Records of Employment (ROEs): 8 Must Knows

The Record of Employment (ROE) is a critical document that employees use to apply for Employment Insurance (EI) benefits, which are administered by Service Canada, under the purview of Employment and Social Development Canada (ESDC).

Employers are required to issue an ROE any time there is an interruption in an employee’s earnings. This can occur for a number of reasons and, below, we answer some of the most common questions that employers and employees have about ROEs.

Why does an employer have to fill out the ROE?

The ROE is essential to the EI benefits application process, therefore it is important that it is filled out accurately.

ESDC reviews ROEs in its determination of the following:

  • whether a person is eligible for EI benefits;
  • what type of EI benefits one may be eligible to receive;
  • what the benefit rate will be; and
  • the period of eligibility to receive benefits.

Issuing an accurate ROE will assist an employee in accessing the appropriate type and amount of EI benefits in a timely manner.

Filling out ROEs can be administratively burdensome and difficult for employers and, because of the potential penalties involved, strict adherence to the process is necessary.  Service Canada has published a 60-page guide to assist employers when they fill out an employee’s ROE however it appears that this guide may not be as helpful as intended.

The Government of Canada stated in their “Employment Insurance Service Quality Review Report: Making Citizens Central” that: 

This complexity has been compounded by insufficient resources to keep up with processing demands and an out-of-date technology platform that is over 40 years old. The result is a processing system that often requires a high degree of human intervention, resulting in delays in processing and delays in citizens receiving EI benefits.

An employer can also contact Call Centres for assistance, but these are overwhelmed, a situation not helped by the current significant increase in questions related to the COVID-19 situation.

What are Insurable Earnings?

Insurable Earnings are certain monetary earnings from Insurable Employment. Most jobs in Canada are considered insurable employment as long as an employee has an employer who controls their wages, schedule and work tasks.

There are certain jobs that are excluded from insurable employment. For example, a person who is employed by an international organization, or a person who controls more than 40% of voting shares of a corporation. Generally, employees and employers pay EI premiums into the EI program. Insurable Earnings are the total amount earnings used to determine the amount of certain EI benefits an eligible claimant may receive.

What code should be entered as the Reason for Issuing the ROE (Block 16)?

The reason for issuing an ROE must be entered at “Block 16” of an ROE, using one of a series of specific codes. This code is used to indicate the reason an employee’s earnings are interrupted.

A code must be entered for all employees whose earnings are interrupted, including casual and part-time employees.

The specific codes have different implications on a claimant’s EI application. For example, inserting the code “M” for dismissal may raise a question with Service Canada whether the dismissal was “for cause” or not. Should an employee dispute the code, Service Canada will commence an investigation.

Generally, employers who have entered an incorrect code have done so because of an honest mistake. If they acted in good faith, they will not be given a penalty. However, if ESDC discovers that the employer provided false or misleading information, the Canada Employment Insurance Commission has the authority to impose a penalty.

Penalties for knowingly providing false, or misleading, information can lead to a fine of up to $5,000 or imprisonment for not more than 6 months or both.

A summary of the current Block 16 codes can be found here.

How and when must the ROE be issued?

Two options to issue an ROE are available to an employer. 

The first method is filing by standard paper document, which is obtained from Service Canada. The form comes in triplicate and must be completed correctly.

A paper ROE must be completed within five calendar days from the later of:

  • the first day of the employee’s interruption in earnings; or
  • the day on which the employer first became aware of the interruption.

An alternate, and now more common option, is that an employer can file an electronic ROE through their Service Canada account. This is commonly done by the employer’s payroll provider, based on input from the employer.

An electronic ROE must be filed within five calendar days from the earlier of:

  • the end of the pay period in which the first day of the employee’s interruption of earnings occurs; or
  • if the employer’s pay cycle has fewer than 13 per year (for example, a monthly pay cycle), then  15 days after the first day of the interruption of earnings.

Importantly, it is the responsibility of the employer to ensure the ROE is completed on time.

As stated earlier the penalty for the employer not abiding by the Employment Insurance Act, 1996, obligations can lead to a fine, imprisonment or both. Therefore it is important that the employer completes the ROE as accurately as possible and ensures it is filed on time.

In addition to penalties levied by the federal government, employers could also be liable for general damages suffered by their employees due to the failure to issue an ROE in a timely manner.

In the constructive dismissal case of Ellis v Artsmarketing Services Inc., the employer intentionally delayed issuing the ROE without good reason, causing the employee financial hardship. When the employer finally did issue the ROE after “dithering” for five months, the employer declared that the reason for issuing the ROE was that the employee quit. The court granted an award of $1,000 in favour of the employee for “inconvenience damages” because the employer took five months to file the employee’s ROE with Service Canada, which far exceeded the deadline.

In another wrongful dismissal case, Morison v Ergo-Industrial Seating Systems Inc., the employer’s “particularly troubling” conduct included taking two (2) months to provide the employee with his ROE, alleging ‘cause’ for dismissal without any reasonable basis, and delaying in paying minimum statutory entitlements, which caused severe financial difficulties for the employee. As the employer was aware of the employee’s financial situation, and the delay was used as financial gain for the employer, an award of $50,000 was granted to the employee in punitive damages. Importantly, the presiding judge, P. E. Roger J., stated that he granted such a large award because this “should deter the defendant and others from similar misconduct in the future, and should mark the community’s collective condemnation of what has happened, thereby achieving retribution, deterrence, and denunciation.”

What is an “interruption of earnings”?

An ROE must be completed any time there is an interruption in insurable earnings, no matter the reason for the interruption. An interruption of earnings could occur because an employee is dismissed , or laid off, retires, resigns, or commences a leave of absence from work (including pregnancy leave, parental leave, compassionate care, medical leave). 

An interruption of earnings occurs when an employee has, or is expected to have, seven consecutive calendar days without work, or if there is a 60% reduction in their regular weekly earnings.

Information needed to fill out an ROE

In order to properly fill out an ROE, an employer must provide detailed information, including the following:

  • the pay period type of the employee (for example: weekly, bi-weekly, semi-monthly, monthly)
  • total insurable hours of the employee
  • total of insurable earnings, by period
  • the reason that the employee has had an interruption in earnings

How to speed up the process

In order for an employee to receive their EI Benefits more quickly, an employer may wish to avoid entering details in Block 18, the “Comments” field. When a comment is included in Block 18, the ROE is removed from the automated processing system and Service Canada has to review it manually. This slows the process down, and may require an agent to call the employer, as well as the employee, for clarification. Comments should only be entered in Block 18 in exceptional circumstances and should not include comments that only confirm information that has already been entered on the form.

The Government of Canada has stated in their “ROE Secure Automated Transfer (ROE SAT) 4.0 – User Guide” that:

We have expanded the codes for reasons for issuing an ROE in the ROE SAT system – which allows the user to clearly specify the reason for which the ROE is being issued, reduce the Comments in block 18 as well as reduce the number of calls from Service Canada to clarify the reason for issuing the ROE.

How can employees access their Record of Employment?

A common question asked by employees, when their employer issues their ROE electronically, is how to access it.

This link may be used to access ROEs.

If you are an employer or an employee and have questions about the legal obligations relating to ROEs, contact Zubas + Associates. Call us at 416-593-5844 or send an email to info@employment-lawyers.ca

Zubas + Associates in the News: “The Turbulent Life of an Employment Lawyer during COVID-19” in Canadian Lawyer Magazine

Today, Zubas + Associates Lawyer, Ted Flett, was published in Canadian Lawyer Magazine. The opinion piece, which discussed the various pressures on an Employment Lawyer during COVID and tensions within the employment bar, is available to read here and below.

The Turbulent Life of an Employment Lawyer during COVID-19

Clients and public are at risk of being thrown overboard without precision counsel and more cooperation, writes Ted Flett

Like many lawyers in the employment bar, my practice seems unrecognizable to what it was just one month ago. I may be less recognizable myself, as Lululemon attire has replaced my suiting and my hair resembles that of a final contestant on Survivor. Given the distinct effects of the novel coronavirus (COVID-19) pandemic on workplaces and resulting pressures on an employment lawyer, many friends, family and peers ask, “How are you doing?”

To be an employment lawyer during this coronavirus pandemic is a wild adventure. It seems like a game of whack-a-mole meets ‘choose your own adventure’ meets ‘what’s behind this door?’ Each day is equal parts exhilarating, taxing and demoralizing.

Between grasping the law, staying abreast of new employee and employer support programs, understanding workplace restrictions and navigating limitations to court services and suspensions of limitation periods and procedural deadlines, today’s employment lawyer is uniquely challenged. We are being extraordinarily tested by lawmakers, the courts, and panicked clients seeking solutions.

Changes in the law

On a daily basis, the Prime Minister pops out of his cottage to drip-feed details of the federal government’s Economic Response Plan, including a wage subsidy for employers, extended work-sharing and enhanced employment insurance. In Ontario, an emergency sitting of the legislature was called to amend the Employment Standards Act to provide unpaid leave for employees who, for example, are in isolation due to COVID-19 or who are caring for children. Additionally, Premier Doug Ford continues to trim the list of essential businesses allowed to operate and restricts the size of gatherings. I admit to some angst as I watch each press conference; what surprise will today’s announcement include?

Staying on top of news cycles to capture details of these programs and changes in order to advise clients regarding eligibility and suitability is tricky. In the increasingly competitive world of employment law, many firms are jockeying to be the go-to. Most employment law firms, including mine, have unveiled an online COVID-19 resource, or knowledge centre, featuring Q&As, blogs and links. Fasken Martineau DuMoulin LLP prepares a daily cross-country roundup of government announcements relating to the workplace, and Samfiru Tumarkin LLP has launched an online calculator for users to determine if they qualify for the Canada Emergency Response Benefit (CERB).

Terminations and layoffs in the time of COVID-19

Advice to clients – both employees and employers – on the legality of any particular layoff has sparked a debate within the employment bar.

The more litigious firmly subscribe to the principle that a layoff that is not contemplated within the employment contract amounts to constructive dismissal, a unilateral change of a person’s job. This would possibly give rise to a lawsuit for common law notice, among other damages. They’re ready to sue.

Another set assesses other factors, including the possibility that lawmakers will intervene with legislation to amend or override the restrictions around layoffs given the exceptional nature of the pandemic. Alternatively, judges may consider the current exceptional circumstances faced by employers, to decide that a layoff due to COVID-19 would not amount to constructive dismissal.

And even if a settlement can be achieved in a claim for constructive dismissal because of an unlawful layoff, a prudent plaintiff-side lawyer ought to weigh their client’s interests. Are the employee’s interests truly advanced once unemployed and facing a bleak job market? Or, is he or she better positioned by riding out the layoff, possibly collecting the CERB or other support benefits, and awaiting a return to work once the curve flattens or the economy rebounds? Equally challenging is forecasting when business will return to normal.

And for conventional wrongful dismissal claims, the employment bar is engaging in lively speculation as to what impact the global pandemic and the consequential economic downturn will have in the determination of the reasonable notice period upon termination of employment.

Despite the employee-friendly decision in Michela v. St. Thomas of Villanova Catholic School, which found that the employer’s financial circumstances are not relevant to the calculation of notice period, management-side counsel will surely argue that the “corona factor” be added to the Bardal test.

Defence counsel is likely to pursue a resurrection of Gristey v. Emke Schaab Climatecare Inc., which preceded Michaela and whereby the Court reduced the employee’s notice period after considering economic factors present at the time of termination.

More than most problems in employment law, solving the ‘COVID-19 constructive dismissal by layoff’ puzzle and estimating the reasonable notice period during an economic downturn is teaching me to elucidate difficult concepts to clients while remaining patient in obtaining their clear instructions.

Until further notice, the court is closed

Adding to the dilemma is that any employment claim is presently curtailed by the suspension of the courts, limitation periods and procedural deadlines. This decision and resulting conduct by lawyers expose a hidden wart in the justice system and legal profession.

The courts’ longstanding resistance to technology has, ironically, become no more apparent than in these times of crisis, when access to justice should be fortified, not placed on pause. The impractical and outdated fixation on paper submissions and in-person attendances is under significant scrutiny.

And despite the Ontario Superior Court’s call for parties to cooperate and engage in every effort to resolve matters during this temporary suspension of regular operations, I sadly suspect that some counsel leverage the suspension as a delay tactic.

Though we remain an essential service, I both know of and am experiencing matters in which opposing counsel is disagreeable to meeting a procedural deadline or to conducting discoveries or mediating by videoconference for reasons that are wanting for merit. Such ploys to frustrate opposing counsel will likely come at a higher cost. Clients of the progressive, resolution-minded lawyer are likely to be left bewildered by and suspect of the justice system and its members.

This time of pandemic will surely shape employment lawyers busily riding the competing currents. Regrettably, clients, parties and members of the public are at risk of being thrown overboard unless we firmly grasp the tiller and remember the public whom we serve.

Doors Open!: Federal Government Invites Applications for Canada Emergency Response Benefit and Releases Details of Canada Emergency Wage Subsidy in Wake of COVID-19

Today, the federal government launched a CRA portal for Canadians to apply for a new key assistance program for employees, the Canada Emergency Response Benefit. In addition, further details were released last week about the Canada Emergency Wage Subsidy, a proposed assistance program for employers.

Canada Emergency Response Benefit

To assist employees who are no longer working for various reasons due to the Coronavirus (COVID-19), the Government of Canada has initiated a benefit intended to be more easily accessible than Employment Insurance (EI) benefits, called the Canada Emergency Response Benefit (CERB).

This benefit is not only for those who are quarantined and cannot work because they have been diagnosed with COVID-19, but also for those who have lost their job, are caring for someone who is sick with COVID-19, or who are caring for their children home from school or daycare. The CERB may also be available for contract/self-employed workers who are not eligible for EI. Further, employees who have continued to work, but have not received income due to financial disruptions within the business, are also eligible to apply.

Employees who are eligible for this benefit will receive $2,000 for a 4-week period for up to 16 weeks, up to $8,000 in total. Unlike EI regular benefits, this benefit is not determined by a sliding scale. This means that the amount a person receives will not be calculated based on their salary or wages. Rather, it will be $500 per week across-the-board for all individuals who are deemed eligible for the benefit. The benefit will apply retroactively to March 15, 2020. Payments will be made in fixed blocks of 4 weeks.

Who Can Apply?

Among other requirements to be eligible for the CERB, employees must have had an income of at least $5,000 in 2019 or in the 12 months prior to the date of their application and they must not have voluntarily quit their jobs. Further, employees must be unemployed for at least 14 consecutive days in the first 4-week period. Following this 4-week period, the employee must expect that they will have no income whatsoever.

A person does not necessarily need to be ‘laid off’ in order to be eligible for the CERB.

How to Apply?

Applications can be made through an online CRA portal or by phone starting today.

A medical certificate will not be necessary to apply. In an employee’s initial application, they will need to include their personal contact information, social insurance number and must be able to confirm the above-mentioned eligibility requirements. An employee may be asked to provide further documents at a later date to confirm eligibility requirements.

Once an employee becomes eligible for the CERB, an employee can expect to receive payments as soon as 3-5 days after the submission of their application.

If an employee is on maternity/parental leave, it is anticipated that this employee will return to work once their leave ends and they would be ineligible for the CERB. However, if an employee’s leave ends and work is not available to them, they are then eligible to apply for the CERB.

The CERB is taxable however tax deductions will not be deducted initially, and employees who receive payment must report CERB as income when filing their 2020 income tax return.

EI and CERB

Several questions have surfaced since the announcement of the CERB on March 25, 2020 about how this new benefit intersects with EI.

The Government of Canada’s website says the following:

Canadians who are eligible for Employment Insurance and who have lost their job can continue to apply for Employment Insurance.

If you became eligible for EI regular or sickness benefits on March 15, 2020 or later, your claim will be automatically processed through the Canada Emergency Response Benefit.

For other EI benefits, including maternity, parental, caregiving, fishing and worksharing, you should also continue to apply.

Canada Emergency Wage Subsidy

On April 1, 2020, the Government of Canada announced further details of the proposed Canada Emergency Wage Subsidy (CEWS), initially announced on March 27, 2020, by Prime Minister Justin Trudeau.

The intentions of this program are apparently to safeguard the jobs of a business’ employees and to prevent further job losses that have swept over Canada due to the COVID-19 pandemic. Further, the subsidy appears to be designed to assist businesses to ease back into their normal practices when the pandemic is over. If a business is deemed eligible, the CEWS would be retroactive to March 15, 2020. The amount of employees working for the business does not affect eligibility for this subsidy. Businesses who would be eligible for the CEWS include individual businesses, taxable corporations, partnerships, non-profit organizations and registered charities. Public bodies, including public universities, colleges, municipal/provincial and federal bodies, schools and hospitals would not be entitled to the CEWS.

Additionally, to be eligible for the subsidy, an employer would have to provide proof that they have had a 30% loss of revenue during March, April and May of 2020 compared to the revenues during the same months of 2019. Employers will have to reapply for each month that they experience a loss of 30% of their revenue.

For eligible businesses, up to 75% percent of an employee’s first $58,700 of their salary “normally earned”, would be covered by the subsidy. The maximum an employer can claim per employee is $847 per week. Calculations for the employee’s subsidy entitlement would be determined based on the salary or wages actually paid to employees. The CEWS would apply retroactively to the 12-week period from March 15, 2020 until June 6, 2020. If eligible, employers may expect to receive payments by direct deposit within 6 weeks.

Employers would not be eligible to claim the CEWS for employees who receive the CERB for the same period.

The Government of Canada would require employers to make best efforts to “top up” the remaining 25% of wages and salaries.

Prime Minister Justin Trudeau announced on April 1, 2020 that this program will be one of trust and if a business is found abusing the program, penalties will be “stiff and severe.”

75% Subsidy and 10% Subsidy

The 75% subsidy and the 10% wage subsidy announced previously are not the same program. Therefore, if a business is ineligible for the 75% subsidy, it still may qualify for the 10% subsidy. Businesses do not need to apply for the 10% subsidy. The subsidy is calculated when a business remits amounts including Canada Pension Plan (CPP) contributions, and Employment Insurance (EI) premiums from salary, wages, bonuses, or other remuneration paid to employees. For businesses that receive both subsidies, the amount received for the 10% wage subsidy would generally be deducted from the amount claimed under the CEWS.

Importantly, employers must be aware that the 10% subsidy is a three-month measure specific to small businesses, charities and non-profit organizations and a decline in revenue is not necessary for eligibility.

We will continue to monitor these and other COVID-19 related initiatives.

For further information on these and other COVID-19 related programs, contact Zubas + Associates at 416-593-5844 or info@employment-lawyers.ca.

*Editor’s Note – Update on the Canada Emergency Wage Subsidy

On April 11, 2020, Bill C-14 received Royal Assent, meaning that the new Canada Emergency Wage Subsidy is now legislated and employers will soon be able to apply for this assistance.

As stated in the April 6, 2020 blog, employers who are deemed eligible will be able to receive 75% wage subsidies up to a weekly maximum of $847 per eligible employee for up to 12 weeks. The wage subsidies will be retroactive to March 15, 2020 and will continue until June 6, 2020. The program may be extended as late as September 30, 2020, possibly with revised qualifying parameters and subsidy amounts.

Currently, the CEWS consists of three periods. To qualify for the first period, for the month of March 2020, employers will need to incur a 15% reduction in revenue in order to be eligible for the wage subsidy. For the months of April and May 2020, the employer will have to show a 30% reduction in revenue. If employers qualify for one period, they will automatically qualify for the following period.

To establish the necessary reduction in revenue, employers are permitted to compare their revenue for each of the months of March, April and May 2020 to either:

    • their revenue for those same months of 2019 (e.g. revenue in March 2020 would be compared to revenue in March 2019); or
    • their average monthly revenue in January and February 2020.

An employer’s participation in the Work-Sharing program will affect the amount of the wage subsidy for which the business will be eligible, however an employer can still apply for the subsidy.

Meeting Confidentiality Obligations While Working Remotely During Coronavirus (COVID-19)

Workplaces have transformed in the past month with many employees working from home in light of the Coronavirus (COVID-19) pandemic. Several employees have children underfoot as a result of school closures amidst social distancing mandates from federal, provincial and municipal governments. Others in the employee’s home may include dependants as some Canadians assume a caregiver role during COVID-19.

Depending on job requirements, working from home may involve bringing work devices and materials outside of the office in order to fulfill tasks, including laptops and computers with remote access to a work virtual private network (VPN), files and documents, client or customer information and sharing work information with other colleagues through different platforms like Dropbox.

Prudent employers and employees should be mindful of confidentiality obligations which the practice of working remotely may render more susceptible to breach, even if the breach may be inadvertent.

Areas where a breach of confidentiality outside of the workplace may potentially occur include:

    • in a person’s household, as there may be other people present who are not permitted to access confidential work information;
    • in a person’s household because it may not have the proper physical and technological security and/or backup systems to ensure the information remains secure and confidential; and
    • in transit between work and home.

Confidentiality obligations stem from multiple sources, including the following.

Common Law Obligations

In general, all employees owe their employer an implied duty of good faith and fidelity, which prohibits them from disclosing their employer’s confidential information. Common law also guides that employers must protect a person’s confidential information. These confidentiality obligations have developed through previous decisions of judges over a long period of time; this is known as “common law”.

Fiduciary Obligations

Some employees owe an elevated set of duties, known as “fiduciary duties”, to their employer and to their clients.

Generally, a fiduciary relationship is one in which a vulnerable party has a special level of trust and reliance on another party, who is the “fiduciary.” A vulnerable party’s confidential information is particularly protected because they are likely to give information to their fiduciary that most people are not privy to. Further, the vulnerable party will make decisions based on the influences of the fiduciary.

When there is a fiduciary relationship between parties, there is an implied term that the fiduciary party will protect the confidentiality of the vulnerable party in order to ensure open and honest communication to ensure the best possible outcome for the vulnerable party.

In the employment context, the Supreme Court of Canada has determined in the case of Lac Minerals Ltd v International Corona, that a fiduciary duty owed by an employee will generally arise where:

    1. The fiduciary has scope for the exercise of some discretion or power.
    2. The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests.
    3. The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power.

Fiduciary duties are usually only ascribed to employees who are upper managerial and executive level, however, there are examples where the Courts have determined that employees with less seniority, such as sales persons and hairdressers, owed fiduciary duties to the (former) employers.

Fiduciary duties owed by employees exist during the employment relationship and continue after it terminates for a reasonable length of time. The period during which a fiduciary duty is owed is determined through several factors, including the position of the employee, their seniority etc…

Conversely, employers can also owe fiduciary duties to their employees.

Equitable Obligations

Employees owe an equitable “duty of confidence”. Where an employee misuses confidential information communicated to them, an employee could be liable for breach of confidence. This duty remains in place indefinitely as long as the information in question remains confidential. When information is made readily available to the public, an employee will generally no longer be obliged to keep it confidential.

Professional Obligations

Employers and employees working in a professional field may also have duties of confidentiality arising from statute, regulations and their governing body. For example, doctors, lawyers, accountants and organizations employing these types of professionals are all highly regulated and owe professional obligations to their patients or clients, including confidentiality. Under these obligations, client information entrusted to a professional can only be disclosed if the patient or client gives the professional permission to do so, with only limited exceptions.

In the employment context, an employer of professional employees will also generally be subject to elevated confidentiality obligations to its clients.

Where an employee acts in breach of professional confidentiality obligations, the employer may have grounds to allege just cause for dismissal of the employee, without any termination or severance pay. A breach of professional obligations by an employee, which leads to disciplinary action by the employee’s regulating body, could result in the end of the employment contract. In such circumstances, the employee may be left with little or no recourse.

Contractual Obligations

In addition to the above sources of obligations, further confidentiality obligations may form part of an employment agreement. Many employment agreements and employee handbooks include confidentiality clauses and it is important that employees are aware of what is outlined in any provisions applicable to their employment. If an employee oversteps a contractual confidentiality clause, the contract may be breached. The result could be termination of the employee’s employment. The most serious breaches of confidentiality may constitute a breach of contract that could result in the employee’s dismissal for just cause, depending on the overall circumstances.

Intrusion Upon Seclusion

In 2012, the Ontario Court of Appeal recognized a new tort of “Inclusion upon Seclusion” in the case of Jones v Tsige. Canada has a long history of case law to protect a business’ information from those outside the business, however, in Jones v Tsige, it was determined that internal protections for confidential information should be established.  Broadly speaking, an intrusion upon seclusion is an intentional or reckless invasion of privacy that a reasonable person would regard as “highly offensive”, causing humiliation or anguish.

In this case, Jones and Tsige both worked for the same bank, but worked at different branches and did not personally know each other. Jones was in a relationship with Tsige’s ex-husband and Tsige used the bank’s records to pry into Jones’ life. From her work computer, Tsige accessed Jones’ personal account information. The Court awarded Jones $10,000 even though she had suffered financial loss as a result of Tsige’s actions. The decision publicly signified the severity of Tsige’s misconduct and acted as a public deterrence.

Statutory Obligations

Employers should note that they also have additional statutory obligations regarding confidentiality. The Personal Information Protection and Electronic Documents Act (“PIPEDA”) is the framework for private-sector companies and businesses in Canada that collect, use or disclose a person’s confidential information, unless they are subject to substantially similar provincial legislation.

Importantly, Schedule 1 of PIPEDA contains 10 fair information principles that employers must follow in order to abide by the statute. The principles address accountability, consent, limiting disclosure, accuracy and safeguards and other requirements.

Provinces have also enacted their own statutes which are substantially similar to PIPEDA. Ontario, for example, has enacted the Personal Health Information Protection Act in respect of collection, use and disclosure of personal health information. In the public sector of Ontario, the Freedom of Information and Privacy Act or the Municipal Freedom of Information and Protection of Privacy Act apply.

Further, certain professions have their own set of regulations created pursuant to statute by governing bodies to which employers must comply. For example, the College of Registered Psychotherapists of Ontario has Professional Practice Standards which licensees must follow. Section 3.1 of the Standards sets out obligations regarding confidentiality.

It can be overwhelming and difficult for an employer to navigate through all statutes and regulations that mandate confidentiality within their business. It can be advantageous to contact a lawyer to clarify statutory obligations.

Takeaways for Employees

In breaches of confidentiality, there does not need to be evidence of malicious intent. The singular fact that confidential information was made public to a third party may result in a breach. There are many ways that an employee may breach confidentiality; some inadvertent. Examples of this include participating in a phone or video conference call in which a family member can overhear the discussion or leaving a document visible to members of the household.

Steps that employee can take to meet their confidentiality obligations include:

    • restrict all work to a dedicated and private part of one’s home to help control placement of confidential information and access to the confidential information
    • review any work-from-home and confidentiality policies established by their employers
    • ask for support from their employer to maintain adherence to confidentiality obligations
    • avoid the use of personal email accounts or personal devices for work matters where the employer has not given approval

Takeaways for Employers

Within an office or bricks and mortar facility, it is much easier for an employer to control and maintain confidentiality. With changes to working environments because of COVID-19 outside of a central location, it is just as important that employers equip their employees with the right set of tools and information in order to ensure their company’s confidential information does not fall into the wrong hands and become public.

Steps and precautions that employers should take before permitting employees to work from home include:

    • implementing clear work from home policies and sending a guideline or information sheet home with employees with “how-to”s when dealing with clients, confidential information, websites, portals, emails, databases, accounts, files, etc.
    • communicating confidentiality obligations and policies with employees to help guard against breaches
    • ensuring that a proper VPN is installed and considering extra security features such as strong encryption algorithms

Given the complexity of the legal framework surrounding work-related confidentiality issues and the consequences for breaching confidentiality, employees and employers are advised to speak to a lawyer for guidance about the scope of duties that may apply to them.

If you have questions or inquiries on duties of confidentiality or the best ways to deal with confidential information, call Zubas + Associates at 416-593-5844 or send an email to info@employment-lawyers.ca.