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Author Archive - Employer Advisor, McCarthy Tétrault LLP

McCarthy Tétrault through their Employer Advisor blogs offers their perspectives on the latest legal developments applicable to the workplace. It provides their insights on legislative and regulatory developments, as well as new case law, while providing practical tips for employers and their human resources professionals when managing the workforce. McCarthy Tétrault is a Canadian law firm that delivers integrated business law, litigation services, tax law, real property law, labour and employment law nationally and globally. Several of their blog posts will be republished with permission on First Reference Talks. Read more

Reasonable settlement offer prevents litigious complainant from proceeding

A recent decision of the BC Human Rights Tribunal serves as a useful reminder of the utility of a reasonable settlement offer, which can result in the Tribunal putting an end to complaint proceedings without a hearing.

 

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Contravention à une disposition en matière de santé et sécurité du travail? Une accusation d’homicide involontaire coupable pourrait en résulter!

La Cour supérieure a rendu une décision qui élargit la portée du Code criminel dans le cas de violations de dispositions en matière de santé et sécurité du travail. Dans Fournier c. R., la Cour supérieure indique qu’une accusation d’homicide involontaire coupable peut être fondée sur une infraction de responsabilité stricte en matière de santé et sécurité au travail.

 

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Browsing history deleted to prevent embarrassment

In Catalyst Capital Group Inc v Moyse, 2016 ONSC 5271 the Ontario Superior Court considered whether the defendant, Brandon Moyse, who deleted his Internet browsing history from his personal computer in the face of a preservation order, had intentionally destroyed relevant evidence, giving rise to spoliation. Spoliation is an evidentiary rule that gives rise to a rebuttable presumption that destroyed evidence would be unfavourable to the party that destroyed it.

 

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A classic lesson regarding termination meetings

A recent case out of British Columbia provides a timely reminder of a best practice for Alberta employers when it comes to termination of an employee. In Saliken v Alpine Aerotech Limited Partnership, 2016 BCSC 832, a relatively short service employee was dismissed, allegedly for just cause.

 

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Sale of business pension transfer rules

Ontario has had new sale of business pension transfer rules (the Transfer Rules) since January 1, 2014. The Transfer Rules are found in section 80 of the Pension Benefits Act and the Asset Transfers under Sections 80 and 81 of the Act regulation. However, as with any regime which depends on a set of rules rather than the exercise of discretion, the Transfer Rules’ lack of flexibility may frustrate employment law and reasonable commercial considerations.

 

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Gender identity and gender expression

Following our previous post on the British Columbia government’s bill to amend the Human Rights Code (Code) earlier this year, the bill recently received royal assent and gender identity and gender expression are now expressly included in the Code as protected grounds. Though the meaning and application of these new protected grounds will need to be fleshed out by Tribunal and court decisions, the Tribunal’s website now provides the following descriptions…

 

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Overtime entitlement: Employee travel

Under the Employment Standards Act, 2000 and Ontario Regulation 285/01, “work” is deemed to be performed when an employee is travelling on business, even if that time is non-productive and outside normal business hours. Here are some ways to minimize that liability.

 

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I take it back: Withdrawing resignation

What should you do if an employee asks to rescind his or her resignation? If you really love that employee, you say “Great! Welcome back.” But if this isn’t your favourite employee, you may have an obligation to undo the resignation anyway. In order to decide whether or not to allow them to withdraw the resignation, there are a few factors that you should consider.

 

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Family status quo for British Columbia

For now, it appears the Campbell River decision is sufficient for the Tribunal’s purposes to address complaints of discrimination in family status in British Columbia. However, as we posted previously, employers would be well-advised to consider the Johnstone test when examining employees’ accommodation requests on the basis of family status.

 

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BC government enables smaller employers to give employees pension plans

Pension plans can be a very helpful retention mechanism for good employees (and, it must be noted, bad ones too), and many larger employers offer them to their employees as part of their overall compensation package. However, the cost and complexity of pension plans have also meant that they may not be considered by most smaller employers. Recent legislative enactments have attempted to address this.

 

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Yes your employees may be legally entitled to time off work to watch their kids, even if they give you no advance notice

Alberta employers should keep this decision in mind when responding to an employee’s last minute request or demand for time off work to deal with childcare obligations, and even other family needs. Arguably, and if the right facts exist, employees could be protected under the Alberta Human Rights Act even if they have made no efforts to seek out alternate child care. The result is that they could be entitled to the short period of time off, in most cases despite the negative impact that their absence will have on the employer’s operations.

 

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DB pension plans and Ontario’s consultation on solvency funding rules – Now is the opportunity for employers to speak up

Employers that sponsor defined benefit (“DB”) pension plans know that contribution requirements can be volatile and onerous, especially given current low interest rates. The Ontario Government has taken note. In its recent consultation paper, the Government proposes several approaches to change the current DB funding rules, including the complete elimination of solvency funding. Comments on the Consultation Paper are due by September 30, 2016. The Ontario Government then intends to hold a second public consultation on any proposed funding reforms in the Fall 2016.

 

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Employers should take note – The Interim Report on Ontario’s “Changing Workplaces Review” is now available for comment

The Interim Report kicks off the next phase of the province–wide consultation on modernizing Ontario’s Employment Standards Act, 2000 and Labour Relations Act, 1995. Employers should note that August 31, 2016 is the deadline for submissions on the Personal Emergency Leave provisions of the ESA and October 14, 2016 is the deadline for all other submissions.

 

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Make whole remedies and good faith crucial to mitigation

A recent decision of the BC Court of Appeal provides a cautionary tale for BC employers seeking to remedy a potential wrongful dismissal.

 

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More bad news for fixed term contracts

A few months ago we commented on a case where a fixed term contract caused an employer significant liability because it did not allow for early termination prior to the end of the fixed term. The Ontario Court of Appeal recently released a decision, Howard v. Benson Group Inc., which provides a further warning about the use of fixed term contracts.

 

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