By Rosalind H. Cooper

Occupational health and safety legislation in most Canadian provinces prohibits reprisal by an employer against an employee who makes allegations of unsafe work. Workers routinely try to rely on such reprisal provisions to attack any actions of their employers.

A recent Ontario Labour Relations Board decision, Petro v. The Beer Store, confirms that workers can’t. Reprisal complaints must relate to health and safety matters. They can’t relate to failures to follow corporate reporting procedures or to threats of discipline for refusal to follow directions regarding workplace reporting protocols.

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By Sean McGurran and Marisa Victor

The recent decision in Drake v. Blach in the Ontario Superior Court provides a good example of how not to go about firing an employee. It provides a good lesson on how employment law in Canada will come to the rescue of a wronged employee.

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By Kevin O’Neill

On April 5, 2012, the Supreme Court of Canada said it would hear IBM’s appeal from the British Columbia Court of Appeal’s 2011 decision in Waterman v. IBM Canada Ltd. This important case will likely allow the Supreme Court to re-examine damages principles arising in a wrongful dismissal action.

The case raises the question of what, if any, damages a terminated employee is entitled to if that person immediately starts receiving benefits from a fully funded pension or disability plan.

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By Gulu Punia and Jennifer Shepherd

Deciding to retain a contractor rather than an employee can be the right decision depending on the needs of a business. But there are risks. If a court determines that the relationship is in fact an employment relationship, the employer can be liable.

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By Frederic Parisien

Workplace harassment, at the onset, involves two players — the harasser and the harassee. A third party is added once a complaint is filed — the employer. And a fourth player, the union, is added if that complaint is a grievance. To what extent does the alleged harasser continue to be a party in Canada? In Association du personnel de soutien du College v. College d’enseignement general et professionel, the Quebec Court of Appeal recently said that the harasser takes a backseat to the main parties — the employer and the union.

Facts
A laboratory technician at a Montreal-area college filed a harassment complaint against a teacher. When the college’s internal investigation did not support the harassment allegations, the union filed a grievance on the harassee’s behalf. The college, as the employer, was called to defend the grievance. But the alleged harasser sought to intervene and obtain full party status.

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By Marisa Victor and Yael Wexler

Noncompetition clauses in employment contracts are difficult to enforce in Canada. Courts tend to regard them as unreasonable restraints on trade. Any ambiguity usually will be fatal. Nor will the courts generally use a “blue pencil” to remove ambiguous words. This was made clear in the recent appellate decision in Veolia ES Industrial Services Inc. v. Brulé.

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By Ralph N. Nero and Fida Hindi

Canadian employees are entitled to all sorts of leaves – maternity leaves, parental leaves, sick leaves, emergency leaves, leave for the disappearance of a minor child, and the list goes on. Now Ontario may be joining Quebec by creating yet another new category of leave of absence for employees — family caregiver leave.

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By Gilda Villaran

On February 24, 2012, a new simplified process for certain foreign workers seeking entry to the Province of Quebec was announced. Instead of applying to only seven information technology occupations, as before, the simplified process will apply to 44 occupations in a variety of fields. This is an important development not only for the American companies that want to relocate foreign employees to Quebec. It is a clear departure from the previous system. Other provinces may be interested in following Quebec’s example, to better respond to the needs of regional labor markets.

Employers who make employment offers to a foreign worker in any of these 44 occupations in the Province of Quebec will benefit from the simplified process. The main advantage is that employers do not have to prove that they tried to recruit a Canadian or permanent resident to fill the position. The list of 44 occupations has been prepared with the participation of Emploi Quebec, a Quebec government agency. It is supposed to reflect the occupations for which there is a well-known labor shortage.

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By Thora Sigurdson

We all know that, where applicable, it’s important to take care in drafting confidentiality, noncompetition, and nonsolicitation terms in employment, contractor, and other agreements. A recent case in British Columbia, Cruise Connections Canada v. Cancellieri, reminds us of the value of having a “duty of good faith” clause. It also illustrates how damages for the future use of confidential information will be calculated.

Facts
In Cruise Connections, a number of sales representatives left Cruise Connections and started their own business. Before they left, the sales representatives copied the company’s customer database. The database contained information on customers’ names, contact information, past trips, preferences, and other valuable information.

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By Kyla Stott-Jess and Gulu Punia

A difficult employee states that he is quitting and walks out the door. Problem solved? Or just beginning? Recent cases illustrate that it’s hard to know when an employee has quit in the eyes of the courts in Canada. And it can be expensive when you get it wrong.

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