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.

Background
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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Decisionmaking in Employer Pension Plans

June 05, 2011 - by: Northern Exposure 0 COMMENTS

By Lyne Duhaime and Ross Gascho

If your company is both the sponsor and administrator of a pension plan in a Canadian province other than Quebec, you should take note of the recent Ontario Court of Appeal decision in Re Indalex.

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Employee Can’t Invade Privacy of Another Employee

May 29, 2011 - by: Northern Exposure 0 COMMENTS

By Ian Campbell and Justine Connelly

The evolution of privacy rights in the Canadian workplace continues. In recent months we have updated you on court and labor arbitration decisions that have commented on employee privacy rights. An individual employee tried to take her rights one step further when she sued another employee for invasion of her privacy rights.

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Keeping Permanent Resident Status in Canada

May 23, 2011 - by: Gilda Villaran 1 COMMENTS

By Gilda Villaran

In our December 20, 2010, article, we discussed the ways to become a permanent resident of Canada. In this article we will briefly explain how to keep this status.

In contrast with Canadian citizenship, which in principle lasts for life, permanent resident status can be lost if the person doesn’t meet the residency requirements established by Canadian law. The requirements aim at ensuring that immigrants make Canada their home. Policymakers have drafted the rules in order to avoid people obtaining permanent resident (PR) status as a matter of convenience without making a commitment to a life in Canada.

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Can Workplace Surveillance Tapes Be Used as Evidence in Canada?

May 23, 2011 - by: Lorene Novakowski 0 COMMENTS

By Lorene A. Novakowski

Another recent Canadian case dealing with collection of personal information about employees, this time through surveillance, emphasizes the importance of good employment policy language for Canadian employers. In Toronto Catholic School Board v. Canadian Union of Public Employees, Local 1280, [2011] O.L.A.A. No. 180, the question was whether surveillance tape evidence was admissible in an arbitration hearing.

In a previous article, we told you about the court decision in R. v. Cole. It was about whether inappropriate images on an employee’s workplace computer could properly be seized. One of the takeaways was that organizations should have clear policy language for employees.

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Protecting Yourself from Canadian Labor Arbitrators’ Expanding Powers

May 16, 2011 - by: Brian Smeenk 0 COMMENTS

By Brian P. Smeenk

How can you protect yourself from arbitrators’ ever-increasing damages awards, based on ever-expanding grounds?

In the April 25 Northern Exposure entry “Canadian Court Trims $500K Dismissal Damages, Upholds Arbitrator’s Broad Authority,” we reported on the latest notable example of a Canadian labor arbitrator’s expansive award being upheld by the courts. That decision surprisingly granted a lower-level Greater Toronto Airport Authority employee $500,000+ for past and future wages, plus damages for mental distress, pain and suffering, and punitive damages. In upholding most of the award, the court clarified the broad remedial authority of labor arbitrators. But it confirmed most of the arbitrator’s powers, at least under that agreement.

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Categories: Arbitration

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Love Lost: Canadian Court Refuses to Defer Buyback of Terminated Employee’s Shares

May 09, 2011 - by: Maria Giagilitsis 0 COMMENTS

By Maria Giagilitsis

Ontario’s highest court recently ruled that an employer’s right to buy back a senior executive’s shares was triggered on his termination date — not the end of the reasonable notice period. Paul R. Love had argued for the later date. His shares had substantially increased in value during the notice period. Love lost.

Facts
As of the termination date, Love had worked for Acuity Investments for only two and a half years. He had accepted the position primarily because he was offered an ownership stake.

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Quebec Employer Not Entitled to Review Employee’s Email to Union

May 02, 2011 - by: Antoine Aylwin 0 COMMENTS

By Antoine Aylwin

A month ago, we reported on the Ontario Court of Appeal’s surprising decision in R. v. Cole.  In that decision the Court of Appeal said that a high school teacher was protected against searches on his work computer by the police absent a search warrant. The Court of Appeal based its decision on the Canadian Charter of Rights and Freedoms. Recently, an arbitrator in Quebec also considered an employee’s Charter rights, this time the Quebec Charter of Human Rights and Freedoms. It said that Laval University violated an employee’s Quebec Charter of Human Rights and Freedoms when it reviewed an email sent by the employee — on the university’s systems — to the union.

Facts
At issue was a brief exchange of emails on January 16, 2007: read more…

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