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2009

Appeal Court rules that franchisee and its employees were carrying out Petro-Canada’s work for purposes of WCB Act

Jurisdiction: - British Columbia
Sector: - Oil & Gas - Retail Trade

In Petro-Canada v. British Columbia (Workers' Compensation Board), 2009 BCCA 396, the BC Court of Appeal ruled that a franchisee and its employees were carrying out Petro-Canada’s work for purposes of WCB Act.  You can read a summary of the case ("Vicarious Liability - Franchisor as "Employer"") by Davis LLP here.

Air Canada Pilots Association applies for judicial review of CHRT decision on mandatory retirement

The Air Canada Pilots Association (ACPA) issued a news release today announcing that they have applied to the Federal Court for judicial review of the Canadian Human Rights Tribunal (CHRT) decision in Vilven v. Air Canada, 2009 CHRT 24, which called into question the retirement age provision of the pilots' collective agreement with Air Canada.

"Loss of Employment and the Effect on Permanent Resident Applications"

A lawyer at Farris, Vaughan, Wills & Murphy LLP presented a paper entitled "Loss of
Employment and the Effect on Permanent Resident Applications
" at a September 16, 2009 CLE conference in Vancouver on immigration law called Working Your Way Into Canada - 2009.

Watson Wyatt survey: Canadian companies moving away from stock options for executive compensation

Global consulting firm Watson Wyatt's August 2009 survey of 53 Canadian companies reveals that 28 percent are changing their pay mix – mostly to put more emphasis on
bonuses and performance shares, with less focus on stock options.

Robert Levasseur, senior consultant of executive compensation at Watson Wyatt, states in the September 17, 2009 press release that:

“Stock options are certainly under pressure during a recession where
many organizations have seen their share price plunge by as much as 40
per cent. Many executives have been left with worthless underwater
options and current valuations call for very high option grants which
would be highly dilutive to un-accepting shareholders,” 

“The employee stock option plan will remain a staple in Canadian
executive pay plans because it is the only long term incentive vehicle
that offers a tax advantage to plan participants. However, as
organizations regroup, it is not surprising to see a shift towards
annual cash base incentives.”

Conservatives introduce bill that would expand scope of employment insurance coverage

The Conservative Party introduced Bill C-50 today which, if passed, will temporarily expand the scope of employment insurance coverage in Canada. As set out in the Bill's summary:

This enactment amends the Employment Insurance Act until September 11, 2010 to increase the maximum number of weeks for which benefits may be paid to certain claimants. It also increases the maximum number of weeks for which benefits may be paid to certain claimants not in Canada.

The NDP Party initially supported the Bill, and the government, but according to this story in the Globe and Mail, they are now having second thoughts.

Definition of "strike" in Canada Labour Code does not infringe on Charter of Rights and Freedoms

In Grain Workers' Union, Local 333 v. B.C. Terminal Elevator Operations' Association, 2009 FCA 201, the Federal Court of Appeal confirmed a decision of the Canada Industrial Relations Board that the definition of "strike" in the Canada Labour Code does not infringe on the Canadian Charter of Rights and Freedoms.

A summary of the case by law firm Roper Greyell can be found here.

Canadian employers are using social networking sites to screen candidates

The stats are in: Canadian employers are using social networking sites to screen candidates.

According to a survey by Careerbuilder.ca, 28% of the more than 400 hiring managers that they talked to use social networking sites to screen candidates.

The survey - which was completed in June 2009 - found that a further 3% of employers intend to start using social networking sites in the future for the same purposes.

I am not aware of any case yet dealing with this issue - particularly from a human rights and/or privacy perspective - but in a previous post I noted that Manitoba lawyer Donna Seale has written a three-part series that addresses the possible legal pitfalls of engaging in this practice.

Does an employer have to produce a third-party investigator's report in the course of litigation?

Jurisdiction: - British Columbia

Does an employer have to produce a third-party investigator's report in the course of litigation?

The BC Supreme Court addressed this issue recently in Bank of Montreal v. Tortora, 2009 BCSC 1224, where the defendant former employees brought an application seeking that the Bank of Montreal (the "Bank"):

  1. produce the documents in a third-party investigator's files; and
  2. provide a list of documents over which it claimed privilege that satisfied the requirements of Rule 26(2.1) (i.e., list the documents individually and describe them so that the validity of the privilege claim could be tested).

Background

The Bank dismissed two long-term employees on December 3, 2008 and filed a lawsuit against them on January 6, 2009, claiming that:  read more »

BC extends Reservists' Leave to cover the 2010 Olympic and Paralympic Winter Games

Jurisdiction: - British Columbia

The BC government announced today that it had amended the BC Employment Standards Act regulation to extend job-protected leave to Canadian Forces reservists called on to support the 2010 Olympic and Paralympic Winter Games.

The leave, which was introduced in 2008, already protected the employment of reservists who deployed to a Canadian Forces operation outside of Canada, or to assist with an emergency inside Canada.

The new regulation now extends this support to reservists deployed to support the 2010 Games.

According to the BC Ministry of Labour, about 1,000 reservists are expected to be deployed to the Games, with half coming from within B.C.

Canadian Human Rights Tribunal decision may signal death knell for mandatory retirement in federal sector

On July 1, 2009, Nova Scotia amended its human rights legislation in order to prohibit mandatory retirement in most cases.  This means that every province and territory in Canada has now either prohibited mandatory retirement outright, or only allows it if it is based on bona fide retirement or pension plans, or a bona fide occupational requirement.

The same cannot be said for federally regulated employers in Canada.

Section 15(1)(c) of the Canadian Human Rights Act (the "Act") still permits employers in the federal sector to impose mandatory retirement policies on their employees if they have reached "the normal age of retirement for employees working in positions similar to the position of that individual".

Sections 15(1)(a) and 15(2) of the Act provide that mandatory retirement policies are not discriminatory if they are based on a bona fide occupational requirement.  read more »

"Periodic Criminal Record Checks May Infringe Privacy Right"

"Periodic Criminal Record Checks May Infringe Privacy Right" is the title of the most recent labour and employment newsletter from Vancouver law firm Bull, Housser & Tupper. You can read it here.  

Saskatchewan Court of Appeal overturns trial judge, allows dismissal for just cause based on incompetence

Jurisdiction: - Saskatchewan
Sector: - Media

In Radio CJVR Ltd. v. Schutte, 2009 SKCA 92, the Saskatchewan Court of Appeal, in  overturning the trial judge's decision, ruled that the employer had just cause to dismiss an employee who was the program director, music director and on-air morning show co-host for a newly formatted AM station.

In doing so, the court recited the test that will be applied when assessing whether an employer had just cause to dismiss an employee based on incompetence:

  1. the employer must provide reasonable objective standards of performance for the employee in a clear and understandable manner; 
  2. the employee must have failed to meet the employer's reasonable standard of performance;
  3. the employer must give the employee a clear and unequivocal warning that she or he has failed to meet the requisite standard, including particulars of the specific deficiency relied on by the employer; and
  4. the warning must clearly indicate that the employee will be dismissed if he or she fails to meet the requisite standard within a reasonable time.

The definition of "constructive dismissal"

Constructive dismissal claims are often asserted but perhaps not well undertand. This begs the question: What is the definition of a constructive dismissal?

In the leading case of Farber v. Royal Trust Co. [1997] 1 S.C.R. 846, the Supreme Court of Canada defined constructive dismissal as follows:

In cases of constructive dismissal, the courts in the common law provinces have applied the general principle that where one party to a contract demonstrates an intention no longer to be bound by it, that party is committing a fundamental breach of the contract that results in its termination.  read more »

Discrimination based on "family status" not found in case where employee was fired for refusing to work overtime

Jurisdiction: - British Columbia

The BC Human Rights Tribunal recently ruled in Falardeau v. Ferguson Moving et al 2009 BCHRT 272 that an employer did not discriminate against a single father employee on the basis of "family status" when it fired him for refusing to work overtime.

In doing so, the Tribunal cited the BC Court of Appeal's decision in Health Sciences Assn. of British Columbia v. Campbell River and North Island Transition Society, 2004 BCCA 260, where the Court discussed, but did not define, discrimination based on family status:  read more »

Canadian companies concerned about overtime compensation

The Conference Board of Canada has issued a report - Working 9 to 9: Overtime Practices in Canadian Organizations - in which two-thirds of the 130 respondents said that staff and management had highlighted overtime compensation concerns in the past year.

The report comes on the heels of overtime lawsuits and/or settlements in the last 18
months involving five high profile companies (CIBC, Scotiabank, CNR, KMPG LLP, PricewaterhouseCoopers LLP).

You can read this article in today's Toronto Star for more information about the report.