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.

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.


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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Company Owner’s Sexting Costs Him and His Business

July 11, 2011 - by: Hadiya Roderique 0 COMMENTS

By Hadiya Roderique

Modern technology provides many new avenues for human rights violations. As recently learned by the owner of British Columbia-based Metro Aluminum Products, sending sexually-related text messages or photos electronically by mobile phones, also known as sexting, can get you into trouble.

Sexting is getting widespread attention in the media. It’s no longer just an issue amongst electronically exhibitionistic teenagers and Brett Favre — it’s now a common issue in workplaces across Canada.

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Customers Are Persons, Too: Pushing the Boundaries of Reportable Workplace Accidents

July 03, 2011 - by: Julia Kennedy 0 COMMENTS

By Julia Kennedy

Employers may now need to report all serious accidents that take place on their premises — even if no worker is involved or harmed.

Workplace health and safety laws have long been in force in all Canadian provinces to protect workers from hazardous situations and environments. These laws require employers to take measures to protect their employees from injury and to report injuries or deaths. Until recently, it was commonly understood that employers were not required to report incidents in which no worker was involved.

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Employer’s Obligation to Make Inquiries in the Duty to Accommodate Confirmed

June 26, 2011 - by: Mark Colavecchia 0 COMMENTS

By Mark Colavecchia

The duty to accommodate is one of the most difficult issues Canadian employers regularly face. While courts across the country have attempted to define the scope of an employer’s legal obligations with a workable degree of certainty, the practical application of the duty to accommodate remains complex and problematic.

The issue is further clouded by novel fact patterns – leading to different statements of employer obligations. The most recent of these statements comes from the British Columbia Court of Appeal in Boehringer Ingelheim (Canada) Ltd./Ltée. v. Kerr.

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Categories: Disabled Workers

Appeal Court Overrides Extravagant Jury Award in Wrongful Dismissal Case

June 19, 2011 - by: Kyla Stott-Jess 0 COMMENTS

By Kyla Stott-Jess

Canadian employers that fear large jury awards in wrongful dismissal cases can breathe a little easier in the wake of a recent Alberta Court of Appeal decision. In Elgert v. Home Hardware Stores Ltd., the court of appeal said a $500,000 jury award for aggravated and punitive damages in a wrongful dismissal case was too high, reducing it to $75,000.

In the spring of 2002 the Home Hardware Distribution Centre in Wetaskawin, Alberta, fired Daniel Elgert without notice. He had worked for Home Hardware 17 years and was a supervisor at the distribution center when two female coworkers made sexual harassment complaints against him. Following the complaints, Home Hardware immediately suspended Elgert and engaged in what the court of appeal described as a perfunctory investigation that presumed his guilt.

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Canadian Decisions Blur Distinction between Employees and Independent Contractors

June 12, 2011 - by: Northern Exposure 0 COMMENTS

By Ralph Nero and Keri Bennett

Employers in Canada have typically understood employees and independent contractors to fall into distinct legal categories. However, recent court and labor board decisions indicate that the traditional definition of “employee” continues to expand.

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