Focus Alerts

Our Focus Alerts provide up-to-the minute information about significant cases and other developments in labour and employment law.

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

March 14, 2017

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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Workplace Violence – Requirements and recent developments

December 19, 2016

Ontario’s Occupational Health and Safety Act (OHSA) was amended in June 2010, by Bill 168, to include new requirements for employers to address and prevent workplace violence. As a result, dealing with violence in the workplace has become a priority for employers. Although there are few decided OHSA prosecution cases to date dealing with the requirements relating to workplace violence, we are beginning to see some cases work their way through the system. Recent incidents of workplace violence have resulted in significant fines against employers who have failed to meet their statutory obligations. Those decisions assist in clarifying the statutory requirements and…

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Supreme Court of Canada upholds protection for solicitor-client privilege – statutory intrusions must be “clear and unambiguous”

December 15, 2016

In a surprising decision, a majority of the Supreme Court of Canada held that solicitor-client privilege may only be set-aside by statutory language that demonstrates a clear and unambiguous legislative intent to do so. In Alberta (Information and Privacy Commissioner) v. University of Calgary (November, 2016), the issue was whether the Alberta Information and Privacy Commissioner (the “Commissioner”) had the authority to order the production of records that were claimed to be solicitor-client privileged in order to determine whether the claim of privilege was properly asserted. The Commissioner argued that section 56(3) of the Alberta Freedom of Information Protection of…

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Competent persons under the Canada Labour Code – employees must agree to impartiality

December 8, 2016

Readers of Focus will recall that under the Canada Occupational Health and Safety Regulations (the “Regulations”) passed pursuant to the Canada Labour Code, where a complaint of workplace violence cannot be resolved informally with the complaining employee, an employer is required to appoint a “competent person” to investigate the complaint. Section 20.9 of the Regulations defines a “competent person” to be, among other things, someone who is “impartial and is seen by the parties to be impartial” (underlining added). In a recent decision, the Occupational Health and Safety Tribunal Canada (the “Tribunal”) held that this requirement means that the complaining…

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Québec Superior Court finds breach of OHSA can support committal to trial on manslaughter charge under Criminal Code

November 23, 2016

The Québec Superior Court has just released (October 31) a decision that commands the attention of supervisors, employers and health and safety professionals across Canada. In R. v. Fournier, the Court decided that a workplace fatality flowing from a breach of provincial health and safety legislation could support committal to trial on a charge of manslaughter under the Criminal Code. The case arises out of the tragic events of April 3, 2012. On that date, Gilles Lévesque died on the job when the walls of a trench he was working in collapsed. The accused, Sylvain Fournier, is the owner of…

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Emond Harnden’s Submissions on the Changing Workplace Review Special Advisors’ Interim Report

November 10, 2016

In February 2015, the Minister of Labour appointed C. Michael Mitchell and former Justice John C. Murray as Special Advisors to lead the Changing Workplace Review, an independent review commissioned by the Ontario Government seeking recommendations to modernize both the Employment Standards Act and the Labour Relations Act. On July 27, 2016, the Special Advisors released an Interim Report setting out a number of options to update and overhaul employment and labour laws in Ontario. The report is the culmination of numerous public consultations that were held in 12 cities across Ontario in 2015 (see Ontario considers options to amend…

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Human Rights Tribunal of Ontario rejects Johnstone test for family status discrimination – “the test for discrimination is the same in all cases”

October 21, 2016

The debate over the proper legal test for establishing discrimination on the basis of family status has been reignited by a recent decision of the Human Rights Tribunal of Ontario (“HRTO”). In Misetich v. Value Village Stores Inc. (September, 2016), the HRTO rejected the more recent line of jurisprudence and instead applied what it referred to as “well-established human rights principles” to set out the test for family status discrimination. In doing so, the HRTO explicitly rejected the test developed by the Federal Court of Appeal. The applicant in Misetich v. Value Village Stores Inc. claimed that her employer had…

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