New Year’s Resolutions for Canadian Employers

January 01, 2012 - by: Brian Smeenk 0 COMMENTS

By Brian P. Smeenk

As we all contemplate our personal goals for next year (have you, too, promised yourself to work out more?), what resolutions should you make for your business in Canada?

Your CFO might urge the normal resolutions of cutting back on consumption or reducing your size. But maybe there are some more refined goals we can think about, gleaned from recent employment law developments such as those discussed in Northern Exposure. Here are some ideas: read more…

Categories: Commentary

Labor Arbitrators Have More Scope than Courts, Supreme Court Says

December 25, 2011 - by: Brian Smeenk 0 COMMENTS

By Brian P. Smeenk

Canadian labor arbitrators are not legally bound to court-made legal rules. Rules of evidence, for example, are more relaxed. Rules of contract interpretation may also vary. But just how far arbitrators can deviate from general rules of law has been an open question.

A recent decision by the Supreme Court of Canada took a fresh look at this issue. It confirmed that labor arbitrators will be given lots of leeway by the courts.

read more…

Supreme Court Clamps Down on ‘Second Kicks at the Can’ in B.C. Human Rights Claims

December 18, 2011 - by: Northern Exposure 0 COMMENTS

By Clayton Jones and Derek Knoechel

A growing frustration for Canadian employers is the need to defend against human rights claims arising out of the same factual circumstances in multiple forums. Discrimination claims that are presumptively dealt with by a labor arbitrator can resurface as virtually identical claims before a human rights tribunal.

While most human rights tribunals have the discretion to dismiss such claims as a result of the prior proceeding, it historically has been difficult to predict whether such discretion actually would be exercised.

read more…

Categories: Human Rights

Renewal of Temporary Work Permits: Employers Beware!

December 11, 2011 - by: Isabelle Dongier 3 COMMENTS

By Isabelle Dongier

Canadian employers must always ensure that their foreign employees are duly authorized to work in the country and remain so authorized during the complete period of their stay. To do so, employers can renew their employees’ work permits. But beware — these renewals are fraught with delays and technicalities. The following outlines just how diligent employers must be to ensure work permits are renewed appropriately.

Golden Rule: Initiate work permit renewal process well in advance
Temporary work permits have an expiration date and the explicit condition that their holder must leave the country by then. Should employment continue beyond the expiration date, a new work permit must be obtained. Many people think that an overstay of only a few days or weeks will not be an issue. But, Immigration Canada takes this rule very seriously and imposes significant penalties on noncompliant workers and their employers. Although a remedial “reinstatement” procedure may be available for 90 days, it remains discretionary and cumbersome. It is therefore important to make sure that all necessary steps to obtain a new work permit are taken well in advance, in light of the current lengthy government processing times.

read more…

Categories: Immigration

Supreme Court Decides Legal Costs in Canadian Human Rights Tribunal Case

December 04, 2011 - by: Hadiya Roderique 0 COMMENTS

By Hadiya Roderique

The Supreme Court of Canada recently considered whether the Canadian Human Rights Tribunal has the authority to award legal costs to a successful complainant. As we noted in an earlier bulletin, this case could have major ramifications in human rights litigation across Canada.


Donna Mowat brought a human rights complaint against her employer, the Canadian Forces, for discrimination on the grounds of sex. Mowat claimed compensation of $430,685 but ultimately was awarded only $4,000 plus interest.

The more interesting part of the decision, however, was the Tribunal’s response to Mowat’s request for legal costs in the amount of $196,313. The Tribunal awarded her $47,000 plus interest for legal costs – more than 10 times the $4,000 damages award!

read more…

Categories: Employment Law

When Hiring Means Firing

November 28, 2011 - by: Northern Exposure 0 COMMENTS

By Marisa Victor and Yael Wexler

An employment contract can provide certainty and protection for both the employer and employee. But what happens when it comes time to renew it? A recent Ontario case shows what can go wrong when an employer offers an existing employee a revised contract in order to address performance or other employment problems.

read more…

Categories: Termination

Expansive Interpretations of Occupational Health and Safety Laws Changing

November 20, 2011 - by: Rosalind Cooper 0 COMMENTS

By Rosalind Cooper

Recently, courts across Canada seem to be expanding the application and coverage of occupational health and safety legislation, providing broad and liberal interpretations of legislation. But that may be changing. The decision in Ontario (Ministry of Labour) v. Sheehan’s Truck Centre Inc. is being welcomed by many as an indication that the protective purpose of the regulatory scheme cannot override the actual words used in the legislation.

Employee run over
A company that owned and operated a highway tractor-truck sales business offered units for sale in its parking lot. While the company was expanding the parking lot, four employees were directed to move a number of the trucks in the parking lot from one area to another. The movement was required to facilitate paving work relating to the expansion.

read more…

Workers’ Compensation Mental Stress Claims May Be Expanded

November 13, 2011 - by: Bill Duvall 0 COMMENTS

By Bill Duvall

Employers in Canada have taken comfort from the fact that most provincial workers’ compensation agencies provide benefits for workplace mental stress only in very limited circumstances. But that comfort may be threatened, at least in British Columbia. Earlier this month, the B.C. government introduced legislation that, if passed, will expand workers’ compensation coverage for mental stress claims.

Current experience
As it stands now, a worker in B.C. is entitled to compensation for mental stress not resulting from an injury for which the worker would otherwise be entitled to compensation only if the mental stress is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of the worker’s employment. In addition, the condition: read more…

Categories: Workers' Compensation

Sports Agency and Former Employee Take (non) Competition into Courtroom

November 06, 2011 - by: Kyla Stott-Jess 0 COMMENTS

By Kyla Stott-Jess

Hollywood’s portrayal of sports agencies presents a world that is dramatic and cut-throat, with ambitious sports agents competing for the chance to represent talented athletes. A recent court decision in Alberta brought this competitive business into the courtroom when a sports agency squared off against a former employee. It also provides several important lessons of broad application to many employers operating in Canada.


Richard Evans switched from the practice of law into sports agency in 2000, and he signed an employment contract with The Sports Corporation (TSC). He was put in charge of TSC’s “Czech-Slovak pipeline.” That was a network of contacts through which TSC recruited Czech and Slovakian hockey players. Evans became the primary TSC contact with these Czech and Slovak recruiters.

By the spring of 2006, relations between Evans and TSC had disintegrated. As the end of his six-year contract approached, Evans decided to split from TSC. He started his own sports agency. But TSC asked him to leave before the end of the contract. Several of the Eastern European contacts transferred their relationships from TSC to Evans’ new company.

read more…

Post-Termination Disability Benefits Reduce Severance Pay

October 26, 2011 - by: Hadiya Roderique 1 COMMENTS

By Hadiya Roderique

Severance obligations can be costly for Canadian employers since most employees are entitled to notice of termination or substantial pay in lieu of notice. A tricky issue is the impact of post-termination income on the obligations of the terminating employer.

Canadian employees are often under the mistaken impression that they have an unconditional entitlement to a large lump-sum severance payment even if they were to quickly start a new job and even if they receive other income during the notice period.

read more…

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