Michael Torrance

Subscribe to all posts by Michael Torrance

Termination Upheld for Workplace Violence Threats

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

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

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

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

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

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

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

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 the rights of grievors to claim anonymity

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

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

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

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

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

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

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

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

Discrimination Found Where Lay-Off Decision Did Not Consider Disability

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

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

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

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

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