Is my ex-boss allowed to tarnish my reputation?

Mar 28, 2018

When an employment relationship ends, things can turn nasty. We often get calls from employees who suspect their former employer is smearing their name. Talk of this nature is upsetting and can make re-employing difficult, but is it defamation?

Defamation refers to activity that harms another person’s reputation through communication with a third party. Defamation captures two types of conduct:

  1. Libel: Defamation with a permanent record (e.g. email, video, newspaper); and
  2. Slander: Defamation with no permanent record (e.g. spoken statement or a hand gesture).

In an employment context, defamation might include damaging statements made in an email to all staff, a phone call to a prospective employer or a report to a regulatory organization. Such statements alone, however, aren’t enough to succeed in court. An employer has several defences to a defamation claim, including “truth” and “qualified privilege”.

The defence of truth is fairly straightforward – if the damaging statement is true, the employer won’t be held liable. For example, if your former employer tells your industry peers that you called a colleague stupid, and you did, you’ll have a hard time arguing defamation.

Qualified privilege protects statements that, while potentially damaging to an employee’s reputation, are non-malicious and well-intentioned. This defence is typically used to protect subjective statements. For example, a manager may tell a prospective employer that you performed poorly. Unless you can show that this statement was malicious, the employer is unlikely to be liable. Qualified privilege would also capture internal company communications, such as your manager informing human resources of your termination so they can update their records.

Because of these defences, employees often have a hard time obtaining damages for defamation against their former employers. This is not to say that it doesn’t happen. In a case earlier this year, Hampton Securities Limited v Dean , an employee received $25,000 in damages for defamation after her employer reported to her regulatory body that she had been terminated for, amongst other reasons, unauthorized trading. The Court found that the accusation had a devastating impact on the employee and was indefensible.

For one, the statement was untrue. The employee was not terminated for unauthorized trading but for refusing to contribute to her reserve account. Secondly, in submitting the report, the employer either knew that they weren’t telling the truth or were reckless in that regard. As a result, the statement exceeded the legitimate purposes of reporting to a regulator.

Dean is a warning for employers who might exaggerate the reasons an employee was terminated. Employers must be cautious about making statements that could harm the reputation of a former employee. If a court finds that the statement was untrue or exaggerated and was not made for a bona fide and legitimate purpose, the employer could be found liable for defamation.

Symes Street & Millard has extensive experience obtaining compensation for employees whose rights have been breached and advising employers on their legal obligations. Contact us to discuss your options.

By Mika Imai; photo by Simone Lovati, cc.


McCann on reframing the queer legal project

Mar 06, 2018

Marcus McCann spoke to the University of Victoria Faculty of Law on January 24, 2018 about lesbian, gay, bi, trans and queer (LGBTQ) rights, and the limits of a narrow focus on equality. Here is an excerpt from the introduction to his talk.


You’ve probably learned about LGBTQ legal cases in your Constitutional Law classes. These are cases in which courts found that discrimination on the basis of sexual orientation is analogous to discrimination on the basis of sex, race, place of origin, and therefore that differential treatment on the basis of sexual orientation is impermissible. Discriminatory treatment is impermissible under Section 15 of the Charter, when it comes to state action, and it is impermissible under provincial human rights codes, in certain fundamental areas of public life, like housing, employment and the provision of services customarily available to the public. I don’t want to underplay the usefulness of equality and non-discrimination; the application of the Human Rights Code is a big part of my daily work.

But there is another aspect of this lineage in which LGBTQ people have been on the vanguard of changing cultural and legal perceptions about sex. And not just the sodomy law. This through-line in our history includes opposition to the 1981 Bathhouse Raids, pornography prosecutions, the seizure of material at the Canadian border, the Pussy Palace raid, and the broad criminalization of people living with HIV. What all of these battles have in common was a need to assert that a non-normative sexual practice is merely “benign sexual variation” and not morally blameworthy behaviour. And not just gay sex was implicated in these battles, but also promiscuity, public sex, pornography, BDSM, and so on.

It’s not just one law we keep getting caught up on. LGBTQ people have often found themselves at odds with a variety of laws which endorse the dominant view of sexuality. That is, in part, because the Canadian justice system has tended to see same-sex sexual activity as particularly scandalous, particularly obscene, particularly worthy of moral opprobrium. Charges related to LGBTQ sexuality have varied over time, and have included buggery, gross indecency, public indecency, indecent theatrical performances, operating or being a found in bawdy house, nudity, disorderly conduct, and a raft of non-criminal charges and by-law infractions. Authorities often use seemingly neutral laws (liquor license, fire code, health and safety, importation guidelines) to target sexualized and LGBTQ spaces.

These are also battles that tend to be less easily defended along equality lines. Were the bathhouse raids only wrong because they were targeting queer people, or were they also wrong because the state has no business interfering with the sexual activities of consenting adults?

There are good reasons why we should pay special attention to sex in this way. Firstly, autonomous sexual decision making is important to the integrity of the person and an aspect of human dignity. Secondly, sexual regulation is an area in which the government seems especially eager to legislate. In the last 10 years, Parliament has introduced a steady stream of new laws about sex — for instance, by increasing penalties for sexual offences, introducing the offence of internet luring and raising the age of sexual consent, new legislation about sex work. Finally, sexual regulation is especially in need of an anti-majoritarian counterweight because of what Brenda Cossman calls the “ick factor” — a tendency to want to regulate or criminalize those practices which fall outside our ordinary understandings of good (monogamous, heterosexual, and otherwise normative) sex.

If sexual autonomy and sexual expression were viewed by the court as representing positive value, it would not cash out in absolutist terms that “no sexual regulation is good regulation”. Instead, it would require the courts to be frank about balancing, including what we are giving up when we regulate sex.

My comments today aren’t about identity, but nonetheless I think it’s worth saying that we all have a right to demand to see ourselves reflected in the law. What are the ways in which we could begin to see sex-positive feminism and queerness represented in the jurisprudence? We need to do that work.


Marcus McCann has been involved in a number of high-profile LGBTQ cases, including appearing at the Supreme Court of Canada in Trinity Western University v Law Society of Upper Canada; organizing legal defences for men caught in a 2016 cruising sting in Marie Curtis Park; and winning the release of secret documents used in HIV prosecutions. He primarily practices in the areas of employment and human rights.


Women Lawyers’ Professional Skill Enhancement Training

Dec 18, 2017

Beth Symes travelled to Kathmandu, Nepal in 2015 and 2017 to train women lawyers. The program is coordinated by Women Lawyers Joining Hands. Alongside experts in Nepal, Canada, Australia, France, Germany and the United States, Beth has developed and delivered training to approximately 60 Nepalese lawyers.

The participants reflect on the importance of the training not only in providing a skill sharing opportunity, but also in developing strategies to address sexism in the workplace.

Substantial Changes to Workers’ Rights

Nov 27, 2017

On November 22, 2017, the legislature passed Bill 148, the Fair Workplaces, Better Jobs Act, 2017. The Bill makes several changes to employer obligations and employee rights under the Employment Standards Act (the “ESA”).

Symes Street & Millard has been closely following the Bill and written about it here and here.

The final version of the bill includes various amendments to the ESA, such as

  • New paid leave entitlements (e.g. domestic/sexual violence and critical illness);
  • New obligations on employers when it comes to scheduling;
  • Changes to public holiday pay and on-call pay;
  • Increased vacation entitlements; and
  • A higher minimum wage

Significantly, the Bill also introduces an employee’s right to “equal pay for equal work”. This means that an employer cannot pay employees who are doing “substantially the same” work different rates of pay except in specific situations (e.g. based on seniority). The legislature appears to be targeting the practice of some employers to pay part-time workers a lower rate of pay than full-time workers.

Many of these changes come into force on January 1, 2018.

Symes Street & Millard has extensive experience drafting employer policies to comply with changing legal obligations, as well as supporting employees in seeking their legal entitlements. If you would like to discuss your options, please contact us.

Photo by OFL Communications Department used under CC license.

Ontario Proposes New Workplace Leave

Oct 25, 2017

The Ontario Legislature is currently considering a new domestic/sexual violence workplace leave. If passed, Bill 148, the Fair Workplaces and Better Jobs Act, 2017, would permit workers to take a leave of absence of up to 17 weeks per calendar year if they or their child experiences or is threatened with domestic/sexual violence.

This change would add to the protections already afforded to employees based on family status and disability (such as due to domestic violence-related injury) under the Ontario Human Rights Code.

While the proposed expansion is a step in the right direction, there are several restrictions on the entitlement, including:

  • Employees must have at least 13 consecutive weeks of service;
  • Employers have no obligation to pay employees during the leave; and
  • The leave can only be used for the following purposes:
    • Seeking medical attention
    • Obtaining assistance from victim services
    • Undertaking professional counselling
    • Relocating; and
    • Seeking legal or law enforcement assistance.

Bill 148 has passed second reading and may be subject to further changes. We’ll monitor and continue to post about the Bill as it continues its way through the legislature.

If you or a family member have experienced domestic or sexual violence and are not being accommodated at work, please contact us here. Symes Street & Millard has extensive experience obtaining accommodations and/or compensation for employees whose rights in the workplace have been breached.

Firm heads to the Supreme Court of Canada (again)

Sep 22, 2017

When the Supreme Court of Canada hears the controversial case of Trinity Western University v the Law Society of Upper Canada, Symes Street & Millard will be there.

The case is the latest chapter in the saga of an evangelical Christian university which has applied to open a new law school. The school would forbid students from same-sex intimacy, effectively barring students from the Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ) community from attending.

Symes Street & Millard represents LGBTOUT, Canada’s oldest university organization for LGBTQ people. LGBTOUT’s undergraduate members represent the pool of potential applicants to law schools. Those members who apply would face discrimination from Trinity Western’s admissions policy. Symes Street & Millard Associate Marcus McCann and lawyer Angela Chaisson are acting as co-counsel. The written submissions of LGBTOUT — and all the parties and intervenors — can be found here.

Symes Street & Millard has previously appeared before the Supreme Court on numerous occasions, including here, here, and here. Ben Millard recently represented the United Church of Canada before the Supreme Court in Whatcott, a human rights case about anti-gay leafleting.

The firm is perhaps best known for the Supreme Court case Symes v Canada, in which Beth Symes challenged parts of the Income Tax Act which excluded small business owners from deducting child care costs as a business expense. Symes argued at that the exclusion was a barrier to women’s full participation in the workforce.

We will post further updates on this case after the hearing and after the Court issues its reasons.

Symes Street & Millard represents its clients before tribunals and all levels of court, including the Supreme Court of Canada. The firm has expertise in equality and human rights matters. Contact us to book a consultation.

Photo by SA/EMDX used under CC licence

New Legislation Improves Workers’ Rights

Jun 19, 2017

On June 1, 2017, the Ontario government introduced legislation that, if passed, would amend the Employment Standards Act, 2000 and the Labour Relations Act, 1995. The Bill, entitled the Fair Workplaces, Better Jobs Act, 2017, is largely a response to the Report published by the Changing Workplaces Review and mounting public pressure by organizations such as the Workers’ Action Centre.

Some of the key changes proposed for the Employment Standards Act include:

  • Increasing the standard minimum wage to $14 per hour on January 1, 2018 and to $15 per hour on January 1, 2019, with an inflationary increase on October 1, 2019 and every year following;
  • Increasing vacation entitlement to three weeks per year for all employees of five years or more;
  • Permitting an employee to request a change to work schedule or location and mandating that the employer discuss such a request with the employee (note: this only applies to employees of at least three months);
  • Expanding personal emergency leave to all employees (not only those in workplaces of 50+ employees);
  • Providing two days of paid personal emergency leave; and
  • Requiring employers to provide employees with 48 hours’ notice to cancel a shift or else provide an employee with three hours’ wages.

Notably, the government also intends to add another 150 workplace inspectors to address the issue of enforcement.

While limited, these are positive changes for many employees.

Symes Street & Millard specializes in employment and human rights law and has represented parties in many cases both inside and outside of the courtroom. Contact us to discuss your options.

By Mika Imai; photo by OFL Communications, cc.

Employee who quit suddenly and “went dark” slapped with $75,000 bill

Jun 02, 2017

An employee who quits to work for a competitor can be liable for breach of contract and civil conspiracy, the Ontario Superior Court recently found after 10-day trial. But such a determination is going to turn on the facts, as you can tell from even a basic retelling of the background to Prim8 Group Inc v Tisi, 2016 ONSC 5662.

The Court found that a partner at an ad agency had left suddenly, with no notice, unlawfully taking sensitive client information and computer equipment under the cover of night.

A month later, one of his former employees left to join him at the former partner’s new firm. The former partner and the employee discussed how this employee should quit: by quitting suddenly and then “going dark” for a period. Going dark included refusing to attend work and refusing to respond to requests for security passwords.

As you can imagine, the company successfully sued the former partner. But what may not be obvious is that the employee that left was also liable for a portion of the damages — $40,000, plus a whopping $35,000 of his former employer’s legal bills.

The Court found that the employee breached implied terms in his contract of employment: the duty to give reasonable notice of resignation, and the duty of good faith and loyalty. These are implied terms of every employment contract, as we have explained in an earlier post.

The civil conspiracy aspect is a little more complicated. But the bottom line is that the employee and the former partner knew the employee’s sudden departure would cause harm to the employer, and he did it anyway. Add to that the unlawful act (quitting with no notice) and the fact it was discussed between them before it happened, and the Court concluded it amounted to conspiracy.

Navigating the end of an employment relationship is tricky, whether you are the employer or the worker who is leaving. However, as Tisi shows, there can be very real legal consequences for employees who don’t make that exit in good faith.

Symes Street & Millard specializes in employment and human rights law and has represented parties in many cases both inside and outside of the courtroom.

By Marcus McCann; photo by Ed Schipul, cc

Court orders extraordinary damages for harassed RCMP officer

Apr 21, 2017

Historically, it has been extremely difficult for an employee, particularly one who is still employed, to get damages for harassment. The recent decision of Merrifield v the Attorney General, suggests that this may be changing.

The trial judge in Merrifield found that an RCMP officer, Peter Merrifield, was ruthlessly harassed by his superiors. The employer’s actions included aggressive behaviour, an unwarranted investigation, and a punitive transfer. The transfer, in particular, was criticized by the Court as it resulted in a permanent stain on Mr. Merrifield’s reputation and hindered future advancement opportunities. Mr. Merrifield developed depression and post-traumatic stress disorder.

In determining the amount of compensation that Mr. Merrifield was owed, the Court noted that Mr. Merrifield took multiple sick leaves, isolated himself from his family, and became immobile to the point that he developed bed sores. The Court ordered the Attorney General to pay Mr. Merrifield $100,000 as compensation for the harassment and mental suffering that he experienced and $41,000 in lost wages for delayed advancement.

This is a positive case for employees who have been harassed in the workplace. However, the Court set a high test for harassment. Specifically:

  1. Was the conduct of the defendant(s) outrageous?
  2. Did the defendant(s) intend to cause emotional stress or did they have a reckless disregard for causing the plaintiff to suffer from emotional stress?
  3. Did the plaintiff suffer from severe or extreme emotional distress?
  4. Was the outrageous conduct of the defendant(s) the actual and proximate cause of the emotional distress?

It is also yet to be seen whether this case will stand. On March 30, 2017, the Federal government submitted a notice of appeal. The appeal date has not been set.

Symes Street & Millard has extensive experience obtaining compensation for employees whose rights in the workplace have been breached, including due to harassment. Contact us to discuss your options.

By Mika Imai; photo by Richard Eriksson, used under creative commons commercial license.

Why do most human rights cases settle?

Mar 29, 2017

It may seem grim, but of the more than 3,000 Applications filed with the Human Rights Tribunal of Ontario each year, only 100-150 end with a final decision on the merits. That’s less than 5 percent.

But behind that statistic is some potentially good news. The truth is that many, many human rights cases settle. A settlement is a negotiated deal between the parties, which resolves the complaint in a manner both parties can live with.

Some cases settle without help from the Tribunal, but the Tribunal also does a lot of work to actively encourage settlement. For example, the Tribunal offers a free, half-day mediation session. At mediation, a vice chair of the Tribunal will sit down with the parties and try to broker a deal. A startling 60 percent of cases which go to mediation settle at mediation.

So why do so many human rights cases settle?

First and foremost, the old maxim that a bird in the hand is worth two in the bush applies. For Applicants, a settlement means a guaranteed outcome. For Respondents, a settlement amounts to risk management. For both parties, it avoids rolling the dice.

Secondly, if you’re represented by a private lawyer, taking a case to a hearing before the Tribunal can easily cost $15,000-$40,000 for each party. Unlike in civil cases, both parties must always eat their own legal bills. The prospect of these mounting legal costs can act as a strong incentive for both parties to reach a resolution.  And, for some applicants, the total value of their claim could end up being less than the legal costs of going to a full hearing. Thus, there is an incentive on both sides to seriously consider an early settlement

There is no doubt that settlement leaves some people feeling queasy. After all, behind every human rights complaint is an important legal, ethical and moral issue. This is just as true for Respondents as for Applicants.

But the truth is, a settlement is not a loss. It doesn’t mean you’ve given up. It’s nothing to be ashamed of. Quite the opposite: it’s a normal and healthy part of the Human Rights Tribunal process.

Symes Street & Millard specializes in employment and human rights law and has represented parties in many cases before the Tribunal, in court, and in negotiations.

By Marcus McCann; photo courtesy of ABC

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