The CSA, which develops standards for business, industry, government and consumers, released the draft Standard on November 1, 2011 for a period of public consultation which ended on January 6, 2012. The final Standard, which is expected to be published in early 2012, is intended to provide organizations with the necessary tools and guidance to achieve "measureable improvements in psychological health and safety" for Canadian employees and prescribes specific steps for employers to take to develop and maintain psychologically healthy and safe workplaces. As currently drafted, the steps prescribed and obligations imposed by the Standard are significantly broader than those currently imposed on employers under occupational health and safety and human rights legislation and the breadth of the Standard raises concerns about its viability for Canadian employers.

For an introduction to and analysis of the Standard, please see Heenan Blaikie's OHS & Workers' Compensation Update  "National Standard for Pscyhological Harm and Safety in the Candian Workplace Released".

Guideline No. 6: Pension Plan Investment Practices Guideline provides a variety of prudent investment principles that plan administrators should bear in mind when managing investments. In this Guideline, CAPSA encourages plan administrators to assess their current investment practices to ensure prudent practices are in place. The focus of the Guideline is to ensure that plan administrators have a robust, process-oriented decision-making framework in place within which investment management activities are conducted.

Guideline No. 7: Pension Plan Funding Policy Guideline outlines eleven elements that, when addressed, constitute best practices in the creation of a funding policy. Funding policies should discuss the overall plan overview, funding objectives, key risks faced by the plan, funding volatility factors and the management of risk, funding target ranges, cost sharing mechanisms, utilization of funding excess, actuarial methods, assumptions and reporting, frequency of valuation, monitoring, and communications policy.

For more information on the guidelines, please see Heenan Blaikie's Pension Pulse " CAPSA Introduces Guidelines on Prudent Investment Practices and Funding Policy" (pdf).

In this case, a patron drowned in an unsupervised indoor swimming pool at the Blue Mountain resort. No Blue Mountain workers were in the pool area at the time and the drowning was not reported to the Ministry of Labour ("MOL") because it did not involve a worker. During a field visit, a MOL inspector learned of the drowning and issued an order requiring Blue Mountain to report the fatality based on subsection 51(1) of the Occupational Health and Safety Act ("OHSA"), which requires a constructor or employer to make a report to the MOL "[w]here a person is killed or critically injured from any cause at a workplace". The Ontario Labour Relations Board ("OLRB") upheld the order on appeal and Blue Mountain filed an application for judicial review.

All Ontario businesses that provide services to the public or other non-workers (such as volunteers) may now face the requirement to report fatal and critical consequences involving these persons. Serious implications could also arise from the obligation to hold the scene of a fatality or critical injury under subsection 51(2) of the OHSA. This issue was raised by Blue Mountain but was not addressed by the OLRB or the Court. Without guidance on this obligation, it must be assumed that the obligation applies and the scene of a critical injury or fatality will need to be held until released by an MOL inspector.

For more information, please see Heenan Blaikie's OHS and Workers' Compensation Management Update, "Every 'Person' Counts When Reporting OHS Accidents in Ontario" (pdf).

The majority decision determined that the Court of Appeal had significantly overstated the scope of collective bargaining rights that are protected by section 2(d) of the Charter. Based on a much narrower approach to collective bargaining under the Charter, the majority concluded that the AEPA satisfies the applicable constitutional requirements because it provides agricultural workers in Ontario with a meaningful process by which they can pursue workplace goals. Justices Rothstein and Charron concurred in the result reached by the majority, but for quite different reasons. They would have reversed the Supreme Court's earlier decision in BC Health Services on the grounds that the decision, which established that section 2(d) of the Charter includes limited protection for collective bargaining, was wrongly decided and that the majority decision maintained an unworkable distinction between the process of collective bargaining and collective bargaining outcomes.

Fraser must be viewed as a significant retrenchment from the broad reasoning in BC Health Services. The Supreme Court emphasized that section 2(d) of the Charter requires that employees' associations be able to participate in a meaningful workplace process with an employer, which includes the right to make representations to the employer and to have those representations considered by the employer in good faith. In the Supreme Court's words, only legislation that "makes good faith resolution of workplace issues between employees and their employer effectively impossible" will violate section 2(d). Also notable is the Supreme Court's rejection of the Ontario Court of Appeal's determination that BC Health Services requires lawmakers to enact a particular labour relations model or specific statutory requirements in order to comply with section 2(d) of the Charter.

For more information on the decision, please see Heenan Blaikie's Labour and Employment in the News, "Ontario v. Fraser - The Supreme Court of Canada Significantly Narrows the Scope of the Constitutional Protection of Collective Bargaining" (PDF)

• Develop policies, practices and procedures about how the business will provide goods and services to the disabled;
• Provide "accessibility" training to staff that deals with the public as well as to internal policy makers who participate in developing the business's policies regarding access to the goods and services by the public;
• Allow disabled persons who are accompanied by service animals (e.g., a guide dog) or a support person to have access to the premises of the business; and
• Provide a public notice of any temporary disruptions that affect access to goods or services by disabled persons.

Private sector businesses with twenty or more employees face additional requirements, on reporting, avenues for feedback from disabled persons, and proof of compliance. For more information, please see Heenan Blaikie's Labour and Employment in the News, "Ontario Announces New Obligations for Meeting the Needs of People with Disabilities" (pdf).

Under the new system, the Commission will have the power to require mediation of all complaints. If, in the Commission's opinion, the complainant refuses a reasonable settlement offer, the Bill would give the Commission the power to dismiss the complaint. If the complaint is not resolved through mediation, the Commission may apply to the Court of the Queen's Bench for a hearing of the complaint. The Tribunal would only hear complaints filed prior to the Bill coming into force.

The Bill must still pass second and third reading and will be considered again when the provincial legislature reconvenes on March 7, 2011.

In Ontario (Labour) v. United Independent Operators Limited (pdf), United Independent Operators Limited ("United") was charged with failing to ensure that a JHSC was established and maintained at its workplace. United operated as a load broker and retained independent truck drivers to perform work. It argued that it was not required to establish a JHSC because its independent contractors were not "regularly employed" and section 9 of the OHSA only required an employer to establish a JHSC where 20 or more employees are "regularly employed". The Court of Appeal rejected this argument and found that independent contractors are "regularly employed". The Court noted that making a distinction between traditional and non-traditional employment relationships would deprive workers in non-traditional relationships of the protections afforded by a JHSC and would be contrary to the purposes of the OHSA.

• The creation of a new Prevention Organization within the Ministry of Labour;
• Amendments to the Occupational Health and Safety Act to allow co-chairs of Joint Health and Safety Committees to submit written safety recommendations to employers;
• Mandatory training for health and safety representatives;
• Mandatory health and safety awareness training for all workers and supervisors;
• Mandatory entry-level training for construction workers;
• Mandatory fall protection training for workers working at heights, and
• A review of enforcement tools available to inspectors, including establishing administrative monetary penalties.

• Allow the Director of Employment Standards to require complainants to take steps to resolve their claim before assigning an investigator;
• Permit Employment Standards Officers to mediate complaints; and
• Allow Officers to make decision when parties fail to attend meetings or provide evidence.

• Increase the income replacement rate from 25% of year's maximum pensionable earnings ("YMPE") to 35%;
• Increase the $47,000 YMPE earnings ceiling by 50% or 100%; and
• Increase both the income replacement and the YMPE earnings ceiling.

The paper argues that expanding the C/QPP is justified because the income levels of retirees will not be adequate in the future as fewer employees in the private sector participate in pension plans and employees are not taking advantage of existing contribution room in RRSPs and tax-free savings accounts.

For more information, please see Heenan Blaikie's Pension Pulse "Securing the Future = Expanding the CPP: Ontario Government Releases Consultation Paper" (pdf).

• Require the government to conduct a more rigorous assessment of job offers;
• Impose a two year hiring prohibition on employers who fail to meet the wage, working conditions, and occupation commitments they make to workers; and
• Limit the length of a temporary foreign worker's employment to four years, after which he or she will be required to return home and re-qualify.

The changes, which do not apply to temporary foreign workers hired under NAFTA or other treaties, will take effect on April 1, 2011.

Bill 2

• Increases vacation entitlement after eight years of service;
• Increases paid sick leave after ten years of service;
• Adds one day of paid bereavement leave; and
• Enhances maternity, paternity and adoption leaves.

In Burke v. Hudson's Bay Co. (pdf), the Hudson's Bay Company (HBC) sold its Northern Stores Division to the North West Company. As part of the sale, a number of HBC employees transferred to North West. HBC transferred enough assets from its pension fund to cover the transferred employees' defined pension benefits, but did not transfer any surplus assets. HBC and North West had discussed whether a portion of the plan's surplus should be transferred, but this would have increased the purchase price and both parties agreed not to transfer any surplus assets. The issue before the court was whether HBC had an obligation to transfer a proportionate share of the surplus assets to North West for transferred employees. The Court confirmed that HBC was a fiduciary as administrator of its pension plan, but rejected the argument that as a fiduciary, it had a duty of even-handedness in the handling of the surplus assets that required it to transfer a share of the surplus. The Court held that the duty of even-handedness did not require HBC to confer benefits on transferred employees that they were not otherwise entitled to under the terms of the pension plan documents. Based on a review of plan documents in this case, the Court found that the members of the HBC pension plan had no current or future interest in the surplus assets and therefore, their claim to a portion of the surplus necessarily failed.

For more information, please see Heenan Blaikie's Pension Pulse "Canada's Top Court Rules Pension Plan Members Have No Entitlement to Surplus" (pdf).

In Dubé v. CTS Canadian Career College (pdf), an employer revoked a job offer after it learned that the Applicant had been convicted and later pardoned of armed robbery and manslaughter. The Tribunal held that the Applicant was under no obligation to disclose his criminal history in the interview process because a pardon had been granted. Consequently, the decision not to hire the Applicant because of his conviction or his failure to disclose his criminal history was discriminatory. This decision contrasts with de Pelham v. Mytrak Health Systems (pdf). In this case, the Applicant was terminated from two jobs when his employers learned of pending criminal charges against him. The Tribunal dismissed the Applicant's complaint. The Tribunal held it had no jurisdiction to hear a complaint based on a record of offences that did not concern a provincial offence or a pardoned criminal offence.

For more information, please see Heenan Blaikie's Labour and Employment in the News "Innocent Until Proven Guilty: Record of Offences as a Ground for Human Rights Protection" (pdf).

McCraken is the latest in a series of recent unpaid overtime class actions by workers in the federal sector. An earlier decision, refusing to certify a similar class action in Fresco v. Canadian Imperial Bank of Commerce (pdf), was recently upheld on appeal. The representative plaintiff in Fresco is seeking leave to appeal to the Ontario Court of Appeal. The decision in McCracken has also been appealed and is expected to be heard by the Divisional Court in 2011.

For more information please see Heenan Blaikie's Labour and Employment in the News (pdf), "Ontario Courts Leave the Future for Overtime Class Action Law Claims Uncertain".