Professor St. Lewis is a law professor at the University of Ottawa, specializing in race relations and social equity issues.  At the request of the University, Professor St. Lewis prepared a report in which she found there was no systemic racism at the university.  Rancourt published a blog post that was extremely critical of Professor St. Lewis’ findings, and in which he, quite unfortunately, used a racial slur against St. Lewis when criticizing her findings.

St. Lewis commenced a defamation claim against Rancourt and, during the litigation, her lawyer asked Rancourt to produce a list of the Facebook friends belonging to a Facebook group that Rancourt administered, and where he had posted the blog post that was the subject of the libel litigation.  A list of the defendants Twitter followers was also requested.

Rancourt refused to disclose his Facebook friends list on the ground that it was not relevant to the action.  St. Lewis disagreed, and sought production of the friends list, arguing that it was relevant to S. Lewis’ damages, so that she could assess how the community received Rancourt’s comments and the scope of the dissemination of his blog post.

The issue was brought before the Court and the judge agreed with St. Lewis that Rancourt was required to provide a list of his 402 Facebook friends who would have access to messages he had posted about S. Lewis and the defamation action on Facebook.  The Court also required Rancourt to produce a list of his Twitter followers, who would have seen Rancourt’s comments about St. Lewis.  The Court found that the Facebook friends and Twitter followers lists were relevant and went to the issue of the defendant’s malice and the potential harm and damage to St. Lewis’ reputation.

This decision illustrates the complexities associated with managing and producing electronic information and documents in civil litigation, and that courts will not hesitate in ordering litigation parties to disclose Facebook and other social media information where it is relevant to the issues under dispute.

Mr. Branco had workers compensation benefits and group long term disability insurance coverage through his employment, which were administered and paid by two companies, American Home Assurance Company (“AIG”) and Zurich Life Insurance (“Zurich”), respectively.

Although Mr. Branco initially received some insurance benefits from AIG to replace his lost income, AIG stopped paying his benefits just a few months after approving his insurance claim.  After withholding his disability benefits for two months, AIG then offered Mr. Branco a lump sum payment of $22,500 to settle his entire insurance claim.  Mr. Branco was 50 years old at the time of his injury and was earning just under $52,000 a year.  AIG’s lump sum settlement offer represented less than six months of wages, even though Mr. Branco was potentially entitled to lost wages and other health care benefits up to the age of  65.  Mr. Branco refused the company’s low-ball offer, commenced a legal claim, and spent the next several years being subjected to arbitrary suspensions of his benefits from the company and ongoing requests for medical reports, despite the fact that he was permanently disabled and clearly entitled to benefits.

For its part, Zurich allowed Mr. Branco’s long term disability claim to become lost in an administrative black hole and delayed the payment of Mr. Branco’s long term disability benefits for a period of nine years, despite the fact that the company had approved Mr. Branco’s claim when he first applied in 2003.  After receiving his application for long term disability benefits, and before issuing any payments, Zurich also offered to settle Mr. Branco’s claim for a lump sum of only $53,600, despite the fact that Mr. Branco was entitled to over 10 years of lost wages benefits, worth more than $500,000 over the life of his disability insurance claim.

After his benefits were first suspended, Mr. Branco commenced a statement of claim against AIG and Zurich for breaching their contractual obligations to provide him with disability benefits.  In March 2013, the Saskatchewan Queen’s Bench court released its decision in Mr. Branco’s case.

The Saskatchewan Court found that the companies had breached their contractual obligations to pay Mr. Branco’s benefits and had acted unfairly and in bad faith.  The court was particularly aghast at the insurance companies for withholding payments, then offering to settle both claims for far less than their actual value.  The Court found that the act of withholding benefits placed undue pressure on Mr. Branco to accept a low settlement, as he would have no income upon which to live unless he accepted the offers.  Describing the insurance companies’ conduct as cruel, malicious and torturous, the Court ordered punitive and aggravated damages of $4.95 million against AIG and Zurich, as well as Mr. Branco’s legal costs and all of the benefits he was entitled to under his policies.

Significantly, the Court also ordered AIG and Zurich to continue Mr. Branco’s monthly disability benefits until the age of 65, and ordered AIG to reimburse him for his medical expenses for the rest of his life, as required by the policy.

In justifying this large punitive damages award, the court observed that a punitive damages award of $3 million may not be particularly significant to the financial bottom line of a successful worldwide insurance company.  The Court stated that it hoped that the award would gain the attention of the insurance industry, so that it would recognized “the destruction and devastation” caused by “failing to honour their contractual policy commitments” to insured persons.  The full text of the Court’s decision can be found here: Branco v American Home Assurance Company, 2013 SKQB 98 (CanLII).

The grievor, JF, was a 10-year employee of Agropur Division Natrel, a leading Canadian dairy products producer.  JF worked as a labourer and held the position of Pouch Pack Machine Operator at the time of his termination in October 2010. Natrel terminated JF for frustration of contract due to erratic and violent behaviour that it could not accommodate in the workplace.  JF is a person with disabilities including PTSD, ADHD, and Type B personality disorders.  Psychotic outbreaks in the workplace occasionally occurred.  JF had a poor attendance record and was absent for 130 days in the final year of his employment, two months of which were spent as a patient at the Program for Traumatic Stress Recovery, Homewood Health Centre.

The union argued that JF’s termination was in breach of the Ontario Human Rights Code (“Code”) on the ground of disability and sought reinstatement to active work.  In the alternative, the union argued that JF should be reinstated so that he could apply for long-term disability (“LTD”) benefits through the employer’s group plan.  Following termination, JF had applied and been approved for both Ontario Disability Support Program (“ODSP”) and Canada Pension Plan (“CPP”) disability benefits.  Although this was evidence of JF’s “total disability,” the union argued that the purpose of these benefits were income support, whereas the Code is based upon recognition of an individual’s inherent dignity and self-respect.  The union argued that JF had demonstrated ability to work safely for 10 years and that his disabilities could be properly managed with medication and mental health support.

The employer argued that JF posed a safety risk to other workers and that it could not accommodate him short of undue hardship.  After JF was released from Homewood Health Centre the employer and union met to discuss possible accommodation plans.  However, JF had also exhibited further erratic and violent behaviour after being released including attempting to enter the work premises with his pit bull and engaging in allegedly threatening behaviour.  At the time of his termination, the employer informed JF of his eligibility to apply for LTD benefits, but he did not do so.

Arbitrator Kaplan decided that this was not an appropriate case for reinstatement to active work, but that JF should be reinstated without compensation for the sole purpose of applying for LTD benefits.  Arbitrator Kaplan accepted the employer’s arguments, supported by objective medical evidence, that JF posed a safety risk to other employees in the workplace and that accommodating JF under the Code would cause the employer undue hardship. Approval for both CPP and ODSP were further support that JF was totally disabled and could not perform the essential duties of his job.

This case illustrates a creative solution to a difficult problem.  Both parties accepted the objective medical evidence that JF was disabled with severe mental health illnesses.  Despite this, both parties also sought to find a way to support JF.  Reinstatement for the purpose of applying for LTD benefits was one novel way to provide the necessary income support to JF while also recognizing the employer’s inability to accommodate reinstatement to active work short of undue hardship.

Fiona Johnstone and her husband worked as border services officers for the Canadian Border Services Agency (“CBSA”) at Pearson Airport.  Both Ms. Johnstone and her husband were full-time employees who performed rotating and fluctuation shift work.  After she had children, Ms. Johnstone was unable to secure a child care provider that would work around her fluctuating and unpredictable schedule.  Accordingly, Ms. Johnstone requested fixed full-time hours from her employer, so that she could secure child care and continue in her career with the CBSA.

CBSA agreed to give Ms. Johnstone fixed hours on a part-time basis only, and refused to give her full-time fixed hours.  Being reduced to part-time status meant that Ms. Johnstone was not eligible for the benefits, pension, and promotion opportunities available to full-time employees.  Ms. Johnstone asked to remain on full-time status and offered to top up the pay difference to maintain her full time status, but this was denied by CBSA.

Ms. Johnstone brought a complaint to the Canadian Human Rights Commission, and the Commission’s finding that Ms. Johnstone was discriminated against on the basis of her family status was upheld by the Federal Court.

The Court found that CBSA’s refusal to grant Ms. Johnstone full-time status was arbitrary.  CBSA had accommodated its employees who requested full-time fixed schedules for religious and medical reasons; however, Ms. Johnstone’s request for full-time fixed hours was rejected without serious consideration.  The Court agreed that there would be no undue hardship to CBSA to grant Ms. Johnstone’s accommodation request.

In its decision, the Court explained that a prima facie case of discrimination is established when an employment related rule or policy “interferes with an employee’s ability to fulfill her substantial parental obligations in any realistic way.”  Once a prima facie case is established, it will be up to the employer to show that the rule or policy is a “bona fide occupational requirement” and that it could not accommodate the employee due to undue hardship, financial or otherwise.

As a remedy, the CBSA was ordered to compensate Ms. Johnstone for her lost wages and benefits, and lost pension contributions she would have received during the period in question, in addition to $35,000 in damages.

Trish-Ann Tremblay filed a human rights application against her former employer, a fast food restaurant, alleging discrimination in employment.

Ms. Tremblay and her employer participated in a mediation process, provided by the HRTO, and agreed that the mediation process and the terms of any settlement reached would remain strictly confidential. 

The parties reached a deal.  The day after the settlement, however, the employer discovered that Ms. Tremblay had posted comments on Facebook about the mediation, both during and after the mediation session.   During the mediation, Ms. Tremblay wrote on Facebook:

Sitting in court now and… is feeding them a bunch of B.S.  I don’t care but I’m not leaving here without my money…lol.”

A few hours later, Ms. Tremblay wrote:

“well court is done didn’t get what I wanted but I still walked away with some…”  and “Well my mother always said something is better than nothing…thank you so much saphir for coming today…”

Upon discovering the Facebook posts, the employer refused the pay the settlement funds on the grounds that Ms. Tremblay had breached the confidentiality provision of the settlement agreement.

Both sides went back before the HRTO.  Ms. Tremblay complained that the employer had failed to pay, in contravention of the agreement.  She also argued that her Facebook settings were “private” and there was no breach of confidentiality.  For its part, the employer argued that Ms. Tremblay had violated the confidentiality provision in the settlement agreement and was not required to pay anything to her.

In its decision, the HRTO concluded that Ms. Tremblay’s Facebook postings violated the confidentiality provision of the settlement agreement.  Even though Ms. Tremblay had not disclosed the amount of the settlement, she had breached the confidentiality provision by disclosing on Facebook that a financial settlement was reached.  The HRTO rejected her argument that her Facebook was private, by virtue of the ease with which her employer had accessed her Facebook information.  The HRTO upheld the settlement, but deducted $1000 from the settlement funds the employer was required to pay.  The HRTO also ordered the employer to pay interest of 1.3% on the late settlement funds.

This case serves as an important reminder that litigants in human rights and other legal disputes should take confidentiality provisions seriously and should not discuss their legal cases on Facebook and other social media sites.

Moore v. British Columbia (Education), 2012 SCC 61 was the case of a child name Jeffrey Moore who had a severe learning disability and was unable to receive the intense remedial instruction that he required in the public school system in British Columbia.  Instead, his parents were forced to enroll him in a specialized private school and had to pay the required tuition rates.  The child’s parents filed a human rights complaint against the School District and B.C. Ministry of Education alleging that their son had been discriminated against on the basis of his disability because he was denied equal benefit of a service available to the public.

A unanimous Supreme Court of Canada agreed with the B.C. Human Rights Tribunal that the School District failed to provide support for meaningful access to educational opportunities and this failure amount to discrimination.  Writing for the Court, Justice Abella concluded: “Adequate special education, therefore, is not a dispensable luxury.  For those with severe learning disabilities, it is the ramp that provides access to the statutory commitment to education made to all children in British Columbia.”

An important aspect of the Moore case, and the main defence of the School District, was that it had limited financial resources at a time of budgetary crisis and had to make tough choices.   The School District argued that it had to cut back on services it provided including closing a Diagnostic Centre that was vital to providing services to children with disabilities.  The Human Rights Tribunal, however, found that cuts were disproportionately made to special needs programs and there was no assessment by the School District of possible alternatives.  At the same time, other school programs, including an outdoor education program, were maintained throughout the budgetary crisis.

The Supreme Court agreed with the Human Rights Tribunal that the Province and the School District have a duty to ensure that no child is excluded from the benefit of public education.  Ultimately, the School District, not the Province, was found liable for the discrimination.

Moore is a victory for Canadians with disabilities and all Canadians.  It requires that services made available to the public be accessible even taking into account financial constraints.  For more information, a copy of this case is available here.

In this case, the employee was covered under an employer-sponsored benefit plan, which included short- and long-term disability benefits.  The employee was dismissed without cause.  He was 55 years old and had 24 years of service, meaning that his common law notice period would be at the higher end of the spectrum.

The employer elected to pay only the statutory minimum standards for pay in lieu of notice, instead of the common law notice period, and did not therefore secure a release from the employee.  The employer contested the employee’s entitlement to common law notice.  The employer also permitted the policy of insurance to lapse once the employee was no longer actively employed.

During what would have been the common law notice period, the employee was diagnosed with cancer and became disabled from working.

The employee claimed against the employer, not only for pay in lieu of notice, but also for the value of the disability benefits he would have received up to age 65, had the insurance policy been in effect throughout the notice period.  The trial judge, Justice Echlin, found that the insurance policy was an employment benefit that ought to have been continued throughout the notice period, and that the employer was therefore responsible for the inability of the worker to qualify for benefits under the plan.

In this specific case, the employee was 55 years old, and therefore had only 10 years of future disability benefit eligibility under the terms of the policy, which stops paying benefits at age 65.  However, it is easy to imagine a case where the employee is 30 years old and develops a serious health condition during the notice period.  In that scenario, the employer could be exposed to 35 years of liability for lost income under the disability benefit plan, if the employer permits the policy coverage to lapse during the notice period.

What could the employer in this case have done differently to avoid liability for 10 years of lost benefits under the policy?  First, the employer could have negotiated a settlement of the common law notice period at an early stage post-dismissal, and obtained a release from the employee, which could have released the employer from liability for any long-term disability claims.  By paying only the minimum standard, and choosing to litigate the common law notice period, the employer exposed itself to further liability.

Second, the employer could have purchased a long-term disability policy that continued in effect after the termination of employment, or maintained a policy that included an option for the employee to continue the policy at his or her own expense, after employment ceased.   A written employment contract can be drafted to make it clear to the employee that disability coverage ends when active employment ends, and does not continue beyond the statutory notice period.

We recommend that both employers and employees seek legal advice, particularly where disability coverage is an employment benefit.

The computer programmer, referred to as “Bob” in the news coverage, was earning $250,000 a year to write code, but was secretly paying a Chinese contractor $50,000 a year to do his work for him.  This netted Bob a healthy $200,000 annual income for doing nothing except coordinating the delivery of computer code from his supplier to his employer.

The employer had actually commended Bob on the quality of the work, and consistently gave him high praise in performance reviews.

The employer caught wind of the scheme when it noticed suspicious traffic on its computer network, originating from a city in northern China.  The allegation is that Bob had been couriering security tokens to a software developer, who was using them to log on to his employer’s computer network and do Bob’s work for him.

So what did Bob do at work all day if a Chinese contractor was writing all of his code?  The allegation is that he essentially just surfed the internet, watched cat videos, and at the end of the day he emailed his superiors to give an update on his work.

Some may ask, what’s the harm in this?  If Bob’s getting the work done, and if it’s up to standards, why should the employer care where it’s coming from, or who’s actually doing the work?

Part of the answer lies in the nature of an employment contract.  A contract of employment is considered a contract for personal service.  It’s an express or implied term of every employment contract that the employee is personally providing the services in question.  Bob breached this term when he hired an outside contractor, and his employer was arguably entitled to terminate him for cause on the basis of this fundamental breach.

The fact that Bob gave his contractor access to his employer’s secure computer network, also raised serious security concerns.

Bob’s actions breached the employment contract because they breached the employer’s trust and were done in secret.  It may have been possible for Bob to ask his employer to switch his status to that of an independent contractor rather than an employee, in which he case he would have arguably been entitled to hire an outside company to perform the work, as long as the employer’s security needs were satisfied.  A key difference between independent contractor status and employee status, is that an independent contractor is entitled to hire “helpers” to perform the contract work.

We recommend that independent contractors seek legal advice when negotiating independent contractor agreements, and before retaining third party suppliers or service providers.

Jaffer v. York University, 2010 ONCA 654

In this case, the Plaintiff was a student at York University who had a disability-related learning impairment.  He commenced a civil action in response to the university’s decision to remove him from his program for not maintaining the required minimum standard of academic performance for the program.

In Jaffer, the Defendant successfully moved to strike the Plaintiff’s claim as not disclosing a cause of action.  The Defendant argued that the Plaintiff was alleging a straightforward disability discrimination case, and that the Plaintiff did not have a common law cause of action to satisfy the condition precedent in s. 46.1.

The Plaintiff appealed from the dismissal of his action, and the Court of Appeal allowed his appeal in part.  The Plaintiff’s theory of the case is that, in addition to the statutory duty to accommodate contained in the Human Rights Code, the Defendant University also had an express or implied contractual duty to accommodate his disability, and that the Defendant University breached that contractual duty when it expelled him from the program without offering adequate accommodation.

The Court of Appeal granted the Plaintiff leave to more fully plead the breach of contract theory, and permitted him to continue to pursue his s. 46.1 remedy, alongside a properly pleaded breach of contract claim.  The Court reasoned that a claim for breach of contract would in theory satisfy the requirement of a civil wrong in s. 46.1(2), so long as the breach of contract argument was properly explained in the claim.

Section 46.1 of the Code now permits a party to bring human rights claims directly before the civil courts, on the condition that they have also have separate issue that is normally within the jurisdiction of the civil courts.  In other words, if the claimant’s only issue is an alleged human rights breach, and the claimant does not have a civil lawsuit as well, the claimant cannot pursue the human rights issue in the civil courts, and must instead make an application to the Human Rights Tribunal of Ontario.

There is a policy rationale for permitting people who have civil claims and human rights claims to bring their human rights claims before the courts.  The purpose is to prevent multiple proceedings.  Take for example an individual with a common law claim for wrongful dismissal, and a claim of discrimination in employment on the basis of disability.  It would be inefficient for that individual claimant, and also for the respondent and the justice system as a whole, to have a human rights proceeding deal with the discrimination claim, and then have a civil proceeding to address the wrongful dismissal.  Section 46.1 permits the plaintiff to combine both the wrongful dismissal and a human rights claim in the same court case.

Since the s. 46.1 provision came into force, there have been several reported court decisions that have considered the operation of this provision.  We have summarized several of those decisions below:

Mackie v. Toronto (City), 2010 ONSC 3801

The Plaintiff in this case was found to have only a human rights issue, and did not have a civil cause of action.  In dismissing the claim, the Court ruled that it lacked jurisdiction to hear this matter, because the only claim made was related to a breach of the Code.

Leclair v. Ottawa (City) Police Services Board, 2012 ONSC 1729

The alleged discriminatory acts complained about in this case took place before the 2008 Code amendments came into force.  The Court concluded that s. 46.1, which became law in 2008, was not retroactive, and therefore did not provide a civil remedy for the plaintiffs and the claim was dismissed.

Stokes v. St. Clair College of Applied Arts and Technology, 2010 ONSC 2133

In this matter, the Ontario Superior Court permitted a s. 46.1 claim to proceed, ruling that the s. 46.1 claim did not have to relate to the civil wrong that opened the door to making a civil claim.  The Court ruled that s. 46.1(2) merely requires that there be a wrong, not that it be related to the human rights claim.

Aba-Alkhail v. University of Ottawa, 2010 ONSC 2385

In this case, the Ontario Superior Court struck the civil claims advanced by the plaintiff.  When the court struck the civil claims advanced by the plaintiff, the human rights claims were also necessarily struck.  Human rights claims in a civil proceeding cannot survive without the civil claims that permit them to be combined together in a single case.

Dwyer v. Advanis Inc., [2009] O.J. No. 1956

The Plaintiff made a civil claim for wrongful dismissal, and alleged that his medical condition was a factor in the decision to terminate his employment, contrary to the Code.  The Court considered and dismissed the Plaintiff’s claim for a remedy under s. 46.1, ruling that the employer had a bona fide and non-discriminatory reason for terminating the Plaintiff’s employment.

Also notable in this decision is that even though the Plaintiff was not successful in his human rights claim, he was very successful in his wrongful dismissal claim.  This senior employee had 3 years of service and was awarded a 12 month notice period at a rate of $150,000 per year.

In Dwyer, the employee’s obligation to mitigate was also lessened due to his heart attack and resulting inability to aggressively pursue replacement employment.

Anderson v. Tasco Distributors, 2011 ONSC 269

The Defendant sought to strike claims of Code breaches because of case law predating the 2008 Code amendments, particularly the Bhadauria case, where the Court had previously ruled that there was no civil cause of action for discrimination.

The Court interpreted s. 46.1 of the Code as a legislative override of previous case law, such as the Bhadauria case.  The Court’s view was that the legislature had clearly opened a door for human rights claims in civil proceedings on the condition that the claimant had alleged a separate civil wrong to bring the matter within the jurisdiction of the civil courts.  In this case there was a separate civil wrong, and so the case was allowed to proceed.

St. John’s Evangelical Lutheran Church of Toronto v. Steers, 2011 ONSC 6308

This was a certification motion for a class action.  In this case, the Court certified the question of whether the class members were entitled to remedies under s. 46.1 of the Code as a common issue.  This is the first reported decision where a human rights issue has been certified as a common issue in an Ontario class action.