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2009

Judge reserves decision in Scotiabank unpaid overtime class action certification application

Jurisdiction: - Canada/Federal - Ontario

The Ontario judge hearing the Scotiabank unpaid overtime class action certification application has reserved his decision, according to this Canadian Press article. (You can read the Statement of Claim here).

The Scotiabank case is the second of the "Big Three" unpaid overtime class action certification appplications to be brought by the same coalition of law firms.   read more »

"From Independent Contractor to Employee"

Jurisdiction: - Canada/Federal - Ontario

Megan Wright (now Megan Burkett) at Keyser Mason Ball in Ontario, has written an article entitled, "From Independent Contractor to Employee"(undated).

The paper addresses the question: at what point does an independent contractor become an employee? 

Ms. Wright notes that a non-exhaastive list of questions that are asked when examining this issue are:

  1. Does the company control the contractor's activities?
  2. Does the company provide equipment to the contractor?
  3. Does the company assume all the risk in the projects with the contractor?
  4. Does the contractor maintain an office at the company and only works out of such office?
  5. Does the contractor participate in the company benefit plans?
  6. Does the company reimburse the contractor for expenses?
  7. Does the contractor work during hours specified by the company?

"When to combine oppression and wrongful dismissal claims"

Jurisdiction: - Ontario

Steve Levitt at Nelligan O'Brien Payne LLP in Ottawa has written article entitled, "When to combine oppression and wrongful dismissal claims". The article was published in the November 6, 2009 edition of The Lawyers Weekly.

The article discusses the Ontario Divisional Court's decision in 2082825 Ontario Inc. v. Platinum Wood Finishing Inc., 2009 CanLII 14394 (ON S.C.D.C.), which upheld a trial judge's decision that combined a wrongful dismissal claim with an oppression remedy application.

Judge declines to award special costs in case where unionized employee sued employer in court

The BC Supreme Court judge in Johnston v. Surrey (City), 2009 BCSC 1520, refused to award special costs in a case where a unionized employee filed a lawsuit in court against his employer alleging constructive dismissal.

Background

The long term employee filed a lawsuit in spring 2008 against the defendant employer (and a named individual) alleging that he was constructively dismissed.

Upon receipt of the Statement of Claim, the employer advised the employee of its position that:

  1. the circumstances giving rise to the constructive dismissal - a layoff -  occurred in 1995 and 1996 and thus were time barred by the limitation period set out in the BC Limitation Act; and
  2. the employee was a unionized employee and therefore the claim was not within the jurisdiction of the court.

The employee further requested that the Claim be withdrawn failing which the employer would bring an application to strike the Claim pursuant to Rule 19(24) and seek special costs  read more »

British Columbia's unemployment rate hits 8.3% in October

Jurisdiction: - British Columbia

Stats Canada released its October 2009 Labour Force Survey yesterday. Notable facts include:

  • Nationally, "employment decreased by 43,000 in October, all in part time. This drop
    pushed the unemployment rate up 0.2 percentage points to 8.6%."
  • The largest employment losses occurred in Alberta and BC.
  • In October, British Columbia's employment declined by 13,000.
  • This employment loss in BC, coupled with a slight increase in the labour force, pushed the unemployment rate in the province to 8.3%, up 0.9 percentage points from September.
  • Over the past 12 months, employment in BC has fallen by 2.2% (-52,000).

The next release of the Labour Force Survey will be on December 4, 2009.

CLE BC "Human Rights Conference - 2009"

Jurisdiction: - British Columbia - Canada/Federal

Day 2 of the annual CLE BC "Human Rights Conference - 2009" took place today in Vancouver. J. Grant Sinclair, Q.C., whose appointment as chair of the Canadian Human Rights Tribunal ended this week, was the luncheon speaker. He presented on section 13 of the Canadian Human Rights Act, which prohibits hate messages.  

Amendments to Ontario's Employment Standards Act that regulate temporary help agencies in effect today

Topics: - Workforce Trends
Jurisdiction: - Ontario

Ontario's Employment Standards Amendment Act (Temporary Help Agencies) came into effect today, six months after receiving Royal Assent.

Also known as Bill 139, the legislation amends Ontario's Employment Standards Act, 2000 to regulate temporary help agencies and to ensure that "temporary help agency employees are treated fairly and have a better chance to move to sustainable employment."

Bill 139 was introduced by the Ontario government in December 2008 as part of its "Poverty Reduction Strategy".

The Ontario Ministry of Labour has several useful publications that outline the changes available here.

Auditor General's report examines how Canada selects foreign workers under its immigration program

Canada's Auditor General issued its 2009 Fall Report today. Chapter 2 is entitled "Selecting Foreign Workers Under the Immigration Program" and is an audit of HRSDC's and Citizenship and Immigration Canada's (CIC's) practices in this regard. The report, in its entirety, can be read here.

"Fairness for the Self-Employed Act" will allow self-employed to collect maternity, parental and other special EI benefits

As expected, the Conservative government introduced legislation today - the Fairness for the Self-Employed Act  - that will allow self-employed individuals to opt into the employment insurance plan and collect maternity, parental, sickness and compassionate-care leave benefits.

CBC News has a story here. The federal government's news release is here.

Maximum pensionable earnings under Canada Pension Plan will be $47,200 for 2010

The maximum pensionable earnings for 2010 under the Canada Pension Plan (CPP) will be $47,200—up from $46,300 in 2009, the Canada Revenue Agency announced today. You can read the media release here.

Industrial Inquiry Commission appointed to review bargaining structure for ambulance paramedics and dispatchers

Jurisdiction: - British Columbia

The BC Government announced today that it will be appointing an Industrial Inquiry Commission under the BC Labour Relations Code to reveiw the bargaining structure for ambulance paramedics and dispatchers. You can read the news release here.

Yesteday, the provincial government introduced legislation - the Ambulance Services Collective Agreement Act (Bill 21) - that would impose a new collective agreement on the paramedics and dispatchers and end the seven month labour dispute (which has been subject to an essential services order). You can read more about the labour dispute and legislation in this Vancouver Sun story

"Overview of insolvency proceedings in Canada"

Jurisdiction: - Canada/Federal

Law firm McMillan LLP has prepared a comprehensive "Overview of insolvency proceedings in Canada" (October 2009). It outlines the Canadian legislative framework and briefly describes the receivership process, the bankruptcy regime and the formal restructuring alternatives available to debtors. The three key statutes it addresses are:

  • the Bankruptcy and Insolvency Act,
  • the Companies' Creditors Arrangement Act, and
  • the Winding-up and Restructuring Act.

Legislation to be introduced to allow self-employed access to maternity and parental EI benefits

The federal government will be introducing legislation tomorrow that will allow self-employed individuals access to maternity and parental leave benefits under the Employment Insurance program, according to this Globe and Mail story.

Relationships that give rise to fiduciary obligations

In a previous post, I mentioned that Justice Rothstein of the Supreme Court of Canada spoke about fiduciary duties in the employment context at the "10th Annual Employment Summit" in Toronto.

Specifically, he referred to recent cases before the Court in which fiduciary duties had been alleged: RBC Dominion Securities Inc. v. Merrill Lynch Canada Inc., 2008 SCC 54 and Galambos v. Perez, 2009 SCC 48.

What type of relationships will give rise to fiduciary duties?

In the leading case of Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574, which is not an employment law case, the Supreme Court of Canada stated that relationships in which a fiduciary duties have been imposed generally, although not always, share three general characteristics:  read more »