Canadian Decisions Blur Distinction between Employees and Independent Contractors

June 12, 2011 - by: Northern Exposure 0 COMMENTS

By Ralph Nero and Keri Bennett

Employers in Canada have typically understood employees and independent contractors to fall into distinct legal categories. However, recent court and labor board decisions indicate that the traditional definition of “employee” continues to expand.

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Decisionmaking in Employer Pension Plans

June 05, 2011 - by: Northern Exposure 0 COMMENTS

By Lyne Duhaime and Ross Gascho

If your company is both the sponsor and administrator of a pension plan in a Canadian province other than Quebec, you should take note of the recent Ontario Court of Appeal decision in Re Indalex.

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Employee Can’t Invade Privacy of Another Employee

May 29, 2011 - by: Northern Exposure 0 COMMENTS

By Ian Campbell and Justine Connelly

The evolution of privacy rights in the Canadian workplace continues. In recent months we have updated you on court and labor arbitration decisions that have commented on employee privacy rights. An individual employee tried to take her rights one step further when she sued another employee for invasion of her privacy rights.

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Keeping Permanent Resident Status in Canada

May 23, 2011 - by: Gilda Villaran 1 COMMENTS

By Gilda Villaran

In our December 20, 2010, article, we discussed the ways to become a permanent resident of Canada. In this article we will briefly explain how to keep this status.

In contrast with Canadian citizenship, which in principle lasts for life, permanent resident status can be lost if the person doesn’t meet the residency requirements established by Canadian law. The¬†requirements aim at ensuring that immigrants make Canada their home. Policymakers have drafted the rules in order to avoid people obtaining permanent resident (PR) status as a matter of convenience without making a commitment to a life in Canada.

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Can Workplace Surveillance Tapes Be Used as Evidence in Canada?

May 23, 2011 - by: Lorene Novakowski 0 COMMENTS

By Lorene A. Novakowski

Another recent Canadian case dealing with collection of personal information about employees, this time through surveillance, emphasizes the importance of good employment policy language for Canadian employers. In Toronto Catholic School Board v. Canadian Union of Public Employees, Local 1280, [2011] O.L.A.A. No. 180, the question was whether surveillance tape evidence was admissible in an arbitration hearing.

In a previous article, we told you about the court decision in R. v. Cole. It was about whether inappropriate images on an employee’s workplace computer could properly be seized. One of the takeaways was that organizations should have clear policy language for employees.

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Protecting Yourself from Canadian Labor Arbitrators’ Expanding Powers

May 16, 2011 - by: Brian Smeenk 0 COMMENTS

By Brian P. Smeenk

How can you protect yourself from arbitrators’ ever-increasing damages awards, based on ever-expanding grounds?

In the April 25 Northern Exposure entry “Canadian Court Trims $500K Dismissal Damages, Upholds Arbitrator’s Broad Authority,” we reported on the latest notable example of a Canadian labor arbitrator’s expansive award being upheld by the courts. That decision surprisingly granted a lower-level Greater Toronto Airport Authority employee $500,000+ for past and future wages, plus damages for mental distress, pain and suffering, and punitive damages. In upholding most of the award, the court clarified the broad remedial authority of labor arbitrators. But it confirmed most of the arbitrator’s powers, at least under that agreement.

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Categories: Arbitration

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Love Lost: Canadian Court Refuses to Defer Buyback of Terminated Employee’s Shares

May 09, 2011 - by: Maria Giagilitsis 0 COMMENTS

By Maria Giagilitsis

Ontario’s highest court recently ruled that an employer’s right to buy back a senior executive’s shares was triggered on his termination date — not the end of the reasonable notice period. Paul R. Love had argued for the later date. His shares had substantially increased in value during the notice period. Love lost.

Facts
As of the termination date, Love had worked for Acuity Investments for only two and a half years. He had accepted the position primarily because he was offered an ownership stake.

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Quebec Employer Not Entitled to Review Employee’s Email to Union

May 02, 2011 - by: Antoine Aylwin 0 COMMENTS

By Antoine Aylwin

A month ago, we reported on the Ontario Court of Appeal’s surprising decision in R. v. Cole.¬† In that decision the Court of Appeal said that a high school teacher was protected against searches on his work computer by the police absent a search warrant. The Court of Appeal based its decision on the Canadian Charter of Rights and Freedoms. Recently, an arbitrator in Quebec also considered an employee’s Charter rights, this time the Quebec Charter of Human Rights and Freedoms. It said that Laval University violated an employee’s Quebec Charter of Human Rights and Freedoms when it reviewed an email sent by the employee — on the university’s systems — to the union.

Facts
At issue was a brief exchange of emails on January 16, 2007: read more…

Canadian Court Trims $500K Dismissal Damages, Upholds Arbitrator’s Broad Authority

April 25, 2011 - by: Julia Kennedy 0 COMMENTS

by Julia Kennedy

A Canadian court recently upheld most of a more than $500,000 arbitration award involving a unionized employee of the Greater Toronto Airport Authority (GTAA). But it ordered the arbitrator to reconsider the mental distress and punitive damages awards. In doing so, the court clarified the broad remedial authority of arbitrators to award a range of damages. Arbitrators are clearly not limited to reinstatement and lost wages.

A year ago we alerted our readers to this precedent-setting arbitration award (Employee Awarded $500,000 for Bad Faith Termination and Shocking Arbitration Decision in Ontario). A wrongfully dismissed vehicle fleet coordinator was awarded eight years of wages for both past and future employment income losses, damages for mental distress, pain and suffering, and another $50,000 of punitive damages.

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Benefits for Older Employees: Can They Be Excluded?

April 18, 2011 - by: Lindsey Taylor 0 COMMENTS

By Lindsey Taylor

As we have discussed in previous editions, mandatory retirement across Canada is becoming a relic of the past. And employers are beginning to face the ripple effects. One of those ripple effects is benefits entitlement: Can Canadian employees over 65 be excluded from benefits? The answer isn’t clear. As a handful of recent arbitration cases suggest, the answer may depend on what you have negotiated with your union or employees.

Peace River School District
In British Columbia Government and Service Employees’ Union v. Peace River South School District No. 59, the arbitrator considered whether an employer could terminate its unionized employees’ health benefits at age 65 after mandatory retirement was abolished in British Columbia. Although the collective agreement said benefits would be provided to “all employees,” there was evidence that the parties’ originally negotiated terms of insurance coverage included termination at age 65. Thereafter, they agreed that there would be no change in these terms when they later agreed to change insurers.

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