Canada: Focus on Employment, Labour & Pensions - June 2006

Last Updated: June 11 2006

Electronic Evidence: Catch The Rogue Employee

By Adrian Miedema

The explosion of e-mail communication presents risks and opportunities for employers. Electronic files can be a goldmine of evidence against rogue employees – particularly when the employee believes the file to have been permanently deleted.

Deleted Files: The New "Smoking Gun" Evidence?
Just as e-mails and electronic files present risks, they present great opportunities for lawyers and human resources professionals. It is commonly understood that a "deleted" e-mail or file is gone forever. This is not true. By "deleting" a file, one deletes only the file name and path to the file; the contents of the file actually remain. Often it is only when the hard drive or disc fills up, and the computer needs the disc space, that the "deleted file" will be overwritten. Because most people use far less than 100% of their hard drive space, many deleted files are never overwritten.

The "deleted" files may be recovered with the assistance of a forensic information technology professional who can obtain an "image" of the hard drive, which is an exact copy of the drive, including deleted files. The professional can then find and restore deleted documents including e-mails. It is almost always advisable to use an external forensic IT professional because the person who obtains the "image" may be called as a witness in court. Without formal training in forensics, an inhouse technology professional may see his or her evidence destroyed in cross-examination – and may also be accused of bias.

Because most employees believe that "deleted" really means "deleted", they are often very free with what they say in e-mails – some of which are sent and then promptly deleted. As a result, in employment litigation matters, deleted e-mails can often become critical evidence, if not a source of amusement.

Unbeknownst to most people, personal e-mails sent from work using an employee’s web-based e-mail account such as "Hotmail" will often reside on the work computer. An employee, believing that these e-mails could not be seen by the employer, will often be free with what she says in – or what documents she sends along with – such e-mails. Privacy implications and systems use policies should be considered and consulted before using any such "personal" e-mails as evidence.

Recovered e-mails are particularly useful evidence where an employee steals intellectual property or takes steps – while still employed – to compete against the employer. For instance, an employee might send a customer list by e-mail to his personal e-mail address and then delete the e-mail. That e-mail will usually remain on the hard drive and will be "smoking gun" evidence in legal proceedings against the former employee, such as injunction proceedings to prevent the employee from competing or soliciting clients.

But employers must think beyond computers. Other devices such as cell phones, Blackberries and Palm Pilot-type devices all have memory that can be "imaged" and preserved by the forensic IT professional. The employer should take steps to preserve the potential goldmine of electronic evidence on a departed employee’s hard drive. Don’t shut the computer down, but do ensure that it is safeguarded. In particular, where key salespersons or other key employees depart, the employer should consider obtaining a forensic image of the employee’s hard drive. If litigation arises, the employer may then analyze the forensic image and determine whether, for instance, the employee stole customer lists. The forensic image of the hard drive may be stored and used later if necessary.

Similarly, before dismissing a key employee, the employer should secure the employee’s laptop, cell phone, Blackberry or Palm Pilot to ensure that the employee cannot, after the dismissal, permanently delete or "scrub" files from those devices.

Knowledge is Advantage
Since many employees are not familiar with the recovery of "deleted" files, employers who understand these concepts have a real advantage, particularly where emloyees have engaged in nefarious activities. Employers should take steps to preserve "deleted" e-mails and files that may become key evidence in litigation.

First Decision On Psychological Harassment By Québec Tribunal

By Sandrine Thomas

On January 13, 2006, the Labour Relations Commission rendered its fi rst decision since the provisions of Québec’s Labour Standards Act dealing with psychological harassment came into force on June 1, 2004.

The Commission ruled that the plaintiff, a manager in a fast-food restaurant, Subway Sandwiches & Salades, had been the victim of psychological harassment. The psychological harassment involved the manner in which the owner of the establishment had treated her, including reprimands in front of customers, comments on her sexual orientation, and refusal to speak to her.

Nevertheless, it must be noted that the employer was neither present nor represented at the hearing and was therefore unable to put forth its own comments. Furthermore, a motion for review has been prepared in respect of the decision.

(Colette Ganley c. 9123-8014 Québec inc. (Subway Sandwiches & Salades) c. 9155-9047 Québec inc., D.T.E. 2006T-170 (C.R.T.). Review CM-2006-0679.)

Innocent Absenteeism & The Employer's Right To Terminate Employment

By Carman J. Overholt, Q.C.

The law has always recognized the right of an employer to terminate an employment relationship in the labour relations context for what is described as innocent or non-culpable absenteeism. Excessive absenteeism has been recognized as a legitimate and lawful basis for termination of the employment relationship. In the unionized context, Arbitrators have held that employers have the authority to replace an employee who is unable to work for reasons such as permanent disability.

In determining whether innocent absenteeism may be the basis for termination of employment, Arbitrators have considered whether an extended period of absence is excessive in light of the employment record and the circumstances. Second, Arbitrators determine, based upon the evidence, whether the employee is capable of regular attendance in the future. If it is determined that the absence is excessive and that the employee is unlikely to return to work, Arbitrators have upheld the employer’s decision to terminate employment.

Rod MacRae worked for Interfor for approximately 28 years. In 2002, Mr. MacRae was diagnosed with ALS, an extremely serious illness. He was in receipt of long-term disability benefi ts and Canada Pension Plan benefits commencing in October 2001. Interfor’s Squamish Mill was experiencing severe economic problems and as a result, Interfor decided to close the Mill. It never re-opened. Interfor entered into a Voluntary Severance Agreement with the Union representing the employees at the Mill. In order to limit the financial cost of closing the Mill, Interfor terminated the employment of Mr. MacRae and 17 other employees for non-culpable absenteeism just prior to entering into the Agreement with the Union, under which it agreed to pay voluntary severance to the employees at the Mill.

A grievance was fi led by 18 employees of Interfor, including Mr. Mac- Rae, all of whom were dismissed for non-culpable absenteeism 11 days prior to the Voluntary Severance Agreement being entered into with the Union. Arbitrator Stan Lanyon held that Interfor was justified in terminating the employment of the employees in light of the fact that they had been absent for extended periods of time and would not in all likelihood return to work in light of the nature of their disabilities. As a result, the Arbitrator dismissed the grievance.

Mr. MacRae did not accept the Arbitrator’s decision and fi led a complaint with the BC Human Rights Tribunal. The BC Human Rights Tribunal held that the decision to terminate the employment amounted to was discrimination on the basis of physical disability. The Tribunal also held that Interfor had not established a bona fide occupational requirement for the decision to terminate. The timing of the termination demonstrated that the intention of Interfor was to avoid having to pay severance costs to the disabled employees. The Tribunal found that Interfor had not acted in good faith and, in the result, Mr. MacRae was awarded the severance paid to non-disabled employees, which in his case was approximately $64,000. In addition, Mr. MacRae was awarded $12,500 in compensation for injury he suffered to his dignity, feelings and self-respect. Interfor did not appeal the decision of the BC Human Rights Tribunal.

Although in theory dismissal for innocent absenteeism continues to be lawful, a careful assessment of the impact of human rights legislation and the duty to accommodate prior to dismissal is necessary. The specifi c reasons and contributing factors leading to the decision will be subject to scrutiny in the legal proceedings that may arise in these circumstances.

The common law doctrine of "frustration of contract" may be available in the non-union context where the evidence shows that the employee is permanently disabled and will not be able to perform the essential duties of the position in the future. A long period of absence is not sufficient to establish frustration of the employment contract. Although employees have a duty to report to work, an unexplained extended absence will not necessarily establish frustration of contract or abandonment of employment. Evidence establishing that there is no intent or ability to return to work is necessary.

The termination of the employment relationship because of absence or what is viewed as excessive absenteeism may result in a human rights proceeding and wrongful dismissal litigation in the non-union context. Aggravated and punitive damages have been awarded by the Courts as a result of the breach of human rights legislation by employers in similar circumstances. For these reasons, the termination of the employment relationship as a result of absenteeism and disability requires a careful consideration of the evidence and the factors influencing the decision to terminate employment including the question of whether the employee will return to work. Consideration of other factors such as severance expense may in fact result in a contravention of human rights legislation.

(MacRae v. International Forest Products Ltd. [2005] B.C.H.R.T.D. No. 462)

The Dangers Of Not Hiring "Overqualified" Candidates

By Kristin Taylor and Christina Hall

The Canadian Human Rights Tribunal has released a decision that should cause employers to pause before excluding from consideration job applicants whose credentials exceed job requirements. As the demographics of Canada’s workforce change, it is important for employers to take note and not make the same mistake as the Mackenzie Valley Land and Water Board.

This Board advertised to hire four regulatory officers. Requirements included either an undergraduate degree in certain science or environmental programs with two years related experience or a diploma in environmental management with three years experience. Dr. Gian S. Sangha applied for the position. Dr. Sangha held a B.Sc. in Agriculture from Punjab University in India, as well as a M.Sc. in Landscape Planning and a Ph.D in Environmental Science from the Technical University of Berlin. He was fluent in four languages and had written two books and numerous research papers. When he arrived in Canada from India, he applied for jobs in environmental sciences to gain Canadian experience in order to obtain a permanent position in his field.

The Board received 38 applications and established an interview committee of three to determine which applicants to interview. Of the 38 applicants, it chose 12 to interview. The committee screened out all of the applicants with a post-graduate degree, except for Dr. Sangha, who they decided to consider for another, unadvertised position. After being interviewed, Dr. Sangha was not offered a job. He complained to the Canadian Human Rights Commission, alleging discrimination on the basis of race, national or ethnic origin, colour, religion and age. The Commission referred the complaint to the Canadian Human Rights Tribunal for a hearing.

The Commission and Dr. Sangha argued that the Board’s decision not to hire "overqualified" job applicants had an adverse effect on visible minority groups because the assumptions it made about the group were not necessarily valid. The Board argued that there were valid reasons why Dr. Sangha was not offered a position. Specifically, the Board led evidence that staff turnover had been an issue and that the proposed assignment would involve relocation expenses and ongoing training. For these reasons, the Board wanted some assurance that the employees it hired would stay for a time so that its money would not be wasted. Its concern was that overqualified candidates would become bored and and leave.

The Tribunal found that there was a correlation between visible minority immigrant status and overqualified status, such that Dr. Sangha had been a victim of discrimination on the basis of national or ethnic origin. According to the Tribunal, the experience of applying for a job for which one is overqualified or working in such a job, is disproportionately an immigrant experience. When an employer adopts a rule against hiring over-qualified candidates, it has a discriminatory effect on immigrant candidates who have already been excluded from suitable jobs due to lack of recognition of their qualifications. The rule affects immigrant candidates differently from others to whom it might also apply.

The Tribunal ordered that, in the future, the Board must cease applying any policy or practice that would automatically disqualify a candidate on the basis s/he is overqualified for the job. It also awarded Dr. Sangha $9,500 for pain and suffering. The Tribunal denied Dr. Sangha’s request for compensation for three years’ salary at $55,000 per year - his potential earnings had he been hired - and for an order that the Board hire him at the next available opportunity. The Tribunal stated that in order to obtain these remedies Dr. Sangha had to establish that there was not just a ‘mere possibility’ of him being hired for the job but a ‘serious one’. It agreed with the Board that the qualifications of the other candidates chosen for the position were more congruent with the position than those of Dr. Sangha.

In light of the Tribunal’s suggestion that, in the right circumstances, an award for compensation could be appropriate, employers should be wary of the liability they may face for refusing to hire a visible minority applicant solely on the basis of overqualification.

(Sangha v. Mackenzie Valley Land and Water Board, [2006] CHRT 9 (Can. Hum. Rts. Trib).)

Cross-Border Immigration Issues Of Note

By Tony Schweitzer and Tanya Shloznikov

Globalization entails intra-company transfers, international business meetings and international assignment issues. This column, by our immigration experts, summarizes "hot" issues in immigration law affecting employers.

Business Visitor Issues
An employer must provide sufficient documentation to its employees who travel frequently between the United States and Canada for presentation to border officials. The border officials usually make their decisions instantaneously and the lack of supporting documentation may be interpreted in an unfavourable way as a credibility issue. Supporting documentation or a letter from an employer should contain contact phone information for verification purposes. Frequent travellers may fall within the business visitor category or require a work visa under the immigration legislation.

The business visitor category is among the most elusive non-immigrant classifications.
Frequent business travellers may find themselves subjected to increased scrutiny at the port of entry. To minimize difficulties for business visitors and to minimize risk of being denied entry, it is important for business travellers to understand what types of activities are permissible for business visitors and how best to demonstrate their entitlement to the status of a business visitor.

To avoid difficulties at the border, a business visitor should carry a pocket letter of support from the employer outlining the purpose for entering Canada to be presented to an officer if requested. The letter of support should establish that a business visitor will not be engaged in activities that could be considered work and will not be entering the Canadian labour market.

Employers should be cautioned that immigration officials may prefer to communicate directly with the applicant or employer instead of an authorized representative or legal counsel to verify the information provided.

Work Visa Issues
In Canada, work under the current legislation is defined as "an activity for which wages are paid or commission is earned, or that is in direct competition with the activities of Canadian citizens or permanent residents in the Canadian labour market". As a result of this broad definition of work, it is not always easy to determine if certain activities would be permitted under the business visitor category or would require a work visa.

Employers in particular should be cautioned when reassigning a foreign worker to perform specific duties within the organization. It is a contravention of the Immigration and Refugee Protection Act to "employ a foreign national in a capacity in which the foreign national is not authorized under this Act to be employed." It is critical that employers who intend to assign foreign workers to different duties or positions within the organization obtain legal advice prior to doing so, and take active steps to file the appropriate documentation.

Although citizens of the United States and many other visa exempt countries may apply for a work permit at a Canadian port of entry, employers should be cautioned that, no matter how straightforward the application is, if the applicant is nervous at the thought of having to rationalize his/her entry to an immigration officer and it is apparent that the applicant cannot clearly express his/her expertise, then a port of entry application should be avoided at all cost.

Applicants, employers and any other persons who are a party to an application should be particularly careful to ensure that no misrepresentation is made to the authorities. Potential liability is very real under the new Immigration and Refugee Protection Act legislation and may result in an employee being barred from entering Canada for two years.

The broad definition of misrepresentation encompasses almost any form of misrepresentation or withholding of information by anyone, including an applicant, employer or third party representative. Those who grossly exaggerate the qualifications of applicants, or misrepresent their circumstances, proposed activities, employment offered or financial records expose themselves to liability and serious penalties.

Inadmissibility Issues
A foreign national travelling to Canada may be considered inadmissible for certain health related reasons and/or past criminal convictions or arrests.

Under the new provisions relating to misrepresentation, an individual has a positive duty to disclose criminal charges, convictions or even arrests. As a result of enhanced information on C. P. I. C. (Canadian Police Information Computer system), an officer is able to view all United States individual state criminal and FBI information. C.P.I.C. does not yet contain access to Interpol records. Although C.P.I.C. may disclose that an individual was charged or convicted of an offence (or just fingerprinted) it does not always state the disposition of the offence.

Prior to travelling to Canada, employees must be asked whether they have been charged or convicted of any criminal activity or even just arrested. It is important to provide examples of offences as many individuals do not realize that offences such as DUI are criminal and not just a misdemeanour. It is advisable to make an application to the Canadian consulate in advance where there might be a criminal issue.

This newsletter is designed to supply brief details of recent legislative or other initiatives of interest and some commentary. The summaries and comments provided are, of necessity, brief and should not be relied upon as legal advice. We encourage you to contact any of the lawyers listed for further details or advice in the context of a particular situation. 

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 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
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

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