Forced Landing of Air Canada Pilots over the Age of 60

September 15, 2011 - by: Northern Exposure 0 COMMENTS

By Lyne Duhaime and Emilie Paquin-Holmested

On February 3, 2011, the Federal Court of Canada issued a decision in Vilven v. Air Canada, the prolonged legal battle of two Air Canada pilots who challenged the company’s mandatory retirement policy for pilots who reach the age of 60.

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Adding Insult to Injury: Canada’s ‘Vexatious’ Harassment Laws

September 11, 2011 - by: Northern Exposure 0 COMMENTS

By Julia Kennedy and Sean McGurran

Bullying isn’t just a problem on the playground anymore. Eventually the bullies grow up and get jobs. Now Canadian employers are seeing more laws dealing with harassment in the workplace.

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Employees, Public Criticism, and the Media

September 04, 2011 - by: Jean-Francois Cloutier 0 COMMENTS

by Jean-Fran├žois Cloutier

Your employee makes critical comments to the press about your company. Is he a legitimate whistleblower or has he violated his duty of loyalty to his employer? In Chopra et al. v. Treasury Board (Department of Health), an adjudicator at the Public Service Labour Relations Board recently considered just that. He considered whether three scientists at Health Canada (the “grievors”) breached their duty of loyalty to their employer when they criticized the government in the media. For the reasons outlined below, he determined that the grievors were not legitimate whistleblowers and instead breached their duty of loyalty to their government employer.

Facts
The three scientists worked as drug evaluators for Health Canada’s Veterinary Drugs Directorate. Over a period of several years, they publicly criticized Health Canada and the Canadian government in television and radio interviews, at press conferences, and through open letters to various organizations. They made allegations of corruption, cover-ups, and incompetence in the veterinary drug approval process. They also alleged that Health Canada scientists were pressured to approve drugs by high-level figures in the Privy Council Office and the Prime Minister’s Office. They further claimed that when they stood up to these pressures, they were harassed at work.

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Definition of ‘Employer’ Narrowed in Human Rights Context

August 28, 2011 - by: Kyla Stott-Jess 0 COMMENTS

By Kyla Stott-Jess

Your employee is required to pass a drug test before being assigned to another company’s worksite. The employee fails the other company’s drug test and is denied the work. The employee can clearly file a human rights complaint against you as his or her employer. But can he or she go after the other company? The Alberta Court of Appeal has recently said no.

Background
Donald Luka was an electrician employed by Lockerbie & Hole. In 2004, Lockerbie decided to transfer him to a major construction project on a Syncrude-owned site in Fort McMurray, Alberta. Syncrude’s safety policy required workers to pass a drug test before they could be admitted to the site.

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No Separate Duty of Fair Treatment in Accommodation in British Columbia

August 21, 2011 - by: David Wong 0 COMMENTS

By David G. Wong

The British Columbia (BC) Supreme Court, in Emergency Health Services Commission v. Cassidy, has recently confirmed that a BC employer’s duty to accommodate doesn’t extend to including a freestanding procedural requirement that the employer treat the employee fairly, and with due respect for his dignity, throughout the accommodation process.

Facts
At issue in that case was the treatment of a paramedic with multiple sclerosis. As a result of diminished sensation in his hands, he wasn’t able to palpate pulses, a basic but necessary part of his job. Upon learning of the employee’s inability, the employer immediately removed him from active duty. After a number of months, the employee was eventually permitted to return to work as a driver only, at first on a restricted schedule and then on a regular schedule.

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Ex Gratia Payments in Pension Plan Allowed

August 14, 2011 - by: Lyne Duhaime 0 COMMENTS

By Lyne Duhaime

On June 21, 2011, in Canadian Jewish Congress v. Polger, the Court of Appeal of Quebec overturned a decision of the Superior Court that had ordered an employer to pay millions of dollars in pension benefits based only on an alleged practice and without proper written documentation to that effect. The pension benefits in this case were deemed to be ex gratia payments only, not required to be paid to all departing employees by virtue of policy or practice.

Facts
Leona Polger and Abraham Smajovits had worked for the Canadian Jewish Congress for 36 and 22 years respectively when they were dismissed following a reorganization. Not surprisingly, they sued for termination pay. They included in their action a claim for supplemental pension benefits that they said weren’t provided in their defined contribution pension plan.

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More Protections for Disabled Employees Coming

August 08, 2011 - by: Northern Exposure 0 COMMENTS

By Alix Herber and Michelle Johnston

The Ontario government is leading the Canadian provinces in its push for accessibility for people with disabilities, a ratio that is estimated to rise to one in five people in Canada by 2025.

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Canadian Court OKs Random Alcohol Testing

July 31, 2011 - by: Nicola Sutton 0 COMMENTS

by Nicola Sutton

The recent decision of Limited v. Communications, Energy and Paperworkers Union of Canada, Local 30 by the New Brunswick Court of Appeal has upheld random alcohol testing where the workplace is determined to be “inherently dangerous” and the method of testing is minimally intrusive.

This is an important case for employers seeking to ensure the safety of their workplaces in Canada. Drug and alcohol testing in Canada is legally more restricted than it is in the United States.

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Declaration to ‘Make Employee Whole’ Very Costly for Employers

July 24, 2011 - by: Karen Sargeant 0 COMMENTS

By Karen Sargeant

You give your employee almost 32 weeks’ pay after terminating his employment without cause. He gets another job two weeks later. You’re off the hook, right? Maybe not.

The Ontario Superior Court of Justice in Brito v. Canac Kitchens, a Division of Kohler Canada Co. has recently said no. Instead, you may be required to “make the employee whole” in every respect, not just salary. That could mean disability benefits too, even after he starts his other job.

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Canadian Court Broadly Defines ‘Constructor’ in Safety Case

July 17, 2011 - by: Rosalind Cooper 0 COMMENTS

By Rosalind Cooper

Which party on a construction project is the “constructor”? While some provinces in Canada use this term, other provinces use slightly different terms, such as prime contractor. All are meant to refer to the party at the workplace that has overall responsibility for health and safety on the construction project. It’s generally that party that’s exposed to the greatest legal liability in terms of safety-related incidents.

“Constructor” obligations

For example, under the Ontario Occupational Health and Safety Act (OHSA), constructors have significant obligations. They must ensure that all employers and workers on the project comply with OHSA and the Construction Regulations. The case law has confirmed that constructors will be held to a high standard in meeting those obligations. Therefore many companies go to great lengths to avoid assuming this role on a project.

An Ontario court has recently provided some further guidance on what indicators will be looked at in determining who is a constructor. In the case of R. v. Reid & DeLeye Contractors Ltd., a company was found to be a “constructor,” rather than the construction manager it had contracted to be.

Background

In June of 2005, Reid & DeLeye contracted with a hotel owner to construct a new hotel in Cambridge, Ontario. Reid & DeLeye intended to be the construction manager. The company was responsible for carrying out specific roles during the pre-construction, construction, and post-construction phases of the project.

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