Canada: Top 10 Employment And Labour Law Cases In 2013

As 2013 wraps up, we take this opportunity to revisit the most significant cases that altered the Canadian employment law landscape this year. Here are our top 10:

1. Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34

(Read our e-Lert here and the decision here)

The Supreme Court has had the final word on alcohol testing. Random alcohol testing in the workplace is prohibited unless the employer can prove that, in addition to having a dangerous workplace, there are other pressing factors such as an overt substance abuse problem in the workplace.

2. Pate Estate v. Harvey (Township), 2013 ONCA 669

(Read the decision here)

Highlighting that harsh tactics in dealing with dismissed employees can backfire in a major way, in 2009, the Ontario Superior Court of Justice awarded a wrongfully dismissed employee an unprecedented $550,000 in punitive damages. The Township had dismissed the employee on the basis of alleged discrepancies in building permit fees and then exerted pressure on the OPP to lay criminal charges, which resulted in a four-day criminal trial and ultimate acquittal. The employee sued the Township for wrongful dismissal and malicious prosecution and was awarded damages for both. In November 2013, the Ontario Court of Appeal slightly reduced the amount of punitive damages awarded by the trial judge to $450,000 but still found that the Township had severely mistreated the employee.

3. 1392644 Ontario Inc. (Connor Homes) v. Canada (National Revenue), 2013 FCA 85

(Read our e-Lert here and the decision here)

In the ongoing quest to define who is an employee, the Federal Court of Appeal took a crack at reconciling the competing tests for who is an employee vs. independent contractor. This was a tax law related decision so we wait to see if other adjudicators will follow this test, which places a new focus on the intent of the parties in forming the relationship; a factor not generally considered by the Court in employment law cases.

4. Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799

(Read the decision here)

This was the first Ontario court decision to award damages under the Human Rights Code. The Ontario Superior Court awarded $20,000 to the employee after finding that her ongoing back problems and related requests for accommodation were a factor in the employer's decision to terminate, despite the employer's argument that her termination was part of a corporate reorganization. The case serves as a reminder that discrimination and accommodation cases are not limited to the Human Rights Tribunal, but can be raised in wrongful dismissal cases, as well.

5. Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, 2013 SCC 62

(Read the decision here)

In 2006, during a lawful strike, a union recorded and photographed individuals crossing its picket line. The union also posted signs in the picketing area stating that images of individuals crossing the picketline would be placed on a website. Several individuals who were recorded crossing the picketline filed complaints with the Information and Privacy Commissioner of Alberta under its Personal Information Protection Act ("PIPA"). The Supreme Court of Canada ruled that the scope of PIPA infringed on the union's right to freedom of expression and declared PIPA to be invalid, giving the Alberta legislature 12 months to rewrite PIPA to make it compliant. The Supreme Court emphasized the importance of a union's freedom of expression in the context of labour disputes, noting that it is through expressive activities, such as picketing, that unions attempt to persuade their employer as well as bring the disputed issues to the attention of the general public. The Court also cautioned that a union's freedom of expression is not absolute and must be balanced with the other interests at stake. The case is a reminder that a union's right to picket and use of picketlines will be strongly protected by the courts, so long as the form of expression does not unlawfully infringe on other protected rights such as privacy.

6. Payette v. Guay Inc., 2013 SCC 45

(Read our e-Lert here and the decision here)

In a refreshing decision, the Supreme Court of Canada upheld the non-competition and non-solicitation restrictions contained in a purchase and sale agreement which restricted the vendor employee from competing or soliciting for a 5 year period following the termination of employment. The Supreme Court held that restrictive covenants entered into in the context of a sale of a business, as opposed to in the employment context, are generally lawful unless the scope is unreasonable; a significant departure from the employment context which starts from the premise that restrictive covenants are unlawful unless proven reasonable. Further, the Supreme Court held that given today's modern economy, non-solicits in respect of clients do not need geographic scopes if the provision specifies a specific type of client. The case is a positive development for employers.

7. Globe and Mail v. Communications, Energy and Paperworkers Union of Canada, Local 87-M, Southern Ontario Media Guild (Jan Wong Grievance)

(Read our e-Lert here and the decision here)

In this labour arbitration case, the arbitrator ordered a former employee to repay the full amount of a settlement after finding that she breached the confidentiality obligation contained in the settlement agreement. The settlement agreement specifically contained a pay-back clause. Several years after the settlement, the employee published a book which contained numerous statements that alluded to a payout, such as "I can't disclose the amount of money I received", "I'd just been paid a pile of money to go away", and "Two weeks later a big fat check landed in my account." The arbitrator ruled that the statements did not have to contain the amount of the settlement; simply stating that there had been a payment of some kind was sufficient to breach the agreement. The outcome here suggests that employers should consider pay-back provisions in settlement agreements, particularly where the terms of settlement are large or high profile.

8. Saturley v. CIBC World Markets Inc., 2013 NSSC 300

(Read our e-Lert here and the decision here)

Just cause does exist. The Nova Scotia Supreme Court held that CIBC had just cause to terminate a prominent Halifax investment advisor because he had engaged in unauthorized discretionary trading on behalf of his clients. The Court rejected the advisor's argument that he had been wrongfully targeted for being the whistleblower of a CIBC error that resulted in $38 million in losses to his clients alone. The Court was persuaded by the fact that the advisor's discretionary trading was substantial and ongoing, and that he had lied when the employer confronted him about it. The decision demonstrates that the Court will support a just cause finding where the employee's conduct is egregious and where the employer has conducted a thorough and well-documented investigation.

9. O'Neill v. General Motors of Canada, 2013 ONSC 4654

(Read the decision here)

The Ontario Superior Court ruled that employers have the ability to alter benefits after retirement if the right is drafted in a clear and unambiguous agreement. However, in this case the Court ruled in favour of the retired employees, finding that the language in GM's plan was not sufficiently clear so as to permit the alteration of benefits after retirement. The case demonstrates that employers who wish to reserve the right to change their benefits plans and for such changes to apply to retired employees can do so, but the plan must make clear that the changes will apply to retirees. If it does not, the Court may consider the retirement benefit to be a form of deferred compensation that cannot be altered, as opposed to a gratuitous benefit.

10. Fair v. Hamilton-Wentworth District School Board, 2013 HRTO 440

(Read our e-Lert here and the decision on remedy here)

In one of the more controversial cases of the year, the Human Rights Tribunal of Ontario reminded us of the extent of its remedial powers. The Tribunal ruled that the employer school board failed to accommodate the employee's disability and reinstated the employee to her position nearly 9 years after her termination. In addition, the Tribunal awarded nine years of back pay including lost wages, restoration of seniority, banked sick days, pension, and CPP contributions. The Tribunal also ordered the employer to calculate the tax consequences arising from receiving multiple years of wages in a single lump sum and to compensate the employee accordingly, as well as out-of-pocket medical/dental expenses. Finally, the Tribunal ordered $30,000 as compensation for the injury to the employee's dignity, feeling and self-respect. This case is under judicial review and we expect the Court to rule on it early in the 2014. Be on the lookout for a follow-up E-lert.


Telus Communications Inc. and Telecommunications Workers' Union 2013 ABQB 355 (Read the decision here)

The Alberta Court of Queen's Bench found that Telus was justified in firing an service technician for just cause who claimed to be too sick to work yet pitched in a softball game the same day. The employee had originally requested the day off to play in the softball tournament but was denied because no other technicians were available to complete the scheduled work. The employee then called in sick and the employee's manager, who was suspicious about the illness, went to the location and observed him playing in the game. When questioned about it, the employee admitted that he pitched in the game but insisted that he had had a severe case of diarrhea the night before that he could manage on the softball field but not at customers' homes. The Court overturned the arbitrator's decision of reinstatement and found that Telus had just cause to terminate the employee. The Court found that the conclusion that an employee is too sick to work yet can still pitch in a softball game defied logic and common sense, noting that it would be unreasonable that the diarrhea could be so severe as to merit missing work yet be manageable on the pitcher's mound. The decision in this case should be reassuring to employers confronted with highly questionable employee absences.

Happy holidays from the Cassels Brock & Blackwell's Employment and Labour Group

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions