Random Alcohol and Drug Testing Policy: When is this discrimination in Safety Sensitive Workplaces

| August 4th, 2017 | No Comments »

Under human rights law, individuals that suffer from addiction are protected under prohibited grounds of discrimination. For this reason, any policy that has an adverse effect on employees with addictions will have to be a bona fide occupational requirement (BFOR).  This means that employees found in violation of such policies will have to be accommodated for up to the point of undue hardship.

For a job requirement or workplace policy to qualify as a BFOR, it first has to rationally connect to the performance of the job. For random and unannounced drug/alcohol testing in a safety sensitive environment, the goal would be that the employees performing the job are doing so under conditions that do not compromise safety. The condition of sobriety definitely rationally connects to the objective of workplace safety. Secondly, the policy has to be implemented with honesty and good faith. In this instance, it is reasonable to believe that random testing is a tool that would contribute towards a safer working environment in safety sensitive workplaces.

Lastly, the policy must be reasonably necessary to accomplish the objective of workplace safety. To establish this, it must be shown that not only is the policy necessary, but that impaired individuals cannot be accommodated without the employer suffering undue hardship. This requires exploring possibilities such as modifying tasks or providing alternative work. For workplace that is safety sensitive, there may not be alternatives to accommodate those unable to perform work in safety sensitive roles. It is always best to consult with an employment law expert when seeking to accommodate with minimal options. At the very least, an attempt must be made by the employer.

In terms of policy, employers should be cautious when implementing random drug testing. Methods of testing that do not measure present impairment will be found to be in violation of human rights. Methods of testing must be able to test for present impairment because this is a direct measure of an individual’s ability to perform while on the job. In the eyes of the law, measuring past impairment discriminates against those with addiction, while providing little indication of their present ability to perform their jobs safely.

Can an Employee seek damages for promises made before the employment relationship commenced?

| November 14th, 2016 | No Comments »

employmentA company has a duty of care with respect to information conveyed to potential employees during the course of an interview. This extends to hiring managers, human resource representatives and/or any employees chosen to conduct interviews or represent the company during the hiring process. As such, any significant information that the interviewee relied upon in making their decision to accept an employment offer may be subject to future tort claims of negligent misrepresentation. A long-standing precedent of Queen vs. Cognos Inc. [SCC] (1993) illustrates the relevant principles well.

Cognos Inc. was a computer software company located in Ottawa that was seeking an employee for the development of accounting software. Queen was the candidate that accepted this job offer. Queen was a chartered accountant and previously held a secure managerial role in Calgary. During the interview, the manager of Cognos Inc. maintained that the company was developing new accounting software and that the position would be needed to develop the product over the course of two years, with ongoing improvements and maintenance needed afterwards. However, Queen was not told that funding for this project had not yet been approved and that the position was contingent upon budgetary approval. Queen accepted the employment offer and was terminated in less than a year and a half due to a lack of funding committed to the project. Queen was awarded damages for the tort claim of negligent misrepresentation (over $67 000: $50 000 for lost income, $11 972 for losses of the purchase and sale of his new home in Ottawa, and $5000 for emotional stress).

What did the Hiring Manager do Wrong?

First and foremost, the hiring manager was in a “special relationship” with the employer, obligating the hiring manager to a duty of care to interviewees. This means the manager must fairly represent the position to the interviewee on behalf of the company. The issue was not whether the hiring manager was untruthful – the manager may or may not have known about the budgetary contingencies regarding the existence or security of the position.  However, it is reasonable for the manager in this instance to enquire about the project funding in order to convey accurate information to Queen regarding the existence of the position. This was therefore negligent misrepresentation as Queen was given misleading information which he relied upon in making his decision to accept the employment offer. In particular, it was the nature and existence of the position that was misrepresented as Queen was led to believe that there would be ongoing work. This was not the case as the funding required was never approved.

Employers must therefore make sure hiring managers are made aware of significant information pertaining to the nature of the employment being offered. Further, it is important that hiring managers are made aware of their duty to fairly represent positions to potential employees on the company’s behalf. If you feel you are an employee that was unfairly misled in accepting an employment offer, and now face undeserving consequences as a result, please schedule a legal consultation.

Q&A: Which employment/labour law applies to my matter?

| July 28th, 2015 | No Comments »


It is not uncommon for an employee to be unsure of which law applies to their employment matter. Specifically, where the place of residence is not the same as the location of their employer. Picture an employee who works and lives in British Columbia, but whose employer company is located in Quebec. To complicate matters, significant changes have occurred to their respective position while on leave. Under what law can the employee rely on?


Federally Regulated Employees

Daniel Lublin, Toronto employment lawyer provides a helpful answer on this topic in his most recent Globe and Mail article. He states that this is dependent on where you live and work and whether or not you are federally regulated. Generally speaking, federally regulated employees are bound by federal legislation.

Read more about this topic on Daniel Lublin’s Globe and Mail column and full article I have to work through my severance. Is this legal?


Employment Insurance to get much needed boost

| March 28th, 2009 | Comments Off on Employment Insurance to get much needed boost

Citing increased demand, Minister of Human Resources and Skills Development Canada, Diane Finley, announced yesterday that the Federal Government will pump $60 million into the Employment Insurance program.

Minster Finley made a further announcement, advising that 80% of the claims are being processed within the targeted 4 week period. The announcement was greeted with jeers from oppositions members such as Tom Mulcair who declared the state of the Employment Insurance program to be a "catastrophe".

For more information on the announcement, please see the original Globe and Mail article by Bill Curry, Virginia Galt, and Joe Friesen.

Daniel A. Lublin is an Employment Lawyer specializing in the law of Wrongful Dismissal and Constructive Dismissal. He can be reached at www.toronto-employmentlawyer.com or via email.

Should lawyers be judging judges?

| March 6th, 2009 | Comments Off on Should lawyers be judging judges?

A recent study requesting lawyers to critique Canadian judges has started to cause a stir in the legal community. Click here for Kirk Makin’s Globe & Mail article on same.

Daniel A. Lublin is an Employment Lawyer specializing in the law of Wrongful Dismissal and Constructive Dismissal. He can be reached at www.toronto-employmentlawyer.com or via email.

New Changes Coming to Ontario Courts

| January 30th, 2009 | Comments Off on New Changes Coming to Ontario Courts

Just over a month ago, Ontario Attorney General Chris Bentley made an announcement regarding changes to the Ontario Civil and Small Claims Court systems. The changes, made to improve accessibility in the courts, are based on former Associate Chief Justice Coulter Osborne's 81 recommendations put forward last November, 2007.

I believe the following changes will have the greatest impact on employment law cases:

Raising the Limits on General Damages – The limit for a claim in the Small Claims Court will be raised from $10,000 to $25,000.  Many wrongful dismissal cases fall within this range and accordingly, many will be heard at the small claims court – where trials are more likely than under the ordinary rules.   

Raising the Simplified Procedure Limit on Damages – Currently, the limit to have claims tried under the Rules of Simplified Procedure is $50,000. This limit will be increased to $100,000. This is excellent news for employment claimants as the simplified rules provides a more cost-effective mechanism of proceeding with their claim.   

Limiting Examinations to One Day – Often, lengthy examinations are no benefit to the parties involved. Not only does it drag on the matter, it also increases legal fees for the parties involved. By limiting the time for examinations, the court is forcing lawyers to be more efficient with their questioning.

Litigation Management – Under the current system, the court imposes a mandatory time management system. In the new regime, the parties involved will have a greater responsibility for moving the matter forward in a timely fashion. The new rule however, will not apply to claims made in Toronto, Ottawa, and Windsor.  

Greater Proportionality in Fees – The new changes will encourage judges to award costs for legal fees on a basis relative to the claim. This new rule is meant to favor claimants who have low value claims. Unfortunately, I see a less desirable outcome. One which lawyers, upon assessing the work necessary to bring a matter forward, may be hesitant to work on a file because the work involved will not be relative to the cost of the claim.

Modified Cost Rules for Summary Judgements -Previously, if a party brought forward a motion for summary judgment and lost, they were responsible for the costs of the responding party.  As the report said, this leads to a disincentive for litigants to bring forward such a motion. After the rule is implemented, judges will have greater discretion when awarding costs stemming from the same type of motion which will rely more on the appropriateness for summary judgment instead of the outcome.

For more information on the upcoming changes, see the Toronto Star Article or the Government of Ontario's news release on same.

Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of wrongful and constructive dismissal. He can be reached at dan@toronto-employmentlawyer.com.

American meatpacking plant fires Muslim workers for unauthorized prayer breaks

| September 22nd, 2008 | Comments Off on American meatpacking plant fires Muslim workers for unauthorized prayer breaks

A dispute between Muslim workers and a Nebraskan meat packing plant regarding employee breaks has recently made national and international news headlines.

The JBS Swift plant is in hot water after the termination of what is reported to be around 100 workers who took unauthorized breaks from work for their Ramadan prayers. The plants decision to terminate the employees has news message boards across North America abuzz, reigniting the debate regarding the accommodation of religious practices in the workplace.

The workers and management were to mediate their issues on Sunday (September 21st) however, no results of the meeting have been made pubic yet.

Workers in Ontario have the option of filing a complaint with the Ontario Human Rights Tribunal.  Click here for the Tribunal’s website. 

Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of wrongful dismissal.  He can be reached at dan@toronto-employmentlawyer.com or visit www.toronto-employmentlawyer.com

Don’t be too quick on the trigger with the send button.

| September 16th, 2008 | Comments Off on Don’t be too quick on the trigger with the send button.

As reported by the Toronto Star, Rick Sullivan sent an email to pal Jason Wade regarding rumours about former co-worker, Ronald Harrington.  The contents alleged that Harrington was dismissed from his previous employment for “cooking the books”. Wade, director of operations for WesTower, Harrington’s new employer, shared the email with Harrington. The email was eventually shared with George Patton, Harrington’s previous employer and the person Sullivan alleged to have fired Harrington.

Harrington claimed that the contents of Sullivan’s email were defamatory and resulted in stress and panic attacks. The suit was settled out-of-court for about $7,800.00.   

The underlying principle of this matter is that sending a malicious email, even if only addressed to one person, can have a much broader touch that ever imagined.  Many people who use email do not consider that the service essentially keeps a written record of all correspondence. As Harrington did, many of my clients often rely on email records to support their claim.

The lesson learned here, as I have mentioned in my weekly column several times, when dealing with electronic communication, employees and employers should always observe the following advice;

1. Thoroughly review and follow any workplace computer and Internet misuse policies.
2. Exercise caution when communicating with or providing advice to clients or colleagues.   

3.  Allow common sense to prevail.

Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of wrongful dismissal.  He can be reached at dan@toronto-employmentlawyer.com or visit www.toronto-employmentlawyer.com

Fired Bell managers mass tort may be a mass mistake

| August 21st, 2008 | No Comments »

Bell Canada’s recent decision to lay off 2,500 managers has caught the attention of several lawyers who specialize in class-action suits, as reported in the National Post on Wednesday.  This has left me wondering, is a class-action suit the best way to address the dismissed managers’ needs?

Class-action lawsuits at times, make litigation easier for those involved. It groups plaintiffs jointly under an umbrella of similar facts and their claims are argued together as one.  The process first involves certifying a group of applicants and then bringing a claim.  If successful, Plaintiffs then receive damages paid from the entire settlement or judgment, as the case may be.

I believe, however, that employment law claimants may be better served with individual actions for wrongful dismissal, instead of joining a class action lawsuit.  Here are some potential problems that I see:

a.  Mitigation: How will the differences in each claimants mitigation efforts be dealt with in the class action lawsuit.  Although, I suspect, the differences may be dealt with by way of allocating damages or settlement monies, I find that Plaintiff’s need to receive specialized and fact specific advise in respect of their mitigation efforts, as opposed to more uniform advice they may receive in a class setting.

b.  Notice Periods: How will the individual differences between each Plaintiff in a class suit be adjusted in respect of the appropriate notice period?  As the SCC recently confirmed in the Keays v. Honda case, the Bardal analysis, which considers age, tenure, type of job and availability of comparable employment, among other facts, is still the dispositive test.  Accordingly, how can Plaintiff’s in a class setting ensure that their individual characteristics have been considered, as opposed to being lumped into a category of Plaintiff’s, in the class, that happen to have similar characteristics?  For example, although three of the Bardal factors may allow Plaintiff’s to be lumped into a category, I would argue that the availability of comparable employment analysis requires an assessment of a Plaintiff’s circumstances on an very individual basis. 

c.  Legal fees:  Class action lawsuits pay lawyers based on a percentage of recovery, in most cases.  However, in a class action setting, the work performed for each claimant is, in part, a duplication of the work performed the group.  While duplication of work is usually written off or discounted in an individualized plaintiff setting, this is probably not done to the same degree for class actions.  Further, if the lawyers are paid based on a percentage of recovery for the group, what incentive do they then have to really consider the unique circumstances facing each Plaintiff?

Daniel A. Lublin is a Toronto Employment Lawyer focusing on the law of wrongful dismissal.  He can be reached at dan@toronto-employmentlawyer.com or visit www.toronto-employmentlawyer.com

Daniel Lublin, Employment Lawyer, in National Post

| July 22nd, 2008 | Comments Off on Daniel Lublin, Employment Lawyer, in National Post

Rogers beverage service provider Aramark, has taken an official position that they will not reinstate legendary beer vendor, Wayne McMahon.

Click here for video highlights from Wayne’s press conference yesterday, thanks to our friends at the Toronto Sun.


Follow this link to the National Post’s article on Wayne’s story.

Daniel A. Lublin is an employment lawyer practicing in the law of wrongful dismissal.  He can be reached at dan@toronto-employmentlawyer.com or through his website www.toronto-employmentlawyer.com.