by Ralph N. Nero and Keri L. Bennett

Many of our recent articles have focused on decisions involving employees’ breaches or threatened breaches of restrictive covenants. Including restrictive covenants, such as nonsolicitation and noncompetition covenants, into employment contracts is important for employers to protect their business interests.

In order to be enforceable, however, such covenants must be tailored to the specific business needs of the employer and the context of the individual employment relationship. This article steps back and takes a look at the governing principles.

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by Lorene Novakowski

In a recent Alberta arbitration award, the arbitrator awarded damages to employees for a breach of their privacy rights, in the amount of $1,250 each.

The grievance arose after the province of Alberta conducted background credit checks  without consent on 26 government employees. The employees worked in an area–maintenance enforcement–that gave them discretion in handling funds on behalf of the province.

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by Jennifer Shepherd

Can a Canadian employer justify an employee’s dismissal for acts committed after he or she has been fired? The answer is: sometimes. In Gillespie v. 1200333 Alberta Ltd., an Alberta court overturned a lower court ruling that permitted an employer to retroactively justify an employee’s termination because the employee removed confidential documents from the office upon her termination. The question on appeal was whether the employee’s post-termination conduct was sufficient to limit the employer’s obligation to provide reasonable notice or pay in lieu of such notice.

The dismissal

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by Louise Béchamp

As a Québec employer recently learned, an alleged breach in the relationship of trust between employer and employee must be supported by objective evidence and facts if it is to form cause for termination of employment. In Senécal vs. CEGEP du Vieux Montréal, 2012 QCCS 1995, the employer was ordered to pay significant damages to Francine Senécal following her termination on that ground, in the absence of the required evidence to support their concerns.

Facts

In 2001, Senécal left her career in post secondary education to enter into municipal politics. She was elected as a counselor for Montréal and became vice president of the city’s executive committee. Throughout her term in office, Senécal’s spouse worked in a senior management position for the city’s housing and development corporation (in French, the “Société d’habitation et de développement de Montréal” or SHDM).

After 7 years in public life, Senécal decided she wanted to resume her career and applied for the position of director general of the CEGEP du Vieux Montréal. Senécal was the successful candidate. In October 2008, the CEGEP appointed her to a 5-year term, to begin in January 2009, so she resigned from public office. read more…

by Alix Herber

Human rights legislation protects a wide range of individuals in Canada. It prohibits harassment and discrimination in employment on obvious grounds such as age, ethnic origin, gender, and disability. It also prohibits harassment and discrimination in many provinces on less obvious grounds, such as record of offenses and sexual orientation. And that less obvious list appears to be growing, with the introduction of gender identity and gender expression to the list of prohibited grounds in Ontario.

Bill 33

Bill 33, known as Toby’s Act or the Right to be Free from Discrimination and Harassment Because of Gender Identity or Gender Expression, 2012, provides that every person has the right to equal treatment without discrimination because of gender identity or gender expression in the provision of services, goods and facilities, accommodation, contracting, employment, and membership in a trade union. It was passed into law on June 19. read more…

By Brian P. Smeenk

Class actions in Canada for unpaid overtime or other employment claims have met with mixed results in the past. Now the rules of the class action game – at least in the employment context – may be a little clearer.

On June 26 the Ontario Court of Appeal issued its decisions in three closely watched cases: Fulawka v. The Bank of Nova Scotia , Fresco v. Canadian Imperial Bank of Commerce, and McCracken v. Canadian National Railway Company.

What the Three Cases Are About

All three of these class actions were against large, federally regulated employers. Canadian National Railway (CNR) is one of North America’s largest. The two banks are among Canada’s five largest banks. read more…

By Isabelle Dongier

Winds of change keep blowing on Canadian immigration lands. The federal government has recently taken several steps to rationalize and centralize its operations. Here are the latest changes, announced in May and June, of interest to companies employing foreign workers in Canada:

Restructuring of the visa office network: This includes the closure of the Canadian Consulate in Buffalo, New York. It’s been a major processing center for applications for visas, work permits, student permits, and permanent residence status. Permanent residence applications are now sent to the Case Processing Pilot Office in Ottawa (CPP-O). Resident visa processing is now shared between other Canadian consulates in the United States (New York, Los Angeles, Detroit, and Seattle). Only two visa offices (New York and Los Angeles) will deal with all new study and work permit applications originating in the United States. Washington, D.C., will process applications for temporary resident permits and rehabilitation applications to overcome inadmissibility based on health or criminal grounds. Another significant change allows holders of a work permit who are from visa-required countries, but who reside in Canada, to apply for their new visa by mail or courier at the CPP-O. They will no longer have to deal with a visa office outside of Canada.

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By Jaclyn McNamara and Marisa Victor

Your employees have access to all kinds of sensitive company information. But what can you do if they leave and use that information to unfairly compete against your company?

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By Lindsey Taylor

The issue of employees with environmental sensitivities often arises for Canadian employers. Most commonly, employees complain about sensitivities to strong scents such as perfume.

Human rights laws in many provinces accept that environmental sensitivities may be disabilities, to which the duty to accommodate to the point of undue hardship may apply. This was recently confirmed by the British Columbia Human Rights Tribunal in McDaniel and McDaniel v. Strata Plan LMS 1657 (No.2), when it considered a case where the disability was sensitivity to secondhand smoke.

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By Kyla Stott-Jess and Devin Crisanti

Post-employment restrictions can be tricky to enforce. But if drafted properly, they can be valuable. As one Alberta employer recently discovered in ADM Measurements Ltd. v. Bullet Electric LTD, relying on implied fiduciary duties to do the job of contractual restrictions can be a pricey gamble.

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