Drug testing, internal investigations, overtime on the dockets
The past year brought about a number of significant legal decisions for employers. CLV Reports offers a recap of some of the key developments of 2009.
Random Drug Testing
A decision by the Court of Appeal for Ontario on random drug testing suggests employers “must tread very softly when it comes to employee drug testing,” according to the law firm McCarthy Tetrault.
In a May 2009 decision in Imperial Oil and Communications, Energy & Paperworkers Union of Canada, Local 900, the court concluded the company’s policy of testing without reasonable cause was an “unwarranted intrusion” on employees’ privacy and “an unjustifiable affront to their dignity.”
The union had challenged Imperial Oil’s policy for random mandatory testing in safety-sensitive positions using a saliva swab test.
The decision “effectively slams the door on Ontario employers’ efforts to use this effective tool to promote safety at the workplace,” according to the lawyers at Gowlings.
Workplace Investigations
A decision from the Ontario Court of Appeal, R. v. Bruce Power Inc., is significant for employers involved in internal employer investigations, according to the firm Rublin Thomlinson.
The case stems from a serious injury at the utility. The company conducted an internal investigation and was advised by its lawyers to claim solicitor-client and litigation privilege over related documents.
The report was marked “confidential” and a copy was sent to all involved parties, including the union, with instructions to destroy or return all copies upon reading them.
The union representative did not destroy the documents, and later forwarded the information to the Ministry of Labour inspector. Bruce Power brought a motion for a stay in proceedings, which was confirmed by the higher court.
“It is a well established principle that at the root of solicitor-client privilege lies the notion that people must be able to communicate candidly with their lawyers, which they cannot do without an assurance of confidentiality,” writes Mark Josselyn of Gowlings in the firm’s November 2009 employment law update.
He notes that employers should only undertake an investigation under the direction of counsel.
Overtime Class Action Lawsuits
The Ontario Superior Court of Justice refused to certify a class action lawsuit for current and former tellers for the Canadian Imperial Bank of Commerce. The plaintiff in Fresco v. Canadian Imperial Bank of Commerce sought $500 million for unpaid overtime on behalf of the non-management and non-unionized workers.
The court rejected the claim on the grounds there was no “common issue” and that the bank’s overtime policy itself — and its pre-approval requirement — was not illegal.
The court held that “there was no evidence of systemic wrongdoing by CIBC and that claims for unpaid overtime were individual in nature and should be resolved on an individual basis,” writes Osler’s employment lawyers in a June update.
Restrictive Covenants
The Supreme Court of Canada has clarified the extent to which employers can restrict competition by departing employees in RBC Dominion Securities v. Merrill Lynch Canada Inc.
The case stems from a mass exodus at RBC Dominion Securities Inc. in Cranbrook, B.C. in November 2000. The branch manager and most of the firm’s investment advisors left RBC — without any advance notice — to work for Merrill Lynch, their main competitor. In the weeks leading up to their departure, several of RBC’s client records were also surreptitiously copied and transferred to Merrill Lynch.
The SCC concluded that employees have an implied obligation to give reasonable notice, and may be forced to pay damages if they do not.
However, the court also confirmed employees have no legal duty not to compete unfairly against their former employer, even during that time period.
