The articles listed below are intended to provide readers with general information. They should not be regarded or relied upon as legal advice or opinion.

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April 25, 2017 – Westjet pilots attempt to unionize again

April 25, 2017

TOP STORY WestJet Employee Association prepares for pilot certification vote   DECISIONS Judicial Review – Security clearance – Mohamed v. Canada (Attorney General), 2017 FC 271 Customer service/baggage agent seeking review of cancelled RAIC card – Reasonableness as standard of review – Employee had proper opportunity to review and respond to findings – Minister decision considers character and judgment in forward thinking manner – Dismissed   CANADIAN TRANSPORTATION AGENCY DECISIONS Application – 161768 Canada Inc. c.o.b. as Decair – Determination No. A-2017-25 To continue the suspension of Licence Nos. 000085 and 000086 Application – Isaac Robert Issug against British Airways Plc…

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Court of Appeal finds termination clause void for contravening ESA – employer required to pay salary for remainder of fixed term contract

April 21, 2017

The recent decision of the Ontario Court of Appeal in Covenoho v. Pendylum Ltd. (April, 2017) drives home two important lessons for employers. First, termination clauses in employment contracts must comply with the minimum requirements of the Employment Standards Act (“ESA”). Where they do not, the more generous common law notice period will apply. Second, when terminating a fixed term employment contract, in the absence of a valid contractual provision stipulating a notice period, the employer is required to pay an employee to the end of the term. The employee is not required to mitigate his or her damages. The…

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April 18, 2017 – Passenger bump, reputation grind

April 18, 2017

TOP STORY United Airlines forcibly removes passenger from overbooked flight DECISIONS Appeal – Passenger with disability – Greater Toronto Airports Authority v. Canada (Transportation Agency), 2017 FCA 64 Passenger requested and was not provided with assistance services – CTA made provisional conclusion not definitive statement – Matter to proceed with CTA for final determination – Dismissed CANADIAN TRANSPORTATION AGENCY DECISIONS Application – Hi Fly – Transportes Aéreos, S.A. c.o.b. as Hi Fly, on behalf of itself and Sata Internacional – Azores Airlines, S.A. – Determination No. A-2017-21 Pursuant to section 60 of the Canada Transportation Act, S.C., 1996,…

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Ontario Court of Appeal confirms that disagreement over calculation of a bonus does not give rise to constructive dismissal

April 12, 2017

In a recent decision the Ontario Court of Appeal has confirmed a lower court decision which held that an employer’s calculation of a senior employee’s bonus entitlement (denying him $329,000 he thought he was entitled to) constituted a breach of his employment contract, but did not give rise to a constructive dismissal claim. In Chapman v. GPM Investment Management, the plaintiff was employed by GPM Investment Management, a company which provides real estate management services, as its Chief Executive Officer and President (as well as being a director of Integrated Asset Management Corp., a company which held an ownership interest…

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April 11, 2017 – Major Canadian airline disaster “likely”

April 11, 2017

TOP STORY Inspectors say a major Canadian airline disaster is ‘likely’   DECISIONS Judicial Review – CHRC complaint – Majidigoruh v. Jazz Aviation LP, 2017 FC 295 Failure to provide harassment free workplace complaint dismissed by CHRC – Complainant was not treated unfairly by the CHRC nor was there reviewable error – Dismissed Appeal – Security clearance denial – Hoang v. Canada (Attorney General), 2017 FCA 63 Allegation of discrimination based on family status in denial of clearance – Bona fide justification for Minister’s practice – Appellant did not provide context to perceived risk to investigator – Dismissed Appealed decision:…

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Federal adjudicator dismisses family status grievance – confirms that employer’s duty to accommodate is only engaged where a work rule interferes with an employee’s legal obligations

April 7, 2017

A recent adjudication decision suggests that the duty to accommodate an employee’s family status needs under the Canadian Human Rights Act, as recognized by the Federal Court of Appeal in Johnstone, is “quite narrow and limited”. In Guilbault v. Treasury Board (Department of National Defence) (January, 2017), a grievance referred to adjudication under the federal Public Service Labour Relations Act, the employee alleged that his employer discriminated against him on the basis of family status by refusing to accommodate his request for a shortened work day. The Board dismissed the grievance on the basis that the employee’s desire to arrive…

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April 4, 2017 – Canada still studying electronics ban

April 4, 2017

TOP STORY Canada still studying U.S., U.K. bans on in-flight electronics DECISIONS Costs – Fast track litigation cost limit – Wildcat Helicopters Inc. v. Ellis, 2017 BCSC 506 Plaintiff application for special costs due to meritless defence – Mayer Factors – Special costs awarded in the amount of $35,000 Original case: Wildcat Helicopters Inc. v. Ellis, 2016 BCSC 2214 Employer claim for reimbursement of training bond as per employment agreement – Employee failed to prove constructive dismissal – Employer awarded full training bon Passenger Claim – Garroussi c. Delta Airlines Company, 2016 QCCQ 17094 Passenger claim for lost baggage…

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March 28, 2017 – Facial recognition at airports now a reality

March 28, 2017

DECISIONS Order – The Commissioner of Competition v Vancouver Airport Authority, 2017 CACT 4 Confidentiality Order Grievance – Discipline – Thunder Bay International Airports Authority v Canada (Public Service Alliance), 2017 CanLII 14958 Grievor worked during driver’s license suspension without advising employer – Employer’s practice to provide leave without pay – Grievor received six-day suspension: three for days worked and paid instead of being on unpaid leave, and three disciplinary – Arbitrator agreed but directed personnel file to only show disciplinary portion of suspension Appeal – Security clearance – Mohamed v. Canada (Attorney General), 2017 FC 271 Cancellation of security…

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Unjust dismissal under the Canada Labour Code – Adjudicator states “default remedy must be reinstatement”

In the recent decision of Maninderpal Randhawa and The Bank of Nova Scotia (February, 2017) under Part III of the Canada Labour Code (the “Code”), Adjudicator Slotnick determined that reinstatement was the proper remedy after finding that the employee’s dismissal was unjust. The decision follows the principles set out by the Supreme Court of Canada in Wilson v. Atomic Energy of Canada Ltd. (2016). Readers of Focus may recall the Wilson decision as the Supreme Court made it clear that the unjust dismissal provisions of Part III of the Code afford non-unionized non-management employees the same protection against without cause…

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Highlights of Budget 2017 from a Labour and Employment Perspective

March 24, 2017

The federal budget tabled in the House of Commons on March 22, 2017, contains a number of measures that will be of particular interest to employers, especially those in federally-regulated sectors. Here is a summary of the budget highlights from a labour and employment perspective:   Changes to the Employment Insurance Act Expanded EI caregiver benefit – the government proposes to create a new EI caregiving benefit of up to 15 weeks. The new benefit will cover a broader range of situations than are currently covered, including circumstances where individuals are providing care to an adult family member who requires…

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Protecting your right to impose temporary layoffs

March 23, 2017

When it comes to downsizing, restructuring, or otherwise cost-cutting, employers may consider temporary or permanent layoffs. While temporary layoffs can be an effective means of cost-saving, they can also be risky if employers have not protected their right to temporarily lay off employees in their employment contracts. The Ontario Employment Standards Act, 2000 (ESA) allows employers to temporarily lay off employees, so long as the layoff lasts for no more than 13 weeks in any consecutive 20-week period. However, if a layoff extends for more than 13 weeks in any consecutive 20-week period, but lasts less than 35 weeks in…

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March 21, 2017 – Minister Releases Recreational Drone Regulations

March 21, 2017

DECISIONS Appeal – Thorne v. Hudson Estate, 2017 ONCA 208 Negligent misrepresentation claim against engine manufacturer following plane crash due to engine failure – Plane was travelling from Canada and crashed in USA – Appeal from decision dismissing manufacturer’s motion that US law applied – Law applicable to torts – No overriding error from motion judge – Dismissed Passenger claim – Racine c. Westjet, 2017 QCCQ 1184 Passengers refused boarding because they did not have valid passports at least 60 minutes before departure – Claimed cost of plane tickets as well as missed cruise and return flight – Passengers’ responsibility…

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March 14, 2017 – Canada Jetlines One Step Closer To Launch With Jet Metal Combination

March 14, 2017

DECISIONS Policy Grievance – Cathay Pacific Airways Ltd. v AOA-Canada, 2017 CanLII 10836 Flight officers required to prove eligibility to live and work in home base country – Union argued rule is inconsistent with collective agreement, unreasonable and inconsistently applied – Eligibility requirement found to be a valid unilateral rule Duty of Fair Representation complaint – Wayne N. Campbell v District 362 Unifor Local 2002, 2017 CanLII 10539 Applicant failed to file submissions on jurisdiction issue – Dismissed on basis of Board having no jurisdiction Application for Certification – International Association of Machinists and Aerospace Workers/Association Internationale des Machinistes et…

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Ontario Court of Appeal confirms when benefit entitlement claim will be arbitrable

In its recent decision (February 27, 2017) in Barber v. The Manufacturers Life Insurance Company (Manulife Financial), the Ontario Court of Appeal upheld the dismissal of an employee’s claim for long-term disability benefits (LTD), finding that the claim fell within the exclusive jurisdiction of a labour arbitrator. Adrian Barber was employed as a police constable in the town of Port Hope. The collective agreement between the Port Hope Police Services Board and the Port Hope Police Association, which governed Barber’s employment, required the Board to offer disability insurance coverage to the Association’s members. When Barber became disabled from her employment…

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Ambiguities in employment contracts continue to trip-up employers – Ontario Court of Appeal refuses to enforce termination clause and awards common law reasonable notice

March 10, 2017

A recent decision of the Ontario Court of Appeal drives home the importance of clear and unambiguous language in employment agreements. In Wood v. Fred Deeley Imports Ltd. (February, 2017), the Ontario Court of Appeal held that a termination clause in an employment contract was unenforceable because it failed to meet the minimum requirements under the Employment Standards Act, 2000 (the “ESA”). The Court came to this conclusion despite the employer having paid the employee more than would be required under the ESA at termination. The plaintiff was awarded damages based on common law reasonable notice equivalent to nine months’…

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