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2009

Ontario's "10th Annual Employment Law Summit"

I attended the Law Society of Upper Canada's "10th Annual Employment Law Summit" in Toronto today.

The keynote speaker was the Honourable Mr. Justice Marshall Rothstein of the Supreme Court of Canada. He focused his comments on two recent cases in which the SCC has addressed fiduciary duties in the employment context:  read more »

"Staying on Track: Car Expenses and Benefits - A Tax Guide (2009)"

PricewaterhouseCoppers LLP has published "Staying on Track: Car Expenses and Benefits - A Tax Guide (2009)". It provides an excellent overview of the tax implications for Canadian employers "when they provide automobiles to employees to help them perform their employment duties, or instead give allowances or expense reimbursements".

P.E.I. Human Rights Commission hearing on mandatory retirement at UPEI comes to close

Jurisdiction: - Prince Edward Island
Sector: - Education

A P.E.I. Human Rights Commission panel heard closing arguments yesterday on whether mandatory retirement at the University of Prince Edward Island is discriminatory, according to a CBC News report.

The complaint has been brought by three former faculty members at the university.

The mandatory retirement policy in question forms part of the collective agreement between the university and the faculty association. This March 2009 memo from the faculty association to its members provides background information about why the policy was included in the collective agremeent.

PEI has abolished mandatory retirement generally, but section 11 of the PEI Human Rights Act provides that:

The provisions of this Act relating to discrimination in relation to age or physical or intellectual disability do not affect the operation of any genuine retirement or pension plan or any genuine group or employee insurance plan.  read more »

New member appointed to Canada Industrial Relations Board

Jurisdiction: - Canada/Federal

The federal Minister of Labour announced today the appointment of David Paul Olsen as a full-time member to the Canada Industrial Relations Board. You can read about the appointment/Mr. Olsen here

Court denies employee's claim for negligent misrepresentation during the recruiting/hiring process

Jurisdiction: - British Columbia
Sector: - Forestry

Despite the employee's sympathetic facts in Lesage v. Canadian Forest Products Ltd.,
2009 BCSC 1427
, the BC Supreme Court denied his claims for (1) negligent misrepresentation and (2) constructive dismissal.

Background 

The employee started working for Ainsworth Lumber Company Ltd. ("Ainsworth") in 100 Mile House in 2000. He was a divisional accountant or divisional controller.

In the fall of 2006, a representative from another forestry company, Canfor, who knew the employee, contacted him to advise of an opening at Canfor. Canfor ultimately filled this position with another candidate, but subsequnetly discussed with the employee his interest in a Regional Controller position.

The employee was initially not interested in the position because it required living in Fort Nelson. However, in December 2006, Canfor advised the employee that he could be based in Prince George, and that the position would provide him with accounting responsibility for three of its mills.  read more »

BC Employment Standards Branch announces change in how Act's "temporary layoff" provisions to be applied

Jurisdiction: - British Columbia

The BC Employment Standards Branch has announced that it is changing how it will apply the "temporary layoff" provisions of the BC Employment Standards Act.

Section 1 of the Act states that a "temporary layoff" means:

  • in the case of an employee who has a right of recall, a layoff that exceeds the specified period within which the employee is entitled to be recalled to employment, and
  • in any other case, a layoff of up to 13 weeks in any period of 20 consecutive weeks;

Section 1 of the Act further states that "termination of employment" includes a layoff other than a temporary layoff.

The BC Employment Standards Tribunal has interpreted these sections of the Act as follows:  read more »

Designated missions/operations that may qualify employees for reservist leave under Canada Labour Code

Jurisdiction: - Canada/Federal

The federal government introduced an unpaid leave of absence for members of the Canadian reserves (who otherwise qualify) into Part III of the Canada Labour Code in 2008 (Bill C-40).

Among other triggers, reserve members are entitled to the leave in order to take part in:

...an operation in Canada or abroad - including preparation, training,
rest or travel from or to the employee's residence - that is designated
by the Minister of National Defence.

Until recently, it was unclear whether the 2010 Winter Olympic Games was an operation that had been designated by the Minister.

However, as seen on this list of designated missions and operations published by the federal government, the Games have indeed been designated as an operation that may entitle the reserve member for the leave.

"CCAA: The Ultimate Restructure"

Jurisdiction: - Canada/Federal

Ontario labour and employment lawyer Janice B. Payne has written a paper entitled "CCAA: The Ultimate Restructure" (September 21, 2009). The first part of the paper provides an overview of the Companies' Creditors Arrangement Act ("CCAA").

The second part of the paper focuses on employment issues under the CCAA and specifically addresses:  read more »

WorkSafeBC average base premium rates to remain at $1.56 in 2010

Jurisdiction: - British Columbia

WorkSafeBC announced today that BC employers’ 2010 average base premium rates will remain the same as the last two years, at $1.56 per $100 of employers’ assessable payroll.

These are the lowest rates in more than 30 years, down from a high of $2.29 in 1996, according to WorkSafeBC. 

The news release further stated that:

The average published base premium rate is a composite of rates in 66 individual rate groups, which function as separate mutual insurance pools for B.C.’s industries. Insurance premium rates for B.C.’s 200,000 registered employers are based on the claims cost (or safety) history of their industry and similar employers, and on individual performance.

In 2010, 41 percent of employers will see their base premium rates decrease from 2009, 5 percent will see their base rates remain the same and 54 percent of employers will see their base rates increase.  read more »

Change in circumstances was transfer of business, not termination; no severance owing under Canada Labour Code

Jurisdiction: - Canada/Federal

Group 4 Falck (Canada) Ltd. and Abdulla (Re) (October 13, 2009, Canada, T. Hodges)

"Class Action Lawsuits and Employment Law: What You Need to Know"

A lawyer in Ontario at Blaney McMurtry LLP has written a paper entitled "Class Action Lawsuits and Employment Law: What You Need to Know".

BC Court of Appeal addresses how lump-sum pension payments should be calculated over notice period

Jurisdiction: - British Columbia
Sector: - Manufacturing

In the wrongful dismissal case of Lewis v. Lehigh Northwest Cement Limited, 2009 BCCA 424, the BC Court of Appeal addressed the manner in which special allowances, discretionary increases in salary and pension benefits should be treated over the notice period. It also discussed the duty the mitigate and the awarding of costs.

Background

The appellant employee had been employed by Lehigh Northwest Cement Limited ("Lehigh") for 26 years.  He was the manager of computer systems. He was dismissed without cause in 2006 following a 28 month medical leave of absence because there was no position for him to return to.  He was 58 years of age.  Lehigh offered him a severance package equal to 15 months salary, which he declined.

At trial, he was awarded 22 months notice, which equalled about $200,000, and about 30% of his costs (see  Lewis v. Lehigh Northwest Cement Limited, 2008 BCSC 542).  read more »

Business Council of BC releases paper that assesses BC's labour force projections to 2030

Jurisdiction: - British Columbia

As part of its Outlook 2020 Project, the Business Council of BC has released a paper entitled "Where Will The Workers Come From? British Columbia Labour Force Projections to 2030". The authors conlude, somewhat surprisingly, as follows:

...the results of our analysis are encouraging in that quite moderate changes in behaviour (particpation rates) and in policy (immigration, temporary work visas, training programs and so on) can materially lift growth in the labour force. This suggests that labour shortages in the coming decade are apt to be far less pervasive than often feared. It is important to recognize, however, that the labour market will tighten irrespective of future changes, and that the macroeconomic projections reported in this paper say little about labour demand/supply conditions in specific industries or regions. With more people retiring, it is reasonable to anticipate greater hiring challenges in some sectors of the economy as well as for certain highly-skilled occupations in fields like health care and advanced technology (pg. ii).

BC court rules that employer permitted to reduce post-retirement group benefits, dismissses class action

Topics: - Benefits - Class Actions
Jurisdiction: - British Columbia

In Bennett v. British Columbia, 2009 BCSC 1358, the BC Supreme Court ruled that the employer  - the provincial government - was permitted to reduce post-retirement group benefits, and thus dismissed a class action.  There were approximately 27,000 people in the impacted class.

Law firm Heenan Blaikie has written a summary of the case: "Reduction in Retiree Benefits Sanctioned in British Columbia" (October 7, 2009).

Changes to Alberta's human rights legislation now in force

Topics: - Discrimination
Jurisdiction: - Alberta

On April 28, 2009, the Alberta government introduced changes to its human rights legislation. The changes came into force effective today. As set out in this Notice issued by the Alberta Human Rights Commission, the key changes are as follows:  read more »

NBCA upholds dismissal for cause where supervisor repeatedly viewed pornography on work computer

Jurisdiction: - New Brunswick
Sector: - Manufacturing

In Backman v. Maritime Paper Products Limited, a body corporate, 2009 NBCA 6, the New Brunswick Court of Appeal upheld the dismissal for just cause of a supervisory employee who repeatedly viewed internet pornography on his work computer. In doing so, the court reveiwed the law relating to the doctrine of condonation.

Background

At the time of his dismissal, the supervisory employee had 14 years of service and was earning a salary of $53,000 per year.

The employer had implemented an "Acceptable Use Policy" in 2002 relating to email and internet use. It prohibited the viewing of unprofessional, harassing, offensive or obscene material on company equipment. 

The employee had received written warnings in 2002 and 2003 for accessing pornographic websites. The second warning stated in clear language that any further incidents "will result in the immediate termination of your employment".  read more »