Fasken updates

When are mandatory arbitration clauses unenforceable?
Fasken
  • Employment & Benefits
  • 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
Fasken
  • Employment & Benefits
  • 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
Fasken
  • Employment & Benefits
  • 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
Fasken
  • Employment & Benefits
  • 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
Fasken
  • Employment & Benefits
  • 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
Fasken
  • Employment & Benefits
  • 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
Fasken
  • Employment & Benefits
  • 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
Fasken
  • Employment & Benefits
  • 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?
Fasken
  • Employment & Benefits
  • 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
Fasken
  • Employment & Benefits
  • 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
Fasken
  • Employment & Benefits
  • 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
Fasken
  • Employment & Benefits
  • 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?
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.

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