Download - Davis LLP

2013 

Employment & Labour 

Law Conference 

Toronto, ON 

Friday, May 10, 2013

2013 Employment & Labour Law Conference - Toronto 

Table of Contents 

About Davis LLP ...................................................................................................................................... Tab 1 

Firm Profile 

Employment & Labour Law Expertise 

Team Biographies .................................................................................................................................... Tab 2 

Wendy-Anne Berkenbosch 

Dan Black 

Karen Bock 

Matthew Curtis 

Tania Da Silva 

Michael Ford 

Leslie Frattolin 

Pablo Guzman 

Cynthia Levy 

Richard Nixon 

Larry Page 

Mike Richards 

Sam Schwartz 

Ellen Swan 

Tatha Swann 

Adrienne Woodyard 

You Think YOU’RE Stressed!: Mental Health Issues in the Workplace .......................................... Tab 3 

You Are What You Tweet: Perks & Perils of Social Media ................................................................. Tab 4 

Baby Boomers Who Keep on Booming: Legal Considerations Regarding an Aging Workforce ............. Tab 5 

Cross-Country Check-Up: Recent Developments in Canadian Employment Law .......................... Tab 6 

British Columbia Update ................................................................................................ Tab A 

Western Update ............................................................................................................. Tab B 

Québec Update .............................................................................................................. Tab C 

Federal Update .............................................................................................................. Tab D 

Ontario Update ............................................................................................................... Tab E 

Gone but Not Forgotten: Navigating the Legal Landscape and Statutory Leaves ........................ Tab 7 

The Downside of Employee Perks: Taxation of Employee Benefits ................................................. Tab 8 

Anatomy of a Failed Termination .......................................................................................................... Tab 9 

Meet the Experts ..................................................................................................................................... Tab 10 

©Davis LLP, 2013

2013 Employment & Labour Conference Toronto 

Firm Information 

Chambers Global: Guide to the World’s Leading Lawyers describes Davis as a firm that “maintains a profile as 

a lean outfit that punches above its weight.” The firm acts for both Canadian and international clients and is 

often involved in complex matters with an international dimension. 

With more than 250 lawyers providing legal services across Canada and in Japan , Davis LLP has well-known 

and respected capabilities in core areas such as corporate and commercial law, M&A, litigation and labour 

and employment. The firm is also a leader in a number of niche markets, including infrastructure development 

(particularly PPPs - public/private partnerships), project finance, renewable energy, climate change law, 

natural resources, environmental law, banking and financial institutions (including banks, credit unions and 

other regulated financial institutions), and Japan and Japanese-related investments. 

Davis LLP's reputation for excellence and ethical practice is recognized in Canada and internationally 

including: 

 

 

 

 

 

 

Best Lawyers in Canada 2013 directory lists 33 of the firm’s partners across 28 practice areas as 

leaders in their field. 

Chambers Global 2012 ranks 6 of the firm’s lawyers as leaders in their field, including Employment & 

Labour, Corporate/M&A, Banking & Finance, and Projects: PPP & Infrastructure. 

The Canadian Legal Lexpert Directory 2012 recognizes 32 of our partners and counsels as leading 

counsel in various areas of practice. 

Martindale Hubbell peer review rankings have 14 of our lawyers rated as AV® Preeminent (highest 

level of professional excellence) and 52 as BV® Distinguished (a widely respected mark of 

achievement). 

PLC Which Lawyer 2012 endorses 6 partners in the areas of Competition/antitrust, Dispute 

Resolution, Labour & Employment, Tax, Outsourcing, Capital Markets, and Real Estate. 

The International Who’s Who Legal 2012 identified 9 lawyers as leading legal practitioners in eight 

different areas of business law, including three lawyers in aviation law. 

Davis LLP’s leadership position has been acknowledged with numerous awards, including, most recently: 

 

 

 

Chambers and Partners 2012 recognizes the firm as a leader in the areas of Projects: PPP & 

Infrastructure, and Banking & Finance. 

The Canadian Legal Lexpert Directory 2012 endorses the firm in five different practice areas, 

including Banking & Financial Institutions, Competition Law, Corporate Commercial Law, Forestry, 

and Property Development. 

Canadian Dealmakers recognized Davis LLP’s transaction representing Far West Mining Ltd. in its 

$710 million acquisition by Capstone Mining Corp. as the “Mining Deal of the Year” in 2011. 



Office Locations 

TORONTO 

VANCOUVER 

EDMONTON 

CALGARY 

Suite 6000 

1 First Canadian Place 

P.O. Box 367 

100 King Street West 

Toronto, ON 

Canada M5X 1E2 

T: 416.365.3500 

F: 416.365.7886 

Suite 2800 Park Place 

666 Burrard Street 

Vancouver, BC 

Canada V6C 2Z7 

T: 604.687.9444 

F: 604.687.1612 

Suite 1201 

Scotia Tower 2 

10060 Jasper Avenue 

Edmonton, AB 

Canada T5J 4E5 

T: 780.426.5330 

F: 780.428.1066 

Suite 1000 

Livingston Place West 

250 2nd Street SW 

Calgary, AB 

Canada T2P 0C1 

T: 403.296.4470 

F: 403.296.4474 

MONTRÉAL 

TOKYO 

WHITEHORSE 

YELLOWKNIFE 

Suite 1400 

McGill College Tower 

1501 McGill College 

Avenue 

Montréal, QC 

Canada H3A 3M8 

T: 514.392.1991 

F: 514.392.1999 

ARK Mori Building 

West Wing 13th Floor 

1-12-32 Akasaka 

Minato-ku, Tokyo 

Japan 107-6013 

T: 81.3.5251.5071 

F: 81.3.5251.5072 

Suite 201 

The Taku Building 

4109 4th Avenue 

Whitehorse, YT 

Canada Y1A 1H6 

T: 867.393.5100 

F: 867.667.2669 

Suite 802 

Northwest Tower 

5201 - 50th Avenue 

Yellowknife, NT 

Canada X1A 3S9 

T: 867.669.8400 

F: 867.669.8420 



Practice Areas 

 

Aboriginal 

 

International Law & Trade 

 

Alternative Dispute Resolution 

 

Japan 

 

Aviation 

 

Legal Research 

 

Banking & Financial Services 

 

Life Sciences 

 

Charities & Not-for-Profit Organizations 

 

Litigation 

 

China & Southeast Asia 

 

Media, Entertainment & Communications 

 

Climate Change 

 

Mining 

 

Commercial Lending 

 

Municipal 

 

Commercial Litigation 

 

Oil & Gas 

 

Competition & Antitrust 

 

Occupational Health & Safety 

 

Construction 

 

Pensions & Benefits 

 

Corporate/Commercial /M&A 

 

Privacy 

 

Corporate Services 

 

Products Liability 

 

Education 

 

Professional Governance & Regulation 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Electricity Regulation 

Employment & Labour 

Energy & Utilities 

Environmental 

Family 

Forestry 

Franchise & Distribution 

Health 

Human Rights 

Immigration 

Injury 

Insolvency, Bankruptcy & Restructuring 

Insurance 

Intellectual Property 

International Business Transactions 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Project Finance, Infrastructure & Public 

Private Partnerships 

Proxy Law 

Public Affairs 

Real Estate 

Regulatory 

Regulatory & Administrative 

Renewable Energy 

Securities & Corporate Finance 

Securities Litigation 

Taxation 

Technology & Outsourcing 

Transportation 

Video Games & Interactive Entertainment 

Wills, Estates & Trusts 

 

International Corporate Governance 



Areas of Expertise 

Practice Group Integration 

As a full-service national law firm, Davis LLP maintains a broad-based network of practice groups and 

integrated specialities capable of providing a comprehensive range of legal services at the highest level. The 

operational organization of our firm and the expertise of our lawyers enables us not only to respond quickly 

and effectively to individual requirements in any area, but to also provide our clients with ongoing responsive 

counsel and services across a broad spectrum of activities. 

Our practice groups are coordinated into cross-disciplinary teams of specialists who are capable of directing 

formidable resources to particular areas of law, particular industries, and particular nations or regions as 

required. We organize resources to provide clients with the depth and expertise characteristic of a highly 

specialized “boutique firm,” along with the breadth and capability of a large, full-service national firm. Our goal 

is to provide rigorously effective solutions which anticipate future developments and other needs. 

Employment & Labour Law 

The Davis LLP Employment & Labour Law Practice Group provides innovative strategic advice, dispute 

resolution and negotiation expertise to management and government in all aspects of business employment 

relations. 

Our lawyers who practice in this area have diverse backgrounds in labour and employment and related areas 

such as employee benefits and pensions, executive compensation, governance, human rights and privacy. 

Below are some examples of the services our group provides: 

 

 

 

We appear as advocates before labour boards and arbitrators, human rights tribunals and other 

statutory tribunals and the court in both federal and provincial jurisdictions. 

We advise on: 

 

 

 

 

 

personnel reorganization programs, employment contracts. Employment termination 

procedures and wrongful dismissal litigation; 

employment and human resources policies; 

all aspects of human rights; 

compliance with Employment Standards, Workers' Compensation and other labour 

legislation; 

negotiation and administration of collective agreements; 

the negotiation, conciliation and arbitration of strikes and lockout situations; and 

privacy laws and confidential information issues relevant to employers. 

We provide a full range of services in employee benefits including representing pension advisors and 

acting on insurance and disability issues. 


Wendy-Anne Berkenbosch 

PARTNER 

EDMONTON 

Phone: 780.429.6810 

Fax: 780.702.4396 

Email: wberkenbosch@davis.ca 

Biography 

Wendy-Anne Berkenbosch joined the Davis LLP partnership in 2010 and is a member of the firm’s Legal 

Research Practice Group. Wendy-Anne assists clients and other lawyers by providing research and analysis 

and by drafting comprehensive opinions, oral arguments and written submissions for all levels of court in all 

areas of the law. 

As a member of the firm’s Employment and Labour Law Practice Group, Wendy-Anne also advises employers 

on labour, employment, administrative and human rights law issues. 

Wendy-Anne also practises in the area of environmental law. Her experience includes advising clients regarding 

potential environmental risks and liability, supporting the defence of environmental prosecutions and assisting in 

the application process for environmental regulatory approval. 

Publication 

"Recent Developments and Limits on the Employer's Duty to Accommodate", Canadian Employment & 

Labour Conference 2012 - Montreal and Toronto (June 2012) 

"I Know What You Did Last Summer: Employers and Workplace Surveillance" (October 2011) 

"Practical Strategies for Legal Research" (June 2011) 

"Discovery (Western)", Canadian Encyclopedic Digest (April 2011) 

"Appeal court rejects damages for stigma of dismissal: Merrill Lynch", The Lawyers Weekly (November 2010) 

"Are We There Yet The Duty to Accommodate and Meeting the Test for Undue Hardship" (November 

2010) 

"Alberta Court of Appeal Overturns $1.6 Million Award for Injury to Reputation and Goodwill", Davis LLP 

Employment & Labour Bulletin (September 2010) 

"Cross Country Check Up - Alcohol and Drug Testing Update" (September 2010) 

"2010 Canadian Employment & Labour Law Conference Handout - Toronto" (May 2010) 

"Western Report - Alcohol and Drug Testing Update" (March 2009) 

"The Duty of Fairness in the Investigative Stage of Administrative Proceedings" (January 2009) 

"How Far is Too Far Terminating and Accomodating Disabled Employees" (November 2008) 

"Franchise Update: Canadian Legislation, Mandatory Mediation Clauses, Price Maintenance, and Other 

Topics", Davis LLP Franchise Connection (July 2007) 

© Davis LLP 2013

Professional Associations & Activities 

Member, Law Society of Alberta 

Member, Canadian Bar Association 

Second Vice President, University of Alberta Alumni & Friends of the Faculty of Law Association 

Speaking Engagements and Events 

Davis LLP Employment & Labour Law Conference Series, 2012 Western Canada Employment & Labour 

Law Conferences (October 2012) 

Davis LLP Annual Employment & Labour Law Conference Series, Toronto Employment & Labour Law 

Conference 2012 (May 2012) 

Davis LLP Annual Employment & Labour Law Conference Series, Montreal Employment & Labour Law 


Davis LLP Employment & Labour Conference, Canadian Employment & Labour Conference 2011 - Calgary 

(October 2011) 

Davis LLP Employment & Labour Group Conference, Canadian Employment & Labour Conference 2011 - 

Edmonton (October 2011) 

Edmonton Law Libraries Association, Headstart Legal Research Seminar for Graduating Law Students 2005- 

2011 (June 2011) 

Davis LLP, Canadian Employment & Labour Conference 2011 - Toronto (May 2011) 

Davis LLP, Canadian Employment & Labour Conference 2010 - Edmonton (November 2010) 

InsideCounsel, National Labour Law Symposium 2010 (September 2010) 

Davis LLP, Canadian Employment & Labour Law Conference 2010 - Toronto (May 2010) 

Legal Education Society of Alberta Seminar, Legal Research (October 2008) 


Education 

LL.B (with Distinction), University of Alberta, 1999 

B.A. (with Distinction), The King's University College, 1995 

Language 

English 

Place and Year of Call 

Alberta, 2000 


Dan Black 

COUNSEL 

TORONTO 

Phone: 416.369.5280 

Fax: 416.369.5209 

Email: dblack@davis.ca 

Biography 

Dan Black is counsel in the Toronto office of Davis LLP where he practices Employment and Labour Law, 

providing strategic advice to private and public sector employers. 

Dan was a partner in the employment and labour law practice group of another national law firm where he 

practiced for 10 years before joining a private-sector health care company as in-house counsel. He returned to 

private practice at Davis in 2008. 

Dan has extensive experience in all areas of employment and labour law, including an in-depth knowledge of 

occupational health and safety law, workers' compensation law, and independent contractor versus employee 

relationships. 

He regularly drafts and interprets employment, independent contractor, consulting, and restrictive covenant 

agreements and regularly advises employers on: 

employment terminations 

wrongful dismissal actions 

employment standards claims 

human rights issues and complaints 

collective agreement negotiations 

occupational health and safety issues (including legislative requirements, work refusals, inspections, 

workplace accidents, and prosecutions) 

workers' compensation matters (including worker claims and employer classification appeals) 

independent contractor issues 

employment aspects of corporate transactions 

He has assisted employers to: 

recover over a million dollars in excess workers' compensation premiums 

retain the ongoing right to six-figure refunds of workers' compensation premiums following a business 

reorganization 

avoid and defend against prosecutions under the Occupational Health and Safety Act 


significantly reduce retroactive liability for Canada Pension Plan contributions and employment insurance 

premiums 

centralize multi-hospital business and supply chain processes 

avoid unionization 

negotiate significant revisions to a collective agreement to enable a business to return to profitability 

avoid union successor rights in the context of business transactions 

Selected Experience 

United Food and Commercial Workers International Union, Local 1000A v. Nike Canada Ltd. [2006] O.L.R.D. 

No. 2482 (Ont. Lab. Rel. Bd.) (July 2006) 

Publication 

"Coming Soon to Your Workplace: New Mandatory Health and Safety Training Requirements", Davis LLP 

Employment & Labour Law Bulletin (February 2013) 

"Workplace Safety Incident Checklist for British Columbia Employers", Davis LLP Employment & Labour Law 

Conference (October 2012) 

"Recent Developments and Limits on the Employer's Duty to Accommodate", Canadian Employment & 

Labour Conference 2012 - Montreal and Toronto (June 2012) 

"The Integrated Accessibility Regulation", Davis LLP Employment & Labour Alert (September 2011) 

"Workplace Incident Reporting Obligations: Broader Than They May Appear", Davis LLP Employment & 

Labour Alert (September 2011) 


"Significant New Employer Obligations Respecting Workplace Violence and Harassment", Davis LLP 

Employment & Labour Alert (January 2010) 

"Cell Phones, Texting and Driving: Is Your Workplace Ready for the New Ban", Davis LLP Employment & 


"Downsizing and Restructuring Employment Strategies in Uncertain Times", Davis LLP Employment & 

Labour Bulletin (May 2009) 


Member, Law Society of Upper Canada 


Instructor, Reducing Workers' Compensation Costs, Institute of Chartered Accountants of Ontario 






McCarthy Tetrault Labour and Employment Law Client Conference 2005 (October 2005) 

McCarthy Tetrault Labour and Employment Law Client Conference 2000 (May 2000) 

Education 

LL.B., Osgoode Hall Law School, 1994 

B.A., English (with Distinction), University of Toronto, 1991 

Language 

English 


Ontario, 1996 



Karen R. Bock 

PARTNER 

TORONTO 

Phone: 416.365.3523 

Fax: 416.777.7444 

Email: kbock@davis.ca 

Biography 

Karen Bock is a partner in the Employment & Labour Group at Davis LLP in Toronto. Karen has a general 

management-side labour and employment law practice. 

Karen advises public and private-sector employers on matters, such as employment standards, arbitrations, 

wrongful dismissal actions, human rights complaints, workplace safety and insurance matters. 

Karen received her LL.B. from the University of Toronto in 2000. Previously, she earned her B.A. (Hons.) from 

the University of Winnipeg. She also earned an M.A. and Ph.D. in English Literature from Brown University, and 

taught for some years at Wesleyan University in Connecticut. 


Providing employers with legal advice during union certification attempts and organizing campaigns and 

related litigation before the Ontario Labour Relations Board 

Defending wrongful dismissal claims and demands against various clients 

Advising clients with respect to human rights issues, including the accommodation of disabled employees 

and the development and implementation of absenteeism programs. 

Representing employers at proceedings before labour arbitrators, labour boards, human rights tribunals, 

workers compensation boards and tribunals. 

Assisting in the representation of clients with respect to significant and complex litigation related to fraud and 

theft claims against an employee and his associates. 

Reviewing and preparing employment contracts for senior executives and other employees in the context of 

various acquisitions and dispositions of businesses, including serving as the primary employment lawyer for 

numerous significant transactions for a major chartered bank. 

Conducting and supervising employment and labour related due diligence on various transactions. 

Drafting and/or reviewing employment policies and handbooks for various clients and advising such clients in 

the implementation and interpretation of employment policies. 

Acting for various clients and several social services agencies in relation to the negotiation of collective 

agreements and providing assistance to various student unions in preparation for collective bargaining. 

Developing numerous employment and consulting contracts for use in Canada by various clients. 

Advising clients with respect to Workplace Safety and Insurance Disputes and representing clients before the 

WSIB. 


Assisting clients with the development of strategies for downsizing and growing of operations, and coordinating 

with in house counsel and/or legal counsel in various jurisdictions. 

Advising clients regarding the termination of employees including providing advice with respect to legal 

requirements and the practical considerations of termination. 

Recognition 

Osgoode Society for Canadian Legal History Prize 

Publication 

"Federal Court Rules that Employer Has to Accommodate Employee's Childcare Obligations", Davis LLP 


"Doing Business in Ontario 2012" (November 2012) 

"He Said. She Said. Now What Conducting Effective Workplace Investigations", Canadian Employment & 

Labour Conference 2012 - Montreal and Toronto (May 2012) 

"Employment Contracts and Disability: Making the Doctrine of Frustration Work for Your Business", The 

2001/2012 Lexpert CCCA Corporate Counsel Directory and Yearbook (November 2011) 

"Top 10 Tips for Hiring and Firing", Canadian Employment & Labour Conference 2011 - Calgary / Edmonton 


"Cross-Country Checkup - Ontario", Canadian Employment & Labour Conference 2011 - Calgary / 

Vancouver (October 2011) 

""BUT I CAN'T EVEN READ THAT NOTE!" Getting the Medical Information You Need to Manage Employee 

Disabilities", Canadian Employment & Labour Conference 2011 - Vancouver (October 2011) 




"Beyond the "Bare Minimum Route" with Long-Term Employees", Davis LLP Employment & Labour Bulletin 

(August 2011) 






"The Last Word On Kerry", Davis LLP Pensions & Benefits Bulletin (August 2009) 








Federated Press 7th Employer's Duty to Accommodate, Latest Legal Developments Impacting the Duty to 

Accommodate (December 2012) 









Davis LLP, Canadian Employment & Labour Conference 2011 - Vancouver (October 2011) 


Federated Press, 5th Annual Employers Duty to Accomodate (December 2010) 

The Canadian Institute, 10th Annual Advanced Forum on Employment Law (October 2010) 

Federated Press, 3rd Annual Employers Duty to Accommodate (December 2009) 

The Canadian Institute, 9th Annual Employment Law: Effective Policies, Legal Strategies and Updates to 

Reduce Your Liability in the Non-Unionized Workplace (October 2009) 

Federated Press, 8th Managing Employees with Disabilities (April 2009) 

The Canadian Institute, The Duty to Accommodate: Effective Management of Employees Affected by Mental 

Health Issues, Stress or Addictions (January 2009) 

Education 

LL.B., University of Toronto, 2000 

Ph.D., English Literature, Brown University 

M.A., English Literature, Brown University 

B.A., English Literature, (with Honours), University of Winnipeg 


Ontario, 2002 


Matthew J.G. Curtis 

ASSOCIATE 

TORONTO 

Phone: 416.941.5410 

Fax: 416.369.5216 

Email: mcurtis@davis.ca 

Biography 

Matthew Curtis is an associate in the Toronto office of Davis LLP and a member of the firm's Employment and 

Labour Law Group. He advises Canadian and international companies on a variety of labour and employment 

matters. 

Matthew has broad experience in labour and employment, including; wrongful dismissal, post-employment 

competition, employment standards, privacy, executive compensation, health & safety matters and workers 

compensation, human rights and labour relations. 

Matthew has appeared before various levels of courts and administrative tribunals, including the Supreme Court 

of Canada. 

Upon graduation from the Faculty of Law at the University of British Columbia, Matthew was a judicial law clerk 

at the Federal Court of Appeal. 

Publication 

• "2013 Employment and Labour Law Conference Materials - Toronto", Davis LLP Annual Employment & 

Labour Conference (May 2013) 

• "Federal Court Rules that Employer Has to Accommodate Employee's Childcare Obligations", Davis LLP 



• Member, Canadian Bar Association 

• Member, B.C. Human Resources Management Association (HRMA) 

• Secretary, Canadian Bar Association, B.C. Branch, Employment Law Section 


• Davis LLP Annual Employment & Labour Law Conference Series, Toronto Employment & Labour Law 


Community Involvement 

• Legal services provided to FarmFolk/CityFolk Society, Pro Bono Law of British Columbia - Civil Chambers 

Duty Counsel Project, Supervising Clinic Lawyer, UBC Law Students' Legal Advice Program 

Education 

• LL.B., University of British Columbia, 2007 


• Law Exchange, National University of Singapore, 2007 

• B.A. (Hons.), University of Toronto, 2003 

• French Language Certificate, L'université du Québec à Chicoutimi, 2000 

Language 

• English 

• French 


• Ontario, 2012 

• British Columbia, 2009 


Tania Da Silva 

ASSOCIATE 

MONTRÉAL 

Phone: 514.392.8427 

Fax: 514.392.8374 

Email: tdasilva@davis.ca 

Biography 

Tania da Silva is an associate at Davis LLP's Montreal Office where she practices in the area of 

employment law and commercial litigation. 

Tania joined Davis LLP in 2009 after the completion of her articles with the firm. 

Tania’s employment law practice involves assisting employers on matters such as wrongful dismissal claims, 

advising on Labour Standards, Human Rights and Privacy issues, enforcing restrictive covenants, drafting and 

reviewing employment contracts and employment policy manuals, hiring, disciplining and terminating 

employees. 

Tania's litigation practice consists of representing numerous clients in a wide range of civil suits, including 

employment-related litigation, manufacturer's liability, enforcing of securities and all manner of contractual 

disputes. She has also been involved in several class action proceedings as defence counsel, 

specifically in competition law private actions brought under the Civil Code of Quebec and the Competition Act. 

Publication 

"Surveillance of Your Electronic Systems", Canadian Employment & Labour Conference 2012 - Montreal 

(June 2012) 


Member of the Young Bar Association of Montréal 




Education 

LL.L, University of Ottawa, 2008 

LL.B., University of Ottawa, 2007 

B.Sc.Soc., Concentration in criminology, University of Ottawa, 2004 


Language 

Portuguese 


Québec, 2009 


Michael D. A. Ford, Q.C. 

PARTNER 

CALGARY 

Phone: 403.294.3588 

Fax: 403.213.4469 

Email: mford@davis.ca 

Biography 

Michael Ford, Q.C. is a partner in Davis LLP’s Calgary office. His practice is focused on employment and labour 

law, and has extensive experience in all aspects of collective bargaining, advising both unionized and nonunionized 

employers. 

Michael has acted for employers in collective bargaining, arbitrations, strikes and contract administration 

matters. He has advised employers on dealing with union organizational activity and provided counselling on 

various workplace matters, including employee discipline and termination, privacy issues, employment 

agreements, harassment/discrimination, drug testing polices, and sick leaves. 

He has also provided guidance to boards of directors and compensation committees on executive employment 

matters. Michael is a certified human resources professional. 

Michael develops sensible and workable solutions to complex workplace issues in a range of industries, 

including: energy, manufacturing, warehouse, communications, retail, financial, transportation and high-tech 

industries, as well as major public sector institutions in the health and education fields. 

He has defended many employers in significant labour and employment cases involving provincially and 

federally-regulated workplaces, and routinely advises on Canada/US business transactions involving 

employment matters. 

Michael is a leader in the human resources community. He is the former President of the Human Resources 

Institute of Alberta; former Chair of the Human Resources Policy Committee of the Calgary Chamber of 

Commerce; and, has been an Instructor at the University of Lethbridge in Alberta. He is also a frequent speaker 

at various labour and employment conferences across the country. 

Michael has been recognized since 1998 in the Canadian Legal Lexpert Directory, a guide to the leading law 

firms and practitioners in Canada, in the area of labour law. He has been listed since 2008 in Chamber’s Global: 

Guide to the World’s Leading Lawyers, as a leading lawyer in the area of employment law; he has been 

described by the publication as: “…outgoing, bright and really knows his stuff (2009)…”; “…noted for his 

expertise in trade union matters and occupational health issues…” (2010); “…is lauded for his practical 

approach to labour and employment in the Province of Alberta…” (2012); “…broad knowledge of legal issues 

and his ability to work to solutions…” (2013). The Canadian HR Reporter has also acknowledged him as one of 

Canada’s top employment lawyers. 


Canadian Human Rights Commission and Khiamal v. Greyhound Transportation [2009] 75 C.C.E.L. (3d) 333 

(Personality conflict is not discrimination) 

Filipchuk v. Cargill Ltd., [1996] A.J. No. 865; 23 C.C.E.L. (2d) 20; 44 Alta L.R. (3d) 132 (Constructive 

Dismissal) 

Suncor Energy v. CEP (2008), 178 L.A.C. (4th) 223 (Post-incident drug testing) 


Ryrie v. The University of Calgary (2012) ABQB 342 (post-traumatic stress disorder arising from dismissal) 

Greyhound Canada v. ATU Local 1415, (2011) 207 L.A.C. (4th) 192 (accommodation arising from repetitive 

workplace injury) 

The University of Calgary v. Privacy Commissioner of Alberta (whether solicitor client documents are subject 

to disclosure to the Office of the Information and Privacy Commissioner of Alberta) 

Flint Canada Inc. v. Bonokoski (1997) 50 Alta L R. (3d) 26; 203 A.R. 225; 145 D.L.R. (4th) 453 (applicability 

of employment standards to worksites located outside of Alberta) 

ATA v. Calgary School District #19 (2006) 15b L.A.C. (4th) 97 (court jurisdiction to deal with historical 

employee benefit plan surpluses over a 25 year period) 

The University of Calgary v. Faculty Association, (2010) 192 L.A.C. (4th) 214 (elimination of government 

health care premiums); 

The Calgary Board of Education v. ATA, (2010) 103 C.L.A.S. 98 (psychological testing as a screening tool 

for promotion) 

Greyhound Canada v. ATU Local 1415, (2011) 213 L.A.C. 433 (use of medical records to administer shortterm 

medical leave) 

Recognition 

Canadian Legal Lexpert Directory, 1998 - Present 

Chamber’s Global: The World’s Leading Lawyers for Business, 2008-Present 

Canadian HR Reporter 

Queen's Counsel, 2012 

Human Resources Institute of Alberta: Distinguished Career Award 


Member, Former President, Human Resources Institute of Alberta 

Member, Former Chair, Labour Law Subsection, Canadian Bar Association (Southern Alberta) 

Former Chair, Hospital Privileges Appeal Board of Alberta 

Member, Law Society of Alberta 


Member, Calgary Bar Association 

Member, Canadian Association of Counsel to Employers 

Member, American Bar Association, Labour and Employment Sector 

Member, Society for Human Resource Management 



The Canadian Institute's Western Forum on Employment Law, Understanding Privacy Laws Impacting 

Employees and the Workplace (May 2013) 

Education 

LL.B., University of Alberta, 1984 

B.Comm. (Labour Relations), University of Alberta, 1981 

CHRP, 1992 

Language 

English 


Alberta, 1986 



Leslie Frattolin 

ASSOCIATE 

TORONTO 

Phone: 416.941.5391 

Fax: 416.369.5218 

Email: lfrattolin@davis.ca 

Biography 

Leslie Frattolin is an associate in the Employment & Labour Group at Davis LLP in Toronto. Her experience 

includes assisting senior counsel with arbitrations, wrongful dismissal actions and human rights' complaints. 

Leslie joined Davis LLP in 2008 as a student and articled at the firm. She returned as an associate following her 

call to the bar in June 2010. 

Leslie earned her Bachelor of Arts degree in Economics from Lakehead University in 2006 and received her 

J.D. from Osgoode Hall Law School in 2009. 

While attending law school, Leslie was awarded the Osgoode Centennial Entrance Scholarship for academic 

excellence. 

Publication 

"An Ounce of Prevention: Effectively Managing the Employment Relationship from the Beginning", Canadian 

Employment & Labour Conference 2012 - Montreal and Toronto (May 2012) 

"Employment Contracts and Disability: Making the Doctrine of Frustration Work for Your Business", The 

2001/2012 Lexpert CCCA Corporate Counsel Directory and Yearbook (November 2011) 












Education 

J.D., Osgoode Hall Law School, 2009 

B.A., Economics, Lakehead University, 2006 


Ontario, 2010 


Pablo Guzman 

PARTNER 

MONTRÉAL 

Phone: 514.392.8406 

Fax: 514.392.8376 

Email: pguzman@davis.ca 

Biography 

Pablo Guzman is a partner in the Montréal office of Davis LLP. Pablo is a litigator and practises in the areas of 

commercial law, employment and labour law, franchise and distribution law and the enforcement of creditors' 

rights. He routinely counsels clients in the drafting, review, management and enforcement of contracts and 

security instruments in his areas of practice. 

Pablo often provides strategic counsel to boards and C-level executives on complex litigation and compliance 

with business-related legislation, including Québec's Consumer Protection Act, the Charter of the French 

Language, the Civil Code of Québec, the Competition Act and privacy legislation. His litigation practice also 

includes acting as defence counsel in several competition law class proceedings pursuant to the Civil Code of 

Québec and the Competition Act. 

He has appeared before the Québec, Superior and Appeal Courts and provincial, federal and international 

administrative and arbitration tribunals. 

Pablo was born in El Salvador, Central America and moved to Canada in 1976. 

He obtained a B.A. in Political Science at Université du Québec - Montréal in 1989, specializing in international 

relations. 

He received his Bachelor of Laws degree from the Université de Montréal in 1992. 

Publication 

"Non-Compete Agreements: Handle with Care", Davis LLP Employment & Labour Bulletin (July 2012) 

"Our Friend, Anton Piller (The Injunction)", Canadian Employment & Labour Conference 2012 - Montreal 

(June 2012) 

"Franchising in Canada: A Guide for Franchisors and their Legal Counsel", Davis LLP Franchise Article 

(January 2012) 

"Beyond the "Bare Minimum Route" with Long-Term Employees", Davis LLP Employment & Labour Bulletin 

(August 2011) 

"Social Networking in the Workplace: How Business is Logging Into FaceBook and Other Social Media", 

Davis LLP Employment & Labour Conference (November 2010) 

"Quebec Hypothecs" (November 2010) 

"Doing Business in Quebec: Substantial Increase in Fines for Breach of Language Laws", Davis LLP Quebec 

Matters Bulletin (November 2010) 



"A Quebec Expansion: Easier Than You Might Think", Canadian Franchise Association 2010 National 

Convention (May 2010) 

"Franchise Update: Enforceability of Restrictive Covenants, Enforcing Arbitration Clauses, and Other 

Topics", Davis LLP Franchise Connection (July 2008) 

"Franchise Update: Quebec Law, Business Immigration for Franchisors, and Running Contests in Canada", 

Davis LLP Franchise Connection (April 2007) 


Member, Mexico-Canada Chamber of Commerce 

Member, Canada-Chile Chamber of Commerce 

Member, Lord Reading Society (an association of English speaking litigation attorneys) 


2013 CFA National Convention, What's Up with Quebec (April 2013) 







Davis LLP / Baker Donelson Presentation, Spring 2012 IFA Franchise Business Network Video Conference 

(April 2012) 

Davis LLP, Canadian Employment & Labour Conference 2011 - Montreal (May 2011) 

Davis LLP, Canadian Employment & Labour Conference 2010 - Calgary (November 2010) 

Federated Press Conference 2010 (November 2010) 

InsideCounsel, National Labour Law Symposium 2010 (September 2010) 


Canadian Franchise Association National Convention (May 2010) 

National Association of Credit Management (March 2010) 

Education 

LL.B., Université de Montréal, 1992 

B.A., Université du Québec à Montréal, 1989 


Language 

Spanish 


Québec, 1994 



Cynthia Levy 

ASSOCIATE 

YELLOWKNIFE 

Phone: 867.669.8402 

Fax: 867.669.8420 

Email: clevy@davis.ca 

Biography 

Cynthia Levy joined the Yellowknife office of Davis LLP in 1999 following employment in the private practice of 

law and in legal education. She practises in the area of civil litigation with particular emphasis on employment 

and labour law and municipal law. Cynthia is the managing lawyer of the Yellowknife office of Davis LLP. 

Cynthia regularly provides advice on employment standards and agreements, drafts employment and 

termination agreements, and defends wrongful dismissal and constructive dismissal litigation on behalf of 

various municipal governments, associations and boards. 

Her labour law practice concentrates on the negotiation and interpretation of collective agreements on behalf of 

employers throughout the Northwest Territories and Nunavut. 

Cynthia represents numerous municipal governments throughout the Northwest Territories and Nunavut. She 

provides general advice on various matters of interest to municipalities, including council procedures, labour and 

employment, municipal contracts, land issues, and preparation and interpretation of bylaws. 

Cynthia obtained a Bachelor of Laws degree from Dalhousie University in 1989 and was admitted to the bar in 

Nova Scotia in 1990. 

She articled and practised law in Halifax until 1996, gaining extensive experience in legal research and writing, 

civil and commercial litigation, corporate/commercial law and real estate law. 

From 1996 to 1998, Cynthia was employed as the instructor of legal studies and paralegal programs offered by 

several private career colleges in Newfoundland and Nova Scotia. 

In these positions, she delivered lectures and practical instruction in substantive law, legal research and writing, 

title searching, and supporting courses. She was also responsible for the development of curriculum and 

evaluation of student progress. 


Advised various management investors in connection with the formation of the new limited partnership, credit 

facility and acquisition in addition to other banking matters (April 2010) 

Prepared all documents relating to the sale of mineral interests in the Northwest Territories and Nunavut. 

Recognition 

Recipient, Maritime Law Book Company Prize in Professional Responsibility, 1989 

Recipient, Honourable Alistair Fraser Scholarship, 1987 

Recipient, Queen's University Tricolor Scholarship, 1984 



Member, Law Society of the Northwest Territories 

Member, Law Society of Nunavut 

Member, Admissions Committee, Law Society of the Northwest Territories 

Representative to Court Library Review Committee, Law Society of the Northwest Territories 

Member, Recruitment & Retention Committee, Law Society of the Northwest Territories 

Member, Discipline Committee, Law Society of the Northwest Territories 

Former chair, Labour & Employment Law Section, NWT Branch, Canadian Bar Association 


Director, Yellowknife Guild of Arts and Crafts, 2002-present 

Member of Host Committee, Midnight Sun Float Plane Fly-In, 2004-present 

Education 

LL.B., Dalhousie University, 1989 

Language 

English 


Nunavut, 2000 

Northwest Territories, 1999 

Nova Scotia, 1990 


Richard J. Nixon 

PARTNER 

TORONTO 

Phone: 416.365.3521 

Fax: 416.777.7420 

Email: rnixon@davis.ca 

Biography 

Richard J. Nixon is a partner specializing in employment and labour law practising in Toronto. He provides 

strategic advice to major employers in the nuclear energy, cable broadcasting, pharmaceutical, insurance, 

transportation, auto parts, security, construction engineering, consumer products and forest products industries. 

Richard is a trusted advisor on a broad range of employment matters, including executive employment 

agreements and executive terminations. He has a proven track record of successfully representing employers 

before Canadian labour relations boards, human rights tribunals, arbitration boards and other tribunals. 

Richard is a popular lecturer for the Advanced Program in Human Resources Management at the Rotman 

School of Management at the University of Toronto. 

He is also frequently invited to chair and speak at conferences on labour and employment law. 


United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United 

States and Canada, Local 787 v. Johnson Controls L.P. (Ont. Lab. Rel. Bd.); (July 2012) (July 2012) 

United Steelworkers, Local 4153 v. A. Raymond Tinnerman Manufacturing Hamilton Inc. (Martin Grievance) 

(Ont. Lab. Arb.) (R.O. McDowell) (March 2011) 

City of Hamilton v. United Brotherhood of Carpenters and Joiners of America, Local 18 [2010] O.L.R.D. No. 

5051 (Ont. Lab. Rel. Bd.) (December 2010) 

The International Union United Automobile, Aerospace and Agricultural Implement Workers of America 

(UAW-CLC) and its Local 251, v. Vannatter Group Inc., Transcast Precision Inc. et al., [2010] O.L.R.D. No. 

4055 (ON L.R.B.) (Ont. Lab. Rel. Bd.) (October 2010) 

Rogers Cable Communications Inc. v. IBEW, [2009] CIRB LD 2219, (Can. Ind. Rel. Bd.) (October 2009) 

International Brotherhood of Electrical Workers, Local 353 v. Johnson Controls Ltd. [2009] O.L.R.D. No. 

3352 (Ont. Lab. Rel. Bd.) (September 2009) 

Teamsters Local Union 938 v. Stock Transportation Ltd. [2009] O.L.R.D. No. 2337 (Ont. Lab. Rel. Bd.) (June 

2009) 

United Steelworkers Local 1-2693 v. Kimberly-Clark Corporation and Kimberly-Clark Inc., Neenah Paper, 

Inc. and Neenah Paper Company of Canada, Eagle Logging Inc., Buchanan Forest Products Ltd., Terrace 

Bay Pulp Inc. 2008 (Ont. Lab. Rel. Bd.) (May 2008) 

General Electric Canada c.o.b. GE Nuclear Products v. CAW - Canada, CIRB Decision No. 401 (Can. Ind. 

Rel. Bd.) (February 2008) 


United Food and Commercial Workers International Union, Local 1000A v. Nike Canada Ltd. [2006] O.L.R.D. 

No. 2482 (Ont. Lab. Rel. Bd.) (July 2006) 

Bauer Nike Hockey Inc. and G.M.P., Local 366 (Ottley) (Re) [2005] 139 L.A.C. (4th) 87 (M. K. Saltman) (Ont. 

Lab. Arb.) (April 2005) 

Rogers Cable Inc. v. Public Service Alliance of Canada and Christopher Wilson, CIRB Letter Decision No. 

1165 (Can. Ind. Rel. Bd.) (December 2004) 

Bauer Nike Hockey, 2003 ONWSIAT 2752, Decision No. 2050/03 (Workplace Safety and Insurance Appeal 

Tribunal) (December 2003) 

Alcan Inc. [2003] O.L.R.D. No. 2497 (Ont. Lab. Rel. Bd.) (July 2003) 

Alcan Aluminum Ltd. v. United Steelworkers of America, Local 343 (Long Term Disability Grievance) [2001] 

O.L.A.A. No. 275 (Ont. Lab. Arb.)(J.H. Devlin) (April 2001) 

Alcan Aluminum Ltd. v. United Steelworkers of America, Local 343 (Health and Safety Grievance) [2001] 

O.L.A.A. No. 253 (Ont. Lab. Arb.)(D.K.L Starkman) (April 2001) 

Hamilton Street Railway Co. v. Amalgamated Transit Union, Local 107 (Davidson Grievance) [2000] O.L.A.A. 

No. 921 (P. Knopf)(Ont. Lab. Arb.) (November 2000) 

Alcan Aluminium Ltd. v. United Assoc. of Journeymen & Apprentices of the Plumbing & Pipefitting Industry of 

the US & Canada, Local 221 v. United Steelworkers of America, Locals 7949, 343 and 8754 [2000] OLRB 

Rep. March/April 159 (Ont. Lab. Rel Bd.) (April 2000) 

Alcan Aluminium Ltd. v. United Assoc. of Journeymen & Apprentices of the Plumbing & Pipefitting Industry of 

the US & Canada, Local 221 v. United Steelworkers of America, Locals 7949, 343 and 8754 [2000] O.L.R.D. 

No. 287 (Ont. Lab. Rel. Bd.) (February 2000) 

Bauer Inc. v. Glass, Moulders, Pottery, Plastics & Allied Workers International Union, Local 366 (Dzourelov 

Grievance) (1999) 82 L.A.C. (4th) 263 (Solomatenko) (Ont. Lab. Arb.) (June 1999) 

R. v. Bauer Inc. [1999] O.J. No. 1198 (Ont. Ct. Appeal) (April 1999) 

Saint John's Rehabilitation Hospital v. CUPE, Local 790 v. Brookfield LePage Johnson Controls (R. H. 

Ambranky)(Ont. Lab. Arb.) (November 1998) 

Bauer Inc. v. Glass, Moulders, Pottery, Plastics & Allied Workers International Union (Janicki Grievance) 

[1998] O.L.A.A. No. 574 (A. Kruger) (Ont. Lab. Arb.) (July 1998) 

Drummond v. Canada (Minister of National Revenue - M.N.R.) [1998] T.C.J. No. 309 (Tax Ct. of Canada) 

(April 1998) 

Kimberly-Clark Inc. v. Industrial Wood and Allied Workers of Canada, Local 1-92-4 (Meo Grievance) [1996] 

O.L.A.A. No. 46 (M. Bendel) (Ont. Lab. Arb.) (October 1996) 

Elizabeth Arden Canada, a division of U L Canada Inc. v. Canada (Minister of National Revenue - M.N.R.) 

[1996] T.C.J. No. 854 (Tax. Ct. of Canada) (July 1996) 

Poirier v. Ontario New Home Warranty Program [1995] O.J. No. 752 (Ont. Div. Ct.) (March 1995) 

London Terminal Employees' Association v. Suncor, Sunoco Group, Sunoco Inc. [1994] O.L.R.D. No. 4839 

(Ont. Lab. Rel. Bd.) (December 1994) 


Re Canstar Sports Group Inc. and Amalgamated Clothing and Textile Workers Union, Local 308 [1994] 

O.L.A.A. No. 252 (M. Bendel) (Ont. Lab. Arb.) (April 1994) 

Group 4 C.P.S. Limited [1994] OLRB Rep. April 400 (Ont. Lab. Rel. Bd.) (April 1994) 

Air Canada et al. [1993] 18 CLRBR (2d) 295 (Can. Lab. Rel. Bd.) (February 1993) 

Carpenters and Allied Workers Local 27 United Brotherhood of Carpenters and Joiners of America, v. Ideal 

Railings Limited [1990] OLRB Rep. December 1284 (Ont. Lab. Rel. Bd.) (December 1990) 

Johnson Controls Ltd. [1989] O.L.R.D. No. 1010 (Ont. Lab. Rel. Bd.) (May 1989) 

Burns International Security Services Ltd. and Canada Post Corporation [1989] 3 CLRBR 2d) 264 (Can. Lab. 

Rel. Bd.) (May 1989) 

Drywall, Acoustic, Lathing and Insulation, Local 675, United Brotherhood of Carpenters and Joiners of 

America v. Ben Plastering Limited, c.o.b. Belmont Plastering Co. [1988] O.L.R.D. No. 139 (Ont. Lab. Rel. 

Bd.) (December 1988) 

Canadian Pneumatic Control Contractors Association v. United Association of Journeymen and Apprentices 

of the Plumbing and Pipefitting Industry [1988] OLRB Rep. September 864 (Ont. Lab. Rel. Bd.) (September 

1988) 

Landeghem v. The Labourers' International Union of North America et al. v. Double S Construction [1988] 

OLRB Rep. August 800 (Ont. Lab. Rel. Bd.) (August 1988) 

Carpenters' District Council of Toronto and Vicinity on behalf of Carpenters Local Union 27 et al. v. 270915 

Ontario Limited et al. [1987] OLRB Rep. July 1003 (Ont. Lab. Rel. Bd.) (June 1987) 

United Food & Commercial Workers International Union v. W.G. Thompson & Sons Limited [1987] OLRB 

Rep. May 787 (Ont. Lab. Rel. Bd.) (May 1987) 

Labourers' International Union of North America, Local 506, v. Disney Display [1986] OLRB Rep. February 

241 (Ont. Lab. Rel. Bd.) (February 1986) 

McDonnell Douglas Canada Ltd. v. International Union, United Automobile, Aerospace & Agricultural 

Implement Workers, Local 1967 et al. [1985] OLRB Rep. December 1750 (Ont. Lab. Rel. Bd.) (December 

1985) 

Scott v. Foster Wheeler Limited (1985), 6 C.H.R.R.D/2885 (Hunter, Ont. Bd. of Inq.) (May 1985) 

Retail Wholesale and Department Store Union - Local 414 AFLCIO - CLC, v. Dominion Stores Limited, 

Willett Foods Limited, Termarg Food Services Limited [1985] OLRB Rep. March 516 (Ont. Lab. Rel. Bd.) 

(March 1985) 

Zorika Flanjak v. Local 310, Amalgamated Clothing & Textile Workers Union (Shoe Division) and Greb 

Industries, A Division of Warrington, Inc., [1985] OLRB Rep. March 415 (Ont. Lab. Rel. Bd.) (March 1985) 

International Union, United Automobile, Aerospace & Agricultural Implement Workers, Local 1967 and 

McDonnell Douglas Canada Ltd. [1984] 47 O.R. (2d) 78 (Ont. Div. Ct.) (June 1984) 

Ontario Nurses' Assn. v. Hamilton Civic Hospitals [1983] O.J. No. 1205 (Ont. Div. Ct.) (September 1983) 

Christian Labour Association of Canada v. Carroll Electric (1982) Limited [1983] OLRB Rep. August 1282 

(Ont. Lab. Rel. Bd.) (August 1983) 


Johnson Controls Ltd. [1983] OLRB Rep. May 641 (Ont. Lab. Rel. Bd.) (May 1983) 

Ontario Nurses' Association [1982] OLRB Rep. October 1546 (Ont. Lab. Rel. Bd.) (October 1982) 

Re Purity Packaging Ltd. and Canadian Paperworkers Union, Local 685 [1982] 5 L.A.C. (3d) 135 (P. J. 

Brunner)(Ont. Lab. Arb.) (June 1982) 

Recognition 

Canadian Legal Lexpert Directory (Employment Law - Management), Repeatedly Recommended, 2006 - 

Present 

PLC Which Lawyer (Labour and Employment - Canada, Ontario), 2011 

Best Lawyers in Canada (Labour and Employment Law), 2006 

Publication 

"Recent Developments and Limits on the Duty to Accommodate", 2012 Osgoode Professional Development 

Program (June 2012) 

"The Accessibility for Ontarians", Canadian Employment & Labour Conference 2012 - Toronto and Montreal 

(June 2012) 

"When are Independent Contractors Really Employees", Canadian Employment & Labour Conference 2011 - 

Calgary / Edmonton (October 2011) 

""BUT I CAN'T EVEN READ THAT NOTE!" Getting the Medical Information You Need to Manage Employee 

Disabilities", Canadian Employment & Labour Conference 2011 - Vancouver (October 2011) 











"Just cause round-up: what does one have to do to get fired now anyway" (April 2008) 


Fellow, The College of Labor and Employment Lawyers 

Member, Board of Directors, Canadian Breast Cancer Foundation 

Senior vice-president, Government Affairs, Human Resources Professional Association of Ontario 


Lecturer, Advanced Human Resources Management - HRPAO Program at the Rotman School of 

Management, University of Toronto 

Lecturer, The Osgoode Certificate in HR Law for HR Professionals program sponsored by Osgoode Hall Law 

School, York University 

Co-chair, professional development seminar on "Reducing Workers' Compensation Costs", Institute of 

Chartered Accountants of Ontario 






2012 Osgoode Professional Development Program, The Duty to Accommodate: Making the Toughest Calls 

(June 2012) 









Davis LLP, Canadian Employment & Labour Conference 2011 - Vancouver (October 2011) 


Osgoode Professional Development CLE, The Intensive Short Course (September 2010) 


Employment Law 2010 (April 2010) 

Davis LLP, Canadian Employment Law Conference 2009 (May 2009) 

Employment Law 2009 (April 2009) 

The 2nd Annual Conference on Employment Law 2008 (April 2008) 


Canadian Institute Employment Law Conference 2006 (October 2006) 




Canadian Institute Advanced Forum on Employment Law (October 2005) 

Law Society of Upper Canada: 5th Annual Employment Law Summit (November 2004) 



Education 


M.B.A., University of Western Ontario, 1975 

B.A., Economics, University of Western Ontario, 1973 

Language 

English 


Ontario, 1982 


Larry Page 

ASSOCIATE COUNSEL 

VANCOUVER 

Phone: 604.643.6362 

Fax: 604.605.4875 

Email: lpage@davis.ca 

Biography 

Larry Page is an associate counsel in the Vancouver office of Davis LLP and a member of the firm’s 

Employment & Labour Law Group. He advises clients on all matters in respect of labour relations planning and 

strategy, and has practised labour law in B.C. for over 35 years. 

Larry has extensive experience in all aspects of labour relations, including Labour Relations Board hearings, 

arbitrations, court hearings, the negotiation and interpretation of collective agreements, and labour relations 

planning in a wide range of industries. 

Larry provides ongoing labour relations advice to employers in the public and private sectors, and has, as 

clients, a number of major national and multinational corporations in manufacturing, transportation, 

entertainment, communications, and forestry, as well as municipal governments. 

Recognition 

Larry is recognized as a leading lawyer by the following publications: 

BV® Distinguished Peer Review Rated by Martindale Hubbell 

Publication 

"Recent Developments in Random Drug and Alcohol Testing in Canada", Davis LLP Privacy Law Bulletin 

(March 2013) 

"What Counts as Work in the Blackberry Era Navigating the Pitfalls of Hours of Work and Overtime Claims", 

Davis LLP Employment & Labour Law Conference (October 2012) 



Member, Labour Law Section, Canadian Bar Association, B.C. Branch 

Member, Human Resources Management Association of British Columbia 





Education 

LL.B., University of British Columbia, 1970 

B.A., McGill University, 1967 


British Columbia, 1971 


Michael S. Richards 

PARTNER 

TORONTO 

Phone: 416.941.5395 

Fax: 416.777.7427 

Email: mrichards@davis.ca 

Biography 

Michael S. Richards is a partner specializing in employment and labour law in Toronto. Michael was called to 

the bar in both Ontario and British Columbia and has represented clients before various levels of courts in both 

provinces, before administrative tribunals, at arbitrations, in mediation and at other negotiations, including 

collective bargaining. 

After graduating from the University of Toronto, Michael returned to British Columbia where he was the law clerk 

to Madam Justice Jo-Ann Prowse of the British Columbia Court of Appeal. Michael articled in the Vancouver 

office of Davis LLP and was called to the British Columbia Bar before transferring to the Toronto office where he 

has practised since early 2001. 

Michael's practice in employment and labour law includes providing advice to both national and international 

organizations on a daily basis and representing clients with respect to various labour and employment issues 

including: 

The recruitment, hiring and termination of employees. 

Providing advice with respect to group terminations and business closures. 

The successful and cost effective defence of wrongful dismissal claims, grievance and human right 

complaints. 

The preparation of employment, consulting and independent contractor agreements including the provision 

of advice with respect to the enforceability of non-solicitation, non-competition and confidentiality 

agreements. 

The negotiation and interpretation of collective agreements. 

The interpretation and application of employment standards legislation, workplace safety and insurance 

legislation, occupational health and safety, and human rights legislation. 

Finally, Michael's practice also includes privacy law and advising businesses in Ontario with respect to their 

obligations under privacy legislation, including performing privacy audits and assisting clients in the 

development of privacy policies compliant with applicable legislation. 

Michael has been with Davis LLP since 1998. 


Represented Visualsonics, a Toronto-based company with high-frequency ultrasound technology, in its sale 

to SonoSite for $80 million. (June 2010) 

Represented Harman International Industries, Inc., a large U.S.-based international, publicly-traded company 

in the acquisition of QNX Software Systems Ltd. (November 2004) 


Represented a Canadian Olympics candidate in a dispute over selection to the 2001 Olympics team 

Developing and implementing strategies for the retention of key employees in several acquisitions of 

knowledge/skill-based enterprises in the high-tech and financial services sectors 

Acting for a national clothing retailer and for several U.S. and European companies in the development and 

implementation of employment policy and procedure manuals 

Reviewing and preparing employment contracts for senior executives and other employees in the context of 

various acquisitions and positions of businesses 

Recognition 

Michael S. Richards was named one of Lexpert's Litigation Lawyers to Watch in 2011. 

Publication 

"An Ounce of Prevention: Effectively Managing the Employment Relationship from the Beginning", Canadian 

Employment & Labour Conference 2012 - Montreal and Toronto (May 2012) 

"Understanding Cloud Computing", Davis LLP Litigation Breakfast Seminar Materials (November 2011) 

"Cross-Country Checkup - Ontario (Edmonton)" (October 2011) 











"Understanding Top Legal Issues in International Franchising", Franchising World (March 2009) 


Member, Law Society of British Columbia 



Member, Ontario Bar Association 

Member, British Columbia Bar Association 

Member, Advocates Society 



21st Annual OARTY Conference, Labour Standards (June 2012) 





Davis LLP Litigation Breakfast Seminar, Understanding Cloud Computing (November 2011) 



InsideCounsel Conference, National Labor Law Symposium (October 2011) 

Davis LLP, Canadian Employment & Labour Conference 2011 - Montreal (May 2011) 




Mike is actively committed to the arts, providing pro-bono advice to not-for-profit arts organizations such as 

Arraymusic, a Toronto-based organization promoting experimental classical music. In addition, Mike has 

served on the board of directors of Danny Grossman Dance Company since early 2004 and was elected 

chair in 2006. Mike's involvement with the company comes at a critical time as the company seeks to 

preserve the work of its namesake, both legally and practically, to ensure preservation of his art. 

Education 


B.Comm., (Honours), The University of British Columbia, 1996 

Language 

English 


Ontario, 2001 

British Columbia, 2000 



Samuel Schwartz 

PARTNER 

TORONTO 

Phone: 416.369.5278 

Fax: 416.777.7423 

Email: sschwartz@davis.ca 

Biography 

Samuel Schwartz is the Managing Partner of the Toronto office of Davis LLP. He is qualified as a lawyer in both 

Ontario and Alberta and practises in the areas of corporate/commercial, corporate finance structuring and 

securities including merchant banking and public and private company transactions. 

His diverse client base includes Canadian and foreign companies involved in biotechnology, life sciences and 

computer hardware and software. 

Sam has been regularly retained to assist established as well as start-up companies in accessing capital 

markets both in Canada and the United States. 

In addition, he has been frequently requested to assemble professional teams of accountants and specialty 

counsel to assist Canadian companies in their business development efforts worldwide. 


Represented Visualsonics, a Toronto-based company with high-frequency ultrasound technology, in its sale 

to SonoSite for $80 million. (June 2010) 

Davis was selected over seven legal advisory firms from the UK and North America with extensive P3 

experience to act for the Bermuda Hospitals Board in connection with the $315 million upgrade of the King 

Edward VII Memorial Hospital. 

Acted for Hochtief PPP North American Solutions in the Ontario Provincial Police modernization project 

involving new OPP facilities in 16 communities across Ontario. 

Acting for Carillion Secure Solutions on a PPP to design, build, finance and maintain a new Forensic 

Services and Coroners' complex in Toronto, Canada. 

Publication 

"Pharmaceutical Advertising 2012 - Canada Chapter", The International Comparative Legal Guide to 

Pharmaceutical Advertising (June 2012) 

"Health Law Update: Case Law, Legislative Changes, and Health Related Privacy Orders", Davis LLP Health 

Law Bulletin (July 2007) 



Member of Board of Governors, York University 

Member of the Executive Committee, Board of Governors, York University 


Chair of the Academic Resources Committee, York University 

Chair of the Vice-President's Research and Innovation Initiative, York University 

Member of the Senate, York University 

Member, Board of Trustees-Endowment Fund, Jewish Federation of Greater Toronto 

In addition, Sam is a director of several corporations, including a large paper manufacturing and distribution 

company, and a private equity company. 


Davis LLP and BenoÃt & CÃ´te Intellectual Property Seminar, Patenting & Profiting: Practical Advice On 

Protecting And Commercializing New Technology (October 2011) 

Education 

J.D., Osgoode Hall Law School of York University, 2010 

LL.B., Osgoode Hall Law School of York University, 1972 

M.A., Political Science, York University, 1969 

B.A., University of Toronto, 1967 

ICD.D, Certified Director Institute of Corporate Directors - 2006 

STEP, The Society of Trust and Estate Practitioners, 1998 

Certified as a Trade-mark Agent in 1977, renewed 2006 

Language 

English 


Alberta, 1978 

Ontario, 1974 


Ellen Swan 

ASSOCIATE 

TORONTO 

Phone: 416.365.3408 

Fax: 416.369.5226 

Email: eswan@davis.ca 

Biography 

Ellen Swan is an associate in the Toronto office where she practices labour and employment law. Ellen joined 

the firm in October, 2009. 

Prior to joining Davis LLP, Ellen practised in the pensions and employment group of Slaughter and May, in 

London, UK, and in the labour and employment litigation group of another Bay Street law firm. 

Ellen advises clients on a wide range of labour and employment matters including: wrongful dismissal claims, 

employee and workplace policies, labour relations and collective bargaining issues, human rights complaints, 

and employment, consulting and independent contractor agreements. 

Ellen has appeared before all levels of court in Ontario, including the Ontario Court of Appeal. She has also 

represented clients before the Human Rights Commission, the Ontario Labour Relations Board and the 

Workplace Safety and Insurance Board. 

Publication 

"The Duty to Mitigate and Employment Agreements: Bowes v. Goss Power Products Ltd.", Davis LLP 

Employment & Labour Law Bulletin (December 2012) 

"The Customer Service Standard Reporting Deadline: December 31, 2012", Davis LLP Employment & 

Labour Law Bulletin (December 2012) 

"The Draft Built Environment Standard Published", Davis LLP Employment & Labour Bulletin (September 

2012) 

"The Accessibility for Ontarians", Canadian Employment & Labour Conference 2012 - Toronto and Montreal 

(June 2012) 




"Ontario businesses worried about new accessibility rules", Law Times (April 2011) 











Davis LLP Client Breakfast Seminar, Accessibility for Ontarians with Disabilities Act (March 2011) 

Education 

LL.B., Queen's University, 2004 

Comparative Law Exchange, Rijksuniversiteit Groningen, The Netherlands, 2003 

B.A., English (Advanced), Dalhousie University, 2001 

Language 

English 


England and Wales, 2010 

Ontario, 2005 


Tatha Swann 

ASSOCIATE 

TORONTO 

Phone: 416.365.3424 

Fax: 416.369.5239 

Email: tswann@davis.ca 

Biography 

Tatha Swann assists public and private sector employers on matters such as wrongful dismissal claims, ESA 

Complaints, Human Rights Applications, Workplace Safety and Insurance claims, unjust dismissal complaints, 

grievances, arbitrations, employment contracts, hiring, disciplining and terminating employees and other day-today 

human resource matters. 

Tatha’s experience includes work for public and private-sector employers, such as large to small commercial 

employers, municipal and institutional employers. 

Tatha received her J.D. from the University of Windsor in 2010. Previously, she earned her Bachelor of 

Architectural Studies (Honours) from the University of Waterloo and worked in the field of architecture and 

hospital design. 


International Brotherhood of Electrical Workers, Local 1687 v. Johnson Controls Ltd. [2012] O.L.R.D. No. 

3277 (Ont. Lab. Rel. Bd.) (September 2012) 

United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United 

States and Canada, Local 787 v. Johnson Controls L.P. (Ont. Lab. Rel. Bd.); (July 2012) (July 2012) 

United Steelworkers, Local 4153 v. A. Raymond Tinnerman Manufacturing Hamilton Inc. (Martin Grievance) 

(Ont. Lab. Arb.) (R.O. McDowell) (March 2011) 

City of Hamilton v. United Brotherhood of Carpenters and Joiners of America, Local 18 [2010] O.L.R.D. No. 

5051 (Ont. Lab. Rel. Bd.) (December 2010) 

Publication 

"You Did What! Limits on Off Duty Conduct", Canadian Employment & Labour Conference 2012 - Toronto 

(May 2012) 

"He Said. She Said. Now What Conducting Effective Workplace Investigations", Canadian Employment & 

Labour Conference 2012 - Montreal and Toronto (May 2012) 

"Understanding Cloud Computing", Davis LLP Litigation Breakfast Seminar Materials (November 2011) 







Member, Advocates' Society 

Member, Canadian Association of Counsel to Employers 




Davis LLP Litigation Breakfast Seminar, Understanding Cloud Computing (November 2011) 


Education 

J.D., University of Windsor, 2010 

B.A.S. Hons., University of Waterloo, 2006 

Language 

English 


Ontario, 2011 


Adrienne Woodyard 

ASSOCIATE COUNSEL 

TORONTO 

Phone: 416.365.3414 

Fax: 416.369.5233 

Email: awoodyard@davis.ca 

Biography 

Located in the firm's Toronto office, Adrienne Woodyard is a member of the firm's taxation law group. 

Adrienne’s practice is primarily focused on tax. She advises clients regularly on tax compliance issues and how 

to manage the audit process, and acts as their advocate in disputes with the Canada Revenue Agency and the 

Ontario Ministry of Finance. Where disputes cannot be resolved at the administrative level, she litigates on 

clients’ behalf in the Tax Court of Canada and the Federal Court of Appeal. Adrienne also represents clients 

who wish to participate in the Voluntary Disclosures Program, an amnesty program designed to allow taxpayers 

to correct errors or omissions in their past tax returns. She has extensive knowledge of income tax, GST / HST, 

retail sales tax and excise tax matters, and serves on the editorial board of the Tax Litigation Journal, published 

by Federated Press. 

Adrienne also advises clients on domestic and cross-border tax matters as well as estate and wealth 

preservation planning strategies. Her clients are engaged in a variety of business, real estate and investment 

activities, and include multinational corporations, privately held and owner-operated enterprises, estates and 

trusts, entrepreneurs, executives and other individuals. 

Adrienne obtained her law degree from Queen's University, where she received the McDougall-Watson 

Memorial Award for her work with the Queen's Legal Aid Society and was an editor of the Queen's Law Review. 

She was called to the Ontario bar in 2000. Prior to attending Queen's, Adrienne studied English and Psychology 

at Wilfrid Laurier University, and was awarded the Lieutenant Governor's Academic Medal for achieving the 

highest average in her graduating class. 

She has been quoted and has written extensively on various tax matters, including transfer-pricing, Canada 

Revenue Agency challenges to charitable donation programs and the tax treatment of damage awards. 


Counsel in an important tax court proceeding on a leveraged donation program (November 2012) 

Recognition 

McDougall-Watson Memorial Award, Queen's Legal Aid Society 

Queen's University Entrance Scholarship 

Lieutenant Governor's Academic Medal, Wilfried Laurier University, 

Alumni Bronze Medals, Wilfrid Laurier University 

J. Campbell Scholarship, Wilfrid Laurier University 


Publication 

"The Tax Risks of Business Travel", The Lawyers Weekly (March 2013) 

"What To Do When The Canada Revenue Agency Comes Calling", Davis LLP Seminar Presentation (March 

2012) 

"Glaxo transfer pricing under spotlight", The Lawyers Weekly (March 2012) 

"Franchising in Canada: A Guide for Franchisors and their Legal Counsel", Davis LLP Franchise Article 


"Expanding Into Canada - Important Tax Issues", Winter 2012 IFA Franchise Business Network Video 

Conference (January 2012) 

"Tax court delivers smackdown to charitable donor", The Lawyers Weekly (March 2011) 

"Taxing litigation matters", Canadian Lawyer Magazine (February 2011) 

"The Voluntary Disclosure Program: Coming Clean About Unreported Income", The Advocates' E-Brief 

(December 2010) 

"Taxman missing the boat on offshore income", The Globe and Mail Report on Business (March 2010) 

"How Taxpayers with Money Offshore Can Come Clean", The Lawyers Weekly (March 2010) 

"Tax Implications for Employee Terminations", The Advocates' E-Brief (August 2009) 

"Litigation Up, Along with Stakes", Globe and Mail Special Supplement (February 2009) 

"Tax Planning for Litigants", The Advocates' E-Brief (January 2009) 

"Problems in Restructuring Distribution Practices", Competition Law Journal (January 2008) 

"Canadian Tax Regime Chapter", Winning Legal Strategies: International Tax Law (January 2006) 

"Lost In Transmission", The Advocates' Brief (June 2004) 

"You Snooze, You Lose...A Billion Dollars: New Restrictions on the Collection of Old Tax Debts", The 

Advisory (October 2003) 

"The Taxman Cometh: Crackdown on Corporations for Failure to File", The Advisory (August 2003) 

"REOP (Reasonable Expectation of Profit) on the Ropes", The Advisory (October 2002) 

"Changes to Corporation Statements of Account", The Advisory (April 2002) 

"The Impact of Price Maintenance Provisions on Manufacturers' Distribution Strategies", Competition Law 

Journal (April 1998) 



Editorial Board, Tax Litigation, Federated Press 

The Advocates' Society 

Canadian Tax Foundation 

Ontario Bar Association 

Law Society of Upper 

Canada AIDSBeat Organizing Committee (2005, 2006) 


The Advocates' Society's Civil Litigation Skills Certificate Series, Key Principles: Drafting Proper Affidavits 

(February 2013) 

Joint Program of the Advocates' Society and Osgoode Professional Development, The 16th Annual Course 

on Written Advocacy (October 2012) 

Davis LLP Breakfast Seminar, What To Do When The Regulator Comes Knocking (March 2012) 

Davis LLP / Baker Donelson Presentation, Winter 2012 IFA Franchise Business Network Video Conference 


Speaker, The University of Western Ontario Gender and Law Association, Women on Bay Street (October 

2011) 

Speaker, Chartered Accountants' Professional Development Consortium, Top Ten Tips for Managing CRA 

Audits (September 2011) 

Speaker, The Advocates' Society Spring Symposium, Critical Tax Traps for Litigators (May 2011) 

Speaker, Financial Executives International (FEI) Seminar, When the Tax Man Comes Knocking - Managing 

the Audit Process (May 2011) 

Speaker, 20th Annual Police Association of Ontario Conference, Taxable Benefits - Those Pesky Parking 

Problems (February 2011) 

Speaker, The Advocates' Society Fall Convention, Tax Tips for Litigators (November 2010) 

Speaker, Ontario Bar Association Annual Institute, The Ultimate Refresher on Rollovers under Section 85 of 

the Income Tax Act (February 2007) 

Speaker, Ontario Bar Association Annual Institute, The Taxation of Restrictive Covenant Payments: 

Proposed Amendments to the Income Tax Act (January 2006) 

Speaker, Ontario Bar Association Young Lawyers' Division Conference, Choosing a Business Structure 

(April 2003) 


Education 

Osgoode Hall Law School Intensive Trial Advocacy Workshop 

Canadian Institute of Chartered Accountants In-depth Tax Course 

Arbitration and Mediation Training Institute Certificate 

LL.B., Queen's University, 1998 

B.A., Wilfrid Laurier University, 1994 


Ontario, 2000 


You Think YOU’RE Stressed! 

Mental Health Issues in the Workplace 

Presented by Dan Black and Karen Bock 

“You want me to provide you with 

medical information about my stress claim 

… 

Your request just made me 

even MORE stressed!” 

Evolution of Laws Addressing Mental Health Issues 

• Occupational Health and Safety Law (harassment, 

violence) 

• Human Rights Law 

• Workers’ Compensation Law 

• Arbitral and Labour Law 

• Common Law 

1

Human Rights Law: Fair v. Hamilton-Wentworth 

• supervisor of asbestos removal 

• potential for personal liability under health & safety law 

• anxiety disorder 

• request for accommodation 

• employment terminated 

• human rights complaint 

• failure to accommodate return to work 

Fair v. Hamilton-Wentworth 

• reinstatement (with seniority, sick days, etc.) 

• damages: 10 years’ wages, benefits, pension and 

Canada Pension Plan; top-up for tax consequences; 

pre- and post- judgment interest 

• $30,000 for injury to dignity, feelings and self-respect 

Workers’ Compensation: Decision No. 815/09 

• truck driver 

• diabetes, high blood pressure, hypertension, kidney 

problems 

• poor delivery scheduling by employer; stuck in truck 

over weekend 

• anger, frustration 

• death by heart attack 

• estate claim for benefit payments 

2

Decision No. 815/09 

• WSIB: no trauma; death not sudden and unexpected 

• WSIAT: pre-existing conditions aggravated by workrelated 

acute emotional distress 

• benefits payable to estate 

Arbitral Law: Charlton v. Ontario (M.C.S.C.S.) 

• anonymous letters: racist, threats of violence 

• investigations inconclusive 

• medical leave of absence 

• damages for harm 

Charlton v. Ontario (M.C.S.C.S.) 

• “contractual guarantee of freedom from racial 

harassment” 

• expectation of “psychological benefit” 

• breach of guarantee by employer 

• damages for mental distress: $20,000 

3

Common Law: Piresferreira v. Ayotte 

• supervisor critical, demanding, loud, aggressive 

• failure to book meeting for supervisor 

• yelled, swore, shoved, imposed PIP 

• internal complaint 

• told to attend meeting to discuss PIP 

• accused of denying opportunity for apology 

• claim for infliction of mental suffering, battery, 

negligence, constructive dismissal 

Piresferreira v. Ayotte and Bell Mobility 

• Ontario Court of Appeal: 

• tort of negligence not available for conduct in course of 

employment 

• no duty “to take care to shield employees from the acts of 

other employees that might cause mental suffering” 

• “unnecessary” and “undesirable” to expand court’s 

involvement in reviews of employee work performance 

and employer criticism 

4


YOU THINK YOU’RE STRESSED!: 

MENTAL HEALTH ISSUES IN THE WORKPLACE 

By Dan Black and Karen Bock 

Introduction 

Dealing with the impact on the workplace of any kind of an employee disability can be both difficult 

and frustrating, even for an employer that recognizes and fully respects an employee’s right under 

human rights law to have the employee’s disability accommodated to the point of undue hardship. 

And when an employee claims to be disabled from working because of a mental disability such as 

chronic stress, the situation can be particularly – ahem, stressful – for the employer. How do you 

deal with an employee who is so stressed that, when you ask for information about the employee’s 

medical restrictions and limitations, the employee claims that the mere fact of your request has 

given rise to even more stress 

Canadian workplaces and the laws that govern them are undergoing a slow but certain evolution in 

the way that mental health issues are perceived and addressed. According to the Mental Health 

Commission of Canada 1 : 

“The proposition that work organization may create or aggravate risk to mental health 

is relatively new. 150 years ago the relationship of employment was seen as a purely 

commercial contract, an exchange of wages for services, and at that time the issue 

of mental injury as a category of remediable harm at work was raised only in order to 

dismiss it. Provision for psychological comfort or for the protection of mental health 

played no role in the terms of this contract, either express or implied.” [Citations 

omitted.] 

1 Mental Health Commission of Canada, The Road to Psychological Safety, accessed at 

www.mentalhealthcommission.ca. 



150 years later, however, employers are increasingly – even regularly – being called upon to deal 

with a wide variety of mental health issues in the workplace, including stress-related disability 

claims, workplace bullying and harassment and, tragically, violence up to and including physical 

assault and murder. 

The law is often slow to respond to shifts in political, philosophical and other societal beliefs and 

priorities, and this is certainly true of the pace at which Canadian laws are incorporating and 

reflecting Canadian society’s increasing focus on the importance of ensuring psychological wellbeing 

in the workplace. However, there can also be no doubt that the pace of both legislative and 

common law change has been picking up in recent years. 

In 1993 and 2002, respectively, Saskatchewan and Manitoba introduced into their occupational 

health and safety laws provisions addressing harassment in the workplace. 

Subsequently, each of the following Canadian jurisdictions introduced into its occupational health 

and safety laws provisions designed to address workplace violence: British Columbia (2004), 

Alberta (2004), Prince Edward Island (2006) and Nova Scotia (2007), as did the Federal 

government (in 2008). 

In June 2010, Ontario’s Occupational Health and Safety Act 2 was amended to add definitions of 

“workplace harassment” and “workplace violence” and to create many new obligations for 

employers relating to the prevention of both workplace harassment and workplace violence. 

The Canada Occupational Health and Safety Regulations 3 

enacted under the Canada Labour 

Code 4 define “workplace violence” as “any action, conduct, threat or gesture of a person towards 

an employee in their work place that can reasonably be expected to cause harm, injury or illness to 

2 Occupational Health and Safety Act, R.S.O. 1990, c. O.1, Part III.0.1. 

3 Canada Occupational Health and Safety Regulations, SOR/86-304. 

4 Canada Labour Code, R.S.C. 1985, c L-2. 



that employee” 5 

and require federally-regulated employers to prevent and protect employees 

against “bullying, teasing, and abusive and other aggressive behaviour” 6 . However, the sole or 

primary focus of workplace violence provisions in other jurisdictions is the prevention of physical, 

and not psychological, harm. 

In June 2004, the Province of Québec 7 

became the first Canadian jurisdiction to implement 

employment legislation expressly prohibiting workplace psychological harassment. And on July 1, 

2012, the British Columbia government amended the Workers’ Compensation Act 8 to provide for 

compensation for mental disorders resulting not only (as remains the case under Ontario’s 

Workplace Safety and Insurance Act, 1997) from sudden and unexpected work-related traumatic 

events (such as witnessing the death of a co-worker), but also for mental disorders that are: 

“predominantly caused by a significant work-related stressor, including bullying or 

harassment, or a cumulative series of significant work-related stressors, arising out 

of and in the course of the worker’s employment”. 

Most recently, the Mental Health Commission of Canada (the “MHCC”) commissioned the 

Canadian Standards Association (“CSA”) and the Bureau de normalisation du Québec (“BNQ”) to 

draft and publish (in January 2013) a voluntary National Standard of Canada on Psychological 

health and safety in the workplace – Prevention, promotion and guidance to staged 

implementation 9 (the “CSA/BNQ Standard”). The stated purpose of the CSA/BNQ Standard is to: 

“provide a framework to create and continually improve a psychologically healthy and 

safe workplace, including: 

5 Canada Occupational Health and Safety Regulations, SOR/86-304, Section 20.2. 

6 Canada Occupational Health and Safety Regulations, SOR/86-304, Section 20.3. 

7 An Act Respecting Labour Standards, R.S.Q., c. N.1-1, Sections 81.18 to 81.20. 

8 Workers’ Compensation Act, R.S.B.C. 1996, c. 492, Section 5.1. 

9 Psychological health and safety in the workplace – Prevention, promotion and guidance to staged 

implementation, CAN/CSA-Z1003-13/BNQ 9700-803/2013. 



a) the identification and elimination of hazards in the workplace that pose a risk 

of psychological harm to a worker; 

b) the assessment and control of the risks in the workplace associated with 

hazards that cannot be eliminated; … 

c) implementing structures and practices that support and promote 

psychological health and safety in the workplace; and 

d) fostering a culture that promotes psychological health and safety in the 

workplace.” 

With such an increasing focus on violence, harassment and psychological health in the workplace, 

it should come as no surprise that, in the wake of the April 2013 firing of former Rutgers basketball 

coach Mike Rice for verbally and physically abusing players during practice, Forbes Magazine 

quoted 10 Sharon Parella, a U.S. management-side employment lawyer, on the subject of workplace 

bullying and the implementation of laws to prevent it: 

“I believe this is the new claim that employers will deal with. This will replace sexual 

harassment. People who oppose it say these laws will force people to be polite at 

work. But you can no longer go to work and act like a beast and get away with it.” 

Nevertheless, the fact remains that, in 2013, the majority of Canadian jurisdictions still have little or 

no legislation specifically aimed at addressing workplace violence, harassment and psychological 

health. For example, the MHCC notes 11 that: 

“Today … claims of mental injury have a modest chance of succeeding if the plaintiff 

or claimant can establish that the harm suffered was in whole or in part the result of 

reckless or intentional acts or omissions, the injurious outcomes of which were 

reasonably foreseeable.” [Citation omitted.] 

10 http://www.forbes.com/sites/johnbaldoni/2013/04/03/why-employers-need-to-watch-the-mike-rice-bullybasketball-video/ 

11 The Road to Psychological Safety, accessed at www.mentalhealthcommission.ca. 



but goes on to observe that: 

“That said, it is still onerous for employees to decide which branch of the law to use in 

framing such claims. And this difficulty is compounded by the fact that where people 

live in Canada influences the kinds of remedies available to them.” 

Human rights laws have long provided employees with protections against discrimination in 

employment on the basis of disability. These protections have gradually been adapting quite 

naturally and logically to apply to workplace mental health issues. As may be seen from the 

following examples, other types of Canadian laws, including workers’ compensation law, arbitral 

and labour law and the common law, have also been adapting, to greater and lesser extents, to 

address such issues. 

Mental Health Issues Under Human Rights Law 

The very recent decision of the Human Rights Tribunal of Ontario (the “Tribunal”) in Sharon Fair v. 

Hamilton-Wentworth District School Board 12 

will surely contribute to the stress felt by many 

employers – at least pending the outcome of the appeal of the case that is surely inevitable – over 

liability for failure to accommodate employees with mental health issues. 

Ms. Fair commenced employment with the Hamilton-Wentworth District School Board (the “School 

Board”) in 1988. In 1994, she was assigned to the role of Supervisor, Regulated Substances, 

Asbestos. In October 2001, Ms. Fair developed a generalized anxiety disorder and went off work. 

She was hospitalized from December 2001 until January 2002 and was subsequently diagnosed 

with depression and post-traumatic stress disorder. 

Ms. Fair testified that her disability was the result of her highly-stressful job and her fear that she 

could be held personally liable if she made a mistake in overseeing the removal of asbestos from 

the School Board’s buildings. Ms. Fair explained that the Ministry of Labour had been critical of the 

12 Sharon Fair v. Hamilton-Wentworth District School Board, 2012 HRTO 350 and 2013 HRTO 440 (Human 

Rights Tribunal of Ontario). 



School Board’s handling of its asbestos removal projects and told her that, as the supervisor 

responsible for overseeing these projects, she could be personally charged and ordered to pay 

substantial fines. Ms. Fair applied for and received disability benefits from March 2002 until April 

2003, when the insurer decided that, although Ms. Fair was not yet ready to return to her own 

position, she was capable of performing gainful employment. 

The Tribunal held that Ms. Fair had “fulfilled her obligation to co-operate fully in the accommodation 

process”, by staying in “constant communication” with the School Board and by promptly providing 

“whatever information, including medical information”, the School Board requested. However, the 

Tribunal found that the School Board “failed to actively, promptly, and diligently canvas possible 

solutions to [Ms. Fair’s] need for accommodation”. In particular, the School Board “failed to take 

steps to investigate possible forms of accommodation” and “failed to offer [Ms. Fair] available, 

alternative work”. Rather, the School Board concluded that it was unable to re-employ Ms. Fair and 

terminated her employment in July 2004. 

The Tribunal concluded that, if the School Board had acted properly to accommodate Ms. Fair, she 

would have returned to full-time employment in June 2003. Accordingly, the Tribunal ordered the 

School Board to reinstate Ms. Fair to her employment – and to pay Ms. Fair damages equal to the 

wages, benefits and pension contributions she would otherwise have earned during the 

approximately 10-year period between June 2003 and the date of reinstatement to employment 

(less the amount of disability benefit and employment insurance benefits she had received). In 

addition, the Tribunal ordered the School Board to pay Ms. Fair $30,000 “as compensation for the 

injury to her dignity, feelings and self-respect”. 



An earlier decision of the Tribunal, in ADGA Group Consultants Inc. v. Lane, 13 is another good 

example of how badly things can go wrong when an employer that is unfamiliar with its obligations 

under human rights law is confronted with a workplace mental health issue. 

Mr. Lane applied for and was awarded a job with ADGA Group Consultants Inc. as a tester of 

software that controlled the aiming and firing of NATO artillery. Mr. Lane had the qualifications, 

experience and skills necessary to perform the job. Mr. Lane did not disclose to ADGA during the 

hiring process that he had Bipolar 1 Disorder. He also lied on his application about the number of 

sick days he had taken in his previous employment. 

However, within the first five days of his employment, Mr. Lane revealed to ADGA that he had 

bipolar disorder and advised ADGA of the typical triggers of manic episodes. He also informed 

ADGA how to identify when he was becoming manic and how to respond to such a situation (i.e., 

by contacting Mr. Lane’s wife and doctor) so as to minimize the impact of his condition on his job 

performance. ADGA was concerned about whether Mr. Lane could handle the stress of the job and 

told Mr. Lane ADGA would get back to him in two days. 

Mr. Lane’s concern that his employment might be terminated because he had revealed his medical 

condition caused him to enter a pre-manic phase. Despite recognizing this fact, two days after Mr. 

Lane revealed his medical condition, ADGA proceeded to terminate Mr. Lane’s employment. ADGA 

did not seek legal advice or try to find out more about Mr. Lane’s condition. ADGA told Mr. Lane it 

had no alternative positions available and did not contact either Mr. Lane’s wife or Mr. Lane’s 

doctor to advise that Mr. Lane was in a pre-manic phase and that his employment had been 

terminated. 

13 ADGA Group Consultants Inc. v. Lane, [2007] O.H.R.T.D. No. 34 (Human Rights Tribunal of Ontario). 



Within hours, Mr. Lane escalated into full-blown mania and was hospitalized for 12 days. He 

entered a cycle of depression and was unable to look for other work. He was forced to sell his 

family home. The strain and hardship ultimately caused his marriage to fall apart. 

Mr. Lane filed a human rights complaint alleging unlawful discrimination by ADGA on the basis of 

his disability. ADGA argued that the termination was justified because Mr. Lane had 

misrepresented his ability to perform the essential duties of his job. 

After a hearing, the Ontario Human Rights Tribunal (the “Tribunal”) concluded that Mr. Lane was 

“fully capable” of performing the essential duties of his job, and that human rights law justified Mr. 

Lane’s decision not to disclose his medical condition (and to lie about his sick days) during the 

hiring process. The Tribunal held that ADGA had discriminated against Mr. Lane by dismissing him 

“because of his disability and perceptions as to the impact of that disability on workplace 

performance”. In particular, ADGA had acted “precipitately” in terminating Mr. Lane’s employment 

without first obtaining all relevant information about Mr. Lane’s disability and considering whether 

ADGA could accommodate Mr. Lane’s disability without undue hardship. 

The Tribunal contrasted ADGA’s response to Mr. Lane’s disclosure of his medical condition with the 

response of one of Mr. Lane’s previous employers, LINMOR Technologies (“LINMOR”). Mr. Lane 

had educated his manager at LINMOR about his disability by providing a list of symptoms to watch 

out for. When LINMOR’s manager noted these symptoms in Mr. Lane’s behaviour, LINMOR 

contacted Mr. Lane’s wife, who assisted Mr. Lane to obtain medical attention. Mr. Lane typically 

returned to work after a short period of time, during which LINMOR reassigned his work to other 

employees. LINMOR rated Mr. Lane’s performance highly, describing him as “hardworking and 

productive”. His performance review stated that Mr. Lane “meets and in some areas exceeds 

expectations” and recommended that he “could be considered for a team leadership role.” 



Had ADGA responded to Mr. Lane’s mental disability as LINMOR had done, the situation might 

have been completely different. As it was, the Tribunal ordered ADGA to pay Mr. Lane a total of 

almost $80,000 in damages: 

 

$35,000 general damages for violation of Mr. Lane’s inherent right to be free from 

discrimination; 

 

$10,000 damages for the reckless infliction of mental distress; 

 

$34,278.75 special damages for loss of salary resulting from the violation of Mr. 

Lane’s rights; and 

 

prejudgment and post-judgment interest. 

On appeal 14 , the Ontario Superior Court of Justice, Divisional Court upheld both the Tribunal’s 

findings and damage awards. 

Mental Health Issues Under Workers’ Compensation Law 

Workers’ compensation law typically provides for payment of benefits in relation to mental health 

issues only when a mental disorder arises suddenly, as a result of an unexpected and traumatic 

workplace event – for example, post-traumatic stress disorder caused by witnessing the death of a 

co-worker. Nevertheless, claims for payment of workers’ compensation benefits are occasionally 

granted in relation to conditions with a more gradual onset, including those that involve some 

degree of apparent insensitivity on the part of the employer. 

For example, in Decision No. 815/09 15 , the Ontario Workplace Safety and Insurance Appeals 

Tribunal (the “WSIAT”) considered an appeal by a deceased worker’s estate from a decision of the 

14 2008 CanLII 39605 (Ontario Superior Court of Justice, Divisional Court). 

15 Decision No. 815/09, 2009 ONWSIAT 2309 (Workplace Safety and Insurance Appeals Tribunal). 



Ontario Workplace Safety and Insurance Board (the “WSIB”) denying entitlement of the estate to 

compensation benefits. 

The 54-year old worker was a truck driver who had previously been diagnosed with diabetes, high 

blood pressure, hypertension and kidney problems. He was found dead in the cab of his truck on a 

Tuesday morning at the location of a client to which he was making a delivery. He had suffered a 

heart attack. 

The truck driver’s widow gave evidence that her husband had spent the previous weekend in his 

truck, in a client’s factory parking lot, while waiting to complete a delivery. He had phoned his wife 

numerous times over the weekend and repeatedly expressed his anger and frustration that his 

employer had scheduled nine deliveries for him, with the predictable result that he arrived at the 

last client after the close of business hours on a Friday. 

To ensure security of the cargo, his employer did not permit him to leave the truck unattended. The 

weather was hot and humid, and then rainy, windy and cold so it was difficult for the worker to leave 

the truck to stretch and exercise. He complained to his wife that he was unable to open the 

windows of the truck and the air conditioning made his muscles cold and uncomfortable. He 

complained of pain in his shoulder and back and leg cramps inside the small cabin of the truck. He 

also complained of being unable to purchase food appropriate for his diet because he could only 

drive the large truck within industrial areas. 

The worker’s estate filed a claim for payment of workers’ compensation benefits, asserting that the 

worker’s death was work-related. According to WSIB policy, benefits were payable only if the 

worker’s pre-existing, non-work-related health conditions had been aggravated by “unusual 

physical exertion for the individual and/or acute emotional distress with no significant delay in the 

onset of symptoms”. The WSIB ruled that the worker’s death was not the result of a work-related 

aggravation of his non-work-related conditions. 



On appeal, the WSIAT concluded that the worker’s estate was entitled to payment of benefits, 

despite the delay between the worker’s anger and frustration over the weekend and his death early 

on Tuesday morning, because “the worker had a pre-existing heart condition which was aggravated 

by acute emotional distress which resulted in the immediate onset of the heart failure which 

resulted in the worker’s death.” 

The WSIAT had arranged for a cardiologist to review the worker’s file and submit a report. 

According to the cardiologist’s report: 

“I think that the events before the death had a precipitating cause in the final event, 

either precipitating ventricular fibrillation or a myocardial infarction. It is clear that his 

stress level was very high based on all the driving he did in a storm, his inability to 

treat his diabetes, and his anger about being on the trip, plus the fact that he was 

probably dehydrated due to the heat and humidity. With all of these factors, 

increased clotting in the body in a patient with a vulnerable heart clearly played a 

precipitating role here. 

… 

It is clear that he had cardiovascular death and it is clear that his risk factor, 

especially diabetes, played a major role. I think it is also very probably that the 

stresses he was under at the time or just before his death played a role in 

precipitating the event, especially driving in a bad storm, high temperature and 

humidity leading to dehydration, his anxiety over his diabetic control, and his anger. 

These stresses all led to a change in equilibrium of his clotting system, which likely 

resulted in thrombosis of one of his coronary arteries or a cardiac arrhythmia leading 

to his death. 

My conclusion is that he almost certainly had pre-existing cardiovascular disease but 

this long trip led to anger and anxiety and inability to control his diabetes which were 

all precipitating factors in his sudden death.” 

[Emphasis added.] 

Mental Health Issues Under Arbitral and Labour Law 

A decision of the Public Service Grievance Board (the “PSGB”) affirms a concept that many 

employers are likely to find quite startling: damages may be payable to an employee for mental 

distress resulting from an employer’s failure to comply with an implied employment contract term 



that that creates an expectation of an intangible “psychological benefit”; for example, the right to a 

workplace free from racial harassment. 

In Charlton v. Ontario (Ministry of Community Safety and Correctional Services) 16 , the employee 

was a correctional officer of African descent who, along with seven other employees who belonged 

to racial or ethnic minorities, received an anonymous letter containing racial slurs and threats of 

violence. Both the employer and the Toronto Police conducted investigations but were unable to 

identify the author of the letters. 

Ms. Charlton claimed she was so traumatized by the letter that she was unable to continue working. 

She went on medical leave and was paid her full salary for six months. She applied for and was 

granted payment of workers’ compensation benefits under the Ontario Workplace Safety and 

Insurance Act, 1997. She also filed a grievance against her employer, claiming damages for lost 

wages and mental distress. 

The employer did not deny that there had been racial harassment and made efforts to reintegrate 

Ms. Charlton into a workplace free from harassment. The employer also agreed to compensate Ms. 

Charlton for harm resulting from her receipt of the letter. The only issue before the arbitrator was 

the amount of damages payable by the employer. Ms. Charlton claimed, and was awarded, 

damages equal to the difference between her WSIB benefits and the amount of the regular salary 

she would otherwise have earned during the time she was on leave. 

With respect to damages for mental distress, the PSGB rejected the employer’s argument that 

such damages should be limited to a maximum of $10,000 which, at that time, was the maximum 

amount available for mental anguish under Ontario’s Human Rights Code. However, the PSGB 

held that freedom from workplace racial harassment was not only a right under the Human Rights 

16 Charlton v. Ontario (Ministry of Community Safety and Correctional Services), 2007 CanLII 24192 (Public 

Service Grievance Board). 



Code, but also an implicit term of Ms. Charlton’s employment contract that amounted to a 

“contractual guarantee of freedom from racial harassment”. 

Typically, an employee with a compensable work-related injury is prohibited by workers’ 

compensation law from suing the employer for damages relating to the injury. However, the PSGB 

concluded that Ms. Charlton was not precluded from claiming payment of damages by her 

employer by the fact that she had claimed and received payment of workers’ compensation 

benefits: 

“The Board does not accept the argument that, where there has been the breach of 

the contractual guarantee of freedom from racial harassment in the workplace, that 

compensation for loss of income relates only to the victim’s health. The jurisdiction 

of this Board is to compensate the grievor for damage to her dignitary interest as far 

as can be done by a monetary award. A monetary award that does not provide for 

complete compensation for the full financial loss arising from the breach of such a 

fundamental term of the contract would fall well short of this remedial mandate. Put 

another way, if the grievor’s dignitary interest is to be restored, she should not be 

financially worse off than if the racial harassment had not occurred. The Board, 

therefore, concludes that it does have jurisdiction to compensate the grievor for all 

financial losses that flowed from the workplace racial harassment that she suffered.” 

The PSGB relied on an earlier decision of the Supreme Court of Canada, 17 in which an insurance 

company was ordered to pay damages for mental distress for denying payment of disability 

benefits, as support for the proposition that, even without bad faith conduct on the part of the 

employer, damages for mental distress could be awarded for the breach of a term of an 

employment contract that creates an expectation of an intangible “psychological benefit”. The 

PSGB concluded that Ms. Charlton’s “contractual guarantee of freedom from racial harassment in 

the workplace” created an expectation of a “psychological benefit” and awarded damages for 

mental distress resulting from the employer’s breach of that “guarantee”: 

“It is this provision that has been breached and, while the employer has been beyond 

reproach in attempting to deal with the problem of workplace racial harassment after 

17 Fidler v. Sun Life Assurance Co. of Canada, [2006] 2 S.C.R. 3. 



it arose, there is also no question that the grievor has suffered very substantial 

mental distress as a result of the particularly nasty form of workplace harassment. 

Given the very substantial disruption to the grievor’s life and peace of mind that was 

caused by the breach of the contractual guarantee of freedom from racial 

harassment in the workplace, the Board considers that the amount of damages for 

mental distress should be no less than what was considered in the Fidler case. 

Accordingly, the Board directs the employer to pay the grievor forthwith the sum of 

$20,000 for mental distress arising from the breach of the contractual guarantee of 

freedom from racial harassment in the workplace.” 

In Canada Safeway Ltd. v. United Food and Commercial Workers Union, Local 401 (Pady Shenher 

Grievance 18 , an arbitrator held that an employer should have separated the parties to a workplace 

harassment complaint during the course of an investigation into the complaint. In doing so, the 

arbitrator indicated that an employer’s obligation to maintain a safe workplace “encompasses 

psychological and [sic] well as physical safety”. 

In that case, an employee filed a grievance in relation to an altercation with a co-worker, in which 

the co-worker pushed on the brim of the employee’s baseball hat during a heated argument. The 

employer investigated the employee’s complaint about the co-worker’s conduct and ultimately 

issued a written warning to the co-worker. However, during the investigation, the co-worker 

continued to work at the same store as the employee. The employee filed a grievance seeking 

damages of $10,000 on the basis that the employer had failed to provide her with a safe working 

environment and caused her significant emotional trauma by failing to transfer the co-worker to 

another location. The employee also filed a second grievance when the co-worker later bumped his 

power jack into hers. 

The arbitrator concluded that the employer’s investigation and the written warning imposed were 

appropriate. However, the arbitrator held that, because the employee’s initial complaint suggested 

workplace violence, the employer should have ensured the employee’s safety pending the outcome 

18 Canada Safeway Ltd. v. United Food and Commercial Workers Union, Local 401 (Pady Shenher Grievance, 

175 L.A.C. (4 th ) 266 (G.E. Power, Arbitrator). 



of the investigation by suspending the co-worker with pay. The arbitrator awarded the employee 

$1,000 in damages. 

The arbitrator dismissed the employee’s second grievance on the basis that the employee and her 

union failed to demonstrate that the contact between the power jacks was deliberately caused by 

the co-worker. On this basis, the arbitrator concluded that there was no evidence of any ongoing 

safety threat to the employee. 

In Manitoba (Department of Family Services and Housing) v. Manitoba Government Employees’ 

Union (A.B. Grievance) 19 , an arbitrator considered whether an employer was justified in disciplining 

and ultimately terminating the employment of an employee who had a long history of suffering from 

depression and an anxiety disorder, along with numerous physical conditions that had required 

extensive surgery, but who nevertheless appeared to be at least partly responsible for her 

misconduct. 

The employee worked for the employer for almost 26 years. Until the last 1½ years of her 

employment, she had no disciplinary record. Within those 1½ years, the employee received a 

written reprimand for removing a file about her daughter (who had autism and who received 

services from the employer) from a supervisor’s cabinet, a one-day suspension for circulating an 

inappropriate document to her co-workers, another one-day suspension for insubordinate 

behaviour and a two-day suspension for further insubordinate behaviour. She stopped reporting to 

work and was placed on an unpaid medical leave, during which she was caught in a supervisor’s 

office, searching through a cabinet for information to help her defend against the allegations of 

misconduct that had led to her reprimand and suspensions. The employer terminated her 

employment, alleging just cause. 

19 Manitoba (Department of Family Services and Housing) v. Manitoba Government Employees’ Union (A.B. 

Grievance), [2009] M.G.A.D. No. 12 (Michael D. Werier, Arbitrator). 



The employer argued that, in disciplining the employee and terminating her employment, the 

employer had properly taken into account all relevant factors, including the employee’s medical 

condition. However, the arbitrator concluded that the employee’s mental state had deteriorated over 

time. Because the employer was already aware that the employee had mental health issues, the 

employer knew or ought to have known that her escalating behaviour, which culminated in her 

“bizarre” and irrational behaviour of entering a supervisor’s office and searching through his 

cabinet, was attributable at least in part to the employee’s medical condition. According to the 

arbitrator: “These circumstances dictated further exploration at the very least before the imposition 

of termination, the most severe form of discipline.” 

The arbitrator’s remedy reflected an attempt to achieve some balance between the rights and 

obligations of each of the employee and her employer. He concluded that the employee was not 

fully to blame for her conduct because of her mental state, but that she was sufficiently aware of 

her wrongdoing that it was appropriate for her to take some blame. He also concluded that, 

although the employer had tried to address the employee’s performance issues in a way that it 

believed to be an appropriate manner, the employee could not be held responsible for the 

employer’s failure to seek and obtain a better understanding of her mental state during the course 

of her repeated misconduct. 

In the result, the arbitrator dismissed the employee’s grievance of the one-day suspension, reduced 

to 1½ days the length of the second suspension and substituted a one-month suspension for the 

termination. Based on post-termination medical evidence that indicated the employee was unable 

to return to work, the arbitrator ordered the employer to reinstate the employee but immediately 

place her on a leave of absence long enough for her to qualify for her pension and to retire. 



Mental Health Issues Under The Common Law 

It may well be appropriate to describe the common law as being the slowest and most reluctant 

area of law to adapt to Canadian society’s increasing concerns with, and focus on, workplace 

mental health issues. 

Canadian common law has recognized the right of employees to sue their employers not only for 

wrongful (including constructive) dismissal, but also for intentional infliction of mental distress – 

which requires an employee to establish that the employer has engaged in conduct which is: 

(a) 

flagrant or outrageous; 

(b) 

calculated to produce harm; and 

(c) resulting in a visible and provable illness 20 ). 

However, Canadian courts continue to hold that employees do not have the right to sue their 

employers for mental distress that is inflicted in a negligent (or reckless) manner. 

In Wallace v. United Grain Growers Ltd. 21 , the Supreme Court of Canada rejected the proposition 

that employees may sue their employers for breach of a duty of good faith and fair dealing in the 

manner of dismissal from employment. According to the Supreme Court of Canada, the creation of 

such a duty of care (described by the Court as a “radical shift” in the law) is “a step better left to be 

taken by the legislatures.” 

Approximately ten years later, the Supreme Court of Canada sustained this conclusion in Honda 

Canada Inc. v. Keays 22 . In Honda, the Supreme Court of Canada held that damages in a wrongful 

20 Piresferreira v. Ayotte, 2010 ONCA 384 (CanLII) (Ontario Court of Appeal), leave to appeal to the Supreme 

Court of Canada dismissed, 2011 CanLII 2095 (Supreme Court of Canada). 

21 Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701 (Supreme Court of Canada). 

22 Honda Canada Inc. v. Keays, [2008] 2 S.C.R. 362 (Supreme Court of Canada). 



dismissal action are generally limited to the loss suffered from the employer’s failure to provide 

reasonable notice of termination of employment. No damages are payable for any mental distress 

suffered by the employee as a result of the termination, unless the parties specifically contemplated 

at the time the employment commenced that a breach of the contract might cause the employee 

mental distress. 

According to the Supreme Court of Canada, although the parties to a particular employment 

contract may be found to have contemplated such suffering, the possibility of mental distress 

resulting from termination of employment is something that is generally not contemplated by 

employers and employees: 

“The contract of employment is, by its very terms, subject to cancellation on notice or 

subject to payment of damages in lieu of notice without regard to the ordinary 

psychological impact of that decision. At the time the contract was formed, there 

would not ordinarily be contemplation of psychological damage resulting from the 

dismissal since the dismissal is a clear legal possibility. The normal distress and hurt 

feelings resulting from dismissal are not compensable. 

Damages resulting from the manner of dismissal must then be available only if they 

result from the circumstances described in Wallace, namely where the employer 

engages in conduct during the course of dismissal that is ‘unfair or is in bad faith by 

being, for example, untruthful, misleading or unduly insensitive’ (para. 98).” 

However, in both Wallace and Honda, the Supreme Court of Canada was considering mental 

suffering that results from the manner in which employment is terminated, and not mental suffering 

that results from the employer’s mistreatment of an employee during the course of the employment 

relationship. 

In Amaral v. Canadian Musical Reproduction Rights Agency Limited 23 , the Ontario Superior Court 

of Justice considered a case in which a long-service employee initially sued her employer for 

constructive or wrongful dismissal, seeking damages in lieu of notice, aggravated damages and a 

23 Amaral v. Canadian Musical Reproduction Rights Agency Limited, 2007 CanLII 46701 (Ontario Superior 

Court of Justice). 



declaration that the employer and three of its senior managers were liable to her for bad faith. 

However, by the time of the trial, Ms. Amaral’s sole claim was for payment of damages for mental 

suffering inflicted either intentionally or negligently during Ms. Amaral’s employment. 

Ms. Amaral’s concerns began when her employer underwent a major restructuring in which it 

increased the number of employees by 50%, significantly changed its operational model and began 

to shift “from an intensely paper world to an electronic one.” Ms. Amaral responded in an 

insubordinate manner to the employer’s denial of her request for a promotion and objected to 

changes made to her duties and responsibilities. Ms. Amaral’s performance declined and her 

attendance and punctuality became issues that resulted in a letter of reprimand. 

Ms. Amaral had been diagnosed by her family doctor as suffering from acute depression. After 

receiving the letter of reprimand, she presented to her doctor as suicidal and suffered a complete 

mental breakdown that prevented her from returning to employment. After her breakdown, she was 

hospitalized frequently and was prescribed various anti-depressant and anti-anxiety medications. 

She also received electroconvulsive shock therapy. 

However, neither Ms. Amaral nor her doctor provided the employer with any details of what was 

wrong, why she had stopped attending work and when she would return. The trial judge found that 

Ms. Amaral had successfully masked her symptoms from her employer and its managers, who 

were unaware of any medical condition or any particular vulnerability on her part. Ultimately, the 

employer told Ms. Amaral that her duties had been permanently reassigned and that work 

appropriate to her abilities and medical condition would be assigned to her upon her return to work. 

The Superior Court of Justice relied on Wallace in concluding that “there is no specific tort of 

negligent infliction of mental suffering available”. Therefore, Ms. Amaral would only be entitled to 

damages if she was able to demonstrate the intentional infliction of mental distress. In all of the 

circumstances, the trial judge held that the employer’s responses to Ms. Amaral’s declining 



performance and punctuality were “proportionate and reasonable”. The Court therefore rejected 

Ms. Amaral’s claim for damages for intentional infliction of mental harm. 

On appeal 24 , the Ontario Court of Appeal determined that it was not necessary to decide whether 

an employee may sue an employer for negligent infliction of mental suffering in the absence of any 

allegations that the employer breached the contract of employment, because the trial judge’s 

findings meant that such a claim could not succeed. However, for the purpose of the appeal, the 

Court of Appeal stated that it was prepared to assume, without deciding, that such a right does 

exist. 

Piresferreira v. Ayotte and Bell Mobility Inc. 25 was a case in which the Ontario Superior Court of 

Justice found a supervisor liable for both intentional and negligent infliction of mental suffering, as 

well as battery. The Court also held the employer vicariously liable for the supervisor’s wrongs and 

directly liable for negligence and constructive dismissal. 

Mr. Ayotte was a supervisor who was found by the Court to be critical, demanding, loud and 

aggressive. Witnesses testified that Mr. Ayotte had high expectations and a temper that he 

displayed by yelling and swearing at employees and by banging his fist on tables. About a year and 

a half before the employee left her employment, he became more verbally abusive of everyone who 

reported to him and, in particular, Ms. Piresferreira. 

On one occasion when Ms. Piresferreira failed to arrange a meeting with a client, Mr. Ayotte yelled 

and swore at her, criticized her for failing to do her job, refused to listen to her explanation, 

repeatedly told her to get away from him and physically pushed her away. He then told her “to get 

the hell out of his office” and that he was preparing a performance improvement plan (“PIP”) for 

her. 

24 2009 ONCA 399 (CanLII) (Ontario Court of Appeal). 

25 Piresferreira v. Ayotte and Bell Mobility Inc., 2008 CanLII 67418 (Ontario Superior Court of Justice). 



When Mr. Ayotte subsequently presented the PIP to Ms. Piresferreira, she filed a formal complaint 

against him with her employer. The employer sent Ms. Piresferreira an email message promising a 

response to the complaint – and, at the same time, setting a meeting to review the PIP. Ms. 

Piresferreira responded with a doctor’s note indicating that she would be unable to attend the 

meeting as a result of “stress leave due to anxiety – dealing with work harassment.” In response, 

the employer sent Ms. Piresferreira a letter that claimed she had declined to attend a meeting to 

allow Mr. Ayotte to apologize to her. Ms. Piresferreira never returned to work. 

The trial judge concluded that Mr. Ayotte “showed reckless disregard for Piresferreira’s emotional 

well-being” and that his conduct was “calculated to produce harm” even though he didn’t actually 

intend that Ms. Piresferreira would suffer the injury that she did. The trial judge also found that both 

the employer and Mr. Ayotte owed Ms. Piresferreira “a duty of care to ensure that Piresferreira was 

working in a safe and harassment-free environment without verbal abuse, intimidation or physical 

assault” and that they had breached this duty. In doing so, the trial judge stated: 

“In my view, it is reasonably foreseeable that a person of ordinary fortitude would 

suffer serious psychological injury if that person was regularly yelled and sworn at by 

her manager/supervisor/boss, was told by the manager/supervisor/boss that she did 

not know what she was doing, was not given the opportunity to explain her actions or 

defend herself, was pushed by the manager/supervisor/boss who at the time was 

clearly angry and out of control, and was immediately told that she would be put on 

probation or issued a PIP.” 

The trial judge awarded damages totalling just over $500,000. 

On appeal 26 , the Ontario Court of Appeal accepted the trial judge’s finding “that it was reasonably 

foreseeable that Ms. Piresferreira would experience mental suffering from the abusive manner in 

which Ayotte supervised her during her employment.” However, the Court of Appeal held that: 

“the trial judge erred by finding the tort of negligence was available against an 

employer and supervisor for conduct in the course of the [employee]’s 

26 2010 ONCA 384 (CanLII) (Ontario Court of Appeal), leave to appeal to the Supreme Court of Canada 

dismissed, 2011 CanLII 2095 (Supreme Court of Canada). 



employment….” 

According to the Court of Appeal, policy reasons foreclose the recognition of a duty of care that 

would “require employers to take care to shield employees from the acts of other employees that 

might cause mental suffering.” Instead, the Court of Appeal concluded that: 

“the employee who is caused mental distress by an employer’s abusive conduct can 

claim constructive dismissal and still have recourse to damages under the Honda 

framework. Recognizing the tort in the employment relationship would overtake and 

supplant that framework and all of the employment law jurisprudence from which it 

evolved. In other words, in the dismissal context, the law already provides a remedy 

in respect of the loss complained of here. The recognition of the tort is not 

necessary.” 

As for employees who suffer mental distress from employer conduct that is insufficient to support a 

claim for constructive dismissal, the Court of Appeal stated: 

“…much disagreement can be anticipated as to whether criticism is ‘constructive’, 

whether work performance is ‘poor’, and whether the tone of the former was 

appropriate to the latter. The existence of the tort would require the resolution of 

such disputes. The court is often called upon to review the work performance of 

employees and the content and manner of their supervision in dismissal cases. It is 

unnecessary and undesirable to expand the court’s involvement in such questions. It 

is unnecessary because if the employees are sufficiently aggrieved, they can claim 

constructive dismissal. It is undesirable because it would be a considerable intrusion 

by the courts into the workplace, it has a real potential to constrain efforts to achieve 

increased efficiencies, and the postulated duty of care is so general and broad it 

could apply indeterminately.” 

The Court of Appeal reduced Ms. Piresferreira’s damages to $15,000 for the battery committed by 

Mr. Ayotte when he pushed Ms. Piresferreira, approximately $88,000 pay in lieu of reasonable 

notice of termination of employment and $45,000 “for mental suffering from the manner of her 

dismissal”. 

As the common law stands, therefore, it appears that real change in terms of providing remedies 

for an employer’s failure to respect, protect and/or promote psychological well-being in the 



workplace – at least in the absence of a situation that gives rise to a wrongful or constructive 

dismissal – has indeed been left to the legislatures. 

Conclusion 

Employment laws have evolved very significantly from what they were 150 years ago. 

Nevertheless, most Canadians still spend the majority of their waking hours at work. Further, the 

line between “home” and “the workplace” is increasingly being blurred. Within this context, it should 

come as no surprise that Canadian society is increasingly focused on mental well-being in the 

workplace. 

Canadian judges appear to be determined to leave it to the Federal and Provincial legislatures to 

establish legal protections for workplace mental well-being, and remedies for breaches of such 

protections, in all but the most egregious circumstances. However, at least some employment law 

tribunals and arbitrators do not share the reluctance demonstrated by our courts – and, in any 

event, the legislatures are gradually stepping up to the task. 

Employers are therefore well-advised to monitor closely the development and evolution of 

Canadian legislation and case law respecting workplace mental health issues. The stress of 

keeping informed on such developments as they arise is, surely, less than the stress of engaging, 

even inadvertently, in conduct that is contrary to the law, and having your mistakes scrutinized, 

itemized and remedied by a court, tribunal or arbitrator. 


“You Are What You Tweet” 

Perks & Perils of Social Media 

Presented by Pablo Guzman and Tatha Swann 

Employee bathing in burger chain’s 

sink 

U 2 cn b sAf frm th dngrz of social media 

(if you understand this you are spending too much time on social media) 

• Work-related comments on social media put careers and a company’s 

business and reputation at risk 

• Posted online with the touch of a button - from work or while off duty 

• How to maintain control in a world like this 

• Employers can control some things, but not others 

• Today we will teach you about what you can control and how to go about it 

1

@Definitions: 

Social Media Explained in 140 Characters 

• Social media is: 

a) User generated content that is shared over the Internet 

b) Technologies that promote engagement, sharing and 

collaboration 

• Examples: Facebook, Twitter, LinkedIn, YouTube, blogs, Flickr, 

etc. 

The Good 

a) Advertise and promote brand, products and services 

b) Advertise for candidates for employment 

c) Screen candidates and verify information in application 

and c.v. 

d) Investigate existing employees in workplace 

investigations and litigation 

Employers and Businesses like this. 

The Bad 

a) Loss of productivity at work 

• Loss of time and money for the employer 

b) Breach of employer’s trademark / copyright 

• Unauthorized use of name and logo 

• Is your company name being used on unofficial websites, e.g. 

Facebook groups 

2

The Bad 

c) Creation of a poisoned work environment 

• Accessing or creating content that is inappropriate in the workplace, 

such as sexually explicit, harassing or discriminatory content 

• Canada Post v Canadian Union of Postal Workers (Alberta, 2012) - 

postal clerk terminated after posting derogatory Facebook comments 

which included allusions to torturing her supervisors with a Voodoo doll 

and running them over. Termination upheld. 

• Other Potential Risks: Human rights and constructive dismissal 

complaints by employees exposed to inappropriate content 

The Bad 

d) Leaks of confidential and proprietary information 

• Applebee’s Restaurant (US, January, 2013) - server terminated for 

posting critical customer note written on receipt on Reddit 

“I Give God 10% 

Why do you Get 18” 

- Pastor 

The Bad 

d) Leaks of confidential and proprietary information 

• Chatham-Kent v CAW-Canada, Local 127 (Ontario, 2007) - a 

personal caregiver terminated for posting photos and derogatory 

comments about nursing home residents. 

• Other Potential Risks: (1) confidential information used by competitors 

or (2) disclosure of employee/client personal information in breach of 

privacy legislation 

3

The Ugly (OMG did she really post that) 

e) Damage to an employer’s business and reputation 

• Lougheed Imports Ltd. v. UFCWIU, Local 1518 (BC, 2010) - discharge of two 

employees for posting Facebook comments telling customers not to spend 

money at the auto garage as they were “crooks” 

• Porter Airlines’ $4-million libel suit (Ontario, 2013) for Twitter comments and 

video showing false crash of Porter plane by Union and strike coordinator 

• HMV (2013) - hijacked Twitter account live-tweeted mass termination. 

hmv @hmvtweets: “We’re tweeting live from HR where we’re all being fired! Exciting!!” 

• Associated Press (2013) - hacked Twitter account falsely reported explosions 

at Whitehouse and Obama injured. Dow Jones drops ~100 points in minutes. 

Don’t Panic: Get 

a) Create and Update Employer Policies 

• Social Media Policy 

• Computer and Internet Use Policy 

• Confidentiality Policy 

• Privacy Policy 


b) Educate and Train Employees & Enforce Policies 

• Explain risks of misuse of social media 

• Draw attention to new policies designed to address and 

minimize these risks 

• Have confirm understanding and compliance with polices in 

writing 

• Monitor employees and enforce your policies! 

4


c) Identify High Risk Employees 

• Employees with employer social media privileges 

• Increase supervision and oversight - require review of 

content before posting 

• Keep personal and employer social media accounts 

separate 

• Include social media work in job description of employee 

• Sever access to employer's social media before termination 

Discipline and Termination 

Determining whether misconduct constitutes just cause for termination: 

i. Do you have a policy prohibiting the conduct 

ii. Have you treated other employees similarly for the 

same conduct 

iii. Can you show damage to your business or 

reputation 

iv. Is the workplace poisoned (are other employees 

reluctant to work with the employee) 

v. Is the employee apologetic and remorseful 

vi. Is the employee likely to reoffend in the future 

vii. Does the employee have a good disciplinary 

record 

Don’t Lose Your Cool: You are what you Tweet 

• Overreacting publicly can draw more attention to the offending content 

• Labatt Breweries & Luka Magnotta - Labatt threat to sue the Montreal Gazette 

for publishing a photo of Luka Magnotta holding a Labatt Blue bottle sparked 

Twitter storm that exacerbated damage 

• Follow HMV’s Example - responding to live-tweet of 

mass termination, HMV tweeted “One of our departing 

colleagues was understandably upset” and thanked 

customers for their “continued support”. 

• Jack Daniel’s - World’s nicest cease and desist letter 

says company flattered by book cover breaching 

trademark and offers to pay for new design 

5


“YOU ARE WHAT YOU TWEET” 

PERKS & PERILS OF SOCIAL MEDIA 

By Pablo Guzman and Tatha Swann, Davis LLP, 

with the assistance of Brittany Tipton 

1. Introduction - What is Social Media 

Technically speaking, social media can be defined as: 

(a) 

user generated content that is shared over the Internet; and 

(b) technologies that promote engagement, sharing and collaboration. 1 

Most of us think of social media as Facebook, Twitter, LinkedIn, YouTube, blogs, Flickr and the 

like. However it is defined, there is no question that social media has become part of every day life 

for most people. As a result, the majority of employees today will have some form of contact with 

social media on a daily or weekly basis. This may include having a Facebook or LinkedIn profile, 

posting comments, videos or pictures on Twitter, YouTube or Flickr or keeping a personal blog 

where he or she keeps a journal or expresses his or her opinions in a public or semi-public setting. 

2. The Perks of Social Media for Employers 

In addition, social media is increasingly being used by employers to: 

(a) 

advertise and promote the employer’s brand, products and services; 

(b) 

advertise for candidates for employment; 

1 The Social Media Guide, “50 Definitions of Social Media”, online: The Social Media Guide 

. 



(c) 

obtain information about candidates for employment that can be used to verify 

information on applications and screen candidates for employment; and 

(d) 

obtain information about existing employees for use in workplace investigations and 

litigation. 

The public’s extensive use and reliance on social media has allowed employers to utilize such 

mediums as Facebook and Twitter to interact with clients, customers and employees on an entirely 

new level. Today an employer wishing to advertise and promote its brand can rely on the multitude 

of social media outlets available, as well as traditional mediums, to reach an even broader 

audience. Advertising on interactive sites such as Facebook and Twitter can allow an employer to 

receive real time feedback from customers and clients about its products and services and can 

create a more personal relationship between the employer and its target audience. 

Beyond advertising, employers can utilize websites such as LinkedIn to advertise and search for 

employees with the experience they need. In addition, social media websites can be used to verify 

information provided by an applicant for employment and other screening purposes, as they allow 

the employer to learn a variety of information about potential candidates even before the interview 

stage. 

Social media can also be useful when conducting workplace investigations and for obtaining 

information for use in litigation with respect to existing employees. For instance, by viewing an 

employee’s personal Facebook profile and status updates, an employer may discover that an 

employee who has claimed to be totally disabled and unable to work has engaged in rigorous 

recreational or sporting activities. As another example, an employer may discover inappropriate 

comments made by one employee about another that support or contradict an employee’s 

allegations of harassment or discrimination in the workplace. 

Thanks to social media, employers 



now have access to a large amount of publically available information concerning current 

employees that they would not otherwise have access to. 

3. The Perils of Social Media for Employers 

Unfortunately, with the perks come the perils. When social media is utilized by employees, either at 

work or off duty, many potential risks arise, including: 

(a) 

loss of productivity at work; 

(b) 

creation of a poisoned work environment; 

(c) 

leaks of confidential and proprietary information; and 

(d) 

damage to an employer’s reputation by criticism or downright derogatory comments 

about the employer or its clients. 

Although most employees use social media responsibly, the fact is that people spend a great deal 

of time at work. As a result, the boundaries between work and personal life may become blurred, 

which can negatively effect the employment relationship as well as the employer’s and client’s 

interests. 

(a) 

Loss of Productivity at Work 

An obvious concern for employers is a loss of productivity when employees access social media 

during work hours. As social media websites, such as Facebook and Twitter, are largely used for 

personal purposes, any time that an employee spends on one of these websites while at work is 

likely time that has not been spent working. The consequence is, of course, loss of time and money 

for the employer. 

(b) 

Creation of a Poisoned Work Environment 



Concerns can also arise where an employee accesses or creates content that is inappropriate in 

the workplace, such as sexually explicit, harassing or discriminatory content, for example on the 

basis of race, sex or sexual orientation. 

For example, in Ontario Public Service Employees Union v Ontario (Ministry of Natural Resources) 

(Wickett Grievance), 2 66 employees were disciplined after the Ministry of Natural Resources (the 

“MNR”) discovered that the employees were viewing pornography at work. The employees were 

using their Outlook e-mail accounts to request, send and receive inappropriate and sexually explicit 

images and videos which contravened the employer’s Workplace Discrimination and Harassment 

Prevention policy. Fortunately for the MNR, no complaints of harassment, discrimination or 

constructive dismissal were made. Upon discovering the employees’ inappropriate activities, the 

MNR disciplined the employees, six of which were discharged and grieved. The Grievance 

Settlement Board noted that “the distribution of material in the workplace by e-mail or some other 

means which objectifies and denigrates women, and which depicts acts of violence against women 

does poison the workplace, whether someone complains about the activity or not”. 3 However, the 

Grievance Settlement Board ultimately determined that the MNR did not have just cause to 

discharge the grievors and ordered their reinstatement, on the basis that: 

(i) 

the grievors’ behaviour had been condoned to some extent by managers who had 

received the inappropriate emails; and 

(ii) 

the grievors appeared to understand that their behaviour was wrong and were 

unlikely to breach the employer’s policies again in the future. 4 

The existence of and sharing of obscene material in the workplace can lead to issues of 

harassment and the creation of a poisoned work environment for other employees. Even if no 

2 (2003) CanLII 52889 (ON GSB). 

3 Ibid at 44. 

4 [2004] OGSBA No 97 and [2005] OGSBA No 93. 



employee complains about the content, employees viewing or sharing offensive content at work 

can be found to have breached an employer’s harassment and discrimination policies. 

As another example, in Canada Post Corp v Canadian Union of Postal Workers (Discharge for 

Facebook Postings Grievance), 5 

a 2012 Canada labour arbitration decision in Alberta, a postal 

clerk with 31 years of service was discharged after posting derogatory statements about her 

supervisors and employer on Facebook over a period of one month. The postal clerk grieved her 

discharge, claiming that a “toxic work environment” had provoked her offensive Facebook postings. 

In upholding the discharge, the arbitrator found that the Facebook postings were “mocking to the 

point of bullying”, were disseminated to the postal clerk’s friends and other employees of Canada 

Post, and that their discovery resulted in the two managers who were targeted in the Facebook 

postings having to take substantial time off work due to emotional distress and the need for medical 

care. 

In the above cases, employees witnessed and were subjected to harassing, discriminatory and 

bullying content as a result of other employees’ misuse of social media. 

The employers in these 

cases were fortunate as it appears that the affected employees did not file human rights complaints 

or commence actions for constructive dismissal due to a poisoned work environment. 

However, 

this could easily have been the result had the employers in these cases not acted quickly to 

discipline the offending employees. 

(c) 

Leaks of Confidential and Proprietary Information 

There is always a risk that employees may advertently or inadvertently leak confidential and/or 

propriety information belonging to the employer, the employer’s clients or other employees. Social 

media makes sharing confidential and/or proprietary information easier, and therefore more likely to 

occur. 

5 (2012), 216 LAC (4 th ) 207 (Ponak). 



For example, in January, 2013, a server at an Applebee’s restaurant in the United States posted a 

photo of a note that one of Applebee’s customers had written on the customer’s receipt. 6 

The customer, who was a pastor, was displeased with the automatic gratuity which had been 

included on her receipt and wrote “I give God 10%. Why Do You Get 18” on the receipt. 7 

The server took a photo of the note and posted it on Reddit, a social news and entertainment 

website, which quickly became an internet sensation. Applebee’s terminated the server’s 

employment for disclosing the customer’s personal information. 

In another example, in Chatham-Kent (Municipality) v CAW-Canada, Local 127 (Clarke 

Grievance), 8 a 2007 Ontario arbitration decision, Jessica Clarke, a personal caregiver at a nursing 

home for the elderly, created a personal website on which Ms. Clarke posted photos of and 

derogatory comments about residents of the nursing home, contrary to a confidentiality agreement 

that Ms. Clarke had signed upon being hired and which was reviewed annually during training 

sessions. 

In addition, Ms. Clarke posted derogatory comments about fellow employees at the 

nursing home. Upon discovering Ms. Clarke’s website, the municipality discharged Ms. Clarke for 

breach of the confidentiality agreement, insubordination and conduct unbefitting a personal 

caregiver. Ms. Clarke grieved her discharge. Despite the fact that Ms. Clarke had been employed 

for eight years and had apologized to the municipality for her behaviour, the arbitrator found that 

the nature and extent of Ms. Clarke’s conduct was such that her discharge should not be set aside. 

Similarly, in Alberta v Alberta Union of Provincial Employees, 9 a 2011 Alberta arbitration decision, a 

child and youth care worker employed at a youth assessment centre was discharged for posting 

targeted, negative and hurtful comments about her co-workers and employer and disclosing 

6 Christine Roberts, “St Louis Applebee’s Server Fired After Posting Receipt from Disgruntled Customer to 

Reddit” Daily News (January 31, 2013), online: . 

7 Ibid. 

8 (2007), 159 LAC (4 th ) 231 (Williamson) [Chatham-Kent]. 

9 (2011), 213 LAC (4th) 299 (Ponak). 



confidential information and internal emails on her personal blog. 

The worker grieved her 

discharge. At arbitration, her discharge was upheld on the basis that: 

(i) 

the worker was initially unapologetic when confronted in regards to the blog and 

refused to take down the offending posts; 

(ii) 

although the worker later apologized and removed the blog posts, it was clear that 

she never fully appreciated the impact of her posts on the employer; and 

the employment relationship had been irrevocably destroyed once the blog was discovered. 

In the above cases, employees disclosed confidential information and communications belonging to 

their employers and customers of their employers through the use of social media websites. 

In addition to embarrassing the employer, disclosure of confidential information and 

communications could result in the disclosure of: 

(i) 

trade secrets or other proprietary information belonging to the employer, which 

could be used by the employer’s competitors to the detriment of the employer’s 

business; and 

(ii) 

personal information of an employer’s customers, which could result in a breach 

of applicable privacy legislation requiring businesses to protect the personal 

information of its customers. 



(d) 

Damage to an Employer’s Reputation 

(i) 

Misuse of the employee’s social media accounts 

There have been many examples in recent years of employees being disciplined or terminated for 

making critical or defamatory comments about their employer or their employer’s customers on 

social media which resulted in damage to the employer’s reputation. 

For example, in Bell Technical Solutions v Communications, Energy and Paperworkers Union of 

Canada (Facebook Postings Grievance), 10 a 2012 Ontario arbitration decision, two field technicians 

were discharged for posting photos and comments which were insulting to their supervisor and to 

Bell Technical Solutions on Facebook over a 16 month period. The field technicians grieved their 

discharges. At arbitration, the discharge of one of the field technicians was upheld on the basis that 

his posts were frequent and prolonged. 

However, the second field technician was reinstated, 

following a one year suspension, because he had only posted comments about a supervisor, not 

Bell Technical Solutions, and had been subjected to inappropriate conduct by the supervisor and 

thus was somewhat provoked. 

As another example, in Lougheed Imports Ltd (West Coast Mazda) v United Food and Commercial 

Workers International Union, Local 1518, 11 

a 2010 decision of the British Columbia Labour 

Relations Board, a re-conditioning manager and a detailer of an auto garage, who were also vocal 

union supporters and organizers, were discharged for posting defamatory comments about the 

auto garage on Facebook such as “don’t spend your money at West Coast Mazda as they are 

crooks out to hose you and the shop ripped off a bunch of people I know”. 12 

In grieving the 

employees’ discharges, the union alleged that the auto garage had discharged the employees due 

to anti-union animus in violation of the British Columbia Labour Relations Code (the “BC Labour 

10 [2012] OLAA No 481 (Chauvin). 

11 2010 CanLII 62482 (BC LRB). 

12 Ibid at para 97. 



Relations Code”). In upholding the discharges, the arbitrator found that the discharges were not 

motivated by anti-union animus and that the derogatory Facebook comments were made to 377 

people and were damaging to the auto garage’s business. 

A further illustration of the increasing use by employees of social media to the detriment of their 

employers is Porter Airlines’ recent commencement of a $4-million libel suit against the Canadian 

Office and Professional Employees Union, Local 343 and its strike coordinator, representing 22 

striking fuel workers of Porter Airlines, for comments made on Twitter. 13 Porter Airlines has claimed 

that a video showing a false crash of a Porter plane, a false Porter advertisement and other 

comments “have caused Porter to suffer significant and unjustifiable damages to its reputation and 

business …” 14 The union has responded arguing that freedom of speech, particularly the ability to 

“offer our version of the way we see things” is constitutionally protected and noted that “[b]efore 

Twitter and social media, these things would have been said in a union hall and on a leaflet”. 15 

It 

will be interesting to see how this case is decided as it could have far reaching implications for the 

use of social media by unions during work stoppages, as well as organizing campaigns and 

collective bargaining. 

We have also seen recent cases in which social media postings by employees were directed at an 

employer’s clients rather than the employer itself. For example, in Wasaya Airways LP v Air Line 

Pilots Association, International (Wyndels Grievance), 16 a 2010 Canada labour arbitration decision 

in Ontario, a pilot’s employment was terminated after he posted racist comments on Facebook 

which were directed at the airline’s First Nations customers. After his termination, the pilot took 

down the racist Facebook comments and sent a letter to the airline apologizing for posting the 

Facebook comments. In addition, the pilot grieved the discharge. The arbitrator found that: 

13 Guy Dixon, “Porter workers’ union claims free speech in libel case” The Globe and Mail (April 18, 2013), 

online: . 

14 Ibid. 

15 Ibid. 

16 (2010), 195 LAC (4th) 1 (Marcotte). 



(i) 

the airline had no formal social media policy in place; 

(ii) 

the airline had discriminated against the pilot by discharging him but only giving a 

one day suspension to a co-worker who had responded on Facebook to the pilot’s 

comments; 

(iii) 

the pilot’s Facebook comments had the potential for significant detrimental effect on 

the airline’s reputation and ability to efficiently conduct its business; and 

(iv) 

the pilot’s Facebook comments poisoned the work environment, as the pilot’s 

supervisor and senior managers were reluctant to work with the pilot due to his 

Facebook posts. 

As a result, the arbitrator found that the pilot’s Facebook comments had rendered the employment 

relationship untenable, making reinstatement inappropriate in the circumstances. 

Instead, the 

arbitrator substituted a four month suspension and ordered that the pilot resign at the end of the 

suspension period upon being provided with compensation and benefits equal to approximately 

three months. 

The above cases illustrate the damage to an employer’s business and reputation that can result 

from an employer’s misuse of the employee’s own social media websites and accounts. However, 

there may be the potential for even greater damage where an employee has access to and uses 

the employer’s social media accounts to post non-sanctioned content on behalf of the employer. 

(ii) 

Misuse of the employer’s social media accounts 

There is no doubt that social media can help employers to promote their business and interact with 

their customers. However, participation in social media requires dedicated attention from an 

employer in terms of keeping content up to date. Many employers give certain employees 

administrator privileges with respect to the employer’s Twitter or Facebook accounts in order to 



ensure that updates are posted in a regular and timely fashion. When employees have access to 

the employer’s social media accounts as administrators, there is an increased risk that 

inappropriate content will be posted on behalf of the employer, which can have significant 

reputational consequences for the employer. 

For example, in January, 2013, an employee used HMV’s official Twitter account, normally utilized 

for the promotion of the HMV brand, to live-tweet about a mass termination of 190 employees. 17 

One of the employee’s tweets read “We’re tweeting live from HR where we’re all being fired! 

Exciting!!” 18 Although the unauthorized tweets were promptly deleted, many Twitter users were able 

to capture and share images of the unauthorized tweets. After regaining control of its Twitter 

account, HMV responded to the series of unauthorized tweets, stating “One of our departing 

colleagues was understandably upset” and thanked customers for their “continued support”. 19 

In addition to concerns about reputational damage, there is the risk an employer could be 

vicariously liable for the actions of employees. When an employee posts derogatory or otherwise 

inappropriate content on social media websites, whether using the employer’s official social media 

accounts or simply using a company e-mail account, there is the potential that the employer could 

be found vicariously liable for the actions of those employees. This potential arises where an 

employee using company e-mails or posting online is perceived as acting on behalf of the 

employer. If it is found that the employer is aware of these actions and does not take steps in a 

timely matter to stop the offending behaviour, they could be liable for any harm that results. 

Employer’s need to be aware of the ease and permanence of the damage that can be caused by 

an employee’s inappropriate use of social media. Employees can access the internet at any time 

and with most social media websites now available on cellular phones, they no longer have to be in 

17 Emily Senger, “Disgruntled HMV staff live tweet their own mass firing” Maclean’s (January 31, 2013), online: 

. 

18 Ibid. 

19 Ibid. 



front of a computer to do so. As seen in the HMV example, the content, once posted, is very hard if 

not impossible to eliminate from public record. In many cases, simply deleting the offending post or 

tweet will not erase the existence of the content, as it can easily be copied and distributed by other 

users. 

The use of social media is incredibly prevalent in today’s society. There is a pervasive culture of 

sharing personal information, thoughts and feelings in real time, such as through Facebook status 

updates. The prevalence and normalcy of this behaviour can lead to employees sharing content 

without thinking about consequences in the same way as they might when drafting an e-mail, a 

letter or a memo. As a result, it is important for employers to take steps to prevent and minimize the 

risks of inappropriate social media use by employees and have measures in place to manage the 

misuse of social media when it occurs. 

4. Preventing and Minimizing the Risks of Misuse of Social Media by Employees 

Employers should take steps to prevent and minimize the risks of social media use by employees 

by creating policies that specifically address the use of social media by employees, providing 

education and training, enforcing their policies and identifying and taking steps to insulate high risk 

employees before problems arise. 

(a) 

Create and Update Employer Policies 

Employers should update their social media, confidentiality, computer and internet use and privacy 

policies, to ensure that these polices restrict and regulate employee use of social media. 

Social Media Policy 

Employers should consider creating a social media policy containing provisions that: 

(i) 

set out a broad definition of what constitutes social media; 



(ii) 

limit or restrict an employee’s use of social media during work hours; 

(iii) 

prohibit an employee from adding, modifying or deleting content on the employer’s 

social media pages or applications without express authorization and require review 

and approval by management before any changes are made to the employer’s 

social media content; 

(iv) 

prohibit an employee from making any statement or posting any content on behalf 

of, in the name of, or using the logo or brand name of, the employer, without express 

authorization; 

(v) 

prohibit an employee from posting any disparaging or inaccurate content about the 

employer, its clients, management or other employees and require that the 

employee immediately report any such content to the employee’s supervisor; 

(vi) 

prohibit an employee from posting any content that would violate the employer’s 

policies, including sexually explicit, illegal, harassing or discriminatory content; 

(vii) 

prohibit an employee from posting photos or videos that include images of the 

employer’s premises, employees or clients without express authorization; 

(viii) 

warn that an employee’s use of social media through employer owned devices or 

networks may be monitored, recorded, used and disclosed to ensure compliance 

with the employer’s policies and for other legitimate business reasons; and 

(ix) 

warn the employee that failure to comply with the social media policy will be grounds 

for discipline, up to and including termination of the employee’s employment for just 

cause. 



In the alternative, employer should consider incorporating these provisions into the employer’s 

other policies, for example policies addressing an employee’s use of employer-owned devices and 

networks and internet policies. 

Confidentiality Policy 

The purpose of a confidentiality policy is to prevent an employee from sharing confidential 

and 

proprietary information that the employee obtains during the course of their employment with third 

parties both during and after their employment. Employers should review their confidentiality 

policies to ensure that they expressly cover disclosure of the employer’s confidential and 

proprietary information through social media websites and applications. 

Computer and Internet Use Policy 

The purpose of a computer and internet use policy is to protect the employer’s right to access and 

monitor information stored on company-owned equipment, services or websites which may also be 

used by employees for personal use. 

Employers should review their computer and internet use 

policies to ensure that these polices are broad enough to include employee use of social media. In 

particular, an employer should ensure that these policies: 

(i) 

expressly include social media websites and applications in the list of companyowned 

devices or networks that the employer has a right to access and monitor; 

(ii) 

warn that an employee’s use of social media through company-owned devices or 

networks may be monitored, recorded, used and disclosed to ensure compliance 

with the employer’s policies and for other legitimate business reasons; and 

(iii) 

warn the employee that failure to comply with the computer and internet use policy 

will be grounds for discipline, up to and including termination of the employee’s 

employment for just cause. 



Privacy Policy 

The purpose of a privacy policy is to protect and maintain the security, confidentiality and privacy of 

all personal information about individuals collected by a company, in compliance with applicable 

privacy legislation, i.e. Personal Information Protection and Electronic Documents Act or provincial 

privacy legislation. Employers should review their privacy policies to ensure that they address use 

by employees of social media. In particular, employers should ensure that their privacy policies: 

(i) 

describe the safe guards that the employer has put in place to protect against the 

risks to personal information of social media, i.e., social media policies, 

confidentiality policies, computer and internet use policies, and other employer 

policies, if applicable; and 

(ii) 

advise that the employer will promptly advise any employee or client as soon as 

possible in the event that the employee’s or client’s personal information has been 

disclosed contrary to the privacy policy. 

Although the creation or updating of these and other employer policies is important for the 

protection of the employer’s interests, employers should be wary of creating overbroad or 

overreaching policies in attempting to limit employee’s use or access to social media. For example, 

in Costco Wholesale Corporation and United Food and Commercial Workers Union, Local 371, 20 a 

2012 decision of the National Labor Relations Board in the United States, the employer’s social 

media policy was struck down as being overbroad. The policy in question stated: 

Employees should be aware that statements posted electronically (such as to online 

message boards or discussion groups) that damage the Company, defame any 

individual or damage any person’s reputation, or violate the policies outlined in the 

20 358 NLRB No 106 (2012). 



Costco Employee Agreement, may be subject to discipline, up to and including 

termination of employment. 

The National Labor Relations Board found that the wording of this social policy was overbroad as it 

unlawfully restricted employees’ rights to “self-organization, to form, join or assist labor 

organizations … and to engage in other concerted activities for the purpose of collective bargaining 

…” which are protected activities under Section 7 of the National Labor Relations Act, 21 and did not 

provide exclusions for these activities. 

Although this decision is not binding on Canadian courts 

and administrative bodies, employers should be alert to the possibility that a Canadian court or 

administrative body could make a similar finding where the employee’s use of social media relates 

to a protected union activity. 

A future decision by the Ontario Superior Court of Justice in Porter 

Airline’s action against the Canadian Office and Professional Employees Union, Local 343 may 

illuminate the Canadian position with respect to this issue. 22 

(b) 

Education and Training 

It is likely that most employees will have some knowledge of and exposure to social media. 

However, even where this is the case it is important to educate and train employees on how social 

media can affect the employment relationship as well as the employer’s business and reputation. 

Employers should consider holding training sessions designed to: 

(i) 

explain what social media is and the risks it poses to the employer; 

(ii) 

draw employees’ attention to new employment policy provisions designed to address 

and minimize these risks; and 

21 29 USC §§ 151-169. 

22 Dixon, supra note 13. 



(iii) obtain written confirmation from employees that they understand the risks 

associated with social media and agree to abide by company policies put in place to 

address these risks. 

In order to ensure that new employees are educated and trained, and existing employees are kept 

up to date on the employer’s policies, education and training sessions should be held on a regular 

basis, which may be annually or semi-annually. 

As seen in Chatham-Kent, in which a personal caregiver posted photos and information about a 

nursing home’s residents and employees, having policies in place prohibiting the misuse of social 

media, which are reviewed annually with employees, can assist the employer in demonstrating 

sufficient cause to terminate the employee’s employment in the event that the employee misuses 

social media. 23 

(c) 

Identify High Risk Employees 

In order to take advantage of the benefits of social media, an employer may give certain employees 

administrative privileges with respect to the employer’s social media accounts to maintain and 

promptly update these accounts. To prevent and minimize the increased social media risks posed 

by these employees, employers should: 

(i) 

put guidelines in place with respect to the content to be posted on the employer’s 

social media websites, that are clearly communicated to the employees with social 

media privileges; 

(ii) 

implement increased supervision and oversight of these employees and the content 

over which they have control, which may include requiring supervisory approval prior 

to any content being posted on behalf of the employer; 

23 Chatham-Kent, supra note 8. 



(iii) 

ensure that the employee’s personal social media accounts are kept separate from 

the employer’s social media accounts and have separate usernames and 

passwords; 

(iv) 

pay employees with social media privileges for the social media work they perform 

for the employer; and 

(v) 

sever the employee’s access to the employer’s social media accounts before 

terminating the employee to prevent the employee from being able to take out any 

anger or frustration through the employer’s social media accounts, which happened 

to HMV during a mass termination. 24 

5. Disciplining Employees for Misuse of Social Media 

The above recommendations will assist employers in preventing and minimizing the risks of 

employees’ use of social media. 

However, it is inevitable that some employees will disregard 

employer policies and engage in misuse of social media to the detriment of the employer. 

Generally speaking, an employee’s violation of an employer’s policies is considered an incident of 

disobedience or insubordination that gives rise to discipline, up to and including termination of 

employment for just cause. 

As a result, where an employer discovers that an employee has 

misused social media contrary to one or more of its policies, the employer can point to its polices in 

disciplining and/or terminating the employee. 

However, the mere breach of an employer’s policy may not be enough, in and of itself, to justify 

termination for just cause. 

In determining whether the employee’s misuse of social media is 

serious enough to warrant termination for just cause, courts and arbitrators will adopt a contextual 

approach which applies to all types of employee misconduct, social media related and otherwise. 

24 Senger, supra note 17. 



The Supreme Court of Canada has held that “a finding of misconduct does not, by itself, give rise 

to just cause. Rather, the question to be addressed is whether, in the circumstances, the behaviour 

was such that the employment relationship could no longer viably subsist.” 25 

As a result, even 

where an employee engages in serious misconduct, such as posting derogatory, harassing or 

discriminatory comments about the employer, its clients or other employees, whether just cause for 

termination has been established will depend on the facts of each individual case. 

For example, in Groves v Cargojet Holdings Ltd, 26 a 2011 Canada labour arbitration decision in 

Alberta, an employee was dismissed after she posted threats on Facebook to punch and kick her 

supervisor with steel-toed boots and to spit in his face, as well as other insults and threats against 

co-workers and the employer generally. The employee commenced a complaint of unjust dismissal 

contrary to the Canada Labour Code. Although the employee was unapologetic and found to lack 

remorse, the adjudicator found that discharge was excessive, stating: 

… the provocation caused by events at the workplace, the absence of 

appropriate measures taken by her employer when faced with her 

complaints of harassment, the differential treatment for similar 

infractions committed by other employees, the transitory nature of her 

conduct compared to similar cases, the fact the offence was not 

committed at the workplace and therefore did not breach the 

workplace violence prevention policy, the nature of Facebook 

postings compared to website blogs which gave rise to more severe 

discipline in other cases, and the minimal harm to the employer's 

25 McKinley v BC Tel, 2001 SCC 38 at para 29. 

26 [2011] CLAD No 257 (Somers). 



reputation. For these reasons, the circumstances of her misconduct 

merit a different penalty from the one given by the employer. 27 

Fortunately for the employer, the employee had not requested reinstatement and the adjudicator 

noted it would not be appropriate in any event. 

Taking into consideration the employee’s lack of 

remorse and her poor disciplinary history, the adjudicator awarded the employee only one months’ 

salary and ordered her to take down the offensive Facebook postings. 

The above case, and those discussed throughout this paper, indicate that in determining whether 

misuse of social media constitutes just cause for termination or discharge, courts and arbitrators 

will focus on: 

(i) 

whether the employer has a policy prohibiting the misuse of social media in 

question; 

(ii) 

whether the employer can show that the employee’s misuse of social media 

damaged the employee’s business or reputation; 

(iii) 

whether the employee’s misuse of social media has poisoned the workplace such 

that other employees are reluctant to work with the employee; 

(iv) 

whether the employer has treated other employees who misused social media in a 

similar fashion; 

(v) 

whether the employee is apologetic and shows remorse for his or her misuse of 

social media; 

(vi) 

the likelihood that the employee will misuse social media again in the future; and 

(vii) 

the employee’s prior disciplinary record. 

27 Ibid at para 125. 



In addition to disciplinary considerations, employers who discover misuse by an employee of social 

media should carefully consider how to minimize any business or reputational damage that could 

result. 

In particular, employers should take care to not publicly overreact, which could have the 

effect of drawing more attention to the offending conduct and content. In a recent example of 

employer overreaction, in 2012, Labatt Breweries threatened to sue the Montreal Gazette for 

publishing a photo of Luka Magnotta, the accused killer, holding a Labatt Blue bottle. 28 

Labatt 

Breweries was concerned about the negative association with the Labatt brand as a result of the 

picture. However, the threat of the lawsuit sparked a Twitter storm that greatly exacerbated any 

potential damage by drawing the media’s and the public’s attention to Labatt Breweries’ brand in 

the context of Luka Magnotta. Employers would do better to follow HMV’s example. In response to 

the Twitter storm caused by an unauthorized tweet from HMV’s Twitter account during a mass 

termination, HMV tweeted “One of our departing colleagues was understandably upset” and 

thanked customers for their “continued support”. 29 

HMV remained calm and took a balanced 

approach by extending sympathy to the employee in question and adopting a customer-oriented 

approach. 

Conclusion 

Social media can be a valuable tool for an employer in terms of marketing its brand, connecting 

with customers and keeping tabs on its employees. However, there are serious risks posed by an 

employee’s use of social media, whether the use happens during work hours or while the employee 

is off duty. As a result, employers should be proactive in creating and enforcing policies limiting and 

regulating social media use by employees, educating and training employees with respect the 

employer’s policies, enforcing these policies consistently and being sensitive to the risks posed by 

employees with social media privileges. These precautions will help to prevent employee misuse of 

28 Josh Rubin, “Luka Magnotta sips Blue, Labatt sees Red” The Toronto Star (June 25, 2012), online: 

. 

29 Senger, supra note 17. 



social media and will assist the employer in demonstrating just cause to discipline or terminate 

employees in the event of employee misconduct. 

General public awareness that employees’ online behaviour can have an effect on their careers 

appears to be growing. A new website titled FireMe! purportedly “tracks, categorizes, and estimates 

the likelihood that a tweet … could get the tweeter fired if his or her boss reads the tweet.” 30 The 

FireMe! website also has a feature allowing users to input their Twitter username to assess how 

likely they are to be fired based on their tweet history. 

Although this website has a humorous 

aspect, it has zeroed in on a very real issue for employees and employers -- the prevalence of 

misuse of social media by employees -- which is only likely to increase in frequency and severity. 

As a result, employees need to be one step ahead of their employees and fast moving technology, 

armed with policies and prepared to act appropriately in the event of a crisis. 

30 Shane Todd, “Fireme! Website warns Twitter users about tweets that may get them fired” Heenan Blaikie 

LLP (April 2, 2013), online: Lexology . 


BABY BOOMERS WHO KEEP ON BOOMING 

Legal Considerations Regarding an Aging Workforce 

Michael D. A. Ford, CHRP 

THE HUMAN RESOURCES CONTEXT 

THE HUMAN RESOURCES CONTEXT 

1. BABY BOOMERS 1946-1964 2. Generation X 1965 - 1980s 

3. Generation Y 1980 - 2000 4. Millenials 2000 ------> 

Greater number of older workers in the workforce 

1


• The Challenges: 

Aging workforce 

Smaller pool of workers 

Legal obligations 

Medical and benefit programmes 

• The Advantages: 

Maturity 

Experience 

Judgment 


The matters of concern that we are seeing in our 

practices: 

Termination Options and Severance Costs 

Benefit Plans 

Performance Management 

Duty to Accommodate 

BABY BOOMERS WHO KEEP ON BOOMING - 

TERMINATION 

1. Mandatory retirement has ended: 

In Ontario - December, 2006 

Federally – December, 2012 

There must be a “BFOR” 

Examples: 

Pilots 

Fire Fighters 

Police 

Air Canada Pilots Association v. Kelly, 2011 FC 120 

2


TERMINATION 

2. No end date of employment 

End of 

Employment 

60 61 62 63 64 65 

No fixed end date 

No retirement 

Retirement 

60 61 62 63 64 65 

Need to performance manage 

Coax employees into retirement 

Concern paying severance in order for employee to leave 

Back to the Future – Termination 


3. Notice periods for long-serving employees 

Age 

Length of 

+ Service = 

4. Benefit coverage for severing employees 

Greater 

Severance 

“Owe the employee 22 months of severance, but possibly 10 years of LTD 

benefits… 

Brito v. Canac Kitchens, 2012, ONCA 61 

severance (Approximately $5,500) 

LTD ($200k) 

Age 55 Age 57 Age 65 


ALTERNATE STRATEGIES TO TERMINATION 

1. Phased retirement 

2. Fixed on short-term contracts 

3. New employment opportunities 

4. Early retirement incentives 

Most avoid discrimination claims 

3


BENEFITS 

1. Concerns when employers change benefits for 

retirees 

Gratuitous 

Promise 

Can Change 

OR 

2. Keeping your options open 

Deferred 

Compensation 

Cannot Unilaterally Change 

Gustavson v. Timberwest Forest Corp, 2011, BCJ 1943 

“Out of province medical supplies” 


BENEFITS 

3. Supreme Court to examine whether “severance” and 

employer paid pension is “double dipping” 

severance 

Age 65 Age 67 

Pension 


PERFORMANCE 

The Challenge 

¬ Performance Management 

Not easy 

Will be critical to do 

¬ Potential Concerns 

Work becomes physically challenging to perform 

Productivity diminishes 

Absenteeism and attendance 

4


PERFORMANCE 

Potential Strategies 

Similar to regular employees – but more practical may be 

required in order to successfully use 

1.Use objective and rational evaluation tools 

2.Evaluate evenly and consistently 

3.Hold regular performance reviews 

4.Use clear language 

5.When necessary, constructive criticism and clear 

warnings 


PERFORMANCE 

Potential Strategies (Continued) 

6.Document, document 

7.Connect compensation directly to performance 


ACCOMODATION 

• Duty to accommodate to the point of undue 

hardship but not necessary to provide the 

perfect solution 

• What does this mean for an older worker: 

Flexible work hours 

Compressed work weeks 

Teleworking 

Part-time work 

Phased retirement 

Short or fixed term contracts 

Job sharing 

Training – re-training 

Lateral moves to a better fitted position 

5

British Columbia Update: 

Recent Developments on the Left Coast 

Presented by Larry Page 

1

Western Update: 

Recent Developments in the Wild West 

Presented by Wendy-Anne Berbenbosch 

Alcohol and Drug Testing (Again) - CEP v. Suncor 

• In June of 2012, Suncor announced the implementation 

of random alcohol and drug testing for all workers in 

safety sensitive positions. 

• The Union grieved and sought an injunction preventing 

implementation pending arbitration. 


• The Court of Queen’s Bench granted the injunction: 

• employees could suffer irreparable harm to their privacy, 

dignity and bodily integrity; and 

• random testing may do little to detect employees who 

pose a safety risk. 

1


• A majority of the Court of Appeal agreed: 

• the non-consensual taking of bodily fluids is “a substantial 

affront to an individual’s privacy rights”; and 

• there was insufficient evidence to justify random testing 

pending arbitration. 


• One judge strongly disagreed: 

• “privately giving a urine sample to be tested for alcohol or 

drugs does not begin to equal death or dismemberment, 

or widowhood or becoming orphaned, by an accident” 

and; 

• the potential risks of substance impairment outweighed 

any possible privacy issues. 


• Suncor has suspended random testing pending the 

arbitration decision. 

• We’re also waiting for a decision from the Supreme 

Court in CEP v. Irving Oil. 

2

Solicitation and the Fiduciary Relationship: 

Evans v. Sports Corp. 

• Mr. Evans was a sports agent with The Sports Corp. 

When his contract wasn’t renewed, he sued for breach 

of contract. 

• The Sports Corp. counterclaimed alleging breach of a 

restrictive covenant and breach of fiduciary duty. 

Solicitation and the Fiduciary Relationship: 

Evans v. Sports Corp. 

• The Court of Appeal upheld the trial decision: 

• Mr. Evans owed a fiduciary duty and breached it by 

indirectly soliciting clients. 

• Termination does not automatically relieve employees of 

fiduciary obligations. 

• BUT: the courts will not enforce ambiguous restrictive 

covenants. 

Changes to Alberta’s OH&S Act 

• The Protections and Compliance Statute Amendment 

Act: 

• changes to prime contractor obligations are already in 

effect; and 

• introduction of administrative penalties will come into 

force at a later date. 

3

Quebec Update: 

Recent Developments from La Belle Province 

Presented by Tania da Silva 

Asphalte Desjardins Inc. c. 

Commission des Normes du Travail, 

2013 QCCA 484 (Canlii) 

Facts: 

• Daniel Guay stared working for Asphalte Desjardins in 1994; 

• On February 15, 2008, he submitted a resignation letter announcing that 

he would leave his employment on March 7, 2008; 

• He provided the employer with 3 weeks’ notice to allow him to finalize 

certain files and brief his successor regarding ongoing projects; 

• After having tried unsuccessfully to convince Mr. Guay to stay with the 

company on February 18, 2008, the employer decided to put an immediate 

end to the employment; 

• On behalf of Mr. Guay, the Quebec Labour Standards Commission sought 

three weeks’ of termination pay pursuant to Section 82 of the Quebec Act 

Respecting Labour Standards, which was granted in first instance. 

1

Main points of the Court of Appeal’s decision: 

• Notice is for the benefit of the receiving party; 

• The advantage that the notice may grant to the giving party does 

not amount to a right; 

• The employer is therefore free to decline the notice of resignation, 

and is not required to compensate the resigning employee as a 

result of such waiver; 

• The employer’s waiver of the right to notice does not amount to a 

termination of the employee, and therefore Section 82 of the 

Quebec Act Respecting Labour Standards does not apply. 

• Transforce inc. c. Baillargeon, 2012 

QCCA 1495 (Canlii) 

Facts: 

• In 2006, Mr. Baillargeon was one of two top executives of a pharmaceutical 

company. He became aware that the management structure at the said company 

would be changing and that there was a chance that he would lose his job; 

• In July 2006, he was approached by a head hunter to possibly fill the position of 

executive vice-president at Transforce; 

• He was advised in August 2006 by his employer that due to the change in the 

management structure, his employment would be terminated at the end of 

December 2006; 

• During that time, his employer received an anonymous e-mail alleging that Mr. 

Baillargeon has misappropriated funds and engaged in other reprehensible 

behaviour; 

• The employer held an investigation concerning the allegations and suspended Mr. 

Baillargeon from his duties during the investigation; 

2

Facts (continued): 

• The investigations ended on September 10, 2006 and Mr. Baillargeon was 

exonerated of any wrongdoing; 

• Nonetheless, he decided not to return to work and told his employer that he was 

leaving the company. They negotiated a generous $450,000 termination 

agreement; 

• During the investigation, Mr. Baillargeon was in interviews and negotiations with 

Transforce, but did not mention the allegations made against him or the 

investigation that was taking place; 

• Transforce and Mr. Baillargeon entered into an employment contract on September 

15, 2006 and he began work on October 10, 2006; 

• On November 1, 2006, Transforce received an anonymous e-mail advising them of 

the allegations of misappropriation made against Mr. Baillargeon at his previous 

employment; 

Facts (continued): 

• Transforce contacted the former employer to obtain information about these 

allegations and was told that an internal investigation had cleared Mr. Baillargeon; 

• Nonetheless, Transforce decided to terminate Mr. Baillargeon on December 1, 

2006, arguing that he should have disclosed the internal investigation for 

misappropriation during the hiring process, and that the fact that he concealed it 

was unacceptable. It maintained that it would not have hired Mr. Baillargeon had it 

known about the investigation, regardless of the outcome. 

• Mr. Baillargeon sued for $650,000 in lieu of 11 months’ notice and benefits; 

• Transforce countersued for $35,000 for trouble and inconvenience and $100,000 for 

the head hunter’s fees; 

• The Superior Court dismissed the counter-claim and awarded Mr. Baillargeon 

$485,187.47 in lieu of notice of termination, which included salary and certain 

benefits. 


• The Charter of Human Rights and Freedoms and the Civil Code of Quebec 

guarantee every person’s right to inviolability, dignity, honour and reputation, and as 

such, a job applicant cannot be compelled to disclose slanderous comments about 

himself; 

• Mr. Baillargeon had no obligation to disclose to Transforce that he was the subject 

of an internal investigation; 

• Transforce could not unilaterally terminate the employment contract without notice 

and without indemnity, since it did not have just cause; 

• The Court found that the amount awarded to Mr. Baillargeon in first instance was 

reasonable in the circumstances; 

• The Court used its discretion pursuant to Article 254 of the Code of Civil Procedure 

to condemn Transforce to pay Mr. Baillargeon an additional $10,000 in damages du 

to its reiteration of its counter-claim, which it considered abusive. 

3

• Sobeys Quebec inc. v. Commission 

de la santé et de la sécurité du 

travail, 2012 QCCA 1329 (Canlii) 

• Sobeys contracted out the maintenance and repair of its refrigeration units to T.R. 

Refrigeration Inc. at a supermarket in Quebec City; 

• Two employees of T.R. Refrigeration were performing inspection work at the supermarket 

and climbed onto the roof of the bakery’s freezer unit; 

• One of the workers suffered serious injuries after falling through the roof tiles. 

• An inspector from the Commission de la santé et sécurité au travail (CSST) examined the 

premises, prescribed corrective measures and served a Statement of Offense on Sobeys; 

• The Court of Quebec found Sobeys guilty of the offence of having an establishment under 

its authority which was not equipped and laid out as to ensure the protection of the worker 

(contrary to Section 51(1) Act Respecting Occupational Health and Safety) and imposed 

a fine of $500; 

• The Superior Court of Quebec dismissed Sobey’s appeal, who then appeal to the Court of 

Appeal of Quebec. 


• Section 51(1) of the L.s.s.t. must be interpreted in a large and liberal 

manner, favourable to the protection of workers as a whole; 

“Every employer must take the necessary measures to protect the health and ensure the safety 

and physical well-being of his worker. He must, in particular: (1) see that the establishments 

under his authority are so equipped and laid out as to ensure the protection of the worker;” 

• The Court must interpret the provisions of a law in their global context, in a 

manner that best harmonizes the provision with the spirit of the law, its 

objective, and the legislator’s intention; 

4


• A strict interpretation would be contrary to the primary purpose of the Act, 

which is the elimination, at the source, of dangers to the health, safety and 

physical well-being of workers; 

• If no obligation was imposed on Sobeys, the dangerous situation could 

persist and another worker could suffer an accident, which would be 

contrary to the Act’s objective; 

• It was therefore Sobey’s responsibility to ensure that its establishment was 

equipped and laid out as to ensure the protection of workers, including the 

workers of a third party; 

• The Appeal was dismissed and the decisions of the lower Courts 

confirmed. 

5

Federal and Territories Update: 

Recent Federal Developments and 

Updates from the Northwest Territories and Nunavut 

Presented by Cynthia Levy 

AMENDMENTS TO CANADA LABOUR CODE 

Canada Labour Code: 

Amendments under Jobs and Growth Act 2012 

• amendments not yet in force 

• unpaid vacation pay must be issued within 30 days of termination of 

employment 

• holiday pay now calculated as 1/20 of non-overtime wages earned over the 

4 weeks preceding the week in which the holiday occurs 

• no entitlement to holiday pay during first 30 days of employment 

• complaints related to unpaid wages must be brought within 6 months 

• order for payment of wages generally limited to 12 month period preceding 

date of complaint, termination of employment or initiation of investigation 

1

Canada Labour Code: 

Amendments under Helping Families in Need Act 

• some provisions already in force 

• new job-protected leaves for federally regulated employees 

• up to 52 weeks of unpaid leave if child critically ill or disappears as 

probable result of crime 

• up to 104 weeks of unpaid leave if child has been killed as 

probable result of crime 

• employee entitled to apply for Employment Insurance benefits; 

duration of benefits vary and caps may apply 

UPDATE FROM 

NORTHWEST TERRITORIES AND NUNAVUT 

Legislative Framework 

• Northwest Territories and Nunavut are legal and political entities created by federal 

legislation 

• legislative assemblies have law-making powers similar to provinces but in narrower 

sphere of activity 

• operate as consensus governments without political parties 

• members are elected to represent constituencies; elected members select speaker, 

premier and cabinet; remainder known as “regular members” 

• territorial legislation applies where powers devolved and legislation enacted 

• federal legislation applies otherwise 

2

Labour Relations 

• Northwest Territories and Nunavut do not have own labour relations 

legislation 

• Canada Labour Code applies to certification of unions and collective 

bargaining 

• City of Yellowknife v. Canada (Labour Relations Board) – Supreme Court 

of Canada decided that federal legislation applied to organization of 

municipal workplace 

• specific territorial statutes applies to public sector collective bargaining 

• most active union is Public Service Alliance of Canada 

Employment Standards 

• Northwest Territories: Employment Standards Act 

• Nunavut: Labour Standards Act 

• statutes are similar but not identical due to significant amendments 

in both territories since division 

• provisions are comprehensive and generous to employees 

Workers Compensation 

• Workers’ Compensation Act 

• new legislation enacted in 2008 for both territories 

• Workers’ Safety and Compensation Commission of the Northwest 

Territories and Nunavut serves both territories 

• recent amendments to legislation and regulations include 

presumptions in favour of firefighters and more comprehensive 

safety regulations 

3

Human Rights 

• Northwest Territories: Human Rights Act 

• Human Rights Commission works to prevent discrimination 

• Office of the Director of Human Rights processes and attempts to 

resolve complaints 

• Human Rights Adjudication Panel conducts hearing into complaints 

• Nunavut: Human Rights Act 

• direct access model 

• staff provide public information and assist parties in completing 

notifications 

• Human Rights Tribunal reviews all complaints and makes all decisions 

4

Ontario Update: 

Recent Developments from the Centre of the Universe 

Presented by Karen Bock 

NEWS FROM THE LEGISLATIVE FRONT 

Mandatory Health and Safety Training Requirements 

• on April 1, 2012, Bill 160 transferred responsibility for prevention of 

workplace injuries and illnesses from the WSIB to the Ministry of 

Labour 

• one of the first new prevention initiatives announced is a mandatory 

training requirement 

• A regulation requiring training is expected to be filed by July 1, 2013 

• By January 1, 2014, Ontario employers will be required to ensure 

that all workers and supervisors covered by the Occupational 

Health and Safety Act receive mandatory health and safety 

awareness training 

1

Human Rights Code 

• New grounds of prohibited discrimination: 

• gender identity 

• gender expression 

Employment Standards Act, 2000 

• Bill 21 was (re)introduced on March 5, 2013 

• If passed, Bill 21 will create 3 new unpaid leaves of absence under 

the ESA: 

1. Family Caregiver Leave (up to 8 weeks) 

2. Critically-ill Child Care Leave (up to 37 weeks) 

3. Crime-Related Child Death and Disappearance Leave (up 

to 104 weeks). 

EMPLOYMENT CONTRACTS: 

Incentives for Getting it Right and the 

Costs of Getting it Wrong! 

2

Unenforceable Termination Provision 

• Wright v. The Young and Rubicam Group (2012) 

• Termination provision in employment contract did not expressly 

comply with requirement in ESA to continue benefits through 

the statutory notice period 

• Also, provision had the potential to provide for less than the 

minimum notice period and severance pay entitlements in the 

future 

• Ontario Superior Court of Justice struck down entire termination 

provision and employee got 12 months’ pay instead of 13 

weeks’ pay 

But We Have a Release… 

• Rubin v. Home Depot (2012) 

• Rubin had almost 20 years of service and was 63 years old when he was 

terminated. 

• Termination letter offered him only a few more days of pay than his ESA 

entitlements 

• Release gave him 1 week to sign back, but Rubin signed it at the termination 

meeting 

• Ontario Superior Court of Justice found the Release “unconscionable”: (i) it was 

grossly unfair, (ii) Rubin lacked independent legal advice, (iii) there was an 

imbalance of bargaining power, and (iv) Home Depot knowingly took advantage 

of Rubin’s vulnerability 

• Instead of 28 weeks’ pay, Rubin was awarded 1 year 

No Mitigation (Expressly) Required! 

• Bowes v. Goss Power (2012) 

• Bowes’ employment contract provided for a set amount (6 months’ 

pay) to be paid to him in lieu of notice on termination without cause 

• Bowes was terminated without cause; termination letter said that he 

was required to seek alternative employment 

• Bowes found a new job within 2 weeks 

• Goss Power paid him only 3 weeks’ ESA termination pay 

• Ontario Superior Court of Justice: Bowes mitigated, so that’s okay! 

• Ontario Court of Appeal: Not so fast. Where an employment 

agreement fixes the period of notice and does not expressly discount 

for mitigation, employer cannot discount 

3

SCARY CASES 

Boucher v. Walmart and Jason Pinnock (2012) 

• Boucher’s manager subjected her to demeaning behaviour for months, 

including swearing at her, calling her an idiot, and making her count wood 

pallets in front of other employees to prove she could count. 

• Boucher sued for constructive dismissal, discrimination, intentional 

infliction of mental suffering and assault 

• After deliberating for less than 2 hours, the Windsor jury awarded Boucher 

$1.49 million. Walmart was ordered to pay $1 million in punitive damages, 

the largest such award in a Canadian employment dismissal case (the 

manager, Pinnock, was also ordered to pay $150,000 in punitive damages) 

• Walmart has appealed 

HRTO Orders Reinstatement 10 Years after Termination 

Fair v. Hamilton-Wentworth District School Board (2013) 

• HRTO expressly rejected employer’s position that it would be unfair to 

order reinstatement after 10 years: employers should be aware that 

“reinstatement is always an option in human rights cases 

• Remedies also included: 

• Compensation for lost wages and medical/dental expenses incurred since 

termination (more than $400,000) 

• Compensation for negative tax implications resulting from receiving back pay 

as lump sum in a single year 

• Making all employer pension contributions for 10 years 

• Remitting retroactive CPP payments 

• $30,000 for injury to dignity, feelings and self-respect 

4

Gone But Not Forgotten 

Navigating the Legal Landscape of 

Statutory Leaves of Absence 

Presented by Mike Richards and Leslie Frattolin 

“I’m worried we might have exceeded our 

annual leave entitlement….” 

FREQUENT QUESTIONS WHEN DEALING WITH 

EMPLOYEES ON STATUTORY 

LEAVES OF ABSENCE 

1

We have an employee whose employment contract 

provides for a probationary period. How does the length of 

the leave of absence factor into calculating the length of the 

probationary period 

• Ali’s employment contract includes a 3 month 

probationary period during which time Ali is not eligible 

for benefits. 

We have an employee who has told us she doesn’t intend 

to pay her share of benefit plan contributions. What do we 

do 

• Marta advises Company ABC that she does not intend to 

continue paying her share of benefit plan contributions 

during her pregnancy / parental leave 

We have an employee who told us nothing about whether 

he intends to pay his share of benefit plan contributions. 

What do we do 

• Frank fails to advise Company ABC whether he intends to 

pay or not pay his share of benefit plan contributions 

• Frank stops paying his share of benefit plan contributions 

shortly after he begins his parental leave of absence 

2

We have an employee subject to a “use it or lose 

it” vacation policy. Do they lose their vacation 

• Christina: 

• Contract of employment provides for 3 weeks’ vacation 

• In accordance with ESA, her contract of employment 

provides that 1 week of her vacation must be used or paid 

out by the end of the calendar year 

• Christina is on a combined pregnancy / parental leave of 

absence from July 1, 2012 until July 1, 2013 and she did 

not use her extra 1 week of vacation before December 

31, 2012. 

We have an employee that earned commissions. 

When do we pay it 

The employee wants us to defer payment of the 

commissions until after the end of the leave. Can 

we 

• Will this affect entitlement to EI 

FREQUENT QUESTIONS WHEN DEALING WITH 

EMPLOYEES RETURNING FROM STATUTORY 

LEAVES OF ABSENCE 

3

We KNOW that we don’t want this employee returning to 

work after the leave. When can we make this decision 

• There may be a reorganization 3 months into an 

employee’s leave that eliminates their position, what if 

the employer subsequently buys a business 7 months 

into the employee’s leave 

A manager just informed me that Judy’s temporary 

replacement is better. We don’t have to give Judy 

her job back, right 

• Judy is on a combined pregnancy and parental leave 

• Nancy is hired on a fixed term employment agreement to 

replace Judy during the leave 

• Nancy is amazing! Productive! Profitable! Proficient! 

So, before her leave, Alanis agreed to return to 

work on a part-time basis. She now says she 

wants to return full-time. Can’t we hold her to her 

agreement 

• Original position = executive position = full time position 

4

Mike’s original position no longer exists. BUT 

we’ve maintained his salary, benefits and seniority, 

that’s a comparable position….right 

• Location of Job 

• Hours of Work 

• Compensation 

• Quality of Working Environment 

• Degree of Responsibility 

• Job Security and Possibility of Advancement 

• Prestige 

We’ve downsized. There is no original position. 

There is no comparable position. Am I safe to 

terminate 

• Legitimate downsizing or restructuring 

• Is only 1 employee affected by the downsizing or 

restructuring 

• Is that 1 employee returning from a leave of absence 

TIPS! 

• Clarify the dates of the leave of absence in writing 

• Inform the employee about their entitlement to benefits 

and explain the consequences of failing to comply with 

their obligations 

• Inform the employee about their vacation entitlements 

5

TIPS! 

• Have the temporary employee sign a fixed term offer of 

employment and limit entitlements upon termination 

• Communicate!! 

• expected return to work 

• position to which the employee will return 

THANK YOU! 

6


GONE BUT NOT FORGOTTEN: NAVIGATING THE LEGAL LANDSCAPE 

OF STATUTORY LEAVES OF ABSENCE 

By Leslie A. Frattolin and Michael S. Richards 1 

I. INTRODUCTION 

There are several protected leaves of absence contemplated by employment standards legislation 

in the various provinces and territories throughout Canada and in the federal jurisdiction. Both 

large and small businesses are challenged by requests for leaves of absence, how to deal with 

employees on long and short leaves and what to do when they return. 

Human resource professionals are generally well aware of the protected leaves of absence that are 

provided for by employment standards legislation, including pregnancy / maternity leaves of 

absence, parental leaves of absence, and personal emergency / sick / family medical leaves of 

absence. However, there are frequently issues that arise with respect to an employee’s 

entitlements during a protected leave of absence as well as their entitlements upon the conclusion 

of that leave of absence. 

This paper will provide an overview of who is entitled to pregnancy / maternity, parental and 

personal emergency / sick / family medical leaves of absence. It will also address an employer’s 

obligations both during a protected leave of absence and following the conclusion of the protected 

leave of absence. 

In exploring these requirements and obligations, we will consider Company ABC, which is a 

hypothetical company in Ontario subject to the Ontario Employment Standards Act, 2000 and has, 

among others, the following three employees: 

1 The authors wish to thank Pooja Punjabi, articling student for her assistance in researching and drafting this paper. 



 

Fred, who is employed by Company ABC as a sales agent. Fred recently informed 

Company ABC that he and his partner have adopted a baby and he intends to take some 

time off to be at home with the new baby. 

 

Marta, who is employed by Company ABC as an administrative assistant is pregnant and 

will need time off. 

 

Christina, who is employed by Company ABC as an Executive Director. Christina’s son is ill 

and she can’t find a babysitter. 

We will discuss what Company ABC is obligated to do once Fred, Marta and Christina are on their 

leaves of absence: Will Fred, Marta and Christina continue to accrue service Are they entitled to 

vacation time Are they entitled to benefits 

We will also look at Company ABC’s obligations when Fred, Marta and Christina are ready to return 

to work, in particular: What if there is no position to return to due to a downsizing or if their 

temporary replacement turns out to be a more productive and efficient employee 

This paper will provide you with an understanding of the requirements and obligations that an 

employer has to those employees on protected leaves of absence in order to assist you with 

navigating the complex legal landscape of protected leaves of absence. 

II. 

PREGNANCY / MATERNITY & PARENTAL LEAVE 

All jurisdictions in Canada require employers to provide employees with an unpaid pregnancy 2 

leave of absence. 

With the exception of Alberta, the duration of the unpaid pregnancy leave of 

absence is either seventeen or eighteen weeks. 

2 In some jurisdictions, this is called maternity leave. For the purpose of this paper, we use the term pregnancy leave to refer to either 

pregnancy leave or maternity leave granted by employment standards legislation. 



Similarly, all jurisdictions in Canada require employers to provide employees with an unpaid 

parental leave of absence. Most jurisdictions’ parental leaves of absence range from thirty-five to 

thirty-seven weeks. However, in Quebec employers are required to provide employees with up to 

fifty-two weeks of parental leave. In Quebec, employers are also required to provide male 

employees with up to five days paternity leave. 

The employment standards legislation of each province and territory as well as the federal 

jurisdiction stipulates what, if any, are the eligibility requirements for commencing a pregnancy 

and/or parental leave. Similarly, the date on which a pregnancy and/or a parental leave of absence 

may begin is also stipulated, as well as requirements for the length of notice an employee must 

give prior to commencing a pregnancy and/or a parental leave. 

Attached as Schedule “A” to this paper is a chart summarizing the length and various qualifications 

required to take a pregnancy and/or parental leave for each jurisdiction. 

III. 

EMERGENCY, SICK OR FAMILY MEDICAL LEAVE OF ABSENCE 

Most jurisdictions in Canada provide employees with an unpaid leave of absence for personal 

emergency, sick, and/or family medical leave. The duration of these leaves of absence vary 

between the jurisdictions and often overlap with other protected leaves of absence. 

In addition, the employment standards legislation of each province and territory as well as the 

federal jurisdiction stipulates what, if any, are the eligibility requirements for commencing a 

personal emergency/ sick/family medical leave of absence as well as what information an employer 

can require an employee to produce to substantiate the leave of absence. 

Attached as Schedule “B” to this paper is a chart summarizing the types of personal emergency / 

sick and/or family medical leaves for each jurisdiction. 

IV. 

WHAT IS AN EMPLOYER REQUIRED TO DO DURING A PROTECTED LEAVE 



Let’s assume that Fred, Marta and Christina work in Ontario and that each qualified for a protected 

leave of absence under the Ontario Employment Standards Act, 2000. 

Fred is requesting a 

parental leave of absence, Marta is requesting a pregnancy and parental leave of absence and 

Christina is requesting her personal emergency days. 

The protected leaves of absence provided to Fred, Marta and Christina do not require that they be 

paid while they are off work. However, there is nothing in employment standards legislation which 

prohibits an employer from providing a greater right or benefit than that required under employment 

standards legislation. 

A greater right or benefit is an entitlement that is greater than the minimum 

entitlement provided for under employment standards legislation. For example, an employer will 

often provide a greater right or benefit to an employee in the form of vacation. An employee may 

receive three weeks’ vacation per year which is a greater benefit than the two weeks’ vacation per 

year that is provided for under the Ontario Employment Standards Act, 2000. 

As a result, employers may, and often do, provide for paid sick days or “top-up” for pregnancy 

leaves and/or parental leaves. 

Employers should be cautious in interpreting whether a benefit is 

actually a greater right or benefit within the meaning of employment standards legislation. 

Otherwise, an employer may be subject to dual obligations. 

In addition, eligible employees can apply for income support benefits under the federal Employment 

Insurance program. 

Each jurisdiction provides various protections to employees during their leaves of absence 

including protections with respect to: 

 

length of service, length of employment and seniority; 

 

benefit plans; and 

 

vacation entitlements. 



(i) 

Length of Service 

In Ontario, Fred, Marta and Christina’s leaves of absence will be included in their length of service 

when calculating any of the following for the purposes of determining their rights under the Ontario 

Employment Standards Act, 2000, a company policy or under an employment contract: 

 

the length of their employment, whether or not it is required to be “active” employment; 

 

the length of their service, whether or not that service is “active”; and 

 

their seniority. 

However, under the Ontario Employment Standards Act, 2000, the length of their leave of absence 

will not be included in determining whether a probationary period under any employment contract is 

complete. 

Often, an employment contract will specify that an employee is not entitled to 

participate in benefit plans until the employee has completed the probationary period as set out in 

the employment contract. 

Take for example, Christina. Christina’s employment contract includes a three month probationary 

period during which time Christina is not eligible for benefits. Christina has been employed with 

Company ABC for two months before she is required to take her ten days personal emergency 

leave in order to care for her son. The ten days personal emergency leave of absence will not be 

included in determining whether she has completed her three month probationary period under her 

employment contract for the purpose of calculating her entitlement to benefits. Once she returns to 

work following her personal emergency leave of absence, the ten days personal emergency leave 

will not count against the completion of her three month probationary period under her employment 

contract. 

However, the length of an employee’s leave of absence will be included in determining an 

employee’s entitlement to notice of termination or pay in lieu thereof. Therefore, the duration of an 



employee’s leave of absence will be included in order to determine the amount of notice of 

termination or pay in lieu thereof an employee is entitled to under the Ontario Employment 

Standards Act, 2000. 

(ii) 

Benefit Plans 

Employees in Ontario are also entitled to continue to participate in certain benefit plans during a 

leave of absence that are specifically identified by the Ontario Employment Standards Act, 2000, 

including: 

 

pension plans; 

 

life insurance plans; 

 

accidental death plans; 

 

extended health plans; and 

 

dental plans; 

(collectively, the “Benefit Plans”). 

Under the Ontario Employment Standards Act, 2000, short-term disability and long-term disability 

plans are not specifically identified as a benefit plan that employees on a protected leave of 

absence are entitled to continue to participate in. However, the Regulations to the Ontario 

Employment Standards Act, 2000, establish that an employee on a protected leave of absence is 

entitled to continue to participate in a benefit plan other than those specifically identified by the 

Ontario Employment Standards Act, 2000, unless those benefit plans prohibit an employee from 

participating in the benefit plan while on any leave of absence and not just those protected leaves 

of absence under employment standards legislation. 

Therefore, only where a short-term disability 

or long-term disability plan denies access to short-term disability and long-term disability benefits 



during non-statutory leaves of absence can an employee be denied access to short-term disability 

and long-term disability benefits while on a statutory leave of absence. 

Under the Ontario Employment Standards Act, 2000, employers are also required to continue to 

make all required employer contributions to the Benefit Plans throughout the duration of a 

protected leave of absence and an employee has a corresponding obligation to continue to make 

his or her share of the contributions to the Benefit Plans. This is the case even where an 

employee’s share of the contributions to the Benefit Plans are a percentage of the employee’s 

wages. In that case, the amount of the employee’s contribution would be determined with reference 

to the wages that the employee received prior to going on the leave. 

The requirement that an employer continue to make contributions to benefit plans is not absolute. 

An employee may refuse to pay their own contributions to the benefit plans for the duration of the 

protected leave of absence. In this case, an employee is generally required to inform an employer 

of his or her decision not to make their own contributions to the Benefit Plans at the same time that 

the employee provides notice of his or her leave of absence to the employer. The following 

examples summarize what an employer is required to do where an employee elects not to pay their 

Benefit Plan contributions. 

Take for example, Marta. At the same time that Marta gives notice of her intention to take 

pregnancy and parental leave, Marta advises Company ABC that she does not intend to continue 

paying her share of the Benefit Plan contributions. What is Company ABC obligated to do 

 

Because Marta has advised Company ABC that she does not intend to continue paying her 

share of the Benefit Plan contributions, Company ABC is not required to pay its share of 

Marta’s benefit contributions during her leave of absence, and Marta’s benefits will lapse for 

that period. 



 

To be prudent, Company ABC should advise Marta that the consequences of her failure to 

continue paying her share of the Benefit Plan contributions is that her benefits will lapse for 

the duration of her leave of absence. 

Fred’s situation is quite a bit different from Marta’s. Fred did not advise Company ABC at all about 

whether he wished to continue to pay his share of the Benefit Plan contributions in order to 

continue his Benefit Plan coverage during his parental leave. As a result, Company ABC is 

obligated to continue to pay Company ABC’s share of the Benefit Plan contributions during the 

parental leave. It turns out that Fred cannot pay his share of the Benefit Plan contributions. What is 

Company ABC obligated to do 

 

Company ABC can proceed in one of two ways: 

o First, Company ABC can pay both its and Fred’s share of the benefit plan 

contributions for the entire duration of the parental leave of absence. With Fred’s 

written authorization, Company ABC can deduct Fred’s share of the contributions 

from his wages after Fred returns to work. 

o Second, with respect to non-pension benefits, Company ABC can pay both its and 

Fred’s share of the benefit plan contributions, but for a pro-rated portion of the leave 

of absence. So, if Company ABC’s share of the benefit plan contribution is 50%, 

Company ABC would pay 100% of the benefit plan contributions for 50% of the 

parental leave and coverage would lapse for the remaining 50% of the parental 

leave. With respect to pension benefits, Company ABC would pay only its 

contribution for the entire duration of the leave of absence and Fred would have the 

right to make up his share of the contribution later on. 

(iii) 

Vacation Time Entitlements 



In Ontario, an employee on a protected leave of absence is entitled to take their employment 

standards entitlement to vacation time immediately upon the expiration of the leave of absence if 

the employee’s entitlement to vacation must be taken on a day where the employee is on a leave of 

absence. 

This requirement is best illustrated by using Fred as an example. Fred is entitled to the minimum 

standard of two weeks’ vacation time under the Ontario Employment Standards Act, 2000 and is 

required to take his vacation within ten months of the year in which it is earned. Fred was to use his 

vacation from 2011 by October 30, 2012. 

Fred did not take his vacation before beginning his 

parental leave of absence and was on his parental leave of absence from June 1, 2012 until 

January 31, 2013. As a result, Fred is entitled to take his two weeks of vacation from 2011 

immediately following the expiration of his parental leave of absence on January 31, 2013. 

In Ontario, where an employee would otherwise have to forfeit vacation due to being on a protected 

leave of absence, the Employment Standards Act, 2000 gives an employee the right to defer taking 

vacation until the leave of absence has expired, or if the employer and the employee agree, on a 

later date. 

This requirement is best illustrated by using Marta as an example. Under Marta’s contract of 

employment, she is entitled to three weeks paid vacation time per year. With respect to the one 

week of vacation that is over and above the Ontario Employment Standards Act, 2000 minimum 

standards, Marta’s employment contract has a “use it or lose it” clause that stipulates the extra 

week of vacation must be used by December 31 of each yea or it is paid out. Marta is on her 

combined pregnancy and parental leave from July 1, 2012 until July 1, 2013. Because Marta did 

not take the extra week of vacation before she began her leave of absence, she has the option of 

taking that extra week when her leave ends on July 1, 2013 or at a later date if she and Company 

ABC agree. 



(iv) 

Vacation Pay Entitlements 

In Ontario, whether an employee is entitled to vacation pay during a protected leave of absence will 

depend on how an employee earns vacation pay. If an employee earns vacation pay as a 

percentage of wages, an employee who is not earning wages because the employee is on a 

protected leave of absence, will not have earned any vacation pay during their leave of absence. 

Take for example, Marta. 

Marta’s contract of employment provides that she is entitled to 

two weeks of vacation after each year of employment and vacation pay at 4% of gross wages 

earned in that year. Marta is on a combined pregnancy and parental leave for all 52 weeks of the 

year. Marta would be entitled to two weeks’ vacation time at the end of the year, but her vacation 

pay, calculated at 4% of the wages earned in the year, would be zero. 

In Ontario, if an employee earns vacation pay through service, an employee will receive vacation 

pay for the time that the employee is providing service to the employer, including while the 

employee is on a protected leave of absence. 

For example, if Marta’s contract of employment provided for two weeks of paid vacation per 

calendar year, she would be entitled to two weeks paid vacation at the end of her year of leave. 

VI. 

WHAT ARE AN EMPLOYER’S OBLIGATIONS ONCE THE LEAVE OF ABSENCE 

EXPIRES 

(i) 

Reinstatement Obligation 

In every jurisdiction in Canada, employers are obligated to place employees returning from 

protected leaves of absence in the position the employee occupied prior to commencing the leave 

of absence, if that position is available. In determining what position the employee most recently 

held, all of the terms and conditions of the employee’s previous position must be examined, 

including the location of job, the hours of work and the degree of responsibility. 



The location of the job is extremely important. 

It is not sufficient to reinstate an employee in the 

same position at another location, even where that other location is in the same city. An employer 

has been found to violate the reinstatement obligations under the Ontario Employment Standards 

Act, 2000 where an employee was reinstated to the same job he or she held before his or her leave 

but at a different location. 

What happens where a temporary employee has been hired to perform the duties and 

responsibilities of an employee on a protected leave of absence and the employer prefers the 

temporary employee’s performance, productivity and/or profitability Take for example, Fred. Fred 

has been on a parental leave of absence and Nancy was hired by Company ABC to perform the 

duties and responsibilities while Fred was on his parental leave of absence. Nancy is excelling at 

her job. 

Both productivity and profits are double what they were while Fred was working. Can 

Company ABC offer Fred another, comparable job 

 

The answer is no. 

 

Although Nancy was completing Fred’s job more productively and profitably, that is not a 

valid reason for not reinstating Frank in the position he previously held. 

If the job is still 

there, if the same work is being done, Frank has the right to be reinstated to perform the 

same work. 

What happens when an employee recants on an agreement to return to work in a different position 

or on different terms and conditions than the pre-leave position 

Often, before commencing a 

leave of absence, an employee will approach an employer about returning to work on a part-time 

basis or under some other terms and conditions, and will reach an agreement with the employer 

about returning to work on that basis. 

What happens if an employee later recants on such an 

agreement 



This is what happened with Christina. Christina and Company ABC worked out an agreement 

where she would return to work in a different position that would allow for part-time hours. However, 

immediately before Christina returned from her leave of absence, she advised Company ABC that 

she no longer wanted to return to work on a part-time basis and that she preferred the hours of her 

position before she commenced her leave of absence. What is Company ABC obligated to do 

 

Company ABC is obligated to offer Christina reinstatement to her previous position. The 

alternate arrangement that Christina and Company ABC worked out did not allow her to 

exercise her right to reinstatement to her previous position. 

 

Christina and Company ABC are not allowed to contract out of the Ontario Employment 

Standards Act, 2000 by abdicating Christina’s right to reinstatement to her previous position. 

(ii) 

Reinstatement to a Comparable Position 

If the position that the employee occupied prior to commencing the leave of absence does not 

exist, an employer is required to provide the returning employee with a comparable position. It is 

not sufficient to merely offer an employee a position with the same wages and benefits. Rather, all 

of the aspects of the “comparable position” must be reviewed. 

A decision by an Ontario 

Employment Standards Officer in Re American Can Canada originally set out the factors to 

consider in determining whether a position is “comparable”. 

The Ontario Ministry of Labour has 

adopted this approach and will consider the factors set out below: 

o Location of Job: 

A. If the “comparable position” exists in another city or town, the work 

may not be comparable. 



B. Where commuting would be impossible or would involve a substantial 

increase in travel time, the work is unlikely to be comparable especially for an 

employee that does not have a driver’s license. 

o Hours of Work: 

C. Including time of the day and the length of the working day. 

D. Any shift or weekend work. 

o Quality of Working Environment: 

E. A complete review of the quality of working environment including: 

o office v. warehouse; 

o store v. factory; 

o degree of luxury; 

o overall atmosphere; 

o privacy v. group surroundings; and 

o comfortable v. uncomfortable conditions. 

o Degree of Responsibility: 

F. A complete review of the degree of responsibility including: 

o Degree of independence and supervision; 

o Degree of initiative required; 

o Decision making authority; 

o Amount of clerical or secretarial functions; and 



o Job satisfaction. 

o Job Security and Possibility of Advancement: 

G. A complete review of the likelihood of job security and advancement 

including: 

o the likelihood of the job continuing to exist; 

o the opportunity to progress from that job to a higher position; 

o the relationship of training and education of employee to the position; 

and 

o whether there will be the development of proper skills for 

advancement in each position. 

o Prestige and Perquisites: 

H. If relevant, whether the employee has their own office, name and title 

on organization chart, personal or position profile, business card, expense 

account, signing authority, social privileges, etc. 

The importance and weight given to each of the foregoing factors will depend on the particular facts 

in each situation. This is illustrated best by the example of Christina. Christina was employed by 

Company ABC in the position of Executive Director. In that position, she was a senior-level 

employee, who enjoyed an expense account, a corner office, the use of administrative staff, and 

was responsible for making many decisions regarding the direction of Company ABC. 

Following 

the expiration of her leave of absence, the position of Executive Director no longer existed and 

Company ABC placed her in a position which Company ABC claimed was a “comparable position” 

but which involved mainly clerical tasks. Christina incurred no loss in wages, benefits or seniority. 

Did Company ABC breach its reinstatement obligation 



 

The answer is very likely yes. Christina’s new position involved a marked decrease in the 

degree of responsibility, prestige and perquisites as well as a loss in job security despite the 

fact that her compensation package remained the same. 

The right to reinstatement following the expiration of a protected leave of absence is not absolute. 

There is no obligation on the employer to create a comparable position in circumstances where the 

employee would otherwise have been terminated for reasons completely unrelated to the leave. 

The following reasons do not constitute sufficient reasons to establish that an employee would 

otherwise have been terminated for reasons completely unrelated to the leave: 

 

where it was discovered during the leave of absence that the employee was in fact 

dispensable; 

 

where it was discovered that the operation or organization runs more smoothly without the 

employee; 

 

where it was discovered that the employer’s temporary replacement performs more 

satisfactorily; and 

 

the fact that the reinstatement at the termination of the leave is at an inconvenient or difficult 

point in the employer’s cycle of operations. 

However, if the reason for failure to reinstate an employee would have resulted in a termination 

even if the employee had not gone on a leave of absence, there is no violation of the reinstatement 

obligation. This is the case where an employee’s employment is terminated for wilful misconduct, 

disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer. 

If, during an employee’s protected leave of absence, it comes to the attention of the employer that 

the employee’s conduct amounts to wilful misconduct, disobedience or wilful neglect of duty that is 

not trivial and has not been condoned by the employer, the employer may terminate an employee 



during the employee’s protected leave of absence. It is not necessary to reinstate the employee 

and then proceed to terminate their employment. 

An employer is also not required to comply with the reinstatement obligation where an employer 

undergoes a reorganization or downsizing and the employee’s employment would have been 

terminated regardless of the employee being on a leave of absence, provided that a comparable 

position does not exist. 

Take for example, Marta. As we know, Marta is employed by Company ABC as an administrative 

assistant. While on her pregnancy and parental leave of absence, Company ABC downsizes its 

operations and eliminates all of its administrative functions. Approximately thirty-three employees 

have their employment terminated as a result of the downsizing, including Marta. 

There is no 

comparable position for Marta. Has Company ABC breached its obligation to reinstate Marta 

 

The answer is no. Where an employer undergoes a legitimate downsizing or restructuring of 

its business, there is no obligation to reinstate if the employee would have lost his or her job 

regardless of whether he or she had gone on leave, provided that there is no comparable 

position. 

In order for an employer to free itself from the reinstatement obligations, the reorganization or 

downsizing must be legitimate. It is more likely that an employer will be found not to have violated 

the reinstatement obligations where the reorganization or downsizing affects employees other than 

just the employee returning from the protected leave of absence and where there is evidence that 

the reorganization or downsizing was contemplated before the employee was expected to return 

from the protected leave of absence. 

An employer may still be susceptible to a claim for reprisal by an employee returning from a 

protected leave of absence if the employee asserts that his or her employment was terminated as a 



result of a downsizing or restructuring but that the employment of another employee, who was 

similarly situated to the employee returning from the protected leave of absence, was not. 

(ii) 

The Employee’s Rate of Pay Upon Reinstatement 

In most jurisdictions, employment standards legislation stipulates the rate of pay to which an 

employee is entitled upon reinstatement following the expiration of a leave of absence. In Ontario, 

an employer is required to pay a reinstated employee at a rate equal to the greater of the rate that 

the employee most recently earned with the employer or the rate that the employee would be 

earning had he or she worked throughout the leave of absence. 

Therefore, if an employee would otherwise have received an increase in wages but for the fact that 

the employee was on a protected leave of absence, the employee is entitled to that increase upon 

return to work. 

(iii) 

Protection From Reprisal 

The reinstatement obligation also protects against “sham reinstatement”. 

In other words, an 

employer is not able to “get around” the reinstatement obligations by reinstating an employee only 

to terminate their employment shortly thereafter for reasons that do not amount to wilful 

misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by 

the employer. 

In Ontario, there is no hard and fast rule about how long an employee needs to 

remain employed following the return to work from a protected leave of absence before an 

employer can “safely” terminate the employee’s employment. 

Further protections against “sham reinstatement” are offered under the reprisal provisions of most 

jurisdictions’ employment standards legislation. In general, the reprisal provisions prohibit 

employers from dismissing or otherwise penalizing an employee because an employee, among 



other things, takes a protected leave of absence. Dismissing or otherwise penalizing an employee 

can take many forms such as: 

 

refusing to provide an employee with a promotion; 

 

refusing to provide an employee with a wage increase; 

 

providing an employee with an unfavourable performance review; 

 

terminating an employee’s employment; 

 

disciplining an employee; 

 

providing an employee with a reduction of hours; 

 

providing an employee with a pay cut; or 

 

withholding opportunities for an employee to work overtime; 

because an employee decided to take a protected leave of absence. An employee does not need 

to demonstrate that an employer disciplined or otherwise penalized an employee for the sole 

reason that the employee exercised or intended to exercise their right to a protected leave of 

absence. Rather, the “taint theory” is often used so that an employee need only establish that the 

employee exercising their right or intending to exercise their right to a protected leave of absence 

was a consideration in the employer’s discipline or otherwise penalizing conduct. 

There are significant consequences to an employer should an employer commit a reprisal against 

an employee for exercising their right or intending to exercise their right to a protected leave of 

absence. 

An employment standards officer can order that an employee be reinstated if their 

employment was terminated and the employer is found to have committed a reprisal. The Ontario 

Ministry of Labour Employment Standards Program has made it clear that where an employer is 



found to have committed a reprisal against an employee, reinstatement should be the first remedy 

considered. 

Where an employer has committed a reprisal against an employee, an employee may also be 

entitled to compensation as damages for that reprisal. For instance, an employee may be entitled 

to compensation for direct earnings lost. Where an employee’s employment is terminated prior to 

the commencement of a protected leave of absence, the employee may be entitled to wages 

(including vacation pay) and any non-wage earnings the employee would have earned between the 

date of dismissal and the date that the employee’s leave of absence would have begun. 

With respect to an employee that is reinstated to his or her employment following an employer’s act 

of reprisal, the employee may also be entitled to pre-reinstatement compensation. 

An employee 

may be compensated for the earnings the employee would have earned between the date the 

employee’s employment was terminated and the date the employee was reinstated in employment. 

Lastly, an employee may also be entitled to compensation for: expenses incurred in seeking new 

employment, loss of the employee’s reasonable expectation of continued employment with the 

former employer, emotional pain and suffering, notice of termination and/or severance pay, and 

benefit plan entitlements. 

VII. 

MANAGING AN EMPLOYEE THROUGHOUT THE LEAVE OF ABSENCE 

Now that an employer’s obligations both during an employee’s protected leave of absence and 

following the conclusion of that leave of absence are clear, it is important to understand how to 

effectively manage the employee before, during and after the employee’s protected leave of 

absence. The following are helpful tips and suggestions for managing an employee throughout the 

protected leave of absence: 

1. Clarify the Exact Dates of the Leave of Absence With the Employee 



 

Employers should obtain from the employee the exact dates when the 

employee intends to take their leave of absence. 

A prudent employer will 

confirm both the date that the employee commences the leave and the 

expected return to work date in writing. 

2. Inform the Employee About Their Entitlement to Benefits During the Leave of 

Absence 

 

Employees should be advised that they are entitled to have their benefits 

under various Benefit Plans continued throughout the duration of the 

protected leave of absence. Employers should tell an employee that the 

employee will continue to be responsible for the employee’s share of the 

contributions to the Benefit Plans and that if the employee does not intend to 

continue their share of the contributions to the Benefit Plans, they must 

inform the employer in writing before they begin their leave of absence. The 

consequences of failing to do so should also be explained to the employee. 

3. Inform the Employee About Their Vacation Entitlements During the Leave of Absence 

 

Employees should be advised of their entitlements to vacation time and 

vacation pay, if any, depending on how the employee earns vacation time 

and vacation pay. This will avoid future misunderstandings about the 

employee’s vacation entitlements. 

4. Have the Temporary Employee Covering the Leave of Absence Sign an Offer of 

Employment 

 

Employers should have any temporary employee that is covering the leave of 

absence sign a fixed term offer of employment which clearly sets out the 

temporary employee’s entitlements upon termination of employment and 

provides for early termination of the employment contract. 



5. Communicate With The Employee Regarding Their Expected Return to Work Date 

 

Employers should contact employees well in advance of their expected return 

to work date in order to determine (i) the employee’s intentions regarding 

their return to work and (ii) whether the employee intends to use any vacation 

time the employee may have earned during the leave of absence following 

the expiration of the leave of absence. 

 

By communicating with the employee regarding their return to work well in 

advance of the employee’s expected return to work date, the employer will be 

able to address any concerns the employee may have with their return to 

work date, including child care concerns. 

6. Communicate With The Employee Regarding The Employee’s Intentions to Return to 

Work 

 

Employers should communicate with employees as necessary throughout the 

duration of the leave of absence, but especially before the employee’s 

expected return to work date as the employee may raise issues about their 

return to work including whether the employee wishes to return to work on a 

part-time basis or on reduced hours. 

7. Communicate with the Employee Regarding Any Comparable Position 

 

In the event the employee’s original position no longer exists, communicate 

with the employee the terms and conditions of the comparable position. 

The 

analysis about whether the employee’s original position exists or, if not, 

whether there is a comparable position for the employee should be 

conducted shortly before the end of the employee’s leave of absence. 



SCHEDULE A 

Jurisdiction Pregnancy Leave of Absence Parental Leave of Absence 

Length of Leave Various Qualifications Length of Leave Various Qualifications 

Alberta 15 weeks - Employed by Employer for at least 52 

consecutive weeks 

- 6 weeks’ notice 

37 weeks - Employed by Employer for at least 52 consecutive 

weeks 


British 

Columbia 

17 weeks - Employed by Employer 


37 weeks 

35 weeks if 

Pregnancy leave 

taken 

- Employed by Employer 


Manitoba 17 weeks - Employed by Employer or at least 7 

consecutive months 



months 


New 

Brunswick 


- 4 months’ notice of intention to take leave of 

absence and 2 weeks’ notice of 

commencement of leave of absence 

37 weeks 

35 weeks if 


taken 

- Employed by Employer 


Newfoundland 17 weeks - Employed for by Employer for at least 20 

consecutive weeks 



weeks 


Nova Scotia 17 weeks - Employed by Employer for at least 1 year 


52 weeks 

35 weeks if 


taken 

- Employed by Employer for at least 1 year 




Jurisdiction Pregnancy Leave of Absence Parental Leave of Absence 

Length of Leave Various Qualifications Length of Leave Various Qualifications 

Ontario 17 weeks - Employed by Employer for at least 13 weeks 

prior to estimated delivery date 


37 weeks 

35 weeks if 


taken 

- Employed by Employer for at least 13 weeks 


Prince Edward 

Island 

17 weeks - Employed by Employer for 20 weeks of the 52 

weeks prior to going on leave 


35 weeks 

52 weeks for 

adopted child 

- Employed by Employer for 20 weeks of the 52 weeks 

prior to going on leave 


Quebec 18 weeks - Employed by Employer 




Saskatchewan 18 weeks - Employed by Employer for 20 weeks in the 52 

week period before the leave begins 


37 weeks 

34 weeks if 

Pregnancy or 

adoption leave has 

been taken 

- Employed by Employer for 20 weeks in the 52 week 

period before the leave begins 


North West 

Territories 

17 weeks - Employed by Employer for at least 12 months 




Nunavut 17 weeks - Employed by Employer for at least 12 months 


Yukon 17 weeks - Employed by Employer for at least 12 months 


Federal 17 weeks - Employed by Employer for at least 6 months 










SCHEDULE B 

Federal Jurisdiction: 

 

Sick Leave 

o Yes! An employer shall not dismiss or lay off an employee solely because of absence 

due to illness or injury if (a) the employee has completed three consecutive months of 

continuous employment with the employer; (b) the period of absence does not 

exceed 12 weeks, and (c) the employee, if requested in writing by the employer within 

15 days after returning to work, furnishes a doctor’s certificate confirming that the 

absence was legitimate. 

 

Compassionate Care Leave 

o Yes! Up to eight unpaid weeks of compassionate care leave to care for or support a 

seriously ill family member. 

 

Family Responsibility/Emergency Leave 

o No! 

Alberta 

 

Sick Leave 

o No! 

 


o No! 

 


o No! 

British Columbia 

 

Sick Leave 

o No! 

 


o Yes! Up to eight weeks of unpaid leave to provide care and support to a family 

member. 

 


Error! Unknown document property name.


o Yes! Up to five days of unpaid leave during each employment year to meet 

responsibilities related to the care, health or education of a child in the employee’s 

care, or the care or health of any other member of the employee’s immediate family. 

Manitoba 

 

Sick Leave 

o No! 

 


o Yes! Employees who have been employed by the same employer for at least 30 

calendar days can take up to eight weeks’ unpaid compassionate care leave in order 

to provide care or support for a terminally ill family member. 

 


New Brunswick 

o Yes! Employees who have been employed for at least 30 days will be entitled to three 

days of unpaid leave each year to deal with personal illness or for their 

responsibilities in relation to a family member. 

 

Sick Leave 

o Yes! An employer must allow an employee who has been with the employer for more 

than 90 days up to five days’ unpaid leave of absence for sick leave every year, upon 

the request of the employee. 

 



seriously ill person with whom the employee has a close family relationship. 

 


o Yes! An employer must allow an employee up to three days’ unpaid leave of absence 

every year to meet responsibilities related to the health, care or education of a person 

in a close family relationship with the employee. 

Newfoundland and Labrador 

 

Sick Leave 

o Yes! Upon completion of 30 days of continuous service with the same employer, an 

employee is entitled to a period of seven days’ unpaid sick leave or family 

responsibility leave in one year. 

 

Compassionate Care Leave


o Yes! Employees who have been employed by the same employer for at least 30 days 

can take a leave of absence of up to eight weeks in order to provide care or support 

to a family member of the employee. 

 


o No! 

Northwest Territories 

 

Sick Leave 

o Yes! An employee who has been employed by the employer for at least 30 days is 

entitled to sick leave, without pay, for a period of at least five days during each 12 

month period. 

 




 


o No! 

Nova Scotia 

 

Sick Leave 

o Yes! An employee is entitled to a maximum of three days of unpaid sick leave each 

year. 

 


o Yes! Employees who have been employed by the same employer for at least three 

months can take up to eight weeks unpaid compassionate care leave in order to 

provide care or support to a family member of the employee. 

 


o Yes! Employees are entitled to take an unpaid leave of absence during a natural 

disaster or public health risk in order to attend to their own needs or those of a family 

member. The emergency leave continues for as long as the emergency exists and 

the emergency prevents the employee from performing the employee’s work duties. 

Nunavut 

 

Sick leave


o No! 

 




 


o No! 

Ontario 

 

Sick Leave 

o Covered under Family Responsibility/Emergency Leave. The ESA also provides for 

separate Organ Donor Leave (up to 13 weeks of unpaid leave). 

 


o Yes! Eight weeks of unpaid family medical leave to employees who are required to 

provide care or support to critically ill family members. 

 


o Yes! 2 types of emergency leave: 

Prince Edward Island 

• Emergency Leave: An employee who works for an employer who regularly 

employs at least 50 workers is entitled to up to 10 days unpaid leave each 

calendar year in the case of a personal illness, injury or medical emergency, 

and a death, illness, injury, medical emergency, or urgent matter concerning 

prescribed family members. 

 

Sick Leave 

o Yes! An employee who has worked for his or her employer continuously for six 

months or longer may be granted up to three days of unpaid sick leave in a 12-month 

period. 

 



seriously ill member of the employee’s immediate family. 

 


o Yes! An employee may be absent from work without pay for up to three days during a 

12-month period in order to meet responsibilities relating to the health or care of an 

immediate or extended family member.


Quebec 

 

Sick Leave 

o Yes! An employer is prohibited from dismissing, suspending, or transferring an 

employee on the ground that the employee was absent because of illness or accident 

for a period not exceeding 26 weeks in the preceding 12 months. 

 


o This is covered under Family Care Leave. 

 


Saskatchewan 

o Yes! The Labour Standards Act provides for a number of other leaves of absence 

collectively referred to as family or parental leave and absences. This includes 

paternity leave, adoption leave, parental leave, bereavement leave, special occasion 

leave and family care leave. 

• Family care leave: Employees may be absent for up to 10 days per year, 

without pay, to fulfill obligations relating to the care, health or education of the 

employee’s child or the child of the employee’s spouse or because of the state 

of health of the employee’s spouse, father, mother, father’s or mother’s 

spouse, brother, sister or one of the employee’s grandparents. 

• an employee may be absent without pay for a maximum of 12 weeks in a year 

where the employee is required to attend to the needs of his or her child, 

spouse, spouse’s child, father, mother, the spouse of his father or mother, 

brother, sister, or one of his or her grandparents who has a serious illness or 

has had a serious accident. 

• An extension to up to 104 weeks will be allowed in the case of the serious and 

potential mortal illness of an employee’s child, or where the employee must 

stay with his or her minor child who has suffered a serious bodily injury during 

or resulting directly from a criminal offence, or if the employee’s spouse or 

child dies during or as a direct result of a criminal offence. 

• An employee may also be absent for a period of not more than 52 weeks if 

the employee’s minor child has disappeared and is probably in danger, or 

where the employee’s spouse or child commits suicide or where the probable 

cause of death is suicide. 

 

Sick Leave 

o Yes! An employer may not dismiss, suspend, lay off, demote or discipline an 

employee because he or she was absent due to his or her own illness or injury, or the 

illness or injury of a dependent member of the employee’s immediate family. The 

employee must have been employed for at least 13 consecutive weeks prior to the


absence, either the absence does not exceed 12 weeks in a period of 52 weeks for a 

serious illness or injury, or the absence does not exceed 12 days in a calendar year 

for a non-serious illness or injury, and where requested by the employer the 

employee must provide a medical certificate. 

 


o This is covered under Sick Leave. 

 


o No! 

Yukon 

 

Sick Leave 

o Yes! An employee is entitled to one day without pay for every month employed by 

that employer minus the number of days on which the employee has previously been 

absent due to illness or injury. An employee’s maximum net entitlement shall not 

exceed 12 days. 

 



seriously ill member of the employee’s family. 

 


o No!

The Downside of Employee Perks 

Presented by Adrienne Woodyard & Ellen Swan 

with Kate Southwell, Articling Student 

The Downside of Employee Perks 

1. General Principles 

2. Benefits and Expenses: Common Misconceptions 

3. Tax Treatment of Additional Payments to Employees 

4. Tax Issues Raised by Employee Travel 

General Principles: Tax Consequences of “Perks” 

1

Tax Consequences of “Perks” 

• For employers: 

• additional liability for CPP contributions and 

EI premiums (if paid in cash) 

• Employer Health Tax 

• For employees: 

• additional income tax 

• increased CPP contributions, EI premiums 

When is a “perk” a taxable benefit 

The CRA will use two tests to determine whether there is a 

taxable benefit: 

1. The “Economic Advantage Test” 

• was the employee enriched or merely restored 

2. The “Primary Advantage Test” 

• who was the primary beneficiary: the employer or the 

employee 

Value of the Benefit 

2

FMV 

• the “fair market value” of the benefit, less any 

amount paid by the employee 

• the price that can be obtained by a seller in an open 

market where the parties are dealing at arm’s length 

Non-Taxable Benefits 

• items of “small or trivial value” 

• non-cash gifts and awards up to $500 / year / employee 

• outstanding service 

• special occasions 

• non-cash gifts and awards to reward long (5+ years) 

service 

• cannot be paid more than once every 5 years 

• cannot exceed $500 

Benefits and Deductions: 

Common Misconceptions 

3

Employer-Provided Parking 

• in many cases = taxable benefit 

• no benefit: 

• where parking is available free of charge to both 

employees and the public at the employer’s location 

• “scramble” parking 

• where employee required to use vehicle for work 

• employee has mobility-limiting physical disability 

Benefit = FMV of Parking Space 

How to determine 

• commercial rate of local parking lot 

• comparable residential parking spaces 

• premiums or discounts for differences 

• hours of access, surface v. underground, 

tandem v. non-tandem 

• employer must demonstrate practical efforts to value 

4

Common Misconceptions: Employee Deductions 

Form T2200 required; certain conditions must be met: 

• employment contract must require employee to provide 

and pay for supplies 

• employee cannot be reimbursed for expenses 

• expenses applicable to earning income from employment 

and consumed directly in performance of duties 

• home office expenses: restricted 

Tax Treatment of Additional Payments 

Retiring Allowances 

• in recognition of long service; or 

• loss of an office or employment 

• pre-1996 employment: “eligible portion” 

• non-eligible portion: lump sum withholding 

10% $1 - 5,000 

20% $5,001 - $15,000 

30% $15,001+ 

• no CPP contributions / EI premiums 

5

Damages and Settlements 

Tax character of damages / settlements 

• employment income 

• retiring allowance 

• non-taxable damages 

• combination thereof 

• CRA will review pleadings and settlement documents 

• determine if amounts / allocation are reasonable 

Retiring allowances 

• settlement amounts, special damages, mental distress 

damages, unless clearly divisible or for injuries unrelated 

to loss of employment 

Employment income 

• amounts paid upon reinstatement 

• pay in lieu of notice 

Non-taxable amounts 

• damages for human rights violations 

• damages for injuries unrelated to loss of employment 

6

RRSP Contributions 

Employer contributions to employee RRSP = taxable benefit 

Direct transfer of salary to RRSP 

• not a taxable benefit 

• no withholding required if reasonable grounds to believe 

employee has sufficient contribution room 

CPP / EI Withholding Errors: Over-deductions 

What to do 

• reimburse employee and adjust payroll records 

• do not report reimbursed amount on T4 

• if not able to refund, issue amended T4; correct amount 

of employee’s insurable earnings 

CPP / EI Withholding Errors - Under-deductions 

CRA will usually issue PIER report 

• employer must pay both employee and employer 

share 

• employer may recover from employee: 

• no recovery for amounts outstanding for more than 

12 months 

• limit on amount that can be deducted from each pay 

7

Tax Implications of Employee Travel 

Can an employee deduct cost of business travel 

• employee must be required to work away from 

employer’s premises or in different places 

• travel must be regular or customary 

• employee must not receive travel allowance 

• employer must sign T2200 

Working in One Province, Living in Another 

liability - based on where employee resides 

withholding - based on where the employee reports 

potential for excess or insufficient deductions 

• apply for letter of authority 

• to request additional deductions (Form TD1) 

8

Employee Relocations Within Canada 

many moving expenses are not taxable, including 

• storage of household effects 

• cancellation / disconnection fees 

• mortgage discharge penalties 

• legal fees 

• reasonable temporary living expenses 

Sending Employees Outside Canada 

• secondments may trigger transfer pricing rules 

• pricing = arm’s length terms 

• if no compensation to Canadian entity - CRA inquiry 

• if excessive compensation to Canadian entity - may 

be challenged by foreign tax authority 

• OECD transfer pricing guidelines 

Foreign Employees Coming Into Canada 

• relevant to multinationals 

• presence of workers in Canada triggers Canadian 

payroll obligations 

• also, income tax reporting obligations 

• consult your advisor! 

9

Questions 

10


THE DOWNSIDE OF EMPLOYEE PERKS 

By Adrienne Woodyard and Ellen Swan 

with the assistance of Kate Southwell, Articling Student 

Davis LLP Employment Conference May 2013 

Many employers provide extras or “perks” to their employees. This can include a wide range of 

things such as free coffee or snacks, parties at holiday time, gifts to celebrate an employee’s 

birthday or new baby, health club memberships, awards for outstanding service, and free parking. It 

is often these “perks” that make tough days tolerable and employees happier. But would employees 

enjoy these perks as much if they knew they had to pay tax on them The government has recently 

taken a keen interest in the issue of employee perks and benefits, and considers some of them 

taxable. 

For employees, taxable benefits - even if they are not paid in cash - mean more tax to pay, and may 

increase the employee’s Canada Pension Plan (“CPP”) contributions. If the benefit is paid in cash, it 

will also attract Employment Insurance (“EI”) premiums. 

Employers are obliged to take any taxable benefits into account in calculating their employees’ 

income tax, CPP contributions and (if applicable) EI premiums for payroll purposes, and also for 

calculating the employer’s share of CPP/EI and its liability for the Ontario Employer Health Tax.


EMPLOYEE BENEFITS: GENERAL PRINCIPLES 

What makes employee benefits taxable 

The federal Income Tax Act (the “Act”) is the law governing the taxation of employee benefits. 

Section 6(1)(a) of the Act declares that in computing an employee’s income for tax purposes, 

employees must include the “total value of board, lodging and other benefits of any kind whatever” 

that the employee receives or enjoys “in respect of, in the course of, or by virtue of” the 

employment. 1 

That seems pretty broad. Is it 

This wording casts a wide net. At first glance, it appears to capture any and all benefits an employee 

receives in his or her capacity as an employee. 

But the receipt of a benefit does not always give rise to tax. The Canada Revenue Agency (“CRA”), 

which administers the Act, considers certain benefits to be “off-limits” for tax purposes. In most 

cases, these are benefits that are either too insignificant or too difficult to calculate. They are listed 

below under the title “Benefits that are Exempt from Tax.” 

The Tax Court of Canada has also adopted tests that narrow down the types of benefits that can be 

taxed in an employee’s hands. They are known as the “Economic Advantage” and “Primary 

Advantage” tests. 

The Economic Advantage test asks: Was the employee enriched by the benefit, or merely 

restored to his or her previous economic position 2 

1 Income Tax Act, RSC 1985 (5th Supp), c 1, s 6(1)(a). 

2 R v Savage, [1983] SCJ No 81 (SCC).


Reimbursement of expenses may fall within this exception. For example, if an employer requires an 

employee to acquire a cell phone in order to carry out his or her duties, and reimburses the 

employee for the cost of the phone and a basic phone plan with a fixed cost, this is not a taxable 

benefit. 

But if the employee uses the cell phone for personal calls too, and those calls result in an additional 

cost over and above the fixed price of the phone plan, which the employer pays, then the cost of 

those personal calls will likely be a taxable benefit to the employee. 

The Primary Advantage test asks: Was the primary beneficiary of the economic advantage the 

employer or the employee 3 

If the employer is the primary beneficiary, the benefit is not taxable in the hands of the employee. If 

the employee is the primary beneficiary, it is. 

This test is often relevant where employers pay for their employees to complete a training course, or 

obtain a degree, diploma or certificate. 

If the course is mainly for the benefit of the employer – which generally means courses taken to 

maintain or upgrade employment-related skills, and could include anything from computer training to 

first aid skills courses – then this is not considered a taxable benefit in the hands of the employee. 

But if the training requires an extended absence from work, then in order for the benefit to remain 

non-taxable, the employee will likely have to demonstrate the intention to return to the employment 

for a reasonable period of time after completing the course. If the employer pays for training that is 

unrelated to the employment, or for something that is mainly a personal interest of the employee 

(piano lessons, anyone), then it is a taxable benefit. 

3 R v Savage, [1983] SCJ No 81 (SCC).


How does the CRA decide on the value of the benefit 

As far as the CRA is concerned, the value to be placed on most employee benefits for tax purposes 

is the “fair market value” of the benefit, minus any amount the employee has paid for the benefit. 

The courts have also endorsed this view. “Fair market value,” or “FMV,” as it is often referred to, is 

defined as the price that can be obtained by a seller in an open market when the buyer and seller 

are dealing at arm’s length. 4 

In some cases, such as in the example of the cell phone plan, the FMV of the benefit is easy to 

determine, because it is simply the cost that was paid to an arm’s length party (in that example, the 

cell phone provider). The question of FMV is less clear when dealing with non-cash benefits, 

particularly where the market for the non-cash benefit is limited. 

An obvious problem is that if the employer’s cost of providing the benefit is less than FMV, using 

FMV as the measure will result in overtaxation. 

Neither the CRA nor the Courts have been very 

sympathetic to this problem. Unless there are compelling reasons to demonstrate why, in the 

circumstances, it would not be reasonable to use FMV, that will remain the default measure. 

The CRA will sometimes obtain an expert valuation report to determine the FMV of a non-cash 

benefit. When the CRA makes a decision about FMV, it is considered presumptively correct unless it 

can be successfully challenged by the taxpayer. Therefore, any employer (or employee) who wishes 

to challenge the CRA’s determination of FMV must point out weaknesses in the CRA’s valuation 

methodology and propose a better methodology – which sometimes requires a report from different 

expert to establish that the FMV is lower than what the CRA has determined. 

4 Canada Revenue Agency, “Employers' Guide: Taxable Benefits and Allowances: T4130(E) Rev. 12”, “What 

are your responsibilities”, online: < http://tinyurl.com/c7zrb3y>.


What Benefits are Exempt from Tax 

The CRA will not to assess employees for any tax on certain benefits that would otherwise be taxed 

under the rules described above. In some cases, the CRA has determined that it is not possible to 

determine their FMV, and therefore it cannot calculate the tax payable. Other benefits are so 

common that if the CRA decided to bring them into the tax base it would have to assess virtually 

every employer or employee in Canada. 

These exemptions include: 5 

 

Items Of “Small Or Trivial Value.” 

The CRA recognizes that it would be too expensive and difficult to go after every 

employee who gets free coffee from the office kitchen. Included in this category are 

refreshments such as coffee and tea, and things for which there is probably no 

market at all, such as t-shirts and small knick-knacks bearing the employer’s logo, as 

well as plaques and trophies. 

 

Non-Cash Gifts And Awards Totalling $500 or Less Annually (For Each Employee). 

The CRA, perhaps motivated by a desire not to look like The Grinch Who Stole 

Christmas, will ignore for tax purposes any non-cash gifts and awards, up to a $500 

annual limit for each employee, given for: 

 

employment-related accomplishments (e.g., for outstanding service); and 

 

special occasions (e.g., religious holiday, birthday, marriage, the birth of a child) 

5 Canada Revenue Agency, “Employers' Guide: Taxable Benefits and Allowances: T4130(E) Rev. 12”, “Policy 

for non‐cash gifts and awards”, online: < http://tinyurl.com/czywjgd>.


Non-Cash Gifts And Awards To Reward Employees For A Period Of Long-Term (At Least 5 

Years’) Service. 

This exemption applies as long as the gift is not more than $500, and is not paid to 

the employee more than once every 5 years. 

Any gift or award given that falls within this category is not included in the annual 

$500 non-cash limit referred to at item #2. 

TAXABLE BENEFITS AND DEDUCTION OF EXPENSES 

You may be surprised at the tax implications of some common workplace perks. Many of the most 

common misconceptions arise in the context of: 

1. Employer-provided parking; 

2. Employer contributions to employee insurance plans; 

3. Employer-provided mobile phone plans; and 

4. Deduction of employee home office expenses. 

1. Employer-Provided Parking 

In most cases, employer-provided parking is considered a taxable benefit, even if the employer does 

not own the parking lot. The flowchart at the end of this paper illustrates the CRA’s current policies 

on employer-provided parking.


When is employer-provided parking not a taxable benefit 

Generally, the CRA concede that there is no taxable benefit when employers provide parking for 

employees in any of the following cases: 6 

 

Where the employer operates from a location (such as a shopping centre, industrial park or 

strip mall) where parking is available free of charge to both employees and members of the 

public 

In these situations the CRA has simply said that it is impossible to determine the FMV 

of the employer-provided parking and therefore will consider it a non-taxable benefit. 

 

Where the employer provides “scramble” parking 

The CRA considers “scramble” parking to exist where the number of employees 

wanting a parking space is significantly higher than the number of employer-provided 

spots available. 

The CRA will not consider parking to be “scramble” parking where parking spaces are 

merely unassigned, if there is a parking space for everyone, or almost everyone. The 

CRA generally requires the parking to be so limited that on any given day, whether or 

not an employee is able to find a parking spot is uncertain. 

 

Where the employer provides parking for an employee who is required to use a vehicle in the 

course of performing his or her job and the employee “regularly” uses a vehicle for that 

purpose 

6 Canada Revenue Agency, “Employers' Guide: Taxable Benefits and Allowances: T4130(E) Rev. 12”, 

“Parking”, online: < http://tinyurl.com/cwlld75>.


However, the CRA does not consider certain types of travel to be “work-related” use. 

For example, travel between the employee’s home and work is not considered “workrelated.” 

Neither is the use of a vehicle if it is simply to accommodate an employee’s 

extended or irregular working hours. 

If the employer provides parking for an employee who is required to use a vehicle in 

the course of performing the job but who does not use a vehicle “regularly” for that 

purpose, then the CRA will consider the employee to have received either a full or 

partial taxable benefit, depending on how many days per week he or she occupies 

the parking space. This aspect of CRA policy is somewhat confusing, but is 

presumably intended to target employees whose job only occasionally requires the 

use of a vehicle for business purposes but who use the parking space even on days 

when there is no business use of the vehicle. 

If the employee does not use the vehicle “regularly” for business purposes but 

occupies the parking space anyway for 3 days or more per week, the CRA will 

generally attribute 100% of the FMV of the parking to the employee. If use does not 

exceed an average of 3 days per week, the CRA will attribute a partial benefit based 

on the extent of the employee’s use. 

The CRA does not specify what methodology is to be used when parking is only 

available on a seasonal basis, but in general it expects employers/employees to 

come up with an appropriate pro rata calculation of the benefit based on actual use. 

 

Where the employee has a mobility-limiting physical disability that requires the use of a 

vehicle to commute to work every day, and the employer provides a parking space 

exclusively for this purpose


If the employee pays for part of the cost of the space, any taxable benefit will be 

equal to the difference between the FMV of the space and the amount paid. 

How is the FMV of a parking space determined 

Good question! 

Unfortunately, the answer is, “It depends.” If the parking is located in, or within a 

short distance of, a commercial parking lot that charges members of the public for parking, the CRA 

will ordinarily use the commercial rate to determine FMV of the employee parking. The question is 

more complicated where there are no other parking lots in the immediate area or there is no pricing 

available for neighbouring lots. If it is impossible to determine the FMV of the parking, the CRA will 

not consider there to be a benefit, but it often enlists the assistance of valuation experts to find 

comparable locations. 7 

The price of parking in residential apartment buildings close to the employer’s location may be used 

as a comparable, and a premium or a discount may be applied to account for differences in the 

parking lots (hours of access, surface vs. underground parking, tandem vs. non-tandem parking). 

Employers do not need to obtain an expert report to calculate the benefit, but in order to pass an 

audit, an employer should be able to demonstrate that it made practical efforts to value the parking 

based on other neighbouring locations and its methodology must be considered reasonable by the 

CRA. 

2. Employer Contributions to Employee Insurance Plans 

7 Anthony v The Queen, 2010 TCC 533.


Earlier this year the tax treatment of employer contributions to employee insurance plans underwent 

significant changes. As a result, certain employer contributions to employee insurance plans are 

now subject to taxation. 8 

Are contributions to non-group insurance plans taxable 

Yes. Employer contributions to a non-group insurance plan are a taxable benefit, if the plan is a 

sickness or accident insurance plan, a disability insurance plan, or an income maintenance 

insurance plan. A non-group plan is a plan that provides coverage to only a single employee. 

Are contributions to group sickness and accident insurance plans taxable 

Yes, starting in 2013, employer contributions to group accident and sickness insurance plans are 

now taxable benefits and must be included in the income of the employees in the year in which the 

contributions were made. 

Are contributions to group wage-loss replacement plans taxable 

No, the new changes do not affect the tax status of employer contributions to wage-loss 

replacement plans. They continue to be non-taxable benefits. 

What is a wage-loss replacement plan 

A plan is a wage loss replacement plan when all of the following conditions are met: 9 

 

it is a group plan; 

8 Canada Revenue Agency, “Group sickness or accident insurance plans – Employer contributions”, online: < 

http://tinyurl.com/d8byhb6>; Canada Revenue Agency, “Employers' Guide: Taxable Benefits and Allowances: 

T4130(E) Rev. 12”, “Income maintenance plans and other insurance plans”, online: < http://tinyurl.com/cxzsttr>. 

9 Canada Revenue Agency, Interpretation Bulletin IT-428, “Wage Loss Replacement Plans” (30 

April 1979) online: < http://tinyurl.com/cto3yoz>.


 

it is funded, in whole, or in part, by the employer; 

 

the purpose of the plan is to indemnify employees against a loss of employment income as a 

result of sickness, accident or maternity; 

 

benefits are paid on a periodic basis, i.e. not lump-sum; and 

 

the plan follows insurance principles, i.e. funds are accumulated, normally in the hands of a 

trustee or in a trust account, and are calculated to be sufficient to meet anticipated claims. 

3. Employer-Provided Cell /Smartphone Plans 

Many employers now provide cell or smartphone plans to their employees. 

Generally, employerprovided 

phone plans are not a taxable benefit if they are used by the employee to carry out 

employment duties. However, an employer-provided phone plan may be a taxable benefit to the 

extent that it is used for the employee’s personal benefit. 10 

When is an employee’s personal use of a cell/smartphone not a taxable benefit 

Generally, the CRA will consider that an employee’s personal use of a cell/smartphone is not a 

taxable benefit if: 

 

the cost of the phone plan is reasonable; 

 

the phone plan is a basic plan with a fixed cost; and 

 

the employee's personal use of the phone plan does not result in charges that are more than 

the basic plan cost (i.e. the employee is not incurring additional long distance charges) 


“Cellular phone service”, online: < http://tinyurl.com/9by57xg>.


Where part of the phone use is personal and is a taxable benefit, how is the FMV of the 

benefit determined 

The CRA will determine the taxable benefit of the phone to be the FMV of the phone plan minus any 

amount that the employee reimburses the employer for the phone plan. 

4. Deduction Of Employment Expenses 

Issues also often arise when employees incur expenses or purchase their own equipment or 

supplies. Employees may also wish to deduct the cost of using a portion of their homes for work. But 

in order for the employee to deduct these expenses, the employer must agree to complete and sign 

a Form T2200. 

In determining whether to complete and sign an employee’s Form T2200, employers must be aware 

of the requirements for an employee to deduct such expenses. 

When can an employee deduct expenses 

In order to deduct expenses, the following conditions must be met: 11 

 

the employment contract requires the employee to provide and pay for such supplies; usually 

this requires a written term of contract, but sometimes a tacit understanding may be sufficient; 

 

the employee has not been reimbursed and is not entitled to reimbursement for such expenses; 

the expenses may reasonably be regarded as applicable to earning income from the 

employment; 

11 Canada Revenue Agency, Interpretation Bulletin IT352R2, “Employee's Expenses, Including 

Work Space in Home Expenses” (26 August 1994), online: < http://tinyurl.com/booowp3>.


 

supplies are consumed directly in the performance of the employee’s duties of employment; and 

 

in the case of a home office, the home office must be the place where the employee principally 

(more than 50% of the time) performs the duties of employment or the home office must be used 

exclusively to earn employment income and, on a regular, continuous basis, for meeting 

customers or other persons in the course of performing the duties of employment. 

What home office supplies are eligible to be deducted as expenses 

Eligible home office supplies can include such things as: 

 

long-distance telephone calls and cell phone airtime that reasonably relate to the earning of 

employment income; and 

 

various stationery items such as pens, pencils, paper clips and charts. 

What home office supplies are not eligible to be deducted as expenses 

Eligible home office supplies will not include such things as: 

 

the monthly basic service charge for a telephone line; 

 

amounts paid to connect or licence a cell phone; 

 

special clothing customarily worn or required to be worn by employees in the performance of 

their duties; and 

 

any types of tools which generally fall into the category of equipment.


ADDITIONAL PAYMENTS TO EMPLOYEES 

In addition to taxable benefits, employers may also make various payments to and on behalf of 

employees that attract different tax consequences. For example, unexpected tax issues can arise in 

the context of: 

5. Retiring Allowances; 

6. EI Overdeductions; 

7. EI Underdeductions 

8. CPP Overdeductions; 

9. CPP Underdeductions; 

10. Payments of damages or settlements; and 

11. An employer’s contribution to an employee’s RRSP. 

1. Retiring Allowances 

A retiring allowance, sometimes referred to as severance pay, is an amount given to an employee 

on or after the employee’s retirement. To qualify as a retiring allowance, the payment must be 

either: 12 

 

in recognition of long service with the employer; or 

12 Canada Revenue Agency, Interpretation Bulletin IT-337R4 (Consolidated), “Retiring Allowances” 

(1 February 2006), online: < http://tinyurl.com/d8lems5>; Canada Revenue Agency, “Employers' 

Guide: Payroll Deductions and Remittances T4001(E) Rev. 12”, “Retiring Allowances”, online: < 

http://tinyurl.com/bto8yfn>.


 

in respect of loss of an office or employment. 

In determining whether an amount is “in respect of loss of an office or employment”, the CRA will 

ask two questions: 

 

But for the loss of employment would the amount have been received and, 

 

Was the purpose of the payment to compensate a loss of employment 

A retiring allowance can be paid either in installments or lump sum. It can be received by the former 

employee, or, after the employee’s death, by the employee’s relative or legal representative. 

What types of payments are considered to be a retiring allowance 

A retiring allowance includes: 

 

payments for unused sick-leave credits; and 

 

amounts received when employment is terminated, even if the amount is in the form of 

damages, but not wages in lieu of termination notice. 

A retiring allowance does not include: 

 

salary, wages, bonuses, overtime and legal fees; 

 

a superannuation or pension benefit; 

 

an amount an individual receives as a result of an employee’s death; 

 

payments for accumulated vacation leave not taken prior to retirement; 

 

wages in lieu of termination notice; and


 

damages awarded under human rights legislation. 

Is a retiring allowance taxable 

Yes. A retiring allowance is included in the employee’s income when it is received. Employers must 

deduct income tax from any part of a retiring allowance paid directly to the employee unless it is paid 

directly into an RRSP or RPP. However, instead of the usual withholding rates, employers must 

withhold from retiring allowances based on prescribed lump sum withholding rates. 

These lump 

sum withholding rates are: 

10% (5% for Quebec) on amounts up to and including $5,000; 

 

20% (10% for Quebec) on amounts over $5,000 up to and including $15,000; and 

30% (15% for Quebec) on amounts over $15,000. 

Employers should not deduct CPP contributions or EI premiums from retiring allowances. 

While taxable, retiring allowances do enjoy a tax advantage: employees may directly transfer an 

“eligible portion” of their retiring allowance to an RRSP or RSP without having any tax withheld. 

What is the eligible portion of a retiring allowance that can be transferred to an RRSP or 

RSP 

The eligible portion is calculated using a formula based on the number of years before 1996 that the 

employee was employed with the same employer who paid the retiring allowance. Generally, the 

formula for calculating the eligible portion is: 

 

$2000 for each year of employment before 1996, plus


 

$1500 for each year of employment before 1989 for which no RPP (registered profit plan) or 

DPSP (deferred profit sharing plan) benefits were earned by the employee. 

Employers must deduct income tax from any amount that doesn’t qualify as an eligible portion 

(unless the employee can demonstrate that the payment is less than the employee’s available 

RRSP deduction limit for the year, explained below). These deductions are calculated using the 

lump sum withholding rates listed above. 

Unlike other RRSP contributions, the eligible portion of a retiring allowance can only be transferred 

into the employee’s own RRSP. The eligible portion can not be directly transferred into the RRSP of 

the employee’s spouse or common law partner. 

Can an employer pay the non-eligible portion of a retiring allowance directly to the 

employee’s RRSP, without withholding any tax 

In some cases, yes. 13 

In order to deposit withheld amounts directly into an employee’s RRSP, both of the following 

requirements must be met: 

12. The employer must transfer the amount directly to the employee's RRSP or to the RRSP of 

the employee’s spouse or common-law partner. An employee can not receive the amounts 

and then purchase an RRSP himself. 

13. The employer must have reasonable grounds to believe that the employee has sufficient 

RRSP contribution room for the additional amounts. In order to the ensure that the employee 

has sufficient RRSP contribution room, the employer should request either a written 

13 Canada Revenue Agency, “Employers' Guide: Payroll Deductions and Remittances T4001(E) Rev. 12”, 

“RRSP contributions you withhold from remuneration”, online: < http://tinyurl.com/cd5j6qu>.


statement from the employee or a copy of the employee’s RRSP deduction limit statement 

from a notice of assessment. 

2. EI Overdeductions 

On occasion an employer may inadvertently overdeduct EI premiums from an employee. For 

example, this can happen if the maximum amount of insurable earnings is exceeded or if the 

employee was not working in insurable employment. 

What steps should an employer take if it has overdeducted EI premiums from an employee 

If this happens, the employer should reimburse the overdeduction to the employee and adjust the 

payroll records for the year the overpayment was made to reflect the reduced deduction. The 

employer will get a credit on its CRA payroll account and may reduce a future remittance in the 

same year by that amount. 14 

The employer should not include the reimbursed amount on the employee’s T4 slip. If the employer 

does report the employee’s overpayment on a T4 slip, the employer can get a refund by completing 

CRA Form PD24, Application for a Refund of Overdeducted CPP Contributions or EI Premiums no 

later than three years from the end of the year in which the overpayment occurred. 

If the employer is not able to refund the overpayment to the employee, it should change the 

employee’s T4 slip to reflect the total EI premiums deducted and the correct amount of the 

employee’s insurable earnings. 

3. EI Underdeductions 

14 Canada Revenue Agency, “Employers' Guide: Payroll Deductions and Remittances T4001(E) Rev. 12”, “EI 

overpayment”, online: < http://tinyurl.com/cmqep2a>.


Just as an employer might overdeduct EI amounts from an employee, on occasion an employer 

might also underdeduct EI amounts. 

What steps should an employer take if it has underdeducted EI premiums from an employee 

If this happens, the employer should pay the amount owing, both the employer and the employee’s 

share, to the CRA. The employer can then recover the amounts paid on behalf of the employee from 

the employee’s paycheques. 15 

However, the CRA imposes guidelines about how and when an 

employer may recover these amounts from an employee. These include: 

14. An employer cannot adjust the employee's income tax deduction to cover the EI 

underdeduction; 

15. An employer cannot recover from employees for amounts that have been outstanding for 

more than 12 months; and 

16. An employer can deduct from each paycheque an amount equal to, but not more than, the 

amount that should have been deducted from the employee’s paycheque. 

4. CPP Overdeductions 

As with EI deductions, on occasion an employer may inadvertently overdeduct CPP contributions 

from an employee 

What steps should an employer take if it has overdeducted CPP contributions from an 

employee 


“Recovering EI Premiums”, online: < http://tinyurl.com/czsfzos>.


If this happens, the employer should reimburse the overdeduction to the employee and adjust the 

payroll records for the year the overpayment was made to reflect the reduced deduction. The 

employer will get a credit on its CRA payroll account and may reduce a future remittance in the 

same year by that amount. 16 

The employer should not include the reimbursed amount on the employee’s T4 slip. If the employer 

does report the employee’s overpayment on a T4 slip, the employer can get a refund by completing 

CRA Form PD24, Application for a Refund of Overdeducted CPP Contributions or EI Premiums no 

later than four years from the end of the year in which the overpayment occurred. 

5. CPP Underdeductions 

Just as an employer might overdeduct CPP contributions from an employee, on occasion an 

employer might also underdeduct CPP contributions. 

What steps should an employer take if it has underdeducted CPP contributions from an 

employee 

If this happens, the employer should pay the amount owing, both the employer and the employee’s 

share, to the CRA. The employer can then recover the amounts paid on behalf of the employee from 

the employee’s paycheques. 17 

However, the CRA imposes guidelines about how and when an 

employer may recover these amounts from an employee. These include: 

17. An employer cannot adjust the employee's income tax deduction to cover the CPP 

underdeduction; 

16 Canada Revenue Agency, “Employers' Guide: Payroll Deductions and Remittances T4001(E) Rev. 12”, “CPP 

overpayment”, online: < http://tinyurl.com/cv9gv75>. 


“Recovering CPP Premiums”, online: .


18. An employer cannot recover from employees for amounts that have been outstanding for 

more than 12 months; and 

19. An employer can deduct from each paycheque an amount equal to, but not more than, the 

amount that should have been deducted from the employee’s paycheque. 

6. Payments of Damages or Settlements 

The tax implications of damages, settlements, and other amounts paid to an employee upon 

termination are highly fact specific and depend on the characterization of those amounts. The CRA 

may consider amounts awarded as damages or paid as a settlement to an employee to be (a) 

employment income, (b) a retiring allowance, (c) non-taxable damages, or (d) a combination 

thereof. 18 

The CRA will look at the evidence in each case, including both pleadings and settlement documents, 

in determining the characterization of payments. As a result, employers must be both careful and 

specific about characterizing amounts to ensure the desired tax treatment results. 

Are awards of damages or settlement amounts paid for termination of an employee taxable 

For the most part, damages or settlement amounts paid by an employer in respect of the termination 

of an employee are considered to be retiring allowances. This applies to settlement amounts; 

special damages; and general damages, such as those received for loss of self-respect, humiliation, 

mental anguish, hurt feelings, etc. 

As noted, damages or settlement amounts in respect of an employee’s termination are considered 

to be retiring allowances. However, if certain portions of a settlement or damages award are clearly 

18 Canada Revenue Agency, Interpretation Bulletin IT-337R4 (Consolidated), “Retiring Allowances” (1 February 

2006), online: < http://tinyurl.com/cc23kxu>.


divisible and are not in respect of an employee’s termination, then these amounts will not be taxable. 

For example, amounts paid in respect of harassment during employment or defamation after 

termination are not in respect of an employee’s termination. In order to claim these amounts as nontaxable, 

it must be clearly demonstrated that damages received upon termination are for injuries 

unrelated to the loss of employment. 

As a result, employers must be highly specific in characterizing the nature of certain payments, both 

in pleadings and in settlement documents. The CRA will not necessarily accept a characterization at 

face value. To ensure that amounts are characterized reasonably, the CRA will review all related 

and relevant documents and take into consideration the amount of severance that the employee 

would reasonably be entitled to. 

Are damages taxable if the employee is reinstated or keeps his job 

If an employee is reinstated or keeps his job and is awarded damages, such as those for lost wages 

or benefits, then those damages will be taxable as employment income. 19 

Are wages in lieu of termination notice taxable 

Both the common law and employment standards legislation require employers to give employees 

notice of termination or pay in lieu of notice. As an example of pay in lieu of notice, if an employer is 

require to give an employee six weeks’ notice of termination, the employer may choose to pay the 

employee a lump sum for those six weeks instead of requiring the employee to continue working for 


2006), online: .


that time. Please note that calculating the required amount of notice is highly fact-specific, and legal 

advice should be obtained to ensure compliance with common law and legislated minimums. 20 

Pay in lieu of notice is taxable as employment income, whether it is not paid at the time the 

employment is terminated. This is true for pay in lieu of notice under either an employment contract 

or under legislated employment standards. 

Employers should deduct CPP contributions, EI premiums, and income tax from pay in lieu of notice 

paid to employees and former employees. 

Are damages or settlement amounts relating to human rights violations taxable 

Generally, damages or settlement amounts relating to human rights violations are considered 

unrelated to the termination of employment and not taxable. However, the CRA will review amounts 

given under settlements more closely than amounts awarded as damages. 21 

If a human rights tribunal awards an amount for damages, then that amount is generally entirely 

non-taxable. 

If an employer reaches a settlement with an employee with respect to a human rights violation, the 

CRA will review the settlement and deem a reasonable amount to be in respect of the human rights 

violation and thus non-taxable. In determining what is a reasonable amount, the CRA will review the 

evidence, the pleadings, and the maximum amount that could have been awarded by the human 

rights tribunal. If the CRA determines that a portion of the settlement amount is not a reasonable 

award for the human rights complaint, then it will deem that portion to be taxable as a retiring 

allowance. 


2006), online: . 


2006), online: .


What are the consequences of a settlement or damage award if a former employee has been 

receiving EI benefits 

If a former employee receives EI benefits for a particular period and an employer is later obligated 

by settlement or damages award to pay earnings to the former employee for that same period, then 

the former employee has an obligation to repay those EI benefits to the Receiver General. 22 This 

obligation stems from the Employment Insurance Act and is intended to prevent employees from 

receiving both earnings and EI benefits for the same period of time. 

Employers have related obligations under the Employment Insurance Act. If an employer has a 

reasonable belief that a former employee has been receiving EI benefits over the same period which 

a damages award or settlement amount applies to, then that employer has an obligation to pay the 

amount of the EI benefits to the Receiver General. 23 In effect, this means that if an employer has a 

reasonable belief that a former employee was receiving EI benefits that should have been paid back 

to the government but were not, then the employer will be on the hook for paying back those EI 

benefits. 

To avoid responsibility for repaying these amounts, if an employer is aware than a former employee 

has been receiving EI benefits for the period covered by the contemplated settlement, the employer 

should attempt to structure the settlement so that the former employee is required to repay those 

amounts. 

7. An Employer’s Contribution to an Employee’s RRSP 

22 Employment Insurance Act, SC 1996, c 23 s 45. 

23 Employment Insurance Act, SC 1996, c 23 s 46.


An employer’s contributions to an employee’s RRSP and RRSP administration fees are taxable 

benefits. However, the employer may deposit an employee’s wages directly into the employee’s 

RRSP on behalf of the employee without withholding tax. 24 

In order to deposit withheld amounts directly into an employee’s RRSP, both of the following 

requirements must be met: 25 

20. The employer must transfer the amount directly to the employee's RRSP or to the RRSP of 

the employee’s spouse or common-law partner (except for the eligible part of a retiring 

allowance that has to be transferred only to the employee's RRSP). An employee can not 

receive the amounts and then purchase an RRSP himself. 

 

The employer must have reasonable grounds to believe that the employee has sufficient RRSP 

contribution room for the additional amounts. In order to the ensure that the employee has 

sufficient RRSP contribution room, the employer should request either a written statement from 

the employee or a copy of the employee’s RRSP deduction limit statement from a notice of 

assessment. 

TRAVEL TROUBLES 

Issues with geographic location can also pose tax problems for employers. Some of the most issues 

revolve around: 

21. Business travel; 


“Registered retirement savings plans (RRSPs)”, online: . 


“RRSP contributions you withhold from remuneration”, online: .


22. Overseas employees; and 

23. Employees working and living in different provinces. 

1. Business Travel 

In this global village, employees are often required to travel for business. In order to deduct some of 

the expenses of business travel from income tax, employees must ask their employers to complete 

CRA Form T2200. In determining whether to fill out an employee’s Form T2200, employers must be 

aware of the requirements for an employee to deduct business travel expenses. 

What kind of business travel expenses may the employee deduct 

Deductible business travel expenses include food, beverage, and lodging expenses but not motor 

vehicle expenses. 26 Motor vehicle expenses incurred by employees in the course of employment 

are governed by specific tax guidelines that do not apply to other types of business travel expenses, 

as discussed above. 27 

When can an employee deduct business travel expenses 

Business travel expenses are deductible as long as employees meet all of the following conditions: 28 

 

The employee is ordinarily required to work away from the employer's place of business or in 

different places. The word "ordinarily" does not require continual travel, but it requires that 

the employee regularly or customarily travels for business. 29 

26 Canada Revenue Agency, “Travelling expenses”, online: . 

27 Canada Revenue Agency Interpretation Bulletin IT-522R, “Vehicle, Travel and Sales Expenses of 

Employees” (29 March 1996), online: . 

28 Canada Revenue Agency, “Travelling expenses”, online: . 

29 Canada Revenue Agency Interpretation Bulletin IT-522R, “Vehicle, Travel and Sales Expenses of 

Employees” (29 March 1996), online: .


 

Under the contract of employment, the employee was required to pay his own travelling 

expenses. Usually this requires a written contract clause; however, an implicit understanding 

may be sufficient in some circumstances. 

 

The employee did not receive a non-taxable allowance for travelling expenses. An allowance 

is an amount that the employer gives the employee in addition to salary or wages for which 

the employee does not have to account for its use. Generally, an allowance is non-taxable as 

long as it is a reasonable amount. And, 

 

The employee files a Form T2200, Declaration of Conditions of Employment, which has been 

completed and signed by the employer. 

What about that Big Mac When can an employee deduct food and beverage expenses 

In addition to the general requirements for deducting business travel expenses, additional 

requirements apply to expenses for food and beverages consumed during business travel. 30 

An employee can deduct expenses for food and beverage where the employer requires the 

employee to be away for at least 12 consecutive hours from the municipality and the metropolitan 

area (if there is one) where the employee normally reports for work. 

The most an employee can deduct for food and beverage expenses is 50% of the lesser of: 

 

the amount actually paid; and 

 

an amount that is reasonable in the circumstances. 

Can an employee deduct expenses if the employee’s spouse or common law partner 

accompanies them on the business trip 

30 Canada Revenue Agency, “Travelling expenses”, online: .


An employee cannot deduct expenses for a spouse or common law partner to accompany them on 

a business trip. 31 

If the employer reimburses an employee for the spouse or common law partner’s travelling 

expenses, that reimbursement is a taxable benefit to the employee. However, that reimbursement 

will not be a taxable benefit if the spouse or common law partner went on the trip at the employer’s 

request and was mostly engaged in business activities during the trip. 

2. Overseas Employees 

The tax consequences of Canadian companies sending employees to work overseas, or of foreign 

companies sending employees to work in Canada, can leave both employers and employees feeling 

jetlagged. 

What are the tax consequences for a non-resident employer sending employees to work in 

Canada 

Employers that are not resident in Canada (“non-resident employers”) may send their employees to 

work in Canada. For example a U.S. parent company may send an employee to work at a subsidiary 

in Canada, but the employee may remain employed by the U.S. parent company. Alternately, a nonresident 

company may send an employee to Canada to work with a customer at the customer’s 

premises. 

Non-resident employers will incur Canadian tax withholding obligations on salary paid to their 

employees that is attributable to work performed in Canada. It doesn’t matter whether the 

employees are posted to a customer’s premises for three months or working from a hotel room for 


“Spouse's or common‐law partner's travelling expenses”, online: .


three days. When an employee, even a non-resident, earns a salary for work performed in Canada, 

withholding is required. 

The withholding rules can also be burdensome for non-resident employees who are already paying 

tax to their home country on their Canadian-source income. These employees may be exempt from 

Canadian tax by virtue of a tax treaty between the home country and Canada, but the withholding 

rule applies to the employer and operates independently of the treaty. The treaty exemption will 

entitle employees to a refund of the taxes withheld, but this is accessible only by filing a Canadian 

tax return after the year end, and the employees will be out of pocket until the refund is processed. 

Employers may consider extending short-term loans to employees to assist with this cash-flow 

problem. 

Both non-resident employees in Canada and Canadian residents working abroad may also be 

burdened by the requirement to file tax returns in both their home country and the country they are 

working in. As a result, the Canadian employee may be required to file tax returns in both Canada 

and in the new country that he is working in, or a non-resident employee may be required to file tax 

returns in both Canada and his home country. 

The reporting obligations and tax treaties in various foreign countries can get complicated. Any 

Canadian employee being sent abroad to work and any non-resident employee being sent to 

Canada to work should obtain tax advice on filing obligations. 

What are the tax consequences of a Canadian employer sending an employee overseas on a 

cross border secondment 

Cross-border secondment arrangements should be approached carefully. A corporation may, for 

example, establish a subsidiary in another country and wish to assign certain employees to the 

subsidiary’s premises temporarily. This will engage the transfer pricing rules that Canada and most


other countries impose on cross-border, non-arm’s length transactions to ensure that pricing 

between related parties is consistent with arm’s length terms. If the pricing is too high or too low, the 

CRA or the tax authority of the other country may impose an adjustment to the pricing. Parties must 

refer to the Organisation for Economic Co-operation and Development’s transfer pricing guidelines 

and document the methodology they used to determine their pricing in order to avoid a penalty. 

Are moving expenses and relocation benefits paid by an employer to an employee 

considered to be a taxable benefit 

When an employer moves an employee from one place of business to another, and that move 

requires the employee to move their home to a new location, amounts given to the employee to pay 

for or reimburse for moving expenses are usually not a taxable benefit. This includes any amounts 

incurred to move the employee, the employee's family, and their household effects. The move does 

not have to be within Canada. 

What moving expenses paid by an employer for an employee are not a taxable benefit 

The following moving expenses are generally not considered to be a taxable benefit if paid by an 

employer: 32 

 

the cost of house hunting trips to the new location, including child care and pet care 

expenses while the employee is away; 

 

travelling costs (including a reasonable amount spent for meals and lodging) while the 

employee and members of the employee's household were moving from the old residence to 

the new residence; 

32 Canada Revenue Agency, “Employers' Guide: Taxable Benefits and Allowances: T4130(E) Rev. 12”, “Moving 

expenses and relocation benefits”, online: < http://tinyurl.com/chlzbxx>.


 

the cost to the employee of transporting or storing household effects while moving from the 

old residence to the new residence; 

 

costs to move personal items such as automobiles, boats, or trailers; 

 

charges and fees to disconnect telephones, television or aerials, water, space heaters, air 

conditioners, gas barbecues, automatic garage doors, and water heaters; 

 

fees to cancel leases; 

 

the cost to the employee of selling the old residence (including advertising, notarial or legal 

fees, real estate commission, and mortgage discharge penalties); 

 

charges to connect and install utilities, appliances, and fixtures that existed at the old 

residence; 

 

adjustments and alterations to existing furniture and fixtures to arrange them in the new 

residence, including plumbing and electrical changes in the new residence; 

 

automobile licences, inspections, and drivers' permit fees, if the employee owned these 

items at the former location; 

 

legal fees and land transfer tax to buy the new residence; 

 

the cost to revise legal documents to reflect the new address; 

reasonable temporary living expenses while waiting to occupy the new, permanent 

accommodation; 

 

long distance telephone charges that relate to selling the old residence; and


 

amounts paid or reimbursed for property taxes, heat, hydro, insurance, and grounds 

maintenance costs to keep up the old residence after the move, when all reasonable efforts 

to sell it have not been successful. 

What moving expenses paid by an employer for an employee are considered a taxable 

benefit 

If an employer pays or reimburses moving costs that are not listed above, then the amounts are 

generally considered a taxable benefit to the employee. 

If the employer does not reimburse, or only partly reimburses, an employee for moving expenses, 

the employee may be able to claim a deduction for those moving expenses. 

3. Employees working and living in different provinces. 

Different reporting obligations may cause tax trouble for employees who live in one province and 

work in another. 

In which province do employers and employees report taxes 

An employee must file taxes and calculate applicable tax rates based on the province in which the 

employee resides. 33 

However, an employer must file its tax reporting obligations and calculate withholdings based on the 

province in which the employee reports for work at the employer’s place of business. This is referred 

to as the employee’s “province or territory of employment”. For example, if the employee reports for 

33 Canada Revenue Agency, “Which package should you use”, online: .


work at the company’s office in Toronto, then the employer must calculate withholdings based on 

Ontario rates. 34 

If the employer does not require an employee to report for work at the employer’s place of business, 

then the employee’s province or territory of employment is deemed to be the province or territory 

where the business is located and from where the employer pays the employee's salary. This can be 

the case where employees work from home. 35 

The CRA website offers useful tools for calculating an employer’s withholding obligations in each 

province. These are available at: http://tinyurl.com/bqz9ct6. 

What are the tax implications for an employee who works in one province and lives in 

another 

An employee who lives in one province and works in another will file tax returns in the province of 

territory he lives in, but his employer will withhold taxes based on the rates in his province or territory 

of employment. 

For example, an employee may live in in Quebec, but his employer requires him to report to a place 

of business in New Brunswick. In that case, the employer would calculate the employee’s 

withholdings based on New Brunswick rates, but the employee would file taxes in Quebec and be 

assessed at Quebec rates. 


“Payroll deductions tables”, online: . 


“Payroll deductions tables”, online: .


This can cause problems as different provinces have vastly different tax rates and minimum 

exemption amounts. As a result, an employee may have either too much or too little tax withheld by 

an employer. 

What should an employer do to assist an employee in this situation 

If an employee living in one province and working in another is subject to excessive deductions, he 

can ask for a reduction in tax deductions by writing to any tax services office and getting a letter of 

authority. 36 

If an employee living in one province and working in another does not have enough tax deducted, 

the employee should request additional tax deductions on Form TD1, Personal Tax Credits Return. 

This publication does not constitute legal, accounting or other professional advice. It is 

neither a definitive analysis of the law nor a substitute for professional advice. Readers 

should discuss with professional advisors how the information may apply to their specific 

situations. 


“Payroll deductions tables”, online: .


IS THERE A PARKING BENEFIT CRA POLICY AT A GLANCE 

YES 

Does the employee have a mobility-limiting physical 

disability and require the vehicle to commute to work 

NO 

YES 

Is free parking usually available at that 

location to members of the general public 

YES 

Does the employee 

regularly use a vehicle 

for business purposes 

NO 

YES 

Less than 3 

days/week 

YES 

How often does the 

employee use the parking 

More than 3 

days/week 

NO 

Is it scramble parking 

NO 

Does the employer provide parking for 

business purposes 

NO 

Does the employee pay for the use of 

the parking space 

YES 

NO 

NO BENEFIT PARTIAL BENEFIT FULL BENEFIT 


Anatomy of a Failed Termination Process 

Presented by Richard J. Nixon and Matthew Curtis 

Vernon v. British Columbia (Liquor Distribution Branch), 

2012 BC Supreme Court 

Overview 

• Vernon employed by LDB for 30 years and was in a management 

position when she was dismissed for cause. 

• Known as “The Little General” for no nonsense management style 

and insistence “that employees not slack off”. 

• Vernon had received highly complimentary performance reviews. 

No complaints had ever been made to her or to LDB. 

• Employee under Vernon’s supervision complained about Vernon. 

• Complaint was investigated by LDB. Vernon was subsequently 

suspended without pay or benefits, and eventually dismissed 

without severance. 

Complaint against Vernon 

• A unionized employee complained Vernon made her feel 

“harassed, embarrassed, humiliated and uncomfortable at work”. 

• Allegations: 

• Vernon’s use of profane language “on a daily basis” 

• “If you don’t tuck in your uniform, I’ll kill you” 

• Insults directed at the Complainant’s religion 

• Union was asked for input on how the complaint should be 

resolved. 

• The Union proposed a remedy which did not include the 

termination of Vernon’s employment. 

1

Investigation of the Complaint 

• The Investigator chosen “should not have been put in charge of the 

investigation”: Investigator was Vernon’s labour relations advisor. 

Before the complaint was received, Vernon had confided to the 

Investigator about problems Vernon was having with the 

complainant. 

• The Investigator was biased – she created a list of employees to 

interview, many of whom she knew would have negative things to 

say about Vernon. 

• Interviews turned into interrogations and were not carried out in an 

impartial manner. 

• Vernon had no opportunity to respond to many of the allegations. 

• Vernon was never told her job might be in jeopardy. 

• Some specific complaints were not investigated. 

• Interview notes with Vernon and other witnesses were inaccurate 

and inconsistent with the final recommendations. 

• Investigator’s recommendations to her superiors were inaccurate 

and misleading. 

• e.g., stated Vernon was denying all allegations when in fact 

Vernon admitted to some. 

The Court was highly critical of the investigation process: 

“[230] What the Recommendation Memo did not disclose was that Ms. Vernon 

had been given no opportunity to respond to the matters raised in the 

interviews, that she had agreed to stop swearing, was prepared to 

apologize for her use of profanity and that the Complainant and the Union 

were not seeking her dismissal. The Recommendation Memo made no 

mention of her exemplary work reviews or the fact that in her 30 years of 

employment there had never been a complaint made against her. 

[231] [The Investigator] agreed at the conclusion of her cross-examination that 

in the Recommendation Memo, instead of reporting objectively the findings 

of the investigation, she was trying to prove that Ms. Vernon was guilty of 

misconduct and should be terminated. 

2

[255] The interview of Ms. Vernon was contrary to its intended purpose and 

unfair in the extreme. Ms. Vernon thought she was meeting with her labour 

relations advisor and area manager to discuss in an informal setting a 

complaint that had been made against her. Instead, she was the subject of 

an intense interrogation. The person who she had relied on as her labour 

relations advisor was now her interrogator. Ms. Vernon was upset at the 

meeting. She had good reason to be. 

[256] [Ms. Vernon] was given a copy of the March 1 Letter, which contained 

eight separate complaints, and asked for her immediate response. When 

she denied certain allegations, she was met with the classic question, 

“Why would the complainant lie” It is of course a question that is 

impossible to answer. 

Vernon’s Termination Meeting 

• Vernon was told she had engaged in “gross workplace 

misconduct”, including bullying, harassing and intimidating 

behaviour, and that her actions were “embarrassing and shameful”. 

• LDB did not follow its own progressive disciplinary policy (warning, 

re-training, a reprimand or transfer were not considered). 

• LDB offered a reference letter in exchange for Vernon’s 

resignation. 

• Vernon refused to resign and was suspended indefinitely without 

pay or benefits. 

• Recommendation to terminate Vernon’s employment was not 

prepared until one month after her suspension. 

• When her termination was approved, Vernon was not notified for 

another 10 days. 

3

• The Court found no cause for Vernon’s dismissal: 

“While some of her conduct may have been inappropriate, she was 

at all times trying to improve the performance of her employees. At 

their worst, some of her actions amounted to poor performance of 

the management responsibilities she was attempting to fulfill.” 

“Ms. Vernon was a senior employee with an untarnished record. 

She was entitled to a warning that her conduct was not 

acceptable.” 

Result: A very expensive dismissal, bad public relations, 

and damage to the reputations of the managers involved. 

• General damages 

• $97,173.18 in lieu of 18 months’ notice (maximum notice 

permissible under BC public sector employment legislation) 

– plus – 

• Pension contributions and service credit as if employed for 18 

months. 

• Special damages 

• To replace health coverage, and to compensate for out-ofpocket 

medical expenses, a job workshop and counselling. 

• Aggravated damages 

• The foundation of the claim for aggravated damages was the 

manner of dismissal but not for the investigation. 

• $35,000 awarded for an “unfair and unduly insensitive” 

termination that “was devastating and caused her serious 

harm”. 

• Punitive damages 

• $50,000 for offering a reference letter “as a carrot to resign”. 

• Tactic was seen as an attempt to take advantage of Vernon’s 

vulnerability and avoid a lawsuit for wrongful termination. 

• Costs Awarded to Vernon 

• Total Damages Awarded – Approximately $200,000 

4

Implications and Take-Aways 

1. Is the investigator neutral and unbiased 

2. Avoid pre-judging the outcome of an investigation. 

3. Consult and follow internal policies on investigations and 

discipline. 

4. Tort of Negligent Investigation 

5. Intentional Infliction of Mental Distress 

Implications and Take-Aways 

6. “Resign or be fired” may not be a good strategy except in 

cases with a high probability of proving cause. 

7. Aggravated and punitive damages are possible outcomes in 

poorly managed employment terminations. 

8. Paying compensation in lieu of notice in this case would have 

been significantly less costly than trying to prove cause. 

5


MEET THE EXPERTS 

Barry Fisher: Mediations 

Dr. Robert Grossman: Medical Examinations 

Dan Black: OHSA - Responding to a Workplace Accident 

Larry Page: What Counts as Work in the iPad Era 

John Young: WSIB Classifications 



Biographies 

Barry Fisher: 

Barry is a mediator and arbitrator whose practice focuses on both labour and employment law. Barry was the 

recipient of the Ontario Bar Association 2011 Award of Excellence in Alternative Dispute Resolution. 

Dr. Robert Grossman: 

Dr. Grossman has over 18 years of experience as ER doctor and general practitioner, and has 20 years of 

experience as an occupational health consultant in a number of industries. Dr. Grossman currently focuses on 

medical disability consulting for three major Canadian insurers, including litigation support and assisting at 

arbitrations. He has conducted thousands of IMEs and will help us understand when and how to use IMEs in 

managing employee disabilities and accommodations. 

Dan Black: 

Full biography can be found under Tab #2 

Larry Page: 

Full biography can be found under Tab #2 

John Young: 

John has over 38 years experience in WCB/WSIB revenue issues. John spent 20 years working at the WCB 

and has over 18 years of experience as an independent consultant helping employers resolve their WSIB 

problems.

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