Fasken updates

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.

Cost of intimidation: what not to do when terminating employees
Fasken
  • Employment & Benefits
  • 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
Fasken
  • Employment & Benefits
  • 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
Fasken
  • Employment & Benefits
  • 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?
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.

Current search