Notable employment and labour law decisions

In Metrolinx v. Amalgamated Transit Union, Local 1587, the Ontario Superior Court of Justice affirmed an employer’s obligation to investigate workplace harassment – even though the incident occurred over a private group chat on personal cellphones, and the victim did not make a formal complaint.

In September 2019, five male employees (the “Grievors”) made derogatory and sexist comments about a female employee, Ms. A, in a private Whatsapp group chat between the Grievors on their personal cellphones. Ms. A became aware of these comments in 2019, and reported the harassment to her supervisor, but never filed a formal complaint.

The employer nonetheless became aware of the derogatory messages in April 2020 and commenced an investigation, which included a review of the Whatsapp messages. The Grievors were ultimately terminated for just cause.

The Union filed grievances on behalf of the Grievors. At arbitration, the grievance was upheld. The arbitrator found that there was not just cause to terminate, including because no formal complaint was made by the victim, and the messages were exchanged in a private group chat on personal devices which – according to the arbitrator – were subject to the employee’s reasonable expectation of privacy and so should not have been reviewed.

The Ontario Superior Court reversed the arbitrator’s decision. It took issue with the conclusion of the arbitrator for several reasons. First, the Court found that the arbitrator erred in finding that the lack of formal complaint meant no investigation was required. Citing the Human Rights Code as well as the Occupational Health and Safety Act, the Court reiterated that employers are required to investigate both “incidents and complaints” of workplace harassment. While a formal complaint usually prompts the initiation of an investigation, employers also have an obligation to deal with harassment once it is known – no matter how they come to know this.

The Court also found that the arbitrator improperly relied on the victim’s reluctance to report harassment to conclude that investigation was not warranted. The Courts have long recognized that there are many reasons why a victim may abstain from reporting sexual harassment, and this does not relieve an employer from their statutory duty to investigate workplace harassment and protect its workers.

Finally, the Court concluded the arbitrator gave too much weight to the Grievors’ privacy concerns. Ultimately, the derogatory Whatsapp messages were brought to the attention of Ms. A in the workplace and so became a workplace issue. The employer’s investigation into these messages was therefore justified.

The decision demonstrates the right and duty of employers to investigate harassment in the workplace, however it comes to the employer’s attention. The Court recognizes that the fact that victims may refrain from reporting harassment does not impede an employer’s obligations once a potential incident of harassment is known.

This decision also highlights that a right to privacy does not always override an employer’s obligation to address workplace harassment. When private messages between and about employees make their way to the workplace, they may well become a workplace issue.

Special thank you to Erin Clark for her contributions to this article.

In Croke v. VuPoint System Ltd., the Ontario Court of Appeal considered the applicability of the doctrine of frustration to an employment contract that was terminated due to the employee’s breach of a mandatory COVID-19 vaccination policy. Frustration was upheld.

The Respondent employer was engaged in a service contract with Bell Canada. A significant portion of the employer’s business was subcontracting technicians to provide installation work in Bell customer’s homes. The Appellant was one of these technicians.

In September 2021, Bell introduced a policy that required all technicians servicing Bell customers vis a vis service contracts – including the Appellant – to be vaccinated for COVID 19. The policy provided that any breach of this policy could result in termination of the service agreement.

The employer followed suit and implemented its own policy requiring its technicians to be vaccinated, including so it could maintain its service contract with Bell. The Appellant refused to be vaccinated and so in late September 2021, the employer terminated his employment for failing to comply with its policy. The Appellant later sued for wrongful dismissal.

In response to the wrongful dismissal claim, the employer alleged frustration of contract: the introduction of Bell’s new vaccination policy was an unforeseeable event, not contemplated by the parties at the time the employment contract was finalized. The motion judge agreed, reasoning that with the new policy, the Appellant lacked a necessary qualification of the job. This change frustrated the very foundation of the employment contract.

The Appellant appealed, but the appellate court upheld the motion judge’s decision, and confirmed the doctrine of frustration applied in this case.

The Appellant argued that his voluntary choice to remain unvaccinated should prevent the doctrine from applying, but the Court held that voluntariness was not relevant in this case. It was not the choice of the employee that made him unable to work, but instead, the introduction of a new requirement which he simply did not satisfy.

The Appellant further tried to assert that he was caught off guard by the termination and was not given adequate time to “mend his ways.” The Court emphasized that once a contract has been frustrated, all obligations are discharged, and there is no requirement that an employee must be given opportunity to rectify the frustrating event.

This case demonstrates to both employees and employers that refusal to comply with a COVID-19 vaccination policy may result in frustration of the employment contract. Further, it highlights that once an employment contract is frustrated, the employer is entitled to immediately end the contract without giving the employee an opportunity to rectify the underlying issue.

Special thank you to Erin Clark for her contributions to this article.

In Marentette v. Canada (Attorney General), the Federal Court of Canada emphasized the importance of respecting the principles of procedural fairness during workplace investigations.

In April 2021, the Applicant, a federally-regulated employee, filed a Notice of Occurrence alleging seven separate incidents of workplace harassment and violence involving six supervisors between 1995 and 2020.

The employer took no steps to investigate the Notice of Occurrence until May 2022, (almost one year later). Only four of the six supervisors whom the Applicant made allegations against were interviewed by investigators, and the Applicant was not given the opportunity to respond to the supervisors’ versions of events. The Applicant was then informed by the employer, on three separate occasions between August and November 2022, the investigation was complete. However, contrary to the employer’s workplace investigation policies, he was not provided a copy of the preliminary findings of the investigation nor given an opportunity to respond before the final report as issued.

Ultimately, the investigation determined that none of the seven incidents alleged were workplace harassment, and no further measures would be taken to address the allegations. The Applicant’s Notice of Occurrence was closed.

The Applicant challenged the procedural fairness of the investigation before the Federal Court, by filing a Notice of Application for judicial review. Specifically, he alleged that he was denied the opportunity to respond to the supervisors’ evidence and to the preliminary report.

The Court largely agreed with the applicant’s reasoning, stating that workplace harassment investigations require a high level of procedural fairness. It concluded that the applicant should have been given a “reasonable opportunity” to respond to the evidence and preliminary report – particularly as the employer’s policies explicitly provided for this.

The Court ultimately ordered a new investigation involving a different investigator.

This case demonstrates the importance of procedural fairness during investigations into workplace harassment and violence – including the Applicant’s ability to respond to contrary evidence.

It also reiterates that an employer must be careful to comply with its own internal investigation policies. Employers should therefore only include procedures over and above what the law requires if they are prepared to ensure those procedures are followed.

Special thank you to Erin Clark for her contributions to this article.

In Smith v Alberta (Alberta Human Rights Commission), 2024 ABKB 187 (CanLII), the Court confirmed that common ailments, such as the flu, do not fall under the definition of ‘disability’ under the Alberta Human Rights Act and so are not a protected ground of discrimination.

The Applicant was unable to attend work due to the flu. However, he was absent for more than three days without providing notice to his employer in accordance with its attendance management policy. He was dismissed from his employment on this basis.

The Applicant argued (among other things) that the flu was a disability and so his dismissal was discriminatory under the Alberta Human Rights Act. He cited several cases that spoke to the fact that disabilities under the Act do not require permanence or a certain level of severity. On this basis, according to the Applicant, the employer was required to accommodate his illness rather than discipline under its policies.

The Court rejected the argument that the flu falls under the definition of disability. While a disability does not have to be permanent, the Court reasoned that the term is not meant to encompass common illnesses that last only a few days. In this case, the Applicant was ill for less than a week, and so there was no disability at issue.

This case helps clarify that more common and fleeting ailments will not necessarily trigger protection under human rights legislation. In turn, it substantiates an employer’s ability to enforce its attendance management policies when minor illnesses are at issue – without breaching human rights legislation. However, given this legislations’ broad employee protections, discipline in the face of medical issues must be handled carefully and with circumstance-specific consideration.

Special thank you to Erin Clark for her contributions to this article.

In Krmpotic v Thunder Bay Electronics Limited, the Court of Appeal for Ontario considered whether medical evidence is necessary to establish physical incapacity to mitigate damages. The Court also contemplated the requirements of awarding aggravated damages, and whether they can be awarded in cases where the employer acted in bad faith.

The employee was a labourer employed with the same employer for 30 years before his employment was terminated without cause or notice. This termination occurred hours after the employee returned to work from medical leave and was still physically recovering from back surgery.

The employee sued the employer for wrongful dismissal. He sought pay in lieu of notice, as well as damages for mental distress and aggravated or moral damages.

At trial, the employer sought a reduction in the pay in lieu of notice award on account of what it saw as the employee’s failure to mitigate his damages by pursuing new employment. The Court rejected this argument, finding the employee was unable to perform any meaningful physical labour during the notice period on account of his back injury and recovery. However, no medical evidence was proffered by the employee in this regard.

The employer appealed to the Court of Appeal, again claiming a failure to mitigate. It argued that the trial judge ought to have considered medical evidence to determine whether the employee was able to pursue work during the reasonable notice period. Instead, the trial court merely accepted the employee’s own testimony.

The appellate court rejected the employer’s argument, stating that physical incapacity is a matter of fact and there is no general principle requiring that it solely be ascertained by medical evidence.

The Court also rejected the Appellant’s argument that evidence of mental distress was strictly necessary to justify aggravated damages, noting that the argument “reflects an unduly narrow view of the employer’s duty of good faith during the termination process.” The Court insisted that the Appellants had breached this duty of good faith in several ways, as articulated by the trial judge. As such, the Court concluded that the employee was entitled to aggravated damages.

Special thank you to Erin Clark for her contributions to this article.

In York Region District School Board (YRDSB) v. Elementary Teachers’ Federation of Ontario,¹ the Supreme Court of Canada (the “Court”) ruled that teachers are protected by section 8 of the Canadian Charter of Rights and Freedoms (the “Charter”) against unreasonable search and seizure on the basis that Ontario public school boards are inherently governmental for the purpose of section 32 of the Charter.

This is an important decision and impacts public school boards and their employees across Ontario.

Two York Region District School Board (the “Board”) teachers kept a log using a personal email account to discuss their negative feelings about another teacher.

The principal entered one of the teacher’s classrooms and saw that the Board issued laptop that was used by the teacher was open. The principal then proceeded to touch the mousepad, found the logs open on the screen, and scrolled through the document - all while using his cellphone to take pictures of the logs.

The teachers were reprimanded by the Board for these logs and their union filed a grievance claiming that the search was in breach of the teacher’s right to privacy. A labour arbitrator dismissed the grievance and found that there was no breach of the teachers’ reasonable expectation of privacy when balanced against the Board’s interest in managing the workplace. The arbitrator’s decision did not consider whether section 8 of the Charter had been infringed, but principles derived from section 8 jurisprudence were used.

What is the appropriate standard of review?

Justice Rowe, writing for the majority, determined that the correctness standard must apply to the determination of:

1. Whether the Charter applies to school boards, and
2. The arbitrator’s decision, because at heart they are both constitutional questions that require a final and determinate answer by a court.²

Does the Charter apply to public school boards?

After reviewing the Ontario Education Act, the Court determined that Ontario public school boards are governmental by nature and additionally, that public education is an inherently governmental function that has a unique constitutional quality.³ The Court found that effectively, Ontario public school boards are an arm of government in that they exercise powers conferred on them by provincial legislatures.⁴

Application of section 8 and the error of the Arbitrator’s reasons

The Court’s majority ruled that the arbitrator failed to appreciate the constitutional dimension of the searches conducted by the principal and ought to have applied the Charter. Justice Rowe went on to say that the constitutional right to a reasonable expectation of privacy and the right to privacy in an arbitral sense is completely different. Based on the foregoing, the Court concluded that the arbitrator’s reasons disclosed a fundamental error as she had an incorrect understanding of the type of privacy which was at stake. When reviewing an administrative decision maker’s decision, courts simply do not have the ability to accept a substitute for Charter rights when they should have been applied. Courts also cannot read an administrative decision maker’s reasons as if they applied a Charter right when they did not.⁵

As such, the Court’s majority found that section 8 of the Charter protected public school teachers from unreasonable search and seizure in their place of employment.

In light of the YRDSB decision, Ontario public school boards must consider and be mindful of privacy rights when conducting searches of board property and/or devices. Supervisors and those performing managerial functions should be cautioned by public school board employers on searching classrooms, laptops, and other pieces of technology – including those that are technically the property of the school or school board. As the Court stated, this right goes beyond a reasonable exception of privacy and is one that is enshrined in the constitution, and the school board’s right to manage the workplace may largely be irrelevant.

While the Court expressly cautioned that this ruling only applied to Ontario public school boards, YRDSB may set a helpful precedent for teachers in other provinces who are employed by public school boards.

Special thank you to Erin Clark for her contributions to this article.