Dismissals for incompetence: Are we moving backward or forward?

by Rhéaume Perreault and Michael Adams

It appears that employers in Quebec who wish to dismiss employees for incompetence may now need to accomplish an additional step before doing so. Indeed, the Superior Court of Quebec, in Commission scolaire Kativik v. Ménard, 2017 QCCS 4686, recently confirmed an arbitration decision in which an additional criterion was added to those established in 2005 by the Court of Appeal in Costco Wholesale Canada Ltd. v. Laplante, 2005 QCCA 788, and applied since by tribunals in Quebec.

According to the Superior Court, employers must now also verify if another more suitable position is available for the employee before proceeding with termination.

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Alberta workers’ compensation: a refocus

December 03, 2017 - by: Theodore Fong 0 COMMENTS

by Theodore Fong

This year has seen many developments in the labor and employment fields in Canada. One recent development concerns the Alberta Workers’ Compensation Board (WCB), one of several public agencies across Canada to administer an insurance plan for injured or ill workers. Its no-fault insurance system has been in place for nearly a century and covers over 1.8 million Albertans working for over 160,000 employers.

In 2016 the Alberta government commissioned a panel to evaluate the entire workers’ compensation system. The objective was to examine how the system was keeping up with the realities facing today’s employers and workers. For instance, occupational causes of injuries are becoming increasingly complicated since workers now often have multiple employers (sometimes simultaneously) and complex medical conditions are more frequent today.

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Canadian government enhances maternity leave benefits, proposes to strengthen harassment and violence prevention

November 26, 2017 - by: Clayton Jones 0 COMMENTS

by Clayton Jones

On November 9, the federal government announced that changes to the Employment Insurance (EI) program relating to parental, maternity, and caregiving benefits will come into effect on December 3. The EI program provides temporary income support to partially replace lost employment income to individuals who are off work for various reasons.

On November 7, the federal government announced legislation to amend the Canada Labour Code, the Parliamentary Employment and Staff Relations Act, and the Budget Implementation Act, 2017. Bill C-65 would strengthen existing laws on the prevention of harassment and violence in federally regulated workplaces.

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Changes to rules regarding Canadian citizenship

November 19, 2017 - by: Arlin Sahinyan 0 COMMENTS

by Arlin Sahinyan

In a time when immigration rules and regulations in many jurisdictions are becoming more stringent, Immigration, Refugees and Citizenship Canada (IRCC) has made changes to the citizenship guidelines making grants of Canadian citizenship more accessible to permanent residents of Canada. On June 19, Bill C-6 received Royal Assent resulting in immediate changes for citizenship applicants.

Before June 19, applicants were required to intend to continue living in Canada if granted citizenship. Bill C-6 repealed this provision, providing more flexibility to Canadians who may need to live outside of Canada for work or personal reasons.

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A win for employers: Supreme Court rejects union’s effort to obtain right of consultation in accommodation process

by John Craig and Matthew Larsen

Do unions have an independent legal right, separate and apart from their collective agreement rights, to be involved in every unionized employee’s accommodation request? This question was answered earlier this year by the British Columbia Court of Appeal, which ruled that unions have no such right.

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Avoiding liability risks when you fire a sexual harasser

November 05, 2017 - by: Theodore Fong 0 COMMENTS

by Theodore Fong

The risks to employers in sexual harassment cases can be big. Potential liability can arise from any decision. Employers may then find themselves having to make tough decisions on tight timelines.

The key to ensuring an appropriate response is to be prepared. Preparation will permit an employer to take a proactive approach, as opposed to a reactive stance, when sexual harassment is discovered. That is a lesson that can be drawn from the recent Alberta Court of Queen’s Bench case of Watkins v. Willow Park Golf Course Ltd.

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The erosion of employers’ managerial rights

October 29, 2017 - by: Mikaël Maher 0 COMMENTS

by Mikael Maher

In a recent arbitration case, Tshiuetin Rail Transportation Inc. v. Steelworkers, Local 7065-75, the arbitrator, Bruno Leclerc, and the Superior Court of Quebec challenged a well-established principle in labor relations, which is that an employer retains managerial rights in the absence of limiting provisions in the collective agreement.

In this case, the arbitrator and Superior Court found that the employer had violated the collective agreement although the agreement did not contain a limitation to the employer’s managerial rights in regard to the contested action. Rather, they found that the employer had violated the collective agreement because it did not contain a clear provision that allowed the employer to act as it did. Therefore, the question remains: What is happening to managerial rights, and what measures can employers take to protect these rights?

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Once bitten twice shy: Greater scrutiny ahead for employees misclassified as contractors

October 22, 2017 - by: Jackie VanDerMeulen 0 COMMENTS

by Jackie VanDerMeulen

Organizations’ use of independent contractors (often also referred to as consultants) as opposed to actual employees has grown significantly over the years. This trend comes as no surprise in a changing economy where particular skill sets are required at specific times and where flexibility is a key driver of success. In some cases, the characterization of a relationship as one of independent contractor is driven by requests from workers themselves, often to take advantage of certain tax benefits.

There are lots of great reasons to use independent contractors as part of a workforce. Increasingly however, adjudicators, plaintiff lawyers, and legislators are challenging employers who “misclassify” workers as independent contractors. A finding that a worker (or group of workers) has been misclassified can result in significant liability for an organization. Employers may therefore want to think twice before using independent contractors.

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Recent B.C. decision on secondary picketing at non-striking facility

October 15, 2017 - by: David McDonald 0 COMMENTS

by David T. McDonald

About 15 years ago, the Supreme Court of Canada changed the law on secondary picketing in Canada. That decision, RWDSU Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8, ruled that secondary picketing was generally lawful unless accompanied by wrongful conduct such as violence or blockading. This meant that union members and striking employees could picket businesses that were not part of a labor dispute in an effort to put pressure on the struck employer.

The Pepsi-Cola decision left it open for governments to enact laws that restrict the ability to picket places other than the struck location. The laws vary across Canada. The British Columbia Labour Relations Code is an example of a law that prohibits secondary picketing.

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Justice system failed the victims of Radiohead stage collapse

October 08, 2017 - by: Norm Keith 1 COMMENTS

by Norm Keith

On September 5, 2017, Justice Nelson of the Ontario Court of Justice stayed all charges against the accused in the deadly stage collapse at the Radiohead concert in Downsview Park on June 16, 2012. These charges under the Occupational Health & Safety Act (OHSA) are the latest in a series of serious regulatory and criminal charges across Canada that have been stayed for unreasonable delay as a result of the Jordan decision of the Supreme Court of Canada.

Radiohead, a British band, was scheduled to perform at a concert in Toronto at Downsview Park. A number of hours before the start of the concert, the stage superstructure collapsed. Scott Johnson, a drum technician was fatally injured. Others were seriously injured.

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