Supreme Court of Canada: Vague Non-Compete Clause is Useless

February 10, 2009 - by: Derek Knoechel 0 COMMENTS

by Derek Knoechel

Morley Shafron sold his Vancouver-based insurance agency business in 1987 for $700,000 in cash and shares. He became a shareholder and director of the surviving company and agreed to provide management services. The agreement included a non-competition clause that would take effect if he left the company. The clause would prohibit him from engaging in the insurance brokerage business “within the metropolitan City of Vancouver” for a period of three years after departure.

The business changed hands three and a half years later. Morley signed another employment agreement with essentially the same non-competition clause, although he would be dropped from virtually all aspects of management. This agreement was renewed in 1993 and 1998, with the last agreement expiring December 31, 2000.

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Do Your Excess Hours and Overtime Averaging Permits Need to Be Renewed?

February 10, 2009 - by: Martin Denyes 0 COMMENTS

by Martin Denyes

As Ontario employers reduce their workforces and potentially look to smaller numbers of remaining employees to take on increasing workloads, February is the time to review existing excess hours agreements and permits and overtime averaging agreements and permits.

Legislation requiring permits and agreements for hours in excess of 48 in a week and in circumstances in which an employer averages hours over two or more weeks became effective in March 2004. Averaging agreements and permits must be renewed every two years. Excess hours agreements are on three year cycles. Averaging permits issued in 2007 will be up for renewal this year, while excess hours permits issued in 2006 are due for renewal this year.

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Categories: Employment Law

Key Considerations for a Business Visit to Canada

February 03, 2009 - by: Gilda Villaran 0 COMMENTS

by Gilda Villaran

U.S. companies doing business in Canada often have to send some of their U.S. employees on business trips to Canada. When making arrangements for a trip to Canada, immigration requirements for admission into Canada are certainly not what the U.S. employer thinks about first. On the contrary, at the very last minute, if ever, the question is posed: “Do our employees need any documents in order to cross the border?” The response is yes, probably they do.

The first important question to be asked is the citizenship of the employee. If the employee is a citizen of a country for which Canada requires a visa and is not a green-card holder, it will be necessary to make an application for a temporary resident visa at a Canadian consulate in the United States. Note that U.S. citizens do not need a visa to enter Canada.

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Categories: Immigration

Time to Bring Out the Sled Dogs!

January 27, 2009 - by: Northern Exposure 0 COMMENTS

by Stephen Acker and Leanne Fioravanti

More exotic modes of transport may need to be explored as Ottawa, Canada’s capital city, struggles with relentless snow storms and a highly controversial bus strike. Unfortunately there is no end in sight as the OC Transpo transit strike enters its second month in mid-January. This transit strike demonstrates:

  1. the distinction between provincially and federally regulated industries in Canada; and
  2. that union militancy is alive and well in certain parts of the frozen north.

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Jobless Rate Rises in Canada, Too

January 20, 2009 - by: Karen Sargeant 0 COMMENTS

by Karen Sargeant

The United States is not the only country being hit by increasing unemployment rates — Canada is being hit, too. Although not as high as unemployment figures in the US, Canadian figures put unemployment at 6.6%. So where is Canada being hit the most? The following statistics from the Labour Force Survey show where.

  • A net 34,000 jobs were lost in December, the result of a large drop in full-time work. A gain of 36,000 part-time jobs offset the loss of 71,000 full-time jobs. Understandably, most of the losses were in the private sector.  In fact, the public sector gained jobs.
  • December’s job losses arose largely from a drop in construction. That industry experienced one of the largest monthly losses in over 30 years — 44,000 jobs lost in December. Given that housing starts in November were at their lowest level in seven years, this is not surprising.
  • Other industries hit hard were: business, culture, recreational services, agriculture, forestry, fishing, mining, oil and gas, trade, and manufacturing.
  • Alberta was the hardest hit province, accounting for 16,000 of the lost jobs. This is particularly surprising given that only a year ago employers were giving huge signing bonuses just to get employees to come work for them. But it’s not surprising given the decline in oil and gas.
  • Second behind Alberta in December was Quebec. But year over year, unemployment in Quebec was unchanged.
  • Young people aged 15 to 24 and men aged 25 to 54 were the hardest hit by the declines in December.
  • Those over 55 actually saw an employment increase. Perhaps these older workers are prepared to accept flexible work schedules and fewer benefits. But despite the employment increase, unemployment rose for these older workers, the result of an increase in the number of people over 55 looking for work.

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Categories: Economy

A ‘Routine’ Background Check in Canada? There’s No Such Thing

January 13, 2009 - by: Derek Knoechel 0 COMMENTS

by Derek Knoechel

In 1990, a 21-year-old woman was caught shoplifting. She then pleaded guilty to a charge of theft, receiving a conditional discharge. Some five years later, she applied for a position with the Montreal police force. So began a 13-year legal odyssey culminating in a Supreme Court of Canada decision (Montréal (City) v. Quebec (Commission des droits de la personne et des droits de la jeunesse, 2008 SCC 48) released in August of 2008.

As part of the background screening process, the Montreal police force became aware of the past guilty plea. It rejected her application on the basis that the guilty plea showed she did not possess the necessary “good moral character” required of police officers. The “good moral character” test was legitimate – it was a statutory requirement. The police force believed this test supported its rejection of the woman’s application.

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More Bad News for Wal-Mart in Canada

January 06, 2009 - by: Dominique Launay 0 COMMENTS

by Dominique Launay

Five weeks ago, we told you about an unfair labor practice complaint against Wal-Mart in Saskatchewan, arising out of its closure of a store in Jonquiere, Quebec. Well, it seems that Saskatchewan isn’t the only province in which Wal-Mart is being dealt blows. The Quebec Labor Relations Board  has also recently ruled against Wal-Mart.

In 2005, Wal-Mart received two applications for certification from the United Food and Commercial Workers, Local 486. One was for the main store in Gatineau, Quebec. The other was for the auto center next door. These didn’t end up being normal applications for certification and ended up with considerable debate before the Quebec Labor Relations Board.

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Protecting Your Business from Departing Employees

December 30, 2008 - by: Derek Knoechel 0 COMMENTS

by Derek Knoechel

Sophisticated employers in Canada recognize that the potential costs associated with employee turnover extend far beyond the cost of replacing departing employees. Departures can also place critical business assets at risk.

A departing employee may engage in the unauthorized use or disclosure of confidential information ranging from technological know-how, product roadmaps and marketing strategies to critical information about clients and suppliers. Departing employees may also interfere with the employer’s relationships with customers, suppliers, and other employees.

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Challenging Times in Canada Present Opportunities for Creative Solutions

December 23, 2008 - by: Katie Clayton 1 COMMENTS

by Katie Clayton

In this economic climate in Canada, many employers are being forced to find ways to reduce costs, which often means layoffs. But layoffs don’t have to be the only answer — you can reduce costs without losing valuable employees.

One way businesses can do so is to slightly reduce their employees hours of work. Even a small decrease in work hours can have a significant effect on a company’s bottom line, allowing it to keep talented employees for when the economy rebounds. So how do employers go about reducing employees’ hours of work while avoiding claims that it has unilaterally altered a term of employment, which could lead to a claim for constructive dismissal?

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Canadian Employer Can’t Fire Worker On Marijuana

December 16, 2008 - by: Sara Parchello 2 COMMENTS

by Sara Parchello

While U.S. employers know that their human resources policies may need to be tweaked to comply with Canadian laws, many are surprised at how different Canada’s drug testing laws are.

In the United States, drug use and impairment in the workplace are seen the same as any other criminal activity. In Canada, however, employee drug use and impairment is governed by human rights and privacy legislation.

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Categories: Arbitration / Human Rights / Privacy

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