Michael Torrance

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Termination Upheld for Workplace Violence Threats

By Michael Torrance on November 18, 2014 Posted in Canada

In the recent decision UFCW, Local 1400 v Prairie Pride Natural Foods Ltd, 2013 CanLII 82240 (SK LA), a Saskatchewan arbitration board upheld the dismissal of a long-term employee for workplace violence and harassment threats. The grievor worked as a Hanger in the employer’s poultry processing plant. He had been employed for five years, which … Continue reading

Complying with Safety Orders Not Factor in Mitigating Sentence Says Court of Appeal

By Michael Torrance on November 14, 2014 Posted in Canada

In, Ontario (Labour) v. Flex-N-Gate Canada Company, 2014 ONCA 53, an employer was fined $50,000 after an employee badly injured her foot and the employer was found to have breached two provisions of the Ontario Occupational Health and Safety Act (OHSA), R.S.O 1990, c, O.1. This decision was an appeal, in part, from the Ontario Court of … Continue reading

Discrimination Can Occur Even Where Accommodation Needs are Not Known

By Michael Torrance on November 14, 2014 Posted in Canada, Discrimination and harassment

In the recent decision of TWU v Telus Communcitations Inc, 2014 ABCA 154, the Alberta Court of Appeal addressed the issues of when accommodation is required and whether there is a procedural duty to accommodate, in Alberta human rights legislation. The employee was unionized and worked in a call centre. During the probationary period at the start … Continue reading

Termination Clause Unenforceable Where Falls Below Statutory Requirements

By Michael Torrance on November 13, 2014 Posted in Canada

The recent decision of Miller v. A.B.M. Canada Inc., 2014 ONSC 4062 involved a claim for wrongful dismissal damages in which the Plaintiff successfully argued that a contractual termination provision was unenforceable. On the facts, the employee signed an employment contract at the time of hire stating that, “Regular employees may be terminated at any time without cause … Continue reading

Case Brief: On punitive and mental distress damages for harassment

By Michael Torrance on November 13, 2014 Posted in Canada, Discrimination and harassment

In 2012, we reported on an Ontario jury award of approximately $1.5 million damages to a 42-year-old former assistant manager who resigned her employment at Wal-Mart after being verbally abused and harassed by her 32-year-old store manager. At trial, the employee was found entitled to $200,000 for intentional infliction of mental suffering, $1 million in … Continue reading

Case Brief: On family status discrimination and childcare obligations

By Michael Torrance on November 11, 2014 Posted in Canada, Discrimination and harassment

In May, the Federal Court of Appeal issued decisions in Canadian National Railway Company v Seeley, 2014 FCA 111 and Canada (Attorney General) v Johnstone, 2014 FCA 110, upholding findings of discrimination on the basis of family status made initially by the Canadian Human Rights Tribunal and upheld by the Trial Division of the Federal … Continue reading

Case Brief: On workers’ compensation for federal government employees

By Michael Torrance on November 6, 2014 Posted in Canada

The Supreme Court of Canada upheld an Alberta Court of Appeal decision addressing the principles of compensation application to federal government employees covered in Martin v. Alberta (Workers’ Compensation Board), 2014 SCC 25. The Alberta Court had restored a workers’ compensation Appeals Commission decision that had assessed and denied the compensation claim of a Parks … Continue reading

Case Brief: On denial of access to arbitration under the Labour Relations Code

By Michael Torrance on November 4, 2014 Posted in Canada, Discrimination and harassment

The Supreme Court refused leave to appeal a decision of the Alberta Court of Appeal in Alberta Union of Provincial Employees v. Her Majesty the Queen in Right of Alberta, 2013 CanLII 74523. The Court of Appeal decision in AUPE v Alberta, 2013 ABCA 212 had confirmed that the Alberta Labour Relations Code did not … Continue reading

Case Brief: On reduction of employer contributions to retirees’ medical benefits

By Michael Torrance on October 30, 2014 Posted in Canada

On November 21, 2013, the Supreme Court of Canada denied an employer’s application for leave to appeal the BC Court of Appeal decision in Lacey v. Weyerhaeuser Company Limited, 2013 BCCA 252. That decision had awarded damages to 5 retirees for reductions made by the employer to its contribution to the cost of their medical … Continue reading

Case Brief: On the rights of grievors to claim anonymity

By Michael Torrance on October 28, 2014 Posted in Canada

In October 2013, an arbitrator rejected a union argument that publication of individuals’ names in an arbitral award was possible only with their consent. In Sunrise Poultry Processors Ltd. v. United Food & Commercial Workers, Local 1518, 2013 CanLII 70673, the arbitrator held that disclosure was favoured as a general rule and that no justification … Continue reading

Case Brief: On business closure as a breach of the statutory freeze on employment terms

By Michael Torrance on October 23, 2014 Posted in Canada

In June, a majority of the Supreme Court held, in United Food and Commercial Workers, Local 503 v Wal-Mart Canada Corp., 2014 SCC 45, that an arbitrator had reached a reasonable conclusion in finding that Wal-Mart’s 2005 closure of a Quebec store constituted a prohibited unilateral change in conditions of employment following the certification of … Continue reading

Case Brief: On dismissal of a drug user with an unacknowledged dependency

By Michael Torrance on October 21, 2014 Posted in Canada, Discrimination and harassment

In 2012, we referenced a case in which a complainant, terminated for breach of his employer’s drug and alcohol policy, failed to establish that the termination was discriminatory: 2012 AHRC 7. The policy at issue in the case distinguished between employees who had voluntarily disclosed addictions and those who were identified only after a breach … Continue reading

Case Brief: On a partner’s right to claim discrimination in employment

By Michael Torrance on October 16, 2014 Posted in Canada, Discrimination and harassment

On May 22, 2014, the Supreme Court ruled that a partner in a BC law firm could not invoke human rights protection against age discrimination in employment to prevent his mandatory retirement. In McCormick v. Fasken Martineau DuMoulin LLP, 2014 SCC 39, the Court held that the existence of an employment relationship was determined by … Continue reading

Case Brief: On deduction of pension benefits from wrongful dismissal damages

By Michael Torrance on October 14, 2014 Posted in Canada, General

In August 2011, the British Columbia Court of Appeal held that pension benefits received by an employee during the reasonable notice period were not to be deducted from wrongful dismissal damages for that period: 2011 BCCA 337. A 7-member majority of the SCC agreed with that approach in IBM Canada Limited v Waterman, 2013 SCC … Continue reading

Executive Loses Incentive Comp Upon Resignation – Contract Enforceable, Court Finds No Restraint on Trade

By Michael Torrance on October 12, 2014 Posted in Canada

The Ontario Superior Court of Justice upheld a contract that forced an employee to forfeit restricted shares upon resignation in Levinsky v The Toronto-Dominion Bank. The Plaintiff, a Vice President and Managing Director at the bank, participated in the bank’s Long Term Compensation Plan. The Plan granted the Plaintiff Restricted Share Units each year. Under the Plan, … Continue reading

Threatening Facebook Post Provides Grounds for Dismissal

By Michael Torrance on October 10, 2014 Posted in Canada, General

In the recent decision of CEP, Local 64 v Corner Brook Pulp and Paper Limited, 2013 CanLII 87573, a Newfoundland arbitrator found that comments posted on an employee’s Facebook page constituted sufficient grounds for dismissal. The Grievor was a Tallyman in the employer’s (Corner Brook) shipping department. She had 13 years of service with her … Continue reading

Age Discrimination Found in Termination for Poor Performance

By Michael Torrance on October 10, 2014 Posted in Canada, Discrimination and harassment

In the recent decision of Price v Topline Roofing, 2013 BCHRT 306 the BC Human Rights Tribunal awarded close to $12,000 in lost wages to an employee terminated because of his age. The employee was a journeyman who had worked for Topline Roofing on and off for over 15 years. At the time of his … Continue reading

Case Brief: On an employee’s right to withhold personal information from her union

By Michael Torrance on October 9, 2014 Posted in Canada

In February, the Supreme Court released reasons in Bernard v. Canada (Attorney General), 2014 SCC 13, a case involving a CRA employee who objected to providing her home contact information to the union that was required to represent her despite her non-member status. The union had sought the contact information to fulfill its responsibilities and … Continue reading

Case Brief: On the interplay between privacy rights and Charter freedoms

By Michael Torrance on October 7, 2014 Posted in Canada

On November 15, 2013, the Supreme Court of Canada released reasons in Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401, 2013 SCC 62. The case addressed the union’s right to collect and use videotaped and still images of individuals who had crossed a picket line during a lawful strike. An … Continue reading

Discrimination Found Where Lay-Off Decision Did Not Consider Disability

By Michael Torrance on September 26, 2014 Posted in Canada, Discrimination and harassment

In the recent decision Besner v Deputy Minister of Human Resources and Skills Development the Public Service Staffing Tribunal (the “Tribunal”) held it was discriminatory to lay-off a disabled employee after she was selected by the retention and lay-off process (“SERLO”). The complainant was an Administrative Co-ordinator with Human Resources and Skills Development Canada suffering … Continue reading

No Independent Procedural Duty to Accommodate Under Canadian Human Rights Act: Federal Court of Appeal

By Michael Torrance on September 24, 2014 Posted in Canada

A recent decision by the Federal Court of Appeal in Canada (Human Rights Commission) v Canada (Attorney General) (Cruden) has suggested that there is no procedural duty that exists separate and apart from the substantive duty to accommodate an employee with a disability. Cruden involved an employee of the Canadian International Development Agency (“CIDA”). The … Continue reading

Government Wage Restraint Legislation Upheld

By Michael Torrance on September 24, 2014 Posted in Canada

The Ontario Superior Court of Justice has affirmed that the federal government did not violate unionized employee’s freedom of association by legislating wage increase limits in The Professional Institute of Public Service of Canada v Canada (Attorney General). This is an interesting development for governmental policy makers and public employers, particularly in light of previous … Continue reading

Dismissal Without Hearing of Human Rights Complaint Upheld by Ontario Court

By Michael Torrance on September 22, 2014 Posted in Canada

In Gill v Human Rights Tribunal of Ontario, the Ontario Divisional Court concluded that it is appropriate for the Human Rights Tribunal of Ontario (the “Tribunal”) to summarily dismiss an application where its prior jurisprudence suggests that the application has no reasonable prospect of success. Gill was a suppression firefighter who was terminated at age … Continue reading

Random Drug Testing Policy Struck Down by Arbitrator

By Michael Torrance on September 22, 2014 Posted in Canada

In its decision on a recent policy grievance, an Arbitrator refused to allow an employer to unilaterally impose a random alcohol and drug testing program, serving as a reminder of the challenges facing employers in the implementation of such policies. On the facts, in 2012 the employer, an oil company, attempted to implement a urinalysis based … Continue reading