OLRB Makes First Ruling on Order for Workplace Investigation :

In. Erin McKenzie v Orkestra SCS Inc. ( 2023 Canli 13891 ( On LRB ) Roslyn McGilvery, Vice‑Chair, had an opportunity to comment on the following section of the Ontario Occupational Health & Safety Act:

Order for workplace harassment investigation

  55.3  (1)  An inspector may in writing order an employer to cause an investigation described in clause 32.0.7 (1) (a) to be conducted, at the expense of the employer, by an impartial person possessing such knowledge, experience or qualifications as are specified by the inspector and to obtain, at the expense of the employer, a written report by that person.

In this case there was a complaint by the the CFO / General Counsel  that she was being harassed by the CEO. The Company hired an HR Consultant to conduct an investigation but the CFO objected saying that the HR Consultant had a conflict of interest. At the same time the CFO filed a complaint with the Ministry of Labour and a Ministry Inspector was appointed .

Before the Inspector could even start the investigation, the HR Consultant withdrew from the assignment. The Company thereafter appointed a lawyer to conduct the investigation.

The CFO felt that this lawyer investigator  had insufficient investigation experience so she refused to participate in the investigation and appealed to the OLRB to appoint a new investigator .

The OLRB refused to do so on a number of grounds :

1 .As the Employer points out, the Act does not require individuals who conduct workplace harassment investigations under the Act to have any particular qualifications.  Further, the Act does not necessarily mandate the use of third-party investigators.  In the Board’s experience, such investigations are often conducted by individuals with a range of experiences and backgrounds, including (but not necessarily requiring) backgrounds in human resources and the law. 

2. It is not clear to me that an allegation that an employer has failed to conduct an investigation that is “appropriate in the circumstances” in most cases can be made pre-emptively, as opposed to requiring the worker to let an investigation run its course and then, upon its conclusion, having the opportunity to raise concrete examples of what allegedly rendered the investigation inappropriate.  After all, the ultimate result of an investigation may be favourable to the worker who filed the complaint, notwithstanding the worker’s initial misgivings.

My Comments;

In this particular case it was the Complainant who sought an order requiring the Employer to hire “an impartial person possessing such knowledge, experience or qualifications as are specified by the inspector.”

But it can also be the target of the investigation ( the alleged harasser ) who can also make this application.

However it seems that it is highly problematic for anyone to contest the qualification of the investigator until the perhaps unqualified investigator completes the investigation and their report. Presumably whoever does not like the outcome of the report ( as there is generally at least one disappointed party) could then ask the Ministry of Labour to force the Employer to do the whole investigation a second time.

This seems to me to be a real bad idea.

First,  we should assess at the beginning of the process if the investigator is “an impartial person possessing such knowledge, experience or qualifications as are specified by the inspector.” 

If this was a hearing before the OLRB and one of the parties felt that the Vice Chair had a conflict of interest ( in other words was not an impartial person ) that party would be required to make the application to recuse at the earliest possible time.

It would be absurd to say ” I will only complain about the conflict of interest if I  lose.”

This is like Trump saying ahead of the election that he will only accept the legitimacy of the vote if he wins.

Second, workplace investigations can be  extremely damaging to many workplaces,  not only to  the complainant and the target but also to co-workers.

These investigations can go on for months or years and be very costly in terms of money, time and morale.

To go through this  process twice would be unbearable.

Third, the new second investigator would presumably interview many of the same witnesses. What if there were differences between the two interview answers? Is the  new investigator permitted to rely on this differences in assessing the witness’s credibility? What if relevant witnesses are no longer available or refused to participate a second time?

Fourth, Section 53.3 speaks of. “knowledge, experience or qualifications” of the investigator. 

It does not deal with how the investigator actually handled a particular investigation. An investigator who was well qualified could still make an error in their investigation . Does this mean the Ministry of Labour Inspector and/ or the OLRB is to act as if they were conducting a judicial review of the investigation?

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Disclosing Medical Use of Cannabis After Withdrawal of Job Offer Not Discrimination :

In Greidanus v Inter Pipeline Limited, 2023 AHRC 31, Member Oshionbo of the Alberta Human Rights Tribunal had the following situation:

The Complainant applied for a safety sensitive job and was accepted subject to a pre-hire drug test.

He failed the test as it was shown that he had THC in his system.

The Company then revoked the offer of employment.

The Complainant then told the Company for the first time that he was taking medical cannabis for a PTSD condition.

The Tribunal ruled that since the employer had no knowledge of the Complainants’ disability BEFORE they retracted the offer of employment, the decision to retract the offer was not discriminatory.

The Tribunal also ruled that there was no duty to inquire nor to accommodate because there was no evidence of prima facie discrimination in the first place.

My Comments :

This case emphasizes that there must be evidence which shows the employer knew of or ought to have known of the disability in order to prove that an act of the employer was discriminatory.

However everybody knows that cannabis ( which is perfectly legal ) can be used for either valid medical purposes ( as it was in this case) or just to get stoned.

Therefore since the employer relied solely on the fact that the Complainant had THC in his system, should they not have a positive obligation to inquire of him why he was using cannabis to see if there was a valid medical reason ?

Is not asking a classic example of willful blindness?

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Doctrine of Frustration Applied in a Vaccine Refusal Case :

In Croke v VuPoint Systems ( 2023 ONSC 1234) Justice Pollak had a situation where the Plaintiff worked as an installer for the defendant whose only client was Bell. Bell imposed a rule on all of its contractors that anybody working on Bell matters must be vaccinated. The Defendant therefore adopted its own mandatory vaccine policy which said that if anyone refused they would not be assigned any work .

The Plaintiff refused to have the vaccine. He was then terminated .

The Court determined that the employment agreement had been frustrated because :

1) None of the parties at the time the employment relationship was formed in 2014 could reasonably have anticipated the COVID epidemic and the imposition of a vaccine policy by their only client.

2) The requirement of mandatory vaccination was brought on by a third party, Bell. and as such was an unforeseen intervening event.

3) As result of the policy and the plaintiff’s decision, he was no longer capable of performing the essential duties of his job

The result of this finding was that the employee was not entitled to common law reasonable notice.

My Comments:

One may ask how this could be frustration when the Plaintiff could have avoided this result by simply taking the vaccine ?

Justice Pollack found that this was like the case of an employee who was incapable of performing their job due to either a lack of security clearance or a loss of a professional license.

She said as follows:

” The fact that the Plaintiff could have chosen to be vaccinated does not mean that he was in default as the circumstance which caused the frustration was the result of a decision by Bell, not the plaintiff or the Defendant . “

I disagree.

Unlike those loss of ability to work cases where the restriction is imposed by a third party over which the employee has no control, in this case the Plaintiff made himself unable to work by refusing to be be vaccinated.

In any event, the outcome is the same as frustration of contract means the employee is not entitled to either statutory or common law notice.

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Employer Cannot Change a No Cause Dismissal into Just Cause Dismissal After Being Sued:

In Alayew v The Council for the Advancement of African Canadians in Alberta, 2023 ABKB 113 Justice Lema started off his judgement in the following fashion :

I. Introduction
[1] Can a without-cause dismissal be recharacterized later as for cause when the material circumstances were known to the employer before the dismissal?
[2] The answer is no.

I wish all judgements could so clear.

The relevant factors in this case were as follows:

1. The Defendants’ Board of Directors in their resolution terminating the Plaintiff ( who was the Executive Director ) said the termination was without cause.
2. The termination letter said it was without cause.
3. They paid him his minimum entitlement under the ESA which would not be payable if the was terminated was for just cause.
4. They never alleged any misconduct.

But here is the real backstory.

* A bunch of employees filed a harassment complaint against the Plaintiff .
* The Defendant hired an indépendant investigator to conduct a harassment investigation.
*The investigator did its job, interviewed the relevant parties and issued an interim report which said that the Plaintiff did not harass anyone.
* Having knowledge of this report, but apparently not relying on the report, the Board then made the decision to terminate and not allege cause .
* When the final report came out ( after the termination ) it confirmed the investigator’s conclusion that no harassment had occurred.
*The Defendant offered no evidence about why they decided to terminate the employment of the Plaintiff.
* The Defendant did not acquire any new information after the dismissal that they didn’t already have before the dismissal .
* In other words, they just thought they could change their mind, like changing your clothes.
* One of the the Board members was a lawyer but he stated that he did not know employment law. He advised the Board to hire an employment lawyer before the termination. The Board did eventually hire an employment lawyer( who presumably told them they did have just cause) but only after the actual termination.

My Comments:

This reminds me of when I practised as an advocate. Every single time one of my plaintiff clients was under investigation for alleged harassment , the result was always a dismissal. If the investigation found that the plaintiff was at fault the employer alleged just cause. If the finding of the investigator was no harassment the employer would say that they lost confidence in the employee and they would terminate without just cause.

Either way the employee lost his or her job.

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ONCA Makes Rulings About Post Dismissal Bonus Entitlements :

In Celestini v. Shoplogix Inc., 2023 ONCA 131 Justice Zarnett made the following rulings about the Plaintiff’s entitlement to a bonus payment over the 18 month notice period :

1. The clauses in the bonus agreements repeatably used the words ” employment terminates ” and ” termination of employment ” . The Defendant said that means if we we terminate your employment on March 1st then that ends your bonus entitlement. However the Court of Appeal goes right back to their 1999 decision in Veer v Dover ( and quoted in the SCC in Matthews v. Ocean Nutrition Canada Ltd., 2020 SCC 26) when it says :

” Yet, it bears repeating that, for the purpose of calculating wrongful dismissal damages, the employment contract is not treated as “terminated” until after the reasonable notice period expires. So, even if the clause had expressly referred to an unlawful termination, in my view, this too would not unambiguously alter the employee’s common law entitlement.”

In other words, when a bonus plan says termination it must mean a lawful termination and a lawful termination only takes place at the END, not the BEGINNING, of the reasonable notice period.

2) As there was no evidence as to what the bonus would have been had the Plaintiff been able to work out his notice period, the judges’ use of a three year average was a proper method of calculating the bonus over the notice period. Had there been actual evidence of what the bonus would have been, the result would likely be different.

3) The time period between the end of the last bonus period and the termination is what I call the ” stub bonus “. If the bonus year ended on December 31 2020 and the person is terminated on March 31, 2021 then he is entitled to a bonus both for the stub period and the reasonable notice period. Lawyers sometimes miss this issue as they tend to focus on notice period payment and forget about the stub period. In this case the Plaintiff was paid about $50,000 for the stub period which the trial judge deducted from the wrongful dismissal damages. The Court of Appeal corrected that mistake and said that the amount properly allocated to the stub period ( about $37,000 based on the three year average ) was not to be counted as a payment towards the damage award.

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You Don’t Get Two Kicks on the Same Facts Says the HRTO:

In Almseideen v. McKesson Canada, 2023 HRTO 255 , Adjudicator Cherniak had a situation where an applicant had filed a HRTO complaint claiming that he was terminated in breach of the Code and also filed a civil wrongful dismissal action which claimed wrongful dismissal damages due to the the failure to receive proper notice .

The Tribunal noted that the civil action did not contain any allegations of a Code violation, although they could have added such a claim to the civil action but choose not to do so .

This is what the Adjudicator said :

17]     The Tribunal addressed the application of subsection 34(11) of the Code in Zheng v. G4S Secure Solutions (Canada) Ltd., 2019 HRTO 407 (affirmed by 2022 ONSC 93, leave to appeal to the Court of Appeal refused). In that case, the Tribunal found that although the applicant removed any mention of Code-based allegations from their civil claim, the allegations set out in the application and the civil claim were virtually identical in their substance. The Tribunal then dismissed the application for that reason. As the Divisional Court stated at paragraph 37:

This is not a question of shaping the civil action so as to avoid reference to the allegation of discrimination. The facts are the same. A self-represented party would not be aware of our courts’ general antipathy to a multiplicity of proceedings. Having decided to go to court, relying on the same impugned actions as those alleged to have been discriminatory in a complaint to the Human Rights Tribunal of Ontario means that the Court is in a position to deal with the matter fully, including any allegation of discrimination. In short, you do not get two kicks at the same set of facts.

My Comments :

This should put an end to at the plaintiff practice of starting a clean wrongful dismissal action and also bringing a HRTO application claiming that there was discrimination at play. This tactic was developed for several reasons.

First it forced the Defendant to fight in two places which would increase their sunk legal costs in so far as there is no costs awards at the HRTO.

Secondly if the Plaintiff lost the civil action they could still try the Tribunal route, again with no risk of an adverse cost award.

This tactic was intended to put extra pressure on the Defendant to settle .

I suspect one of the reasons for the Tribunal decision is to try to lessen their outrageous backlog.

A more recent decision of the HRTO confirmed the same position. See Koufis v. James Campbell Inc. o/a McDonald’s Restaurant, 2023 HRTO 475 (CanLII)

Quere: If the civil courts can easily handle Code based cases, then why do we even need the HRTO?

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Two Cases Award Modest Damages for Manner of Dismissal :

In Teljeur v Aurora Hotel Group , 2023 ONSC 1324, Justice Mckelvey awarded moral damages of $15,000 to a dismissed GM of a resort for the following reasons:

  1. They did not pay him his ESA minimums within the 7 days set out in the ESA.
  2. They promised him 8 weeks severance but then paid only the ESA minimums of 2 weeks.
  3. The Plaintiff repeatably asked for a termination letter in writing ( as required by the ESA ) but the defendant failed to do so .
  4. The Defendants acknowledged at the termination meeting that the plaintiff was owed over $16,000 in expenses but failed to pay it, even as of the time of trial. This constituted 23% of the plaintiffs annual income.

In Starling v Independent Living Resource Centre of Calgary, 2023 ABPC 31, Judge Argento of the Provincial Court awarded $2,000 as aggravated damages for the following reasons

•         The Defendant terminated the Plaintiff while she was on sick leave and without having received any updated medical evidence indicating she was well enough to return to work.

•         The Defendant made no effort to call the Plaintiff to check on her health before it threatened to terminate, and eventually terminated, her employment.

•         The Defendant initially told the Plaintiff that she could not come to the office while on sick leave and that she would need medical clearance to return to work.  On September 26, the Defendant indicated, for the first time and without warning, that her employment could be terminated.

•         On September 26, the Defendant also advised the Plaintiff she would be dismissed for cause if she did not provide further information in two days. The two-day deadline was inadequate given the absence of any prior warning. It was also unreasonable to expect the Plaintiff to be able to obtain updated medical information in that time frame.

•         The Defendant advised the Plaintiff she had no sick leave or vacation days left even though Mr. Hagel’s May 3 email stated otherwise.  The Defendant did not check its files properly and failed to identify Mr. Hagel’s earlier email before placing the Plaintiff on unpaid, rather than paid, sick leave.


My Comments :

Courts seem to be increasingly willing to punish employers who do not conduct terminations in a sensitive and reasonable manner.

Playing hardball with a Plaintiff at their time of extreme vulnerability can be a costly affair.

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