Video Surveillance in the Workplace – Big Brother Boss?

From financial institutions to factories, video surveillance is common in many workplaces. It is especially prevalent in places where there is inventory or cash. Deterring harassment, theft and vandalism are just some of the reasons an employer may want to monitor their employees. However, the Canadian justice system has not been particularly tolerant toward employers who video monitor their employees without good faith or cause.

The Rules of Video Surveillance in the Workplace

In Canada, employees have a general right to privacy at the workplace, like in any other public space, unless it is explicitly stated otherwise in their employment contract. Accordingly, an employee would not have a reasonable expectation of privacy in an open lobby but would in a locker room.

Video Surveillance Rules in the Workplace - KCY at LAW

Well defined workplace policies should be your first defence against employee misconduct. Video surveillance in the workplace should be the option of last resort. Less invasive means of monitoring issues of suspected criminal activity, harassment, or violence should also be pursued before installing cameras. Only once other options for deterring suspected or known inappropriate behaviour have been exhausted should video surveillance be considered.

Is Video Surveillance In A Workplace Legal?

Is Video Surveillance in a Workplace Legal - KCY at LAWThere are many external factors, such as whether a workplace is unionized, that can also contribute to determining if video surveillance in a workplace is legal and legitimate. Based on a multitude of court rulings concerning workplace video surveillance and employee privacy rights, the following conditions should be demonstrated when installing video surveillance systems:

  • There must be a legitimate concern that an offence is being committed and that installing cameras will be an effective approach to solving this problem.
  • Except for rare circumstances, it is necessary to alert employees to surveillance practices and obtain their consent. Individuals should be able to know who is watching what and to what end.
  • Surveillance should monitor a particular area suspected of improper activity and for a determined period of time. However, surveillance must not single out a specific employee. The expanse of surveillance should be limited as much as possible. General surveillance for an indefinite time is usually considered unacceptable.
  • Surveillance should be conducted with a specific purpose and only used for said purpose.
  • Signs alerting employees and visitors to surveillance cameras should be prominently displayed.
  • Adhere to PIPEDA legislation regarding employees’ privacy and access to information.

Video Surveillance In The Workplace – Legal Experts

To avoid infringing upon your employee’s privacy rights, you should talk to an experienced employment lawyer before installing any surveillance measures in the workplace. KCY at LAW can help you to develop fair and legal employee monitoring systems. To find out more give us a call now on (905) 639-0999 or contact us online!

Psychiatric Malpractice

On December 12, 2008, Hamilton resident Donna Molnar was taken to St. Joseph’s hospital after attempting suicide. This was not her first suicide attempt and it would not be her last. Barely two weeks later she was found in a field by a rescue dog after lying in the snow for three days. Last year Ms. Molnar reached a significant settlement in a $12.5 million lawsuit against two doctors at St. Joseph’s Healthcare Hamilton as well as her family doctor.

Ms. Molnar vs St Joseph’s Healthcare Hamilton – Psychiatric Malpractice

Ms. Molnar’s position was that her family doctor and those at St. Joseph’s had demonstrated negligence in her mental health care. She had been experiencing severe anxiety and depression for some time and had made three previous suicide attempts before disappearing from her home on December 19, 2008. She was discharged from St. Joe’s after swallowing pills without seeing a psychiatrist on December 12 and was not referred to a psychiatrist after visiting her family doctor three days later. She alleged that her doctors failed to take appropriate actions to help a person clearly experiencing a mental health crisis.

ms-molnar-vs-st-josephs-healthcare-hamilton-psychiatric-malpractice

Psychiatric Malpractice – Negligence in Mental Health

People suffering from mental health issues are vulnerable and depend on the expertise of their psychiatrists the same way someone with respiratory issues would trust in their doctor to diagnose and treat their ailment. Like all doctors, psychiatrists owe a duty of care to their patients and if their patient suffers injury or wrongful death, the psychiatrist may be held liable for damages.

Psychiatric negligence may include:

  • Failure to properly diagnose and treat a patient
  • Failure to conduct a proper suicide risk assessment
  • Failure to prevent a patient’s suicide, self harm, or harm of others
  • Negligent use of psychopharmacological drug

what-is-psychiatric-negligence-kcy-at-law

Suicide Prevention

Suicidal thinking is usually associated with problems that can be treated. If you cannot think of solutions besides suicide, it is not that solutions do not exist, only that you are unable to see them at the moment. If you are feeling suicidal or know someone who is, visit suicideprevention.ca or call a crisis centre such as Lifeline (1-800-273-TALK). Your life matters.

Medical Malpractice Experts

Medical malpractice suits are complicated and require the expertise of an experienced personal injury lawyer. If you or a loved one has suffered from psychiatric negligence, contact KCY at LAW by calling (905) 639-0999 or online to book your consultation and get the compensation you deserve.

Halloween Safety Tips For Pedestrians

All Hallows’ Eve is upon us and Canadian neighbourhoods are about to be filled with all manner of unusual creatures. But it isn’t just ghouls and demogorgans to watch out for, Halloween is one of the most dangerous days of the year for pedestrians, especially children. If you are planning to celebrate October 31st trick-or-treating with your kids or attending a costume party with your friends, below are some safety tips to help keep you and your loved ones safe.

Halloween Safety For Pedestrians – Stay Visible

halloween-safety-tips-for-pedestrians-kcy-at-lawMost motor vehicle-pedestrian collisions occur between dusk and midnight. Be sure that you can see cars and that they can see you. Dark clothing and poor visibility put pedestrians at risk even when they are obeying all traffic laws. A bright costume is ideal but if you or your kids relish the dark and macabre, wear a light or reflective tape to cue drivers to your presence. Additionally, five little witches are more noticeable than one.

Travelling in groups makes you and your children more visible to motorists. Lastly, make sure you are aware of your surroundings and that your mobility isn’t impeded by your outfit. Ensure that you won’t trip over your costume and be aware that masks can substantially limit your field of vision.

Use Sidewalks and Crosswalks

About one third of pedestrian death occur when pedestrians cross the street mid-block. Although your kids might be tempted to zig-zag across the streets from one haunted house to the next, keeping to the sidewalk and using crosswalks can greatly reduce the risk of being hit by a motor vehicle. It is especially risky to cross the road from between parked cars where you and the shorter members of your goblin brood may be hard for drivers to see.

Motorists:Avoid Residential Streets

If at all possible, keep out of neighbourhoods or streets with a high volume of trick-or-treaters. A greater number of pedestrians, and young pedestrians in particular, increases the risk of driving accidents. If you do need to drive through a busy trick-or-treat corridor, be sure to use extra caution. Over 40% of fatal pedestrian-car accidents occur at speeds of 50 km/h and under so leave yourself lots of time on the 31st to drive extra slow to wherever you are going. Expect the unexpected from little wizards. Excited costumed kids are not necessarily paying attention to traffic and might give you the worst kind of scare by unexpectedly taking to the road.

Never Drink and Drive

Plan a way home before you head to a festive party with friends, family, or coworkers. RIDE programs will be in high effect October 31st  to ensure everyone can enjoy Halloween safely.

expert-car-accident-lawyers-halloween-car-accident

Expert Car Accident Lawyers

If you or a loved one has been injured by a car accident caused by a negligent driver, KCY at LAW has the expertise to get you the compensation you deserve. Call us today at (905) 639-0999 or contact us online to book a consultation.

The Benefit of Expert Evidence

When pursuing a lawsuit against a negligent party it can be a challenge proving your case successfully.  Whether he or she is an expert relating to an issue of liability, such as whether a particular doctor fell below the standard of care expected when performing a medical procedure, or an issue relating to damages, such as an orthopedic surgeon opining on the prognosis of your fractured ankle, expert witnesses can be valuable assets in advancing your claim and getting the compensation you deserve.

The Benefits of Expert Witnesses

The Benefit of  Expert Evidence - Personal Injury Lawyer KCY at LAWThere are various benefits to lawyers obtaining the opinions of expert witnesses.  First, they can provide important technical details that may not otherwise be present in your case.  As an example, there could be some well-known medical literature in his or her field that is unknown to the layperson but which helps prove his or her opinion regarding your injuries.  There may also be a regulation or set of standards that he or she is aware of that can help show how someone is at fault for your trip or slip and fall accident.

Second, expert witnesses also tend to have a lot of experience in matters similar to yours.  Whether it’s an expert engineer examining the functioning of an elevator or a psychologist who has decades of experience dealing with individuals with post-traumatic stress disorder, it can be much harder for the opposing lawyer to deny or refute the expert’s claims.

Expert Evidence Adds Credibility

Third, experts can add a lot of credibility to your case.  As opposed to a lay witness (for example, a friend, family member, or independent witness to an accident), an expert is most often well-versed in the particular area that they have been retained to opine on.  As such, a lot of what is stated by an expert, whether in a report or on the witness stand, is more likely to have more weight behind it.

Network of Expert Witnesses

If you or someone you know has been seriously injured as a result of an accident, an expert witness may be the key factor that tips the balance in your favour.  We at KCY at LAW have access to a vast network of experts in numerous areas that may prove to be the critical piece to your case’s success. 

Network of Expert Witnesses

If you have been injured as a result of a motor vehicle accident or trip/slip and fall, contact us right away by calling (905) 639-0999 or contact us online to book your FREE consultation!

Ontario Court Recognizes New Privacy Tort

Earlier this year, the Ontario Superior Court released its decision in Doe 464533 v D 2016 ONSC 541 wherein a man was found to be financially liable for posting a private sex tape of a former girlfriend online.  It was in this case that the Court recognized for the first time the new privacy tort of public disclosure of private facts.  The Court’s decision expands the common law protection of privacy and illustrates how courts can recognize and provide relief to victims of cyberbullying.

Ontario Superior Court Decision in Doe 464533 v D 2016 ONSC 541

Ontario Court Recognizes New Privacy Tort

This new form of a tort arose from the above-noted decision which dealt specifically with revenge porn cyberbullying.  The defendant posted a sexually explicit video that he promised not to disclose of the plaintiff to a pornographic website.  When the plaintiff became aware of the video being posted on the website, the defendant admitted to uploading it before it was removed a few weeks later.  Despite the video eventually being taken off the website, the Court held that there is no way to know how many times it was viewed, copied, or stored before being removed.  Ultimately, the Court awarded the plaintiff $105,500.00 in damages and interest, and granted a permanent injunction disallowing the defendant from contacting the plaintiff or her family members.

Publication of Embarrassing Private Facts – New Privacy Tort

For those who are unfamiliar, the tort of public disclosure of private facts contains the following three elements: someone who gives publicity to a private matter of another is subject to liability to the other for invasion of the other’s privacy, if the matter publicized or the act of the publication would be highly offensive to a reasonable person, and is not of legitimate concern to the public.

Publication of Embarrassing Private Facts - New Privacy Tort

The ever-changing and evolving nature of technology into normal, everyday life will likely continue to significantly impact the issue of privacy.  The decision held by the Court in this case however does recognize the new tort of public disclosure of private facts and will hopefully provide a better remedy for those who have been victim to various forms of cyberbullying.

Public Disclosure of Private Facts

If you have been the victim of public disclosure of private facts then contact KCY at LAW to ensure your case is handled effectively. Contact us today by calling (905) 639-0999 or via our online form here.

Changes To The Ontario Rules Of Civil Procedure Could Boost Number Of Claims

LawPRO has made civil litigation its priority as it seeks to avoid a flood of new claims when the new automatic dismissal rules kick in at the beginning of 2017.  The new rules relate to Rule 48 of the Ontario Rules of Civil Procedure and state that any lawsuit commenced before January 2012 that has not settled or been set down for trial by January 1, 2017 will be dismissed without any notice by the Court.

Changes To The Ontario Rules Of Civil Procedure

Prior to 2015, individuals only had 2 years to set their matters down for trial before a notice was sent out by the Court to dismiss the claim for abandonment.  The new rule, however, replaced this warning with a longer deadline, making dismissal of a claim automatic after five years.  Ms. Susan McGrath, Law Society of Upper Canada Bencher recently told Convocation that this transition could lead to a significant increase in the amount of claims.

Changes to Rule 48 of the Ontario Rules of Civil Procedure

Possible Boost in Claims Before January 1st, 2017

Given the fast approaching January 1, 2017 deadline, expect to see many lawyers with cases not yet set down for trial but ones which were commenced before 2012 to be cramming in as many steps to get their matter as ready for trial as possible in order to avoid automatic dismissal.

Ontario Rules Of Civil Procedure Rule 48 Changes - Susan McGrath

All lawyers need to familiarize themselves with the requirements under Rule 48, and specifically the transition provisions.  Dates should be updated in any tickler systems used to reflect the new deadlines and to avoid any hiccups in the management of any given file.  This is especially important as the Courts will no longer be sending out any notices of actions being dismissed.

Claims Impacted By Rule 48

If you have any doubts about your potential claim or if it will be impacted by the changes to Rule 48 of the Ontario Rules of Civil Procedure then give KCY at LAW a call now on (905) 639-0999 or contact us online for advice.

Performance Improvement Plans (PIPs) Info

Have you been put on a performance improvement plan (PIP) by your employer?

What Is A Performance Improvement Plan (PIP)?

A PIP can be a genuine way for an employer to help a struggling employee to improve his or her performance. A PIP may also signify the beginning of the end of the employment relationship. Often times the employer may be implementing a PIP in order to create a paper trail or frustrate the employee so that he or she ends up quitting.

An employee should do everything they can to understand the PIP and, where necessary, challenge elements of the PIP that they disagree with (which should be documented in writing).

“With Cause” Terminations

If an employer intends on terminating an employee “with cause” on the basis of poor performance, thereby resulting in them receiving no severance package and possibly rendering them ineligible for employment insurance benefits, the employer will be required to demonstrate they put the employee through a progressive disciplinary structure prior to termination. This should typically start with a verbal warning, following by a written warning, followed by a suspension before actual termination.

Termination With Cause Process - KCY at LAW

Performance Improvement Plans Advice For Employers

The employer should ensure that expectations or goals stated in the PIP are objective and measurable. Subjective goals or objectives are much more likely to be scrutinized by the employee’s lawyer and the Court. Furthermore, if the objectives or expectations set by the employer are realistically unachievable, they could find themselves at risk of facing additional punitive damages for bad faith.

Performance Improvement Plans (PIPs) Advice for Employers - KCY at LAW

Performance Improvement Plans Expertise

Whether you are an employer looking to place an employee on a PIP or you are an employee recently provided with a PIP by your employer, it is crucial to consult with a lawyer in order to ensure that your rights are protected. We at KCY at LAW have the experience and employment law expertise necessary to effectively assist both employers and employees in these situations.

Contact KCY at LAW right now at 905-639-0999 or contact us online to book a consultation!

Winter Road Authority Cases

In the winter months, individuals do their best to adapt to the road’s uncertain and precarious wintry conditions. Depending on the maintenance of travelled roads and the ever-changing climate, drivers undergo a journey that requires concentration, awareness, preparedness and a ready-for-anything type attitude.

Unlike a regular motor vehicle accident case, a road authority case involves a number of documents that are unique to those cases. These documents, however, are crucial to proving your case and getting the compensation you deserve.

Winter Road Authority Cases – Documents Required

Winter Road Authority Cases Ontario - Documents Required - KCY at LAWExamples of such documents include the following:

  • Contracts/agreements between the various road authorities;
  • Insurance policies;
  • Winter control manuals/logs;
  • Daily patrol logs;
  • Documentation regarding weather data;
  • Winter training manuals;
  • Documentation regarding maintenance operating instructions;
  • Email correspondence between the various road authorities with respect to road maintenance issues; and
  • Budgetary documentation from the various road authorities.

It is also important to review the applicable municipal legislation and by-laws as they relate to road maintenance services, as well as any “minimum maintenance standards” regulations in effect at the time of the accident.

Winter Road Authority Case Expertise

These are just a few of the considerations that need to be thought of in order to build a successful road authority claim. Regardless of the considerations above, all drivers must still remain focused and alert to what lies on the road ahead.

Winter Road Authority Cases Ontario - KCY at LAW

If you have a motor vehicle case that involves one or more road authorities, KCY at LAW has the experience and expertise necessary to effectively handle your claim. We have a proven track record when it comes to cases involving road authorities (see the case of Giuliani v. Region of Halton, 2010 ONSC 4630).

Contact KCY at LAW today at 905-639-0999 or online to book a FREE consultation!

Common Traffic Injuries – The New Regime in Ontario

In the wake of the new proposed guidelines by the Ontario government, “common traffic injuries” (CTI) will be the new collective term to encompass injuries with recovery times ranging from a few days to a few months. This new regime is expected to impact approximately 60,000 Ontarians each year. Included in this definition will be all of the injuries that previously fell within the Minor Injury Guideline with the addition of minor head injuries.

Injuries are categorized into three categories: Type I, Type II, or Type III injuries. These categories are further divided by phase: Recent (zero to three months post-collision) or Persistent (four to six months post-collision).

Common Traffic Injuries : Concerns About The New Regime

One concern is that under this regime, injured individuals will require a physician or nurse practitioner to provide substantial evidence as to why the individual’s injuries should exclude them from the CTI, which will prevent a large percentage of those injured in an accident from obtaining the medical and rehabilitative treatment they require. The substantial evidence that will be required must reveal a neurological disorder, psychosis, or severe PTSD or a severe pathology. Another concern with the proposed guidelines is that those who are allowed to commence and coordinate the goods and services under CTI constitute a very small group of individuals. Excluded from this group are occupational therapists, speech pathologists, and psychologists, all of whom regularly treat those injured following a motor vehicle accident.

Changes To Common Traffic Injuries Regime Ontario - KCY at LAW Personal Injury Lawyers

As a result of the proposed guidelines, the Ontario Trial Lawyers’ Association (OTLA) estimates that treatment costs under one of the CTI guidelines will be approximately $1,000 whereas prior to 2010 most injured individuals had $100,000 available to them through their automobile insurer for medical and rehabilitative treatment.

Motor Vehicle Accident Advice

If you have been injured due to a motor vehicle accident and are unsure as to what benefits your automobile insurer can provide, or what compensation you are reasonably entitled to for your pain and suffering, income loss, and/or future medical treatment, KCY at LAW has the experience and expertise necessary to effectively handle your motor vehicle accident claim.

Contact KCY at LAW today at 905-639-0999 or online to book a FREE consultation!

Surveillance Evidence Update | Iannarella v Corbett

Surveillance evidence may be called for two purposes at trial: as substantive evidence or as evidence used to impeach or discredit a party. Surveillance as substantive evidence is surveillance that the defendant intends to rely on at trial in order to prove the plaintiff’s injuries are not as alleged. If being used for this purpose, the evidence must be produced to the plaintiff within ninety (90) days of trial. Surveillance used to impeach one’s credibility is relied on by defendants when they wish to show inconsistencies between what the plaintiff claims he or she can and cannot do and what the surveillance actually shows.

As set out in the 2013 Ontario Superior Court decision of Arsenault-Armstrong v Burke, Plaintiff’s counsel is entitled to know the dates of the surveillance conducted, the date of the surveillance report, the name of the investigator, the number of pages in the report, the number of photographs taken, the number of minutes of video taken, and the particulars of the surveillance.

Surveillance Evidence Update – Iannarella v Corbett

Surveillance Evidence Update from Iannarella v Corbett - KCY at LAW BurlingtonOn February 17, 2015, the Ontario Court of Appeal released its decision in Iannarella v Corbett. Justice Lauwers held that defendants must disclose all surveillance conducted on the plaintiff, whether or not they wish to maintain a claim of privilege over the evidence. As highlighted by the Court of Appeal, this disclosure is necessary in the interests of fairness and the objectives of efficiency and settlement. Defendants cannot simply conduct “trial by ambush”.

Some of the key highlights relating to surveillance that came out of Iannarella are:

  • Privileged documents must be disclosed in Schedule B of the defendant’s Affidavit of Documents
  • The obligation to serve an Affidavit of Documents is mandatory
  • Any subsequent surveillance must be disclosed
  • The plaintiff may have the right to further discovery to obtain particulars of the surveillance
  • Defendants who do not disclose surveillance cannot rely on it for impeachment purposes
  • Surveillance evidence that is admitted for impeachment purposes cannot morph into substantive evidence

Iannarella sends a strong message that plaintiffs are entitled to disclosure of surveillance on an ongoing basis and a defendant’s ability to use surveillance will be limited to situations where it has properly complied with the Rules of Civil Procedure.

Right to Privacy in the Workplace Guidelines

In an age of information, many people worry about their right to privacy at home and in the workplace. Although workplace privacy laws vary between provinces and occupations, the Office of the Privacy Commission provides a list of guidelines for employers to use when making decisions about handling their employee’s right to privacy. While these rules are general in nature, they make good business sense and set the tone for a mutually respectful workplace.

The employer should clearly explain what kind of personal information they will be collecting, why they need it, and what they will be doing with it. Personal information ranges from birthdates and social insurance numbers to web browsing history and psychological testing. Employers should have a good reason to collect the information and guarantee that it will be used responsibly.

Collection of personal or private information should only be done with the employee’s knowledge and consent. There are plenty of legitimate reasons for employers to collect personal information. Payroll, benefit plans, and other incentives require detailed information to ensure accuracy and compliance. In some cases, such as medical plans, the employer has limited access under the Privacy Act, but most of the time the application forms are kept on hand as long as the employee remains at the company.

Personal information should only be collected if it is absolutely necessary. Employers need to find a balance between asking for details that are legitimately required without becoming too invasive on an employee’s right to privacy. Application forms should be reviewed and revised accordingly. If there is video surveillance in the workplace, employers should ask themselves if it is actually serving a purpose.

Information that is no longer needed, or left over from former employees should be destroyed unless the employer is required to keep it by law. Once an employee leaves a company, there is very little information that needs to be kept on file. By holding onto personal documents, the workplace puts the employee at risk of a violation of their privacy. Even though documents should be handled exclusively by employees who adhere to strict confidentiality practices, it is much easier to dispose of unnecessary information than try to protect it.

Employees should have the ability to access the information that their workplace has on file to ensure its completeness and accuracy. An employee’s file should be accessible at all times. There is no reason for an employer to record information or keep documentation that the employee is unaware of. Maintaining an open door policy with employees and their personal information allows the worker to ensure that their records are up-to-date and accurate.

Welcome to 2015 – How will the Ontario workplace change this year?

Ontario’s workforce is ever-changing as our economy grows and new markets expand. As a result, employment laws need to be reviewed on a regular basis. Government regulations must reflect the needs of Ontario’s workers and protect the province’s labour force. Employers need to be held to a high standard of ethics and compliance in order to maintain stability in the Ontario job market.

Several significant changes, known as Bill 18, were pushed through in 2014 and will start to have a positive impact on the Ontario workplace as the year unfolds. The amendments include changes to several regulatory statutes, including the Employment Standards Act, the Labour Relations Act, and the Occupational Health and Safety Act.

As of October of 2015, minimum wage increases will be directly tied to the Consumer Price Index (CPI). This will help to determine a fair wage based on the cost of living in Ontario. The CPI is a calculation that measures changes in the cost of goods and services purchased by Canadian households. Each year, the CPI will be released, and the modified minimum wage will be announced in April. The new wage will take effect on October 1st, giving employers plenty of time to prepare for the changes in their labour budget. In 2015, General Minimum Wage will be increased from $11 per hour to $11.25. Exceptions apply for students, liquor servers, and home workers.

Temporary agencies will be held accountable. Currently over 130,000 individuals in Ontario are employed through temporary employment agencies. Many companies have turned to these agencies as an affordable and convenient staffing solution, but this arrangement has the potential to create an unstable employment situation for the workers involved. In the past, temp employees were advised to contact their agency if they needed to call in sick, report issues with their employer, or any other workplace-related concern. However, employment agencies have very little contact with their workers once they have been placed, leaving the employees feeling stuck in a difficult situation and unsure where to turn. Starting this year, both the temp agency and the employer themselves will share equal responsibility for the handling the employee’s human resources issues.

Those who stood for change are satisfied to see the advancements in Ontario’s employment laws. Our workers are the backbone of the provincial economy, and their safety and financial well-being are essential to keep Ontario moving in the right direction.