The Supreme Court of Canada has concluded that a workplace policy which provides for random alcohol testing is not justified when there is an absence of evidence of an existing problem with alcohol use in the workplace, even where the workplace is considered inherently dangerous.

In doing so, the Supreme Court overturned the New Brunswick Court of Appeal’s decision that had concluded that an employer can implement a policy for mandatory random alcohol testing so long as (1) the workplace is “inherently dangerous”, and (2) the policy only applies to individuals in safety sensitive positions.

In February of 2006, Irving Pulp & Paper Mill (“Irving”) had implemented a random alcohol testing policy whereby 10% of workers who held safety sensitive positions were to be randomly selected for breathalyzer testing over the course of a year.  If the test was positive, the offending worker would receive immediate disciplinary action, and likely dismissal.  A refusal to take the breathalyzer test also warranted immediate dismissal.

Although there was no dispute that the workplace was a dangerous one, the Supreme Court determined that the simple fact that a workplace might be “highly safety sensitive” or “inherently dangerous” did not, in and of itself, justify the implementation of a random alcohol testing policy.

Rather, focusing on the notion that a unilateral management policy must be reasonable and proportionate, the Supreme Court noted that Irving had 8 documented incidents of alcohol consumption or impairment at the workplace over a 15 year period, none of which had led to an accident, injury or near miss.  When balancing this evidence against the privacy and dignity rights of individual workers, the Supreme Court concluded that the employer had failed to demonstrate a sufficient workplace problem or requisite safety concern which would warrant such an infringement on individual workers.

As such, the Court noted that the dangerousness of the workplace is only one factor to consider in assessing whether it is justifiable to implement a random alcohol testing policy.  An employer must also have evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace.

The Court also commented that while an employer is always free to negotiate drug and alcohol testing policies, instead of attempting to implement them unilaterally, such an “extraordinary incursion” into the rights of employees must be negotiated expressly and clearly.

Perhaps most importantly, the Court did not state that an employer can never impose random testing in a dangerous workplace.  Random testing may be justified if it represents a proportionate response in light of both legitimate safety concerns and privacy interests.

For more information on the extent to which drug and alcohol testing may be allowed in your workplace, or for any other questions relating to workplace law, please do not hesitate to contact a Mathew Dinsdale lawyer.

For more information on new developments in Workplace Law, please refer to our website at:
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The anticipated merger between the Canadian Auto Workers union (CAW) and the Communications, Energy and Paperworkers Union of Canada (CEP) will result in the largest private sector union in Canada.  Once combined, they will represent more than 300,000 workers in 23 sectors of the economy.

The two unions, who officially merge on Labour Day weekend 2013, recently announced that their name would change to “Unifor” and would sport a red logo with a stylized “U” on a crest.  Amidst some surprise on the somewhat unimposing name, labour leaders have explained that “Unifor” stands for “unity, solidarity, strength, determination and a modern forward-looking perspective for everyone”.  The announcement of the name and logo followed five months of work by a CAW-CEP group who arranges meetings, focus groups and a survey.

Under the purview of a new National Executive Board, Unifor will look to target retired workers, unemployed workers, workers in workplaces where the union is not yet certified, young people and precarious workers.

For more information on how this merger might affect existing labour relations in your workplace, or for any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.

For more information on new developments in Workplace Law, please refer to our website at:
http://www.mathewsdinsdale.com/news-events/in-a-flash/

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Articles in the June, 2013 edition:

• Landmark decision narrows reporting obligation under the Occupational Health and Safety Act
• Don’t Forget to Accommodate … Karate Lessons?
• Seminars and Presentations

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Recent amendments to the Limitation Act of British Columbia come into force June 1, 2013.  Effective tomorrow, these amendments will shorten the time period potential plaintiffs have to file a lawsuit as follows:

• 2 year basic limitation period – There will be a basic limitation period of 2 years for most civil claims, except for the enforcement of civil judgments, which will be governed by a 10 year limitation period.  This replaces the limitation periods of 2, 6, or 10 years under the former Act.
• 15 year ultimate limitation period – The “ultimate” limitation period will be reduced from 30 years to 15 years for most civil suits involving legal matters that may not be discovered right away.

These amendments bring British Columbia in line with the limitation periods currently in place in other provinces.  By comparison, Ontario, Saskatchewan, Alberta and New Brunswick already utilize a 2-year basic limitation period, with ultimate limitation periods ranging from 10 to 15 years.

This is good news for employers, as it reduces potential exposure to the risk of long-term liability.  Most notably, wrongful dismissal actions will now be subject to a 2-year limitation period, rather than the previous 6-year limitation period.

In most cases, the new limitation period applies to causes of action arising in British Columbia on or after June 1, 2013.

If you have any questions about how the new legislation will work, how limitation periods might affect your business, or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.

For more information on new developments in Workplace Law, please refer to our website at:
http://www.mathewsdinsdale.com/news-events/in-a-flash/

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In a record-setting decision, Fair v. Hamilton-Wentworth District School Board, the Ontario Human Rights Tribunal (“Tribunal”) has granted the largest award ever received in a Canadian human rights case.  In addition to reinstatement, the award included damages for lost wages, retroactive pension adjustments, as well as compensation for injury to dignity, feelings and self-respect.

The employee had worked since 1994 as a supervisor in the regulated substances department of a school board, specifically dealing with asbestos.  In 2001, the employee was diagnosed with a generalized anxiety disorder, which the evidence revealed had been a reaction to the stressful nature of her job.  In particular, the employee had fears about making a mistake with the asbestos and became anxious about the possibility of being held personally liable for any error.

Following a period in which the employee was in receipt of long-term disability benefits, the employee stated that she was medically fit to return to any supervisor position which did not include asbestos removal.  The employer took the position that the medical evidence restricted the employee from all supervisory positions, as all supervisors face potential liability under the Occupational Health and Safety Act.  The employee was terminated in 2004 when she refused to return to her previous position.

Approximately 8.5 years after the employee was terminated, the Tribunal concluded that the school board had failed to accommodate the employee by failing to investigate possible forms of accommodation or exploring available alternative work.  In an unprecedented decision, the employee was awarded:

• Reinstatement to an accommodated position
• $419,283.89 in lost wages
• No loss of seniority
• Up to 6 months of training
• Retroactive pension contributions
• Compensation for any out-of-pocket medical and dental expenses incurred which would have been covered by the employee group benefits plan
• Compensation to off-set any negative tax consequences of receiving such a large lump sum amount
• $30,000 as compensation for injury to dignity, feelings and self-respect, and
• Pre and post-judgment interest

In granting reinstatement, the Tribunal considered it important that there was no apparent animosity between the parties, and the individuals responsible for the failure to accommodate were no longer employed by the school board.

While it is anticipated that the decision will be judicially reviewed by the Courts, this case serves as a stark reminder of the broad remedial power granted of Human Rights Tribunals and ever-growing damage awards.

In this respect, awards for injury to dignity, feelings and self-respect have continued to creep higher over the years.  Human Rights Tribunals have awarded as much as $35,000 in British Columbia and $40,000 in Ontario for such damages.  Thus, even in a more typical case that does not involve such significant liability for lost wages, there remains the potential for significant damages.

If you have any questions about the implications of this decision, or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.

For more information on new developments in Workplace Law, please refer to our website at:
http://www.mathewsdinsdale.com/news-events/in-a-flash/

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In Fernandes v. Penncorp Life Insurance Co., Fernandes, a bricklayer with limited education, training or experience, ran his own company.  When he suffered a series of injuries and was rendered unable to work, he submitted a claim for benefits under a private insurance plan.  The Insurer denied payment on the basis that Fernandes did not meet the definition of “totally disabled” under the policy.

In support of this position, the Insurer presented at trial over 140 hours of surveillance evidence on which it had based its decision, including an 8 hour “highlight reel” which showed Fernandes doing things such as moving furniture, lifting wheelbarrows and tools out of a truck, shovelling cement mix, moving cement blocks, and assorted maintenance work around the house.

The Court nevertheless concluded that the surveillance footage was inherently unreliable because it failed to provide any insight into what Fernandes was doing off camera while he was “recuperating”.  In this respect, the Court accepted Fernandes’ evidence that he would typically have 2 to 3 “good days” follows by 4 to 5 “bad days” and that while performing the tasks seen on the video, he was experiencing significant pain.

Importantly, the Court noted that the Insurer had been provided with sufficient medical evidence to support a finding of “total disability”.  The only contradictory medical evidence, which was based on a review of the surveillance footage, was a qualified statement that it was “impossible to say” whether Fernandes could return to a full time position as a bricklayer.

The Court held that the Insurer had acted in bad faith by refusing to accept the medical evidence before it and by failing to demonstrate that it had properly considered what tasks were required in order to perform as a bricklayer.

In addition to full entitlements under the policy, the Court awarded $300,000 in punitive and aggravated damages as a result of the humiliation and “great mental distress” caused by refusing to pay out the policy for 6 years when there was “never any doubt” that Fernandes was not totally disabled.

Although this case arose in the context of a denial of insurance benefits, it serves as a warning to anyone seeking to rely on surveillance evidence in the context of a request for accommodation or return to work initiative.  Unless the evidence is wholly inconsistent with the employee’s stated restrictions, the evidence may prove to be of limited usefulness and should be used with caution.

If you have any questions about the potential implications of this decision, or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.

For more information on new developments in Workplace Law, please refer to our website at:
http://www.mathewsdinsdale.com/news-events/in-a-flash/

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