Canada - Global Employment Law

Union Files Criminal Charges Against Employer Following Workplace Accident

Heenan Blaikie — Fri, 02 Apr 2010 13:30:35 -0800

The United Steel Workers have commenced a private prosecution against Weyerhaeuser, a leading forest products company, on charges of criminal negligence causing death by filing an Information in the Provincial Court of British Columbia. This is the first time a private prosecution has been commenced alleging criminal negligence by a corporation since amendments to the Criminal Code in 2004 to make it easier for the Crown to convict corporations of criminal negligence.

]]>The Information filed by the United Steel Workers alleges that Weyerhaeuser was criminally negligent in the death of a sawmill worker who was smothered by wood debris in a hopper in 2004. It is alleged that the supervisor who assigned the task to the worker and Weyerhaeuser management knew that the task was unsafe. Following the accident, Weyerhaeuser was fined $297,000 by WorkSafe BC for violating British Columbia's Occupational Health and Safety Regulation, but no criminal charges were ever filed.

A private hearing will now be held to allow a Provincial Court Judge or Justice of the Peace to hear all of the evidence against Weyerhaeuser and to determine if a summons should be issued against Weyerhaeuser. We will continue to follow this matter as it proceeds through the courts.

Federal Government Continues Pension Reform Consultation

Heenan Blaikie — Thu, 01 Apr 2010 10:35:48 -0800

The federal government has announced that it will continue consultations on pension reform through a series of town hall meetings across Canada. The government has posed the following ten questions as the basis for its consultation:

What are the main issues and challenges that Canadians face in saving for retirement?
What is the appropriate role of governments in supporting Canadians to achieve adequate retirement income?
Does the retirement income system currently have the appropriate mix of public and private support?
Are changes needed to further strengthen Canada's retirement income system?
Should there be more mandatory retirement savings?
Should individuals be auto-enrolled in any new voluntary savings program?
Should increased savings, whether mandatory or voluntary, be locked-in for retirement purposes only?
Should there be more flexibility and choice with respect to private savings options?
How would the approaches described impact you personally and/or your business?
How should any changes to the retirement income system be financed?

Interested parties may also participate in the consultation process online or by sending written submissions by e-mail to ris-consultations-srr@fin.gc.ca.

For more information on pension reform in Canada, please see Heenan Blaikie's Pension Pulse "Three Pillars: Ten Questions--Federal Government Continues Consultations on Pension Reform".

Court Certifies Class Action Proceeding for Unpaid Overtime

Heenan Blaikie — Mon, 08 Mar 2010 12:00:21 -0800

In Fulawka v Bank of Nova Scotia (pdf), the Ontario Superior Court of Justice certified a class action proceeding against the Bank of Nova Scotia ("Scotiabank") alleging that 5,000 personal banking officers, financial advisors, and account managers were routinely required to work unpaid overtime.

]]>Scotiabank had attempted to resist the certification of the class and to have pleadings struck on the basis that there was no cause of action for unpaid overtime under the Canada Labour Code (the "Code") and therefore the claim did not pass the "cause of action" test for certification under the Class Proceedings Act, 1992 ("CPA"). The Court found that while there was no direct cause of action under the Code, the rights and duties in the Code could inform the duties that Scotiabank owed to the plaintiff class. Scotiabank also alleged that there was no common issue among the claims of the class, a prerequisite to certification under the CPA. The Court found that there was evidence of systemic wrongdoing that would if resolved advance the claim of the entire class. This finding stands in contrast to the decision in Fresco v. Canadian Imperial Bank of Commerce, where the Court declined to certify a class proceeding for unpaid overtime on the basis that the claims had no common issue.

Criminal Charges Filed Following Workplace Accident

Heenan Blaikie — Thu, 04 Mar 2010 11:42:16 -0800

In what should serve as a stark reminder for both employers and individuals, police in Ontario have charged a corporate employer and two individuals with criminal negligence causing death after a fatal workplace accident at a construction project. These events demonstrate that while criminal prosecutions for workplace accidents remain rare, the police will not hesitate to pursue criminal charges as they deem appropriate.

]]>The accident occurred while employees from the City of Sault Ste. Marie's Public Works Department were working in an excavation at the City landfill. The City had contracted with Millennium Crane Rentals to provide an 80 ton mobile crane and crane operator to assist in placing concrete structures into the excavation. While all the facts are not publicly known, it appears that the crane fell into the excavation while it was being repositioned. Two City employees were working in the excavation at the time and one was pinned across the stomach and pelvis by the crane. He was extricated by the Sault Ste. Marie Fire Service and rushed to a nearby hospital where he later succumbed to his injuries. The second worker was not hurt.

The Ontario Ministry of Labour laid five charges under the Ontario Occupational Health and Safety Act against Millennium Crane. The Sault Ste. Marie Police Service also charged Millennium Crane, the individual crane owner, and the crane operator with criminal negligence causing death. This is the first time that an Ontario corporation has been charged with criminal negligence since amendments to the Criminal Code, designed to make it easier for the Crown to prove criminal negligence against a corporation, were enacted. If convicted, Millennium Crane faces an unlimited fine and each individual charged faces a maximum sentence of life imprisonment. The first court date for the criminal charges is March 22, 2010.

For more information please see Heenan Blaikie's OHS & WSIB Management Update " OH&S Corporate Criminal Liability Rears Its Head Again in Canada" (pdf).

Age-Based Early Retirement Upheld

Heenan Blaikie — Thu, 04 Mar 2010 11:33:12 -0800

In its recent decision in Kovacs v. Arcelor Mittal Montreal, the Human Rights Tribunal of Ontario (the "Tribunal") upheld the validity of an age-based early retirement program.

In this case, the employer, Arcelor Mittal Montreal, offered an early retirement program that provided enhanced pension benefits to employees who had 30 or more years of service, were at least age 55 with 15 or more years of service, or were at least age 52 with 25 or more years of service. A 44 year-old employee with 27 years of service alleged that he was discriminated against on the basis of age contrary to the Ontario Human Rights Code (the "Code") because the sole reason that he did not qualify for the early retirement program was that he was too young.

]]>In a somewhat circuitous ruling, the Tribunal confirmed that the provisions of the early retirement program were not contrary to the Code as they qualified for an exemption to the prohibition on age discrimination for pension and benefit plans that comply with Ontario's Employment Standards Act, 2000 (the "ESA"). The ESA, in turn, provides that its prohibition on age discrimination in a benefits plan does not apply to the establishment of normal retirement dates or voluntary early retirement dates under a pension plan where the Pension Benefits Act (the "PBA") applies. The Pension Benefits Act contains minimum standards but does not prohibit early retirement dates. As a result, the early retirement provisions did not run afoul of the prohibitions against age discrimination.

For more information on this decision, please see Heenan Blaikie's Pension Pulse " Age-Based Early Retirement Program Upheld" (pdf).

Ontario Court of Appeal Clarifies "Dependent Contractor" Status

Heenan Blaikie — Thu, 11 Feb 2010 16:22:12 -0800

In McKee v. Reid's Heritage Homes Ltd., the Ontario Court of Appeal confirmed that the law recognizes "dependent contractor" as an intermediate status between employee and independent contractor and that dependent contractors are entitled to reasonable notice of termination.

]]>In this case, the plaintiff, McKee, entered in to an exclusive contract to sell homes for the defendant. In 2005, the defendant advised McKee that she would have to become an employee. McKee refused, terminated the contract, and sued for wrongful dismissal. The trial judge found that McKee was an employee and was entitled to notice of termination. On appeal, the defendant argued that McKee was a dependent contractor and was not entitled to reasonable notice of termination. The Court of Appeal confirmed that the law recognizes an intermediate category of "non-employment work relationships" known as dependent contractors and that these workers are entitled to reasonable notice of termination. According to the court, the first step in the analysis is to determine if the worker is a contractor or an employee. If the worker is a contractor, the second step is to determine whether he or she is independent or dependent. In this step, the court stated that evidence of exclusivity in the relationship is determinative of dependent contractor status as it shows economic dependence. In McKee's case, the court upheld the trial judge's finding that she was an employee based on the fact that McKee worked exclusively for the defendant and was subject to its control The fact that McKee worked in premises and used tools provided by the defendant, she was financially dependent, and she formed a crucial part of the defendant's business were also relevant factors in the analysis.

This decision is significant because it clarifies a long line of inconsistent case law and firmly establishes that dependent contractors are entitled to reasonable notice of termination. For more information on this decision, please see Heenan Blaikie's Labour & Employment in the News "Employee or Independent Contractor? Now There's a Third Option" (pdf).

Provincial Finance Ministers Release Report on Pension System

Heenan Blaikie — Thu, 28 Jan 2010 07:18:13 -0800

The steering committee of provincial finance ministers has released its report (pdf) on the adequacy of retirement income and its proposals for improving pension plan coverage in Canada.

]]>The committee found that the income of current retirees is fairly adequate. The income of future retirees, however, is unlikely to be adequate due to declining pension plan coverage and inadequate personal retirement savings. The report suggests two possible solutions. The first solution is the implementation of a Canada Supplementary Pension Plan, a voluntary defined contribution plan for those employees not currently covered by an employer retirement plan. The second solutions is to expand Canada Pension Plan and Quebec Pension Plan benefits by increasing employee and employer contributions.

For more information on the steering committee's report, please see Heenan Blaikie's Pension Pulse " Canada's Pension Pillars in Need of Repair: Report of Provincial Finance Ministers" (pdf).

Ontario Court of Appeal Releases Decision on Peril of Partial Pension Wind-ups

Heenan Blaikie — Thu, 28 Jan 2010 07:09:57 -0800

On January 11, 2010, the Ontario Court of Appeal released its decision in Hydro One Inc. v. Ontario (Financial Services Commission). The central issue in the case was whether the number of employees terminated as part of a restructuring could be considered "significant" under the Ontario Pension Benefits Act thereby constituting grounds for a partial wind-up order.

]]>The Hydro One pension plan at issue was comprised of three distinct groups of members: 2,761 members from the Power Workers' Union, 773 members from the Society of Energy Professionals, and 379 members were non-union salaried employees. Over several years, Hydro One engaged in a restructuring that resulted in 126 employees having their employment terminated, 53 were members of the Society and 73 were non-union salaried employees. The Court of Appeal held that the number of terminations, although very small relative to the total number of members of the pension plan, was significant in terms of a subset of plan members. In doing so, the Court upheld the decision of the Divisional Court which concluded that the meaning of what is a "significant" number of members, and consequently whether or not to order a partial wind-up, may vary depending upon the particular circumstances. In some cases, it may require an absolute number of members while in others it may require a proportion of members either to the total number of plan members or to a subset of the total membership.

For more information on this decision, please see Heenan Blaikie's Pension Pulse " The Perils of Partial Wind-Ups: Ontario Court of Appeal Releases Decision in Hydro One" (pdf).

Pension Plan Sponsors Pessimistic About Canadian Pension System

Heenan Blaikie — Mon, 11 Jan 2010 08:40:08 -0800

According to a recent survey of Defined Benefit pension plan sponsors, 89% of plan sponsors believe that Canada's pension system is either poorly positioned or average in its ability to meet the future needs of Canadians. Nearly half of respondents identified investment risk as their primary concern. The risk of pension shortfalls was second with nearly 36% of respondents identifying this as their primary concern. Despite the generally negative results, 72% of respondents felt that Canada's pension system is either the same or better than other pension systems around the world. Only 8% of respondents believe Canada's pension system is worse.

December Employment Statistics Released

Heenan Blaikie — Mon, 11 Jan 2010 08:34:19 -0800

According to Statistics Canada, 2,600 jobs were lost in December. Moderate increases in employment in the health care and social assistance and the professional, scientific and technical services categories were offset by declines in employment in the transportation and warehousing; business, building and other support services; and public administration categories. Despite these job losses, the employment rate appears to have stabilized in recent months even though it remains nearly 2% below pre-recession levels.

Ontario Introduces Pension Reform Legislation

Heenan Blaikie — Wed, 23 Dec 2009 08:25:49 -0800

On December 9, 2009, Bill 236, An Act to amend the Pension Benefits Act (pdf) was introduced in the Ontario legislature. According to a government press release, this is the first step in a multi-step pension reform process. The most significant changes include:

Pension benefits will vest immediately rather than after two years;
Grow-in benefits that allow members to grow into subsidized early retirement provisions, will be extended to include employees who are terminated without cause;
Phased retirement provisions will allow certain plan members who have had their pay reduced to receive partial pension benefits;
Partial wind-ups will no longer be permissible;
The procedures for sale of business transactions involving a pension plan will be streamlined;
Changes will be made to allow the lump sum cash payment of a pension if the amount of pension is less than 4% of the Year's Maximum Pensionable Earnings under the Canada Pension Plan;
Surplus payments to a plan sponsor upon wind-up of a pension plan will be permitted, if there is a surplus sharing agreement with current and former members and beneficiaries;
45 days' notice will be required for all pension plan amendments; and
Member statements and other communications will be allowed to be sent electronically.

For more information on Bill 236 and its impact, please see Heenan Blaikie's Pension Pulse " Ontario Pension Reform Part 1" (pdf).

Ontario Legislature Passes Workplace Violence Bill

Heenan Blaikie — Wed, 23 Dec 2009 06:55:13 -0800

On December 9, 2009, Bill 168, An Act to amend the Occupational Health & Safety Act with respect to violence and harassment in the workplace and other matters (pdf) was passed by the Ontario legislature. The amendments in the Bill give workers the rights to refuse work for workplace violence reasons. The amendments also require employers to:

Prepare and post written violence and harassment policies, if the employer regularly employs five or more workers;
Develop workplace violence and workplace harassment programs;
Perform workplace violence risk assessments;
Train workers on workplace violence and harassment policies;
Respond to domestic violence that would likely expose a worker to physical injury in the workplace; and
Report workplace violence incidents to the Ontario Ministry of Labour.

Employers will have until June 15, 2010 to ensure compliance with these provisions. For more information on Bill 168, please see Heenan Blaikie's Labour and Employment in the News " Ontario Passes OHSA Violence & Harassment-Related Provisions Into Law" (pdf).

Proposed Amendment to Lay-Off Provisions of Employment Standards Act, 2000

Heenan Blaikie — Wed, 23 Dec 2009 06:48:34 -0800

On December 10, 2009, Bill 239, An Act to amend the Employment Standards Act, 2000 with respect to lay-offs (pdf) was introduced. If passed, the Bill would change the manner in which weeks without work are counted during a lay-off. Under the Employment Standards Act, 2000, employees are deemed to have been terminated if the length of their lay-off exceeds a certain length in a given time period. Currently, weeks that an employee is locked-out by his or her employer are excluded from that calculation. Bill 239 would amend the Act so that the period of time that an employee is not working due to a lock-out is no longer excluded.

Significant Decisions in Labour, Employment, Human Rights, and Pension Law in 2009

Heenan Blaikie — Tue, 08 Dec 2009 13:12:41 -0800

In the last year, Canadian courts have tackled a wide range of legal issues that are relevant to employers. In the employment law context alone, the courts have considered the obligation of departing employees, the enforceability of non-competition covenants, and the ability of employees to commence a class action to seek damages for unpaid overtime pay.

To keep employers up to date on developments in the law, Heenan Blaikie's national labour and employment law practice has prepared a paper entitled " Recent Developments in Labour and Employment, Pension & Benefits and OHS/Workers Compensation" (pdf). The paper provides an overview of developments in the areas of employment, human rights, pensions, benefits, federal and provincial labour, workplace privacy, occupational health and safety, and workers' compensation law in 2009.

Preparing the Workplace for the Third Wave of H1N1

Heenan Blaikie — Tue, 01 Dec 2009 10:55:08 -0800

Medical officials have acknowledged that the second wave of the H1N1 influenza pandemic has peaked and is waning in most parts of Canada. Already officials are predicting a third wave of the pandemic that will occur during the holiday season or in the early new year.

In anticipation of a third pandemic wave, employers should develop a pandemic preparedness plan to ensure continuity of their operations. Employers should also educate themselves about their legal obligations in a pandemic. In order to assist employers, Heenan Blaikie's national labour and employment law practice has prepared a " A(H1N1) Update - 2009" (pdf) with practical guidance on managing the workplace during a pandemic and the most frequently-asked legal questions.

Canadian Institute of Actuaries Releases Report on Pension Reform

Heenan Blaikie — Thu, 19 Nov 2009 13:26:57 -0800

The Canadian Institute of Actuaries (CIA), a national organization of actuarial professionals, has released a report (pdf) on pension reform in Canada entitled "Retooling Canada's Ailing Pension System Now, for the Future: Canada's Actuaries Advocate Change." This report repeats many of the recommendations made in the CIA's 2007 report (pdf) entitled "Canadian Institute of Actuaries' Prescription for Canada's Ailing Pension System."

]]>The CIA's latest report contains the following ten recommendations for pension reform:

Put pensions on the national agenda to create an environment that maintains and strengthens pension plans.
Develop a principles-based approach to regulating pension plans.
Identify and remove disincentives to working later in life. Allow Canadians to work part-time in retirement and collect partial retirement benefits.
Provide Canadians with better information, earlier, to help them understand and manage the risks associated with retirement.
Allow employers to set up pension security trusts separate from regular defined benefit pension plan funds.
Require defined benefit plans to build up a target solvency margin.
Establish a task force to determine the appropriate levels of solvency margins.
Reform tax rules to allow plan sponsors to build larger surpluses.
Protect pension benefits by treating them like unpaid salaries in bankruptcy proceedings.
Reform legislation to assist in the determination of benefits when a plan of a bankrupt employer is wound up.

The CIA report adds to the momentum for pension reform and it is likely to be taken into account during the meeting of federal, provincial and territorial finance ministers in December.

Ontario Labour Relations Board Reaffirms Weekend and Holiday Certification Applications for Construction Unions

Heenan Blaikie — Thu, 05 Nov 2009 12:37:52 -0800

The Ontario Labour Relations Board has reaffirmed its practice of allowing construction unions to bring applications for certification on Saturdays, Sundays and holidays. According to the Ontario Labour Relations Boards rules, an application for certification that is sent by priority courier is deemed to have been filed on the date it is sent. With many post offices open seven days a week, unions can file an application for certification on the weekend. This is an important tactical advantage for construction unions in organizing drives because under the Ontario Labour Relations Act, only those workers on a construction site on the date of the application are eligible to vote. Filing an application on the weekend allows the union to select an application date when fewer workers are on site.
]]>Legacy (Cyber Services Electrical and Fire Alarm Specialists), the union filed its application for certification on a Saturday, when only one of the company's three job sites was active. The company argued that the correct filing date should be the following Monday, alleging that the workers present on Saturday had specifically asked to work that day, contrary to the company's regular practice. The company claimed that this was a subterfuge intended to manipulate the number of workers who would be eligible for the vote. The board rejected the argument without examining the truth of its claim and confirmed that Saturday was the filing date under the Board's rules. In explaining its reasons, the board stated that there is always a degree of arbitrariness in selecting the application filing date, and no day will be perfectly representative. Further, the Board stated it is up to employers to decide whether to let employees work on weekends or holidays, so they can choose whether to expose themselves to the risk of a weekend or holiday application.

Privacy Commissioner Issues Guidelines on Privacy Rights During Flu Pandemic

Heenan Blaikie — Thu, 05 Nov 2009 12:25:10 -0800

Privacy rights are one of the issues most frequently raised when employers seek advice about the impact of the H1N1 virus on the workplace. In order to assist employers in meeting their obligations under private sector privacy laws, the Privacy Commission of Canada, in conjunction with the Privacy Commissioners of Alberta and British Columbia, has developed a guidance document for employers (pdf) that discusses the application of privacy laws during a flu pandemic. The Privacy Commission has also developed a fact sheet for employees explaining privacy rights at work during a flu pandemic.

Proposed Amendments to British Columbia Occupational Health and Safety Legislation

Heenan Blaikie — Tue, 03 Nov 2009 07:41:48 -0800

The Board of Directors of WorkSafe BC has published the 2010 proposed amendments to the British Columbia Occupational Health and Safety Regulation.

There are 12 proposed amendments, including: an expansion of the duty to notify utilities after a service is hit during excavation; an amendment to the minimum distance that must be maintained from exposed, energized high voltage power lines; a requirement that trash and recycling vehicles have visual or audible warning systems to indicate when lifting mechanisms are extended; and standards relating to respirator protection factors. A complete list of proposed amendments is available online.

Interested parties may provide written feedback on the proposed amendments until 4:00 p.m. on Friday, December 18, 2009.

Ban on Replacement Workers Proposed in Ontario

Heenan Blaikie — Fri, 30 Oct 2009 07:19:51 -0800

A private member's bill (pdf) has been introduced in the Ontario legislature that, if passed, would ban the use of replacement workers during work-stoppages.

The bill would reenact a ban on the use of replacement workers that was in place in Ontario from 1992 to 1995. It would prohibit using manager, newly hired employees or transferred employees to perform the work of bargaining unit employees that are on strike or locked out. A similar bill was defeated earlier this year.

We will keep our readers updated on the progress of this bill.