The Ontario Court of Appeal recently ruled in a government appeal against the C$200,000 ﬁne that Metron received after pleading guilty to a charge of criminal negligence causing death. The court rejected the lower penalty as unﬁt and increased the ﬁne to C$750,000. The decision should interest employers because it held that courts can essentially ﬁne a company into bankruptcy for a Criminal Code conviction.
There has been an ongoing jurisprudential controversy over the issue of whether a federally regulated employer may lawfully dismiss an employee without cause under Part III of the Canada Labour Code. The Federal Court recently ruled that the code permits the dismissal of an employee without cause. However, the dismissal continues to be subject to scrutiny before an adjudicator under the standard of justness.
The Ontario Court of Appeal has affirmed that the test for finding prima facie discrimination under the Ontario Human Rights Code does not require that the discrimination be intentional. As a result, proactive employers should take certain steps to prevent discrimination complaints in the first place and assist their case should the need ever arise.
In a human rights case, unlike in most lawsuits, the claimant must merely advance facts that could lead to an inference that the action was discriminatory. The onus then shifts to the employer to defend its decision. However, in a recent decision, the Ontario Divisional Court confirmed that the onus is on the employee first to advance the facts that could support the inference of discrimination.
The Supreme Court has ruled for the first time on the issue of drug and alcohol testing in unionised workplaces. It ruled that employers may continue to test individual employees for cause in dangerous work environments and may randomly test employees in such work environments if they establish the existence of a substance abuse problem. This confirms one approach in Canadian arbitral case law, rather than establishing wholly new rules.
In a highly anticipated decision, the Ontario Court of Appeal has ruled that the Occupational Health and Safety Act requires employers to report only critical injuries or deaths that occur at a workplace which have a reasonable nexus to a realistic risk to worker safety. Employers would be well advised to review their reporting policies and train employees on how to respond when such incidents occur in the workplace.
The Ontario Workplace Safety and Insurance Board is in a state of flux, with many changes occurring and more on the horizon. While the board has forged ahead with several changes to coverage in the construction industry, employers can expect further amendments to Ontario's workers' compensation system and significant changes in the four benefit policies currently under review.
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.
The Saskatchewan Court of Appeal recently ruled that members of the Saskatchewan public service pension plan are not entitled to indexed pension benefits, beyond what was already provided for in legislation. Entities involved with the administration and communication of pension plans must take the utmost care and diligence to ensure that pension benefits are described accurately, consistently and clearly.
The Supreme Court of Canada recently issued its ruling in Indalex Limited, regarding competing interests in an insolvency between pension plan members and a debtor-in-possession lender. The court decided in favour of the lender, meaning that pension plan members would not receive full benefits. The decision could have collective bargaining implications, especially in situations of under-funded pension plans.
In a recent British Columbia case, employees who transferred employment as part of a corporate transaction were awarded monetary damages on account of lost pension benefits. The court awarded damages based on the difference in value between the pension benefits that the employees would have earned at their former employer during a reasonable notice period and what they actually earned at their new employer.
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.
The Supreme Court of Canada recently released its eagerly awaited decision in R v Cole. In this criminal case, a high-school teacher argued that his right under Section 8 of the Canadian Charter of Rights and Freedoms to be free from unreasonable search and seizure was violated when police reviewed the contents of his work-issued laptop without first obtaining a search warrant.
The Ontario Human Rights Tribunal recently released a decision rejecting a female manager's claim that sexist comments made about her on a union blog violated her equality rights under the Human Rights Code. Union rights to expression and association under the Charter of Rights and Freedoms were key to this outcome.
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.
In its recent budget, the federal government revealed that it will be eliminating the penny. However, that is not the only penny that has dropped. The retirement age for the old-age security system has also been increased. Other notable changes in the budget are that public sector pensions are being made more fiscally responsible and long-term disability plans in the federal sector will have to be provided on an insured basis.
The Supreme Court of British Columbia has held that employers have no right to change the terms of promised retiree benefits once an employee retires. The decision shows that the courts will look to a myriad of documents and oral evidence to determine the contents of an employment contract. Thus, an employer must be consistent in its messages in order that its promise to employees and retirees be clear.
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.
A recent decision of the Ontario Workplace Safety and Insurance Appeals Tribunal has significantly expanded the scope of entitlement for workplace events that cause traumatic mental stress. The tribunal held that a threat to a person's physical welfare is not required for a finding of entitlement to benefits based on traumatic mental stress.
Recently, the Supreme Court of Canada granted leave to appeal the Ontario Court of Appeal's decision in Indalex Limited (Re). The appeal court's decision has potentially far-reaching implications for lending transactions and has also created uncertainty with respect to the extent of an employer's fiduciary obligations in its role as pension plan administrator.