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employment in the event of termination to reduce his or herloss; however, the court found that this rule does not applywhere the parties have contracted for a fixed amount ofnotice, or pay in lieu of notice.Clarence BennettFredericton, NB506.444.8978cbennett@stewartmckelvey.comThe court’s rationale for its decision was that by agreeingto fixed termination pay in the employment contract, theparties had shown their intentions in the event of terminationwithout notice. Since this arrangement promotes certaintyand stability between the parties, the court decided thatthe possibility of post-employment mitigation would beinconsistent with this objective.The Court of Appeal provided an exception to this generalprinciple: where the employment contract provides aclear and specific provision that states that an employer’sobligation to pay a fixed severance is subject to theemployee’s duty to mitigate.What this means for youThe Ontario Court of Appeal’s decision regarding mitigationin Bowes reflects a similar trend in Alberta, British Columbia,and Nova Scotia. It is likely that courts in other provinceswill follow this principle and find that fixed contractualtermination payments are not subject to mitigation,except where it is expressly provided in the employmentagreement.As an employer, you should explicitly provide in thetermination clause of an employment contract that anemployee is under a duty to take reasonable steps to findalternate employment. This allows you to cease terminationpayments in lieu of notice when an employee finds anew job. Otherwise, courts will likely find in favour of theemployee and enforce the entirety of the predeterminedpayments.Crown seeks $1 million fineafter workplace accidentresults in four fatalitiesThe recent Ontario Court of Justice ruling in R. v.Metron Construction Corporation makes it is clearthat changes made by Bill C-45 to the Criminal Codehave not only made it easier to find a corporation guiltyof criminal negligence, but have also significantlyincreased the penalties facing offenders.The factsWhile repairing a section of a high rise apartment buildingin Toronto, four employees of Metron ConstructionCorporation (“Metron”) fell to their death and one workerwas critically injured after the scaffolding they were standingon collapsed.Metron and its president were charged with five counts ofcriminal negligence in relation to the accident. Both partieswere also charged with contravening the OccupationalHealth and Safety Act.2CHARLOTTETOWN FREDERICTON HALIFAX MONCTON SAINT JOHN ST. JOHN’S STEWARTMCKELVEY.COM & FOLLOW US ON TWITTER

An investigation by the Ministry of Labour determined thatthe workers were not adequately tied off to a lifeline oradequately trained in using the protection available. It alsofound that the swing stage that had collapsed was overcapacity and defective.The decisionBill-C-45 was introduced in 2004 and amended the CriminalCode by eliminating the prosecutor’s duty to prove that aperson was the directing mind of a corporation and extendattribution of criminal corporate liability to the actions ofmid-level managers.In this case, it was the site supervisor (one of the deceased)whose conduct attracted liability for the corporation.The supervisor was found to have acted negligently insupervising the workers when allowing them to board theswing stage when it was over capacity and without the useof adequate safety equipment.The Crown asked for a fine of $1 million while theDefence asked for a fine of $100,000.The court considered the following factors that are providedin section 718.21 of the Criminal Code:a) any advantage realized by the organization as aresult of the offence;b) the degree of planning involved in carrying outthe offence and the duration and complexity ofthe offence;c) whether the organization has attempted toconceal its assets, or convert them, in order toshow that it is not able to pay a fine or makerestitution;e) the cost to public authorities of the investigationand prosecution of the offence;f) any regulatory penalty imposed on the organizationor one of its representatives in respect of theconduct that formed the basis of the offence;g) whether the organization was — or any ofits representatives who were involved in thecommission of the offence were — convicted of asimilar offence or sanctioned by a regulatory bodyfor similar conduct;h) any penalty imposed by the organization on arepresentative for their role in the commission ofthe offence;i) any restitution that the organization is ordered tomake or any amount that the organization haspaid to a victim of the offence; andj) any measures that the organization has taken toreduce the likelihood of it committing a subsequentoffence.The judge set the fine at $200,000 plus surcharges. Manyof the above noted factors worked in Metron’s favourincluding that Metron was in a weak financial position.The fine imposed on Metron is the largest in Canadianhistory that relates to criminal negligence of a corporation.What this means for youIn light of the decision in Metron, organizations mustensure that a viable health and safety program is not onlydeveloped, but is also implemented by its employees andany representatives of the organization.d) the impact that the sentence would have on theeconomic viability of the organization and thecontinued employment of its employees;3CHARLOTTETOWN FREDERICTON HALIFAX MONCTON SAINT JOHN ST. JOHN’S STEWARTMCKELVEY.COM & FOLLOW US ON TWITTER

and as such, it was irrelevant that CSR had not signed theconfidentiality agreement.The Court of Appeal bolstered its reasoning with the use ofthe commercial efficacy principle (without the need of anambiguity in the contract). The Court of Appeal held thatthe approach of the motions judge (which would have led toa commercially unviable result: Mr. Downey nor CSR beingbound to protect Ecore’s intellectual property) violated thecommercial efficacy principle by stripping the confidentialityagreement of any purpose.What this means for youThis case has not created any new law. Rather, it simplyreiterates and strengthens the principle of interrelatedcontracts. It’s a welcome decision that offers courts moreauthority to give effect to the real intentions of the partiesat play and that intention can be unearthed notwithstandingold and burdensome doctrinal barriers.Erik HomenickSaint John, NB506.637.9228ehomenick@stewartmckelvey.comNon-competition clauses inemployment contractsInsurance company granted injunction against formersenior insurance executive, barring the executivefrom soliciting clients, recruiting former employees ordisclosing confidential information.An employer was recently successful enforcing a nonsolicitationand non-competition clause because it was notoverly broad and freely agreed to.The factsThe employer was a large insurance brokerage offeringa broad range of commercial and consumer insuranceto clients. In the insurance context, the point of contactbetween client and the company is a specialized salesrepresentative who usually has intimate knowledge ofthe inner workings of the business and the needs andinterests of each client. Due to this unique relationshipbetween representative and employee, it is common toplace provisions in employment agreements, which restrictthe ability of an employee, post employment, to competewith or solicit clients from an employer in the event that anemployee leaves an insurance brokerage.In the present case, the employee became a key personin the marine insurance division, and was eventuallyappointed senior vice-president of the division, anexecutive position. Upon being appointed to this position,the employee’s promotion was subject to an employmentagreement, prohibiting him from competing with theemployer, soliciting the employer’s clients or employees, orusing the employer’s confidential information for a period of12 months after leaving the employer.5CHARLOTTETOWN FREDERICTON HALIFAX MONCTON SAINT JOHN ST. JOHN’S STEWARTMCKELVEY.COM & FOLLOW US ON TWITTER

What this means for youEvery effort should be made to get settlement agreementsand releases formalized in writing. However, this decisionprovides some wiggle room for employers where there isevidence to show that an agreement was reached in a “nontraditional”way. Courts will decide whether an objectiveobserver would conclude that an agreement was reached,even though there may not be a formalized agreement andrelease in place.This decision is in keeping with a number of previous casesfrom Canadian courts which have held that an informedemployee can negotiate severance compensation andthat the employee’s signed release may be enforceableagainst any wrongful termination claims. We now see anon-traditional release being enforced as a result of Bland.Employers should be careful to save all emailcorrespondence and document any negotiations they havewith employees when discussing the terms of a severanceof the employment relationship. Employers should alwaystry to get clear, documented confirmation that the employeehas agreed to fairly negotiated terms, and that any potentialclaims for wrongful dismissal will be precluded throughacceptance of the termination package.If an employee brings a wrongful dismissal suit after theemployer has taken these precautions, the employer will bein a good position to have the action dismissed.Michelle BlackHalifax, NS902.420.3332mblack@stewartmckelvey.comLara MacDougallFredericton, NBSummer StudentOntario Court saysemployers do not have dutyto provide safety training onwork function unrelated tojobIntroductionEmployers have a duty, under Occupational Health andSafety legislation, to provide information, training andsupervision to workers to protect their health and safety.An Ontario Court recently held that an employer does nothave a duty to train an employee on a function that fallsoutside his or her job description.The factsIn this case, the employee worked as an EmergencyMedical Services manager at the West Parry Sound HealthCentre. The manager asked a clerk to file a requisition formaintenance to repair a malfunctioning air conditioningand heating unit. When the manager was advised themaintenance department may not be available to fix the unituntil the following day, he decided he would attempt to fix theproblem himself. He asked for the assistance of one of hisco-workers, however, that co-worker was then called away.Without speaking to anyone else, the manager removeda ladder from the wall of an ambulance and climbed theladder to check the heating and air conditioning unit. Whenthe manager reached the top of the ladder, it gave way andhe fell approximately 15-20 feet to the ground, landing onhis back and suffering serious injuries.The Ministry of Labour laid charges against the employerpursuant to the Occupational Health and Safety Act,alleging a failure to properly train the manager on ladderuse.8CHARLOTTETOWN FREDERICTON HALIFAX MONCTON SAINT JOHN ST. JOHN’S STEWARTMCKELVEY.COM & FOLLOW US ON TWITTER

The decisionThe court decided that the manager acted without theemployer’s direction or approval and that the accident wasnot foreseeable. It was found that in these circumstances,the employer did not have a duty to provide training to themanager on such use of a ladder. The court’s rationalewas that at the moment of the accident, the manager wasnot doing work required by his employer or work relatedto his job. Importantly, the manager was aware of theproper procedure to have a maintenance worker check theair conditioning and heating unit, yet decided to climb theladder in order to check it himself.To illustrate its point, the court asked the following rhetoricalquestions:• “Would it be reasonable and necessary to provideinformation, instruction and supervision to a maintenanceworker on the proper use of a hypodermic syringe?” and• “If a nurse at the West Parry Sound Health Centre hurther hand while using a hammer and nail to hang apicture, would that be foreseeable and, therefore,necessitate training all nurses in how to use a hammerand nail?”The court stated that reasonable care and due diligencedoes not mean “super human” efforts and that the Actand regulations do not “mandate or seek to achieve theimpossible entirely risk-free work environment”.What this means for youThis decision confirms that, as an employer, your dutyto provide information, instruction and supervision isnot unlimited. Employers who provide proper training toemployees, relating to their specific job requirements, arenot expected to offer training in other skills or in dutiesand hazards unrelated to their specific roles. Therefore, ifan employee is acting outside his or her job description,and is injured in an accident that was not foreseeable, it isunlikely you, as the employer, would be convicted under theapplicable occupational health and safety legislation.Ellen OakesFredericton, NB506.444.8970eoakes@stewartmckelvey.comSheila LanctotFredericton, NBSummer StudentMaking sense of scents inthe workplacePrior to the mid 1990’s, the issue of scents in the workplacewas virtually non-existent. By 2000, so called “HalifaxHysteria” erupted with the introduction of local by-lawsprohibiting perfume in many public places. In April 2000,The Globe and Mail published this article on the issuesaying:“The Halifax scent crackdown has drawn notice notonly in the Canadian Press but in The New York Times(“Canada Sniffs and Dislikes the Smell”), The Wall StreetJournal (“A City Smells Perfume and Holds Its Nose”)and Glamour magazine. The right-wing AmericanSpectator has just run a piece by professional skunksciencedebunker Michael Fumento. Dubbing thescent ban the “Halifax holy war,” Fumento dismissedthe entire North American anti-scent lobby, declaringthat “nowhere is it worse than in ocean-fresh Halifax.”The issue continues to arise more than ten years later athuman rights tribunals, workers’ compensation claims andgrievance arbitrations. Just recently, in the Ontario HumanRights Tribunal decision of Kovios and InteleservicesCanada Inc.,the result was that there was no discrimination.However, the Tribunal only reached that conclusion afterconducting a full hearing at substantial cost (unrecoverable)9CHARLOTTETOWN FREDERICTON HALIFAX MONCTON SAINT JOHN ST. JOHN’S STEWARTMCKELVEY.COM & FOLLOW US ON TWITTER

y the employer to defend. The following is our review ofthat case followed by tips on dealing with scents at theworkplace.The factsInteleservices operates a call center comprising two shiftsand approximately 200 agents. As per industry standard,the workplace consisted of a large open space with rows ofcubicles each with four foot walls. When interviewed for thejob in January 2010, the applicant told the recruiter she hadscent sensitivity and asked if this would be a problem. Shewas told that although there was a fragrance-free policy,with over 200 people working in the same area it would notbe possible to rule out any exposure.As part of its orientation training attended by the applicantand other new hires, a trainer reviewed Inteleservices’policies and procedures, including the fragrance-freepolicy. The applicant claimed that she immediately noticedthat another member of the orientation group was wearingperfume. The applicant began to develop a migrainetypeheadache, a symptom of her sensitivity. She did notsay anything to the individual wearing the perfume or thetrainer until the end of the day when she told the trainerthat “someone” was wearing a fragrance and this was aproblem for her.The applicant returned for the second day of training in thesame room the next day. The applicant testified that theperfume was present again but she did not say anythinguntil the break. At that time, she told the trainer that shemight have to leave and identified the individual wearingthe perfume. The trainer provided a fan thinking it mightsolve the issue but it did not.The third day of training took place in the same room andthe applicant said that she did not notice any fragrancein the small room. The group then moved to a largertraining room with better ventilation – a move allegedlymade by Inteleservices to accommodate the applicant.Unfortunately, the applicant encountered a perfume smellin the large room and she complained to the trainer sayingshe didn’t think she could continue. The trainer suggestedthat they leave the training group and the applicant couldfinish her training by shadowing a worker on the call centrefloor. The applicant then claimed that individual she wasshadowing was wearing perfume and she believed thatfurther exposure would only make her feel worse. After10 minutes, she left the workstation and told the managerthat she had to leave work. The applicant testified that themanager had no suggestions on how to accommodate herand so she left the workplace.The following day the applicant called Inteleserviceslocally and its head office in the United States to complainabout her experience. Not satisfied with the results ofthose phone calls, she eventually contacted the HumanRights Commission. In a nutshell, her complaint was thatInteleservices did not enforce its scent-free policy.What the tribunal saidBy now, you’re probably thinking that something’s missingand you’re right. No medical information. The entirecomplaint failed as a result of the applicant not taking stepsto follow her human rights obligation. Here’s what the vicechairof the Tribunal said:“[the human resources manager] should perhaps havepicked up on the applicant’s statement that she hadbeen unable to continue working in the call centre andthe applicant’s suggestion that the reason for this wasthat the respondent’s fragrance-free policy was notbeing enforced. However, in all of the circumstances ofthis case, I find that [the human resources manager’s]failure to clarify the situation does not mean that therespondent discriminated against the applicant byfailing to accommodate. In particular, whether theconversation between the applicant and [the humanresources manager] occurred as the applicant was10CHARLOTTETOWN FREDERICTON HALIFAX MONCTON SAINT JOHN ST. JOHN’S STEWARTMCKELVEY.COM & FOLLOW US ON TWITTER

leaving the workplace or a few days later, the applicantdid not explain what accommodation she was seeking,apart from enforcement of the fragrance-free policy. Inthe circumstances of this case, it appears to me thatfrom the outset, the applicant had a positive obligationto accurately identify to the respondent what heraccommodation needs were and to clearly explainto the respondent why the solutions that had beenattempted were not adequate.”What this means for youThe following are top tips gathered from this case andothers on dealing with this issue at the workplace.1. If you have a policy, implement it, train on it andenforce it.If you have a scent-free policy make sure youimplement it and take steps to enforce it – setforth all stakeholder responsibilities including theaffected employee’s obligation to bring forwardspecific and individual concerns.2. Request clear and unequivocal objective medicalevidence when safe accommodation is an issue.Employers are entitled to clear and unequivocalobjective medical evidence to support anindividual’s safe return to work and accommodation.3. Take the time necessary to explore accommodationespecially when there is serious risk of harm.The accommodation process sometimes takes asignificant amount of time and particularly may doso when an employee’s safety or risk of re-injuryis at stake.4. Know the extent of accommodation requiredbased on the individual’s medical information andthe workplace.The employer’s duty to accommodate, wherethere is clear and unequivocal objective medicalevidence that it is safe for the employee to returnto work may include:(a)(b)(c)(d)Staff training;Working with the health and safetycommittees or representatives andothers to identify areas for improvementin air quality and air flow;Examining the possibility of air filtration;andWhere warranted, exploringtelecommuting.5. Sometimes accommodation may not be possible.The employer’s duty to accommodate endswhere there is no clear and unequivocal medicalevidence that it is safe for the employee to returnto work (i.e., there can be no reasonable level ofsureness that the employer can provide a safeenvironment).Grant MachumHalifax, NS902.420.3330ggmachum@stewartmckelvey.comAlison StrachanHalifax, NS902.420.3387astrachan@stewartmckelvey.comThis newsletter is intended to provide brief informational summaries only of legal developments and topics of general interest and does not constitute legal advice or create asolicitor-client relationship. The newsletter should not be relied upon as a substitute for consultation with a lawyer with respect to the reader’s specific circumstances. Each legalor regulatory situation is different and requires review of the relevant facts and applicable law. If you have specific questions related to this newsletter or its application to you, youare encouraged to consult a member of our firm to discuss your needs for specific legal advice relating to the particular circumstances of your situation. Due to the rapidly changingnature of the law, Stewart McKelvey is not responsible for informing you of future legal developments.11CHARLOTTETOWN FREDERICTON HALIFAX MONCTON SAINT JOHN ST. JOHN’S STEWARTMCKELVEY.COM & FOLLOW US ON TWITTER

Labour and Employment Group MembersCharlottetown, PETel: 902.892.2485Fax: 902.566.5283E-mail: charlottetown@stewartmckelvey.comDirect Dial Residence E-mailRosemary Scott, Q.C 629.4503 569.3021 rscott@stewartmckelvey.comTracey Clements 629.4538 569.3776 tclements@stewartmckelvey.comMurray Murphy 629.4558 892.8019 mmurphy@stewartmckelvey.comJanet Clark 629.4562 367.2141 jclark@stewartmckelvey.comStephen Carpenter 629.4556 687.2855 scarpenter@stewartmckelvey.comPatti Wheatley 629.4546 940.7431 pwheatley@stewartmckelvey.comFredericton, NBTel: 506.458.1970Fax: 506.444.8974E-mail: fredericton@stewartmckelvey.comDirect Dial Residence E-mailGordon Petrie, Q.C. 443.0150 459.8672 gpetrie@stewartmckelvey.comFred McElman, C.M., Q.C. 444.8979 454.2403 fmcelman@stewartmckelvey.comRichard Petrie 443.0155 455.0287 rpetrie@stewartmckelvey.comClarence Bennett 444.8978 454.8978 cbennett@stewartmckelvey.comMelissa Everett Withers 443.0131 454.2683 meverettwithers@stewartmckelvey.comEllen Oakes 444.8970 eoakes@stewartmckelvey.comChad Sullivan 443.0126 csullivan@stewartmckelvey.comCounselGérard La Forest, C.C., Q.C 443.0135 460.0992 glaforest@stewartmckelvey.comHalifax, NSTel: 902.420.3200Fax: 902.420.1417E-mail: halifax@stewartmckelvey.comDirect Dial Residence E-mailPeter McLellan, Q.C. 444.1717 425.5248 pmclellan@stewartmckelvey.comJohn Plowman, Q.C. 420.3322 423.4942 jplowman@stewartmckelvey.comBrian Johnston, Q.C. 420.3374 422.5896 bjohnston@stewartmckelvey.comGrant Machum 420.3330 477.6788 ggmachum@stewartmckelvey.comLisa Gallivan 420.3392 443.6230 lgallivan@stewartmckelvey.comRebecca Saturley 420.3333 423.8622 rsaturley@stewartmckelvey.comRick Dunlop 420.3384 229.7424 rdunlop@stewartmckelvey.comMark Tector 420.3358 225.0520 mtector@stewartmckelvey.comLevel Chan 420.3389 229.5838 lchan@stewartmckelvey.comAndrea Baldwin 420.3370 abaldwin@stewartmckelvey.comJessica White 420.3379 405.6472 jwhite@stewartmckelvey.comIan Breneman 444.1722 ibreneman@stewartmckelvey.comMichelle McCann 444.1724 440.7064 mmccann@stewartmckelvey.comSean Kelly 444.1742 471.5359 skelly@stewartmckelvey.comMichelle Black 420.3332 mblack@stewartmckelvey.comStaff LawyerAlison Strachan 420.3387 429.2174 astrachan@stewartmckelvey.comLana MacLellan 420-3321 lmaclellan@stewartmckelvey.comCounselDonald McDougall, Q.C 420.3312 443.6158 dmcdougall@stewartmckelvey.comMoncton, OfficeTel: 506.853.1970Fax: 506.858.8454E-mail: moncton@stewartmckelvey.comDirect Dial Residence E-mailAndré Richard, Q.C. 853.1962 384.3922 arichard@stewartmckelvey.comChristopher Stewart 383.2224 384.7115 cstewart@stewartmckelvey.comSacha Morisset 853.1942 383.6939 smorisset@stewartmckelvey.comJennifer Ronalds 853.1979 jronalds@stewartmckelvey.comKarine LeBlanc 383.2222 kleblanc@stewartmckelvey.comSaint John, NBTel: 506.632.1970Fax: 506.652.1989E-mail: saint-john@stewartmckelvey.comDirect Dial Residence E-mailJames LeMesurier 632.2776 652.8962 jlemesurier@stewartmckelvey.comStephen Hutchison 632.2784 shutchison@stewartmckelvey.comCatherine Lahey 632.8307 672.2602 clahey@stewartmckelvey.comVanessa Paton 632.8332 651.9765 vpaton@stewartmckelvey.comErik Homenick 637.9228 ehomenick@stewartmckelvey.comSt. John’s, NLTel: 709.722.4270Fax: 709.722.4565E-mail: st-johns@stewartmckelvey.comDirect Dial Residence E-mailHarold Smith, Q.C. 570.8895 753.8337 hsmith@stewartmckelvey.comIan Wallace 570.8839 739.9495 iwallace@stewartmckelvey.comRodney Zdebiak 570.8841 722.8538 rzdebiak@stewartmckelvey.comStephen Penney 570.8881 722.8874 spenney@stewartmckelvey.comTwila Reid 570.8828 237.1339 treid@stewartmckelvey.comRuth Trask 570.8893 728.9256 rtrask@stewartmckelvey.com13CHARLOTTETOWN FREDERICTON HALIFAX MONCTON SAINT JOHNST. JOHN’S STEWARTMCKELVEY.COM & FOLLOW US ON TWITTER