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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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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OLRB rules on disputed positions in application for certification proceeding – “if a party agrees to count the segregated ballot, it is an agreement that the position is included in the bargaining unit”

October 3, 2016

The Ontario Labour Relations Board (“Board”) recently ruled that, absent an agreement to the contrary, where a party agrees to count a ballot cast by a person occupying a disputed position in an application for certification proceeding, they are agreeing to include that position in the bargaining unit. In Canadian Union of Public Employees v City of Mississauga (August, 2016), the issue before the Board was whether to amend an interim certificate to include in the bargaining unit a previously disputed position. The Board, in an earlier decision, had certified the Union as bargaining agent for all employees employed by…

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Ontario Government Introduces Compensation Framework for Designated Executives of Broader Public Sector Employers

September 14, 2016

On September 6, 2016, the provincial government filed Regulation 304/16: Executive Compensation Framework (the “Framework”) under the Broader Public Sector Executive Compensation Act, 2014 (BPSECA). The Regulation establishes a framework for the compensation of “designated executives” within the broader public sector. Under the Regulation, designated employers are required to establish written executive compensation programs which will, among other things, cap the salary and performance-related payments payable to “designated executives”. The Regulation gives these employers a year to develop and implement compensation programs that comply with the Framework, including conducting public consultations. The Framework established under the Regulation will become effective…

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Ontario considers options to amend the Employment Standards Act and the Labour Relations Act

August 25, 2016

The Ministry of Labour has released an Interim Report setting out a number of options to update and overhaul employment and labour laws in Ontario. The report was prepared by C. Michael Mitchell and former Justice John C. Murray and is the culmination of numerous public consultations that were held in 12 cities across Ontario in 2015. The Interim Report, released July 27, 2016, is part of a larger study entitled The Changing Workplaces Review (“Review”). The Review is unprecedented as it is the first independent review commissioned by the Ontario Government seeking recommendations for legislative change of both the…

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New OHSA requirements for employers to prevent and investigate sexual harassment come into force in September

August 17, 2016

Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016, received Royal Assent on March 8, 2016. As readers of Focus will recall, Bill 132 amends the Occupational Health and Safety Act (“OHSA”) to introduce new requirements for employers to prevent and investigate sexual harassment in the workplace (see Ontario moves forward with legislative amendments to combat sexual violence and harassment). These new requirements will be in force September 8, 2016 and employers should begin to prepare to ensure compliance. Bill 132 amends the definition of “workplace harassment” to include “workplace sexual…

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