The Lawyers Weekly - May 18, 2012

Class
Continued From Page 11

members, because they were not members of the bargaining unit. As such, the plaintiffs claimed that rights of the class members were governed by common law.

Ford denied that it breached or repudiated any employment contract or wrongfully dismissed any of the class members. They claimed the employment agreements were frustrated by economic circumstances that were out of Ford’s control. They similarly denied that they acted negligently, and claimed that they made every effort to provide class members the opportunity to continue or resume their prior employment.

The plaintiffs made an initial
claim for one month of pay per
class member ($3,739) plus addi-
tional compensation for qualifying
members who could substantiate
their claims. The parties subse-
quently reached a settlement,
which was approved by the court,
for $835,000, which resulted in
compensation of approximately
$830 as a base amount, and
potential claims for additional
compensation of up to $10,000
based on the applicant’s ability to
prove particular hardship as a
result of the loss of employment.
The additional compensation fund
is being administered by National
Class Actions using a form-based
system. Counsel fees in the action
were approved in the amount of
$286,000. In addition, the plain-
tiffs were awarded $1,500 each as
a modest compensation for their
work on the case. Plaintiffs were
also given a special offer from Ford
should they or their family pur-
chase a Ford vehicle. This special
offer had an approximate value of
more than $200,000.

“

Kenneth Alexander, Davenport Law Group

policies sold. Allstate moved to a model of larger regional offices in which the agent simply would be an employee who received a salary and bonuses.

The plaintiffs argued that the
actions of Allstate amounted to
constructive dismissal on a class-
wide basis. The court denied cer-
tification on the grounds that the
common issues proposed by the
each step of the way.

Kenneth Alexander is a lawyer at
Davenport Law Group in Toronto.
He, along with David Thompson,
Chris Sweeney and Brian Hunt,
represented the plaintiffs in the
Ford case.

Minimize risk of allegations

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Continued From Page 10
Facebook accounts, several well-
respected legal commentators have
expressed their opinions, often
coming to different conclusions.
For example, York University
professor David Doorey wrote on
his Workplace Law Blog (yorku.
ca/ddoorey/lawblog) that s. 23 of
the Ontario Human Rights Code
says that an employer can’t ask a
job applicant for information that
“directly or indirectly” classifies a
person by a prohibited ground.
“Odds are most Facebook pages
do indicate some or all of these
things,” Doorey writes. “Therefore,
the Code prohibits an employer
from asking about it, or asking you
to provide a secret password that
will allow the employer to access
this information.”
In his blog (allaboutinforma-
tion.ca), Dan Michaluk said in
response to Doorey that s. 23( 2)
of the human rights code is not a
prohibition on the collection of
information. “An employer only
violates Section 23( 2) if it ‘classi-
fies’ an employee by a protected
personal characteristic or ‘indi-
cates qualifications’ by a refer-
ence to a protected personal
characteristic,” Michaluk writes.
“An employer who merely
accesses a social media account
that may contain information
related to a protected personal
characteristic in order to review
the account for objective behav-
iors that raise legitimate concerns
has neither classified an employee

At the end of the day,
counsel should be
relatively comfortable
in advising their
employer clients that
they are not doing
anything ‘wrong’ when
they go online to
research a candidate
using publicly available
information.

“

Stuart Rudner,
Miller Thomson
nor indicated job qualifications
by reference to a protected per-
sonal characteristic.”
The Ontario Human Rights
Commission recently set out its
position that employers should
not ask job applicants for access
to social media sites because
under the code, “employers could
face a finding of discrimination
even if there is no intention to
discriminate. The fact that
improper questions have been
asked is sufficient to prove dis-
crimination, even if the applicant
is ultimately given the job.”
Facebook’s Chief Privacy Officer
even commented on the “distress-
ing increase” in the reports of
employers seeking access to user
accounts, noting that “this practice
undermines the privacy expecta-
tions and the security of both the
user and the user’s friends. It also
potentially exposes the employer
who seeks this access to unantici-
pated legal liability.”
At the end of the day, counsel
should be relatively comfortable
in advising their employer clients
that they are not doing anything
“wrong” when they go online to
research a candidate using pub-
licly available information. How-
ever, we should ensure that our
clients are mindful of the risks
and take steps to minimize them.
Whether they can go further and
require full access to the appli-
cant’s Facebook or similar account
is questionable and, in most cases,
is not something that counsel
should recommend. n

Stuart Rudner is a partner in
Miller Thomson’s Labour &
Employment Law, focusing on
HR law.

Gus Richardson is pleased to offer his services as an arbitrator and mediator throughout the Maritimes and Ontario from his Halifax practice, Ad+Rem ADR Services. + With over 20 years litigation experience at all levels of courts in Nova Scotia and Ontario, Gus is also a Nova Scotia Small Claims Court adjudicator. Gus brings those skills to his practice as an arbitrator and mediator in labour, insurance, personal injury, commercial and condominium disputes.