I’ve often said that my job is mostly about people behaving badly at work, so the fact situations underlying the cases I read are often all too human in nature. 

Consider the case of Winnie, who was fighting with her common-law husband about money. She wasn’t convinced he was actually paying child support payments to Sandra, his former wife, so she used her status as a bank employee to check Sandra’s bank records. Not just once or twice, but 174 times over four years! Sandra, employed by another branch of the same bank, eventually became suspicious and reported Winnie to their mutual employer. Winnie was disciplined by the employer, who imposed a one-week suspension and denied her a bonus.

Sandra didn’t leave it at that. She filed a statement of claim in Ontario Superior Court, asking for damages from Winnie for invasion of her privacy. But Winnie defended the action, and persuaded a motions court judge to dismiss the claim because Ontario has not historically specifically recognized the tort of invasion of privacy.

As you will recall, Bill 168 brought about dramatic changes to the Occupational Health and Safety Act which required employers to protect employees from workplace violence and harassment.   At the time the legislation came into force in June of 2010, it was uncertain how employers should apply the various provisions.

An August 2011 decision of Arbitrator Elaine Newman, The Corporation of the City of Kingston and C.U.P.E., Loc. 109, has provided some clarity on how employers should deal with threats in the workplace. In that case, Arbitrator Newman held that threatening a co-worker is cause for dismissal. 

In the Kingston case, the grievor had a history of anger management problems and had received several warnings for angry and aggressive behaviour in the workplace. A mere two days after completing an anger management course (paid for by the city), the grievor threatened a co-worker by insinuating that the co-worker might die. After completing an investigation, the city terminated the grievor’s employment taking the position that the threats of violence were unacceptable in light of Bill 168.

It’s a Happy New Year indeed for labour/employment lawyers and their clients, who now have clear direction from the Ontario Human Rights Tribunal on the thorny issue of when duplicative litigation will be permitted (or not!) before the Tribunal. 

Previously, the Tribunal had issued conflicting case law interpreting s. 45.1 of the Code, which provides that an application may be dismissed, in whole or in part, “where the substance of the application has been appropriately dealt with in another proceeding.” However, Associate Chair David Wright has now applied the Supreme Court’s recent decision in Figliola¹ to clarify the Tribunal’s approach.