by Brian Smeenk
Just as Americans are considering how much change will occur in the context of the current election season, lots of change is happening north of the 49th parallel in the labor and employment field.
Not the least of which, from the perspective of this publication, is a change in law firm affiliation. Welcome to the first entry from the firm of Fasken Martineau DuMoulin LLP. Your editor-in-chief remains the same, but he, like this Northern Exposure blog, has found a new home.
We are confident that our new affiliation with Fasken Martineau DuMoulin LLP will enable us to provide an even better, more informative, and readable online publication about current developments in Canadian labor, employment, and human rights law.
Fasken Martineau is one of the world’s leading international business law, litigation, labor, and employment firms with more than 650 lawyers with offices in Canada, the United Kingdom, and South Africa. The Fasken firm is home to one of Canada’s leading and largest nationwide legal groups whose practice is devoted to labor, employment, and human rights issues.
The firm has approximately 100 lawyers practicing in these fields in locations from Vancouver in the west to Toronto and Montreal in the east. As editor, I and other Fasken lawyers from across Canada will be sharing our expertise with you in this publication.
It is a great time to have the expertise of one of Canada’s leading national labor and employment groups available to our readers. As already noted, much change is afoot in the Canadian legal landscape. Take, for example, several recent Supreme Court of Canada cases within the past six months.
In Evans v. Teamsters Local Union No. 31 (see May 20, 2008, Northern Exposure blog entry), the Supreme Court of Canada not only reaffirmed an employee’s duty to minimize or mitigate the losses resulting from an unjust dismissal, but it also ruled that an employee might even have to accept an offer to return to work for the dismissing employer. Failure to accept such an offer might result in the employee’s forfeiting his or her right to pay in lieu of notice of termination. This is because declining the offer may be seen as a failure by the employee to take reasonable steps to minimize his or her losses.
In June, the Supreme Court of Canada released its historic decision in Keays v. Honda Canada (see July 8, 2008, Northern Exposure blog entry). It not only overturned the largest ever award of punitive damages in a Canadian employment law case, it went on to fundamentally change the principles for determining the amount of notice of termination of employment, and hopefully brought a lot more common sense to this area of law.
For example, the court essentially swept away what had become known as “the Wallace extension of notice,” which was previously used to address bad conduct on the part of employers during the course of a dismissal. Instead of such employer conduct resulting in an arbitrary extension of the notice period, as had become the pattern, the court ruled that employees will have to demonstrate that they in fact suffered actual damages in order to receive compensation. What a novel concept!
Then, in July, the Supreme Court of Canada issued its decision in Hydro QuÃ©bec v. Syndicat des employÃ©-e-s de techniques professionnelles et de bureau d’Hydro-QuÃ©bec 2008 SCC 43 (See July 29, 2008, Northern Exposure blog entry). In this case the court finally stated that there are reasonable limits on an employer’s duty to accommodate employees who are chronically absent from work. Not only did the Supreme Court of Canada clarify just how far an employer must go to accommodate a disabled employee, it also confirmed that all of the efforts made by the employer in the months and years leading up to termination must be taken into consideration when looking at whether the point of “undue hardship” has been reached by the employer.
The duty to accommodate doesn’t mean that employers must live indefinitely with an employee who can’t satisfy the basic requirements of his or her position, and “undue hardship” doesn’t necessarily mean that the employer must be nearly broke before it’s found to have done enough to accommodate the employee.
It would appear that the Supreme Court of Canada has brought a refreshing voice of reason and practicality into these various employment law issues. This series of decisions from our highest court will no doubt be much debated. Lower courts will be asked to apply them. Plaintiffs will no doubt seek to get around them in new and creative ways.
Similarly, on the legislative front, Ontario employers and employees have just begun to work with a new, “direct access” system for taking discrimination complaints to the Human Rights Tribunal, without first going through a long investigation by the Human Rights Commission.
We at Northern Exposure look forward to reporting to our readers on these and other developments, which anyone interested in Canadian employment law will want to know. We hope that our readers will find this to be an increasingly valuable resource.
Brian Smeenk is a Toronto partner in the Fasken's Labour, Employment & Human Rights Group. He is also editor-in-chief of Northern Exposure and a member of the Employers Counsel Network. Since 1981, Brian's practice has focused on management-side labour and employment law. He represents both private sector and public sector employers, including many multi-national companies, in all aspects of labour relations and employment law and appears before tribunals and courts at all levels.