Grey: Blog Post/Commentary

Article discusses that in rare circumstances reinstatement may be the remedy of choice: where the employer is large and sophisticated, the employee can be placed in an equivalent position but with a different supervisor, and the work is specialized and the employee’s carrier would end without reinstatement do to no other career opportunities.

Commentary on SCC case Communications, Energy and Paperworks Union of Canada Local 30 v Irving Pulp and Paper Mill, 2013 SCC 34, and compares ratio to provide an analysis on the then ongoing litigation issues in Alberta Communications, Energy and Paperworks Union Local 707 v Suncor Energy Inc, 2012 ABCA 307; union vs. non-unionized setting on pre-employment drug test and the line of addiction as deciding factor.

Summary and analysis of decision in Stewart v Elk Valley Coal Corp, 2017 SCC 30; impact on employer's right to take proactive measures in the workplace. 

Discussion of Pourasadi v Bentley Leathers decision of the HRTO, in which employer's duty to accommodate did not extend to permanently altering the essential duties of the position, or to assigning the essential duties to other employees; physical restrictions in the workplace. 

Article discusses the OHRT finding that a miscarriage is a disability. 

Summary of Ontario Human Rights Tribunal decision in Fair v Hamilton-Wentworth District School Board, 2012. Author notes the remedial order may seem surprising, but the large award for the employee is guided by the long period of time (almost 9 years) taken to litigate. 

Review of BC Human Rights Tribunal decision in Mackenzie v Jace Holdings, 2012. Tribunal found that employer failed to fulfill procedural duty to inquire whether accommodation was needed for employee's mental health, thus, discriminating against her. 

Case Commentary on Stewart v Elk Valley Coal Corp, 2017 SCC 30; importance of policy drafting and construction of dismissal letters. 

Article reviews some recent cases were significantly higher awards were granted than typical and much longer periods of backpay, over 10 years’ worth, than would be awarded in courts for similar wrongful termination. In one case the tribunal also ordered reinstatement, equalization of pension and CPP and reimbursement for out of pocket medical expenses. In another case a significant $512,000 in future wages. 

Elk Valley analysis, prima facie case of descrimination was not made out, in which an employee did not disclose his cocaine use; authors provide a succinct section of 'implications for employers', in which safety, policy, and clarity (in termination letter) is highly valued within employer and employee interactions.