Employment Law: Key Decisions From 2018

The year 2018 brought forth numerous noteworthy decisions in employment law across the country. We have summarized several of these decisions below.

PART 1 — QUÉBEC

(X) v. Reitmans (Canada)ltée, 2018 QCTAT 2357

A distribution centre supervisor with 35 years of service challenged his termination after being sentenced to 20 months in prison for sexually abusing a minor. Released pending the appeal of the decision, the plaintiff, who had until then "extended" his vacation, let his employer know that he would be back to work the next day. Instead, the plaintiff was thereafter terminated when the employer found out the reasons behind his absence. The plaintiff's appeal was later denied and he was incarcerated, at which point the employer terminated his employment a second time, reasoning that he was unavailable to work. In Québec, section 18.2 of the Charter of Human Rights and Freedoms prohibits terminating an individual's employment due to a conviction, if it is in no way connected with the individual's employment. The employer notably argued that 90 per cent of its employees were women and that the plaintiff was in a position of authority. These arguments were rejected by the Tribunal administratif du travail of Québec that found no objective link between the plaintiff's conviction and his employment. The second termination was also quashed as the real reason the plaintiff could not work was the first dismissal, not his incarceration. As he had served his sentence, the plaintiff was available to work and so the Tribunal ordered his reinstatement.

Kerdougli v. La Vie en Rose inc., 2018 QCTDP 8

One of three similar decisions involving Mr. Kerdougli rendered in the past year, and by which the Tribunal des droits de la personne (Human Rights Tribunal) sent a clear message to employers: do not ask questions about a candidate's origins or any other protected grounds for that matter! Mr. Kerdougli applied for a position of logistics coordinator for the international division of La Vie en Rose Inc. During his third interview, he was asked about the origins of his last name, to which he replied Algerian. In the end, Mr. Kerdougli was not offered the job. He then filed a complaint with the Québec Human Rights Commission alleging discrimination. Section 18.1 of the Québec Charter of Human Rights and Freedoms prohibits an employer from requiring information related to protected grounds in the Charter, which includes race and ethnic or national origin. Before the Tribunal, the employer argued that the question regarding the origins of Mr. Kerdougli's name was asked because the company has international business partners, including in Algeria, and that the candidate's origins could be an advantage. As such, the question was related to the job's requirements and not discriminatory. Before the lack of evidence supporting the employer's position, and the fact that this question had not been asked to any of the other candidates being interviewed for the position, the Tribunal held that the employer had violated the Charter. The Tribunal added that a question regarding a protected ground is automatically considered discriminatory, unless one of the exceptions under the Charter applies, which was not the case here. Mr. Kerdougli was awarded $5,000 in moral damages, but the employer was not ordered to pay punitive damages.

Société descasinos du Québec inc. v. Tribunal administratif du travail, 2018 QCCS 4781

On December 7, 2016, the Québec Tribunal administratif du travail (Administrative Labour Tribunal) found that "first level" managers working for the Société des Casinos du Québec could unionize, since section 1(l)(1) of the Labour Code excluding managers from the definition of "employee" was inoperative. In their regard, it would unjustifiably interfere with the principle of freedom of association guaranteed by the Canadian and Québec Charters. Following analysis, the Superior Court upheld the application for judicial review filed by the Société des Casinos du Québec. The Court recalled that in order to demonstrate interference with the principle of freedom of association, three elements needed to be proven: the contestation of the exclusion of managers under the Labour Code was based on the right of freedom of association, rather than on access to a specific legal regime (i.e., that of the Labour Code); the exclusion of the managers concerned by the application of the Labour Code would entail a substantial impairment of their right of freedom of association; and the State was responsible for that substantial impairment. The Court found that the first two conditions were met, but disagreed that the State was responsible for this impairment, meaning the application for judicial review was allowed, the Tribunal's decision was quashed and the exclusion stipulated by section 1(l)(1) of the Labour Code was deemed constitutionally valid and operative. This decision re-establishes the status quo, but it will be undoubtedly challenged in appeal. It therefore remains to be seen how the Court of Appeal and, eventually, the Supreme Court of Canada, will rule before the final outcome of this judicial saga will be known.

Digital Shape Technologies Inc. v. Walker, 2018 QCCS 4374

In this decision rendered by the Superior Court, Digital Shape Technologies Inc. and its president filed a motion against the defendant, an ex-employee, for damages due to negative comments published anonymously on the RateMyEmployer.ca website. Alleging a violation of the ex-employee's ongoing duty to act faithfully and honestly towards her ex-employer, the company and its president each claimed $75,000 in moral and punitive damages. After receiving a formal notice, the defendant immediately retracted the comments she had published on the website. She had worked for the employer for about four years before having her position abolished and signing a Separation, Release and Discharge Agreement which provided her with 12 weeks' worth of termination notice in exchange for agreeing to confidentiality and non-disparagement clauses. About two months after her termination, she posted a total of three comments on RateMyEmployer.ca, dissuading anyone from working for her ex-employer. The Court found that these comments contained exaggerations and falsehoods, in addition to revealing confidential information relating to the company. As a result, the defendant had violated her statutory obligations under the Civil Code of Québec and those she agreed to in the release she signed upon termination. Furthermore, in posting these comments online, the defendant had knowingly and intentionally defamed and tarnished the company's reputation. The Court awarded the company $10,000 in moral damages and $1,000 in punitive damages. However, no damages were awarded to the president as he had not personally suffered any prejudice.

PART 2 — ONTARIO

Amberber v. IBM Canada Ltd., 2018ONCA 571

In Amberber v. IBM Canada Ltd., 2018 ONCA 571, the Ontario courts were once again asked to make sense of whether they would give effect to a contractual termination clause. The issue in the case was...