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”.
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.
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
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.
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.
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 . 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.
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.
We are delighted to share that McCarthy Tétrault’s Canadian Appeals Monitor blog has received a 2013 Clawbie (Canadian Law Blog Award) in the Practice Group Blog category, for its overall excellence in covering Canada’s appellate courts and cases.
Canadian Appeals Monitor is one of McCarthy Tétrault’s 10 blogs covering a variety of practice areas. The Clawbies highlight in particular “This Week at the SCC” as “a strong regular contribution” that “really does take a national firm to pull off.”
We are also very proud of our partner Barry Sookman, whose eponymous Barry Sookman blog was a runner-up in the Clawbies’ Legal Technology category. Barry is the former co-chair of McCarthy Tétrault’s Technology Group and former head of its Intellectual Property Group, and is one of Canada’s foremost authorities in information technology and intellectual property law. He uses his blog to share his views on a wide range of copyright, Internet and information technology issues.
We look forward to more great blogging in 2014!
A common complaint we hear from employers who are engaged in proceedings before the Human Rights Tribunal of Ontario (Tribunal) is that regardless of the merits of the complaint, or the end result, the employer is burdened with the legal costs of successfully defending a complaint. Currently, the Tribunal does not have the explicit power under the Human Rights Code to order costs against the unsuccessful party, and the Supreme Court of Canada has stated that a human rights tribunal cannot order costs without an express grant from Parliament.
The introduction of a recent private members bill seeks to address that exact issue. Bill 147, An Act to amend the Human Rights Code with respect to the awarding of costs of proceedings, would grant the Tribunal the discretionary power to order legal costs against the unsuccessful party. Whether the Tribunal would utilize this discretion against complainants, whether unrepresented or not, is difficult to predict, but it at least creates that potential, particularly given the frivolous and vexatious nature of some complaints.
Given that Bill 147 was introduced by the opposition Progressive Conservative party and has not yet been the subject of debate in the Ontario Legislature, it still has a long way to go before being passed into law. Regardless, it raises a very important issue for employers and we will provide an update if this bill gains any traction.
On December 4, 2013, the Ontario government introduced Bill 146, the Stronger Workplaces for a Stronger Economy Act, 2013. Bill 146 implements some of the recommendations made by the Law Reform Commission of Ontario that submitted a report on vulnerable workers.
Although the bill has just been introduced, if it passes through the legislature and then receives royal assent, it will have a significant impact on workplace regulation in Ontario. Some of the key proposed changes (which are summarized in detail here) include the following: