A new and surprisingly complex Canadian Standards Association (CSA) Standard may be arriving at and impacting your workplace soon. A proposed Standard has been developed, setting out optimistic goals and processes for achieving “psychological health and safety” in the workplace. Policies, procedures, hazard identification, incident investigation and monitoring activities may be required, in addition to all of the existing steps being taken to develop and manage occupational health and safety systems.
On January 19th Heenan Blaikie hosted its first Managing the Workplace seminar of 2012 in our Toronto office. For the Complying with the Accessibility for Ontarians with Disabilities Act (AODA): Who, What, Where, When, How and Why? seminar, we distributed a few helpful guides to the AODA to our seminar attendees and they are now available under Useful Labour & Employment Templates, Guides and Checklists on the publications page.
For more information about our 2012 seminar series, please visit the Managing the Workplace website.
The Canada Revenue Agency has changed the way that it treats lump sum payments to retirees and employees in lieu of benefit coverage upon the cancellation of private health services plans. The Canada Revenue Agency had previously treated these lump sum payments as “advance reimbursements of medical expenses” and therefore, employers were not required to withhold income tax from the payments.
In the commentary accompanying the federal budget, the Canada Revenue Agency indicated that it had changed its position and that commencing January 1, 2012, employers would be required to withhold income tax from these amounts and report them on employees or retirees’ T4A Information Return. The Canada Revenue Agency recognizes a narrow exemption to this rule for payments received after the January 1st deadline from employers who became insolvent prior to that date.
The Canada Revenue Agency has provided detailed information regarding these new reporting and withholding requirements on its website.
Yesterday the Ontario Court of Appeal released an interesting decision about whether Ontario law recognizes the right to bring a civil action for damages for the invasion of personal privacy. In brief:
The plaintiff alleged an intrusion;
Into his most precious seclusion;
It went to the Court;
They made it a tort;
Clearly privacy's not an illusion.
For a more comprehensive (but less whimsical) commentary, take a look at Christian Paquette's post on the Court's decision in Jones v. Tsige, 2012 ONCA 32.
What began as a love story turned into a legal battle with a surprising outcome: the Ontario Court of Appeal has now recognized the tort of invasion of personal privacy. After 120 years of academic debate, it is now possible to sue for damages in connection with a breach of privacy. Employers may want to review their privacy policies to avoid any potential liability following this decision.
The case opposing Sandra Jones to Winnie Tsige garnered much attention last year. Both Ms. Jones and Ms. Tsige were employed by the same bank, although they neither knew nor worked with each other. Ms. Tsige developed a romantic relationship with Ms. Jones’ ex-husband. However, Ms. Tsige claimed she was involved in a dispute with him over child support payments he was making to Ms. Jones, his former wife.
Unknown to Ms. Jones, Ms. Tsige used her position at the bank to access Ms. Jones’ personal financial information at least 174 times over the course of four years. Ms. Tsige was eventually caught and disciplined by the bank, leaving Ms. Jones upset and her confidential banking information destroyed. Even though Ms. Jones had suffered no quantifiable loss, she was awarded $10,000 as “symbolic” or “moral” damages by the Court of Appeal, though the Court made it clear that such damages could go as high as $20,000, depending on the circumstances of the case.
Ontario Continues To Implement Dean Panel Recommendations: Proposal for OHSA Reprisal Complaint Assistance for Workers/Small Employers and Proposed Poster
The Ontario Ministry of Labour is seeking submissions on a proposed new regulation under the Ontario Occupational Health and Safety Act (“OHSA”) that would provide assistance with OHSA reprisal complaints, including education, legal advice and representation, to non-unionized workers and small employers (fewer than 50 employees). The proposed regulation would expand the mandate of the Office of the Worker Advisor (“OWA”) and the Office of the Employer Advisor (“OEA”) to provide reprisal complaint assistance. Currently, the OWA and OEA assist workers and employers under the Workplace Safety and Insurance Act, 1997 (“WSIA”).
Section 50 of the OHSA prohibits employers from dismissing, disciplining, penalizing, or intimidating or coercing a worker because he or she has, among other things, acted in accordance with or sought enforcement of the OHSA, its regulations or an order under the OHSA or testified in any OHSA proceedings. Workers who allege violation of this prohibition may resolve their complaint through binding arbitration under a collective agreement (if any) or by filing a complaint with the Ontario Labour Relations Board (“OLRB”). The Dean Panel, which was appointed to review Ontario’s occupational health and safety regime, found that the OLRB system was too complicated for unrepresented parties and reprisal complaints were often abandoned without being adjudicated. To address this situation, the Dean Panel recommended expanding the mandate of the OWA and the OEA to provide assistance to workers in pursuing and assistance to small employers in responding to reprisal complaints. The proposed regulation will expand the mandate of the OWA and OEA to provide reprisal complaint support and advocacy services to workers and small employers, respectively.
Europeans Move to Streamline Immigration Process Signals an Intensification of Competition for Skilled Workers
The European parliament has recently passed a directive providing greater rights to foreign workers and significantly streamlining the process for gaining entry to the EU as a foreign worker.
The law specifically allows non-EU individuals who are working legally within the EU to benefit from a range of rights similar to those of EU citizens. This means that foreign workers will now benefit from the same rights as EU members with respect to working conditions, government pensions, social security, and access to a wide range of public services.
A few weeks ago, Workplace Wire reviewed the Ontario Superior Court of Justice’s decision in McLean v. The Raywal Limited Partnership, 2011 ONSC 7330, where the Court held that unless an employer can show that it has such a contractual right, a lay-off, even a temporary one, will amount to a wrongful dismissal at common law, with all the consequences that flow from that.
The Ontario Court of Appeal’s recent dismissal of an employer’s appeal in Elsegood v. Cambridge Spring Service (2001) Ltd., 2011 ONCA 831 not only deals with the ability of a laid off employee to claim common law damages for wrongful dismissal, but is also a decision that addresses the relatively novel question of whether the lay-off provisions of the Ontario Employment Standards Act, 2000 (“ESA”) can support such a claim.
In Cambridge Spring, an employee, whose employment relationship with his employer Cambridge Spring Service was not governed by a written agreement, was on lay-off and considered himself subject to recall. Section 56(1)(c) of the ESA provides that an employer terminates the employment of an employee “for the purposes of section 54” [notice of termination section] if the employer lays of the employee for 35 weeks in a period of 52 consecutive weeks. When the cumulative duration of lay-off reached the statutory maximum of 35 weeks within the 52 week period, the employee, rather than claiming termination pay under s. 54 of the ESA, commenced an action for common law damages for wrongful dismissal in Small Claims Court.
The Small Claims Court judge awarded the employee damages reflecting a notice period of 6 months and the employer’s appeal to the Divisional Court was dismissed.
At the Court of Appeal, the employer based its appeal on the premise that the ESA and the common law are independent regimes; an employee’s “actual” employment status is defined by the common law and the ESA operates only to entitle an employee to the remedies under statute. On the other hand, common law damages for wrongful dismissal are only available for what would constitute a dismissal at common law and are not available for a “deemed termination” under the ESA.
In dismissing the employer’s appeal, the Court of Appeal concluded that a termination by operation of statute, in this case s. 56(1) of the ESA, also constitutes a termination at common law, thereby entitling the employee to claim wrongful dismissal damages.
In stating that it had reached this conclusion in two ways, the Court first dismissed the employer’s argument that an employee’s employment status at common law could somehow survive a termination under the lay-off provisions under the ESA, noting that a termination under statute displaces the common law and that any contrary argument would represent an attempt to improperly contract out of statutory entitlements under the ESA.
The Court also rejected the employer’s second argument that the employment agreement contained an implied term that allowed for the employee to be placed on indefinite lay-off. At common law, the Court noted, an employer has no right to lay-off an employee. Absent a written agreement to the contrary, a unilateral layoff by an employer represents a substantial change the employee’s terms and conditions of employment and is a constructive dismissal. Further, even where there is such a written agreement allowing for lay-off, any agreement that provides for a lay-off longer than 35 weeks violates the minimum ESA standards and would be void.
As this case demonstrates, while a written employment agreement can be of significant benefit to an employer in allowing for a lay-off to be initiated without triggering a constructive dismissal, such an agreement can only go so far in providing an employer with flexibility regarding the employment relationship and must operate consistently with employment standards legislation.
The Ontario Court of Appeal will hear argument in the Blue Mountain Resorts Ltd. appeal on March 14, 2012.
We will continue to provide updates on this important case.
In a unanimous decision, the Canadian Industrial Relations Board (the “CIRB” or “Board”) dismissed unfair labour practice complaints filed by the Canada Council of Teamsters (the “Teamsters”) against FedEx Ground. The only unfair labour practice complaint the Board upheld was filed by FedEx Ground against the Teamsters for using unlawful tactics during the campaign to suppress employee opposition to the union.
The Board's decision is important because it squarely addresses employer free speech and union campaign misconduct, both top-of-mind issues for employers facing union organizing drives.
In 2011, employment for people aged 55 and over grew by 3.4% (+102,000).* This statistic confirms what many of us already know: the workforce is becoming older.
With an aging workforce comes a host of issues and challenges, including rising benefit costs due to increased usage of benefits and growing number of disability claims and requests for accommodation due to disability, especially amongst older workers in physically demanding occupations.
The first deadline for organizations to comply with the accessibility requirements set out in the Accessibility Standards for Customer Service (“Customer Service Standard”) under the Accessibility for Ontarians with Disabilities Act (“AODA”) has now arrived.
Has your business or organization taken the necessary steps to ensure compliance?
DO YOU HAVE QUESTIONS ABOUT…
- WHO is required to comply with the AODA;
- WHAT steps your organization needs to be take to achieve compliance;
- WHERE you can access helpful materials to assist with compliance;
- WHEN your organization must be compliant with the different requirements;
- HOW your organization can ensure compliance; Or
- WHY your organization is required to comply?
If so, we strongly encourage you to attend our upcoming Managing the Workplace Seminar on Complying with the Accessibility for Ontarians with Disabilities Act: Who, What, Where, When, How and Why?”, which will take place on January 19, 2012.
To obtain additional information and to register for this seminar, please visit our Managing the Workplace Website.
We look forward to seeing you there!!
Breathe easy – the $28.00 per hour minimum wage depicted in this bus shelter ad is not in effect in Ontario, or anywhere in Canada. It is the minimum wage in Hong Kong as of May 1, 2011. Prior to that, no statutory minimum wage existed in Hong Kong.
To put things in perspective, $28.00 Hong Kong Dollars is approximately equivalent to $3.70 Canadian Dollars. In other words, the current Ontario minimum wage of $10.25 per hour is approximately 2.8 times that of Hong Kong’s.
The Government of Canada’s has repealed (see Part 12) sections of the Canadian Human Rights Act and Canada Labour Code that permit employers to implement "mandatory retirement" policies. These changes will take effect in December 2012.
The repeal of the mandatory retirement provisions in Canadian law was contained in the Budget Implementation Act, which received Royal Assent on December 16, 2011.
All Canadian jurisdictions, with the exception of New Brunswick, have now abolished mandatory retirement.