You are quietly sipping your coffee one Saturday morning and flipping through the newspaper. You suddenly stumble upon an article about one of your Canadian employees. He or she has been accused of committing a criminal offense outside the workplace but has not yet been convicted.
In a decision released earlier this week, the highest court in Canada’s most populous province, Ontario, issued a surprising ruling on workplace privacy law. The case involved criminal charges against a teacher accused of possession of child pornography.
Human rights claims are an increasingly common occurrence for Canadian employers. Employees or former employees can initiate these claims at little or no cost in most Canadian jurisdictions (the various provinces, territories, or the federal sphere).
An employer must defend human rights claims to avoid an award of damages or other orders. That can be costly. And in most cases, an unsuccessful employee isn’t responsible for paying any of the defense costs.
Employment standards acts (ESAs) across Canada impose certain personal liabilities on directors or officers regarding unpaid wages of a company. The potential amounts and the circumstances in which such personal liability may arise vary from one jurisdiction to another.
In British Columbia (BC), the ESA imposes liability on directors or officers for up to two months of unpaid wages for each affected employee. However, a recent BC Employment Standards Tribunal (EST) decision indicates that officers and directors of unionized employers may have a sound defense against liability for awards issued against their corporation.
Foreign workers can be an important source of labor for Canadian employers, permitting them to fill shortages in a variety of professions and industries. In an attempt to better protect vulnerable foreign workers from what the government has called unscrupulous employers and agents, the Canadian government will introduce a new regime for Canadian temporary work permits on April 1.
The new regime has been described as one where “good employers replace bad employers.” It will govern employers hiring temporary foreign workers in Canada — both future applications and renewals of current work permits.
It’s amazing the issues that pop up in front of human rights tribunals across Canada. Recently, the Manitoba Human Rights Commission was asked whether it is discriminatory to fire an employee for shaving her head. On an equally interesting level, the Ontario Human Rights Tribunal was asked whether it is discriminatory to discipline an employee for microwaving food that created an odor unpleasant to other employees. Do either of these scenarios constitute a human rights violation? Not surprisingly, the answer is “it depends.”
But it was for a good cause
In the Manitoba case, a waitress shaved her head to support her uncle, who was battling cancer. After she showed up to work with the shaved head, her boss told her that her new look didn’t comply with the restaurant’s dress code. The employer also told her not to return to work.
For years employers across Canada have struggled with the difference between independent contractors and employees. Individuals believed to be independent contractors are often classified as employees after their relationship ends, leading to liability for employment-related severance and other amounts.
The courts, human rights tribunals, and other administrative tribunals are constantly grappling with this issue. Most recently, the Ontario Court of Appeal had to consider the decision in the context of whether independent contractor truck drivers were workers within the meaning of the Ontario Occupational Health and Safety Act (OHSA).
The common wisdom is that Canadian courts are much more willing to enforce nonsolicitation clauses in employment contracts than noncompetition clauses. While this may often be the case, nonsolicitation clauses will still be closely scrutinized by the courts.
It’s a common question. A Canadian employer is restructuring and an absent employee is affected. Can the employer fire the employee if he or she is on disability or other leave? A recent Federal Court of Canada decision, Tutty v. MTS Allstream Inc., has confirmed that the answer is “yes.”