Employment & Benefits, Canada updates

Is corporate criminal conviction a corporate death sentence?
  • Canada
  • 02 October 2013

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.

Is there a distinction between 'just cause' and 'just dismissal'?
  • Canada
  • 11 September 2013

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.

Ontario Court of Appeal clarifies Human Rights Code test for discrimination
  • Canada
  • 14 August 2013

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.

Court overturns tribunal's decision that dismissal was discriminatory
  • Canada
  • 07 August 2013

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.

Supreme Court rules on workplace drug and alcohol testing
  • Canada
  • 10 July 2013

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.

Sometimes a swimming pool is just a swimming pool: Blue Mountain wins appeal
  • Canada
  • 29 May 2013

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.

New Ontario Workplace Safety and Insurance Board initiatives for 2013
  • Canada
  • 22 May 2013

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.

Court confirms director's liability for unpaid wages
  • Canada
  • 17 April 2013

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.

Court rules pension plan members not entitled to indexing
  • Canada
  • 13 March 2013

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.

Pension plan members lose out in Supreme Court Indalex ruling
  • Canada
  • 13 February 2013

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.

Beware of hidden pension liabilities in corporate transactions
  • Canada
  • 23 January 2013

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.

Psychological health and safety in the workplace: a standard is born
  • Canada
  • 28 November 2012

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.

Off limits? Maybe not: Supreme Court addresses employee privacy on work computer
  • Canada
  • 07 November 2012

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.

Tribunal finds blog post to be protected under union speech
  • Canada
  • 10 October 2012

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.

First Ontario corporation fined for criminal negligence in workplace accident
  • Canada
  • 01 August 2012

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.

Pensions: the penny drops
  • Canada
  • 11 April 2012

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.

Modifying retiree benefits: a deal is a deal
  • Canada
  • 28 March 2012

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.

CSA releases workplace psychological health and safety standard
  • Canada
  • 08 February 2012

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.

Tribunal expands scope of entitlement for traumatic mental stress
  • Canada
  • 18 January 2012

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.

Supreme Court of Canada grants leave to appeal in Indalex
  • Canada
  • 11 January 2012

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.

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