Governments across Canada have recently made multiple announcements regarding the coronavirus (COVID-19) pandemic. To help make things easier for employers, this article summarises the announcements from all provinces that touch on workplace issues. Common issues concerning COVID-19 include self-isolation, sickness benefits and layoffs.
Employers must be prepared to deal with workplace issues arising from Coronavirus Disease 2019 (COVID-19) as global health officials almost uniformly agree that the disease will continue to spread. This article outlines the issues with which employers should be prepared to deal as part of a pandemic or communicable illness response plan with regard to COVID-19.
In its first gig economy decision, the Ontario Labour Relations Board has decided that Foodora's food delivery couriers are dependent contractors and can unionise. This is the first Ontario decision on the status of gig economy workers. However, these determinations are extremely fact specific and do not mean that all gig economy workers are dependent contractors.
The federal government has published the draft Workplace Harassment and Violence Prevention Regulations. The regulations will support the recently passed Bill C-65 and will replace the current workplace violence obligations in the Canada Occupational Health and Safety Regulations, as well as certain related provisions in the Maritime Occupational Health and Safety Regulations and the On Board Trains Occupational Safety and Health Regulations.
Canada has recently seen its lowest unemployment rate in nearly 40 years. However, despite this positive economic indicator, a majority of surveyed Canadians are experiencing a psychological recession. Such economic anxiety may be symptomatic of the uncertainty surrounding the modernisation of the Canadian economy and changes to the nature of work. The best way to respond to this economic anxiety is arguably to embrace the gig economy as part of the future of work.
The federal government has established an independent expert panel to provide advice and conduct consultations on the modernisation of labour standards in Part III of the Canada Labour Code. Among other things, the expert panel will study the federal minimum wage and whether it should be determined by the province in which an employee usually works or whether a freestanding federal minimum wage should be enacted.
The Federal Court recently clarified that employees may file an unjust dismissal complaint even if they have signed a release and any decisions by adjudicators to the contrary are bad law. This is an important decision for federally regulated employers that terminate without cause and offer a severance package conditional on signing a release as they must, among other things, adjust their settlement practices and releases to address the risk.
Bill C-65 – which comprises an Act to Amend the Canada Labour Code (Harassment and Violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act 2017 – recently received royal assent. Among other things, the act will amend the Canada Labour Code and expand the obligations of federal employers, particularly in relation to workplace harassment and violence.
The federal government recently introduced Bill C-86, the Budget Implementation Act 2018. In addition to introducing long-anticipated pay equity legislation, the proposed legislation would make significant changes to the labour standards in Part III of the Canada Labour Code. Some of the proposed changes are unsurprising given the government's past statements. Other changes are unexpected and, if enacted, would have a major impact on both non-union and unionised employers.
Authorisation for the use of medical marijuana is not a free pass to use marijuana at work. Employers must go through an accommodation process to determine whether the use of marijuana pertains to a human rights-related need. A recent arbitration award explores how far an employer must go to discharge its duty to accommodate a medical marijuana user in a safety-sensitive job when the levels of impairment at work cannot be measured.
While the Fair Workplaces, Better Jobs Act 2017 (known as 'Bill 148') made many changes to the Employment Standards Act 2000, it made only one change to the Occupational Health and Safety Act. However, the Stronger, Fairer Ontario Act (Budget Measures) 2017 also made changes to the Occupational Health and Safety Act – most significantly, an increase in the maximum fines following a conviction and a change to the limitation period for charges to be laid.
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.
The Federal Court has confirmed the importance of timely and effective resignations by directors, and of retaining evidence of when this was tendered if directors wish to avoid liability for unpaid wages and other compensation owing to employees. The matter serves as a stark reminder that the payment order appeal process set out in the Labour Code should not be taken lightly.
There is a growing awareness of mental health issues in the workplace and increasing calls for the government to enact legislation to provide employees with a psychologically safe workplace. One of the most recent developments in this area is a standard prepared by the Canadian Standards Association and the Bureau de normalisation du Québec, which sets out optimistic suggested goals and processes in this regard.
Metron Construction Corporation was recently fined C$200,000 following its guilty plea to a charge of criminal negligence causing death. Metron is the first corporation in Ontario to be convicted of criminal negligence under amendments to the Criminal Code. The penalty imposed on Metron is the highest fine imposed for criminal negligence arising from a workplace accident in Canadian history.
The Canadian Standards Association has issued a new and surprisingly complex standard setting out optimistic goals and processes for achieving "psychological health and safety" in the workplace. Policies, procedures, hazard identification, incident investigation and monitoring activities may be required, in addition to all of the existing steps being taken to develop and manage occupational health and safety systems.
Despite the proliferation of occupational health and safety provisions designed to protect against workplace violence, occupational health and safety enforcers have rarely, if ever, prosecuted employers when workers are victims of workplace violence. A recent case from Alberta suggests that this may be about to change.
In a landmark decision the Supreme Court of Canada has held that the Agricultural Employees Protection Act 2002, which created a new and distinct industrial relations regime for agricultural workers, is constitutional. The decision makes clear that the guarantee of freedom of association in Section 2(d) of the Canadian Charter of Rights and Freedoms does not require the enactment of a particular model of industrial relations or collective bargaining.
In a recent case the Ontario Divisional Court upheld an Ontario Labour Relations Board decision that all fatal and critical injuries to a person at a workplace must be reported to the Ministry of Labour. The decision has the potential to affect Ontario employers and constructors that are obliged by the Occupational Health and Safety Act to report and preserve the scene of fatal and critical injuries.
A recent British Columbia Labour Relations Board decision establishes that employees have no reasonable expectation of privacy in comments made on social networking sites, and that when those comments are damaging to the employer's business or offensive, insulting and disrespectful to supervisors, the employer may have just cause for termination.
An independent, non-profit research organization has released a report entitled "Success is No Accident: Declining Workplace Safety Among Federal Jurisdiction Employers", which criticizes the government's efforts to ensure the health and safety of workers in the federal jurisdiction. Federal sector trade unions and workers' rights advocacy groups are likely to use the report to lobby for reform.
In what should serve as a stark reminder of risk for both employers and individuals, police in Ontario recently charged a corporate employer and two individuals with criminal negligence causing death after a fatal workplace accident at a construction project. These events demonstrate that while criminal prosecutions for workplace accidents remain rare, the police will not hesitate to pursue criminal charges as they deem appropriate.
A successful charter challenge to the British Columbia Workers' Compensation Board's mental stress policy has resulted in a direct change to British Columbia's policy on the complex issue of determining entitlement to workers' compensation benefits for work-related mental injuries. It may also herald challenges to the manner in which all Canadian workers' compensation boards adjudicate mental stress claims.