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Ontario Employer Advisor

Keeping Employers Advised on Developments in Labour and Employment Law

Ontario Human Rights Commission Releases New Policy on Gender Identity and Gender Expression

Posted in Accommodation, Discrimination, Human Rights, Policies
Benjamin Aberant

On April 15, the Ontario Human Rights Commission (the Commission) published a new comprehensive policy entitled Policy on preventing discrimination because of Gender Identity and Gender Expression. According to the Commission, the policy

is a complete revision and update of the Ontario Human Rights Commission’s (OHRC’s) original Policy on discrimination and harassment because of gender identity first published in 2000.

Its stated purpose is to discuss and promote understanding and awareness about trans people and their rights under the Ontario Human Rights Code (the Code) and to help employers recognize and meet their legal obligations under the Code not to discriminate on the basis of gender identity and gender expression.

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Daughter’s Facebook Post Causes Father to Lose $80,000 Settlement From Age Discrimination Lawsuit

Posted in Age, Discrimination, Human Rights
Benjamin Aberant

A recent decision from the Florida Third District Court of Appeal provides some valuable guidance for Canadian employers wishing to keep settlement agreements strictly confidential. Patrick Snay (Snay) had settled an age discrimination lawsuit with his former employer Gulliver Preparatory School (the School). The School agreed to pay him $80,000, but the settlement agreement contained the following confidentiality clause:

Confidentiality…[T]he plaintiff shall not either directly or indirectly, disclose, discuss or communicate to any entity or person, except his attorneys or other professional advisors or spouse any information whatsoever regarding the existence or terms of this Agreement…A breach…will result in disgorgement of the Plaintiffs portion of the settlement Payments.

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Time Limits for Wage Complaints Under the Canada Labour Code to Come Into Force April 1

Posted in Employment Standards, Wage and Hours
Matthew Demeo

The long-awaited proclamation of several important amendments to the Canada Labour Code (the Code), have finally been announced. On March 12, 2014, the Federal Government announced that April 1, 2014 will be the day that certain sections of the Jobs and Growth Act, 2012, will come into force. The Jobs and Growth Act, 2012, also known informally as Bill C-45, received Royal Assent in December 2012 as a means to implement parts of the 2012 Federal Budget.

Of particular note for employers in the federal jurisdiction is that the Bill C-45 amendments will establish precise time limits for complaints for unpaid wages and other alleged employment standards violations under Part III of the Code.

Currently under the Code, there is no time limit on the recovery of unpaid wages through payment orders and employers are at risk of a wage order that could extend back to an employee’s hire date.

Once Bill C-45 comes into force, complaints for unpaid wages must abide by the following time limits (subject to any extensions prescribed by the regulations):

  • Complaints for non-payment of wages or other amounts to which an employee is entitled under Part III of the Code, must be made within six months from the last day on which the employer was required to pay those wages or other amounts.
  • In addition, any other complaint must be made within six months from the day on which the subject matter of the complaint arose.

With respect to the period of time covered by a payment order, a payment order will cover wages and other amounts owing for a period starting 12 months before the day on which the complaint was made or the 12 months before the date of termination. This period is extended to 24 months with respect to unpaid vacation pay.

The addition of time limits for making complaints under the Code as well as the introduction of a fixed period of time for which a payment order for unpaid wages can be made will bring the Code in line with many other provincial jurisdictions (including Ontario) that have similar protections. In addition, it will clarify the determination for amounts owing on payment orders and reduce the likelihood of appeals that attempt to either extend or reduce the period covered by the payment order. Finally, employers will benefit from the protection of not having to defend dated wage complaints.

No Perfect Attendance Bonus to Employee on Workers’ Compensation Leave of Absence

Posted in Benefits, Compensation, Pensions, Discrimination, Human Rights, Policies
Daniel Pugen

Managing absenteeism and dealing with the associated costs are among the most difficult things employers face. Accordingly, many employers try to incentivize employees to improve their attendance by providing bonuses based on meeting attendance thresholds. Seems simple enough. However, what if an employee is off work on a disability leave? That employee is off work through no fault of his/her own yet otherwise had perfect attendance. Should such an employee be able to claim the attendance bonus?

A recent arbitration decision says “no”.

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Did Bringing a Class Action Over Changes in Post-Retirement Benefits Just Get Easier?

Posted in Benefits, Compensation, Pensions
Daniel PugenMark Firman

On January 16, 2014, the Supreme Court of Canada released its long-anticipated decision in Vivendi Canada Inc. v. Dell’Aniello. The decision affirmed the Quebec Court of Appeal’s 2012 judgment certifying a class proceeding by retirees of Vivendi Canada (formerly Seagram) and their beneficiaries over the company’s unilateral reductions in their post-retirement health and welfare benefit coverage.

Prior to Vivendi, the question of whether or not a group of retirees could successfully bring a class proceeding against their former employer for changes in post-retirement benefits was, to quote Donald Rumsfeld, a “known unknown”. Different courts across the country had reached different conclusions. Because these claims so often rely on different versions of plan documents, presentations and statements made to employees and retirees, sometimes over the span of decades, some courts have found the claims to be so individualized that a class proceeding is simply not the appropriate way to move forward. Other courts have disagreed.

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McCarthy Tétrault strengthens its commitment to innovation and efficiency with addition of Labour Relations Specialist Melissa Kennedy

Posted in Awards and Kudos

We are delighted to announce that Melissa Kennedy has joined the firm as Labour Relations Specialist in the Labour & Employment Group in Toronto. The newly created role — the first of its kind for our firm — is part of our commitment to providing clients with the highest quality strategic legal services, most efficiently through a unique set of solutions called MTOptimize.

MTOptimize is a new service delivery model that uses a rigorous approach to find the most cost- and time-efficient arrangements for the firm to work with its clients through a step-by-step evaluation process.

Ms. Kennedy will assist the Labour & Employment Group in preparing for collective bargaining, labour arbitrations, workplace investigations, and human resources training and policies. Through an interdisciplinary and integrated approach, the role will allow the group to advise and assist clients with strategic human resource projects more efficiently. Continue Reading

Minimum Wage Increase Coming to Ontario

Posted in Benefits, Compensation, Pensions, Wage and Hours
Daniel Pugen

Effective June 1, 2014, the general minimum wage in Ontario will increase from $10.25 to $11.00 per hour. The increase will result in Ontario and Nunavut having the highest minimum wage in Canada. The increase essentially accounts for inflation since the last minimum wage raise to $10.25 in 2010. The student minimum wage will also increase from $9.60 to $10.30 per hour.

The increase follows a report from a panel that was commissioned by the Ontario government to study the minimum wage. A key recommendation of the report was that the minimum wage be tied to the rate of inflation and be adjusted each year. Accordingly, the government has stated that it will be introducing legislation to tie future minimum wage increases to the Consumer Price Index to “ensure the minimum wage keeps up with the cost of living, and that increases are predictable for businesses and families.” The legislation would announce the increase on April 1st each year with an effective date of October 1st .

The government’s announcement was not unexpected, especially considering a recent government bill aimed at protecting “vulnerable workers”, which proposes major changes to workplace legislation. That bill is summarized in a previous blog post.

Following an OHSA Order is not a Mitigating Factor in Sentencing

Posted in Litigation, Occupational Health and Safety, Policies
Matthew Demeo

A recent decision from the Ontario Court of Appeal stands for the principle that with respect to sentencing under the Occupational Health and Safety Act (OHSA), you will not receive any credit for doing something you were ordered to do.

In Ontario (Labour) v. Flex-N-Gate Canada Company, 2014 ONCA 53, the employer was convicted of two offences under the OHSA for failing to properly transport metal sheets with a forklift, which resulted in the injury to a worker’s foot. Following the accident, the Ministry of Labour issued two orders involving the movement of material, which the employer immediately complied with by changing its procedure. There was no evidence presented that the employer went above and beyond what the compliance order required.

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New Human Rights Decision Provides Guidance on Frustration of Contract

When is an employment agreement frustrated?

Posted in Benefits, Compensation, Pensions, Human Rights, Occupational Health and Safety, Termination
Benjamin Aberant

We are often asked by our clients how long one of their employees has to be off work before it can justifiably take the position that an employment relationship has been “frustrated”.  Employers often wonder this because when an employment relationship is frustrated, the employee is not entitled to common law notice or pay in lieu of such notice [1]. So, how long does it take? 1 year? 18 months? 2 years? 5 years?

A recent Human Rights Tribunal decision, Gahagan v. James Campbell Inc., 2014 HRTO 14, appears to provide some guidance on this issue.

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Beauty Pageant Case Provides Example of Welcomed Use of Summary Hearings by the Human Rights Tribunal

Posted in Discrimination, Human Rights
Daniel PugenBenjamin Aberant

Back in April 2013, we reported on a Human Rights Tribunal (the Tribunal) decision where a summary hearing was granted and an application was dismissed as having no reasonable prospect of success. A newly released decision involving a beauty pageant demonstrates the Tribunal’s increasing and welcomed use of the summary hearing mechanism.

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