are more likely to be used in agreements for employees that are in sales or where the employee was a manager or executive with a former employer. Such clauses are restrictive covenants with obligations to be adhered to by law, although such clauses may be ruled to be unreasonable and/or unlawful.

In a recent Alberta decision, however, the court not only determined that the noncompete clauses signed by two employees to be lawful, but the court ordered the employees to pay over one million dollars to their former employer as a result the pricing formulas set out in the clauses.

Employees Agree to Noncompete Clauses with Employer

Two employee worked for an insurance company in Alberta. The employees had signed non-competition agreements, which included the following clause:

“For a period of 24 months after the date of termination of the Employee’s employment with [the employer], however caused, the Employee will not for any reason, directly or indirectly, either as an individual or as a partner or joint venture or as an employee, principal, consultant, agent, shareholder, officer, director or sales representative for any person, firm, association, organization, syndicate, company or corporation, or on the Employee’s own behalf, or in any other manner contact, solicit, sell, serve, direct or receive business from any person, firm or corporation in the Province of Alberta, which was a client of [the employer] at any time during the period of the Employee’s employment with [the employer], unless in respect of any such client, the Employee shall pay to [the employer] an amount equal to 250% of the total of all commissions or other income in respect of Insurance policies or related products and services of such client charged by [the employer] for premium periods commencing in the 12 month period immediately preceding the renewal date of said policies, or 250% of all such commissions or other income charged by [the employer] for the last 12 month period during which [the employer] served that client, whichever is greater.”

It should be noted that the second employee’s clause differed with a covenant for 180% rather than 250%.

Employees Leave Employer and Take Clients With Them

The first employee was a senior account executive and the director of commercial business development. The second employee worked as the account manager for the same group of clients.

However, the two employees left the employer’s business to start a new one and took 40 of the employer’s clients with them.

The employer filed an application for summary judgment with the court against the two employees based on their non-competition agreements.

Court Explains Purpose of Specific Noncompete Clauses

At the outset, the court explained the purpose of the pricing scheme in the employee’s noncompete clause, stating:

“The effect of the clause does not restrain trade but permits it at a price. It recognizes the proprietary interest and value of a broker’s Book of Business. The effect of the clause is that if you leave your old brokerage firm and join a new one, and some of the old work comes with you (whether you solicit it or not), you have to pay for it as if you bought it. The rates of 180% and 250% are consistent with figures used in the industry. There is no countervailing evidence on this point.”

The court further noted that such clauses were not prohibitions on conducting business with former customer or clients, nor were they intended to restrain trade. Rather, the court explained that the clauses simply put a price on such trade in a manner that was consistent with the price of purchasing in the industry, noting:

“The clause simply closes the door that might have permitted a former employee to receive business from former clients in the absence of any active solicitation.”

Later, it surveyed the purpose of the clause within the specific context of the insurance industry, stating:

“The clause protects the proprietary interest that a broker has in a species of property known as the Book of Business recognized in the insurance industry …. Insurance policy sales is a highly personalized business, making the old employer especially vulnerable when an employee moves to another firm, or sets up on their own. In a manner of speaking, [the employees] were the face of business at [the employer] to the clients that came over to [the employees’ new business].”

Court Upholds Clauses and Determines Damages

The court then proceeded to review the content of the clauses to determine their enforceability.

First, the court found that theamounts claimed were consistent with figures used in the industry. As such, they were not an unenforceable penalty nor ones that were extravagant and unconscionable.

Second, the court held that the time and geographic area described in the clauses were not excessive.

Finally, the court held that there was no evidence that the clause would impair consumer choice to the point where they should be unenforceable as a matter of public policy.

Having found the noncompete clauses enforceable, the court ordered that the employees were jointly and severally liable to the employer in the amount of $1,176,330, with the caveat that the second employee’s liability was limited to $870,484 according to the formula in the noncompete clauses.

Contact Peter A. McSherry Employment Lawyers For Experienced Advice on Noncompete Clauses

Has your employer asked you to sign a nonsolicitation or noncompete agreement? Have you received a cease and desist letter from your former employer? When you move from one position to the next, you may have questions about the exact limitations on your new business based on any agreement you signed with a former employer.

At Peter A. McSherry Employment Lawyers, I can help you understand the legal agreement you have signed, advise you on ways to legally work around the clause, define exactly what you are not allowed to do, and evaluate whether the clause is valid. Since 1997, I have been working on employment law in Ontario exclusively. My Guelph law practise is geared toward catering to your needs as an employee and helping you reach your objectives.

My experience as a Cambridge lawyer advising clients on non-solicitation clauses can provide you with the knowledge, resources and effective solutions necessary to obtain your best possible resolution. Contact me today by phone at 519-821-5465 or by e-mail to schedule a consultation.

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#Non-compete

Discrimination in Employment Based on Political Belief Complaint Filed Against BC’s COVID-19 Vaccination Proof Requirement

In British Columbia, as well as several other provinces, the Government has recently introduced proof of COVID-19 vaccination requirements to access certain businesses and services.

Last week, the British Columbia Human Rights Tribunal (the “Tribunal”) refused to allow a complaint to proceed after a citizen filed a complaint against the requirement on the basis of the protected characteristic of political belief in the area of employment.

Government Introduces Proof of COVID-19 Vaccination Requirements

In its announcement of the COVID-19 vaccination Services Requirements, the BC Government explained thatindividuals are required to provide proof of vaccination to access a broad range of social, recreational, and discretionary events and businesses throughout the province. Thus, as of September 13, 2021, one dose of vaccine will be required for entry to those settings. In addition, by October 24, 2021, entry to those settings will require people to be fully vaccinated at least seven days after receiving both doses. Specifically, to enter certain spaces, including indoor ticketed sporting events, indoor and patio dining in restaurants, fitness centres, casinos and indoor organized events, such as conferences and weddings, people aged 12 and older are required to show their proof of vaccination.

Complaint Lodged Against Proof of COVID-19 Vaccination Measures

Following the Government’s announcement of the Services Requirements on August 23, 2021, a British Columbia citizen (“the complainant”) filed a complaint on August 24, 2021 on behalf of “people who are opposed to being forced into getting the COVID-19 Vaccination and getting our basic human rights and freedoms stripped from us”.

Specifically, the complaint alleged that Government’s conduct discriminated based on the ground of political belief. The complaint was filed under s. 13 of the British Columbia Human Rights Code (the “Code”), which states in part:

“Discrimination in employment

13 (1) A person must not

(a) refuse to employ or refuse to continue to employ a person, or

(b) discriminate against a person regarding employment or any term or condition of employment

because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.”

Thus, the complaint filed her complaint on the basis of the protected characteristic of political belief in the area of employment.

In addition, the complainant stated in her submissions:

“The British Columbia government has made a very aggressive and unjustified move that goes against our basic human right to bodily autonomy and medical freedoms. The government has no right to tell us what goes into our bodies or threatening us into getting this vaccination by taking away our basic rights and freedoms. This is segregation, discrimination, and derogatory, and has no place in modern society.”

Tribunal Refuses to Hear Complaint on COVID-19 Vaccination Proof Requirement

The Tribunal began by explaining that in order to establish discrimination contrary to the Code, all complainants must prove that they have a characteristic protected from discrimination; that they have experienced an adverse impact in a protected area; and that the protected characteristic was a factor in the adverse impact.

Then, because the complainant hadfiled her complaint on the basis of the protected characteristic of political belief in the area of employment, the Tribunal explained that, under case law, political belief includes “public discourse on matters of public interest which involves or would require action at a governmental level”.

However, in response to the complainant’s submissions, the Tribunal stated:

“I accept that a genuinely held belief opposing government rules regarding vaccination could be a political belief within the meaning of the Code. In saying this, however, I stress that protection from discrimination based on political belief does not exempt a person from following provincial health orders or rules. Rather, it protects a person from adverse impacts in their employment based on their beliefs.”

Thus, the Tribunal explained that employees are required to follow health laws despite their political beliefs and that the Code merely protects employees from adverse treatment based on those beliefs, subject to a bona fide occupational requirement.

Moving to the second requirement, the Tribunal held that the complainant had not alleged any facts related to any adverse impact in employment, stating:

“The Complainant does not identify how the August 23, 2021 announcement in relation to the Services Requirements has affected her, or anyone else who objects to it, in their employment. The Code does not permit a direct challenge to a public health order based merely on disagreement with it.”

In the result, the Tribunal therefore held that the complainant had failed to establish any actual adverse impact experienced by the proposed class in their employment and had therefore failed to establish a breach of the Code. As such, the Tribunal refused to allow the complain to proceed.

Get Help

If you are an employee concerned about the legality of workplace policies, or an employer looking to ensure you stay compliant with health and safety regulations as they relate to COVID-19, contact the offices of Guelph Peter McSherry Employment Lawyer. We regularly assist employees with employment and labour issues. Contact us online or by phone at 519-821-5465 to schedule a consultation.

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#COVID-19 and the Workplace

Worker Barred From Suing Employer Directly For Workplace Injuries After Being Denied Workers’ Compensation

In a British Columbia Court of Appeal case, a worker attempted to sue his employer directly for injuries after the Workers’ Compensation Board declined to award him compensation.

The Court of Appeal ultimately rejected the worker’s appeal. In July 2021, he applied to the Supreme Court of Canada for leave to appeal the decision.

Worker Injured During Excavation Project

The worker claimed that he was injured on December 23, 2014 while performing excavation work for a property owner (the “employer”).

The worker was struck on the head by the hydraulic bucket of an excavator as he worked spreading gravel on a lower level. He kept working that day and returned to work the next day because he needed the money.

However, he claimed that what started as a sore neck gradually developed into a significant chronic pain and debilitating spinal injuries, which now require him to use a motorized cart and a cane.

The employer did not report the accident.

Worker Applies for Compensation for Injury

The worker filed an application with the Workers’ Compensation Board (the “Board”) on July 16, 2015, seeking compensation for neck strain. His claim was originally denied on the basis that there was insufficient evidence to show that his neck injury was caused by the accident.

However, on appeal, the Workers’ Compensation Appeal Tribunal (the “Appeal Tribunal”) overturned that decision in March 2017. The Appeal Tribunal found the worker had sustained what it described as a “minor neck strain” due to the accident. They sent his case back to the Board to determine the nature and extent of the benefits he was entitled to for that neck injury.

Ultimately, the Board found that the neck strain had resolved by June 2015 and that no benefits would be paid after that date. Additionally, because the worker had continued to work after the accident, the Board decided there was no compensation due for loss of wages.

Worker Attempts to Sue Employer Directly

The worker initially filed a petition for judicial review of the Board’s decision in 2017.

However, rather than following through with the judicial review, the worker instead filed a notice of civil claim. He was attempting to sue the employer for not reporting his claim right away and for not cooperating with the Board’s investigation of his claim. He argued that the employer’s conduct frustrated his efforts to prove his injuries before the Board and obtain proper compensation.

The judge ruled that the worker did not have a valid claim against the employer because, pursuant to s. 10 of the Workers Compensation Act, a worker who files a claim with the Board is barred from suing his employer. The judge also found that the claim could not go ahead because it was trying to overturn final decisions of the Board and Appeal Tribunal outside of the proper review process.

The worker appealed the judge’s decision to the Court of Appeal.

Court of Appeal Rules Against Worker

On appeal, the worker argued that the judge erred in striking his claim because she did not realize that he was not suing the employer for his injuries; rather, he was suing for the way the employer dealt with the Board and frustrated his efforts to get fair compensation. He claimed that he had been denied proper recognition of how serious his injuries were because the employer did not report the accident or provide documents or proof that the accident happened on her property.

The court first considered the impact of the employer’s failure to report the accident. It found that because the worker himself had reported the accident to the Board, the claim was therefore before the Board. Thus, nothing the employer had done, or not done, would have affected the Board’s analysis.

Second, the court ruled that the employer’s lack of cooperation with the Board’s inquiry was an issue to be dealt with by the Board itself. Thus, if the worker required evidence from the employer in the adjudication of his claim, he should have addressed it with the Board.

Finally, the court noted that the worker was attempting to sue the employer for the very compensation the Board had addressed in its process.

In the result, the court upheld the judge’s decision, therefore barring the worker’s claim against the employer.

Court Encourages Worker to Seek Judicial Review

The court also noted that nothing prevented the worker from seeking judicial review of the Board’s decision, if he so wished. The court stated:

“Although [the worker] cannot pursue a claim against [the employer], that does not mean that his disagreement with the Board’s assessment of his injuries and the award he received cannot be challenged…. He can, in that petition proceeding, ask the Supreme Court of British Columbia to look at what the Board did—how it handled his claim and the information it got or did not get from [the employer]—to see if the Board should be required to reconsider [his] claim. But what [the worker] cannot do is to go completely outside the process in the [Workers’ Compensation] Act and start a claim against [the employer] for compensation for injuries that only the Board has the authority to decide.”

Nonetheless, on July 14, 2021, the worker filed a leave to appeal the Court of Appeal’s decision with the Supreme Court of Canada. Its decision on whether to hear the appeal is outstanding.

Get Help

If you have questions about workplace injuries or other employment issues, contact the offices of Guelph Peter McSherry Employment Lawyer. We regularly advise employees on their rights in the workplace. Contact us online or by phone at 519-821-5465 to schedule a consultation.

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#Workers' Compensation Act

Ontario Court Certifies Class Action Against Uber

Supreme Court of Canada 2020 Decision in Uber Case

In 2020, the Supreme Court of Canada issued a ruling relating to a proposed class action against Uber.

In that case, an Uber driver sought to commence a class proceeding against Uber for violations of the Ontario Employment Standards Act (“ESA”). However, Uber brought a motion to stay the class proceeding in favour of arbitration in the Netherlands, relying on the arbitration clause in its services agreement with the driver.

Ultimately, the Supreme Court of Canada ruled that the arbitration clause contained in the standard Uber contract was unconscionable and therefore invalid.

Class Members Seek Certification of Class Action in Ontario

Following, the Supreme Court of Canada’s decision, the driver went back to court seeking certification of the proposed class action. At the core of the class action, the driver and the proposed putative class members argued that Uber had breached its employment contracts with the class members and contravened ESA. They also submitted that Uber was liable for unjust enrichment and negligence.

The class members include those who provided at least one ride or delivery using the Uber app and total an estimated 366,359 people.

More specifically, the class members claim that they have been misclassified as independent contractors, rather than employees, which means that they are not afforded the employment protections under the ESA and related federal statutes.

Thus, in what the court called an“extraordinary case”, the core issue to be decided by the class action centred on the relationship between Uber and the class members and whether that relationship was that of service provider and customer, employer and employee, or employer and independent contractor.

Requirements for the Certification of a Class Action

Under s. 5 of the Class Proceedings Act, 1992, a court has no discretion and is required to certify a class action when the legislation’s five-part test is met. The test requires that the proposed class action meet the following criteria :

1) The pleadings disclose a cause of action;

2) There is an identifiable class of two or more persons that would be represented by the representative plaintiff;

3) The claims of the class members raise common issues;

4) A class proceeding would be the preferable procedure for the resolution of the common issues; and

5) There is a representative plaintiff who:

(i) would fairly and adequately represent the interests of the class;

(ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding; and

(iii) does not have, on the common issues for the class, an interest in conflict with the interests of other class members.

The court further explained:

“For an action to be certified as a class proceeding, there must be a cause of action shared by an identifiable class from which common issues arise that can be resolved in a fair, efficient, and manageable way that will advance the proceeding and achieve access to justice, judicial economy, and the modification of behaviour of wrongdoers. On a certification motion, the question is not whether the plaintiff’s claims are likely to succeed on the merits, but whether the claims can appropriately be prosecuted as a class proceeding. The test for certification is to be applied in a purposive and generous manner, to give effect to the goals of class actions; namely: (a) to provide access to justice for litigants; (b) to encourage behaviour modification; and (c) to promote the efficient use of judicial resources.”

Court Certifies Class Action Against Uber

Ultimately, the court certified the class action.

It first found the cause of action criterion had been met for the claims of breach of contract and breach of the ESA. However, the court refused to certify the claims for unjust enrichment and negligence.

It further found that the identifiable class criterion had been met.

Third, the court held that there were certifiable common issues for the breach of contract and breach of ESA causes of action. However, it refused to certify the claims of aggregated damages and punitive damages.

The court also held the preferable procedure criterion had been met, stating:

“[T]here are viable common issues and a class action in the immediate case is a meaningful route to access to justice for both the Class Members and for Uber. In so far as the preferable procedure criterion is concerned, the immediate class action would be manageable and the common issues trial would provide considerable momentum for individual issues trials if the common issues favoured the Class Members.”

Finally, the court held that the representative plaintiff criterion had been satisfied.

In the result, the court therefore certified the class action and it will be proceed accordingly.

Get Help

The important distinction between independent contractors and employees makes a significant difference in compensation, during employment and if a wrongful dismissal case arises. Some employers do not properly structure agreements with workers to define them as independent contractors, as they intend to. Workers may be under the impression that they are independent contractors when they have actually been full-time employees the entire time. You may have been dismissed from your job not realizing that you should have been receiving benefits, vacation pay, holiday pay, sick pay and overtime pay while you were employed. You may be entitled to recoup these losses and to sue your former employer for damages caused by the discrepancy. Contact me at Peter A. McSherry Employment Lawyers in Guelph to obtain a full evaluation of your particular case. If you suspect you may have been entitled to the benefits of an employee rather than an independent contractor, I may be able to help you pursue the compensation you deserve.

As a Guelph lawyer with in-depth knowledge of employee classification issues, I can help provide your case with the tools, resources and skill to pursue your best possible resolution. Your informed decisions will drive your case, and I can advocate for your best interests in any legal realm. Contact me today by phone at 519-821-5465 or by e-mail to schedule a consultation.

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#Employment Standards Act

Workplace Sexual Harassment vs. Sexual Assault – Court Clarifies Distinction in Wrongful Dismissal Appeal

Earlier this year, we wrote about a case in which an Alberta court awarded a former employee damages for wrongful dismissal after he was fired for sexually harassing a co-worker.

That decision was recently overturned on appeal, with the court holding that the employee’s conduct fit the definition of sexual assault, rather than sexual harassment, and his dismissal was thus justified.

Employee Terminated Following Workplace Incident

In January 2019, the male employee was fired from his job as a welder after he asked out a female co-worker and, later that day, touched her without her consent by lifting up her shirt. The employer claimed that it had a zero-tolerance policy prohibiting unwanted touching and terminated the employee for cause, without the benefit of a severance payment.

The employee commenced an action claiming wrongful termination and damages.

Lower Court Awards Damages for Wrongful Dismissal

The court held that the employee had engaged in intentional and non-consensual touching of his co-worker for a sexual purpose, which constituted sexual harassment. However, it found in favour of the employee, stating:

“In the present case, [the employee]’s action constituted a single, brief and isolated incident of unwanted touching of [his co-worker], for the purpose of flirting with [her] in order to pursue a romantic relationship with her. Upon realizing that his advances were not welcome he did not persist, but immediately desisted and walked away.

While I do not discount the effect that his actions had upon RT, they fall at the low end of the “spectrum of seriousness”

[I]t is clear that [the employer]’s policies provide for other types of disciplinary action, and that summary dismissal was a possible but not a mandatory consequence.”

The court concluded that the employer should have issued a verbal warning in place of termination and awarded the employee general damages in the amount of $46,102, representing his income for ten months’ notice.

The employer appealed the decision. Its first ground of appeal was that the employee’s conduct constituted sexual assault, rather than sexual harassment, and thus justified his termination.

The Parties Make Submissions on Sexual Harassment vs. Sexual Assault

On appeal, the Court of Queen’s Bench of Alberta began by addressing both parties’ arguments relating to the characterization of the employee’s conduct.

While the employer argued that the employee had committed sexual assault, the employee submitted that it was sexual harassment, stating:

“[The employer] argues that [the employee] committed the criminal act of sexually assaulting [the co-worker], a legal conclusion not supported by the trial decision or the facts…. [The] case involved the brief, relatively private, isolated and inadvertent lifting of an undershirt.”

The employee therefore argued that the employer’s characterization of the incident as a sexual assault confused the criminal definition of sexual assault with the civil definition of sexual harassment and was not borne out by the evidence.

Court Finds That Employee’s Conduct Was Sexual Assault

In response to the employee’s argument, the court first noted that it ignored the fact that unwanted touching for a sexual purpose is the definition of sexual assault, whether on a criminal or civil level. While acknowledging that there can be varying degrees of sexual assault, the court stated that sexual harassment with a physical component amounts to the most serious forms of workplace misconduct.

In addition, the court took notice of a previous court determination which implicitly held that an actual physical assault or unwanted physical contact would escalate misconduct even further along the sexual harassment spectrum.

Thus, the court found that the proper characterization of the employee’s conduct was that of sexual assault.

Court Overturns Lower Court Decision

Having found that sexual assault, not sexual harassment, had occurred, the court held that the lower court’s analysis was incorrect.

Although the employer had raised two further grounds of appeal, the court held that its finding that the lower court had mischaracterized the employee’s conduct and therefore applied the incorrect analysis to the seriousness of the misconduct, it was not necessary to address them.

In the result, the court therefore allowed the appeal on the first ground of appeal raised by the employer and overturned the lower court’s finding of wrongful dismissal and award of damages.

Get Help

If you feel that your rights have been violated, seeking the advice of an experienced and informed employment lawyer can help you understand your rights and your options to remedy the situation.

I have extensive experience and knowledge in handling cases on behalf of employees in a variety of industries. If you have been the victim of harassment and discrimination, I can help you evaluate your options and pursue the resolution that can best serve your interests and compensate for the pain and damages you have suffered.

At Peter A. McSherry Employment Lawyer in Guelph, I have represented clients in all areas of employment since being called to the Ontario Bar in 1997. When you work with me, you will meet and discuss your case only with me. I provide each of my clients with compassionate care, attentive service and the efficient resolution of legal issues. Contact me today to schedule an initial consultation by calling my office at 519-821-5465 or by e-mailing me. Harassment and discrimination cases are not to be taken lightly. Your rights deserve protection, and you deserve to work in a non-hostile work environment.

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#Sexual harassment

COVID-19 Vaccination and Testing Mandated for Health Care Workers in Ontario, government announces

We had previously written about the Government of Quebec’s announcement that health care workers would be required to provide proof of COVID-19 vaccination and submit to testing.

This week, the Government of Ontario followed suit, announcing a plan that will require employers in the health and education sectors to implement policies requiring employees to be vaccinated or undergo testing.

Yesterday, the Minister of Health a published a resource guide detailing how these requirements will work within the health sector.

What Is Required of Health Care Employers and Workers?

Pursuant to the Chief Medical Officer of Health’s Directive,all covered organizations must establish, implement and ensure compliance with a COVID-19 vaccination policy that requires its employees, staff, contractors, volunteers and students to provide:

Proof of full vaccination against COVID-19, or

Written proof of a medical reason provided by a physician or registered nurse that sets out a documented medical reason for not being fully vaccinated and the effective time for the medical reason.

Employees, staff, contractors, volunteers and students who do not provide proof of being fully vaccinated against COVID-19 must submit to regular antigen point of care testing for COVID-19 and demonstrate a negative result. The organization may determine at what intervals the testing is conducted, but it must be at a minimum of once every seven days.

The government guide notes that there are likely to be very few medical exemptions to the COVID-19 vaccination other than those with severe allergic reactions or anaphylaxis to a previous doze of a COVID-19 vaccine.

The policy may also provide for the completion of an educational program relating to the vaccine for those who do not receive it, but they must still submit to testing.

Which Organizations Are Covered by the COVID-19 Vaccination Directive?

The directive applies to most employees, staff, contractors, volunteers and students in the following organizations:

Public hospitals;

Home and community care service providers, including home care, community support services, assisted living services and services for people with an acquired brain injury;

Local health integration networks; and

Ambulance services.

The guide states that the organization may also include other workers in its policy.

Further Information on the Directive

The relevant organizations must also maintain and disclose non-identifiable statistical information about the policy and its administration.

The guide also provides sample policies that may be used or adapted by health care organizations.

It should be noted that the directive and the guide set out minimum standards. Therefore, organizations may tailor their policy to provide for more than the minimum required.

Additionally, it should be observed that Ontario is not making vaccination a condition of employment per se, but is requiring organizations to implement a policy that requires workers to choose from the above options. Indeed, it will be up to the organization’s policy to set out the consequences for non-compliance in accordance with its human resources policies and collective agreements, as well as any applicable legislation, directives, and policies.

Canadian Government Announces Mandatory COVID-19 Vaccination for Federal Employees

In addition to the above, the Canadian government also announced last week that Federal employees will be required to be vaccinated against COVID-19 by the end of September. Like the above-discussed mandate above, those who are unable to be vaccinated will have to submit to mandatory screening and testing.

Get Help

If you are an employee concerned about the legality of workplace policies, or an employer looking to ensure you stay compliant with health and safety regulations as they relate to COVID-19, contact the offices of Guelph Peter McSherry Employment Lawyer. We regularly assist employees with employment and labour issues. Contact us online or by phone at 519-821-5465 to schedule a consultation.

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#COVID-19 and the Workplace

Court Applies ‘Thin Skull Rule’ in Wrongful Dismissal Case

In a recent British Columbia wrongful dismissal case, the court took the unusual step of applying the “thin skull rule” in assessing a terminated employee’s aggravated damages.

What Is the Thin Skull Rule?

In a 2001 Supreme Court of Canada decision, the court explained the origin of the rule’s name when it stated:

“Thus, the fact that a victim’s head injuries are aggravated beyond what would normally be expected because of the victim’s unusually thin skull does not relieve a tortfeasor of liability for the full extent of the harm that resulted from his wrongdoing.”

In another decision, the Supreme Court of Canada provided another explanation of the thin skull rule when it described it as follows:

“[T]he well-known “thin skull” rule, which makes the tortfeasor liable for the plaintiff’s injuries even if the injuries are unexpectedly severe owing to a pre-existing condition. The tortfeasor must take his or her victim as the tortfeasor finds the victim, and is therefore liable even though the plaintiff’s losses are more dramatic than they would be for the average person.”

The rule has typically been applied by courts in personal injury cases, as well as criminal ones, and essentially means that a defendant must take his victim as he finds him. In other words, if the injured party has a particular physical or mental vulnerability, the person who caused them harm will nonetheless be fully liable, even if an ordinary person would not have suffered such severe consequences.

Employee Terminated Despite Fixed-Term Employment Contract

In the case on review, the employee sued the employer for wrongful dismissal following a short period of employment which started on November 12, 2018, and was terminated on January 28, 2019. The employee submitted that he had been “headhunted” by the employer and promised full-time employment as an engineering manager for a fixed term ending in September 2020. He claimed damages representing the balance of the earnings he would have received throughout that period along with aggravated and punitive damages for bad faith conduct and the insensitive nature of his dismissal.

In response, the employer acknowledged that the project for which the employee was hired was expected to last until September 2020, as was the employee’s employment. However, much to its disappointment, it claimed that the employee turned out not to be a good fit for their team and it decided to terminate his employment by giving him the one-month advance notice expressly provided for in his contract. The employer denied that the employee had a fixed-term contract of employment and further denied that there was any basis for any claim for aggravated or punitive damages.

Employee Seeks Aggravated Damages for Manner of Dismissal

Although the parties presented conflicting evidence relating to the manner in which the employee was dismissed, the court described his termination meeting as follows:

“[The employee] was somewhat callously informed at the meeting that the reasons for his termination “did not matter”…

[W]hen pressed by [the employee] for an explanation, he was informed that he did not have the respect of senior management, that he was neither a competent engineer nor a good manager, that he was embarrassing the company, and that they did not wish to have him associated with the project any further.”

While the court did not find that the employer intended to insult the employee, it accepted the employee’s testimony that he was insulted on both a personal and professional level and felt surprised and shocked at his termination.

Additionally, the court stated:

“I have no hesitation in concluding that the messaging by [the employer] at the January 28, 2019 termination meeting was unduly harsh, insensitive, and, indeed, insulting. It amounted in effect to an attack on [the employee]’s competence, an attack that was all the more hurtful in light of [the employer’s] inducement of [the employee] to leave his previous employment and to join the company’s much more substantial and lucrative undertaking. The termination could have and should have been handled in a much more sophisticated manner.”

Court Awards Aggravated Damages for Mental Distress Under Thin Skull Rule

In addition to finding that the employee had been wrongfully dismissed, the court considered the manner of the employee’s termination in awarding aggravated damages.

The employee claimed that his manner of dismissal had caused him mental distress, for which he was undergoing treatment. In response, the employer argued that the employee’s condition was caused not by the manner of dismissal but rather the fact that he had been unable to find alternate employment since his dismissal.

Citing the principles set out by the Supreme Court of Canada on the assessment of damages and the thin skull rule, the court ultimately found in favour of the employee, stating:

“In this particular case, it is apparent, and I find as a fact, that [the employee] takes great pride in his status as a professional engineer and he is deeply affected by any insult to, or disrespect of, his perceived professional competence. In a manner of speaking, this is his “thin skull”, and the reasons given to him by [the employer] for his dismissal have struck at the core of his self-esteem and are at least one contributory cause, albeit not the only cause, of his serious and prolonged emotional upset and distress….

I have found that [the employee] had certain “thin skull” personality features which made him inordinately susceptible to insult and mental distress and that the manner of his termination was indeed at least one cause, if not the only cause, of the prolonged distress he has since suffered. This is sufficient to affix [the employer] with liability for aggravated damages.”

In the result, the court assessed the aggravated damages to be paid by the employer in the amount of $12,500, and so ordered. The court clarified that the employee would normally be entitled to $25,000, but found that part of the employee’s mental distress had been caused by his lengthy unemployment, for which the employer would not be held liable.

Get Help

If your employment has been terminated without reasonable notice or severance from your employer, you might have a claim for wrongful dismissal. Even if your employer claims that the notice or severance is reasonable, it pays to check with a highly qualified employment lawyer to ensure that all legal requirements were, in fact, met by your employer. The employment laws are complicated and intertwined. The basis for a claim might exist even if your employer claims to have followed the law.

At Peter A. McSherry Employment Lawyer, I provide each of my clients with a full assessment of his or her case. Disputes in wrongful dismissal claims are usually based on severance pay, benefits and/or the timeliness of the notice. However, if an employer claims or cites misconduct as the cause for dismissal, reasonable notice is not needed. We can discuss the facts of your case. I can help you discover and weigh your options in a straightforward manner with respect for your needs and objectives. I can protect your rights. Call me at 519-821-5465 or contact me by e-mail to schedule a consultation.

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#Wrongful Dismissal

Arbitrator Upholds Employer’s Policy for COVID-19 Rapid Testing on Construction Employees

In late 2020, we had written about a labour arbitration decision that addressed the ability of an employer to require regular COVID-19 testing for staff.

More recently, in another arbitration ruling released in June 2021, the arbitrator held that the employer was entitled to conduct COVID-19 rapid testing on its employees, despite the union’s objection.

Employer Imposes COVID-19 Rapid Testing Policy on Construction Site

The employer is the general contractor on a mid-rise residential construction project in Toronto which began a project to build a 59-story building in 2018.

It was estimated that, in 2021, there were approximately 100 construction employees at the project, and it was not always possible to maintain the recommended six foot social distancing practice in light of the COVID-19 pandemic.

As such, beginning in late February 2021, the employer introduced a Rapid COVID-19 Antigen Screening Program (the “policy”) as part of a pilot program being led by the Ontario Ministry of Health (“MOH”), with support from partner ministries Public Health Ontario and Ontario Health. The test was conducted on site on a twice-weekly basis, in accordance with MOH guidelines, and was administered via a throat and bilateral lower nostril swab.

Union Files Grievance Over Rapid Testing Policy

Under the employer’s policy, individuals could refuse to submit to the test, but anyone refusing would be denied access to the worksite. If the test was negative, the employee could go back to work, but if the test was positive, a series of measures would then take place. Any request for accommodation on the basis of human rights concerns was addressed on a case-by-case basis.

In May 2021, the union filed a grievance alleging that the testing policy violated the collective agreement. It argued that the policy was an unreasonable exercise of management rights and an unreasonable company policy or rule. In addition, the union expressed the following concerns about the policy, claiming that:

Rapid testing was invasive and violates employee privacy;

Rapid testing was “experimental”;

Rapid tests produce false positive results.

In response, the employer disputed that there was a reasonable basis for the union’s concerns. It submitted that its main interest was the safety of not only its workforce, which included the workforces of various trades on site, but also the safety of the public. It argued that its interests in promoting health and safety and preventing the spread of COVID-19 not only in the workforce but in the public, far outweighed the interests of the employees in this case.

Arbitrator Considers COVID-19 Concerns Specific to Construction Industry

The arbitrator consideredthe circumstances in the public at large and in the construction industry in particular, noting that while large segments of the economy had been shut down in an effort to slow the spread of COVID-19, residential construction had been designated an essential service and allowed to continue. However, the arbitrator highlighted the associated dangers, stating:

“As an essential service, workers in the residential construction industry continue to put themselves at risk. COVID-19 represents an extraordinary threat to the health and safety of these workers. COVID-19 can spread through respiratory droplets. … Given the nature of the work and the size of the projects, employees do not and cannot maintain social distancing.

Further, the risk of COVID spread is increased by the nature of the construction industry. … Employment in the construction industry is transitory and employees regularly move between job sites and employers. In the construction industry, viruses can spread more easily than in other industries. On large job sites, employees of one subcontractor can easily infect employees of another subcontractor putting other employees and their families at risk.”

Additionally, the arbitrator noted that the risk of COVID-19 spread was not hypothetical or speculative, as the employer had already experienced numerous outbreaks at its site in Toronto.

Arbitrator Upholds Employer COVID-19 Rapid Testing Policy as Reasonable

The arbitrator also took into account the numerous and significant efforts made to protect the privacy and dignity of employees under the employer’s rapid testing policy.

Ultimately, the arbitrator dismissed the union’s grievance, stating:

“In conclusion, COVID spread remains a threat to the public at large and those working at [the employer’s] construction sites. When one weighs the intrusiveness of the rapid test against the objective of the Policy, preventing the spread of COVID-19, the policy is a reasonable one.”

Get Help

If you are an employee concerned about the legality of workplace policies, or an employer looking to ensure you stay compliant with health and safety regulations as they relate to COVID-19, contact the offices of Guelph employment lawyer Peter McSherry . We regularly assist employees with employment and labour issues. Contact us online or by phone at 519-821-5465 to schedule a consultation.

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#COVID-19 and the Workplace

Hospital Workers Win Arbitration Case Over COVID-19 Pandemic Pay

In a recent Ontario arbitration case, a union representing hospital workers asked the employer hospitals to pay additional COVID-19 pandemic pay to employees otherwise excluded under a government program.

Ontario Government Establishes COVID-19 Support Program

On April 25, 2020, the Ontario government announced a program of support for the “Frontline Heroes of COVID-19”, which offered pandemic pay of $4.00 per hour worked on top of existing hourly wages, as well as a $250 monthly lump sum for employees working at least 100 hours in a designated 4-week period.

The government program was intended to assist frontline staff who were experiencing severe challenges and who were at heightened risk.

Medical Residents Excluded by Government Program

The resulting arbitration dispute occurred between Ontario’s Teaching Hospitals and the union representing approximately 5500 of the medical residents they employed in Ontario.

The dispute arose because, under the government’s “Frontline Heroes” program, the residents were not on the eligibility list to receive the additional compensation.

Union Proposes Additional Compensation for Residents

As such, the union proposed that each resident employed by the Teaching Hospitals as of July 1, 2020, would receive a pandemic pay lump sum amount of $6,120 dollars and would be entitled to receive any front-line pandemic pay as may be subsequently provided to any other hospital employees.

The union arrived at the proposed amount with the following calculation: $4/hour x 80 hours/week x 16 weeks = $5120 (wage subsidy) + $1000 (lump sum: 4 x $250) =$6,120.

In response, the Teaching Hospitals argued that the union proposal should be rejected. It submitted that the Ontario government had been entitled to determine who received pandemic pay and who did not. It argued that the exclusion of certain workers, such as the medical residents, had been the decision of the government and one it was entitled to make. Additionally, the Teaching Hospitals cited numerous other arbitration decisions that had rejected this type of special adjustment over the course of the COVID-19 pandemic.

Arbitrator Rules in Favour of Union

Ultimately, the arbitrator ruled in favour of the union’s proposal, stating:

“The proposal is not statute-barred. In fact, the opposite is true: it is explicitly authorized. Moreover, in this case, the proposal actually replicates what the parties would have done in free collective bargaining. The evidence about this, as presented in the [union] brief, is overwhelming. When one adds in considerations of internal and external comparability, the case for granting this [union] proposal is made manifest (notwithstanding the Teaching Hospitals submissions about recruitment and retention). As the Ontario government made clear in its funding announcement:

The goals of this temporary pandemic pay were to:

provide additional support and relief to frontline workers

encourage staff to continue working and attract prospective employees

help maintain safe staffing levels and the operation of critical frontline services

Recruitment and retention did not apply to residents, but the other goals of the temporary pandemic pay program are completely applicable. Residents were intimately and integrally on the frontlines: there is no ambiguity about this and there is, likewise, … no rational basis for their exclusion. None of the authorities that were submitted are of assistance in disposing of this matter.”

However, the arbitrator altered the union’s proposal by substituting the 80-hour work week used in their calculation with a 60-hour work week, stating:

“This award, needless to say, conservatively estimates the extent of resident hours worked, not to mention the very real personal and professional challenges they faced, especially in the uncertain attenuated early days when so much about the transmission of COVID-19 was unknown.”

As such, the union’s proposal was awarded to the medical residents for the prescribed time period.

Get Help

If you are an employee concerned about the legality of workplace policies, or an employer looking to ensure you stay compliant with health and safety regulations as they relate to COVID-19, contact the offices of Guelph employment lawyer Peter McSherry. We regularly assist employees with employment and labour issues. Contact us online or by phone at 519-821-5465 to schedule a consultation.

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#COVID-19 and the Workplace

Employee Injured Playing Ping Pong on the Job: Is It a Workplace Injury?

In a recent Quebec decision, an employer appealed a decision deeming an employee’s injury, sustained during a ping pong game, a compensable workplace injury.

Definition of Workplace Injury in Quebec

In Quebec, a workplace injury is called an “industrial accident”. Under s. 2 of the Act respecting industrial accidents and occupational diseases it is defined as:

“industrial accident” means a sudden and unforeseen event, attributable to any cause, which happens to a person, arising out of or in the course of his work and resulting in an employment injury to him;

Section 28 creates a presumption in favour of workers, stating:

28. An injury that happens at the workplace while the worker is at work is presumed to be an employment injury.

Workplace Injuries in Ontario

In Ontario, an insurable workplace injury is discussed in s. 13 of the Workplace Safety and Insurance Act as follows:

Insured injuries

13 (1) A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan.

Presumptions

(2) If the accident arises out of the worker’s employment, it is presumed to have occurred in the course of the employment unless the contrary is shown. If it occurs in the course of the worker’s employment, it is presumed to have arisen out of the employment unless the contrary is shown.

An accident is defined in s. 2 as:

2 (1) In this Act,

“accident” includes,

(a) a wilful and intentional act, not being the act of the worker,

(b) a chance event occasioned by a physical or natural cause, and

Employee Injured At Work While Playing Ping Pong

The employee had worked as a digital strategy specialist with the employer as of April 4, 2019.

One month later, on May 3, 2019, during the afternoon break, the employee was injured while playing table tennis with a co-worker. The table was located in the recreation/dining room made available to workers.

The employee was subsequently diagnosed with a dislocated right shoulder.

The employee had dislocated his right shoulder the year before during a ski accident, but he maintained that the injury had healed completely since that time.

Employee’s Claim for Workers’ Compensation Denied, Then Allowed

The employee filed a complaint with the Quebec Commission des normes, de l’énergie, de la santé et de la sécurité du travail (the “Commission”) seeking workers’ compensation for his shoulder injury.

On September 9, 2019, the Commission issued a decision denying his claim.

The employee asked for a review of the decision. Upon further review, in November 2019, the Commission overturned the initial determination, finding that the employee had in fact suffered a work-related accident.

Employer Appeals Decision

The employer appealed the decision to the Tribunal administratif du travail (the “Tribunal”).

It argued that that the injury was not work-related. First, it submitted that the employee’s injury was already present as the result of the ski accident. Secondly, it argued that the injury occurred during an activity that was not connected the employee’s work. As such, the employer submitted that the injury was a personal injury that manifested itself during a personal activity, that of playing table tennis.

Tribunal Rules That It Was Not a Work-Related Injury

While the Tribunal acknowledged that workers cannot be expected to perform eight hours of work per day and are thus entitled to breaks, it explained that conduct during such breaks will not automatically be deemed work-related, stating:

“The case law recognizes that the break may be considered, depending on the context of each case, as being useful to the employer, since it is provided for and is generally part of the working conditions. In such a context, we recognize its usefulness and a certain connection with work.

However, this does not mean that all activities that take place during the break are part of the professional sphere. A worker can choose to go about a personal occupation during his break. In such a case, one could consider that he left the professional sphere to enter a personal sphere, which is no longer related to work.”

The Tribunal then explained that where a worker is injured using recreational equipment provided by the employer, the injury could be considered work-related, depending on the context.

In the present case, however, the Tribunal held that the underlying cause of the injury could not be attributed to the game of table tennis, but rather to the employee’s previous injury during a ski accident. As such, the Tribunal held that the injury was, in fact, a recurrence of a previous dislocation that could not be attributed to the workplace.

Thus, the Tribunal ultimately concluded that the accident was not related to the employee’s work, stating:

“Other than the movement made by the worker while playing table tennis, there was no particular event that caused this new episode of dislocation. However, the diagnosis is that of recurrent dislocation of the right shoulder. In the circumstances, the Tribunal is of the view that the accident is related more to factors intrinsic to the worker, including the existence of a previous dislocation, rather than to his work or to the conditions thereof.”

In the result, the Tribunal therefore quashed the Commission’s decision and declared that the employee’s injury was not work-related.

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#WSIB

New Ontario Regulation on Occupational Health and Safety Notice and Reporting Requirements Comes Into Force

In June 2021, the Ontario Government introduced a new regulation relating to workplace safety.

Enacted pursuant to the Occupational Health and Safety Act (the “Act”), O. Reg. 420/21 (the “Regulation”) came into force on July 1, 2021. It addresses employer obligations relating to notices and reporting requirements for workplace fatalities, critical injuries, occupations illnesses and other incidents.

More specifically, the Regulation deals with already-established notice and reporting obligations under ss. 51 to 53.1 of the Act.

Employers and employees alike should familiarize themselves with the changes to ensure that rights and obligations are being respected. Additionally, employers may need to update or change existing policies and procedures and should contact a lawyer to ensure compliance as soon as possible.

Regulation Repeals and Replaces Previous Requirements

One of the main purposes of the Regulation is to consolidate the notice and reporting requirements previously contained in a number of other regulations to provide greater clarity for employers regarding their obligations.

Therefore, the Regulation now outlines the notice and reporting requirements under ss. 51, 52, 53 and 53.1 of the Act that were contained in the following regulations, thus repealing the relevant provisions in each regulation simultaneously:

Reg. 429/21: Farming Operations

Reg. 426/21: Construction Projects

Reg. 427/21: Health Care and Residential Facilities

Reg. 428/21: Diving Operations

Reg. 421/21: Industrial Establishments

Reg. 422/21: Mines and Mining Plants

Reg. 423/21: Oil and Gas – Offshore

Reg. 425/21: X-Ray Safety

Reg. 424/21: Window Cleaning

As such, the notice and reporting requirements previously contained in the above-mentioned regulations are now all specifically outlined in the Regulation.

Employers will need to review the Regulation to ensure their current policies and procedures comply with these requirements. In addition, reference to the above-mentioned regulations relating to notice and reporting requirements will need to be changed.

Record Retention Requirements

Pursuant to s. 6 of the Regulation, employers are required to retain a copy of any written notice or report required under ss. 51 to 53.1 of the Act for at least three years after the date the notice or report is made. Employers will need to ensure their current practices comply with this requirement.

Definition for “Critically Injured” and “Medical Attention”

Section 51 of the Act set out notice requirements for employers where a worker is killed or is critically injured from any cause at a workplace.

However, the Act itself does not provide a definition for “critically injured”. [Note: The below definition was previously set out in Regulation 834 of the Revised Regulations of Ontario, 1990 (Critical Injury — Defined), which is now revoked.]

Thus, the Regulation sets out the legal definition for what qualifies as “critically injured” under the Act and for the purposes of the Regulation as follows:

“critically injured” means an injury of a serious nature that,

(a) places life in jeopardy,

(b) produces unconsciousness,

(d) involves the fracture of a leg or arm but not a finger or toe,

(e) involves the amputation of a leg, arm, hand or foot but not a finger or toe,

(f) consists of burns to a major portion of the body, or

(g) causes the loss of sight in an eye.

Additionally, the Regulation establishes a definition for “medical attention” as “treatment from a legally qualified medical practitioner or a registered nurse who holds an extended certificate of registration under the Nursing Act, 1991”. This helps clarify s. 52 of the Act, which requires an employer to provide written notice where a worker “is disabled from performing his or her usual work or requires medical attention because of an accident, explosion, fire or incident of workplace violence at a workplace.”

Get Help

If you have questions about workplace safety or other employment issues, contact the offices of Guelph Peter McSherry Employment Lawyer. We regularly advise employees on their rights in the workplace. Contact us online or by phone at 519-821-5465 to schedule a consultation.

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#Occupational Health and Safety Act

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