Accommodation of Family Status on Same Footing as Other Human Rights

November 01, 2010 - by: Northern Exposure 0 COMMENTS

by Ralph Nero and Ida Martin

Do parents of young children have the right to refuse a geographic transfer? In the case of three employees at the Canadian National Railway (CNR), the Canadian Human Rights Tribunal (CHRT) has recently answered “yes.”

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Overtime Class-Action News

October 25, 2010 - by: Donna Gallant 0 COMMENTS

By Donna Gallant

The much-awaited appeal decision in Fresco v. CIBC was released in September. The appeal court declined to interfere with the original decision of Justice Lax. She had denied Dara Fresco’s bid to bring a class action against CIBC for unpaid overtime.

This is one of three high-profile cases we have been following, in which employees are seeking to bring class actions for millions of dollars in unpaid overtime. In any class action the one bringing the suit must show that there are common issues, the resolution of which will advance the litigation for everyone. It has become clear that the “common issues challenge” is very much alive when it comes to overtime claims.

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Accommodating disabled workers–undue hardship in hard times?

October 25, 2010 - by: Chuck Harrison 0 COMMENTS

by Chuck Harrison

When a warehouse worker was injured in a car accident in 2008, his employer did the right thing: Maersk Distribution accommodated his graduated return to work and provided him with light duties.

Maersk stepped up again when the employee’s shoulder injury was further aggravated. But when the economy took a turn for the worse, Maersk laid him off because of his disability. A labor arbitrator has now found that the employer’s human rights “duty to accommodate” substantially changed when its business was sideswiped by the crashing economy.

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End of the Canada-wide Information Technology Program

October 18, 2010 - by: Northern Exposure 0 COMMENTS

By Susan Bradley and Gilda Villaran

In November 2009, we started a discussion on the fundamentals of Canadian work permits. Until now, Canadian employers didn’t have to obtain a Labour Market Opinion (LMO) from Services Canada for certain information technology (IT) professionals. Employers didn’t have to prove that they had advertised the position, that they had conducted reasonable recruitment efforts and that none of the local candidates, if any, were qualified to fill the IT position.

Beginning in 1997, it was assumed that there was a shortage of IT professionals in Canada. This assumption and the exception to the LMO requirement are no longer. Effective September 30, 2010, foreign IT specialists generally require an approved LMO from Services Canada before a work permit will be issued.

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Canada’s Top Court to Decide If Human Rights Tribunal Can Award Legal Costs

October 11, 2010 - by: Ida Martin 0 COMMENTS

By Ida Martin

This December, the Supreme Court of Canada is set to hear a case involving the issue of whether the Canadian Human Rights Tribunal has the authority to grant legal costs to a successful complainant. In an area of law where legal costs often dwarf the actual amount of any award, the Supreme Court of Canada decision could have major ramifications for human rights litigation across Canada.

Audio Conference: Operating in Canada: New Dos and Don’ts for Employers

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Blowing Holes in Collective Agreements

October 04, 2010 - by: Northern Exposure 0 COMMENTS

by Emilie Paquin-Holmested and Dominique Monet

The Supreme Court of Canada, in Québec (Procureur général) c. Syndicat de la fonction publique, recently struck down a clause in a collective agreement. The clause in question prevented certain employees from challenging discipline through grievance arbitration. The Court declared the clause void because it contravened a statutory minimum standard.

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Tippling in the Barrel of Untruth: How Not to Handle a Termination

September 27, 2010 - by: Northern Exposure 0 COMMENTS

By Stephen Acker and Joel Henderson

Four years ago in Ottawa, the Federal Canadian Government nipped a nascent spending scandal in the bud when it fired two employees of the Canadian Department of Public Works, Douglas Tipple and David Rotor. Tipple successfully grieved his termination before the Public Service Labour Relations Board, winning the largest individual damage award in Canadian labor arbitration history this past July — $1.3 million. While Tipple waits for the ordeal to be over (the government has appealed the decision), employers can take stock of the immediate fallout.

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Foreign Employee Working at Canadian Affiliate Entitled to Large Severance

September 20, 2010 - by: Northern Exposure 0 COMMENTS

By Bruce Grist and Derek Knoechel

The transfer of employees from foreign-based companies to Canadian-based affiliates is an increasingly common feature of the Canadian labor market. Many employers are familiar with the often complicated process of obtaining the necessary work permits for such employees at the beginning of the transfer. However, ending the relationship between the transferred employee and the Canadian-based employer can present its own challenges. Some of these challenges are illustrated by the British Columbia Supreme Court’s recent decision in Nishina v. Azuma Foods (Canada) Co., Ltd.

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Terminating Long-Absent Employees: ‘Frustration’ Isn’t Just a Legal Term

September 13, 2010 - by: Northern Exposure 0 COMMENTS

By Gulu Punia and Kyla Stott-Jess

When an employee is absent because of long-term disability, employers naturally wonder how long they must wait before the employment contract has been “frustrated.” If it has, the employment contract can be terminated. According to the recent Ontario decision of Naccarato v. Costco Wholesale Canada Ltd., however, the question isn’t “how long” but rather “what is the prognosis?”

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$300 Million Overtime Class Action Against CN Rail Gets Green Light

September 06, 2010 - by: Donna Gallant 0 COMMENTS

By Donna Gallant

Michael McCracken’s claim against Canadian National Railway (CN) recently got the go-ahead to proceed as a class action. The third in a trilogy of high profile overtime cases in Canada, McCracken v. Canadian National Railway Company brings the score to 2 to 1 for certification of the class action — at least in the first round. Appeals are in progress. So stay tuned.

All three cases involve federally regulated employers. The basic issue is entitlement to overtime pay under the Canada Labour Code (the Code). Fresco v. Canadian Imperial Bank of Commerce and Fulawka v. The Bank of Nova Scotia are “off the clock” cases — claims by non-managerial employees for unpaid overtime work. These were discussed in an earlier article in this newsletter.

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