Broader workplace harassment claims: Is Canada becoming more litigious?

June 18, 2017 - by: Shane Todd 0 COMMENTS

by Shane Todd

Can a Canadian employee sue an employer for harassment that is not related to a discrimination claim? The answer used to be “no.” But that’s changing.

In most jurisdictions across Canada, an employee could sue or file a human rights application for harassment related to unlawful discrimination. An employee could file a complaint with the appropriate government agency about workplace harassment that violates health and safety or harassment laws. An employee could even sue for constructive dismissal based on harassing conduct. But, until recently, an employee could not usually sue an employer for harassment that was unrelated to some other legal right or protection.

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Ontario labor and employment laws to undergo significant amendments

by Sophie Arseneault and Christian Paquette

In Canada’s most populous province, labor and employment matters are governed by two fundamental statutes: the Employment Standards Act (ESA) and the Ontario Labour Relations Act (LRA). The ESA sets out minimum rights and obligations of employers and employees in the province. The LRA governs a host of matters regarding labor relations from certification and collective bargaining to unfair labor practices and decertification.

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Clean slate: Purchaser not bound by poor WCB record of company it acquired

June 04, 2017 - by: Hannah Roskey 0 COMMENTS

by Hannah Roskey

When contemplating acquiring the assets of a company in Canada, the purchaser will engage in extensive due diligence to ensure it is making a sound investment. These searches almost always include inquiries with the Workers’ Compensation Board (WCB) in the relevant province.

A poor result, with outstanding claims and high premiums, might send the transaction sideways. However, a recent decision of the Appeals Commission for Alberta Workers’ Compensation suggests that a purchaser may avoid the consequences of a mediocre WCB record altogether and wipe the slate clean.

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Life after certification applications: Lawful outsourcing and scope of bargaining units

by Karine Fournier and Valérie Gareau-Dalpé

Union certification applications can have profound impacts on the workplace. The bargaining unit’s composition will have implications for the conduct of the employer’s business, and it bears close attention.

The union applying for certification will be the one proposing the scope of the bargaining unit. Merely showing there is a more appropriate unit than the one proposed by the union is not enough. To challenge the proposed unit, employers must show that the proposed unit is actually inappropriate in the specific context of the company. Employers also face potential unfair labor practice complaints for their conduct during union organization campaigns.

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Court refuses to put the brakes on random drug and alcohol testing – for now

May 14, 2017 - by: Rachel Younan 0 COMMENTS

by Rachel Younan

The Ontario Superior Court of Justice has declined to grant an injunction that would have suspended the Toronto Transit Commission’s (TTC) ability to implement its random drug and alcohol testing policy. In Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, 2017 ONSC 2078, the court concluded that there was a serious issue to be tried in the arbitration of the TTC policy, namely whether the threshold requirement of a demonstrated workplace problem with alcohol and drugs had been met.

Background

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Upgrading your occupational health and safety management systems

May 07, 2017 - by: Cathy Chandler 0 COMMENTS

by Cathy Chandler

Two workers die each day in Canada from a work-related accident or disease. Hundreds more experience a work-related injury, according to the Association of Workers Compensation Boards of Canada 2015 Statistical Report. The statistics are not improving significantly despite an increased focus from regulators, unions, and industry associations on improving occupational health and safety systems. Is the implementation of a more effective occupational health and safety management system (OHSMS) the key to accident prevention?

An OHSMS provides a systematic way to identify hazards and control risks while maintaining assurance that these risk controls are effective. If implemented effectively, an OHSMS will reduce workplace accidents. It will also help organizations avoid costly prosecutions, reduce workers compensation insurance costs, and create a positive safety culture in the organization.

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Probationary clauses: Devil is in the details

by J. Alexandra MacCarthy

In Canada, the legal effect of a probationary clause in an employment contract can be unclear depending upon the facts of the particular case. The Supreme Court of British Columbia recently addressed probationary clauses in employment contracts in Ly v. British Columbia (Interior Health Authority), 2017 BCSC 42.

The plaintiff (PY) was hired by the Interior Health Authority (IHA) as the manager of quality and patient safety and client experience and moved from Vancouver to Kamloops for the position. The offer of employment contained the following clause: read more…

Surprising pro-employer decisions on post-employment restrictive covenants

by Kyla Stott-Jess and Stefan Mirkovic

Employers often place great faith in restrictive covenants to protect their assets when hiring key employees. In Canada however, noncompetition clauses have generally been very difficult to enforce outside of the context of a sale of business. Nonsolicitation clauses have also been carefully scrutinized by judges even though they are more readily enforced.

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To enforce or not to enforce ESA-only termination clauses: That is the question!

April 16, 2017 - by: Sophie Arseneault 0 COMMENTS

by Sophie Arseneault

Employers celebrated the January 2017 decision of the Ontario Superior Court of Justice in Cook v. Hatch upholding a termination clause that did not speak to statutory severance pay or the requirement to maintain health benefits during the statutory notice period. A month later, employers were left scratching their heads once again when the Court of Appeal for Ontario (ONCA) responded with its decision in Wood v. Fred Deeley Imports Ltd, 2017 ONCA 158, overturning a motion judge’s ruling refusing to invalidate a very similar provision.

Cook v. Hatch

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Freedom of expression during collective bargaining: What are the limits?

by Stéphane Fillion and Laïla Tremblay

In Canada, many cases have considered and limited an employer’s freedom of expression during collective bargaining. But what about the freedom of expression of the employees during that period? Is it similarly limited?

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