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w w w . C A N A D I A N L a w y e r m a g . c o m N O V E M B E R / D E C E M B E R 2 0 1 6 39 "The idea that the workplace is con- fined to the bricks and mortar of an employer's operation doesn't exist any- more," Mendl says. "We're seeing the workplace expand into areas like social media very quickly. The law in this area is evolving quite rapidly." Mendl says the principles of the case could be applied outside a union environ- ment and viewed as extending the duty to take those steps to all employers with a social media presence. "They didn't have the ability to remove or delete any of the offensive posts . . . and that creates a significant challenge for employers. If somebody posts something offensive and even act- ing with due diligence an employer can't remove it from the website, that creates a problem." While the fact employers have obliga- tions to take reasonable steps to protect their workers is nothing new, Mendl says that when it comes to social media, he's seen a willingness — at least in the arbi- tration context — to extend an employ- er's duty in that area. He predicts more of these types of cases and, as the law develops, eventu- ally, there will be some further clarity brought to the issue. For John Ratchford, principal and general counsel at Navigator, the deci- sion seems far-reaching. "On the social media platforms that you can control, we always advise our own clients to try to control them to the extent that they can, but . . . in social media, it's a dialogue going on and you don't always control both sides of the dialogue, but you have to try to be care- ful about it," he says, noting that he, too, expects future decisions on this point to offer more clarity. Diane Laranja, associate at Filion Wakely Thorup Angeletti LLP, says another challenge for employers with social media is managing the risk that things occurring in employees' personal lives can now more easily transcend into the workplace. Laranja says there has been acknow- ledgement by adjudicators that online postings on Facebook or Twitter may be "sufficiently connected to the workplace such that they're considered in the work- place." In the case of these "spillover" events, arbitrators have allowed — and even expected — employers to respond. "Quite frankly, they usually turned a blind eye to anything that happened outside the workplace or anything that happened on the big, bad World Wide Web," Laranja says. THERE IS NO DOUBT AN EMPLOYER HAS AN OBLIGATION TO PROTECT ITS EMPLOYEES IN THIS SITUATION. THE REAL QUESTION IS HOW FAR DOES AN EMPLOYER HAVE TO GO? DOLORES BARBINI, Hicks Morley Hamilton Stewart Storie LLP Order # 804218-65203 $46 2 volume looseleaf supplemented book Anticipated upkeep cost – $3 per supplement 4- supplements per year Supplements invoiced separately 0-88804-218-3 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. 00227VI-A48890 Canadian Employment Law Stacey Reginald Ball More than 6,145 cases cited Canadian Employment Law is a one-stop reference that provides a thorough survey of FNQMPZNFOU law and analysis of developing trends, suggesting potential avenues of attack as well as identifying potential weaknesses in the law. Canadian Employment Law has been cited by the Supreme Court of Canada, in superior courts in every province in Canada, and is used in law schools throughout Canada. CANADA LAW BOOK ® Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Also available online on WestlawNext® Canada EmploymentSource™ 82 Scollard Street, Toronto, Canada, M5R 1G2 Contact Stacey Ball at (416) 921-7997 ext. 225 or srball@82scollard.com web: www.staceyball.com Ball Professional Corporation Excellence in Employment & Labour Law • Counsel in Leading Cases • • Author of Leading Treatise • Wrongful Dismissal Employment Law Human Rights Post Employment Competition Civil Litigation Appellate Advocacy Disability Referrals on behalf of employees and employers respected Ball_CL_Mar_12.indd 1 12-03-13 2:27 PM

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