Fasken

Toronto ON

Fasken Martineau is a leading national business and litigation law firm in Canada. With over 770 lawyers in offices in Vancouver, Calgary, Toronto, Montreal, Quebec City, London and Johannesburg, we provide services to our clients in virtually all areas of the law, on a national and international basis.

Show more

Updates

Employment & Benefits

Government publishes new violence and harassment prevention regulations for federal employers
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?
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
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
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.

Cost of intimidation: what not to do when terminating employees
Canada | 22 May 2019

A recent Court of Appeal decision demonstrates the high cost of bad faith when terminating a senior employee for cause. The decision reads as a how-to guide in reverse (ie, what not to do when terminating an employee) and highlights that employers should not (among other things) refuse to inform a terminated employee as to why they are alleging cause or file baseless counterclaims.

How respectful workplaces can reduce risk of successful constructive dismissal claims
Canada | 15 May 2019

The British Columbia Supreme Court recently considered how employers can properly address workplace conduct to minimise the risk of constructive dismissals. This case not only offers a useful summary of the law on poisoned workplaces, but also offers employers several practical suggestions on how to reduce this risk, including by implementing a respectful workplace policy and treating complaints seriously.

Canadian gig economy: embracing the future of work
Canada | 08 May 2019

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.

When are mandatory arbitration clauses unenforceable?
Canada | 24 April 2019

A recent Ontario-based decision creates uncertainty for many Canadian and international employers operating in Canada that include mandatory arbitration clauses in employment or independent contractor agreements, because each province has a similar rule against contracting out of employment standards legislation. If the clauses could be interpreted as limiting the right to file a complaint with the Ministry of Labour or another employment standards regulator, they should be reviewed and revised by the company's lawyers.

Between a rock and a hard place: employer faces competing statutory obligations
Canada | 17 April 2019

How can an employer balance its obligation to maintain a safe workplace for its employees with its duty to accommodate an employee who has serious mental health issues? According to a recent arbitration award, an employer may inadvertently breach one statutory obligation by satisfying another. A single employee's rights – even human rights – cannot be considered in isolation and to the exclusion of the rights of all others.

Government appoints new expert panel on labour standards
Canada | 10 April 2019

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.

No jail for accused directors says Court of Appeal
Canada | 27 March 2019

In a recent case, the jail terms imposed on two directors following a workplace fatality were overturned on appeal and the C$250,000 fine imposed on the company was also reduced. While the results were good for the accused, the Court of Appeal's troubling comments will inevitably be used by prosecutors across Canada in an effort to obtain jail terms as appropriate sentences against directors.

Federal Court: release does not prevent unjust dismissal complaint
Canada | 20 March 2019

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.

Genetic characteristics: developing form of discrimination
Canada | 13 March 2019

Employers should be mindful of a newly recognised form of discrimination that has captured the attention of legislators and the Canadian public: genetic discrimination. A bill is before the Ontario legislature that would prohibit employers from discriminating against employees based on their genetic characteristics. The courts have also started to weigh in on the issue in the context of the subjective component of discrimination or perceived disability.

New rules on police record checks in Ontario
Canada | 06 March 2019

The Police Record Checks Reform Act 2015, which recently came into force, standardises the types of police record check that can be performed and the types of information that can be disclosed. The new rules are important for employers that use police record checks to screen employees, applicants, volunteers or others. Employers must understand the differences between the three types of check to ensure that the correct check is requested in each situation.

Dazed and confused about recreational and medical cannabis
Canada | 20 February 2019

Recreational cannabis was recently legalised in Canada. However, employers are confused as to whether recreational and medical cannabis should be handled differently under human rights laws. Among other things, employers can prohibit the possession of any recreational cannabis at work even though the possession of small amounts is now legal. Nevertheless, employers are obliged to accommodate – to the point of undue hardship – employees who are addicted to recreational cannabis.

Sex, lies and videotape: good evidence?
Canada | 30 January 2019

In a recent case, an employer installed video surveillance in his office in order to catch employees rifling through his private filing cabinet. However, what was actually caught on tape was two employees doing something entirely different. This raised the question of whether the employer could use the footage as evidence to terminate the employees for just cause. A recent arbitration board's interim decision said yes.

New harassment and violence obligations to be added to Canada Labour Code
Canada | 02 January 2019

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.

Bill 47 passes but more changes to come following Bill 57 and 2018 FES
Canada | 19 December 2018

The new provincial government has been active in reshaping provincial employment and labour laws and responsibilities. In addition to passing Bill 47, the Making Ontario Open for Business Act 2018, the government has filed new regulations which will lower penalties for contravening the posting and record-keeping requirements of the Employment Standards Act. Further, the government's 2018 Fall Economic Statement outlines several initiatives and pledges which will be of interest to Ontario employers.

Breaking up is hard to do: court awards more than C$112,000 to employee terminated for breach of trust
Canada | 12 December 2018

A recent British Columbia Supreme Court's decision is a cautionary tale for employers that terminate employment first and ask questions later. It is a reminder that failure to conduct a proper investigation into employee misconduct can undermine an employer's case for termination for cause. When considering the appropriate level of discipline, employers should consider all mitigating and aggravating factors before deciding on the appropriate discipline.

Fixed-term contracts: friend or foe?
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
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
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
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
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
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
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
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
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'
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
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
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
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?
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
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?
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
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
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)
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
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.

Two occupational health and safety appeal decisions to be aware of
Canada | 11 July 2018

Occupational health and safety professionals, HR professionals, in-house counsel and operations managers responsible for implementing health and safety management systems should be aware of two recent appeal decisions relating to serious occupational health and safety charges. The cases indicate that in both extreme and unusual cases, health and safety regulators are becoming more aggressive in their enforcement of the legislation when workers are critically or fatally injured.

Labour market impact assessments: benefits plan versus transition plan
Canada | 04 July 2018

Employment and Social Development Canada's Global Talent Stream is a two-year pilot project providing Canadian employers expedited access to unique, specialised and highly skilled temporary foreign workers. Under the project, employers must develop a benefits plan rather than a transition plan, which is required in a regular labour market impact assessment. But what is the difference between these two types of plan?

Bill 174: Ontario's take on cannabis legalisation
Canada | 27 June 2018

The Cannabis, Smoke-Free Ontario and Road Safety Statute Law Amendment Act has received royal assent and serves as the provincial framework in anticipation of the enactment of federal legislation relating to the cultivation, sale, distribution and consumption of cannabis. The act brings significant changes for employers, including with regard to the prohibition on the use of products in several locations, the right to a smoke-free workplace and the prohibition against smoking while driving.

Bill 148: new risks for misclassifying independent contractors as employees
Canada | 20 June 2018

The Ontario government is increasing the risks and penalties for employers that misclassify workers as independent contractors as part of the Fair Workplaces, Better Jobs Act. The burden is now on employers to prove that workers are not employees under the Employment Standards Act. This change of presumption will make it even more difficult for employers to defend claims filed by individuals challenging their status as an independent contractor in favour of being classified as an employee.

What is the origin of a name – not as innocent a question as it seems
Canada | 13 June 2018

The Human Rights Tribunal recently examined discrimination in hiring, specifically in regard to ethnic or national origin. It opined that the purpose of Section 18.1 of the Charter of Human Rights and Liberties is to eliminate discrimination in hiring at its roots by prohibiting any question relating to a personal characteristic. Accordingly, a mere question relating to one of the grounds listed in Section 10 of the charter will constitute an automatic violation of Section 18.1.

Employer-mandated physician visit is not a privacy violation
Canada | 06 June 2018

Employers are entitled to require employees to visit in-house occupational health department physicians to obtain reasonably necessary medical information if that right is provided for in their collective agreement. This was recently confirmed when an arbitrator found that an employer had not violated employee privacy rights when it required employees to visit in-house occupational health department physicians to confirm eligibility for wage loss protection benefits.

Bill 6 – amendments to British Columbia Employment Standards Act
Canada | 30 May 2018

British Columbia's minority New Democratic Party government recently introduced Bill 6 into the British Columbia legislature. The bill contains many amendments dealing with the British Columbia Employment Standards Act. Among other things, the proposed amendments align provincial leave benefits with the changes made to federal employment insurance benefits. Bill 6 would also provide new and extended maternity, parental and compassionate care leave.

Bill 148: Ontario makes important changes to health and safety law
Canada | 23 May 2018

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.

Pay Transparency Act enacted in Ontario, national trend emerging
Canada | 16 May 2018

The Ontario Pay Transparency Act has been enacted as a central piece of Ontario's strategy for women's economic empowerment. The act will require employers with more than 100 employees to collect information and prepare pay transparency reports, which may be published online by the Ministry of Labour. The Ontario legislation is part of an emerging Canada-wide trend reflecting increasing efforts to improve pay equity and, more generally, equality in the workplace.

Right to disconnect: will employees be able to pull the plug?
Canada | 09 May 2018

Bill 1097: the Right-to-Disconnect Act was recently introduced and aims to ensure that employee rest periods are respected by requiring employers to adopt an after-hours disconnection policy. However, implementing a disconnection policy could encourage the culture of presenteeism (or face time) at the expense of efficiency and new ways of working, as well as put more pressure on employees who are subject to stricter work schedules.

Bill 148: vacation, overtime and record keeping
Canada | 02 May 2018

Bill 148 introduced a host of new requirements for Ontario employers. Three changes which should (but may not) be on the radar of Ontario payroll and HR information system administrators are new vacation time and vacation pay requirements, changes to the calculation of overtime pay where employees have multiple rates of pay and new record-keeping requirements.

Court rules sharing confidential information is just cause for termination
Canada | 25 April 2018

When privacy and confidentiality are important in a job, a manager's breach of confidence may provide just cause for termination, particularly when the employer's policy on confidentiality obligations is known to the employee. The British Columbia Supreme Court recently affirmed these principles and highlighted the value of a properly executed release if the employee later challenges an agreement made at the time of termination.

How to enforce termination provisions: latest from Ontario Court of Appeal
Canada | 18 April 2018

For years, lawyers have debated whether a termination clause must specifically state that the employee will not be entitled to common law reasonable notice in order to limit his or her entitlements upon termination. According to a recent Ontario Court of Appeal decision, the answer is no. The decision has also confirmed that a termination clause need not address all of the employee's statutory entitlements in order for it to be valid.

Earnings from second or side job constitute mitigation income (sometimes)
Canada | 11 April 2018

Where an employee consults on the side or has a second job, can his or her income post-termination count as mitigation income? According to a recent British Columbia Court of Appeal decision, the answer is yes; such income is considered to be mitigation income and will therefore be deducted from any wrongful dismissal damages that are awarded.

Bill 148: scheduling and the three-hour rule
Canada | 04 April 2018

The Fair Workplaces, Better Jobs Act 2017 (known as 'Bill 148') is now in force and has made significant changes to the Employment Standards Act 2000. Included in the changes to the act are new provisions on scheduling, including on-call work, changes to scheduled shifts and shift cancellation. Although these changes do not come into effect until January 1 2019, employers should be aware of them in order to ensure compliance in time.

Handle with care: importance of measured response to poisoned workplace complaint
Canada | 28 March 2018

Whether a poisoned workplace justifies a claim for constructive dismissal depends on the facts. The key question is whether the employer fundamentally breached its obligation to provide a safe and harassment-free workplace. The Alberta Court of Queen's Bench recently addressed the issue of how an employer can properly address a poisoned workplace complaint to ensure that it adequately cares for its employees and minimises its liability exposure.

Bill 148: changes to Labour Relations Act
Canada | 21 March 2018

The impact of the Fair Workplaces, Better Jobs Act 2017 (known as 'Bill 148') has been overshadowed, to some extent, by the controversy surrounding the sweeping changes to the Employment Standards Act 2000, including the changes to the minimum wage. However, the bill has also made significant changes to the Labour Relations Act 1995.

Bill 148: significant changes affecting agency employees
Canada | 14 March 2018

One of the government's primary goals when enacting the Fair Workplaces, Better Jobs Act 2017 (known as 'Bill 148') was to provide additional protections for vulnerable employees, including individuals employed by temporary help agencies. As such, the changes will have a significant effect on both temporary help agencies and the companies that use their services.

Court gives asset purchasers leeway with employment offers
Canada | 07 March 2018

The Ontario Court of Appeal recently overturned a Superior Court decision and ruled that a purchaser's employment offer, in and of itself, constitutes sufficient consideration to establish a valid employment contract. Further, asset purchasers are neither bound by the terms of the seller's employment agreements nor required to offer the seller's employees contracts on terms identical to their original agreements.

Reduce risk of accident by investigating near misses
Canada | 28 February 2018

Most employers have a procedure for investigating accidents in the workplace. However, less likely to be investigated are near misses that may have gone unreported because of the workplace culture or because they were not viewed as important. While it may seem that investigating a near miss is not worth the time and energy, in the long run, it is likely to uncover unknown hazards or conditions which may result in a serious injury or fatality.

Bill 148: equal pay for equal work
Canada | 21 February 2018

Included among the many changes to the Employment Standards Act 2000 brought about by the Fair Workplaces, Better Jobs Act 2017 (known as 'Bill 148') is the prohibition on paying certain employees less than others based on their employment status. This means that employers can no longer pay part-time employees less than full-time employees if they perform substantially the same kind of work in the same establishment.

Bill 148: changes to existing leaves of absence and new types of leave for Ontario employees
Canada | 14 February 2018

Included among the many changes to the Employment Standards Act, 2000 brought about by the Fair Workplaces, Better Jobs Act, 2017 (referred to as 'Bill 148') are changes to existing leaves of absence and the introduction of new leaves of absence for Ontario employees. Employers should review and update their existing policies to ensure compliance with Bill 148, keeping in mind the changes and additions that are now in effect.

Alberta workers' compensation: a refocus
Canada | 17 January 2018

In 2016 the Alberta government commissioned an evaluation of the entire workers' compensation system. In July 2017 the Alberta Workers' Compensation Board review panel issued a report which found that employers and workers overwhelmingly wanted the system to continue. However, significant problems exist and, based on these findings, the panel issued a list of recommendations. While the extent to which the government adopts these recommendations remains to be seen, further debate is likely.

Dismissals for incompetence: are we moving backward or forward?
Canada | 10 January 2018

Employers in Quebec that wish to dismiss employees for incompetence may now need to accomplish an additional step before doing so, following the Quebec Superior Court's recent confirmation of an arbitration decision in which an additional criterion was added to those previously established by the Court of Appeal. According to the superior court, employers must also verify whether another more suitable role is available for an employee before proceeding with termination.

Government enhances maternity leave benefits and protection against workplace harassment
Canada | 20 December 2017

Changes to the employment insurance programme relating to parental, maternity and caregiving benefits came into effect on December 3 2017. The employment insurance programme provides temporary income support to partially replace lost employment income for individuals who are off work for various reasons. The government also recently announced legislation to strengthen existing laws on the prevention of harassment and violence in federally regulated workplaces.

Win for employers: Supreme Court rejects union's request for right to consultation in accommodation process
Canada | 06 December 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
Canada | 29 November 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
Canada | 22 November 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
Canada | 15 November 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
Canada | 08 November 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
Canada | 25 October 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
Canada | 18 October 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
Canada | 11 October 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?
Canada | 04 October 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
Canada | 27 September 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
Canada | 20 September 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
Canada | 13 September 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?
Canada | 06 September 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
Canada | 30 August 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
Canada | 23 August 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
Canada | 26 July 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?
Canada | 12 July 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
Canada | 05 July 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
Canada | 28 June 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
Canada | 21 June 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.

Probationary clauses: the devil is in the detail
Canada | 24 May 2017

The Supreme Court of British Columbia recently addressed probationary clauses in employment contracts. The decision confirms that under the British Columbia Employment Standards Act, once an employee has been employed for three months, he or she is entitled to notice of termination even if the probationary period in the employment contract extends past three months.

Surprising pro-employer decisions on post-employment restrictive covenants
Canada | 10 May 2017

Employers often place great faith in restrictive covenants to protect their assets when hiring key employees. However, in Canada non-compete clauses have generally been very difficult to enforce outside of the context of a sale of business. Employers will be happy to know that two recent decisions out of Ontario and Alberta have favoured more relaxed interpretations of restrictive covenants.

Ontario court awards three types of damage in sexual harassment case
Canada | 19 April 2017

An employee who was repeatedly sexually harassed by a co-worker sued her employer after being dismissed. In addition to normal damages for wrongful dismissal, the trial judge awarded her moral damages, plus damages for the employer's violation of human rights laws. The Ontario Court of Appeal recently upheld this award, confirming that both moral damages and damages under human rights laws may be awarded to an employee without it being characterised as 'double dipping'.

"I quit… oh wait, I didn't mean it!": dealing with sudden resignations
Canada | 12 April 2017

A recent Ontario Superior Court of Justice decision found that an employee was wrongfully dismissed after quitting 'in the heat of the moment'. This case serves as a reminder that employers should exercise caution before accepting a resignation from an employee who quits suddenly – for the resignation to be valid, it must be clear, unequivocal and, most importantly, reflect the employee's intention to resign.

Blurred lines: managers may have right to bargain collectively
Canada | 22 March 2017

In two surprising decisions, the Quebec Administrative Labour Tribunal has questioned the constitutionality of excluding managers from unions under Quebec's Labour Code. The tribunal held that the exclusion of managers had serious prejudicial effects and that this exclusion affected the managers' capacity to collectively bargain their conditions of employment.

Termination for off-duty conduct: where is the line?
Canada | 01 March 2017

Employers can discipline and even dismiss employees for off-duty conduct. However, a recent decision of an Ontario court suggests that the circumstances in which outright termination is permitted are limited. This is not to say that employers may never terminate or discipline employees for conduct outside the workplace; but employers should be aware of the risks and protect themselves from liability.

Lessons for HR professionals following Quebec City shootings
Canada | 22 February 2017

The recent, apparently racially motivated, shootings in Quebec City have given pause for reflection and brought home the fact that Canadians are not immune from the same social ills that afflict other countries. An important consideration in a country as diverse as Canada is how to ensure that racial, ethnic and religious tension does not permeate its organisations. HR professionals, business managers and lawyers can all learn something from this tragedy.

Safety incidents: right to remain silent versus obligation to speak
Canada | 08 February 2017

Understanding when an employee has the right to remain silent is crucial to minimising legal actions against employees, co-workers and employers. While a person should generally refrain from providing a statement to the police until receiving legal advice, legislation in Canada grants health and safety inspectors and environmental officers broad and largely unfettered power to make inquiries of any person relevant to an inspection.

Alberta Court of Appeal helps employers to ring in New Year in Style(s)
Canada | 01 February 2017

The issue of whether a dismissed employee is entitled to bonus compensation during the period of reasonable notice has been a hot topic lately. The Alberta Court of Appeal recently weighed in and concluded that in the event of a without-cause termination, an employer is not obligated to provide the employee with reasons for the termination. The court also held that employees are not entitled to bonus pay-outs where they have not met the contractual preconditions.

Addressing mental illness in the workplace
Canada | 11 January 2017

By addressing mental illness in the workplace and putting in place effective accommodation programmes, employers may both lessen the severity of employees' mental illnesses and reduce the economic burden on the company. Aside from these benefits, employers have both a procedural and a substantive duty to accommodate an employee's mental illness or disability under local provincial human rights legislation.

Medical assessment gives reasonable grounds for employee surveillance
Canada | 14 December 2016

Surveillance may be an effective way for an employer to confirm or dispel doubts about the legitimacy of a disability claim, but when is it legally permissible in Canada? The Quebec Superior Court recently disagreed with an arbitrator's decision that a surveillance video was inadmissible as evidence. The court clarified that surveillance evidence requires reasonable grounds for its admission in court.

Termination provision enforceable despite no mention of severance pay or benefit continuation
Canada | 07 December 2016

Recent case law has overwhelmingly rejected termination clauses that purport to limit an employee's entitlements upon termination to the minimum notice required by applicable employment standards legislation. However, a 2015 Ontario Superior Court of Justice decision diverged from that case law and was recently upheld by the Ontario Court of Appeal.

Court rules that union official's sexist and offensive blog posts are constitutionally protected
Canada | 28 September 2016

The Supreme Court of Canada recently refused a manager's application for leave to appeal a decision pertaining to a union official's sexist and offensive blog posts about her, which were found not to constitute discrimination under the Ontario Human Rights Code. The court held that the blog posts were protected by the union official's free speech and freedom of association rights under the Canadian Charter of Rights and Freedoms.

Unionised employees cannot sue each other – maybe
Canada | 14 September 2016

Major Supreme Court decisions have already established that any legal action whose essential character arises from a collective agreement falls under the exclusive jurisdiction of an arbitrator. But what if a dispute involves not only a unionised employee and an employer, but also other employees? The Quebec Court of Appeal recently held that the arbitrator has exclusive jurisdiction over almost every category of employment-related dispute.

Human rights tribunal jurisdiction requires employment relationship
Canada | 24 August 2016

The British Columbia Court of Appeal has ruled that the British Columbia Human Rights Tribunal could not take jurisdiction over a discrimination complaint where the alleged harasser was employed by a different employer at the same work location. If leave to appeal to the Supreme Court of Canada is granted, intervenors are expected to apply to be involved, given the decision's potentially broad impact.

Early termination of fixed-term contract proves costly
Canada | 03 August 2016

The Ontario Court of Appeal recently ordered an employer to pay three years' compensation to an employee terminated without cause after 23 months. The employee was entitled to his full salary and benefits for the remainder of the five-year fixed-term employment contract because the contract did not clearly state otherwise. Employers should be careful when drafting termination clauses and considering without-cause termination of employees on fixed-term contracts.