By Brian P. Smeenk

Does Canadian law recognize a right to sue somebody for invasion of privacy? In a landmark ruling in Jones v. Tsige, Ontario’s highest court recently said essentially: Yes. In limited circumstances you can sue for “intrusion upon seclusion.” But you won’t have a big payday.

This decision is a very significant development in Canadian law. It has potentially wide-ranging ramifications across many sectors, including in the labor and employment context.

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By Gulu Punia

What’s an employer in Canada to do if an employee loses a required qualification? For example, if drivers lose their licenses? If professional employees lose their accreditation? Is there a requirement to provide notice or pay in lieu of notice of termination?

A recent appeal court decision in Ontario suggests that in such cases the contract of employment comes to an end because it has been “frustrated.” There is no requirement to provide any notice of termination or pay in lieu of notice in such circumstances.

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By Ralph N. Nero and Keri L. Bennett

Following the earlier lead of many Canadian provinces, the federal government has now outlawed mandatory retirement for federally regulated employers such as banks, telecommunications companies, airlines, and railways.

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By Lyne Duhaime

In most Canadian jurisdictions, employers are limited in retroactively reducing pension benefits. The Quebec Superior Court recently considered employers’ rights in this regard in Synertech Moulded Products, Division of Old Castle Buildings v. Tribunal Administratif du Québec et al.

The court ordered the Quebec Regulator to register pension amendments proposed by the employer and said that absent specific powers, the Quebec Regulator could not arbitrarily refuse to register pension amendments to which affected employees had agreed.

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By Brian P. Smeenk

As we all contemplate our personal goals for next year (have you, too, promised yourself to work out more?), what resolutions should you make for your business in Canada?

Your CFO might urge the normal resolutions of cutting back on consumption or reducing your size. But maybe there are some more refined goals we can think about, gleaned from recent employment law developments such as those discussed in Northern Exposure. Here are some ideas: read more…

By Brian P. Smeenk

Canadian labor arbitrators are not legally bound to court-made legal rules. Rules of evidence, for example, are more relaxed. Rules of contract interpretation may also vary. But just how far arbitrators can deviate from general rules of law has been an open question.

A recent decision by the Supreme Court of Canada took a fresh look at this issue. It confirmed that labor arbitrators will be given lots of leeway by the courts.

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By Clayton Jones and Derek Knoechel

A growing frustration for Canadian employers is the need to defend against human rights claims arising out of the same factual circumstances in multiple forums. Discrimination claims that are presumptively dealt with by a labor arbitrator can resurface as virtually identical claims before a human rights tribunal.

While most human rights tribunals have the discretion to dismiss such claims as a result of the prior proceeding, it historically has been difficult to predict whether such discretion actually would be exercised.

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By Isabelle Dongier

Canadian employers must always ensure that their foreign employees are duly authorized to work in the country and remain so authorized during the complete period of their stay. To do so, employers can renew their employees’ work permits. But beware — these renewals are fraught with delays and technicalities. The following outlines just how diligent employers must be to ensure work permits are renewed appropriately.

Golden Rule: Initiate work permit renewal process well in advance
Temporary work permits have an expiration date and the explicit condition that their holder must leave the country by then. Should employment continue beyond the expiration date, a new work permit must be obtained. Many people think that an overstay of only a few days or weeks will not be an issue. But, Immigration Canada takes this rule very seriously and imposes significant penalties on noncompliant workers and their employers. Although a remedial “reinstatement” procedure may be available for 90 days, it remains discretionary and cumbersome. It is therefore important to make sure that all necessary steps to obtain a new work permit are taken well in advance, in light of the current lengthy government processing times.

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By Hadiya Roderique

The Supreme Court of Canada recently considered whether the Canadian Human Rights Tribunal has the authority to award legal costs to a successful complainant. As we noted in an earlier bulletin, this case could have major ramifications in human rights litigation across Canada.

Complaint
Donna Mowat brought a human rights complaint against her employer, the Canadian Forces, for discrimination on the grounds of sex. Mowat claimed compensation of $430,685 but ultimately was awarded only $4,000 plus interest.

The more interesting part of the decision, however, was the Tribunal’s response to Mowat’s request for legal costs in the amount of $196,313. The Tribunal awarded her $47,000 plus interest for legal costs – more than 10 times the $4,000 damages award!

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By Marisa Victor and Yael Wexler

An employment contract can provide certainty and protection for both the employer and employee. But what happens when it comes time to renew it? A recent Ontario case shows what can go wrong when an employer offers an existing employee a revised contract in order to address performance or other employment problems.

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