Canada Labour Code Adjudicator Awards Costs in Unjust Dismissal Case This blog is co-written by our former articling student, Janet Son. In P.D. and The Bank of Nova Scotia, Re, 2020 CarswellNat 640, Adjudicator Kaufman considered the issue of whether the Canada Labour Code (the “Code”) authorized adjudicators to award costs in unjust dismissal cases. The complainant P.D. worked as a customer service representative at the Bank of Nova Scotia (the “employer”). She was dismissed due to allegations that she misappropriated $1,000.00 of the Bank’s funds and attempted to cover up the theft while serving customer Mr. X. Counsel for the employer argued that there were no grounds under the Code for a costs award in an unjust dismissal claim, citing Canadian Human Rights Commission and Mowat v. Canada (Attorney General), 2011 S.C.C. 53 (CanLII) (“Mowat”). Employer’s counsel argued since “costs” is a legal term of art, if Parliament intended to confer the authority to award costs then it would have been explicitly stated in the legislation. However, Adjudicator Kaufman found that Mowat was decided specifically in the context of the Canadian Human Rights Act and the absence of a specific authority to award costs should not be generalized to other administrative bodies. Adjudicator Kaufman reviewed the post-Mowat decision of Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29 (CanLII) and found that the Justices of the Supreme Court confirmed that as part of the remedial scheme set out in section 242(4) of the Code, adjudicators have the authority to award costs. The applicable provision being: “Unjust dismissal (4) If the Board decides under subsection (3) that a person has been unjustly dismissed, the Board may, by order, require the employer who dismissed the person to (a) pay the person compensation not exceeding the amount of money that is equivalent to the remuneration that would, but for the dismissal, have been paid by the employer to the person; (b) reinstate the person in his employ; and (c) do any other like thing that it is equitable to require the employer to do in order to remedy or counteract any consequence of the dismissal.” Adjudicator Kaufman concluded that the wording “do any like thing that is equitable…” conferred a broad discretion for adjudicators to award costs as is appropriate. As such she applied the factors set out in Rule 400 of the Federal Court Rules, to determine a costs award. The appropriate scale of costs was also canvassed, based on the following factors: adjudication is a fact-finding process, the onus is on the employer to establish just cause for dismissal on a balance of probabilities if just cause is not proven the employer is at risk of compensating the complainant for their legal costs, and the purpose of costs is not to punish the employer but to “make whole” the complainant that spent resources to test their unjust dismissal. Adjudicator Kaufman concluded that partial indemnity costs would be insufficient since P.D. had “done little to contribute to the costs she incurred, other than to have been misjudged by the employer.” As a result she awarded substantial indemnity costs in the amount of $90,466.40. Key Takeaway: Employees under the Code may have an increased chance of being awarded substantial indemnity costs in the adjudication of their matter as compared to commencing a wrongful dismissal claim at the Superior Court where costs awards are typically made at the partial indemnity rate. If you have more questions about your wrongful dismissal, contact employment lawyer Marty Rabinovitch at 416-446-5826 or at marty.rabinovitch@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, COVID-19, Labour LawMay 26, 2020September 30, 2020
Bill 66: Changes to the Employment Standards and Labour Relations Acts Bill 66, which received royal assent on April 3rd, 2019, changes the Employment Standards Act, 2000 (ESA) and the Labour Relations Act (LRA). Workplaces that are covered by the ESA should take note that: Posting requirements are no more: Employers are no longer required to display a poster in the workplace delineating the ESA’s applicable regulations and rules. However, employers remain obligated to provide a poster delineating ESA rules and regulations to their employees. Agreements extending the ESA overtime limit no longer require approval: Employers no longer need to apply for approval to make agreements allowing their employees to exceed 48 hours of work in a work week. As long as there has been an agreement between the employer and the employee extending the amount of hours the employee can work, employers are not violating the ESA. Overtime-averaging agreements no longer require approval: Employers no longer need to apply for approval to make an agreement with an employee to average their employee’s hours of work for the purpose of determining entitlements to overtime pay. Note, however, that the employee’s hours may be averaged in accordance with the terms of an averaging agreement only if the overtime period in the agreement does not exceed four weeks. Workplaces that are covered by the LRA should take note that: The list of non-construction employers has been expanded: municipalities, local boards, school boards, local housing corporations, hospitals, Ontario colleges and universities now no longer apply to the LRA’s rules with respect to construction employees. Employers listed under this new provision may opt-out, but only if: (1) A trade union represents employees of the employer who are employed, or may be employed, in the construction industry as of April 3, 2019; (2) The application must be made by a person with authority to bind the employer; and (3) The election must be filed with the Minister of Labour within three months of April 3, 2019. If you would like more information about these amendments, or would like legal advice to ensure your place of work follows these new requirements, please contact experienced employment lawyer Marty Rabinovitch of Devry Smith Frank LLP at 416-446-5826 or marty.rabinovitch@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment Law, Labour LawMay 24, 2019September 30, 2020
Employment Bill 148 is Being Scrapped…But Which Parts Are Uncertain Last week Doug Ford announced that he was halting the implementation of a $15 per hour minimum wage in Ontario but it looks like he is seeking to additionally roll back other employment laws that have already come into force. Yesterday, October 2, 2018, Doug Ford announced in the Ontario legislature that he was going to scrap Bill 148, a bill enacted by the previous Liberal government (after a broad consultation) that increased protections for workers in an effort to alleviate the impacts of precarious work (see our previous blogs on Bill 148). Bill 148 introduced many new provisions to both Ontario’s Employment Standards Act and Ontario’s unionized Labour Relations Act. Some of the new provisions included a presumption that a worker is automatically an employee unless it is proven otherwise (an employee classification gets the most protection under labour and employment legislation), mandated scheduling provisions including the expansion of the “3 hour rule” (i.e. an employee gets paid for three hours of work if his/her shift is cancelled less than 48 hours before he or she was to commence working), equal pay for equal work laws between full and part-time workers, personal emergency leave provisions (10 days of emergency leave absences with 2 days of paid leave), and increased regulation on temporary help agencies. However, whether Bill 148 is going to be axed in its entirety or in a piecemeal fashion remains to be seen. Doug Ford’s statements in the legislature were incredibly broad, saying “We’re getting rid of Bill 148. We’re going to make sure we protect the front-line workers because 60,000 people lost their jobs under Bill 148 … We’re going to make sure we tell the world Ontario is open for business. We’re going to make sure we’re competitive around the world.” After Question Period, reporters swarmed Jim Wilson, Minister of Economic Development, Job Creation and Trade, with respect to Ford’s comments. Wilson scaled back Ford’s comments, stating that the government was still reviewing Bill 148 and a final decision had yet to be made. Wilson made statements that despite the Conservative government voting against the Bill when the Liberals introduced it, they were likely going to keep the $14 an hour minimum wage and other sections. Devry Smith Frank LLP will be monitoring the province’s efforts to scrap Bill 148. It is important to contact a labour and employment law lawyer to keep apprised of recent legislative developments and get advice on how it will impact your business or personal contracts. If you need assistance with labour and employment laws please contact one of our employment lawyers. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment Law, Labour LawOctober 10, 2018June 16, 2020 No comments yet
Colleges and Faculty to Continue Contract Discussion to Avoid Strike In a previous blog post, we discuss the call for a strike that Ontario’s colleges faculty members will vote for in the fall, after rejecting a 7.5% wage hike offered by the Ontario government. Now, they are back to negotiating after the Thanksgiving weekend. Ontario’s colleges are back at the bargaining table today, as the strike deadline of October 15th approaches. The talks have been put on hiatus at the end of September after no progress was made. The union represents “full-time professors as well as “partial load” instructors who teach between seven and 12 hours a week, as well as college counsellors and librarians,” and the last offer that was received from the colleges provided a 7.5 per cent raise over four years, as well as improvements to benefits and a lump-sum payment which they did not accept. CEO of the college council, Don Sinclair, has reassured students that the colleges are concerned and will provide updates as they become available. In this case, the government has indicated that, before any strike vote, that the faculty union members vote on the last offer they have received. Employers usually have this right, stored under s. 42 of the Labour Relations Act, which says: (1) Before or after the commencement of a strike or lock-out, the employer of the employees in the affected bargaining unit may request that a vote of the employees be taken as to the acceptance or rejection of the offer of the employer last received by the trade union in respect of all matters remaining in dispute between the parties and the Minister shall, and in the construction industry the Minister may, on the terms that he or she considers necessary direct that a vote of the employees to accept or reject the offer be held and thereafter no further such request shall be made. The ability for the employer to call for a vote is a tactic of last resort—and can only be done once. In fact, in 2010, when the current collective agreement was signed, colleges used s. 42 to call for a vote, which approved the agreement with a slim majority. Only time will tell to see if this strategy will pay off for a second time, or if both parties will be forced to return to the bargaining table. Devry Smith Frank LLP is a full service law firm that has a very experienced group of lawyers within our employee and labour law groups. If you are in need of representation, please contact one of our lawyers today or call us directly at 416-449-1400. By: Nicolas Di Nardo “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment Law, Labour LawOctober 10, 2017June 18, 2020 No comments yet
Toronto Zoo Strike Costs Toronto $4 Million Last spring, the Toronto Zoo saw a strike over wages for its workers, which caused the Zoo to remain closed for 5 weeks while an agreement was reached. The agreement gave the workers a 1.25-per-cent wage hike in each of the four years of their contracts and the non-union staff will be closely watched as the Zoo board will decide on what they will receive as a result. Figures were released in a report on attendance and revenue which revealed: The Zoo expected 218,012 visitors Net forecast loss of $3.99 million After they re-opened, they still saw a decrease in attendance of 65,125 due to cancellations of group trips and camps. With the addition of the pandas, attendance hit 1.3 million and is expected to dip once they are transported to Calgary. Overall, August attendance levels were below target, but, still above 2016 levels with a rebound happening in September. Devry Smith Frank LLP is a full service law firm that has a very experienced group of lawyers within our employee and labour law groups. If you are in need of representation, please contact one of our lawyers today or call us directly at 416-449-1400. By: Nicolas Di Nardo “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment Law, Labour LawOctober 4, 2017June 18, 2020 No comments yet
Recycling Plant to Pay $1.33M in Fines, Back Wages A recycling plant in North York has been employing temp-workers for years at a low-wage and has been ordered to pay $1.33M in fines and back pay to workers. Canada Fibers Ltd. has violated the City of Toronto’s fair wage policy after a two year investigation revealed they were paying workers below the agreed upon rates. Canada Fibers has two, seven-year contract with the city to process blue bin recyclables, and within those contracts included that all employees, including temp workers, will be paid $12.34 an hour with pay increases tied to inflation. The contracts with the city are worth more than $264 million. After a series of reports by The Star on a worker who had been working for years at minimum wage with the company, $11 an hour at the time, an investigation was launched in 2015 into the company which found that 1,600 workers were owed money due to low wages. The investigation was conducted over two years by the city’s Fair Wage Office. It also found that Canada Fibers uses 5 different temp agencies to staff their facilities. Now, Canada Fibers has agreed to pay approximately $1.2M in good faith payments to employees and a $135,000 administration fee to the City of Toronto. Such an investigation highlights how important Bill 148 is to provide equal work for equal pay to temp agency workers and part time workers, as improvements are needed in the enforcement of this. Part time and temp workers who do the same work as their full time counterparts deserve the same treatment and pay. Devry Smith Frank LLP is a full service law firm that has a very experienced group of lawyers within our employee and labour law groups. If you are in need of representation, please contact one of our lawyers today or call us directly at 416-449-1400. By: Nicolas Di Nardo “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment Law, Labour LawSeptember 26, 2017June 18, 2020 No comments yet
Ontario Legislature Returns From Summer Break – Labour & Marijuana to be Main Focus Queen’s Park resumes today after summer break, with much to keep them busy this fall. They will focus on the labour law changes and marijuana legalization which is set for July of next year. In addition to these two major topics, they are also resuming in the midst of two Liberal trials, one of which is the Election Act bribery trial where Kathleen Wynne has been called as a witness. The Election Act bribery charges stem from a 2015 by-election and mischief and the breach of trust trial related to the cancellation of two gas plants before the 2011 election. The labour bill and the introduction of increased minimum wage by 2019, equal pay for part-time workers, more vacation days and personal emergency leave will go through a second reading before the second round of committee hearings. Business groups are against the increase, saying that it is “too much o absorb that quickly,” and they continue to press for amendments to the bill. Second on the docket is the legalization of marijuana and the control of the sale of it, after the announcement that the LCBO will operate all 150 stores that will open in the next couple of years. This fall will be busy for our government, as there are other policies that will be discussed aside from the labour law changes and legalization of pot, such as: Long-term energy plan Police oversight legislation Legislation to create new northern ridings Updated Police Services Act Ticket sales and resale legislation Legislation to create safe zones around abortion clinics As updates become available to the developments in Queen’s Park please check back to our blog for more information on these stories. Devry Smith Frank LLP is a full service law firm that has a very experienced group of lawyers within our employee and labour law groups. If you are in need of representation, please contact one of our lawyers today or call us directly at 416-449-1400. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Labour LawSeptember 11, 2017June 18, 2020 No comments yet
Significant Changes Coming to Ontario’s Labour and Employment Laws Ontario is one step closer to approving the minimum wage increase of $15 an hour, however that is not the only change that is on Ontario’s horizon. A legislative committee studying the bill has concluded its work, advancing the bill to the fall session of the legislature, which begins September 11. Bill 148, known as the Fair Workplaces, Better Jobs Act, includes much more than a dramatic increase in the minimum wage. The bill makes large amendments to the Employment Standards Act, 2000 (“ESA”), Ontario’s minimum standards legislation, and the Labour Relations Act (“LRA”), which governs unionization. Many of these changes are favourable to employees, in an effort to alleviate the impacts of precarious work. Based on a worker’s classification as either an “employee,” “dependent contractor,” and “independent contractor,” a worker gets different rights under Ontario’s minimum standards legislation. The Ontario government seeks to introduce an automatic presumption that a worker is an “employee” (entitling them to the most rights) and that it would be illegal for an employer to misclassify its workers (to evade minimum standards legislation). The government also proposed to regulate scheduling inside a workplace. If the bill is passed, an employee who has been working for more than three months in a workplace can request a change in their schedule or work location without fearing dismissal. The well-known “3 hour rule” (i.e that a worker be paid for at least 3 hours for a shift) has been expanded to all workplaces and will even be triggered if an employer cancels a shift 48 hours before the employee was to commence working. An employee will also gain the right to refuse shifts without fear of termination if the request is made less than 96 hours before the proposed shift was to begin. Vacation pay entitlements will also be increased: an employee working less than 5 years for the same employer will continue to receive 2 weeks of paid vacation but an employee working more than 5 years for the same employer will receive 3 weeks of statutory vacation. The government also focused on making stronger provisions for equal pay for equal work. If passed, it would become illegal to pay part-time workers less than full-time workers and temporary help workers less than their directly-hired counterparts (absent other objective factors). Moreover, if a worker believes that they were being paid less on the basis of sex or employment status, they would gain the right to request a written review where the employer must either a) raise their wage or b) provide written reasons about why they disagree. Temporary help agencies would also face further regulation on their practices, including owing its employees one week “termination of assignment” pay (similar to “severance pay”) if the employee was terminated from a contract that was supposed to last 3 months or more. These employees would not get “termination of assignment” pay if they were placed in a new contract within a week. The government also hopes to introduce two (2) days of paid leave of absences and eight (8) days of unpaid personal emergency leave. This leave would cover personal illnesses, injuries and medical emergencies (for both the employee and his or her close relatives) and situations of sexual or domestic violence. Employers can request reasonable evidence of the employee’s entitlement to take the leave. It will also become less burdensome to file a complaint under the ESA. Previously, employees who felt their minimum standards were being breached needed to first notify their employer before making a complaint. This requirement would be removed under the new bill. The Director (the person who enforces the ESA) will also be allowed to collect security for any amounts owing under the ESA. Notices of contravention and Recognitions would be able to be widely publicized, despite privacy laws. Alcohol servers and others would be happy to know that the government has created a more specific definition of what constitutes a “tip” in order to prevent employers from stealing tips meant for their employees. The field of labour and employment law is becoming very complex for both employees and employers. It is important to seek out an experience labour and employment lawyer who knows not only the current law, but changes on the horizon. Devry Smith Frank LLP is a full service law firm that has a very experienced group of lawyers within our employee and labour law groups. If you are in need of representation, please contact one of our lawyers today or call us directly at 416-449-1400. By: Michelle Cook, Summer Law Student “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment Law, Labour LawAugust 30, 2017June 18, 2020 No comments yet
Ontario’s Colleges Call for Strike By: Stuart Clark, Student-at-Law According to the Toronto Star, the Ontario government has offered faculty members at the province’s colleges a 7.5% wage hike. However, the Ontario Public Service Employees Union (“OPSEU”), has called for a strike vote in the fall—wanting to address other issues beyond compensation. Employers and workers represented by a union negotiate working conditions through the process of collective bargaining, governed by Ontario’s Labour Relations Act, 1995. Once a union has been certified or recognized in accordance with the Act (s. 16), both parties are obliged to come together and bargain in good faith to reach a collective agreement (s. 17). For sophisticated employers and unions, the scope of an agreement can be immense; covering everything from salaries, to the hiring process, and even how workers are individually scheduled for their shifts. For example, in a recent blog post, we noted that LCBO workers had threatened to strike over the July long weekend. Workers have since ratified a deal, which included terms that end the LCBO’s practice of scheduling two-hour shifts. This is just one example of how granular a collective agreement can become. Normally, for the agreement to come into force, it must be ‘ratified’ by the members of the union’s bargaining unit (s. 44), with those supporting the offer totalling more than 50% of votes cast. Even if union leadership supports a deal, this is no guarantee of its success. In this case, the government has indicated that, before any strike vote, that the faculty union members vote on the last offer they have received. Employers usually have this right, stored under s. 42 of the Act, which says: (1) Before or after the commencement of a strike or lock-out, the employer of the employees in the affected bargaining unit may request that a vote of the employees be taken as to the acceptance or rejection of the offer of the employer last received by the trade union in respect of all matters remaining in dispute between the parties and the Minister shall, and in the construction industry the Minister may, on the terms that he or she considers necessary direct that a vote of the employees to accept or reject the offer be held and thereafter no further such request shall be made. The ability for the employer to call for a vote is a tactic of last resort—and can only be done once. In fact, in 2010, when the current collective agreement was signed, colleges used s. 42 to call for a vote, which approved the agreement with a slim majority. Only time will tell to see if this strategy will pay off for a second time, or if both parties will be forced to return to the bargaining table. Devry Smith Frank LLP is a full service law firm that has a very experienced group of lawyers within our employee and labour law groups. If you are in need of representation, please contact one of our lawyers today or call us directly at 416-449-1400. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment Law, Labour LawAugust 10, 2017June 19, 2020 No comments yet
Possible Strike at Pearson Airport Beginning Thursday By: Nicolas Di Nardo Already checked in for your flight tomorrow? Flying out of Pearson by the end of the week? You better make sure you continuously check your flight time, because your flight could face some delays. Why, you may ask? Pearson’s ground crew for 30 airlines may be going on strike tomorrow, with the potential to delay flights. Monday, the union representing Swissport workers (approximately 700 employees) filed a 72-hour strike notice and will ask its members to shoot down the company’s final offer. Swissport believes their final offer is “fair and competitive, and expressed disappointment that the union may strike.” The union has not yet given members the reason why they are to reject this apparent fair and competitive offer. All workers that will be going on strike as early as Thursday night include: Baggage Handlers Cargo Handlers Cabin Cleaners The union is expressing their concerns with: Company’s decision to hire 250 temporary workers – without significant change in workload Union was only given a day’s warning before they began hiring the workers Training duration temps receive (3-4 days rather than 3-4 weeks) Don’t believe these workers can do their job with no experience and poor training They also claim that Swissport hired those 250 workers to put leverage on workers during the current round of contract negotiations. Which they believe is sacrificing airport safety. Swissport’s response to the hiring of temporary workers as a way to respond to the summer rush, something they are permitted to do under the collective agreement. As a result, the Teamsters have filed a formal complain with the Canadian Industrial Relations Board. Specifics could not be discussed due to the upcoming CIRB case. It will be interesting to see how many workers do go one strike, considering it has been mentioned that the union’s members don’t want to strike. Nevertheless, the Greater Toronto Airports Authority has a contingency plan in place in the event of a strike or labour disruption by Swissport workers. Devry Smith Frank LLP (“DSF”) is a full service law firm in Toronto that has experienced Labour Law Lawyers that can assist employers in the event of union organizing, bargaining and negotiations, and strikes. If you require a Labour law Lawyer, contact DSF’s Labour Lawyers today, or call our office directly at 416-449-1400. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Labour LawJuly 26, 2017June 22, 2020 No comments yet
