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

Canada’s Temporary Foreign Worker Program (TFWP) has come under serious criticism during the past several weeks. 

The program is being charged with taking jobs away from Canadians and permanent residents, leaving locals unemployed while depressing the wage levels of those who are employed.   The criticism of the program has been both severe and swift.  The pressure has been so great that the federal government has just this week proposed various reforms to the program.   

Throughout the latest firestorm there has not been enough debate of substance. Rather, and unfortunately, the bulk of the discussion on this issue has consisted of overreaching claims regarding the apparent damage this program is doing to Canada’s labour market and the impact it has on foreigners. 

While this can be partly explained by the emotions that this topic has ignited, it is of paramount importance that policy relating to the Temporary Foreign Worker Program be formed in an atmosphere of reasoned and informed debate. 

What is the Temporary Foreign Worker Program? To read further please click here.

A federal court this week will hear a challenge of the decision of Human Resources and Skills Development Canada (“HRSDC”) to allow 201 Chinese workers into Canada. 

The case involves HD Mining, a Vancouver-based mining company, which came under intense public scrutiny for its hiring of hundreds of Chinese nationals to work at its Murray River Coal project, a major coal mining project in northern British Columbia.  The company was initially granted approval by Human Resources and Skills Development Canada (“HRSDC”) to have over 200 Chinese workers enter Canada to work in developing the mine. 

Two prominent labour unions, the International Union of Operating Engineers (the “IUOE”) and the Construction and Specialized Workers' Union (the “CSWU”), charge that HD Mining did not follow the proper procedure in hiring foreigners.  The unions specifically argue that HD Mining did not make enough efforts to find Canadians for these jobs and that accordingly, the decision of HRSDC was improper. 

In securing permits for the Chinese workers, the company applied to HRSDC in British Columbia for positive Labour Market Opinions (“LMOs”). Approval from HRSDC is a necessary prerequisite to the entry of most foreign workers into Canada’s labour market. This process involves an assessment of the local labour market to determine whether allowing a foreigner to work in Canada is justifiable in the circumstances, such as where there is a shortage of skilled labour.

The unions argue that HD Mining was presented with several qualified Canadians who were more than capable of doing the jobs needed. The unions also accuse HD Mining of acting inappropriately in not interviewing or otherwise seriously considering local applicants. The unions specifically point to the fact that HD Mining received approximately 230 resumes from Canadians or Permanent Residents, but hired only 12 to support their claim that the company did not make sufficient efforts to hire locally.   

The federal court will now have an opportunity to weigh in on the matter.  The court’s decision will be closely followed as it will likely set an important precedent in the law applicable to the hiring of foreign workers.   

What does this mean for employers?

This case is important for any employer that has ever or may ever hire foreigners.  The number of temporary foreign workers has exploded in recent years, in part because of the prominent and growing skills labour shortage in Canada.  This decision could accordingly have serious implications for employers who are struggling to find practical strategies to secure the right skills for their labour force. 

We will continue to monitor this case and provide updates and analyses as more information becomes available.   

For more information please contact Sharaf Sultan (ssultan@heenan.ca) or at (+1)416-777-4175. 

The number of temporary foreign workers in Canada has increased exponentially over the last 10 years, and in particular since 2006.  There are now over 250,000 foreigners entering Canada each year under a temporary work permit, and approximately half a million temporary foreign workers in the country at any given time.

As the Globe and Mail reported this past week, the number of foreign labourers in Canada has increased to the point where they now represent 1 in 50 workers across the country.   

Unsurprisingly, as the number of temporary foreign workers increases, so does the number of disputes arising between temporary foreign workers and their employers. 

Foreign workers however often face both unique and significant obstacles when pursuing claims against their current or former employers.  This is primarily because of the fact that foreign workers by definition have temporary status in Canada.  What this means is that most temporary workers who pursue claims against their employers face a real possibility that their status will expire before a decision on or resolution of their matter.  This means that a foreign worker who brings files a claim may not be present in Canada nor have the papers necessary to return to Canada to attend in person for a tribunal or court appearance. 

These realities present a serious risk to maintaining access to justice, particularly given the sheer number of temporary foreign workers in Canada at present.   

Courts and tribunals have accordingly begun to seriously address this problem.  A good example is the recent decision of the Ontario Human Rights Tribunal (the “Tribunal”) of Hazel v. 624091 Alberta Ltd., 2013 HRTO 435 (CanLII).  The case addresses a claim by a foreign worker who states that his employer discriminated against him on the basis of citizenship, disability, and race.  The employee, a citizen of Trinidad, was in Canada under a temporary worker permit granted by the federal government’s pilot project for occupations requiring low levels of formal training.  The worker states that his employer improperly provided him low wages, denied him health insurance, did not provide him with certain safety equipment, and ultimately terminated his employment shortly after he became injured.

The employee asked for the Tribunal to adjourn a scheduled hearing on the basis that he did not have status to travel to Canada.  The Tribunal’s normal practice is to require that all parties attend in person in order to be available to present their case and to be available for cross-examination.  Exceptions to the requirement are generally dealt with on a case-by-case basis.  The employer took the position that the matter should not be adjourned.  The Tribunal however allowed the adjournment in order to provide the former employee with an opportunity to apply for approval to come to Canada to attend at the Tribunal. 

Why is this case important?

This case is important because it demonstrates that judicial and administrative bodies are willing to accommodate the immigration status of temporary foreign workers and former temporary workers.  It means that employers will not be able to rely on the fact that temporary workers will likely leave Canada to avoid potential liability.  To the contrary, employers are likely to see temporary workers pursue claims until they are heard by judges or other decision-makers. 

This case is an important development, particularly given that employers are already under greater scrutiny by Canadian immigration authorities with respect to the manner in which they treat foreign workers.  Employers would accordingly be wise to ensure that they are familiar with all rules and regulations pertaining to the hiring of foreign workers and that they take proactive steps to reduce the chance of potential liabilities. 

For more information, please contact the writer at ssultan@heenan.ca or at (+1)416-777-4175.

An Italian sports psychologist has filed a claim with the British Columbia Supreme Court, claiming that the Vancouver Canucks are responsible for damages relating to wrongful dismissal and mental distress. 

The psychologist, Mr. Demichelis, claims that the Vancouver Canucks and co-owner Mr. Aquilini induced him to leave his employment with the Chelsea Football Club in the United Kingdom and to work for the Vancouver Canucks in Vancouver. 

Mr. Demichelis claims that he initially declined the Canucks offer of employment but that he later accepted it after sustained efforts on the part of Mr. Aquilini and the team.   Mr. Demichelis specifically states that the Vancouver Canucks stated to him that he was the person the Canucks needed to improve the players’ physical and psychological well-being.  Mr. Demichelis also claims that he was told that his expertise was essential to winning the Stanley Cup.

Mr. Demichelis further alleges that he agreed to a two year contract with the Canucks starting July 2012 for a salary of $700,000, along with a signing bonus of $400,000. He also states that the Canucks agreed to market Mr. Demichelis’ expertise to other professional clubs in North America. 

Mr. Demichelis was told in December 2012 that his employment would end at the end of January 2013.  He claims that the club explained to him that, as part of the process of trying to secure him a work permit, they found Canadians that were able to fulfill the requirements of his role. 

Mr. Demichelis claims that he has suffered significant damages in part because he gave up his employment in the United Kingdom and moved his family to Vancouver. 

The Vancouver Canucks have yet to file a Statement of Defence.

What does this mean for employers?

This case demonstrates the potential pitfalls in the employment of foreigners.  In particular, employers can face significant liability when disputes arise from the hiring and/or employment of temporary foreign workers.  This issue is becoming increasing commonplace in large part because of the exponential growth in the number of temporary foreign workers in Canada.  There are now approximately 250,000 individuals entering Canada on an annual basis under a temporary work permit, and 500,000 temporary foreign workers in the country at any given time. 

Employers should accordingly ensure that they receive adequate employment and immigration advice to ensure that all matters relating to the hiring of foreign workers are addressed adequately and in a seamless fashion.  This can help to ensure that employers are in the best position to defend against claims should disputes arise. 

 For further inquiries, please contact the writer at ssultan@heenan.ca or (+1)416-777-4175  

Preventing former employees from competing with your business or from soliciting your clients or employees can be a challenge.  The courts in Canada have consistently demonstrated a dislike for restrictions on departed employees.  This can likely be explained by a pervasive belief that Canada is a free society which not only allows but promotes commercial competition.  Courts are also generally speaking loath to restrict a former employee’s ability to earn a livelihood.

These concerns and deep seeded beliefs mean that courts are generally speaking only willing to enforce restrictive covenants both where such agreements are clear and unequivocal and where they are deemed necessary to protect a legitimate business interest. 

Given this, courts have the habit of putting any restrictive covenant language in dispute under a legal microscope.  The recent Ontario Court of Appeal decision in Martin v. ConCreate 2013 ONCA 72 (CanLII) carried out such an analysis.  The decision is helpful in that it provides an up to date assessment as to the elements necessary in order for a restrictive covenant to be found to be enforceable. 

The Court of Appeal’s assessment

The case involved a 20 year employee and partner of a construction firm.  The employee had signed an employment agreement which included restrictive covenants that described limits on the employee’s ability to compete or solicit business from the employer's clients in the event that his employment was terminated.

The company subsequently terminated the employee’s employment.  He then started another company and was sued by his former employer.  The court then assessed the enforceability of the restrictive covenants.  The Court of Appeal specifically overturned the Ontario Superior Court’s finding that the non-competition and non-solicitation clauses were enforceable.

With respect to the non-competition clause, the contract described a 24 month “prohibited period” which stated that the employee could not compete for 24 months following the sale of the former employee’s interest in the business. The court found that this language was unenforceable, primarily because it was not possible to ascertain when such a sale may occur.  The court accordingly held that the non-competition clause was unreasonable as it did not have any fixed time limit. 

With respect to restrictions from solicitation, the agreement stated that the employee was barred from communicating or otherwise dealing with any persons who were customers, dealers, agents or distributors, whether at the time of the sale of the former employee’s interests in the business or afterwards.  The covenant further referred to any products or services that compete with those offered by the employer, whether or not offered, or planned to be offered at the time of the sale of the employee’s business interest.  The court found that the language was unreasonable in that it restricted the employee from soliciting in relation to matters which the employee may not know about.  The court specifically remarked that there was no way the employee would be aware of all parties that his former employer was associated with or all the products or services the company offered or planned to offer following his departure from the company.   

What does this mean for employers?

The case makes clear the importance of conducting a careful review of any and all restrictive covenants provided to employees and to ensure that they are both clear and reasonable for the specific circumstances, including the employee in question. 

An employer will specifically need to be able to demonstrate that a deal was made, that the deal was clear, and that it was reasonable in terms of several factors, including the activities that were restricted, the length of time of the restriction, as well as the geographic area to which the restriction applied.

For further inquiries, please contact the writer at ssultan@heenan.ca or (+1)416-777-4175

The Federal Government recently announced cuts to special rules that provided pregnancy, parental and compassionate care Employment Insurance benefits to temporary foreign workers.  The cuts took effect on December 9^th, 2012 and are expected to immediately affect approximately 1,900 temporary foreign workers.

Temporary foreign workers are provided work permits which describe both the time period in which someone is able to work in Canada and any restrictions to the work, such as only being able to work with a specific employer or at some specific location within Canada or a province or territory.

The cuts affect a wide range of temporary foreign workers, including those with expired Social Insurance Numbers or, alternatively, those with expired work permits.  Under the old rules, such individuals were eligible to attain employment insurance benefits under certain circumstances. 

The changes are most likely to affect seasonal temporary workers who often work in Canada for several months before taking breaks in their country of citizenship.  Approximately 11,650 temporary foreign workers collected Employment Insurance benefits in 2011.  Such individuals would often collect Employment Insurance benefits while in their home country which would provide financial assistance during their absence from Canada. 

The Federal Government has stated that the cuts are aimed at maintaining the integrity of the Employment Insurance regime.  Specifically, government representatives pointed to the fact that under the normal Employment Insurance rules workers are not able to attain benefits when outside of Canada. 

The Federal Government further stated that providing individuals who are ineligible to work in Canada Employment Insurance is inconsistent with the underlying purpose of the program which is to provide assistance to individuals who are actively seeking employment. 

The Ontario government has announced that it will invest $3 million over two years to hire 18 additional Employment Standards Officers and staff.  This will enable the Ministry of Labour to conduct more proactive workplace inspections to ensure compliance with the Employment Standards Act, 2000.

The Ministry has identified the following industries that will be targeted for proactive inspections in 2012/2013:

• Auto mechanics
• Building services (e.g., security, parking, cleaning, and food services)
• Car dealerships
• Fast food restaurant franchises
• Gas stations
• Hotel and hospitality  
• Private schools  
• Temporary help agencies

All provincially-regulated employers should be aware of the possibility of increased workplace inspections because the Ministry of Labour has stated that proactive inspections are not limited to these targeted industries.

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Full and final releases executed by terminated employees are primarily viewed as a means for the former employer to be relieved of any liability related to termination of employment.  However, as the Ontario Court of Appeal’s decision in Zelsman v. Meridian Credit Union Limited, 2012 ONCA 358 (“Zelsman”) demonstrates, properly reviewing and understanding the language of a comprehensive employment release is critical for a terminated employee as the language of the release may act to bar the employee from claiming against third parties, such as long-term disability insurers, who are not parties to the employment relationship.

In Zelsman, the plaintiff, Ms. Francine Zelsman, an employee of the College of Family Physicians of Canada was eligible for Long Term Disability (“LTD”) benefits according to a Group Policy between the College and Great-West Life (“GWL”).  Following the termination of her employment in April 2008, Ms. Zelsman filed a complaint with the Human Rights Tribunal of Ontario (“HRTO”) against the College claiming her employment was terminated on the basis of disability and reprisal.  At the same time, she applied for LTD benefits within the period of coverage with GWL.

In November 2008, Ms. Zelsman’s claim for benefits with GWL was rejected. In August 2009, Ms. Zelsman entered into Minutes of Settlement with the College in relation to the HRTO proceedings, receiving a payment from the College of some $90,000 which appears to have been largely based on compensation for the denial of her LTD benefits claim.   Ms. Zelsman then retained other counsel and appealed the denial of her LTD benefits with GWL.  Her appeal was successful and GWL paid the claim retroactive to August 2008. Ms. Zelsman did not disclose to GWL at any time before the approval of her LTD benefits that she had filed a Human Rights complaint against the College or that she had entered into Minutes of Settlement and signed a comprehensive release in settlement of that claim.  When GWL learned of the settlement between the College and Ms. Zelsman, including her waiving of any right to pursue any claims with GWL, it took immediate steps to reverse the payment for LTD benefits by relying on and enforcing the release.

Ms. Zelsman brought a motion seeking an order declaring the release did not have the effect of releasing any claims against GWL. She also sought a declaration that GWL could not enforce or rely on any of the terms of the Minutes against her.

Usually the doctrine of privity provides that a contact cannot confer rights or obligation on a third party. There are, however a few exceptions. These exceptions were argued by GWL in this case. The two factors the motions judge analyzed were:

a) Did the parties to the contract intent to extend the benefit in question to the third party seeking to rely on the contractual provision?

b) Were the activities performed by the third party the very activities contemplated as coming within the scope of the contract in general as determined by the intentions of the parties?

The motions judge held that the clear and unambiguous meaning and intention of the parties was to resolve all matters arising out of Ms. Zelsman’s employment with the College including the claims for benefits under the Group Policy. The intention to fully and finally release and discharge the College and GWL from all and any actions and claims relating to benefits, including short-term and long-term disability benefits, was also expressly stated in the Minutes.

Therefore, the motions judge held that GWL, a third-party insurer, satisfying the exceptions to the doctrine of privity of contract, was entitled to rely on and enforce the Minutes between the Group Policy holder and the employee and the Minutes therefore had the effect of releasing any claims of Ms. Zelsman against GWL under the Group Policy.

On appeal, Ms. Zelsman argued that the release clause should not be held enforceable as it violated sections of the Ontario Employment Standards Act, 2000 (the “ESA”), was ambiguous and that the motions judge erred in interpreting the clause.

The Court of Appeal dismissed the appeal. The Court noted that the motions judge had engaged in a very thorough and well-reasoned analysis in holding that GWL, a third-party insurer, was entitled to rely on and enforce the Minutes between the College and Ms. Zelsman. The Minutes therefore had the effect of releasing any claims of Ms. Zelsman against GWL under the Group Policy.

With respect to Ms. Zelsman’s argument regarding the ESA, the Court confirmed that the legislation provides that when an employee is terminated, the employer must provide either the minimum notice or payment in lieu thereof and must continue to make whatever benefit plan contributions are required to maintain the employee’s benefits during the notice period.

However, the Court dismissed Ms. Zelsman’s argument that by including a release of claims for benefits in the Minutes, the employer was requiring the employee to waive her right to receive benefits coverage during the notice period, contrary to the ESA. The Court commented that “[t]he ESA is minimum standards legislation. It is not benefits legislation. Once the appellant was entitled to benefits she could compromise the amount, if any, she was entitled to.”

The ESA provides that benefit coverage must continue, however, it does not require claims to be paid where there has been a contractual settlement of such claims. 

The implications of this decision are notable for employees, employers and third party insurers. 

During the notice period, the ESA provides that dismissed employees remain eligible to benefits pursuant to the Group Policy coverage; they are not entitled to a payment of benefits as a right.

The Court of Appeal upheld the parties’ right to freely contract out of such benefits or any other amounts paid above the ESA minimum standards.

For employers, it is important to continue coverage throughout the ESA notice period and to respect minimum standards legislation. For third party insurers, what is important is to work with your Group Policy holder to be kept abreast of any Minutes of Settlement reached with terminated employees, particularly the inclusion of any release clauses that may relieve the insurer of the responsibility of paying benefits.

The Globe and Mail recently reported that Mexican government officials have warned a variety of employers in British Columbia that they could lose hiring privileges if they do not improve the employment conditions of Mexican seasonal agricultural workers.

These workers are brought into Canada on an annual basis under the Seasonal Agricultural Workers Program.   The program is jointly administered by Human Resources and Skills Development Canada (“HRSDC”) and Citizenship and Immigration Canada (“CIC”) and allows Canadian agricultural employers to hire workers from Mexico and various Caribbean nations on a purely seasonal basis.  The program has expanded so that there are now several thousand seasonal agricultural employees from Mexico and the Caribbean working in British Columbia.     The program requires employers to co-operate with both Canadian and Mexican government officials in order to both assess and monitor workers’ conditions on an ongoing basis. 

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The Ontario Court of Appeal has finally spoken in the three overtime class action lawsuits that we have been following over the last few years: Fresco v. Canadian  Imperial Bank of Commerce (“CIBC”), Fulawka v. Bank of Nova Scotia (“BNS”), and McCracken v. Canadian National Railway Company (“CNR”). In somewhat of an unexpected move, the Court of Appeal allowed certification in CIBC and BNS (overturning the CIBC decision in the lower court), but denied certification in CNR.  

The press has generally heralded the rulings as a victory for the plaintiffs. This is somewhat ironic, as many pundits suggested that CNR would be the easiest to certify. BNS and CIBC were both “off the clock” cases, in which the claimants are all obviously eligible for overtime and so the main issue is whether they worked overtime for which they were not paid. To certify “off the clock” cases, the plaintiffs must overcome the argument that whether or not someone has been paid properly is an individual issue, and therefore not suited to a class action that must have issues and questions that are common to all the potential claimants in the class. 

CNR, in contrast, was a “misclassification” case. In such cases, the question is whether a group of employees have been improperly classified as being within a job category that is overtime exempt.  In most misclassification cases, all of the plaintiffs usually do the same job and as such, typically will all either fall within or outside the exempt category at issue. This being the case, there is usually a clear common issue that assists in obtaining certification as a class action. In fact, the lower court judge who originally refused to certify the CIBC case had specifically commented that misclassification claims were more amenable to certification than off the clock cases.

While the certification of CIBC and BNS are not good news for employers, CNR gives rise to some hope. More importantly, one critical part of the CIBC and BNS decisions has the potential to turn both into Pyrrhic victories for the plaintiffs in those cases.

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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.

The Ontario provincial election is scheduled for October 6, 2011.  While labour and employment law issues are unlikely to be the hot button election issue that “gravy” was in Toronto’s most recent municipal election, the major parties have all included labour and employment law issues in their party platforms.  We often consider how promises made during election campaigns will affect us at home, perhaps we should also consider how these proposed labour and employment law reforms will affect us at work.

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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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