The Employment Law Roundup

The Employment Law Roundup Presented By: Janice Rubin Sharaf Sultan Rubin Thomlinson LLP Date: January 30, 2009

Employment Law Roundup Janice Rubin and Sharaf Sultan Index Supreme Court of Canada Cases Honda Canada Inc. v. Keays...2 Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d Hydro-Québec, section locale 2000 (SCFP-FTQ)...4 Evans v. Teamsters Local Union No. 31...5 Dominion Securities Inc. v. Merrill Lynch Canada Inc...7 Ontario Court of Appeal Decisions Mulvihill v. Ottawa ( the City )...7 Wronko v. Western Inventory Service Ltd...8 Cases for Recessionary Times Janet Deplanche v. Leggat Pontiac Buick Cadillac Ltd....10 Hart v. EM Plastic & Electric Products Ltd...11 Link v. Venture Steel Inc....12 Stephen Crouch v. Securitas Canada...12 Greg Ducharme v. Cambridge Stamping Inc...13 Blogging Alberta v. Alberta Union of Provincial Employees (R. Grievance)...14 RUBIN THOMLINSON LLP 1

The purpose of the annual Rubin Thomlinson roundup is to highlight the year s most noteworthy employment law cases. In doing our review, we noticed a number of cases from the Supreme Court of Canada which suggest (to us at least) that the judicial pendulum is beginning to swing towards a more employer-friendly position. We have included a number of examples of these types of cases. We have also turned our minds to the current economic climate. We have tried to highlight cases that might be of use to employers currently facing the prospect of terminations and wrongful dismissal litigation. Finally, we have included a summary of a blogging case that caught our attention. Supreme Court of Canada Cases Honda Canada Inc. v. Keays A discussion of cases of note in 2008 would not be complete without some consideration of the case of Honda Canada Inc. v. Keays, [2008] SCC 39 (S.C.C.) ( Honda ). For many employment law practitioners, the Supreme Court decision in this matter came as some surprise. Given the position of the Trial Judge, and of the Ontario Court of Appeal, which supported large sections of the original decision, many thought that the Court in Honda might push the envelope in terms of damages for terminated employees who suffered from a disability. The facts of the case are worth repeating. Following a diagnosis of chronic fatigue syndrome, Mr. Keays, who had been employed by Honda for the past 14 years, was put on short-term disability pay, which was later extended to long-term. The insurer determined that there "was no objective evidence of total disability" and that Mr. Keays should eventually be able to return to work. However, upon his eventual return, Mr. Keays exhibited increasing levels of absenteeism. While he received acceptable reports for most aspects of his work performance, he continually received negative assessments in relation to his attendance. As recommended by Honda, Mr. Keays applied for an exemption from Honda s attendance requirements through a disability management program, which required that each absence be validated by a doctor. Honda later cancelled this accommodation and ordered that he undergo an assessment by their doctor. Mr. Keays refused to meet with the doctor until further clarification was provided regarding the doctor s role. Honda ignored Mr. Keays request and sent a letter demanding that he meet with a doctor in their employ. After his continued refusal to attend such a meeting, Mr. Keays was terminated from his employment. He commenced a wrongful dismissal claim, stating that his dismissal by Honda was hurtful, embarrassing, discriminatory and offensive, and that it was a bad faith termination. RUBIN THOMLINSON LLP 2

Mr. Keays argued that Honda deliberately misrepresented medical information in order to coerce him into attending the proposed medical assessment. He also took issue with the requirement for documentation to support absences, because employees without a disability were not required to produce similar documentation when absent. Honda defended its request for a medical assessment, stating that it was not discriminatory but was necessary to determine any requirements for modified work. The Trial Judge agreed with Mr. Keays and provided fifteen months notice, with a further nine months on the basis that his dismissal was in bad faith. The Court also provided $500,000 in punitive damages, having found in favour of Mr. Keays claim that Honda deliberately misrepresented medical information in order to trick Mr. Keays into attending a medical assessment. The Court of Appeal upheld the 24-month notice period but reduced the punitive damages to $100,000. The Supreme Court reduced the notice period to fifteen months and removed punitive damages. The Court did not agree that Honda had deliberately misled Mr. Keays and found their response to be based on legitimate medical opinions. The Court also found that the requirement for a doctor s note to authenticate absences was not discriminatory, but rather, a legitimate means of determining the required accommodations. The Court held that there was no bad faith to justify a nine-month extension of the notice period. The Court also commented that when bad faith behaviour does occur in such cases, damages ought to be provided as a separate award rather than as an extension of the notice period. The Court refused to award punitive damages on two grounds: (1) The basis for discrimination did not exist; and (2) If any such claim did exist, the Human Rights Code provides its own mechanism for such violations. The Honda decision has had considerable repercussions. Since the outcome of the case became known, courts across the country have applied the Honda ruling to limit the award of Wallace damages. For example, the Alberta Court of Appeal in Magnan v. Brandt Tractor Ltd., [2008] ABCA 345, considered Wallace damages in relation to a breach of s.7 of the Human Rights Code. Applying the Supreme Court rulings for the Honda case, the Court stated that a breach of statute alone did not entitle the plaintiff to Wallace damages. In the case of McNevan v. AmeriCredit Corp., [2008] ONCA 846, the Ontario Court of Appeal also applied the principles from Honda. The Court stated that Wallace damages could no longer be awarded as an extension of the notice period, but must be provided as a separate monetary award. The Court also recognized that damages could only be awarded based on the manner of dismissal upon satisfaction RUBIN THOMLINSON LLP 3

of two conditions: (1) The mental distress suffered is beyond the normal distress and hurt feelings that result from dismissal from employment; and (2) It is within the reasonable contemplation of the parties at the time of contract formation that a breach of the contract in certain circumstances would cause the plaintiff particular mental distress. The Court then used these principles to replace an extended notice period with the award of a quantum amount as compensation for mental distress. The British Columbia Supreme Court in Bru v. AGM Enterprises Inc., [2008] B.C.J. No. 2380 used the Honda finding to state that damages for mental distress are to be viewed as a contractual breach based on the principle of foreseeability. The Court also followed Honda in ruling that Wallace damages would not be awarded through an extension of the notice period, stating that they are intended to be compensatory rather than a punishment for egregious conduct. The Court then applied these principles to reduce the quantum of Wallace damages in order to avoid duplication of the award due for lack of reasonable notice. Finally, in Desforge v. E-D Roofing Ltd., [2008] O.J. No. 3720, the plaintiff sought both reasonable notice damages and Wallace damages against a roofing company. The Court applied the principle from Honda that damages attributable to mental distress caused by the manner of dismissal are not to be regarded as an extension of the notice period. The Court also emphasized in the Honda ruling that normal stress and hurt feelings resulting from dismissal are not compensable. In this case, the decisions of the Supreme Court in Honda led the Court to find that the conduct of the company did not justify the award of Wallace damages. Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d Hydro-Québec, section locale 2000 (SCFP-FTQ) The issue of how far an employer, particularly a large institutional one, should go to accommodate disabled employees continues to be one of the more perplexing and challenging issues that employment lawyers and their clients face. This year, a new Supreme Court of Canada decision shed light on this issue in a manner that we predict will be helpful to employers. In Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d Hydro-Québec, section locale 2000 (SCFP-FTQ), [2008] SCC 43, the Court considered the complaint of an employee of Hydro-Québec who, due to a number of physical and mental problems, had been absent from work for a total of 960 days over a period of approximately seven years. During this period, the employee s working conditions were adjusted to accommodate her limitations; however, the employer eventually terminated the employee following a six-month absence from work. Medical diagnoses indicated that the employee s long absences were likely to continue, and her physician had recommended that she stop working for an indefinite period. In addition, a RUBIN THOMLINSON LLP 4

psychiatric assessment, requested by the employer, made it clear that the employee would be unable to continue in regular work without considerable absenteeism. Following termination, the employee filed a grievance claiming that her dismissal was unjustified. The Arbitrator, Gilles Corbeil, and later, the Superior Court, both dismissed the claim. The Court of Appeal however, upheld the claim, stating that the employer had not adequately accommodated the employee. The decision of the Court of Appeal was then overturned by the Supreme Court, who disagreed with the Court of Appeal regarding both the standard for assessing undue hardship and the period that should be taken into consideration when determining whether an employer has fulfilled its duty to accommodate. On the standard for proving undue hardship, the Court stated that the issue is not whether an employee will be unfit for work for the foreseeable future. Rather, the question is whether either an employee s illness significantly affects the operation of the business, or the employee remains unable to work despite significant efforts. On the issue of accommodation measures, the Court stated that evaluation of a dismissal should not be based solely on the point at which the decision to terminate is made, but should take into account the history of absenteeism and accommodation efforts throughout the period of employment. The Supreme Court ultimately pointed to evidence that the employee was unable to fulfill her obligations despite repeated efforts at accommodation by her employer. This case appears to provide employers with additional latitude in their right to terminate an employee when reasonable efforts to accommodate that employee have failed. We will be watching carefully for cases that interpret this decision over the coming year. Evans v. Teamsters Local Union No. 31 In Evans v. Teamsters Local Union No. 31, [2008] SCC 20, the Supreme Court ruled in favour of an employer who had asked a terminated employee to return to work to complete the notice period. Mr. Evans was employed for over 23 years as a business agent in the office of a local union, but was dismissed following the election of a new union executive. Mr. Evans received a termination letter and, later the same day, a telephone message requesting his presence to commence discussions. Mr. Evans requested 24 months notice and suggested that it be granted through 12 months of continued employment followed by 12 months salary in lieu of notice. The employer refused and requested that Mr. Evans return to his RUBIN THOMLINSON LLP 5

employment to serve out the balance of his notice period of 24 months, stating that, if he refused to return, the union would treat that refusal as just cause, and formally terminate him without notice. Mr. Evans stated that he would return to work only if the union rescinded its termination letter, which the union refused. Mr. Evans was subsequently terminated with cause, upon which, he sued the company for wrongful dismissal. The Trial Judge found that Mr. Evans had been wrongfully dismissed and was entitled to 22 months notice. The Union s argument that Mr. Evans failed to mitigate his damages by refusing to return to the workplace was rejected. The Court of Appeal reversed the award of the Trial Judge, holding that Mr. Evans response to the job offer made by the Union was unreasonable, and that this constituted a failure to mitigate his damages. The Supreme Court agreed with the Court of Appeal that Mr. Evans had failed to mitigate his damages by refusing to return to work. While the Court recognized that, in some instances, an employee has the right not to accept further employment with an employer that has terminated them from their position, the decision as to when an employee may reasonably do so must be made on a case-by-case basis. The Court pointed to a number of factors that should be considered in determining whether an employee s refusal to return to an employer following termination may be considered reasonable. These factors included whether the salary offered is the same as it had previously been, whether working conditions are comparable, whether the work is demeaning, and whether or not the employee has commenced litigation. The Court stated that it is important that an employee not be obliged to mitigate by working in an atmosphere of hostility, embarrassment or humiliation. The Court also made it clear that the onus for proving that an employee had failed to fulfil their mitigation obligation lies with the employer. In this instance, the Court found that Mr. Evans could reasonably have continued to perform his duties. There was no evidence of hostility between the incoming President and Mr. Evans. The Court also pointed to the fact that Mr. Evans had, at one point, offered to return to work if his wife was also guaranteed a position. Therefore, the Supreme Court dismissed Mr. Evans claim. In difficult economic times such as these, we believe that this case will assist employers faced with constructive dismissal claims after an employee has left the workplace and with the use of working notice to handle notice obligations to terminated employees. RUBIN THOMLINSON LLP 6

Dominion Securities Inc. v. Merrill Lynch Canada Inc. This year, the Supreme Court of Canada also went some way towards clarifying the duties that employees owe their employers upon their departure. This case, RBC Dominion Securities Inc. v. Merrill Lynch Canada Inc., [2008] SCC 54, concerned a branch manager of the Royal Bank of Canada ( RBC ), who coordinated the departure of virtually all of the company s investment advisors, who subsequently left the branch without notice to work for RBC s competitor, Merrill Lynch. RBC sued the Branch Manager and former employees, requesting compensatory, punitive, and exemplary damages. The bank also sued Merrill Lynch and a manager in its employ. The Supreme Court of British Columbia held that the former employees had breached an implied term of their employment contract, which required reasonable notice and prohibited unfair competition with RBC. The Court also found that the RBC Branch Manager had breached his contractual duty by coordinating the departure of his fellow employees, and by subsequently failing to inform the management of RBC. The Court found Merrill Lynch jointly and severally liable as it had induced the employees breach of their implied duty not to compete unfairly. The Court of Appeal overturned the award of damages against the former RBC employees and against Merrill Lynch and its manager for losses. The Court also overturned the award against the Branch Manager. The Supreme Court of Canada allowed the ruling of the Court of Appeal in part. It found that the Branch Manager had breached his duty of good faith owed to RBC, and that the retention of employees was an implied term of his contract. The Court set the damages at the amount of loss that the breach had caused RBC. The Court disagreed that the former employees were under a general duty not to compete. The duties of former employees extend only to providing proper notice and maintaining the confidentiality of employer information. The Court therefore reinstated the order of the Trial Judge, with the exception of the unfair competition awards against the investment advisors. Ontario Court of Appeal Decisions The Ontario Court of Appeal has also dealt with a number of interesting cases relating to employment law this year. Mulvihill v. Ottawa ( the City ) The case of Mulvihill v. Ottawa ( the City ), [2008] ONCA 201 (Ont. C.A.) involved the termination of a City of Ottawa employee. The situation leading to RUBIN THOMLINSON LLP 7

termination began when the employee, Ms. Mulvihill, received emails from a coworker containing inappropriate language. In response, Ms. Mulvihill filed an internal harassment complaint. The complaint was investigated and the co-worker was reprimanded. Ms. Mulvihill refused to return to work, demanded a transfer, and provided a sick note. She admitted that she was staying at home because of her son s needs, but also stated that she would not return to work until she was transferred. The employer carried out an investigation into the matter, which led to a dismissal of the case. Ms. Mulvihill accused the investigator of bias and refused to return to work. The City terminated her for just cause on the grounds of insubordination, even though she was still on sick leave. Ms. Mulvihill then commenced a wrongful dismissal action. Just prior to trial, the City withdrew its just cause defence and Ms. Mulvihill was awarded 4.5 months of salary as well as bad faith damages of an additional 5.5 months. The bad faith damages were for the unwarranted cause allegation and for terminating Ms. Mulvihill while she was on sick leave. The City appealed the decision and was successful in having the award for bad faith set aside. The Court of Appeal found that the City, in terminating for cause, had a reasonable belief that Ms. Mulvihill's actions were insubordinate. The Court held that, where cause is alleged based on a reasonable belief, bad faith damages are not appropriate. The Court also held that the fact that Ms. Mulvihill was on sick leave at the time of termination did not necessarily mean that the dismissal was conducted in an unfair or egregious manner. It was held that there must be other evidence of bad faith or unfair dealings to justify a bad faith award. The Court noted that Ms. Mulvihill had been accommodated in the past for her son s disability. The Court concluded that there was no evidence that Ms. Mulvihill was terminated because of her sick leave or as a reprisal for filing a harassment complaint. The award of 5.5 months of damages for bad faith was thus dismissed. Wronko v. Western Inventory Service Ltd. In Wronko v. Western Inventory Service Ltd., [2008] ONCA 327, the Court considered a wrongful dismissal claim from a former employee of Western Inventory Service Ltd. ( Western ), Darrell Wronko. Mr. Wronko worked for Western for 17 years and, prior to his dismissal, held the position of Vice-President of National Accounts. Mr. Wronko had signed an employment contract, which RUBIN THOMLINSON LLP 8

included a termination provision providing for the payment of two years salary in the event that he was terminated. Approximately two years after this contract was made, the company s new president sent Mr. Wronko a new contract, which reduced his entitlement upon termination from two years salary to 30 weeks. Mr. Wronko refused to sign the new contract. The company told Mr. Wronko that the termination provision in the new contract would come into effect in two years time. Over that period, Mr. Wronko continued to object to the change in the contract. Mr. Wronko s employment ended after the company advised him that the amended termination provision was now in effect. Mr. Wronko told the company that he interpreted the change in his contract as a termination of his employment and ceased reporting to work. He subsequently sued for wrongful dismissal, claiming for breach of contract, bad faith, punitive and exemplary damages, as well as damages for unpaid vacation pay. The Trial Judge dismissed the majority of Mr. Wronko s claims, except for the claim relating to unpaid vacation. The Court of Appeal held that Mr. Wronko did not end the employment relationship. The Court stated that, once a contract has been agreed, neither party has the right to unilaterally change a significant term unless both parties agree to that change. The Court reviewed three options available to an employee whose employer attempts a unilateral amendment to their contract: 1. The employee may accept the change, either expressly or implicitly, in which case, employment will continue under the altered terms. 2. The employee may reject the change and sue for damages. 3. The employee may make it clear to the employer that he or she rejects the new term. The employer may respond by terminating the employee with proper notice, offering re-employment on the new terms. The employee can insist on adherence to the terms of the original contract. The Court found the facts consistent with number (3) above because Mr. Wronko was told that, if he did not accept the change to his employment contract, then we do not have a job for you. The Court held that a reasonable person would interpret this as an intention to terminate and granted Mr. Wronko two years notice, as provided in the original contract. RUBIN THOMLINSON LLP 9

Cases for Recessionary Times We now turn to a number of cases relevant to employers considering terminations or major changes to the workplace this year as a result of the recession. Janet Deplanche v. Leggat Pontiac Buick Cadillac Ltd. The case of Janet Deplanche v. Leggat Pontiac Buick Cadillac Ltd., [2008] O.J. No. 1420 involved an employee who was terminated from her position as a business manager with Leggat for performance reasons. Leggat then refused to provide either a letter of reference or outplacement assistance. Ms. Deplanche sued the company, stating that she was not provided with reasonable notice. In finding for Ms. Deplanche, the Court pointed to evidence that the employee had been induced to leave secured employment to join the defendant. The Court also noted that the employee had made sufficient efforts to mitigate her damages. In the course of reaching its decision, the Court discussed the issue of mitigation in relation to reference letters. The Court stated that, although an employer is not obliged to provide either a letter of reference or outplacement services, they may nevertheless run the risk of liability for additional damages if they fail to do so. The Court highlighted two issues that may result from the refusal to provide a letter of reference, and could subsequently influence damages should litigation ensue: 1. Refusal to provide a reference letter is likely to impede a former employee s efforts to find work. 2. Refusal to provide a reference letter will have a negative effect on an employer s claim that the employee has not made sufficient efforts to mitigate his/her loss. This is important because the employer bears the onus of proof on issues of mitigation The Court held that the employer should have provided a letter of reference because the employee was not dismissed for cause. The Court pointed out that it would be particularly difficult for the employee to find employment without a letter of reference given the limited size of the automobile dealership industry. The Court ultimately extended the notice period to compensate for the fact the employer did not provide a letter of reference. RUBIN THOMLINSON LLP 10

Hart v. EM Plastic & Electric Products Ltd. Employers are often tempted to argue that the failure of an employee to secure further employment after termination is the result of the employee s failure to mitigate. Such claims are often unsuccessful; however, 2008 saw one such claim upheld. This case is illuminating for employers in illustrating the circumstances in which a terminated employee can be deemed to have failed to take adequate steps to find another job. Hart v. EM Plastic & Electric Products Ltd., [2008] B.C.J. No. 316 (QL) was a case involving an employee who had been fired for cause after 25 years as a customer service manager. Mr. Hart had always been regarded by his employer as a model employee. He was given no reason for his dismissal. The employer offered Mr. Hart severance pay equivalent to 8.5 months base salary, which included the eight weeks notice required by the provincial Employment Standards Act. Mr. Hart declined this offer and initiated a wrongful dismissal action against his former employer. Following his termination, Mr. Hart was offered comparable employment by two different companies. He turned down both of these offers and instead began to pursue a career in real estate by enrolling in a real estate course. On the issue of mitigation, Mr. Hart argued that his decision to change careers was reasonable, in part, because he was treated badly by the company. In rejecting this argument, the Court stated the following, at para. 46: if I accept Mr. Hart s argument, the duty to mitigate would be substantially undermined. It would mean that in every case of summary dismissal, an employee could justify refusing comparable alternate employment because he feared being dismissed again at the option of his employer. In my view, the duty to mitigate is much broader and cannot be circumscribed in the manner argued by Mr. Hart. The Court held that, by rejecting two comparable job offers and pursuing a new career in an unrelated field, Mr. Hart had not properly carried out his duty to mitigate. The Court also pointed to the fact that the real estate business carries a high risk of failure without adequate experience or contacts. The Court subsequently declined to award Mr. Hart any compensation beyond the statutory minimum. The Court also emphasized the requirement for an employee to mitigate their losses, even in circumstances of difficult dismissals. Failure to do so may lead to a substantial reduction in the damages awarded. RUBIN THOMLINSON LLP 11

Link v. Venture Steel Inc. In contrast to Hart v. EM Plastic, the Court took a different stance in Link v. Venture Steel Inc. [2008] O.J. No. 4849, ruling in favour of an employee s entitlement to wrongful dismissal damages, despite evidence that his job-seeking efforts following that dismissal had been less than optimal. This case was brought by William Link, against Venture Steel Inc. ( Venture ) for wrongful dismissal. Mr. Link had previously left his employment at another company to become involved in setting up Venture. After his dismissal, Mr. Link took no steps to look for another position for a full year following his dismissal as he was afraid of jeopardizing his potential entitlement under the non-competition provisions of the Shareholder s Agreement he signed at the commencement of his employment when he received a number of shares in the company. On the issue of mitigation, the Court found that Mr. Link had a genuine concern about violating his contractual obligations. While the Court was of the view that Mr. Link could have found employment without violating his contract, it was made clear that the onus lay with Venture to both establish that Mr. Link had failed to take all reasonable steps and that, had he sought employment, he could have been expected to find a comparable position, reasonably suited to his abilities. Based on the facts of this case, the Court held that Venture had failed to demonstrate that comparable and suitable alternate employment could have been secured had Mr. Link pursued alternate employment, either within the steel business or elsewhere. Therefore, no reductions to the damages awarded were made for failure to mitigate. Mr. Link received 12 months pay in lieu of notice. Stephen Crouch v. Securitas Canada How far can an employer go when changing the terms and conditions of employment without triggering a constructive dismissal claim? This issue received attention this year in the particularly interesting case of Stephen Crouch v. Securitas Canada, [2008] CanLII 201 (ON S.C.). In this case, a former employee of Securitas Canada Ltd. ( Securitas ) claimed damages for wrongful dismissal, breach of duty of good faith, and punitive, exemplary, and aggravated damages. The employee, Mr. Crouch, had provided security services for Securitas for approximately 18 years. In 2004, Securitas informed Mr. Crouch that he would need to change locations from his current work at a site belonging to Pfizer to another company, DHL, because the contract with Pfizer had been terminated. Mr. Crouch testified that he was required to carry out tasks at the DHL site that had not been part of his role at the Pfizer site. Furthermore, his pay was reduced from RUBIN THOMLINSON LLP 12

$11.85 per hour, when working at the Pfizer site, to $10.45 at DHL. Mr. Crouch informed the Business Development Manager at Securitas, Mr. Large, that he was uncomfortable with some of his new duties, such as asking women to open their purses. Mr. Large responded that they had no work available at a different site. A member of the management team said to the plaintiff, it sounds like you don t want to work at Securitas, although the individual concerned denied that he had ever indicated to the plaintiff that his position was terminated. Securitas then made no further contact with the employee until three weeks later, when Mr. Crouch received a letter requesting the return of his identity card and uniform. Mr. Crouch subsequently claimed constructive dismissal. On the issue of constructive dismissal, the Court found that the work Securitas offered at the site of DHL was reasonable alternative employment to the work at the Pfizer site. The Court stated the following, at para. 76, In the whole context of the plaintiff s employment with Securitas, and taking into account the position offered to him at DHL, I am of the view that the wage differential, in and of itself, did not give rise to a maintainable claim of constructive dismissal. The Court found that the company had acted reasonably given the availability of work at the time. The fact that the work involved different tasks and lower pay did not lead the Court to find that the fundamental elements of Mr. Crouch s employment had changed. This would suggest that the Court is willing to take a contextual approach to such cases. Greg Ducharme v. Cambridge Stamping Inc. Finally, on a procedural note, there have been several cases over the last year in which failure to provide a terminated employee with reasonable notice has left employers on the unsuccessful side of a summary judgment motion. One such case is that of Greg Ducharme v. Cambridge Stamping Inc., [2008] O.J. No. 1666. Mr. Ducharme was employed by Cambridge Stamping Inc. for five years and eleven months before his employment was terminated without cause. The plaintiff found another job a little more than five months later, albeit at a lower annual salary. The defendant argued that summary judgment beyond the statutory amounts should not be granted because a trial was required to determine the common law notice period. Specifically, the determination of reasonable notice involves the evaluation of various factors, a process unsuited to a summary judgment motion. The Court concluded that there is no general rule preventing a judge from granting summary judgment in a wrongful dismissal action where the sole issue is the RUBIN THOMLINSON LLP 13

determination of a reasonable notice period. The Court indicated that there was no genuine issue of fact in dispute. The Court ultimately granted a summary judgment and awarded Mr. Ducharme with five months notice. Blogging Given the rise in popularity of the social networking phenomenon, we have fielded a number of calls this year from employers concerned about their employees activities on the internet. Thus far, there have been few cases concerned with this issue. However, we have included one case that we think will be most helpful to any employers worried about their employees online behaviour. Alberta v. Alberta Union of Provincial Employees (R. Grievance) Alberta v. Alberta Union of Provincial Employees (R. Grievance), [2008] A.G.A.A. No. 20 involved the termination of an administrative employee from the Alberta Public Service. The employer terminated the employee after discovering that she had a personal blog site which contained derogatory comments about a number of her co-workers and company management. Following an investigation and an interview with the grievor, the employer terminated the employee on the basis that the comments had permanently undermined the employment relationship. The Alberta Union subsequently claimed that the grievor had been wrongfully dismissed. In upholding the dismissal, the Board pointed to both the hurtful nature of the comments, and the employee s belligerent reaction and lack of remorse when confronted by management. They further indicated that the grievor had made no attempt to contact the individuals that she had offended to apologize but had instead relied on a blog posting and two cards of apology left for the staff. The Board stated the following, at para. 115, In short, the Board is not satisfied that the Grievor has accepted just how offensive were the contents of her blog and why the things she said in them were capable of destroying the employment relationship. The Board also emphasized the fact that a blog is a forum for public expression and is thus accessible to anyone with access to the internet, yet the grievor took no steps to restrict access to the blog. The Board specifically stated the following, at para. 98, That a blog is a form of public expression is, or ought to be, self-evident. Unless steps are taken to prevent access, a blog is readable by anyone in the RUBIN THOMLINSON LLP 14

world with access to the internet. The Grievor took no steps to prevent access. The Board also characterized the employee s apologies as tepid and insincere and held that the employer had just cause to dismiss the grievor. What to Watch for in 2009 Given the challenging economic times we currently face, we expect to see an increase in wrongful dismissal litigation in the coming year. It will be interesting to see whether judges treat the recession as an opportunity to provide terminated employees with additional notice, or if they will sympathize with employers, who must now do more with less. Will mitigation still be a trial-worthy issue, or will it be enough for a plaintiff to point to the (predicted) rising unemployment to argue that they could not possibly have found a job? Will employers be given more latitude to make changes to their workforce before triggering constructive dismissals? Stay tuned. It will be a most interesting year. RUBIN THOMLINSON LLP 15