Employment, Labour and Immigration Law in · PDF file•Skilled labour shortages ......

Employment, Labour and

Immigration Law in Canada June 19, 2012

Overview

• Drug testing restrictions

• $0.5 million fine for OHS violations

• Expedited certification applications

• Large damage awards for wrongful dismissal

• Automatic union certification applications

• Reinstatement of non-unionized workers

• Skilled labour shortages

• Canadian work permits for U.S. citizens

• Strategies to ease border restrictions

• Quebec: unique considerations

• Q&A session

2

Drug Testing

Restrictions

3

Drug Testing Restrictions

• Only testing to determine usage at the workplace is legal.

• Distinction between alcohol and drug testing.

• Drug testing does not evidence impairment.

• Exception - cheek swab for cannabis.

• Drug addiction is treated as an illness and qualifies as a

disability under human rights legislation.

• Duty to accommodate.

• Result:

• Pre-employment testing is illegal.

• Random testing without prior incident is likely illegal.

• For cause/ post-incident testing for safety sensitive positions is

likely permitted.

• U.S. policies must be ‘Canadianized.’

4

Fines for OHS

Violations

5

Fines for OHS Violations

• Occupational Health & Safety legislation

• Ontario - up to $500,000.00 fines plus 25% victim surcharge

• Alberta - up to $500,000.00 (doubled for second offence)

• BC – up to $600,000.00+

• Quebec - $50,000.00

• Convictions under OHS legislation and criminal code

• Managers

• Directors and officers

• Due diligence can avoid liability

• Training is key

6

Expedited

Certification

Applications

7

Expedited Union Certification Applications

• Certification vote

• Ontario - 5 business days after application

• Alberta - 10 business days after application

• BC - 10 business days after application

• Ballot box may be sealed to address challenges

• Campaigns are typically covert

• Management training to recognize organizing activity is key

• Counter-measures must be planned in advance

• Union avoidance strategy should be implemented to

avoid campaign and application

8

Large Damage

Awards for

Wrongful

Dismissal

9

Large Damage Awards for Wrongful Dismissal

• Factors that contribute to large judicial awards:

• Long periods of service

• Senior positions

• Employer misconduct during employment and in the

manner of dismissal

• Defamation of the employee

• Dismissal of employees on or facing disability or maternity

leave

• Making it difficult or preventing employee from getting

another job

10

Large Damages Awards for Wrongful Dismissal

• Alberta example:

• Merrill Lynch Canada Ltd. v Soost, 201 ABCA 251.

• Employee was a stock broker with Merrill Lynch or

predecessors for 3 years. He was recruited away from

previous secure employment.

• Trial judge awarded year’s pay of $600,000 plus additional

damages for loss of “book of business”, loss of “reputation

or goodwill” of $1.6 million.

• The year’s pay was not appealed. The Alberta Court of

Appeal set aside the $1.6 million.

11


• Quebec: La Belle Province:

• Benoit c. Groupe DMR inc., (2006) 54 CCEL(3d) 211 (Que

CA)

• 15 year employee discharged. Claimed 2 years notice and

$3 million in damages.

• Trial court awarded 2 years notice: $501,659.05 (including

$18,000 in moral damages).

• CA set aside moral damages. Described examples where

moral damages permitted if employer:

• Acts in “bad faith”, destroys employees reputation or integrity,

or acts despicably

12


• The Supreme Court of Canada (SCC) speaks

• Keays v Honda Canada, 2008 SCC 39

• 14 year employee had “chronic fatigue syndrome” Returned to

work under disability program supported by doctor.

• Company fired employee after he refused order to be

examined by Honda’s company doctor.

• Trial judge awarded damages equal to 15 mos. notice,

additional 9 mos. Wallace damages, $500,000 punitive

damages, and a premium of $155,000 over the usual costs

award.

• The Ontario CA reduced the punitive damages to $100,000

and varied the costs premium to $77,500.

• The SCC set aside the punitive damages, the Wallace

damages and the costs premium.

13


• Don’t fire someone who is helping a friend

• Downham v Lennox & Addington County, (2005), 56

CCEL(3d) 112 (Ont HC)

• 12 year employee was Manager of Non-Profit Housing Project

• Employee and wife support persons to church friend who

was convicted paedophile, released on parole into their

supervision.

• Employee helped offender apply for vacancy in the housing

project. However, did not try to get special treatment or

apply outside the rules.

14


• Court awarded notice period of 15 mos., an additional 5

mos. because employer actions delayed employee from

obtaining alternative employment, punitive damages of

$100,000, intangible damages of $50,000 and damages for

mental suffering of $20,000. Total damages approx.

$300,000. Costs award $165,000.

15

Large Damages Awards for Wrongful Dismissal

• 40 Years of Dedicated Service

• Johnson v Global Television Network Inc. (2007), 60

CCEL(3d) 241 (BCSC)

• Employee On Air Operations Manager worked for

Defendant TV network for nearly 40 consecutive years.

• Position eliminated following transfer of operations to sister

network.

• Employee 8 mos. shy of retirement at age 65. Defendant

provided working notice with new duties until age 65.

• Employee’s claim for constructive dismissal allowed. Court

awarded damages based on 24 months notice. Age,

decades of service, character and scope of management

employment, and lack of available alternative employment

justified award at higher end of the range.

16


• Beware of Civil Jury Awards

• Jessen v CHC Helicopters (2006), 51 CCEL (3d) 163

(NSCA)

• J was Asst. Base Manager for helicopter company for 2 ½

years. Employer ran ad for J’s job without informing her.

She was told that she would be kept on as contracts

manager, but this offer was rescinded. J dismissed and

employer refused to provide a reference letter.

• Civil jury found J was wrongfully dismissed, awarded 4 mos.

Damages, plus 48 mos. Wallace damages

• Employer appeal and Wallace damages reduced to 9 mos.

17


• Elgert v Home Hardware Stores Ltd. 2011 ABCA 112

• Elgert worked at Home Hardware’s distribution center for 17

years. Following a complaint and weak investigation, he

was dismissed due to sexual harassment. A Civil Jury

found that he had been wrongfully dismissed.

• The Jury awarded 2 years pay in lieu of notice, $200,000 in

aggravated damages, $300,000 in punitive damages, and

$60,000 in defamation damages against the two women

who brought the sexual harassment complaint.

• The Alberta Court of Appeal allowed the appeal in part.

The aggravated damages award was set aside and the

punitive damages award was reduced to $75,000.

18

Automatic Union

Certification

Applications

19

Automatic Union Certification Applications

20

• No union certification in Alberta without a vote,

except companies under federal jurisdiction

• Under Alberta law (involves 80% of Alberta

employers who are under provincial jurisdiction)

certification votes are:

• Mandatory

• Fair

• Conducted by a returning officer of the Alberta Labour

Relations Board

Reinstatement of

Non-Unionized

Workers

21

Reinstatement of Non-Unionized Workers

22

• Very rare remedy in Alberta

• Rarely awarded even under federal legislation

• Only other instance where non-unionized workers

may get reinstated

• Alberta Human Rights Act

• Very rare

• Long and cumbersome process

Skilled Labour

Shortages

23

Skilled Labour Shortages

• There is a shortage of skilled labour in some parts of Canada,

but particularly in Alberta

• Large-scale projects in Alberta need large numbers of skilled

trades

• Potential issue relating to provincial requirements for

certification of some types of tradespersons

• Potential issue relating to unions and union certification

• Increasing emphasis on protecting foreign workers by

provincial ministries of labour

24

Immigration

Strategies

25

Immigration Strategies

• Canada has a facilitative work permit regime to assist

the entry of skilled workers, including tradepersons

• Labour Market Opinions (LMOs) may be obtained to

get work permits for foreign skilled trades or semi-

skilled workers where no Canadians can be recruited

• New 10 day Accelerated LMO process for skilled

trades occupations available to eligible employers

• Alberta and some other provinces have special

programs to assist the entry of foreign skilled trades

• Canadian government is to introduce a new permanent

resident program for skilled trades.

26

Canadian Work

Permits for U.S.

Citizens

27

Canadian Work Permits for U.S. Citizens

28

• Key question: Does the activity in Canada require a work

permit?

• If not, may enter as a business visitor

• Common misconceptions:

• Short visit = no work permit needed

• No direct payment in Canada = no work permit needed

• What matters is the purpose of entry of the U.S. based

personnel entering Canada

• There are two main work permit categories for U.S. citizens:

• NAFTA Professional; and

• Intra-Company Transferee


(1) NAFTA Professional Category:

• NAFTA lists 63 professions that are eligible

• Must meet educational and/or work experience criteria

• Must be exercising the skills of the profession when in

Canada

(2) Intra-company Transferee Category:

• For employees at “executive” or “managerial” level, or who

have “specialized knowledge”

• Must have worked full-time for 12 consecutive months in the

preceding 3 years for the U.S. entity

• Must prove proper ownership affiliation between U.S.

employer and the related Canadian entity

• Special rules for transfers to new start-ups in Canada

29


Under Both Categories:

• May apply for work permit at the port of entry, with proper

application package

• Work permit may be issued for up to three years

30

Strategies to

Ease Border

Restrictions

31

Strategies to Ease Border Restrictions

• Recognize that the border is there and be proactive in assessing

whether a work permit is needed well in advance of entry date

• Review citizenship as this may affect entry procedures, entry

options and work permit options

• Review potential criminality as this affects admissibility

• Provide cross border travellers with proper supporting documents

• If selling equipment/software into Canada, draft sales agreements

with language to support entry of after-sales service personnel

• If setting up business in Canada, consider doing so in a way that

supports potential work permit applications for transferees

32

Quebec: Unique

Considerations

33

Quebec : Unique Considerations

Employment Relationship: Recourses

• An Act respecting labour standards provides three

distinct recourses to employees:

• Complaint for termination without good and sufficient cause;

• Complaint for a prohibited practice;

• Complaint for psychological harassment.

• Lawyer for free.

34


Complaint for termination without good and sufficient

cause: Guindon v Garda Case

• Middle management

• Twenty-seven (27) months of service

• Annual salary of approximately $75,000.00

• Grounds for termination: many including, unsatisfactory

performance and questions of dishonesty

• Complaint granted

35

An Act Respecting Labour Standards (ARLS)

• S. 124

• Employee (excluding executives)

• Dismissed as opposed to being laid-off

• Two (2) years of uninterrupted service

• Must file the complaint within forty-five (45) days of your

termination

• Burden on employer


36

Remedies ( S. 128 ARLS)

• Reinstatement

• Lost salary

• Any other remedy:

• Moral damages

• Punitive damages

• Indemnity for loss of employment

• Letter of reference


37

In the instance of Guindon v Garda Case:

• Awarded $787,000.00

• Unpaid salary (5 years)

• Options

• Lawyer fees

• Indemnity for loss of employment because not reinstated

• Awarded moral and punitive damages


38


Liabilities following a business acquisition: Quiz

• A co. buys B co.

• The General Manager of A co. knows the HR Manager of

B co. and insists that he be terminated before the

transaction.

• A co. is safe if the letter of termination is received before

closing?

39

Liabilities following a business acquisition

• Article 2097 of the Civil Code of Québec provides that

following the alienation of an enterprise, an employee’s

contract is continued with the new employer with all of the

existing employment conditions in force as if no change of

ownership had occurred.


40

Liabilities following a business acquisition

• Section 96 of the Act Respecting Labour Standards protects

the civil claims that an employee may have under the Act

when the business is sold or transferred (in whole or in part,

including certain cases of subcontracting).

• Section 97 of the Act Respecting Labour Standards provides

for the continued application of the Act to an employee’s

service, despite the change in employer.

• Section 45 of the Labour Code provides that the sale of an

operation (in whole or in part) does not invalidate the

bargaining certificate, the collective agreement or any pending

application for certification as a union.


41


The Charter of the French Language: Quiz

Can you solve all your problems with the magic sentence:

« Les parties ont requis que la présente entente soit

rédigée en anglais » ?

Translation:

The parties have required that the present agreement be

drafted in English

42


The Charter of the French Language

• The Charter of the French Language was enacted in 1977 and

made French the official language of Québec.

• Under the Charter, employees have the right to work in

French and to be provided with all employment-related

documents and communications in French.

• Employment contracts, employment conditions, policies and

procedures, etc. must be available in French.

• If French versions of technology hardware (e.g., keyboards)

and software are available, they must be offered to

employees.

43


The Charter of the French Language

• Once an employer employs 50 employees in Québec, it must

register with the Office Québecois de la Langue Française

(“the Québec French Language Bureau”), the agency

responsible for enforcing the Charter of the French Language.

• The Office Québecois de la Langue Française will, in

cooperation with the company, study the use of French in the

company and, if necessary, will require the company to

prepare a “francization” program.

• The francization program is to generalize the use of French at

all levels of the company in Québec.

44

Thank You

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CONTACTS

Chris Andree, Waterloo, Ontario Luc Deshaies, Montreal, Quebec Tel: 519.576.6910 Tel: 514.878.9641

Email: [email protected] Email: [email protected]

David Corry, Calgary, Alberta Bill MacGregor, Waterloo, Ontario Tel: 403.298.1000 Tel: 519.576.6910

Email: [email protected] Email: [email protected]

Employment, Labour and Immigration Law in · PDF file•Skilled labour shortages ......

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