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Law Times • November 19, 2012 I New premier will need thick skin and lots of luck COMMENT and six candidates are lining up to vie for the leadership of the Ontario Lib- eral Party. All of them will have to pony up the $50,000 entry fee before the party faith- ful gather in January to choose their next leader and by default the next premier of Ontario. Party members will be looking for a leader best suited to slug it out in the wilderness of opposition because the chances of the party hanging onto power are slim to none at this point. While everyone can dream and there t's a dirty job, but someone has to do it running for mayor, he ran uncontested for the Liberal nomination in Toronto Cen- tre when George Smitherman stepped down to run for the municipal job. His big ideas so far are tax cuts for the middle class and no-money-down tuition for students, both of which suggest he' read the Drummond report on just how bad Ontario' may be a way to at least buy more time de- pending on how the leadership race stacks up, the reality is that barring a meltdown by either Andrea Horwath or Tim Hudak, the Liberals are likely to fall and end up in a rebuilding mode that could last a de- cade. It' have little chance from the start. Former citizenship and immigration minister Charles Sousa has never been a shining star and will have plenty of baggage since his was one of the seats saved by axing two natural gas power plants in the Greater Toronto Area at a cost of somewhere between $200 million and $1 billion de- pending on whose numbers you add up. Former minister of training, colleges, But let's cut to the chase. Two hopefuls s hardly a plum position. and universities Glen Murray is an am- bitious opportunist and an outsider who parachuted into Toronto. Aſt er mulling and defi cit problems are. Gerard Kennedy has a sig- s hasn't really s debt Queen's Park Hoskins, have to spend and tax hikes that will provide more ammu- nition for the Conservatives to shoot back with. Th en there' back to work. Kennedy' children and youth services, founder of War Child Cana- da, and a Rhodes scholar fi rst elected in 2009 in a byelection for the riding of St. Paul' Ian Harvey nifi cant profi le aſt er serving as MPP, MP, and provincial cabinet minister. In addi- tion, he has run for both the provincial and federal Liberal leaderships before. He lost to Premier Dalton McGuinty in 1996 and to Stéphane Dion in 2006. But he has no seat, has been out of provincial politics for years, and lost his Parkdale-High Park federal riding in the 2011 election. Still, he topped a recent Forum Research poll of the six contenders among voters but it' days yet. He may also be too far to the leſt to really give Hudak a run. Next up is Kathleen Wynne, former s early minister of municipal aff airs and housing as well as aboriginal aff airs. She certainly has the credentials but has also signaled a shiſt to the leſt by saying she' government's relationship with teachers d repair the and the public sector unions. It all adds up to more money the government doesn't got the good looks and earnest integrity but he' spending and a battle with the NDP that could benefi t the Conservatives. Finally, MPP from 1995-2011. Last year, she sat out the election as she switched to a Bay Street job with PricewaterhouseCoopers. She sat on both the opposition and government benches in various ministerial capacities. As a result, she'll carry some of the stench from her role in previous McGuinty gov- ernment scandals such as the power plant cancellation, eHealth Ontario, and Ornge. Th e bigger issue her campaign faces is her lack of a seat. She's vocal and has there's Sandra Pupatello, an lean leſt , which means more former minister of s Dr. Eric s. He's s also likely to he or Pupatello wins the leadership, there'll be at least another fi ve to seven weeks af- ter the convention before the winner can take a seat in the legislature. Th at puts us into the spring before the house can re- sume and the serious business of bring- ing down the government can begin in earnest. Th at' s in the same boat. So if either who think the house should get back to it as soon as possible. Th ere' risk that the rudderless ship of state will run aground at some point. A byelection, though, is also fi ve to six weeks of free campaigning for Pupatello. She' a party straight out of a leadership race, but you' Conservatives and the NDP and a chance to put a new face on the government. Th ere' d get a running jump on both the necessary byelection that merely delays a general election aren't very good. Meanwhile there' never met a camera or microphone she didn't like (the feeling is reciprocal) and while Finance Minister Dwight Duncan has said he'll give up his seat in Windsor- Tecumseh that' Pupatello has made it clear she'll run for election before she brings the legislature s next to her old riding, minding the store? s one question for now: who's LT s also usually a liſt in the polls for d have to say the optics of an un- building, vote wooing, backroom deal- ing, and fundraising to do between now and Jan. 25. But there' s lots of platform Ian Harvey has been a journalist for 35 years writing about a diverse range of is- sues including legal and political aff airs. His e-mail address is ianharvey@rogers.com. I Legal pitfalls show need for workplace social media policies Modern society turns to social net- working sites to tell people's sorrows. As a In Titus A ndronicus, Shakespeare of- fered an apt recommendation for the social media age: "I tell my sorrows to the stones. " Labour Pains result, misguided use of social media in- creasingly clogs the courts' dockets. Em- ployees' online postings bursting with de- rogatory, off ensive or insulting comments about their employers, employment rela- tionships or co-workers can have serious consequences. Th ey range from just-cause dismissal to reduction of settlement mon- ies. A recent decision of the Ontario Hu- man Rights Tribunal in Tremblay v. 1168531 Ontario Inc. off ers a novel dimension of consequences for post-employment online blogging. In this case, the dismissed employee fi led an ap- has been found. Indeed, a breach of confi den- tiality is diffi cult to remedy because, once it happens, it' confi dentiality. A word tweeted, confi dential- ity depleted. In determining the appropriate remedy, s virtually impossible to reinstate Chsherbinin Nikolay ex-employee under the settlement by $1,000. Th e jurisprudence dealing with an employer' plication for contravention of settlement pursuant to s. 45.9(3) of the Ontario Human Rights Code. She alleged her former employer had refused to pay the amount owing under the settlement. Th e employer responded with a similar application alleging the em- ployee had breached the confi dentiality provision of the minutes of settlement by disclosing on her Face- book page that there was a settlement and that she had received monetary compensation. Th e evidence revealed that during the mediation the tribunal observed that a contravention of settlement undermines the administra- tion of justice by discrediting the human rights system and generating disincentives to negotiation. In fi nding that an award of monetary compensation can help refl ect both the private and public importance of complying with settlement terms, the tri- bunal reduced the amount owning to the ity to dismiss an employee for cyberspace behaviour remains relatively undeveloped. Many employers are still unsure how to react to and limit misuse of so- cial media. For example, in the B.C. case of Lougheed Imports Ltd. (West Coast Mazda) v. United Food and Commercial Workers International Union Local 1518, the employees were discharged for increasingly in- sulting and hostile threads on their Facebook pages. Th e postings ranged from badmouthing their em- ployer' s abil- session, the employee posted: "Sitting in court now . . . feeding them a bunch of bull shit. I don't care but I am not leaving here without money. . . ." Shortly aſt er the mediation, she posted: "Well court is done didn't get what I wanted, but I still walked away with some. . . ." Having read these comments, the employer be- came concerned about its business reputation and that others within its small community might regard fi ling an application or suing the company as easy. Consequently, it decided not to pay out the settle- ment monies. Th is provoked its ex-employee to post comments relating to its failure to pay. At the hearing, the tribunal observed that there have been no cases before it where a breach of co nfi dentiality associated with their dissatisfaction at work. In Al- berta v. Alberta Union of Provincial Employees, the employee was discharged for just cause because in her online postings she called her supervisor a "luna- tic in charge, took an unprofessional attitude toward clients, and disclosed confi dential correspondence. In Chatham-Kent (Municipality) v. National Auto- " insulted easily identifi able co-workers, mobile, Aerospace, Transportation, and General Work- ers Union of Canada Local 127, a personal caregiver at a home for the aged was discharged for breach of a confi dentiality agreement aſt er she created a public web site on which she published inappropriate com- ments about residents and co-workers, used profan- ity, and expressed dissatisfaction about decisions made by management. In Wasaya Airways LP v. Air Line Pilots Association, International, Wasaya Airways www.lawtimesnews.com s business to serial killings and revenge plots dismissed one of its pilots for off -duty misconduct re- lated to disparaging comments on his Facebook page about First Nations communities. Th ose communi- ties comprised 90 per cent of the airline' ployees can be disciplined and dismissed for inappro- priate use of social media outlets. Th ey also confi rm that employers are slow to take decisive action for employees' inappropriate online conduct. Because many workplaces still lack a social media policy, em- ployers are forced to monitor the employee' Taken together, these decisions confi rm that em- s customers. ing online bahaviour until it's deemed to have con- s off end- travened other policies such as confi dentiality and harassment. Th e delay in acting suggests employers' uncertainty about the novel situation. A social media policy could be an eff ective and ef- fi cient solution. Th e policy can be draſt ed to properly restrict employees' on- and off -duty use of the Inter- net without encroaching on their freedom of expres- sion. Th e policy should underscore the importance of not communicating in a manner that' ful, off ensive, insulting, disloyal or damaging to the employer' reasonable expectation of privacy for publishing con- tent online by stipulating that the employer reserves the right to monitor social networking sites without their knowledge or consent and rely on the published contents in support of its disciplinary actions, includ- ing dismissal. Given that the law on social media isn't yet clear, s reputation. It should also limit employees' the notion of workplaces where employees are un- sure of expectations towards their online behaviour should force prudent employers to take proactive steps to minimize misuse of the Internet and their exposure to wrongful dismissal lawsuits. Failure to do so may result in needlessly expensive and protracted litigation during which employees could argue they didn't know their online activities were public and employers would be burdened with proving that they knew the rules in order to justify their dismissal. LT Nikolay Chsherbinin is an employment lawyer at Chsherbinin Litigation. He can be reached at 416-907- 2587, nc@nclaw.ca or nclaw.ca. s a negative for those Liberals s also increased PAGE 7 s disrespect-