Osgoode Labour & Employment Law Society

RBC Dominion Securities (part 4) is an interesting case to close the Quadrilogy with as it, along with Keays (part 2), Evans (part 1) and even Hydro Quebec (part 3), swing the pendulum far back in favour of the employer, in terms of the balance of power in employee relations.

It is best to think of this pendulum in terms of duties owed, and how stringent or flexible these duties are.  Keays allowed employers to be more bullish when managing employees by doing away with bad faith Wallace damages, instead adopting the Hadley approach to aggravated damages.  As discussed (here, here, and here), this fundamentally re-weighed an employer’s duty of good faith and fair dealing, allowing for more confrontation without the presumption of liability.

Similarly, although the facts of Evans are extreme, it too showed that, in certain circumstances, an employer will not be held responsible for bearing the brunt of an employee’s poor decision.  In that case, an employer’s liability for 24-months of reasonable notice was wiped out when the terminated employee refused an offer to return to his former workplace to work out some of the notice period.  Combined with Keays, Evans has the effect of dramatically shifting the balance of power towards employers during severance negotiations.

Hydro Quebec speaks to an employer’s duty to accommodate, and the Supreme Court’s most recent enunciation in that case hints at relieving employers of some of their burdensome accommodation responsibilities.  In Hydro Quebec, the Supreme Court held that a “global analysis” was required in assessing accommodation requests, and that previous attempts at accommodating a then-undiagnosed illness could evidence an employer’s satisfaction of its duty.  Employers struggle with disability accommodation, as shown by these startling statistics, so perhaps Hydro Quebec is a further example of the Court loosening the stringent demands previously put upon employers.

And what of RBC Dominion Securities?  On one hand it may be difficult to reconcile with the previous three pro-employer cases, as the Supreme Court held there was no moratorium at common law on competition during the reasonable notice period.  However the Court’s imposition of a positive duty on employees to provide reasonable notice of resignation, and holding them liable for failing to do so, cannot be ignored.  This duty, along with confirming the duty not to misuse of confidential information, provides employers with staffing stability by disincentivizing abrupt departures.

Reading these cases together, it would be tempting to say that the Supreme Court simply looked into their crystal ball back in February 2008 when it released the first of these decisions and foresaw the world’s financial meltdown.  In a way this almost seems plausible, because without doubt, through Evans, Keays, Hydro Quebec, and RBC Dominion Securities, the Court has given employers the employment relations tools necessary to weather the current recession.  While the timing is impeccable, what is more likely is that the rulings handed down in 2008 were simply the product of the natural ebb and flow of common law, not so dissimilar from Justice Iaccobuci’s “dialogue theory” about the flow between government and the judiciary.  Either way, employment law enthusiasts will eagerly await the next set of cases to see where the employer-employee pendulum swings next.