Latest updates

If it looks like a farm and acts like a farm... it's a farm: farm worker exemption
Fasken
  • Employment & Benefits
  • Canada
  • 09 October 2019

Ontario's Divisional Court recently found that a farm's employees were exempt from the overtime provisions of the Employment Standards Act 2000. The court's decision is now the leading authority on the farm exemption and provides critical clarity to the farming community, which often relies on overtime work to produce agricultural products. It also provides guidance on the interpretation of employment standards legislation.

Upcoming federal elections: employees' right to vote
Fasken
  • Employment & Benefits
  • Canada
  • 02 October 2019

The Canada Elections Act provides that every employee who is an elector is entitled to three consecutive hours off work to vote. With election day looming, employers may be wondering what their obligations are towards their employees. This article sets out those obligations as well as employees' rights in this regard.

What's in a tweet? Employer does not have to pay settlement funds after grievor takes to Twitter
Fasken
  • Employment & Benefits
  • Canada
  • 25 September 2019

In a recent case, the arbitrator found that the employer need not pay the agreed settlement funds because the grievor's tweets breached the settlement's confidentiality provisions. This case is an important reminder of the significance of confidentiality in the settlement of labour disputes and the need to include clear and unequivocal confidentiality provisions in settlement agreements.

Constructively dismissed? Maybe, but get back to work
Fasken
  • Employment & Benefits
  • Canada
  • 18 September 2019

A recent decision reaffirms that employees must return to work following a constructive dismissal to mitigate the damages that they caused where doing so would not be embarrassing, humiliating or degrading. In such cases, employers should consider whether it is appropriate to re-offer an employee the opportunity to return to work following an allegation of constructive dismissal, as this could greatly limit the damages and their potential liability in litigation.

Please hold the line: what to do when receiving calls from employment insurance officers
Fasken
  • Employment & Benefits
  • Canada
  • 11 September 2019

An adjudicator considering allegations of unjust dismissal under the Canada Labour Code recently ruled that an employer was prohibited from asserting dismissal for misconduct since the issue had already been decided by an employment insurance officer. The decision reminds employers to proceed with caution when communicating with employment insurance officers after a termination. They should also consider the potential ramifications of not appealing an officer's decision.

Unintentional discrimination is still discrimination
Fasken
  • Employment & Benefits
  • Canada
  • 04 September 2019

The Human Rights Tribunal of Ontario recently held that a law firm discriminated against an applicant because of his age and race, and by failing to investigate his discrimination complaint. This decision is an important reminder for employers to be careful in how they assess and treat candidates during the recruitment process. Among other things, employers should be courteous in their communications with all candidates and avoid engaging in arguments with them.

Is sex addiction a disability?
Fasken
  • Employment & Benefits
  • Canada
  • 28 August 2019

Can a unionised employee be fired for masturbating at work or is there a duty for employers to accommodate this conduct as a sex addiction? These were the novel questions considered in a recent case. The decision does not end the dispute about whether a sex addiction is a recognised medical condition that could be a disability, but it does reinforce the importance of progressive discipline in upholding a cause termination.

Does desire to work prevent employers from terminating employees who can't work?
Fasken
  • Employment & Benefits
  • Canada
  • 21 August 2019

Many employees struggle to manage disability leave. This is particularly difficult when an employee wants to work but their doctor says that they cannot do so for the foreseeable future. A recent decision provides guidance to employers dealing with this situation. For example, they should proactively manage disability leave by, among other things, staying up to date on an employee's potential to return to work.

Extended leave and holiday pay: is differentiating between protected employees discriminatory?
Fasken
  • Employment & Benefits
  • Canada
  • 14 August 2019

A recent arbitration decision reminds employers that distinctions between different classes of protected employee may be discriminatory. As such, employers should review their policies and agreements in light of this decision to ensure that differential treatment is not applied to employees in different protected classes on leave, as this may provide a basis for a successful discrimination claim.

Major changes to Canada Labour Code on horizon
Fasken
  • Employment & Benefits
  • Canada
  • 07 August 2019

The federal government recently made numerous significant announcements regarding employee entitlements under Part III of the Canada Labour Code. It is now clear that many new employee entitlements will come into force on 1 September 2019. The government also announced a consultation process concerning further regulatory changes relating to Part III of the code and made changes to the Canada Labour Standards Regulation.

Are your non-competition and non-solicitation clauses enforceable?
Fasken
  • Employment & Benefits
  • Canada
  • 31 July 2019

A recent Ontario Superior Court of Justice ruling is a helpful reminder of the factors that the courts will assess when determining the enforceability of agreements not to compete with an employer or solicit its customers after the end of an employment agreement. In order for a restrictive covenant to be enforceable, an employer must be able to justify it as being no more than is reasonably required to protect its valid proprietary interests.

Amendments to employment legislation affect all British Columbia businesses
Fasken
  • Employment & Benefits
  • Canada
  • 24 July 2019

The spring session of the British Columbia legislature recently ended, and both the Employment Standards Amendment Act and the Labour Relations Code Amendment Act were proclaimed into law. These two acts represent the most significant changes to employment and labour legislation in two decades and all British Columbia employers should be aware of the impact on their businesses.

British Columbia Court of Appeal confirms stringent test for family status discrimination
Fasken
  • Employment & Benefits
  • Canada
  • 17 July 2019

Family status discrimination continues to be an area in which the law differs across Canada. In British Columbia, the test for family status discrimination has been more stringent than in other parts of the country for the past 15 years. A recent case involving a project manager who was assigned to work in another province for eight to 10 weeks a few months after the birth of his first child confirms that a personal preference to provide childcare, without additional factors, does not trigger a duty to accommodate based on family status.

Sufficient evidence is key to overturning release for unfairness
Fasken
  • Employment & Benefits
  • Canada
  • 10 July 2019

A recent Ontario Court of Appeal decision has confirmed that a release signed by an employee should be overturned for unfairness only if there is clear evidence of a lack of fairness. The court specifically cautioned against making conclusions on motions without sufficient evidence, which may cause plaintiffs and defendants alike to reconsider under what circumstances the court will grant summary judgment.

Amendments to Workers Compensation Act and Employment Standards Act pass further readings
Fasken
  • Employment & Benefits
  • Canada
  • 03 July 2019

Bill 18 – Workers Compensation Amendment Act 2019, which proposes to expand the definition of 'firefighter' under the Workers Compensation Act for the purpose of presumptions in favour of compensation for firefighters, has passed its third reading in the British Columbia Legislature. In addition, the second reading of Bill 8 – Employment Standards Amendment Act 2019 has been held, providing additional details around some of the government's proposed amendments to the act.

Amending the Broader Public Sector Executive Compensation Act
Fasken
  • Employment & Benefits
  • Canada
  • 26 June 2019

In 2018 the Ontario government issued a new compensation framework regulation that continued to freeze the current levels of compensation for executives at most designated employers within the broader public sector. While the freeze remains in effect, proposed amendments indicate that the government will be introducing a new regulation – and new compensation frameworks – that will provide further guidance on executive compensation going forward.

Government publishes new violence and harassment prevention regulations for federal employers
Fasken
  • Employment & Benefits
  • Canada
  • 19 June 2019

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.

Discrimination in the hiring process: what remedies are available to candidates?
Fasken
  • Employment & Benefits
  • Canada
  • 12 June 2019

The Superior Court of Quebec has confirmed that the Public Service Commission of Canada has the power to order the hiring of a candidate who has been discriminated against. However, in order to do so, the commission must find that the plaintiff was reasonably the most capable candidate and would have certainly obtained the role had they not been discriminated against.

Proposed federal changes for training benefits, pay equity and more
Fasken
  • Employment & Benefits
  • Canada
  • 05 June 2019

Budget 2019 proposes a number of employment-related changes focused on supporting and engaging the middle-class workforce. The most significant item in the budget is the announcement of a proposed new Canada Training Benefit, which proposes (among other things) a non-taxable training credit to help cover the cost of training fees for eligible workers aged between 25 and 64 years old.

Bill 8: major changes to Employment Standards Act introduced
Fasken
  • Employment & Benefits
  • Canada
  • 29 May 2019

The British Columbia government recently introduced Bill 8 – Employment Standards Amendment Act which, for the first time in more than 15 years, has introduced significant changes to the Employment Standards Act. For employers, the most significant amendments include the requirement that all of the main components of collective agreements 'meet or exceed' the corresponding parts of the act and the extension of the period for which employees can recover owed wages.