Resources

: Atlantic Employers' Counsel - Fall 2012

December 5, 2012

Before the hohoho and mistletoe: planning the office holiday party 

It is that time again, the countdown to holiday office fun and a chance to celebrate with co-workers! With the holidays approaching, employers should review policies and consider what steps to take to limit any risks associated with seasonal parties. This has always included occupational health and safety, human rights and workplace harassment but now also includes the tort of privacy recognized this year by the Ontario Court of Appeal especially when it comes to social media and the smartphone sensation. The following tips should assist employers in getting through a seasonal event!

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How much negativity at the workplace is too much?

As most of our clients will know, bullying and harassment at the workplace can lead to a claim of constructive dismissal. Historically, constructive dismissal results from changes made by employers to key employment conditions, such as salary, hours and geographic location. However, in the seminal Ontario case Shah v. Xerox Canada Limited 1998 CanLII 14747 (ON SC), the Ontario Court of Appeal found that where the conduct of management personnel is calculated to cause an employee to withdraw from the employment relationship it may amount to constructive dismissal. The test defined by the Ontario Court of Appeal is:

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Can't get vacation approved? Try using sick leave 

On occasion, there appears to be no way to reconcile two seemingly opposite conclusions on similar fact scenarios. This circumstance came up recently in Atlantic Canada in these similar cases: Halifax Herald and Halifax Typographical Union, Local 30130, and Newfoundland and Labrador Health Boards Association and Newfoundland and Labrador Nurses' Union. In both of these cases, the grievors – one a photographer, the other a nurse – requested vacation leave and both were denied.

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Out to lunch: to pay or not to pay?

Recently, the New Brunswick Labour and Employment Board (the "board") considered when employees must be paid for their lunch breaks. This issue arises from time to time and is determined based on the facts of each case (Arbour v. New Brunswick (Agriculture, Aquaculture and Fisheries), 2012 CanLII 46857 (NB LEB)).

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What does privacy look like to you?

In a recent Supreme Court of Canada decision, R. v. Cole, it was found that a high school teacher had a reasonable expectation of privacy in the information contained on his work-issued computer. That expectation was not absolute, however, as the school had policies and practices in place that limited the teacher's expectation of privacy.

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OHS penalties and due diligence

In September of this year, the Nova Scotia Court of Appeal released Guild Contracting Specialities (2005) Inc. v. Nova Scotia Occupational Health and Safety Appeal Panel, 2012 NSCA 94 ("Guild"). This decision is important for two reasons:

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An update on mandatory retirement

Although blanket rules allowing mandatory retirement have been removed from human rights legislation for some time, there continue to be mandatory retirement cases. The recent Nova Scotia decision in CSAP v. CUPE, Local 2272, summarized on our blog, is the most recent case from Atlantic Canada.

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Intellectual property ownership: employer or employee

In Canada, there are a few basic intellectual property ownership rules which must be considered in determining whether the employer or the employee has certain rights to the subject matter in question. Intellectual property covers a broad range of subject matter and corresponding rights, but the main categories relevant to most employers in Canada are patents, copyright and trade-marks.

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In Memoriam - Gordon Petrie, Q.C.

It is with great sadness that we announce the passing of our dear friend and colleague Gordon Petrie, Q.C.

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This newsletter is intended to provide brief informational summaries only of legal developments and topics of general interest and does not constitute legal advice or create a solicitor-client relationship. The newsletter should not be relied upon as a substitute for consultation with a lawyer with respect to the reader's specific circumstances. Each legal or regulatory situation is different and requires review of the relevant facts and applicable law. If you have specific questions related to this newsletter or its application to you, you are encouraged to consult a member of our Firm to discuss your needs for specific legal advice relating to the particular circumstances of your situation. Due to the rapidly changing nature of the law, Stewart McKelvey is not responsible for informing you of future legal developments.

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