Remote Control: U.S. Employees Based in Canada

October 26, 2009 - by: Northern Exposure 0 COMMENTS

By Stephen Acker and Julia Kennedy

Gone are the days when a white-collar job always meant going into the office and occupying a cubicle from 9 to 5. New information technology and network capabilities have made the home office and telecommuting, if not commonplace, at least attainable for many. Employers have realized that they can have access to skilled employees from anywhere on the continent without the headaches of relocation or satisfying immigration laws. While the benefits of remote employment arrangements may be debatable, access to a rare skill set will often outweigh employers’ concerns about supervision.

And so we are in the age of the remote employee.

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Workers’ Comp Throws Its ‘Employer’ Nets Wide

October 19, 2009 - by: Norman K. Trerise 1 COMMENTS

A British Columbia Court of Appeal decision has worrisome implications for companies that control elements of the operations of subcontractors or franchisees. Although it was about a franchise situation in B.C., it could have repercussions in other provinces and other business relationships.

What happened
In 2005, there was a robbery of a Petro-Canada service station. The robber got behind the counter and held a worker at knife point. A small swinging door was his only barrier to entry, and he kicked it down.

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Keays vs. Honda One Year Later: Have Canadian Courts Changed Their Approach to Punitive and Bad Faith Damages?

October 12, 2009 - by: Karen Sargeant 0 COMMENTS

It has been just over a year since the Supreme Court of Canada (SCC) issued its decision in Keays v. Honda Canada Inc. (Read our analysis of the court’s decision in that case). That decision mandated a change in Canadian courts’ approach to awarding damages in employment cases. Damages for bad faith conduct by the employer (Wallace damages) and punitive damages were to be awarded only in exceptional circumstances.

So just what have Canadian courts been doing since? Has their approach to such damages really changed? A review of the decisions in the past year suggests they have.

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Extreme Benefits Makeover: Employee Time Off for Cosmetic Surgery

October 05, 2009 - by: Sara Parchello 3 COMMENTS

Should employees receive benefits coverage for time off due to cosmetic surgery? At least two Canadian labor arbitrators think so.

In the most recent decision on point, North Bay General Hospital v. Ontario Nurses’ Assn. [2009] OLAA No. 47, 181 LAC (4th) 179 (Stephens), an employee was awarded sick pay coverage for time off while she recovered from cosmetic skin removal surgery.

The employee, a nurse, was left with excess and baggy skin after she lost a “considerable amount of weight.” In order to get rid of the excess skin, the employee decided that she would have it removed.

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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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