This presentation was delivered by FMC's Catherine Coulter at FMC's Annual Employment Law Client Appreciation Seminar on Febraury 22, 2012. It addresses new and upcoming trends in Employment Law, restrictive covenants, contractual termination packages, the 24 month cap, Bill 160, Family Caregiver Leave, The Tort of Privacy, and the Accessability for Ontarians with Disabilities Act.

1. FMC’s Annual Employment Law Client
Seminar
Presented by: Catherine Coulter
Phone: 613-783-9660
Email: Catherine.Coulter@fmc‐law.com
LinkedIn: http://www.linkedin.com/pub/catherine‐coulter/23/403/b3a
1

2. WHAT’S NEW & EXCITING THIS YEAR?
“Watch Your Words!”
• In the June decision of the Ontario Superior Court of Justice in
the case of Strizzi v. Curzons, the court found that yelling and
swearing at employees can constitute constructive dismissal.
2

3. WHAT’S NEW & EXCITING THIS YEAR?
Good Luck With Enforcing Restrictive Covenants
• In the May 2011 Ontario Court of Appeal case of Mason v.
Chem‐Trend, the court struck down a 1 year worldwide non‐
competition agreement which precluded the employee from
working for thousands of customers, some of whom he had
never had contact with and some of whom the company
itself had not dealt with in years
3

4. WHAT’S NEW & EXCITING THIS YEAR?
Duty to mitigate even in light of a contractual
termination package
• In the July 2011 Ontario Superior Court of Justice case of
Bowes v. Goss Power Products, the court found that an
employer who cut off termination payments after a few days,
notwithstanding that the contract provided for a 6 month
package, was justified in doing so because the employee had
fully mitigated his damages
4

5. WHAT’S NEW & EXCITING THIS YEAR?
Does the 24 month cap exist any longer?
• In the November 2011 Ontario Superior Court of Justice case
of Hussain v. Suzuki Canada, the court blew past the 24 month
cap and awarded 26 months of notice to a 36 year employee
who was almost 65 years old
5

6. WHAT’S NEW & EXCITING THIS YEAR?
Bill 160
Bill 160 proposes further amendments to the OHSA. While it received Royal Assent
on June 1st, many parts of it will not come into effect until April 1, 2012. Among
other things, Bill 160 provides that:
(i) responsibility for prevention of workplace injuries and accidents has been
transferred from WSIB to the MOL;
(ii) where the OHSA requires training be provided by employers, including training for
Joint Health & Safety Committees, the new Chief Prevention Officer has the
authority to establish standards for that training;
(iii) the Ministry of Labour will be producing a new health and safety poster that
employers will be required to post; and
(iv) it has been recommended that a standard be developed to establish health and
safety awareness training for employees at the entry level and for supervisors
6

7. WHAT’S NEW & EXCITING THIS YEAR?
Family Caregiver Leave
On December 8th, the Ontario Government introduced an amendment to
the ESA (Bill 30) which, if passed, would create a new Family Caregiver
Leave as of July 1, 2012. The purpose of the leave is to give caregivers up
to 8 weeks of unpaid leave to care for a relative who is suffering from a
“serious condition”. This is in addition to other leaves such as Family
Medical Leave (which applies when a relative is terminally ill) and
Emergency Leave (which provides for one‐off absences to deal with
sickness and other emergencies). The provincial government has indicated
that if the Bill passes into law, it will press the federal government to
approve EI benefits for employees who are required to take Family
Caregiver Leave.
7

8. WHAT’S NEW & EXCITING THIS YEAR?
The Tort of Privacy
• The Ontario Court of Appeal essentially created a new tort in
January of 2012 in the case of Jones v. Tsige
• The tort, which is for breach of privacy is called “intrusion
upon seclusion”
• Damages for breach of privacy appear limited however, and
even in this case, which cried out for a remedy, the damages
awarded were only $10,000
‐ The case has been appealed to the Supreme Court of Canada
8

9. ACCESSIBILITY FOR ONTARIANS WITH
DISABILITIES ACT, 2005 (AODA):
• the AODA applies to provincially regulated employers only
• The AODA has 3 standards, one of which (the Customer Service Standard
regulation), came into force on January 1, 2008
• under the Customer Service Standard, private sector and non‐profit
organizations that provide goods & services directly to the public or to third
parties (other organizations in Ontario) and that have 1 or more employees
in Ontario, must be compliant by January 1, 2012. The requirements also
apply to every volunteer, agent, contractor or other person in the
organization who deals with members of the public or other third parties on
behalf of the company. The compliance date for public sector employers
was Jan. 1, 2010.
9

10. • in addition, the Integrated Accessibility Standards regulation
under AODA came into force on July 1, 2011 but with 2
exceptions, most of the deadlines for compliance are in 2014
or 2015
• For help, go to:
• http://www.mcss.gov.on.ca/documents/en/mcss/accessibility/
Tools/AO_EmployerHandbook.pdf (employer handbook)
• http://www.mcss.gov.on.ca/documents/en/mcss/accessibility/
Tools/TemplatePlan_en.pdf (template plan)
10

11. Requirements under the Customer
Service Standard (as of Jan. 1, 2012):
• develop general policies and procedures related providing goods and services to persons
under disability
• develop general policies and procedures related to the use of service animals and support
persons
• train everyone in the organization who deals with the public or third parties (ie. other
businesses)
• establish a process to allow for feedback on how the organization is doing when it comes to
providing goods and services to persons under disability
• if there are 20 employees or more, document not only the policies and procedures but also
the employee training records, and let the public know that they are available upon request in
an accessible format
• if there are 20 employees or more, file an annual accessibility report with the provincial
government
11

12. Requirements under the new Integrated
Accessibility Standard:
• there are two new standards under this heading that will apply by Jan. 1,
2012:
(i) employer must provide individualized workplace emergency response
information to employees who have a disability where the information is
necessary and the employer is aware of the need for accommodation;
and
(ii) for organizations which prepare emergency plans and procedures and
make that information available to the public, those organizations must
provide the information in an accessible form, upon request
12

13. • the rest of the standards will be rolled out over time, depending on the size
and type of organization
• develop a policy explaining how the organization will achieve accessibility
under the Act (to be in place by Jan. 1, 2013 for large public sector
companies; by Jan. 1, 2014 for small public sector and large private sector
and non‐profits; and by Jan. 1, 2015 for small private sector and non‐
profits)
• provide training to all employees, contractors, agents and volunteers on
the regulation and Human Rights Code requirements in regard to persons
with disabilities (by Jan. 1, 2014 for large public sector companies; by Jan.
1, 2015 for small public sector and large private sector and non‐profits; and
by Jan. 1, 2016 for small private sector and non‐profits)
13

14. • must notify employees and the public about the availability of
accommodation for applicants with disabilities during the
recruiting process and when making offers of employment
• if requested by employees, employer must provide employee
communication in an accessible format
• for large private sector and non‐profits, employers must also:
(i) develop a multi‐year accessibility plan and post it on the
company’s website by Jan. 1, 2014; (ii) maintain records of
training programs to ensure compliance; (iii) establish
individualized accommodation plans; and (iv) develop a return
to work process for employees who have been absent with a
disability and require accommodation to return
14

15. • simply put, under the Employment Accessibility Standard which is part of the
Integrated Accessibility Standards, employers will, in the future, need to:
(a) notify potential applicants about the availability of accommodation in
respect of disabilities (eg. add something in this regard to job postings and
application forms);
(b) make it known to job applicants with disabilities, who make it past the initial
application stage, that accommodation is available through the balance of
the application process;
(c) provide application accommodation where requested throughout the
balance of the employment cycle, including with respect to
communications, performance assessments and career advancement
decisions
• finally, it’s important to note that this standard only applies to paid employees and
not volunteers or other unpaid individuals. In addition, it’s important to note that
the term “employee” has not been defined in this standard and as a result, we
don’t yet know whether or not it will apply to contractors
15

16. THANK YOU FOR JOINING US! ANY QUESTIONS?
Presented by: Catherine Coulter
Phone: 613‐783‐9660
Email: Catherine.Coulter@fmc‐law.com
LinkedIn: http://www.linkedin.com/pub/catherine‐coulter/23/403/b3a
16

17. The preceding presentation contains examples of the kinds of
examples companies dealing with HR issues could face. If you are
faced with one of these issues, please retain professional
assistance as each situation is unique.