Ex-Employee to Pay Employer

October 25, 2011 - by: Lyne Duhaime 0 COMMENTS

By Lyne Duhaime
When an employee in Canada fails to fulfill his functions as expected, the ultimate consequence is a termination of employment “for cause,” which implies that no notice or other severance is paid to him by the employer. The Superior Court of Quebec recently went further.

In Valeurs mobilières Desjardins inc. v. Beaulne, an investment advisor was also ordered to pay his former employer, Valeurs mobilières Desjardins inc. (VMD), $141,233.96 with costs. Why? To compensate VMD for amounts it had to pay a client who suffered damages because of the advisor’s failure to follow the client’s instructions.

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Notice of Termination: Must Be Clear, No Distinction for Unskilled Workers

October 16, 2011 - by: Northern Exposure 0 COMMENTS

By Ralph Nero and Keri Bennett

Historically, the character of employment or level of position has been an important factor in determining appropriate severance payments in Canada. Unskilled or lower-level employees have typically been entitled to less severance than more highly skilled and higher-level employees.

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Canadian Courts Split on Post-Employment Restrictions

October 09, 2011 - by: Thora Sigurdson 0 COMMENTS

by Thora A.Sigurdson

Canadian courts continue to struggle with clauses in employment contracts that contain post-employment noncompetition and nonsolicitation clauses, known as “restrictive covenants.” This is an important issue in Canada, where there is no concept of “at will” employment, and all employees are deemed to have some form of employment contact. But not all terms are equally enforceable.

The recent split decision of the Alberta Court of Appeal in Globex Foreign Exchange Corporation v. Kelcher, 2011 ABCA 240, provides an interesting reminder of the uncertainty in the law in this area. It also provides good lessons to those who want employees to agree to such restrictions.

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Good News on Maximum Length of Stay for Intra-company Transferees

October 02, 2011 - by: Gilda Villaran 0 COMMENTS

By Gilda Villaran

It’s common for companies to fill executive positions in Canada and the United States with one executive. That person is based in the United States and commutes to Canada on a regular basis to provide services to the Canadian affiliate.

Since such executives are providing services to a Canadian company, they can’t qualify as business visitors in Canada. Instead, they need a work permit. Although not difficult to obtain under the NAFTA exemption for intra-company transferees (citizens from other countries in the same situation can also obtain work permits under another non-NAFTA exemption), these work permits are time limited. But on September 19, 2011, Citizenship and Immigration Canada issued a new Operational Bulletin (OB 346) that allows employers to “recapture” the foreign workers’ time not spent in Canada.

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Categories: Immigration


Can Canadian Employers Fire Employees for Complaints about Management?

September 25, 2011 - by: Ian Campbell 0 COMMENTS

By Ian Campbell

There seems to have been an increase in cases where employees in Canada directly or publicly have challenged their supervisors or senior management. Maybe this is because of an increasing belief in their actual or perceived rights.

Of course employees have the right and should be encouraged to raise legitimate workplace concerns in appropriate circumstances. But recent decisions have confirmed that it’s not acceptable for employees to do so in a manner that is either disrespectful or unfairly undermines management’s integrity or reputation.

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Categories: Termination


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-François 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.

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.

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.

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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