Workplace Wire - Connecting Employers to Developments in Labour, Employment & Pension Law

As I have written about in previous blogs, the number of temporary foreign workers in Canada continues to skyrocket.  Growth of this category of foreigners has been large and consistent so that the number of temporary foreign workers in Canada now confidently outstrips the number of new permanent residents allowed into the country each year.

Until relatively recently, this category of workers had received little if any attention.  The fact however is that temporary foreign workers represent the largest source of foreign labour in Canada, one which employers in Canada are becoming increasingly dependant.

With such large numbers, courts across the country are increasingly being faced with employment-related cases for temporary foreign workers.  One example is a recent decision of the British Columbia Supreme Court in Dominguez v. Northland Properties Corporation, 2012 BCSC 328 (CanLII).  

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The Federal Government late last week signalled in no uncertain terms its determination to forge ahead with fundamental reforms to the immigration system.

The government has over the last few years been on something of a mission to reform a system that has traditionally focused primarily on permanent residency, including the “family class”, into one increasingly designed to facilitate the entry of workers to meet specific labour market shortages.  The changes have been aimed at addressing what both statistics and employers have been saying for some time: Canada is not producing enough skilled workers to service rapidly expanding industries, such as the oil and gas sectors.

As I have discussed in previous postings, last April fundamental changes to the Temporary Foreign Worker Program (the “TFWP”) came into effect.  These changes spelled out strict rules for employers to ensure their compliance with immigration rules.  Employers that stray from the rules through, for example, not adhering to pre-approved wages or working conditions, can find themselves subject to various sanctions, such as heavy fines or, worse, a ban against hiring foreign workers. 

The resulting modifications to immigration laws, such as these most recent changes to the TFWP, seem to be having their intended effect as the number of temporary foreign workers has in recent years climbed to the point where they now exceed the number of permanent residents accepted each year.

With great power comes great responsibility

The Federal Government’s announcement of last week appears to signal a continuing determination that employers will play an increasingly central role in deciding who can immigrate to Canada. 

The changes are nothing less than revolutionary.  All indications are that at least some of the notoriously creaky wheels of the immigration process will be deliberately lubricated to facilitate an expedited entry of workers to satisfy employer needs for skilled workers.  Specifically, the government will ensure that employers get their choice of workers quicker, a kind of “just in time” system designed to speed up the entry of workers to support commercial operations. 

Assuming the proposed changes come to fruition, it is clear that, while employers will play a greater role in the immigration system to secure desired employees, employers will have equally enhanced responsibilities to adhere to the increasingly complex regulatory environment surrounding immigration.  This means that employers would be wise to increasingly integrate immigration into overall Human Resources decision making, policy design, as well as overall execution.  Immigration will eventually cease to be a “one-off” issue but rather be part of comprehensive operational planning and ongoing compliance.  Revolutionary? Perhaps not, but a significant change nonetheless.

Last year, there were many important developments in labour and employment, pensions and benefits, occupational health and safety and workers'compensation, and workplace privacy law. Recent Developments in Workplace Law is Heenan Blaikie's annual publication designed to summarize these key developments.

2012 Recent Developments Paper

Recent Developments in Workplace Law also serves as a supplement to the Managing the Workplace Seminar Series, a series of complimentary breakfast seminars hosted by our Ontario Labour and Employment practice group. For more information on Managing the Workplace or to register for a seminar, please visit managingtheworkplacewire.com.

An unexpected conflict arose on December 12, 2006.  On one hand, Ontario joined a growing list of jurisdictions that abolished mandatory retirement.  But on the other, the amending bill left provisions in the Human Rights Code (“Code”) untouched that have long permitted insurance, benefit, and pension plan providers to differentiate in coverage based on age.  This means that older workers who continue to work past 65 may lawfully receive diminished benefits compared to their younger peers.

In a recent arbitration, the Ontario Nurses’ Association unsuccessfully challenged the constitutionality of these provisions.  The grievance challenged an employer-sponsored plan that substantially reduced, and in some cases eliminated, benefits to employees aged 65 and older.  Because the decision dealt with a fully-insured plan, however, no comment was made about whether self-insured plans containing age-based distinctions could also claim protection under the Code.

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While Canada still mourns the passing of another prominent figure, the labour and employment bar was struck by the recent loss of one of their own: respected employment lawyer, mediator, prolific author, and later member of the judiciary, the Honourable Randall Scott Echlin of the Ontario Superior Court passed away earlier in August following a valiant battle with cancer.

In a world where conditions of work so deeply affect a person’s identity and emotional wellbeing, lawyers for both employees and employers alike frequently looked to Justice Echlin’s innovative and well-reasoned decisions for developments that improved employment law as a whole.

As a tribute to Justice Echlin’s prolific yet short time on the Bench, a review of selected key decisions are discussed below.

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In a recent case, the Ontario Superior Court ordered a defendant employer to pay over $300,000.00 to cover a terminated hourly employee’s lost earnings and STD/LTD benefits, as well as punitive damages, costs and interest.  This should serve as a reminder that employers who provide ESA minimums upon termination and roll the dice in litigation sometimes pay a heavy price.

The employee in this case had been terminated as a result of restructuring after nearly 24 years of service, when he was 55 years old. Although he managed to get a new job less than a month after his dismissal, the pay at his new job was much lower and it did not offer disability insurance coverage.

As sometimes happens, the defendant employer in this case had continued the employee's benefits coverage only for the minimum ESA notice period of 8 weeks, and presumably hoped for the best. Unfortunately for all concerned, after the 8 weeks had expired, but before the end of the "common law" notice period (fixed by the court at 22 months) the employee was diagnosed with laryngeal cancer and had to undergo treatment and miss work without pay or disability insurance.  He had worked for 15 months at a new corporation, in mitigation of his damages, before becoming disabled and undergoing medical treatment.

The employee sued his former employer for pay in lieu of common law notice termination, as well as lost STD and LTD benefits, and punitive damages.

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