News & Publications Results
Related items for Practice area: Labour, Employment and Human Rights.
|Honesty is a Defensible Policy: Reference Checks
The Ontario Superior Court recently confirmed in Papp v. Stokes et al., 2017 ONSC 2357 that an employer will not be held liable for defamation when it provides a truthful reference about a former employee.
It is important to note that:
• an employer should be careful to ensure that the information provided is accurate and must not act with malice in providing a reference, which includes acting with a reckless disregard for the truth; and
• while not addressed in this particular decision, employers in some Canadian jurisdictions, including private-sector organizations in British Columbia, must ensure that they have consent before disclosing any personal information about a former employee under privacy legislation.
|Ontario Court of Appeal Judgment a Reminder of the Importance of Carefully Drafted Termination Clauses
In a recent decision, Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158, the Ontario Court of Appeal reversed a 2016 judgment of the Ontario Superior Court of Justice that had found a termination clause in an employee’s employment agreement enforceable. The consequence for the employer was that, instead of 13 weeks’ working notice and a lump sum equivalent to eight weeks’ pay, the employee was entitled to nine months’ reasonable notice.
|No Common Law Duty Requiring Employers to Reasonably Exercise their Discretionary Contractual Powers in Relation to their Employees
In a recent decision, Styles v. Alberta Investment Management Corporation, 2017 ABCA 1, the Alberta Court of Appeal reversed a 2015 judgement of the Alberta Court of Queen’s Bench that had recognized a common law duty requiring employers to reasonably exercise their discretionary contractual powers in relation to their employees. The Court of Appeal found that such a duty is not one that should be imposed upon employers.
|BC Employers Subject to New Requirements Regarding Joint Health and Safety Committees and Worker Health and Safety Representatives
Michelle Jones’ article, “BC Employers Subject to New Requirements Regarding Joint Health and Safety Committees and Worker Health and Safety Representatives,” examines WorkSafeBC’s approval of three new sections of the Occupational Health and Safety Regulation (OHSR): Evaluation of Joint Committees, Minimum Training Requirements and Participation in Incident Investigations.
|Rob Sider quoted in The Province
On October 3, 2016 Rob Sider was quoted in The Province article, "Stress leaves exploit a medical and legal grey area." This article discusses an increase of stress-related medical leaves in Canada which result in a medical and legal "grey area" one that employers have limited ability to manage.
|Supreme Court of Canada Rules that Federal Employees are Protected from Arbitrary Dismissal||14.7.16|
|Recent Developments in Ontario in Employment and Human Rights Law
There were two interesting developments in Ontario this month in employment and human rights law.
1. Changes to the Occupational Health and Safety Act
Bill 132 clarifies that reasonable action taken by an employer in managing or directing the workplace and workers is not workplace harassment.
2. Miscarriage is a Disability under Human Rights Law
In another Ontario development, the Ontario Human Rights Tribunal has found that a miscarriage may be a disability.
Read more about these developments in the above pdf.
|Manitoba Employment Standards Legislation to Include Leave
On March 15, 2016, Manitoba gave royal assent to legislation that will provide employees who are victims of domestic violence with both paid and unpaid leave from work. Titled The Employment Standards Code Amendment Act (Leave for Victims of Domestic Violence, Leave for Serious Injury or Illness and Extension of Compassionate Care Leave) (the “Act”), the law is the first of its kind in Canada.
For full article, please see the above pdf.
|Opinion: Workplaces need clear harassment policies and procedures for addressing problems
In a professional work environment, there is only one thing that is worse than losing one’s job — losing one’s reputation. You can always find another job, but once your name is tarnished, the damage may be permanent.
Following the suspension of a University of B.C. creative writing professor for “serious (undisclosed) allegations,” accusations against a UBC grad student for offensive acts and sexual assault and claims that the university failed to adequately respond to these allegations, the B.C. government is looking into developing a set of sexual harassment policies that post-secondary institutions would use to cope with sexual harassment and assault.
Read full article here.
|Federal Government Passes Union Spending Bill, Bill C-377
The federal government has enacted a new tax law that requires unions to disclose financial information (Bill C-377, An Act to Amend the Income Tax Act, passed on June 30, 2015). The bill had been slowly progressing for four years. It was the first private member’s bill to proceed to the Senate this session, and its passing was the final legislative act of the 41st Parliament.
|Suspension held to Constitute Constructive Dismissal: Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10
Employers frequently ask us whether they are allowed to suspend an employee, and, if they do so, whether there is a risk that the employee may sue for constructive dismissal. In a Supreme Court of Canada judgment released on Friday, the main issue was, in what circumstances may a non-unionized employee who is suspended indefinitely with pay claim to have been constructively dismissed? This article will focus on the majority reasons of the Court.
|Rob Sider quoted in Publications across the Country||11.2.15|
|Canada Labour Code Does Not Prohibit Without Cause Terminations
The Federal Court of Appeal in Wilson v. Atomic Energy of Canada Ltd., 2015 FCA 17 (“Atomic Energy”) confirmed that federally regulated employers can dismiss non-union employees without cause.
The Canada Labour Code (the “Code”), which applies to federally regulated employers, provides that non-union employees with 12 months or more service can bring complaints alleging that the termination of their employment was “unjust.” An adjudicator, appointed under the Code, can award a range of remedies, if they find the termination was unjust, including reinstatement of the employee.
|Supreme Court of Canada Releases Right to Strike Decision: Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4
Less than two weeks after handing down one landmark case on the freedom of association, the Court released another such case last Friday, Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4. The significance of this decision is that the Court has ruled that the right to strike is a guaranteed right of freedom of association protected by Section 2(d) of the Canadian Charter of Rights and Freedoms. This is the first time the Court has declared that the right to strike is a constitutionally protected right.
|Landmark Case on the Freedom of Association from the Supreme Court of Canada: Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1
The Supreme Court of Canada released a judgment last Friday that strengthens and expands the protection of freedom of association under s. 2(d) of the Charter of Rights and Freedoms. The main issue in this case was the constitutionality of the employee association scheme for members of the RCMP, who are excluded from public sector federal labour relations legislation. Instead, members of the RCMP typically advance their workplace issues through the Staff Relations Representative Program (“SSRP”).
The majority of the Court struck down the impugned legislation as violating s. 2(d) of the Charter. Although the specific result of this decision has little direct impact on most employers, as most employers' employees have access to collective bargaining, many comments from the Court exemplify a broadening perspective on freedom of association, thereby strengthening employees’ rights to collective bargaining.
|Cross Canada Guide to Human Rights Law in Employment||09.10.14|
|IKEA slapped with labour violation in B.C. strike dispute||11.8.14|
|L&E Bulletin: SCC Decision on Statutory Freeze Provisions in Labour Legislation
Today, the Supreme Court of Canada provided guidance on the proper interpretation and application of damages for breaches of statutory freeze provisions in labour legislation. These provisions prevent employers from changing terms and conditions of employment after a certification application is made by a union in respect of its employees or during the bargaining process. This case is significant to employers—the Court held that any change to the terms or conditions of employment during a statutory freeze can only be made if the change is consistent with the employer’s past management practices or it is a change a reasonable employer would have made in the same circumstances. The change cannot be made because of the arrival of the union.
|Labour and Employment Law Bulletin: Changes to Temporary Foreign Worker Program Announced
Employment Minister Jason Kenney and Immigration Minister Chris Alexander today announced significant reforms to the Temporary Foreign Worker Program (“TFWP”). The TFWP is being reorganized into two streams: the TFWP administered by Employment and Social Development Canada (“ESDC”) and the International Mobility Program administered by Citizenship and Immigration Canada (“CIC”). The changes to the TFWP reinforce the federal government’s position that the TFWP should be a program of last and limited resort for employers.
|Labour & Employment Law Bulletin: Who is an “employee” under the British Columbia Human Rights Code?
The Supreme Court of Canada has provided some important guidance regarding who qualifies as an "employee" under the British Columbia Human Rights Code in the case of McCormick v. Fasken Martineau DuMoulin LLP.
The case centred around a complaint filed with the British Columbia Human Rights Tribunal by Mr. McCormick, an equity partner at Fasken, alleging that the requirement to divest and retire discriminated against him as an “employee” on the basis of his age. While the Tribunal found that Mr. McCormick was an “employee” for the purposes of human rights legislation, its decision was eventually overturned by the British Columbia Court of Appeal. In upholding the Court of Appeal’s decision, the Supreme Court of Canada found that the factors determinative of an employment relationship are the extent to which an individual is controlled by, and dependent on, the alleged employer.