By Donovan Plomp
McCarthy Tetrault

In Canada, employees are entitled to certain government-provided benefits under the federal Employment Insurance Act, including “compassionate care benefits.”

The introduction of these benefits in January 2004 prompted almost all provinces and territories to introduce job-protected compassionate care leave in their respective minimum employment standards laws.

Employers in Canada must grant this leave in accordance with applicable provincial or federal law. In this Q&A, we provide answers to some of the more commonly asked questions about compassionate care leave and benefits.

Q. What are “compassionate care benefits”?

A. Money paid under the Employment Insurance Act to qualifying employees. Employees may qualify if absent from work to provide care or support to a gravely ill family member who is at risk of dying within 26 weeks. Unemployed persons receiving other employment insurance benefits can also ask for these types of benefits.

Q. When are compassionate care benefits available? read more…

by Daniel Pugen
McCarthy Tetrault

Ontario’s new Regulatory Modernization Act, 2007 may sound like a bland piece of regulatory updating, but it actually contains significant changes to regulatory enforcement processes, including those in the employment field.

Passed by the Ontario legislature on May 17, 2007, and going into effect on January 17, 2008, this law will have real consequences for companies operating in Ontario.

The new law significantly affects the scope of government workplace investigations. It also affects the penalties and sentences for noncompliant employers by broadening the powers of all of the Ontario government’s enforcement branches, including the Ministry of Labour.

Most importantly, the Act permits government departments, or “ministries,” to:

• Share information collected and observations and findings made in the course of their investigations;
• Consider an employer’s compliance record including previous convictions and penalties imposed under other legislation when determining appropriate sentences for legislative violations; and
• Make available to the public the information collected in the course of workplace investigations, including the employer’s compliance record. read more…

by Michael Ford
McCarthy Tetrault

A long-awaited ruling of the Alberta Court of Appeal clears up some questions related to preemployment drug and alcohol testing related to safety-sensitive positions.

The case – Chiasson v. Kellogg Brown & Root issued December 28, 2007 – involved an admitted casual user of marijuana being terminated from his employment after failing a preemployment drug and alcohol test.

Chiasson was hired by KBR on the condition that he pass a drug and alcohol test. After failing the test, he admitted smoking marijuana five days before he was tested. He was then fired.
read more…

By Karen Sargeant and Brian P. Smeenk

You’ve likely been in this situation before: One of your employees has engaged in questionable conduct. You’re in the process of investigating and are considering whether you should terminate the employee for cause. How do you go about it under Canadian employment laws?

Be careful

Terminating an employee’s employment for cause can be difficult and stressful for all concerned. It also can lead to increased damages and costs if you don’t do it right. That’s because Canadian courts will not award damages in lieu of notice of termination or severance pay when you have just cause for termination, but courts will often award increased damages when you make an allegation of misconduct that you can’t ultimately prove in court.

Here are some tips to help limit your company’s liability, while also reducing your stress: read more…

By Trevor Lawson and Donovan Plomp
McCarthy Tetrault

Although large employment-related class-action lawsuits have become commonplace in the United States, until recently they were virtually unknown in Canada.

The relative peace enjoyed by Canadian employers on this front was shattered with a $651 million class-action lawsuit filed in June 2007 against the Canadian Imperial Bank of Commerce (CIBC), followed quickly by a $20 million class-action against international finance and accounting giant KPMG LLP. And in early December, a $350 million-dollar suit was filed against a second major Canadian bank, Scotiabank.

These lawsuits seek damages for unpaid overtime in relation to thousands of current and former employees. If successful, they‘re expected to serve as a springboard for similar class-action lawsuits targeting large employers in Canada. read more…

by Daniel Pugen
McCarthy Tetrault

Biometric hand scanners vs. religious beliefs: What does the law say?

read more…

by Daniel Pugen
McCarthy Tetrault

Following its recent re-election in October, the Ontario provincial government led by Liberal Premier Dalton McGuinty established a new public holiday called “Family Day.” The holiday falls on the third Monday in February each year. Ontario joins the provinces of Alberta and Saskatchewan in creating a public holiday in February.

Ontario now has nine public holidays: read more…

by Daniel Pugen
McCarthy Tetrault

An increasingly difficult task for HR professionals is managing absences related to injury and illness. How far can you go to make an employee prove he or she is legitimately ill or legitimately able to return to work without restriction? The following are some tips to help your Canadian business manage an employee’s absence from work as well as his or her return to work.

Employee’s absence from work read more…

McCarthy Tetrault

Q. When does an employer have an employment contract with its employees?

A. Every employer in Canada has an employment contract, whether written or unwritten, with each of its nonunion employees. Sometimes, only some of the terms are in writing. When necessary, courts will imply reasonable terms in the absence of any express agreement on the issue. read more…

McCarthy Tetrault

Since the concept of at-will employment isn’t recognized in Canada, U.S. employers need to understand how terminations are handled in their operations north of the border. Are you confident that your termination decisions are in line with Canadian law? And what about the “enhanced” severance known as “Wallace damages”? Are you clear on that concept?

Here’s a key difference between United States and Canadian employment laws: In Canada, unless termination is for just cause, employees are entitled to notice or payment in lieu of that notice. Also, unless an employment agreement expressly provides otherwise, the courts may allow a terminated employee notice or payment of an amount that the court considers reasonable.

This “reasonable” notice or pay is based on the employee’s age, position, length of service, and the availability of alternative employment. Such notice is usually more than the statutory minimum. Plus, the courts can award extra notice or pay if the employee has been treated unfairly during termination. So it’s important that you understand what you’re up against when letting employees go. read more…