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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
Large Damage Awards for Wrongful Dismissal
• 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
Large Damage Awards for Wrongful Dismissal
• 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
Large Damage Awards for Wrongful Dismissal
• 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
Large Damage Awards for Wrongful Dismissal
• 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
Large Damage Awards for Wrongful Dismissal
• 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
Large Damage Awards for Wrongful Dismissal
• 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
Canadian Work Permits for U.S. Citizens
(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
Canadian Work Permits for U.S. Citizens
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
Quebec : Unique Considerations
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
Quebec : Unique Considerations
36
Remedies ( S. 128 ARLS)
• Reinstatement
• Lost salary
• Any other remedy:
• Moral damages
• Punitive damages
• Indemnity for loss of employment
• Letter of reference
Quebec : Unique Considerations
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
Quebec : Unique Considerations
38
Quebec : Unique Considerations
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.
Quebec : Unique Considerations
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.
Quebec : Unique Considerations
41
Quebec : Unique Considerations
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
Quebec : Unique Considerations
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
Quebec : Unique Considerations
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: chris.andree@gowlings.com Email: luc.deshaies@gowlings.com
David Corry, Calgary, Alberta Bill MacGregor, Waterloo, Ontario Tel: 403.298.1000 Tel: 519.576.6910
Email: david.corry@gowlings.com Email: bill.macgregor@gowlings.com
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