More Amendments to Human Rights Legislation in Canada

September 28, 2009 - by: Northern Exposure 2 COMMENTS

by Katie Clayton and Farrah Sunderani

Over the past couple of years, human rights legislation across Canada has undergone a period of transition. This comes as a response to growing dissatisfaction with outdated statutes and the lengthy processes in place to resolve complaints.

Amendments to the British Columbia Human Rights Code were proposed in 2002 and set the stage for other provinces to follow suit. Modifications to Ontario’s Human Rights Code followed in 2008, and those changes closely mirrored those put in place in British Columbia. Now it seems that Alberta is next in line.

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What’s Reasonable Notice for Short Service Employees?

September 21, 2009 - by: Northern Exposure 0 COMMENTS

By Derek Knoechel and Lindsey Taylor

One of the principle features of Canadian employment law that strikes many U.S. employers as unique is the concept of an employee’s common law right to reasonable notice of termination when an employee is fired without cause.

Compliance with the minimum statutory requirements for notice, termination pay, and/or severance pay contained in employment standards legislation across the country generally isn’t sufficient to extinguish an employer’s obligations to provide reasonable notice. That’s because the courts have repeatedly held that minimum standards aren’t “reasonable.”

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Can Corporate Officers’ Duty of Loyalty Limit Their Right to Compete?

September 14, 2009 - by: Dominique Launay 0 COMMENTS

The Court of Appeal of Quebec recently overturned a decision of the Superior Court ordering former directors and officers to pay their ex-employer $3,185,148. The damages had been awarded for appropriating a business opportunity of the former employer and for having breached their obligations of loyalty and good faith under the Civil Code of Quebec. It was a business opportunity on which the employees had actively worked in the course of their employment with Enerchem Transport inc. (ETI).

The appeal court in Gravino v. Enerchem Transport Inc. confirms that, absent specific noncompete and nonsolicitation agreements, ex-directors or officers may, in certain circumstances, fulfill the duty of loyalty owed to their former company while still pursuing for themselves certain business projects that were started while engaged with the prior company.

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Occupational Health and Safety Law May Apply to Nonworkers

September 07, 2009 - by: Karen Sargeant 0 COMMENTS

A customer is hit by a car in your parking lot and is severely injured. You call 911 and a fire truck and ambulance arrive on the scene. A police officer also interviews all witnesses. This makes sense – the customer needs medical attention and the police have to investigate the incident. Surely your obligations stop there. You weren’t the customer’s employer so there’s nothing left to do.

A recent decision in Ontario – Blue Mountain Resorts Limited v. Ontario (Labour), 2009 CanLII 13609 (ON L.R.B.) – suggests that your obligations might not stop there. In fact, you might have to report the critical injury to the occupational health and safety authorities – even though the accident didn’t involve a worker. How can this be? Isn’t occupational health and safety law restricted to just that – occupational situations? The answer, at least for the time being in one Canadian province, is “no.”

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Arbitrator, Saskatchewan Court Give Jerk Employee a Perk, Not Work

August 31, 2009 - by: Brian Smeenk 0 COMMENTS

What should an arbitrator do when a fired employee is too bad to be reinstated, but dismissal was for one reason or another unjustified? Surprisingly, for Canadian arbitrators the answer seems increasingly to be: “Give ‘em a big payout.” They are increasingly awarding these unsalvageable employees bigger awards than good employees would get in a non-union context. And more than unionized employees would get when losing their job because of redundancy.

A Canadian court recently upheld just such an award – or should we say reward – to an employee who was too disliked and distrusted by all concerned to be put back to work. And the award was more than double what a nonunion employee would receive upon termination without cause.

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Employers Win Pension Plan Rights at Supreme Court of Canada

August 24, 2009 - by: Bill Duvall 0 COMMENTS

by Bill Duvall

At the best of times, employer-sponsored pension plans bring with them thorny administrative and legal problems.

These issues multiply in an economic environment in which many such pension plans face funding problems while employers seek to reduce their costs. Many employers have attempted pension plan amendments to reduce funding pressures. One such example is the creation of a defined contribution (DC) component out of an existing defined benefit (DB) plan. Similarly, employers have sought to reduce their pension plan administrative expenses wherever possible. Such employer actions are almost universally met by suspicion from plan members and are followed on occasion by litigation.

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Employee’s Blogging Justified Firing — But Dismissal Overturned Anyway

August 17, 2009 - by: Dominique Launay 0 COMMENTS

Social networking sites and blogs are growing phenomena that present challenges to employers. Internet blogging allows people to publicly express their opinions like never before. Sometimes the viewpoints expressed affect the employment relationship.

Canadian case law on this topic is just starting. There are only a few decisions where injurious blogging concerning workplace-related matters warranted discipline. Unlike many U.S. employers, Canadian employers cannot terminate employees at will. They must establish a “just cause” for dismissal. Unionized employers must follow the disciplinary procedure set out in the union agreement.

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Suing Departing Workers for Wages, Training Expenses

August 11, 2009 - by: Sara Parchello 0 COMMENTS

Recouping expenses, like training-related expenses, from departing employees can be tricky. As many employers are aware, contractual provisions that penalize a departing employee will generally not be enforced by the courts. In addition, if a contractual clause looks like it’s actually trying to restrain an employee from competing with similar businesses, courts are similarly unlikely to enforce them for being in restraint of trade.

Having said that, there are some situations where courts will allow an employer to recoup amounts from departing employees. In fact, in a recent case out of Ontario, Renaud v. Graham, the court affirmed a lower court’s decision that required an employee to reimburse his employer for training-related expenses (i.e., courses, materials, etc.) and for wages he received while he was training to be a real estate agent.

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Tactical Considerations for Reference Letters in Canada

August 04, 2009 - by: Derek Knoechel 0 COMMENTS

By Derek Knoechel

As the authors of the July 13, 2009, Northern Exposure article “Canadian Employers May Be Obligated to Provide References” indicate, a positive reference letter can be worth its weight in gold to an employee who has been fired.

But employers often don’t want to provide reference letters, and a reference letter can become a sticking point in negotiations between the employer and fired employee. In light of the potential exposure to bad-faith damages, employers must be careful not to cross the fine line from legitimate “hard bargaining” to “bad-faith conduct.”

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Group Terminations in Canada: What Employers Need to Know

July 27, 2009 - by: Northern Exposure 0 COMMENTS

by Katie Clayton and Farrah Sunderani

In today’s economy it’s become commonplace for employers to terminate large numbers of employees at one time. Depending on the number of employees being terminated, an employer may fall under federal or provincial group termination provisions designed to protect employees and the local economy from an influx of terminated individuals re-entering the workforce. As such, it’s important employers be aware of the obligations they are under in order to protect themselves against, at times, hefty consequences.

Federal legislation
Employers operating in federally regulated industries are subject to the Canada Labour Code, which contains specific requirements in the event of a group termination in Division IX, Part III and the associated regulations. These define a group termination as a termination of 50 or more employees in the same establishment within a four- week period. In such a case, the employer must provide the Minister of Labour with 16 weeks’ notice in writing of the pending terminations under Section 212. The notice of group terminations is separate and apart from the notice entitlement for each individual employee. The group termination notice itself must contain the following information: read more…

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