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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New PIPEDA Breach Reporting Obligations

September 25, 2018

On November 1, 2018 new mandatory privacy breach reporting requirements will come into effect for all organizations governed by the Personal Information and Electronic Documents Act (“PIPEDA”). In preparation, the Office of the Privacy Commissioner of Canada (“OPC”) has released a document providing guidance on mandatory breach reporting. This guidance is currently in draft form and open for consultation from stakeholders until October 2, 2018, following which a final version of the documents will be published. When to Report a Breach The mandatory breach reporting requirements will only require organizations to report breaches that create a “real risk of significant harm”…

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Court awards damages and an injunction to an employer for defamatory statements made by a former employee

September 21, 2018

The Ontario Superior Court of Justice awarded damages, punitive damages and a permanent interlocutory injunction to an employer and two of its managers due to defamatory statements made by a former employee (hereinafter the “Defendant”) who had previously been dismissed for cause. Sébastien Huard and Justin Dubois, of Emond Harnden, were successful before the Court on behalf of the employer and two members of management (jointly referred to as the “Plaintiffs”). The employer, the Association pour l’intégration sociale d’Ottawa, is a non-profit organization offering services within the City of Ottawa to French-speaking persons with an intellectual deficiency or developmental handicap….

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Federal Government releases report on consultations to modernize Canada Labour Code

September 11, 2018

The Canada Labour Code (“Code”) minimum standards for wages, hours of work, and other general working conditions, were established in the 1960s at a time when standard employment (i.e. full-time employment with decent wages and benefits) was the norm. For the most part, these standards have remained unchanged notwithstanding the dramatic rise in non-standard employment since the 1970s. Non-standard employment includes temporary and part-time work, usually without benefits, and is characterized as being low income, unstable, and precarious. Given this context, the federal government (Employment and Social Development Canada) conducted a ten-month consultation period with a broad range of stakeholders, to discuss how…

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Discrimination on the basis of citizenship – Ontario Human Rights Tribunal releases landmark decision

September 7, 2018

In Haseeb v. Imperial Oil Ltd. (July, 2018), the Human Rights Tribunal of Ontario (“Tribunal”) was tasked with considering a claim of discrimination in employment on the basis of citizenship. While citizenship is a prohibited ground of discrimination under the Ontario Human Rights Code (“Code”), it is certainly one of the less frequently litigated grounds of discrimination. The decision therefore is very useful to employers as it discusses citizenship discrimination in the hiring process with particular regard to employment qualifications and pre-conditions. The facts giving rise to the case may seem innocuous at first blush. Imperial Oil Ltd. had a program through…

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July 1st a Sunday? Holidays Act “Bumps” Canada Day to July 2nd

June 26, 2018

The federal Holidays Act provides that July1st is a legal holiday, kept and observed under the name “Canada Day”. This year July 1st falls on a Sunday which, for most employees, would not be a regular working day. As a result, Canada Day is “bumped” to July 2nd. This can lead to some confusion on the parts of both employers and employees as to what holiday benefits employees are entitled to and on which day. When July 1st is a Sunday As noted above, the Holidays Act states that July 1st is the legal holiday known as Canada Day. However,…

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Voting time: Employers’ obligations on election day

May 31, 2018

An Ontario provincial election has been called for June 7, 2018. Employers should be aware that, under the Ontario Election Act, they must provide employees time off to serve or to vote at the election. Serving at election All employees acting as returning officers or who have been appointed by a returning officer to be poll officials are entitled to an unpaid leave of absence to perform their election duties. A leave shall be granted where an employer is provided with at least seven days notice of the employee’s intention to take a leave. An employer shall not dismiss or…

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Ontario government announces that public holiday pay calculations will change (again) effective July 1, 2018

May 8, 2018

Employers who have been grappling with the new public holiday pay formula introduced earlier this year through Bill 148, the Fair Workplaces, Better Jobs Act, 2017, may be relieved to know that the government has announced that it will be reverting to the old formula, at least temporarily. On May 7, 2018, the government filed a Regulation under the Employment Standards Act, 2000 (“ESA”) (Ontario Regulation 375/18), which will take effect on July 1, 2018. Under that Regulation, an employee’s public holiday pay will be equal to the total amount of the regular wages earned and vacation pay payable to…

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Ontario arbitrator finds employees entitled to short-term and long-term disability plans under collective agreement not entitled to Personal Emergency Leave

May 4, 2018

Focus readers will recall that recent changes to Personal Emergency Leave (PEL) under the Employment Standards Act (ESA) have given all employees two paid and eight unpaid PEL days. These changes have left many employers that provide additional paid leave (such as sick, bereavement, and other leaves) questioning whether they must now also provide the PEL under the ESA. A recent arbitral decision sheds some light on this issue. An arbitrator ruled that employees covered by a collective agreement that provides both short-term and long-term disability benefits are not entitled to an additional two paid PEL days under the ESA….

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Arbitrator upholds termination for sexual harassment but rejects “zero-tolerance” approach

April 20, 2018

A recent arbitration decision upheld the termination of an employee for violating the Employer’s workplace violence and harassment policy. In Re Metro Rideau Store v. UNIFOR Local 414 (March 2018), Arbitrator Baxter found that on a balance of probabilities the terminated employee had sexually harassed a female co-worker, and that the Company’s decision to terminate the employment was not excessive. The employee at the time of termination was 61 years old, with eight years service and no prior disciplinary record. The Employer in this case was successfully represented by Emond Harnden’s own J.D. Sharp. The facts giving rise to the…

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Equal pay for equal work regardless of employment status provisions of Bill 148 coming into effect on April 1, 2018

March 29, 2018

The Employment Standards Act (ESA) currently prohibits employers from paying employees different rates of pay based on sex if they perform equal work. Effective April 1, 2018, there will be new provisions added to the ESA that will extend this equal pay requirement to employees whose employment status is different but who nevertheless perform substantially the same kind of work. A difference in employment status refers to a difference in the number of hours regularly worked (e.g., full-time vs. part-time) or a difference in the term of employment (e.g., permanent vs. temporary, casual or seasonal). This new equal pay requirement…

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