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PAGE 12 FOCUS November 17, 2008 • Law Times It's a 'whole new ballgame' now Continued from page 9 out potential employees, for example. "It's unbelievable what they'll say. If they have posted remarks about a former em- ployer for all the world to see, do you re- ally want to employ them? The younger generation has grown up with the internet and they don't see it as publication world- wide. They leave themselves open to wild defamation claims. Employees need to be reminded of their duty of loyalty to the employer and that if they are going to set up a blog, it is very easy to pull evidence off the internet." Sometimes, the problems are much more serious, such as identity theft or download- ing child pornography or other extremely offensive material. "Employers must react quickly to safeguard the evidence," Dunlop advises. "They must lock the computer and limit access to it until they have called the police." Where it is employee information that is at risk, employers must look at limiting or blocking access. Adam Kardash, a pri- vacy and information management lawyer at Heenan Blaikie LLP, says that more than half of the security incidents that his firm deals with involve em- ployee personal informa- tion. "Employers hold very sensitive data and advising on security fea- tures alone can make up a full practice. The whole area is shifting from just privacy law to informa- tion management." Some of that manage- ment involves facilitating employees who want to exercise a right to access their own information. Dunlop says that the private and the public sectors have very differ- ent rights in this respect. "Legislation such as the Municipal Freedom of Information and Protec- tion of Privacy Act and federal privacy legislation, do not apply to provincially regulated private sector em- ployers, but if you work for a school board or a government department you have the right to access your own personal informa- tion. If you are just work- ing for Joe's Confection- ary down the road, the laws don't apply. There is a gap in the legislation." Workers often get the Adam Kardash says that more than half of the security inci- dents that his firm deals with involve employee personal information. right to access their own information through the collective agreement if they are unionized or by a grant of rights by the em- ployer. "If the employer wants to rely on a record for a performance review or a disciplinary matter, it's not worth the paper it's written on if they don't give a copy to the employee," says Dunlop. "An access request sounds so simple in prin- ciple," says Kardash. "But responding appropriately can pose operational difficulties. You have to comply with time requirements, and conduct reasonable searches of all paper and electronic records in an organization's custody and control, including audio and video recordings." Another huge concern for employers is employees taking client or company infor- mation out of the office, especially now that so many people work from home. "This is the biggest issue for the future," says Dunlop. "How do you allow a laptop to leave the office when it has proprietary business information or customer informa- tion or patient information? Under privacy laws you have an obligation to keep that in- formation in a locked cabinet, but what use is it if you are going to take it out in soft for- mat? And what about that BlackBerry that is going through some server that is not the employer's server?" Kardash has found that breaches are often inadvertent. "We have dealt with numerous security incidents involving compromised data ranging from 15 to several million affected individuals. We've seen loss of data, theft of data, and a broad range of compromises, usually caused by careless employee behaviour. Five years ago no one would have thought twice about leaving an unencrypted laptop or memory stick in a car. It's a whole differ- ent ball game now." LT Court made a 'mistake that had to be corrected' Continued from page 9 because the skepticism turned out to be legitimate." Once again, the facts are ger- mane to the outcome. "The prob- lem the Supreme Court had with that self-reporting type of illness is that it is ripe for abuse," says Good- man. "So they changed it from the most extraordinary decision in em- ployment history to, not a run of the mill decision, but one where the employee received a slightly higher notice period than usual." Before the ripples caused by the Honda decision had settled, along came the court's July 17 judgment in Hydro-Quebec v. Syndicat des employe-e-s de techniques professionnelles et de bureau d'Hydro-Quebec, section locale 2000, which addressed the test for undue hardship when an employer has to accommodate an employee's disability in the face of non-culpable absenteeism. That case was another extreme situation where the employee had missed approximately three years of her seven-and-a-half years of employment because of severe psychological problems. The arbitrator who approved the termination found that the future was going to mirror the past no matter what steps the employer took. In that case it was the Court of Appeal that made a radical decision which effectively made it impossible for an em- ployer to ever meet the threshold of undue hardship. Counsel for Hydro-Quebec, Robert Bonhomme of Heenan Blaikie's Montreal office, believes the judges came down on the side of common sense when they found that an employer is not required to prove that it is impossible to inte- grate an employee, but must prove undue hardship, assessed globally, starting from the beginning of the absences. Bonhomme says people may ask why the court heard a case with such an obvious outcome. "The Court of Appeal in Quebec made a mistake that had to be cor- rected. C'est la vie." The most recent of the judg- ments, on Oct. 9, was RBC Do- minion Securities Inc. v. Merrill Lynch Canada Inc. dealing with an RBC branch manager in Cran- brook, B.C., who orchestrated the departure of all but two of the branch's investment advisers and most of their clients to its competi- tor Merrill Lynch, causing the near collapse of the branch. Stacey Ball of Toronto's Ball and Alexander says it's an impor- tant case. "The decision recon- firms a number of employment law tenets — that all ordinary employers have to give reasonable notice and that there is a duty not to misuse employer's documents and confidential information. Kuretzky Vassos Henderson LLP is widely recognized as one of Canada's leading employment and labour law boutiques. We practice at the cutting edge assist- ing a wide spectrum of clients ranging from major corporate employers through to individual plaintiffs. Our practice includes employment contracts, wrong- ful dismissal, collective bargaining, labour board applications, arbitrations, adjudications, employ- ment standards, health & safety, human rights and ADR. To discuss what we can do for you or your client, call Kuretzky Vassos Henderson LLP at Kuretzky Vassos Henderson LLP (416) 865-0504. Suite 1404, Yonge Richmand Centre, 151 Yonge Street, Toronto, ON M5C 2W7 Tel: (416) 865-0504 Fax: (416) 865-9567 www.kuretzkyvassos.com www.lawtimesnews.com That's not a surprise." The Supreme Court also recon- firmed the Court of Appeal's view regarding competition in the notice period. "The employer was trying to create a notice period with no competition. The Supreme Court overturned the trial judge's award of damages for post-employment competition." According to Ball, the contro- versial issue is the majority's ex- pansion of the duty of good faith. "Importantly, the branch manager, Delamont, was found not to have a fiduciary relationship," says Ball. "But the majority found he had a duty to try and retain the employ- ees and not to organize their depar- ture for the competition." Justice Rosalie Abella, in her partial dissent, calls the expansion a "quasi-fiduciary duty" and raised serious concerns about its intro- duction, saying: "Expanding the scope of the duty of good faith in this manner represents a novel and potentially enormous liability on employees. This development, in my view, is not only unwelcome in its uncer- tainty and punitive in its impact, it also risks widening what this court has long recognized to be the imbalance of power in em- ployment relationships, by further entrenching the inherent vulner- ability of employees." Abella considered of the nature of the securities industry, which boasts a high level of poaching. Investment firms do not generally ask for restrictive covenants, as they are just as likely to be the poacher as the poachee. Ball says this is also relevant in considering the damag- es for five years worth of lost profits that Delamont was ordered to pay. "I believe five years is too remote," says Ball. "Was it reasonably in the contemplation of the parties that this guy would be hit for five years of damages?" Overall, Ball classifies Abella's concerns as real and valid. He is interested to see how the common law develops and his thoughts echo Bonhomme's and Goodman's when he says, "The majority view appears to be very narrow, and if it is fact specific, you can ask the question, 'Why did they hear it?'" Maybe to make employment law a more interesting place to practise. LT