IRE430 Case Study Summaries

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University of Toronto *

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IRE430

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Law

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Feb 20, 2024

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Module 3 Queen v. Cognos Inc. - Queen had a job in Calgary but applied for a job with Cognos located in Ottawa - Cognos representative Johnston explained that the job included working on a new project but did not inform Queen that it was conditional on funding - Queen quit his job and moved to Ottawa and signed an employment contract that allowed Cognos to dismiss him for any reason with one month notice. Queen was dismissed 17 months later when the funding was not provided - Queen sued Cognos for negligent misrepresentation during the interview process - SCC ruled that negligent misrepresentation occurred, determining that Cognos did not follow their duty of care. Johnston’s representation made inaccurate statements to Queen and Queen relied on those statements to his detriment - Johnston knew the funding was conditional but did not tell Queen because he believed it would go through -> he needed to pass this important information to Queen - Johnston and Cognos had a duty of care to be honest in their representations and ensure that information is accurate and not misleading. Johnston failed to exercise reasonable duty of care and lead Queen to believe that the project was happening when it was conditional - SCC ruled in favor of Queen and ordered Cognos to pay $50,000 of lost income for one year of salary and an additional $5,000 for emotional stress and an extra $12,000 to reimburse the deficit Queen faced when selling his new house in Ottawa when he was dismissed Module 4 Lyons v. Multari 2000 - Lyons and Multari were surgeons. Lyons worked in Windsor for 25 years and hired Multari to work with him in the practice. - Multari signed an employment contract with a restrictive covenant clause prohibiting him from working as a surgeon within five miles of Lyon’s office for 3 years after employment contract - Multari quit after 17 months, and opened a practice 6 months later within the 5 mile radius. Lyons sued to enforce the restrictive covenant. - Court determined that the restrictive covenant was void and unenforceable. Lyons had a proprietary interest worthy of protection. The court also determined that a dental surgeon reliant on referrals, five mile and three year period is not unreasonable. However, the covenant failed the non-competition clause of a reasonable restrictive covenant. - Court ruled that Lyons should have used a less intrusive “non-solicitation” clause like telling Multari not to call Lyons clients over would have been more sufficient to protect Lyon’s interests and his relationships with regular referring dentists. Lloyd v. Imperial parking Ltd. - Lloyd quit his job at Imperial Parking after being subjected to months of verbal abuse and threats to his employment by a supervisor. He sued the employer for constructive dismissal, arguing that the employer’s abuse is a fundamental breach of the employment contract - The court ruled that the employer commited a breach. In the absence of cause, any breaches by the employer of a term in a employment relationship lets the employee sue for constructive dismissal.

- Breaches only exist if the breach is related to a fundamental term of the employment relationship. - Fundamental term: any term of employment relationship in that the employer will treat employees with civility, decency etc. This is a reasonable duty in all labour practices. - The court ruled that they needed to provide Lloyd four months of notice of termination and needed to pay damages for the four month period ($30,000). Francis v. Canadian Imperial Bank of Commerce - Francis was given an offer of employment letter from CIBC June 9 1978 - The letter did not indicate notice of termination -> implied contract term requiring reasonable notice of termination. - On Francis’s first day, he was given a document that stated that CIBC could terminate him with three months of notice - Francis was dismissed and sued for wrongful dismissal - Francis argued that the notice clause in that agreement modified the clause in the original contract and received no new consideration - The change to the second document was unenforceable: - The court ruled that the modification granted the employer new benefits and nothing new within it benefited Francis. Therefore, they determined Francis was entitled to reasonable notice from the first contract and was entitled to 12 months of pay from the day he was dismissed Contract Proferentem: Doctrine that interprets whether or not expressed terms are applicable and how they are applied [Example: how last piece of cake is provided -> mother tells them to share, or tells kid to cut and tells another to choose the piece] Employer you make sure you write clear and accurate terms. - Initial Contract Creation - Expressed Contract Terms: Clear, written or said - Implied Terms: Inferred through history of law or behaviour or expectations -> fills in gaps of expressed terms -> very reasonable terms -> not written or discussed - Ancillary Terms: Additional documents/manuals - If the terms are not accurate and clear, the employee is given the favourable interpretation Module 5 Ceccol v. Ontario Gymnastic Federation - Ceccol worked for OGF for 16 years pursuant to 15 one-year term contracts (each contract stated one-year terms but was subject to renewal) After the 15th contract, Ceccol’s contract was not renewed and Ceccol sued for wrongful dismissal for failure to give reasonable notice - Court ruled that the contract was ambiguous because while the time listed was one year, other clauses indicated it could be more or less than one year. Ceccol believed she was being employed fulltime by OGF and not for a one-year fixed contract. - Court of Appeal concluded that the fixed contracts are legal if the terms are clear but the contract was not clear. Court ruled that the contract was for an indefinite term and subject to renewal and found that Ceccol should have received 16 months of reasonable notice Machtinger v. HOJ Industries Ltd. - Worked for HOJ for 8 - 10 years, signed agreement that not much notice was needed (only given 4 weeks of pay)

- SCC Agrees that the illegal cause is void and demanded reasonable notice (10 months' pay) Bardal v. Globe & Mail Ltd. ONTARIO HIGH COURT - Main point about case: REASONABLE NOTICE -> establishes how to calculate wrongful dismissal - Most important common law case -> very influential for typical cases - Bardal was an advertising manager with 16.5 years of service when his contract was terminated - > let go without cause - His employment contract did not mention how much notice was required to terminate the employment contract - Believed that revenues were low because advertising was subpar - Employers tried to get him to resign but ultimately terminated him with a letter the next day - Court ruled that one year of reasonable notice was required due to how long he was employed with Globe & Mail - Bardal Factors: the character of the employment, length of service, age of servant, and availability of similar employment - How much notice is required for you to find a job? -> dependant on the economy, job market etc. McKinley v. BC Tel - McKinley suffered from high blood pressure and his doctor instructed him to take leave - Doctor told McKinley that if he takes a beta blocker he could go back to work - McKinley did not tell his employer and asked BC Tel for a less stressful job - BC Tel terminated his contract because he did not disclose the doctor’s advice - The court ruled that this dishonesty was not serious enough for dismissal and rejected cases that stated any dishonesty was cause for summary dismissal. - The SCC applied a principle of proportionality that requires a balance between misconduct and the sanction imposed. While McKinley wasn’t honest, he did not rise to the level of dishonesty inconsistent with the employment relationship and was awarded 26 months of reasonable notice Kelly v. Linamar Corporation - Kelly was a long-service well-respected management employee and was arrested for possession of child pornography. The employer dismissed Kelly but Kelly sued for wrongful dismissal - The court found that the arrest warranted summary dismissal because it threatened the employer’s business interests and the employer’s image as an advocate of children’s organizations. Module 6 Farber v. Royal Trust Co. - Farber was employed at Royal Trust Co. as a regional manager for western Quebec - Supervised 21 offices and 400+ employees - The employer restructured and removed the job and offered Farber his old manager job and told him that his pay is based on commission and compensation would be cut in half - Farber sued for constructive dismissal - The branch he was offered did better than expected and if he stayed he would not have suffered any losses

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- Courts ruled that Farber was constructively dismissed based on a breach of employment where employers cannot make substantial changes to an employee’s contract of employment - Demotion to a less prestigious job was warranted as constructive dismissal - Court ruled that it was not a reasonable or foreseeable event so Farber was constructively dismissed and entitled to damages of one year’s reasonable notice Carscallen v. FRI Corp - Carscallen worked for FRI Corp and was responsible for shipping certain materials to her boss attending a conference in Spain - She failed the task and the employer suspended her without pay, Carscallen quit and sued for constructive dismissal - Court ruled that there was a breach of contract because there was no contract term for unpaid suspensions. Furthermore, Carscallen’s actions were not serious enough for dismissal and found that the dismissal was unjustified - Carscallen was entitled to damages of 9 months Shah v. Xerox Canada - Shah worked for Xerox for 12+ years and received many great performance reviews - A new supervisor he transferred to started giving him poor performance reviews - Issued a warning letter - Shah asked to discuss and the supervisor refused - Supervisor issues letter for approaching and puts him on probation - Shah sues for wrongful dismissal - CA found that the employee was constructively dismissed -> he treated Shah unreasonably authoritarian, impatient and intolerant Honda Canada Inc. v. Keays - Keays has been employed by Honda for 11 years when he became ill (chronic fatigue syndrome) - Honda was not satisfied with the letters and asked him to see a doctor chosen by his employer -> Keays refused unless they explained why - Honda terminated Keays for summary dismissal for refusing the employer's request - Keays sued for wrongful dismissal - Court rules that Keays was wrongfully dismissed because his actions did not cause for dismissal and that compensation was assessed through reasonable notice per Wallace case but not with Hadley v. Baxendale where they used to access foreseeable compensable damages - However, the employer did not act in bad faith of dismissal so there are no aggravated or punitive damages - Keays was awarded $500,000 and 100% of legal fees paid - Judge was biased? -> applied Wallace Damages - SCC ruled that Wallace Damages cannot be applied here Wallace v. United Grain Growers - Wallace was 59 when he was dismissed without notice, he was the top salesman for 14 years and he was told he could work the same job until he retired - The employer argued just cause for dismissal so the notice was not required - Alligations of insubordination and failure to perform duties

- Wallace could not find new work because of termination -> became depressed and required medical assistance - Sued for wrongful dismissal and damages for mental distress - SCC awarded 24 months of notice but denied the mental distress claim -> ruled for wrongful dismissal only - Employer breached the obligation to act in good faith. Bazley v. Curry - Curry was employed by the children's foundation for treatment of emotionally troubled children. He bathed kids and put them to bed. Curry began sexual assault against Bazley a young boy in the care of the foundation. Curry was fired and was convinced of 19 counts of sexual abuse. Bazley sued Curry who had died but sought to hold the childrens foundation vicariously liable for damages - SCC ruled that they are vicariously liable for the act of their employee - Conditions: must be strong connection between what the employer was asking the employee to do and the wrongful act - The wrongful act occurs when the actions are closely connected to the job an employee is expected to perform and therefore vicarious liability can be applied - Even if the foundation did not know that Curry was a pedo, they are responsible for the damages caused Prinzo v. Baycrest Centre - Prinzo worked for Baycrest for over 17 years when she fell in a parking lot and hurt herself. Employer sent Prinzo a letter saying her doctor say she could work (it was falsified) - Prinzo said that the doctor did not advise her to do that. Prinzos lawyer asked the employer to contact him instead but they kept calling Prinzo. Employer threated Prinzo with termination and as soon as she returned to work she was given notice of termination - SCC ruled that the employer intentionally inflicted mental suffering Prinzo through repetitive phone calls and false claims. The employer was aware of their behaviour but continued to engage in the behaviour - Evidence shows real physical harm done to Prinzo and the court of appeal rewarded $15,000 damages for intentional infliction of mental and physical harm Drouillard v. Cogeco - Drouillard was hired by Mastec as a cable installer in Windsor Ontario. Mastec assigned Drouillard to work for project Cogeco (largest customer). Few hours after he started working, he was informed that Cogeco would not let him work on their projects and Mastec then terminated his employment. Mastec sued for wrongful dismissal and sued Cogeco in tort for inducing breach of employment contract - SCC found that Cogeco intentionally caused the breach of contract and caused Mastec to wrongfully dismiss Doruillard - Evidence of Cogeco telling Mastec to get rid of Drouillard - Cogeco was indifferent to whether Mastec complied as long as Drouillard was fired - SCC ordered Cogeco to pay $137,535 in lost wages and $62,4625 for additional damages done to a promising career Module 8

Key steps to take when looking at accommodation (p384) +6 factors on p.377 British Columbia Public Service v. BCGSEU - Melorin was hired as a firefighter in 1992 by the BC ministry of forests and performed well in her first few years on the job. - The BC Government introduced a new fitness standard for firefighters and required all employees to take the test. Melorin passed ¾ test standards and was fired for failing to meet the standard -> she was 49 seconds late - She filed a grievance and her union argued that it was discriminatory against women because women were less likely to meet the standard - The arbitration tribunal ruled that the aerobic standard discriminated against women and ordered reinstatement. -> was overturned by Court of Appeal - SCC ruled that the standards set discriminated on the basis of sex and introduced a new test to decide if a workplace standard is prima facie discriminatory (whether it is directly or indirectly) - Three establishments required - Employer adopted the standard for a purpose that is rationally connected to the performance of the job - Employer adopted the standard in an honest and good faith belief that it was necessary - The standard is reasonably necessary to accomplish that legitimate purpose to demonstrate that it is impossible to accommodate without imposing hardship on the employer - SCC ruled that it failed to establish a BFOR defence -> did not establish that the extra 49 seconds was reasonably necessary -> reordered reinstatement Entrop v. Imperial Oil Limited - Entrop has an alcohol-abuse problem but he has not drank in seven years -> he works at a safety-sensitive job at an oil refinery. - Employers introduced a new drug aand alcohol policy that requires workers in safety- sensitive jobs to disclose past substance abuse problems and take tests - Entrop admitted to his problem and was transferred to a new job but was reinstated later on the condition he agrees to take random tests - Entrop filed a HR complaint saying that mandatory testing discriminated against him - Ontario Court of Appeal confirmed that the test leads to negative employee repercussions for any positive test discriminates on the basis of disability - Determined that the policy is prima facie discriminatory because it assumes positive testers are addicts - Employer could not form a BFOR argument Ont. Human Rights Comm. v. Simpsons-Sears - O’Malley had worked as a full-time retail clerk at Simpsons Sears in Kingston. In 1978, O’Malley joined the Seventh-day Adventist church. The mandatory tenet of the church is that a member could not work on Sabbath. When O’Malley asked managers to realign her schedule as an accommodation, but they said that the fridays and saturdays were busy and required employees to work during store hours

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- Employers reassigned her to the part-time employee and consequent reduction in working hours etc. - HR board dismissed O’Malley’s discrimination complaint and the decision was appealed up to the SCC - SCC stated that Simpsons Sears violated the Ontario Human Rights Code through the offending rule “that the fridays and saturdays were busy and required employees to work during store hours” - SCC found that Simpsons Sears did not produce any evidence that accommodating O’Malley’s religion would have caused it any undue costs or scheduling problems Central Okanagan School District 23 v. Renaud - Renaud, an employee at a unionized workplace requested Friday evenings off because of his religion prohibiting work from Friday evening to sundown Saturday. - However, assigning shifts from Sunday to Thursday violates the collective agreement. The union threatened to file a grievance if the employer assigned the employee to the new shift so the employer fired the employee. - Employee filed a religious discrimination complaint under the BC Human Rights Code against the employer and the union. - SCC found that the duty to accommodate sometimes requires violating a collective agreement to enable accommodation and unions are obligated to participate in the accommodation process. - Collective agreements cannot absolve parties from the duty to accommodate Three Sisters Sample - Rensler sisters perform work for Regime Industries - Nona is a bookkeeper in the front office (Un-unionized) - Eunice is a machine operator in the factory (Unionized) - Indira provides contractual clearing services through a custodial business (Business Owner) Indira is an independent contractor - In a preliminary investigation by management, Eunice and Nona overheard Pryor (co- worker) having a private conversation revealing he had a contagious health condition - Eunice met with Indira and went through some that appears on the desk of the benefits administrator and found a password - Nona went through the system and downloaded Pryor’s health information - All three sisters had contracts terminated (invasion of privacy in Pryor’s health information - What legal action can they take? - Nona Bookkeeper - Claim wrongful dismissal - Statutory Standards Pay - Employment Standards Complaint to retrieve termination pay - If there was a discrimination Human Rights Complaint - Appeal record of employment for Employment Insurance - Eunice - File a grievance through the Union Steward and escalate to an Arbitration

- If there was discrimination, file a grievance or human rights complaint - Could appeal her ROE to be eligible for employment insurance or enlist the help of the Union Steward for a grievance - Indira - File a breach of contract and receive damages based on the expressed terms of the contract - If there was discrimination, file a human rights complaint - Indira is not eligible for employment insurance as an independent contractor - Pryor could sue for legal action against the sisters - If Pryor is in the bargaining unit he could file a grievance against he company for failing to keep his records confidential - If Pryor is not in the unit he could sue them for Intrusion Upon Seclusion Module 11 R. v. Vadim Kazenelson Module 12 Jones v. Tsige

IRE430 Case Study Summaries

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