SELI Canada Inc. entered into a joint venture with SNC Lavalin and successfully bid on a contract to build a large rapid transit project in the Vancouver area. The so-called “Canada Line” has been a “hot button” project, causing heated debate about the cost to taxpayers, the disruption to businesses and traffic, and the use of foreign workers.
Employers in Canada are beginning to use biometric scans to replace traditional lock-and-key or card-swipe systems. Sensors record fingerprint-like information, and computers transform the data into a mathematical formula, usually comprised of 0s and 1s.
The system then deletes the image, keeping only a template corresponding to 2 percent of the fingertip. It’s the formula, not the fingerprint-like image, that’s stored in the system’s computers.
Many employers are trying to reorganize operations in order to survive this economic downturn. As Canadian employers know, a substantial change in an employee’s job functions can lead an employee to make a claim for constructive dismissal. This can result in significant liabilities when you can least afford it. How far can a Canadian employer go to reorganize the workforce without triggering a claim for constructive dismissal?
What is constructive dismissal?
To recap, and as most readers are aware, a constructive dismissal results in a claim much like a wrongful dismissal claim:Â An employee argues that he or she was terminated, without proper reasons, from the job he or she had accepted. In constructive dismissal cases, Canadian courts have sought to protect employees and provide a remedy if an employer attempts to unilaterally change the employment relationship.
Figuring out an employee’s entitlements upon termination can be tricky in Canada. It can be an even trickier exercise for commissioned employees. For example, are employers required to pay employees commissions for deals that close after they are terminated? Unless the employment contract explicitly states otherwise, the answer is probably.
Employers have a choice when they decide to terminate an employee in Canada: They can provide “working notice” or they can pay termination pay in lieu of notice. If payment is made in lieu of notice, the general rule is that an employer must provide the terminated employee an amount at least equal to the wages the employee would have earned if that employee had worked during the notice period.
Morley Shafron sold his Vancouver-based insurance agency business in 1987 for $700,000 in cash and shares. He became a shareholder and director of the surviving company and agreed to provide management services. The agreement included a non-competition clause that would take effect if he left the company. The clause would prohibit him from engaging in the insurance brokerage business “within the metropolitan City of Vancouver” for a period of three years after departure.
The business changed hands three and a half years later. Morley signed another employment agreement with essentially the same non-competition clause, although he would be dropped from virtually all aspects of management. This agreement was renewed in 1993 and 1998, with the last agreement expiring December 31, 2000.
As Ontario employers reduce their workforces and potentially look to smaller numbers of remaining employees to take on increasing workloads, February is the time to review existing excess hours agreements and permits and overtime averaging agreements and permits.
Legislation requiring permits and agreements for hours in excess of 48 in a week and in circumstances in which an employer averages hours over two or more weeks became effective in March 2004. Averaging agreements and permits must be renewed every two years. Excess hours agreements are on three year cycles. Averaging permits issued in 2007 will be up for renewal this year, while excess hours permits issued in 2006 are due for renewal this year.
U.S. companies doing business in Canada often have to send some of their U.S. employees on business trips to Canada. When making arrangements for a trip to Canada, immigration requirements for admission into Canada are certainly not what the U.S. employer thinks about first. On the contrary, at the very last minute, if ever, the question is posed: “Do our employees need any documents in order to cross the border?” The response is yes, probably they do.
The first important question to be asked is the citizenship of the employee. If the employee is a citizen of a country for which Canada requires a visa and is not a green-card holder, it will be necessary to make an application for a temporary resident visa at a Canadian consulate in the United States. Note that U.S. citizens do not need a visa to enter Canada.
More exotic modes of transport may need to be explored as Ottawa, Canada’s capital city, struggles with relentless snow storms and a highly controversial bus strike. Unfortunately there is no end in sight as the OC Transpo transit strike enters its second month in mid-January. This transit strike demonstrates:
- the distinction between provincially and federally regulated industries in Canada; and
- that union militancy is alive and well in certain parts of the frozen north.
The United States is not the only country being hit by increasing unemployment rates — Canada is being hit, too. Although not as high as unemployment figures in the US, Canadian figures put unemployment at 6.6%. So where is Canada being hit the most? The following statistics from the Labour Force Survey show where.
- A net 34,000 jobs were lost in December, the result of a large drop in full-time work. A gain of 36,000 part-time jobs offset the loss of 71,000 full-time jobs. Understandably, most of the losses were in the private sector.Â In fact, the public sector gained jobs.
- December’s job losses arose largely from a drop in construction. That industry experienced one of the largest monthly losses in over 30 years — 44,000 jobs lost in December. Given that housing starts in November were at their lowest level in seven years, this is not surprising.
- Other industries hit hard were: business, culture, recreational services, agriculture, forestry, fishing, mining, oil and gas, trade, and manufacturing.
- Alberta was the hardest hit province, accounting for 16,000 of the lost jobs. This is particularly surprising given that only a year ago employers were giving huge signing bonuses just to get employees to come work for them. But it’s not surprising given the decline in oil and gas.
- Second behind Alberta in December was Quebec. But year over year, unemployment in Quebec was unchanged.
- Young people aged 15 to 24 and men aged 25 to 54 were the hardest hit by the declines in December.
- Those over 55 actually saw an employment increase. Perhaps these older workers are prepared to accept flexible work schedules and fewer benefits. But despite the employment increase, unemployment rose for these older workers, the result of an increase in the number of people over 55 looking for work.
In 1990, a 21-year-old woman was caught shoplifting. She then pleaded guilty to a charge of theft, receiving a conditional discharge. Some five years later, she applied for a position with the Montreal police force. So began a 13-year legal odyssey culminating in a Supreme Court of Canada decision (Montréal (City) v. Quebec (Commission des droits de la personne et des droits de la jeunesse, 2008 SCC 48) released in August of 2008.
As part of the background screening process, the Montreal police force became aware of the past guilty plea. It rejected her application on the basis that the guilty plea showed she did not possess the necessary “good moral character” required of police officers. The “good moral character” test was legitimate – it was a statutory requirement. The police force believed this test supported its rejection of the woman’s application.