Swann Law

Nearly half of women and three in 10 men in Canada report experiencing some form of harassment or sexual assault in the workplace, according to data from Statistics Canada.

If you’re experiencing harassment, sexual assault or any other type of workplace misconduct, here are five tips for keeping detailed records of incidents to support your case.

𝟭. 𝗗𝗼𝗰𝘂𝗺𝗲𝗻𝘁 𝗲𝘃𝗲𝗿𝘆𝘁𝗵𝗶𝗻𝗴: Write down what happened as soon as possible after the incident. Include dates, times, locations and names of people involved.

𝟮. 𝗕𝗲 𝘀𝗽𝗲𝗰𝗶𝗳𝗶𝗰 𝗮𝗻𝗱 𝗼𝗯𝗷𝗲𝗰𝘁𝗶𝘃𝗲: Describe the incident in detail, focusing on facts rather than opinions. Avoid emotional language and stick to what you experienced and observed.

𝟯. 𝗣𝗿𝗲𝘀𝗲𝗿𝘃𝗲 𝗽𝗵𝘆𝘀𝗶𝗰𝗮𝗹 𝗲𝘃𝗶𝗱𝗲𝗻𝗰𝗲: Save all relevant emails, texts and messages. Organize them by date to create a clear timeline of events.

𝟰. 𝗖𝗼𝗹𝗹𝗲𝗰𝘁 𝘄𝗶𝘁𝗻𝗲𝘀𝘀 𝘀𝘁𝗮𝘁𝗲𝗺𝗲𝗻𝘁𝘀: If colleagues witnessed the incident, ask them to write a statement. Include their contact information and any relevant details they provide

𝟱. 𝗥𝗲𝗽𝗼𝗿𝘁 𝘁𝗵𝗲 𝗶𝗻𝗰𝗶𝗱𝗲𝗻𝘁: Report the incident to HR or a trusted supervisor as soon as possible. Make a note of when and how you reported it.

Thorough records can significantly strengthen your case and provide essential evidence if you decide to take legal action.

Remember, you are not alone in this. We understand how overwhelming and stressful these situations can be. If you need guidance on what steps to take next, an experienced employment lawyer can explain your options.

An Ontario blockchain business must pay two of its employees approximately $120,000 each after the Ontario Labour Relations Board (OLRB) concluded its plan to pay half of their wages in the Company’s own cryptocurrency violated the province’s Employment Standards Act, 2000.

According to OLRB Board member Roslyn McGilvery, the workers each signed identical employment contracts promising $240,000 in “base salary” with compensation to be paid 50% in cash and 50% in Kinglory’s KGC cryptocurrency.

However, the OLRB ruled that once the Company had specified the employees’ base salary as $240,000, “it was not open to the Employer to pay their wages in a method other than those stipulated in subsection 11(2) of the Act — that is by cash, cheque or direct deposit.”

The KGC cryptocurrency did not constitute legal tender. Accounting for the Company’s existing payments made to the employees over their 40-week employment, as well as their vacation pay entitlements, that left $116,742 still owing to each, the OLRB concluded.

In the most recent decision, the OLRB notes that if Kinglory’s contract had presented the compensation package as a base salary of $120,000, plus an additional benefit of KGC tokens worth $120,000, this “may have been persuasive.”

More than four in 10 (42 per cent) Canadian professionals reported feeling burnt out at work, according to a recent poll by HR consulting firm Robert Half.

"The most reported contribution to burnout among respondents was heavy workloads due to understaffed teams, at 52 per cent. Forty-two per cent felt a lack of communication and managerial support contributed most to their burnout, while 39 per cent pinned it on missing tools/resources required to perform properly at work,” reports Global News.

Katharine C***s, the national associate director of workplace mental health with the Canadian Mental Health Association, highlighted the impact of the "always-on culture."

She noted that the blurred lines between work and personal life — exacerbated by remote work — contribute significantly to employee exhaustion. C***s emphasized the need for employers to establish clear boundaries and support systems to help mitigate burnout.

The survey underscores the importance of organizational changes to address these systemic issues, particularly for younger workers who are feeling the brunt of the burnout epidemic.

Bullying, harassment, unreasonable workloads and chronic stress are all hallmarks of a toxic workplace.

While there’s no official system to label a work environment as toxic, employees need to assess if it feels harmful and unhealthy for them.

Recognizing these signs early is crucial, as it allows employees to take action to protect their well-being and seek necessary changes or support.

If you’re dealing with a poisoned work environment and considering filing a legal claim for constructive dismissal, here are a few tips to keep in mind:

𝗗𝗼𝗰𝘂𝗺𝗲𝗻𝘁 𝗲𝘃𝗲𝗿𝘆𝘁𝗵𝗶𝗻𝗴: Keep detailed records of all incidents of harassment, bullying, and any unreasonable actions by your employer. This documentation can serve as crucial evidence.

𝗥𝗲𝗽𝗼𝗿𝘁 𝘁𝗵𝗲 𝗶𝘀𝘀𝘂𝗲𝘀: File a formal complaint with HR or higher management to show that you have attempted to resolve the issues internally.

𝗦𝗲𝗲𝗸 𝗹𝗲𝗴𝗮𝗹 𝗮𝗱𝘃𝗶𝗰𝗲: Consult with an employment lawyer to understand your rights and the strengths and risks of a legal claim, including the emotional and financial impact.

Navigating a toxic work environment is challenging, but knowing your rights and taking informed actions can help you protect yourself and seek the justice you deserve.

If you need assistance, feel free to reach out to our team for guidance and support.

Swann Law is delighted to welcome Lucinda Bendu as an Associate Lawyer.

Called to the Ontario Bar in 2018, Lucinda earned her J.D. from Osgoode Hall Law School and a Masters of Industrial Relations from Queen's University.

Lucinda is committed to social justice and volunteered at CLASP, providing legal advice to disadvantaged individuals. She brings extensive experience as a civil litigator, having handled cases involving oppression remedies, contract disputes, and employment issues. Additionally, Lucinda is fluent in Krio and proficient in French.

To learn more about Lucinda Bendu and the rest of our team, visit our website: https://swannlaw.ca/teams/

The Human Rights Tribunal of Ontario (HRTO) has awarded a fired water taxi driver $20,000 in damages for age discrimination after the company told him it was “going with younger people now.”

According to the ruling, the driver had 20 years of experience with a rival water taxi company when he joined the respondent in 2016 on a promise of higher wages.

However, after two years working at $25/hour plus tips, when the 72-year-old showed up at the dock to work, the CEO asked him what he was doing there. According to the driver, when he said he was there to work, the CEO told him they were going with younger people now. Sooner after, a police officer approached him and asked what he was doing there since the CEO had fired him. It was only at that point that he understood that he was terminated.

Despite having participated earlier in the HRTO proceedings, nobody from the Company showed up for the one-day hearing, which meant that none of the applicant’s evidence was challenged before the adjudicator.

In her decision, HRTO Member Lavinia Inbar wrote that she had no reason to disbelieve the driver’s uncontradicted account of events, concluding that his age was a factor in his termination and that he had established a violation of Ontario’s Human Rights Code. When it came to remedy, the adjudicator wrote that an exact calculation of lost wages was not possible due to the seasonal and irregular nature of the driver’s work.

However, she was satisfied that $10,000 was a reasonable amount, based on a T4 slip showing he earned just over $5,000 in 2017, as well as his evidence that he received a further $5,000 in tips. The adjudicator also awarded the driver a further $10,000 in compensation for injury to dignity, feelings and self-respect due to the manner of the termination.

“I consider that the impugned conduct only occurred once. However, the objective seriousness of termination of employment occurring in violation of the Code is at the high end, and the impact of the conduct on the applicant was significant,” she wrote.

“Aside from loss of income (addressed above) the immediate impact of the discrimination was the understandable embarrassment and upset of having been approached by police who told the applicant that they were terminated and effectively expelling them from the area.”

With Canada Day just around the corner, we come together to celebrate the rich heritage, stunning landscapes and cultural diversity that make our country so unique.

As we enjoy the festivities, let's reflect on our shared history and look forward to a future where all Canadians thrive.

Happy Canada Day and enjoy the long weekend! 🍁

A court victory for an office worker fired after 35 years of service is a classic example of the difficulty employers will face proving a failure to mitigate in cases involving very long-term employees.

The decision was unreported, but as prominent mediator Barry Fisher notes in his summary of the case, the 56-year-old office administrator was earning just over $42,000 per year at the time of her termination without cause in October 2020, having spent her entire working life with the same employer.

She had only a high school education and poor computer skills. The parties agreed on a notice period of 24 months, but the employer claimed a reduction was in order because the terminated worker had failed to mitigate her damages, pointing to her admission that she had delayed her job search for four months, only to end up applying for just 59 or the 5,000 job openings the company had sent her way.

The firm also offered her $1,400 towards career counselling, but never provided her with the names of any service providers who could do the job for that price. In the end, the judge sided with the plaintiff, ruling that she was entitled to the full 24 months of severance pay — for a total damages award of $84,000 — after concluding that her former employer had failed to prove any failure to mitigate.

The judge accepted the woman’s explanation that she had delayed her job search because she was in shock at her termination and worried about the COVID-19 pandemic, which was at its height. In addition, the judge found that the worker’s eventual job search was reasonable, noting that she was unqualified for many of the thousands of postings sent by the company.

I agree with Barry that it’s almost futile to claim a failure to mitigate in cases involving very long-term employees. Judges are generally inclined to give them some leeway when it comes to starting their job search. That’s especially true in cases like this, which did not involve a particularly senior-level or highly paid employee.