Workplace Harassment Liability for Employers
Employers in Manitoba may not be aware of recent amendments to regulations to the Workplace Safety and Health Act (the “Act”) which place a number of strict duties on employers relating to the creation, maintenance and enforcement of certain workplace policies. The protection of workers in their employment remains one of the key purposes of the Act. This protection extends not only to the physical safety of employees, but, just as importantly, to their mental health.
Recent trends across Canada indicate strongly that employers are being held increasingly more accountable for taking the required measures to ensure workers are not being unnecessarily exposed to factors which may have an adverse effect on their mental health. In a world where there are new forms of liability around every corner, ensuring that organizational culture is conducive to promoting employee mental health is of paramount importance to employers.
Among the mental health issues that occur are stress, anxiety and depression, all of which can arise as the result of an employer’s failure to prevent occurrences of workplace harassment. Employers are expected to take proactive steps to prevent such occurrences, by actively ensuring the following steps are taken in their workplaces:
- Developing and implementing harassment prevention policies;
- Routinely updating existing policies;
- Educating and training workers in the adherence to policies;
- Providing new employees with policies;
- Publicly posting policies in the workplace; and
- Ensuring compliance by investigating and following up complaints promptly and thoroughly.
The Act and regulations set the minimum standards and define prohibited harassment. Employers who breach the Act or the regulations may be prosecuted and found guilty of an offence. Penalties include fines of up $250.000.00, with even heavier penalties for repeat offences, and imprisonment up to six months, and prohibition from working in a supervising capacity for six months. Officers and directors of the employing Corporation who directed, authorized, assented to or acquiesced in, or participated in the offence are likewise liable to such penalties. Employers are therefore strongly encouraged to look at their existing harassment policies, and to determine whether their current practices are compliant with the law. Looking ahead to anticipate and take steps to prevent potential liability issues is highly important. Employers further need to ensure that new policies and practices are properly implemented and routinely updated as new changes in the law continue to unfold.
For further information about how to comply with the new mental health standards, please contact David G. Newman, Q.C. at newman@pitblado.com or phone 956-3521.
PitbLAWg may be AWOL on January 18, 2012.
In a USA Today article “TwitPic, WordPress to go dark for online SOPA protest” Yamiche Alcindor reported that WordPress, along with other websites will not available on Wednesday January 18, 2012 to protest the proposed US legislation, Stop Online Piracy Act and the Protect Intellectual Property Act.
WordPress is the host site for PitbLAWg. If WordPress is not available then PitbLAWg will not be online for the day. However, we expect that WordPress and PitbLAWg with be back up and running on Thursday January 19th.
PitbLAWg takes no position on the proposed legislation or on the blackout. Thanks for following PitbLAWg and we hope to see you back on January 19th.
Expansions of the Concept of Latent Defects in Residential Real Estate Transactions
A purchaser of residential real estate closes the transaction, moves in and then subsequently discovers that there is a convicted pedophile living across the street. The new purchaser has a young family living with him. Is the existence of the neighbouring pedophile a “latent defect” under real estate contract law sufficient to enable the purchaser to reverse the transaction and/or sue his vendor for damages? Recently, this question arose on a preliminary motion before an Ontario court. The Court’s consideration of the relevant factors and review of the law of latent defects is interesting. If you want to find out more, please click here.
Canada Not-for-profit Corporations Act takes effect October 17, 2011
If you are involved with a federally incorporated charity or non-profit corporation, you need to know that the law has recently changed and that you must take steps to address this. To learn what is required and how this change in the law will affect your organization, take a look at the PitbLAWg post by Adam Herstein, or the recent Whiteboard session by Bradley Madison.
Toyota advertising case raises privacy issues
In 2009, a woman initiated a lawsuit against a Californian advertising firm and Toyota U.S.A. because of an aggressive advertising campaign that she claimed was designed to make individuals believe they were being stalked by a criminal (which, in fact, turned out to be fictitious). While the charges are now being dealt with by the Los Angeles Superior Court the case raises issues in respect of the application of privacy principles here in Canada.
In 2008, Toyota Matrix advertised the “Your Other You” campaign which targeted young males. It encouraged individuals to provide someone else’s personal information, who would then receive an invitation to a fake personality test. What really happened was, the “victim” ended up receiving numerous disturbing emails from an imaginary soccer hooligan with a pitbull named Trigger. This impersonator claimed to be on their way to the victim’s house, who had no idea it was a hoax. In order to promote the advertising campaign, a fake social networking account for the stalker was even set up.
How would a similar case play out here in Canada? Under the PIPEDA framework , there would possibly be a violation of the law because of the alleged collection, use and disclosure of personal information without consent. Further, PIPEDA’s requirement that the “identified purposes” of any collection, use or disclosure of personal information would not likely met. Finally, the reasonableness test, enshrined in PIPEDA, would probably be violated. In short, the facts pertaining to the case could put the relevant parties in the crosshairs of the Office of the Privacy Commissioner of Canada and courts. As a result, the case should serve as a warning to advertising agencies to ensure that privacy law considerations are thoroughly canvassed with legal counsel before initiating campaigns involving personal information – especially where people are submitting friends’ data.
PERSONAL PROPERTY SECURITY ACT REGULATIONS
When taking security from a general (as opposed to a limited) partnership, the creditor must list as debtors in its financing statement both the partnership name plus the names of each of the partners of the partnership. This can cause difficulties when the partnership in question comprises many partners. For an expansion on these problems, please see my paper on the subject for more information .
What is Overtime, and who is entitled to it?
This is a fundamental principle of employment law that is vital to every employer – employee relationship. The respective rights and obligations of employees and employers relating to overtime are governed in Manitoba by the provisions of the Employment Standards Code. The basic principle is that where an employee works more than 8 hours in one day, or 40 hours in a week, employers must pay employees at the overtime rate, namely time and one-half of an employee’s regular rate of pay. There are exceptions to the rule that are also covered by the Code. Many employers have policies and practises that contravene the provisions of the Code and leave an employer liable to payments and potential fines and charges under the Code. For more information on this topic, please refer to my video post on the subject.
Implied covenants arising out of the transfer of land
Section 77 of the Manitoba Real Property Act (the “MRPA”) provides, in effect, that where title to land which is subject to a mortgage or an encumbrance is transferred, the transferee is deemed to covenant to the holder of the mortgage or encumbrance that the transferee will pay and perform all obligations contained in the mortgage or encumbrance, and, that the transferee will additionally be deemed to covenant to the transferor that the transferee will so pay and perform and will indemnify the transferor from liabilities sustained by the transferor by virtue of the transferee’s failure to so pay/perform in favour of the holder of the mortgage or the encumbrance. How does this affect – or may affect – day-to-day real estate transactions? To read my more detailed memorandum on this matter, please go to my memorandum of Implied Covenants.
Choose Your Words Carefully!
Remember that email exchange you had with an individual a year ago? Now that you are in litigation with that individual, the email may be relevant.
The Manitoba Court of Queen’s Bench Rules require that any and all relevant documents must be produced in the course of litigation and the term documents includes more than you may think!
Regardless of your means of communication, it is important to remember that what you say and how you say it may be relevant to future litigation.
Here are a just a few suggestions on how you may choose your words carefully next time before you press the send button.
Do you have a Season Tickets Sharing Agreement?
As a lifelong Winnipeg Jets fan, I am very excited to welcome the NHL back to Winnipeg.
Winnipeggers have rushed to snap up season tickets and many of you are sharing season tickets packages with one another. Each group sharing season tickets will have to decide on the rules each such group will follow in sharing season tickets.
In June, 2011, I was interviewed by the Winnipeg Free Press for an article about sharing season tickets. In the interview, which appeared in the June 18, 2011 edition of the Winnipeg Free Press, I was asked to highlight some of the issues that a person should consider when entering into a season tickets sharing arrangement.
I decided to follow up that article by preparing a checklist to help people develop their own agreement or to highlight issues people should be prepared to discuss when seeking a lawyer’s assistance in preparing a season tickets sharing agreement. This checklist is not exclusive to sharing Winnipeg Jets season tickets, and could apply to sharing season tickets for any type of event. You can review the checklist by clicking here.
If you have questions or would like help in developing your own season tickets sharing agreement checklist, please contact me via email at herstein@pitblado.com.
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Authors
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Mark Wallace
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Philip Watts
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Brant Harvey
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Caroline Kiva
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Adam Herstein
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Andrew Buck
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Benjamin Hecht
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Bradley Madison
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Rob Giesbrecht
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Ned Brown
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Candace Everard Grammond
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Lori Dobbie
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Darryl Antel
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Andrew Ogaranko
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Michael Puchniak
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Bill Gardner
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Tracey Epp
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Richard Buchwald
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Ron Greasley
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Administrator
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Douglas G. Ward, Q.C.
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Brian Bowman
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Courtney Chambers
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Bruce King
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newmandavidg
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