Fasken updates

Fixed-term contracts: friend or foe?
Fasken
  • Employment & Benefits
  • Canada
  • 28 November 2018

The requirement for employees to mitigate their damages following termination is generally helpful for employers during wrongful dismissal litigation, but this may not be the case when it comes to fixed-term employees. Employers that wish to use fixed-term employment agreements should ensure that they have airtight early termination provisions in their contracts and consider specifically obliging employees to mitigate.

A change in winds for federal unjust dismissal and reprisal complaints
Fasken
  • Employment & Benefits
  • Canada
  • 21 November 2018

Recent amendments to the Labour Code, brought about by Bill C-44, have been overshadowed by the dramatic changes to provincial labour and employment laws earlier in 2018. While big changes – including a significant increase in minimum wages in several provinces – have garnered the most attention, federally regulated employers must consider the code's amendments, which will affect the way in which certain complaints brought against such employers are launched and adjudicated.

Federal government introduces new pay equity and labour standards
Fasken
  • Employment & Benefits
  • Canada
  • 14 November 2018

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.

Terminating employee benefits at age 65 ruled unconstitutional
Fasken
  • Employment & Benefits
  • Canada
  • 07 November 2018

For many years, even since the prohibition of mandatory retirement in Ontario, it has been permissible to deny benefit, pension, superannuation or group insurance plans or funds to employees over the age of 65 due to an exception in the Ontario Human Rights Code. However, a recent decision from the Human Rights Tribunal of Ontario found this exception to be unconstitutional.

Bill 148 update: on the chopping block
Fasken
  • Employment & Benefits
  • Canada
  • 31 October 2018

The Ontario government recently introduced Bill 47 – the Making Ontario Open for Business Act 2018 in the provincial Legislative Assembly. Once passed, the bill will make substantial changes to the province's employment standards and labour relations legislation, including reversing most of the changes contained in the previous government's Bill 148.

Not all questions are good questions: avoiding discriminatory interview practices
Fasken
  • Employment & Benefits
  • Canada
  • 24 October 2018

Much ink has been spilled over a recent decision by the Public Service Commission of Canada on the topic of discriminatory interview practices, in which the commission found that the plaintiff had been discriminated against when she was denied a role due to her pregnancy. The decision serves as a cautionary tale for employers not only with regard to the types of question that may be asked during interviews, but also with regard to comments that may be made before an interview.

Suspension without pay and constructive dismissal: a refresher
Fasken
  • Employment & Benefits
  • Canada
  • 17 October 2018

Despite agreeing with a trial judge that a casino employee's suspension without pay was a constructive dismissal, the Ontario Court of Appeal reversed the trial judge's award on the question of damages and examined whether the employer had been obliged to offer alternate employment. The court's decision is a reminder of the principles governing suspension without pay during an investigation into employee misconduct.

Sexual orientation does not excuse inappropriate conduct
Fasken
  • Employment & Benefits
  • Canada
  • 10 October 2018

The British Columbia Human Rights Tribunal recently confirmed a district council's policy that restricted the manner in which inappropriate communication was processed, following a human rights complaint that the council's action had constituted censorship and been based on the fact that the complainant was a gay man. The tribunal confirmed that the policy was based on the council's obligation to provide employees with a workplace free from harassment and not the complainant's sexual orientation.

Limitations of drug testing justify refusal to accommodate medical marijuana
Fasken
  • Employment & Benefits
  • Canada
  • 03 October 2018

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.

Industrial Relations Board renders first decision on concept of 'artist'
Fasken
  • Employment & Benefits
  • Canada
  • 26 September 2018

The Canada Industrial Relations Board has examined for the first time how the concept of an 'independent contractor' should be applied when determining the status of an 'artist' under the Status of the Artist Act. The board also examined the intended scope of a universal bargaining unit and confirmed that this may vary depending on the context. The decision has opened the door to a more contextual interpretation of an 'independent contractor' in certain circumstances.

Student working conditions: beware of disparities
Fasken
  • Employment & Benefits
  • Canada
  • 19 September 2018

The Quebec Human Rights Tribunal recently held that student status and the fact that students work during the summer to pay for their studies must be equated to a social condition protected under the Quebec Charter of Human Rights and Freedoms. According to the tribunal, a collective agreement clause that allocates a lower wage to students could constitute discriminatory treatment because it represents a distinction based on two prohibited grounds of discrimination: social condition and age.

Court finds employees justified in rejecting third party's offer of employment
Fasken
  • Employment & Benefits
  • Canada
  • 12 September 2018

Employees in common law provinces who are offered a job in the sale of business context may not necessarily be required to accept or be subject to a maximum common law notice period. The Ontario Superior Court of Justice has determined that there is no upper limit on notice periods and that the duty to mitigate does not require employees to accept employment with a purchaser of a business where the offer would significantly affect them going forward.

Get it right: contracting out of common law notice
Fasken
  • Employment & Benefits
  • Canada
  • 05 September 2018

Since the Supreme Court decision in Machtinger v HOJ Industries Ltd, it has been well established that employers in common law provinces can contractually limit the amount of common law notice or pay in lieu to which an employee may be entitled on termination. However, the case law on drafting such clauses is ever evolving and the courts are wary of enforcing these provisions, except in the clearest cases.

Workplace violence: are you prepared?
Fasken
  • Employment & Benefits
  • Canada
  • 29 August 2018

Workplace violence is a serious concern for employees and employers alike. Employees expect safe workplaces and employers have a concomitant duty to ensure their safety. Therefore, it is critical for employers to understand how to minimise workplace violence and respond if it arises. Syncrude's handling of this situation in Belyea v Syncrude Canada Ltd is exemplary and offers key lessons on how to address workplace aggression.

Reducing workers' compensation costs through appeals makes good business sense
Fasken
  • Employment & Benefits
  • Canada
  • 22 August 2018

The Canadian workers' compensation system is funded entirely through employer premium payments. Generally, employers which have more claims or claims that have higher associated costs will pay additional monies to their respective compensation board in the form of increased premiums or premium surcharges. As such, employers should establish an effective health and safety management system to prevent work-related injuries and illnesses in the first place and actively manage claims should they occur.

Quebec Pay Equity Act: a barrier to accessing pay equity?
Fasken
  • Employment & Benefits
  • Canada
  • 15 August 2018

The Supreme Court of Canada has upheld the decisions of the Quebec Court of Appeal and the Quebec Superior Court declaring Sections 76.3, 76.5 and 103.1, Paragraph 2 of the Pay Equity Act invalid on the grounds that they are discriminatory and thus contrary to Section 15(1) of the Canadian Charter of Rights and Freedoms. According to the Supreme Court, rather than ending systemic wage discrimination, the impugned provisions "place barriers along the path to equal pay for women".

Kickbacks: recovering ill-gotten gains
Fasken
  • Employment & Benefits
  • Canada
  • 08 August 2018

Key employees, which are crucial to the success of any organisation, are entrusted with authority and autonomy to execute their duties. A recent case concerned a key employee who broke this trust by profiteering for several years from kickbacks while the employer paid inflated prices for supplies. When the fraud was discovered, the employee was fired. However, termination alone may be cold comfort to an employer that has suffered losses from fraud. Can anything else be done?

Client employers to become responsible for injuries to temporary agency workers
Fasken
  • Employment & Benefits
  • Canada
  • 01 August 2018

The Bill 18 amendments to the Workplace Safety and Insurance Act have come into force, moving the Workplace Safety and Insurance Board one step closer to holding client employers financially responsible for insurance premiums and accident costs associated with workplace injuries to temporary employment agency workers who have been assigned to them. The changes are part of Ontario's efforts to increase workplace protection for temporary employment agency employees.

Bill C-65: proposed amendments to Labour Code (harassment and violence)
Fasken
  • Employment & Benefits
  • Canada
  • 25 July 2018

Bill C-65 – which aims to expand employer obligations with regard to allegations of harassment and violence, including sexual harassment and violence in federally regulated workplaces – has passed its second reading and is expected to receive royal assent. Employers should proactively review the proposed amendments, as well as their current policies and procedures, in order to ensure compliance when the amendments come into force.

New Brunswick to include workplace violence and harassment in health and safety legislation
Fasken
  • Employment & Benefits
  • Canada
  • 18 July 2018

The New Brunswick government has introduced draft legislation amending the General Regulation 91-191, made under the Occupational Health and Safety Act, to include provisions regarding workplace violence and harassment. The amendments will require employers to establish a written code of practice, conduct a workplace violence risk assessment and develop measures and procedures for incident reporting, investigations and summoning immediate assistance.

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