Fasken Martineau DuMoulin LLP updates

Win for employers: Supreme Court rejects union's request for right to consultation in accommodation process
Fasken Martineau DuMoulin LLP
  • Employment & Benefits
  • Canada
  • December 06 2017

The Supreme Court recently dismissed an application from the Telecommunications Workers' Union for leave to appeal the decision that unions have no independent legal right, separate and apart from their collective agreement rights, to be involved in every unionised employee's accommodation request. The decision is a victory for employers, employee privacy and the accommodation process.

Avoiding liability risks on termination for sexual harassment
Fasken Martineau DuMoulin LLP
  • Employment & Benefits
  • Canada
  • November 29 2017

The risks to employers in sexual harassment cases can be big. Potential liability can arise from any decision and employers may find themselves having to make tough decisions on tight timelines. The key to ensuring an appropriate response is to be prepared. Preparation will permit an employer to take a proactive approach, as opposed to a reactive stance, when sexual harassment is discovered. This is a lesson that can be drawn from a recent Alberta Court of Queen's Bench case.

Erosion of employers' managerial rights
Fasken Martineau DuMoulin LLP
  • Employment & Benefits
  • Canada
  • November 22 2017

An arbitrator and the Quebec Superior Court recently challenged the well-established principle in labour relations that an employer retains managerial rights in the absence of limiting provisions in a collective agreement. The arbitrator and the court found that the employer had violated the collective agreement because it contained no clear provision that allowed it to act as it did. Therefore, the question remains: what is happening to managerial rights and what measures can employers take to protect them?

Once bitten, twice shy: greater scrutiny ahead for employees misclassified as contractors
Fasken Martineau DuMoulin LLP
  • Employment & Benefits
  • Canada
  • November 15 2017

Ontario has announced that it will be cracking down on employers that misclassify workers as independent contractors as part of its Bill 148: Fair Workplaces, Better Jobs Act 2017. The bill will place the burden on employers to prove that workers are not employees for the purposes of the Employment Standards Act, reflecting a growing concern among legislators across Canada that workers and employers are operating outside of the traditional employer-employee framework.

British Columbia Labour Relations Board rules on secondary picketing at non-striking facility
Fasken Martineau DuMoulin LLP
  • Employment & Benefits
  • Canada
  • November 08 2017

In British Columbia secondary picketing is unlawful unless the striking union can obtain a declaration that the secondary business or location has allied itself with the struck employer. Suppliers and other affected businesses can arrange their affairs to work around strikes and lockouts without being declared an ally – so-called 'self-help' is permitted by such third parties. A recent British Columbia Labour Relations Board decision has analysed self-help in a new way, making it more difficult to avoid secondary pickets.

Walking the line between termination and resignation
Fasken Martineau DuMoulin LLP
  • Employment & Benefits
  • Canada
  • October 25 2017

For Canadian employers, navigating the distinction between resignation and termination can be complicated. If an employee resigns, there is no entitlement to severance. If an employee is terminated without cause, the employer is liable for termination pay (and possibly severance pay in Ontario and the federal jurisdiction). A recent Alberta ruling highlights that mistakes in distinguishing between termination and resignation can be costly.

Advertising before recruiting: stringent requirements when hiring foreign workers
Fasken Martineau DuMoulin LLP
  • Employment & Benefits
  • Canada
  • October 18 2017

Changes to the way that employers must advertise their job openings and assess job applications have come into effect in Canada. Employers advertising high-wage roles to foreign workers must conduct three different recruitment activities and advertise the vacant role on the government's Job Bank and two other platforms before submitting a labour market impact assessment to show that foreign workers are needed for the job.

Importance of respecting confidentiality clauses in termination agreements
Fasken Martineau DuMoulin LLP
  • Employment & Benefits
  • Canada
  • October 11 2017

The question of what happens when a party does not strictly respect the confidentiality clause in a termination agreement was recently submitted to an arbitrator, after an employer confirmed that he would not re-hire a former employee when providing references to her new employer. The decision demonstrates that employers should either strictly adhere to the terms of a termination agreement or simply refuse to give references to future employers.

Double recovery: can employees receive severance plus pension or disability benefits on termination?
Fasken Martineau DuMoulin LLP
  • Employment & Benefits
  • Canada
  • October 04 2017

Employees in Canada who are entitled to receive reasonable notice of termination or pay in lieu of notice may also be entitled to receive pension or sick leave payments during the notice period, depending on the circumstances. As a general rule, such employees should receive both pension pay and pay in lieu of notice, while disability payments should reduce the pay in lieu of notice owed by an employer. However, exceptions can apply.

Simply stating document is privileged does not mean that it is
Fasken Martineau DuMoulin LLP
  • Employment & Benefits
  • Canada
  • September 27 2017

The Alberta Court of Appeal has issued a reminder to employers that simply declaring that an investigation has begun and throwing a privilege 'blanket' over all materials is not sufficient to protect them from disclosure. Although documents are frequently covered by both solicitor-client and litigation privilege, the court held that defendants must distinguish which form of privilege applies to each document independently.

When working notice just does not work
Fasken Martineau DuMoulin LLP
  • Employment & Benefits
  • Canada
  • September 20 2017

For employers shutting down operations, providing working notice is often the best way to reduce severance amounts owed. However, an Ontario court recently confirmed that working notice is appropriate only for employees capable of working during the notice period. Further, the court stated that employers are not entitled to accept a doctor's note when offered, then question its validity at trial.

Genetic information is off limits
Fasken Martineau DuMoulin LLP
  • Employment & Benefits
  • Canada
  • September 13 2017

Medical examinations of employees are commonly required by employers to verify a person's capacity to work. However, following the enforcement of the Genetic Non-discrimination Act, federally regulated employers can no longer require that employees undergo genetic testing or disclose the results of such testing to determine hiring and employment-related decisions. Employers that violate the act may face fines or imprisonment.

Do waves of collective dismissals constitute a single collective dismissal?
Fasken Martineau DuMoulin LLP
  • Employment & Benefits
  • Canada
  • September 06 2017

In a number of Canadian provinces, legislators have enacted a precise definition of 'collective dismissal'. In general, a collective dismissal occurs when a certain number of employees are dismissed within a period specified by the legislation. But what about waves of collective dismissals that extend beyond the period specified in the legislation? Do they constitute a single collective dismissal or several independent collective dismissals? This question was recently answered in Quebec.

You said what? Hiring interview comments prove costly for employer
Fasken Martineau DuMoulin LLP
  • Employment & Benefits
  • Canada
  • August 30 2017

Canadian employers which provide inaccurate or misleading information during the hiring process can be held liable for their broken promises. A recent British Columbia Court of Appeal decision is a stark reminder that a negligent misrepresentation during the hiring process can be costly.

Clarification is not required when accepting disabled employee's resignation
Fasken Martineau DuMoulin LLP
  • Employment & Benefits
  • Canada
  • August 23 2017

The British Columbia Human Rights Tribunal recently dismissed the argument that an employer could not accept the resignation of a long-term disabled employee without making further inquiries. While it is important for employers to ensure that a resignation is truly intended by an employee, this case illustrates that they have no special duty when regarding resignations of long-term disabled employees and that they can safely accept resignations from employees as long as it is reasonable to do so.

More employee benefits on the horizon
Fasken Martineau DuMoulin LLP
  • Employment & Benefits
  • Canada
  • July 26 2017

Significant changes have been taking place across Canada with several jurisdictions, including the federal government, amending their labour and employment regimes. With the introduction of Bill C-44, the federal government has adopted significant reforms to the Employment Insurance Act and the Canada Labour Code. These reforms are already trickling down to the provincial level, signalling a trend towards more employer scrutiny and employee-friendly rules.

Broader workplace harassment claims: is Canada becoming more litigious?
Fasken Martineau DuMoulin LLP
  • Employment & Benefits
  • Canada
  • July 12 2017

Can a Canadian employee sue an employer for harassment which is unrelated to a discrimination claim? The answer used to be no; but this is changing. The Ontario Superior Court of Justice recently introduced a new, freestanding basis to sue for workplace harassment. The case highlights the importance of proactively preventing harassment and effectively discharging a duty to respond to complaints of harassment.

Ontario labour and employment law amendments
Fasken Martineau DuMoulin LLP
  • Employment & Benefits
  • Canada
  • July 05 2017

In Ontario, labour and employment matters are governed by two fundamental statutes: the Employment Standards Act and the Ontario Labour Relations Act. After nearly two years of public consultations and thorough reflection as to how to update this legislation in the face of changing workplaces, the Ontario government received 173 recommendations and immediately announced its intention to make important legislative changes.

Life after certification applications: lawful outsourcing and scope of bargaining units
Fasken Martineau DuMoulin LLP
  • Employment & Benefits
  • Canada
  • June 28 2017

The Quebec Administrative Labour Tribunal recently issued an encouraging decision for employers. It serves as a reminder that business operations are key when challenging the composition of bargaining units and that mere timing between an employer's action and unionisation activities is insufficient to ground a complaint for unfair labour practice.

Court refuses to put brakes on random drug and alcohol testing – for now
Fasken Martineau DuMoulin LLP
  • Employment & Benefits
  • Canada
  • June 21 2017

The Ontario Superior Court of Justice recently declined to grant an injunction to suspend the Toronto Transit Commission's (TTC's) ability to implement its random drug and alcohol testing policy. While the court's decision is not the final say on whether the TTC's policy will ultimately be upheld by the grievance arbitrator, its finding on the privacy considerations accounted for by the policy, among other things, undoubtedly weigh in the TTC's favour.

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