On Monday May 20, 2013, most Canadians get a day off work with pay on what is called Victoria Day. In Quebec, it is called National Patriots’ Day

Employees get a day off with regular pay or public holiday pay (depending on the province or territory of employment). If the employee is required to work on the holiday, the employee must be paid regular wages and get a substituted day off with pay at a later date (depending on the province or territory of employment). However, Victoria Day is not a public (statutory) holiday under employment standards in New Brunswick, Newfoundland and Labrador, Nova Scotia and Prince Edward Island. In these provinces, a day off may be granted to retail industry employees under the Shops’ Closing Act or similar legislation. There are other variations and exemptions; for specific requirements for your jurisdiction, consult the Library section of HRinfodesk.

In Canada, the celebration of Victoria Day occurs every year on the Monday prior to May 25. It is the official celebration in Canada of the birthdays of Queen Victoria and Queen Elizabeth II. Victoria Day was established as a holiday in Canada West in 1845, and became a national holiday in 1901. Before Victoria Day became a national holiday, people had celebrated Empire Day, beginning in the 1890s as Victoria approached her Diamond Jubilee in 1897.

No matter the reason… have a great long weekend and a great day off!

Yosie Saint-Cyr
First Reference Human Resources and Compliance Managing Editor

As anticipated, since the federal Pooled Registered Pension Plans Act came into force December 14, 2012, several provinces have followed suit and tabled legislation to implement the new kind of portable deferred income plan, which is designed to provide retirement income to workers and self-employed persons who do not have access to an employer-sponsored retirement pension plan.

Although the proposed provincial laws are similar in spirit because they are subject to the requirements set out in the federal Act, some provinces like Quebec have added their own distinct requirements.

All these provincial retirement plans provide a simple, effective and low-cost way of improving pension coverage for employees of small and medium-sized businesses and the self-employed.

For more, read my latest post on Slaw.

Employee’s dishonesty and breach of confidentiality during a workplace investigation leads to cause termination

In a recent Federal Court decision, (Bank of Montreal v. Payne), an employee’s dismissal was upheld due to his dishonesty during and after a workplace investigation. (In PDF)

Treating employee negatively due to disability

When an employer neglected to reinstate an injured employee’s benefits after she returned to work, and refused to explain to her its reasons, the employee felt that the employer was treating her differently because of her injury and her long absence. She took her complaint of discrimination to the Human Rights Tribunal of Ontario, and the employer continued to ignore the case, except for two brief submissions. The tribunal ruled in the employee’s favour in the employer’s absence.

Settlement characterized as a retiring allowance

The vice-chair of the Ontario Human Rights Tribunal just concluded that the severance payment negotiated by a former employee and the employer appeared to be for the loss of her earnings in the period following her involuntary retirement. To that end, the settlement money was to be characterized as a retiring allowance. This meant that the employer was right when it withheld 30 percent of the settlement payment as tax.

As previously reported, on December 19, 2012, Citizenship, Immigration, and Multiculturalism Minister Jason Kenney (the “Immigration Minister”) announced that the Federal Skilled Worker Program (“FSWP”) would once again begin accepting new applications on May 4, 2013. However, several key details of the FSWP were not announced at that time. These outstanding details included:

• The cap on the number of applications that would be accepted without arranged employment in the first year;
• The list of eligible occupations that would not require arranged employment (which in most cases would now mean a Labour Market Opinion); and
• The organizations that would be designated to conduct educational assessments.

Citizenship and Immigration Canada (“CIC”) has now provided these last remaining details.

Eligible occupations and numerical limits

Applicants who do not have arranged employment and who do not qualify under the PhD stream will require at least one year of continuous full-time work experience in one of the listed eligible occupations. Applicants who possess this work experience may apply without a job offer.

The eligible occupations stream will have an overall cap of 5,000 new applications and sub-caps of 300 applications in each of the 24 occupations on the list.  The list of eligible occupations, with each corresponding 2011 National Occupation Classification (“NOC”) code, is as follows:

• 0211 Engineering managers
• 1112 Financial and investment analysts
• 2113 Geoscientists and oceanographers
• 2131 Civil engineers
• 2132 Mechanical engineers
• 2134 Chemical engineers
• 2143 Mining engineers
• 2144 Geological engineers
• 2145 Petroleum engineers
• 2146 Aerospace engineers
• 2147 Computer engineers (except software engineers/designers)
• 2154 Land surveyors
• 2174 Computer programmers and interactive media developers
• 2243 Industrial instrument technicians and mechanics
• 2263 Inspectors in public and environmental health and occupational health and safety
• 3141 Audiologists and speech-language pathologists
• 3142 Physiotherapists
• 3143 Occupational Therapists
• 3211 Medical laboratory technologists
• 3212 Medical laboratory technicians and pathologists’ assistants
• 3214 Respiratory therapists, clinical perfusionists and cardiopulmonary technologists
• 3215 Medical radiation technologists
• 3216 Medical sonographers
• 3217 Cardiology technicians and electrophysiological diagnostic technologists, n.e.c. (not elsewhere classified)

Educational credential assessment (“ECA”)

The purpose of the ECA is to determine whether the applicant’s foreign educational credential is authentic and equivalent to a completed credential in Canada.  Applicants who have Canadian educational credentials do not need an ECA, unless they are also submitting a foreign educational credential in support of their application.

As of April 17, 2013, four organizations have been designated by the Immigration Minister to provide ECA reports for purposes of immigrating to Canada under the new FSWP.  Additional organizations may be designated by CIC in the future. The designated organizations are:

• Comparative Education Service: University of Toronto School of Continuing Studies;
• International Credential Assessment Service of Canada;
• World Education Services; and,
• Medical Council of Canada.

The Medical Council of Canada has been designated only for those principal applicants who intend to apply with specialist physician (NOC Code 3111) or general practitioner/family physician (NOC Code 3112) as their primary occupation in their FSWP application.

CIC will only accept ECA reports issued after the date the organization was designated by CIC to provide ECA reports for immigration purposes (April 17, 2013). An ECA report will be valid for immigration purposes for 5 years from the date that it was issued by the designated organization.

Henry Chang
Blaney McMurtry LLP

On May 10, 2013, Citizenship and Immigration Canada (“CIC”) announced proposed regulatory amendments that will narrow the definition of “dependent child” by reducing the age limit to children under the age of 19 and removing the exception for full-time students. Once implemented, this proposed change will adversely affect the dependent children of all prospective immigrants to Canada.

Current definition

According Section 2 of the current Immigration and Refugee Protection Regulations (SOR/2002-227), the term “dependent child” means a child who:

1. Has one of the following relationships with the parent: (i) is the biological child of the parent, if the child has not been adopted by a person other than the spouse or common-law partner of the parent; or (ii) is the adopted child of the parent; and
2. Is in one of the following situations of dependency: (i) is less than 22 years of age and not a spouse or common-law partner; (ii) has depended substantially on the financial support of the parent since before the age of 22 — or if the child became a spouse or common-law partner before the age of 22, since becoming a spouse or common-law partner — and, since before the age of 22 or since becoming a spouse or common-law partner, as the case may be, has been a student continuously enrolled in and attending a post-secondary institution that is accredited by the relevant government authority and actively pursuing a course of academic, professional or vocational training on a full-time basis; or (iii) is 22 years of age or older and has depended substantially on the financial support of the parent since before the age of 22 and is unable to be financially self-supporting due to a physical or mental condition.

In other words, the current definition of “dependent child” includes the following:

1. A child who is under 22 years of age and who is not a spouse or common law partner;
2. A child who is 22 years of age or older if that person has depended on the financial support of the parent(s) and has attended school continuously as a full-time student since before the age of 22 (or, if married or in a common-law relationship before that age, since becoming a spouse or common-law partner); and
3. A child who is 22 years of age or older if that person has depended on the financial support of his or her parent(s) since before the age of 22 and is unable to support themselves financially due to a physical or mental condition.

CIC’s rational for the proposed amendment

According to CIC, dependent children represent 30 percent of the overall immigrants admitted annually to Canada. It further states that, based on 2012 statistics, dependents under the age of 19 constituted 90 percent (64,757) of all sponsored children, while those 19 years of age and older constituted 10 percent (7,237) of all sponsored children.

CIC claims that older dependent children (those who arrive between the ages 19 and 21 years old) have lower economic outcomes than those who arrive in Canada at a younger age (between 15 and 18 years old). It also claims that older immigrants have a more challenging time fully integrating into the Canadian labour market and this is more evident for immigrants who are not selected based on their own merits (i.e. dependent children).

In addition, CIC claims that fraudulent school attendance documentation is prevalent in some countries and verification of attendance and enrolment can be labour-intensive.

Effect of the proposed amendment

Based on the above, CIC is proposing to limit the definition of “dependent children” to those under the age of 19. It is also proposing to eliminate the exception for full-time students. However, the exception for older dependents, who are unable to support themselves due to a physical or mental condition, will be continued.

In addition, the proposed amendments would alter the application fees for overage dependent children in permanent residence cases. Currently, overage dependent children (22 years old and over) are subject to the same processing fees as spouses and partners of principal applicants; the fee for these dependent children is $550.00CAD while the fee for younger dependants (under 22 years old) is only $150.00CAD.

Once the proposed amendment has been implemented, the only overage dependent children (19 years old and over) will be those who are financially dependent on their parents due to a physical or mental condition. As a result, proposed amendments will reduce the permanent residence application fee for these overage dependent children to $150.00CAD, the same amount that is charged for dependent children under the age of 19.

The definition of “dependent child” contained in Section 2 of the Immigration and Refugee Protection Regulations also applies to dependents of temporary residents such as foreign workers and students. Although the announcement discusses the proposed amendment only in the context of permanent residence cases, at the present time it is uncertain whether CIC intends to also apply in temporary resident cases.

Proposed implementation

CIC is proposing an effective date of January 1, 2014, for the above amendment. For applicants who submit a sponsorship application and/or permanent resident application on or after this date, the proposed new definition for dependent child would apply. For applicants who submitted a permanent resident application prior to January 1, 2014, the current definition of dependent child would continue to apply.

Transitional provisions are also proposed for applicants who would already be in the immigration application process on January 1, 2014, but who may not yet have submitted the permanent resident portion of their immigration application. The transitional provisions would allow these persons to have their permanent resident applications, including their dependent children, finalized under the criteria in force at the time that their immigration applications were initiated.

The age of dependants is locked-in at the time the permanent resident application is received by CIC. In certain cases, applicants will have initiated their immigration process years before being in a position to submit an application for permanent residence. Given the processing for these groups of applicants, the transitional provisions would apply in the following cases:

1. Live-in caregivers come to Canada first as temporary foreign workers, usually without their children. Most (98 percent) apply for permanent residence and expect to reunite with their children after having gained the required experience, years later.
2. Refugees abroad and refugee claimants have been forced to flee persecution and have little control on the destination and timing of their migration.  It may take years before they are granted protected person status and can file an application for permanent residence.
3. Persons coming to Canada under Section 25.2 of the Immigration and Refugee Protection Act (i.e. public policy consideration) often experience refugee-like situations and may also have to wait some time, once selected under these policies, before being able to submit their permanent resident applications.

In some programs, two applications must be submitted: (a) a sponsorship application, and (b) a permanent resident application. In the past, these applications under the parents and grandparents and resettlement categories could be submitted separately (i.e. the permanent resident application would follow a positive assessment of the sponsorship application).  In order to not penalize applicants who at the effective date of the amendment would not have submitted their permanent resident application, the transitional provisions would also extend to the following groups:

1. Parents and grandparents for whom a sponsorship application alone was submitted before November 5, 2011, the date on which CIC put in place a temporary pause on the acceptance of new sponsorship applications under this category as part of its Action Plan for Faster Family Reunification.
2. Refugees abroad for whom a sponsorship application alone was received before October 18, 2012.  Prior to that date, the refugee’s permanent resident application was received after CIC approved the sponsorship application.

In both cases, the permanent resident application which includes the application for the dependent child, would not have been submitted with the sponsorship application and may not have been received by CIC at the time of coming into force of the proposed new definition.

Conclusion

The proposed amendment to the definition of “dependent child” will be of significant concern for many potential immigrants, who may decide to not immigrate if their older dependent children cannot accompany them.  It is expected that there will considerable resistance to this proposed change during the next seven months.

Henry Chang
Blaney McMurtry LLP

Did you know that the Employment Standard Act (ESA) applies to work performed outside Ontario that is a continuation of work performed in Ontario?

And did you know that employees are entitled to be paid for travel time in some cases? In this regard, one adjudicator has stated:

[...] there is a qualitative difference between [...] the time it takes to travel from one’s home to one’s place of work, and the time one travels on the employer’s business. The latter is compensable as time worked, while the former is not.”

Accordingly, for employees who travel outside Ontario as part of their job, is your organization complying with the ESA?

For example, a non-managerial employee travelling to Manitoba, Saskachewan, Alberta or British Columbia is generally entitled to overtime pay after 8 hours in a day (as opposed to after 44 in a week which is the minimum standard in Ontario)? In this regard, section 5 (2) of the ESA states:

If one or more provisions in an employment contract or in another Act that directly relate to the same subject matter as an employment standard provide a greater benefit to an employee than the employment standard, the provision or provisions in the contract or Act apply and the employment standard does not apply.

In this example, is your organization paying the greater overtime benefit?

For employees travelling outside Ontario, an employer can by contract minimize the additional compensation that the employee is owed because of a more generous employment standard. Alternatively, in some provinces the employer can apply to exempt the employee from a minimum standard.

Lessons to be learned:

1. If an employee is travelling to another province, are the employment standards in that province greater than in Ontario?
2. If not, what can be done to minimize any additional costs that are associated with a higher minimum standard? In particular, do you need to enter into a contract with the employee to address out of province work?
3. Do you need to apply for (i) a permit or (ii) an exemption to avoid the higher employment standard in the other province?

Doug MacLeod
MacLeod Law Firm: Employment and Labour Lawyers

A situation that arises all the time is whether an employer can deduct the full amount of a loan, an overpayment, the cost of faulty work, cash shortages or stolen goods or the costs of their uniforms. The issue of employer deductions is governed by section 13 of the Ontario Employment Standards Act (ESA) and a clear understanding of the rules will avoid disputes and potential claims by the employee to the Ministry of Labour, Employment Standards Branch.

Section 13 of the ESA outlines the rules regarding the deductions of “wages” and it provides as follows:

1. Employers can make any and all statutory deductions to wages required by either Ontario or Federal law. This includes deductions for income tax, Canada Pension Plan and Employment Insurance.
2. Employers can garnish an employee’s wages if there is a valid Court Order imposing the garnishment. Employers must comply with the limits to the amount of garnishments outlined in the Ontario Wages Act.
3. All other deductions can only be made so long as the employee has signed a written statement allowing the deductions in what is known as a “written authorization” (i.e. the repayment of a loan). The written authorization must state that a deduction can be made from the employee’s wages and it must refer to a specific amount of money to be deducted or provide a formula from which a specific amount can be calculated (oral agreements and/or authorizations without a specific amount or formula and/or blanket authorizations in an employment agreement are not enforceable).
4. Employers are forbidden from making any deductions from an employee’s wages for faulty work which includes damaged property or situations where cash is missing and the individual did not have total control over the lost or stolen cash.

The one issue not expressly covered by section 13 but address by the Employment Standards Branch policies is the issues of overpayments. Given overpayments are not technically “wages” because an employee did not earn them, an employer can deduct the overpayment so long as the employee still earns at least his/her minimum entitlements. Because this can result in unfairness, it is often recommended that if overpayments are “significant”, the employer should advise the employee of the overpayment and then agree to deduct the overpayment in installments that are less burdensome to the employee (although express consent is not required).

Simon Heath LL.B, M.I.R.
HeathLaw

The media has reported that the online dating website eHarmony will be entering the recruiting business—matching employers with people looking for a job.

Beginning first in the United States likely in June 2013, and soon thereafter in Canada, eHarmony plans to use its matching technology used to pair singles looking for love matches in a different way—it plans to help find the perfect employment union. That is, eHarmony will be using its technology to create the perfect harmony between job candidates and employers. How successful will this venture be, and will it change how employers find new employees?

It seems to make sense because this technology has been used to examine specific details about a person and match them with those of another to find the best life partner. Typically, when people have more things in common, they tend to get along better.

Similarly, the interview process is pretty much like dating, where the employer tries to find out details about the person to see if hiring the person would create a good fit; likewise, the job applicant is trying to determine if the workplace culture is befitting and desirable.

Well, it apparently works in the dating scene—will it work for employers and job applicants? Can this technology be used to find a good long-term fix for the workplace?

Applying eHarmony’s technology to HR recruiting would involve asking the employer and the individual to complete several lengthy and detailed questionnaires emphasizing their culture and what they are seeking.

The computer subsequently does its thing using the matching technology and alerts the most suitable candidates and the employer of the results. At that point, the parties can review the profiles and interact online prior to meeting—kind of like courting.

This is quite different from what an employer usually does when recruiting employees; typically, an employer would post the job ad, scan resumes, select and invite some candidates for an interview, dominate the interview by asking several questions in person to observe body language and content of answers, make decisions about hiring, check references, and then make the offer of employment with certain terms set out.

On one hand, I can see how eHarmony’s approach could be more technologically savvy and appropriate for 2013, and very helpful for making suitable matches in terms of culture.

But on the other hand, I can see some issues potentially arising.

First, by focusing solely on culture and interests to find suitable matches, we are forgetting one thing – recruiting employees is not just about finding things in common with a person. In fact, I’ve done some research on recruitment, and it turns out that the more an employer goes with its gut and hires the person they like and think is similar to them instead of the person who is most qualified for the job, the more likely it is that the employment arrangement does not work out in the end. Instead of applying the typical standardized testing and questioning to determine if the person has the proper skills and qualifications for the job, an employer can be led down the wrong path by hiring someone it believes is similar to it. Sadly, it is been found that employers ask about four or five questions of the candidate, and then make a hiring decision.

Second, by asking all of these detailed questions in a questionnaire, things get a bit tricky in terms of human rights considerations. That is, when employers are engaging in recruitment activities, there are certain questions that they cannot ask of the job applicant. This is because those questions touch on prohibited grounds of discrimination. It is concerning that so many detailed questions would be asked, some of which could be limiting the candidate pool with the click of a button, by trimming a certain age group or religion (for example) from the search. Along the same lines, when a job applicant posts, or even chooses not to post, a picture of a job applicant, things can get tricky, as it can reveal certain things about a person (for example, weight, age, place of origin, disability, or there must be a reason why the person refuses to post a picture) that can actually be a factor in hiring decisions, and this is clearly contrary to human rights legislation throughout Canada.

Third, it is important to remember that, just as a single person’s profile may not be completely truthful to make a more appealing first impression, so too are a large number of resumes out there. It has been revealed in studies that about a third of resumes have at least one piece of fiction in them. Employers and job applicants are going to have to understand that honesty is critical for this technical matching process to work, and this may not always occur in reality – especially during the honeymoon phase of an employment relationship.

Fourth, it will be interesting to see how this will apply in employment, compared to a very particular group of individuals (singles) who pay for the service to find a life mate. Clearly, this is a smaller more specific group in the database compared to what will happen with large numbers of employment candidates and employers.

Fifth, we have to remember that recent statistics reveal four in 10 marriages end in divorce. We should be asking whether we want to strive to match employers and job candidates in the same way that people tend to match themselves when looking for life partners. But maybe that is a little bit too pessimistic…

What do you think? Do you think this technology will work to find the perfect fit in employment?

Christina Catenacci
First Reference Human Resources and Compliance Editor

Today, May 9, 2013, is the second year for Global Accessibility Awareness Day!

This day is meant to,

get people talking, thinking and learning about digital (web, software, mobile, etc.) accessibility and users with different disabilities.”

The Internet and the World Wide Web have become essential resources in an individual’s daily life in the areas of education, employment, government, commerce, health care, entertainment and recreation, and social interaction.

The Web is used not only for receiving information but also for providing information and interacting with every member of society. Therefore, it is essential that the Web be accessible in order to provide equal access and equal opportunity to people with disabilities.

According to the World Wide Web Consortium (W3C), which is the main international standards organization for the World Wide Web:

Most websites and web software have accessibility barriers that make it difficult or impossible for many people with disabilities to use the Web. As more accessible websites and software become available, people with disabilities are able to use and contribute to the Web more effectively.

Web accessibility means that people with disabilities can use the Web. More specifically, Web accessibility means that people with disabilities can perceive, understand, navigate, and interact with the Web, and that they can contribute to the Web. Web accessibility also benefits others, including older people with changing abilities due to aging.

The UN Convention on the Rights of Persons with Disabilities (2006) recognizes Web accessibility as a basic human right, in particular,

To promote access for persons with disabilities to new information and communications technologies and systems, including the Internet. (Article 9, section 2(g)

How important is Web accessibility to persons with disabilities?

WebAIM provides many useful examples:

The Internet is one of the best things that ever happened to people with disabilities. You may not have thought about it that way, but all you have to do is think back to the days before the Internet to see why this is so. For example, before the Internet, how did blind people read newspapers? They mostly didn’t. Audiotapes or Braille printouts were expensive—a Braille version of the Sunday New York Times would be too bulky to be practical. At best, they could ask a family member or friend to read the newspaper to them. This method works, but it makes blind people dependent upon others.

Most newspapers now publish their content online in a format that has the potential to be read by “screen readers” used by the blind. These software programs read electronic text out loud so that blind people can use computers and access any text content through the computer. Suddenly, blind people don’t have to rely on other people to read the newspaper to them. They don’t have to wait for expensive audio tapes or expensive, bulky Braille printouts. They simply open a web browser and listen as their screen reader reads the newspaper to them, and they do it when they want to and as soon as the content is published.

WebAIM provides many other examples of how the Internet or the WWW have assisted persons with other types of disabilities such as people with motor disabilities and people who are deaf. But they go on to explain what happens if the use of the Internet and WWW is inaccessible:

Despite the Web’s great potential for people with disabilities, this potential is still largely unrealized. For example, some sites can only be navigated using a mouse, and only a very small percentage of video or multimedia content has been captioned for the Deaf. What if the Internet content is only accessible by using a mouse? What do people do if they can’t use a mouse? And what if web developers use graphics instead of text? If screen readers can only read text, how would they read the graphics to people who are blind?

Persons with disabilities and seniors are an increasingly important customer base for most organizations. When these organizations have accessible websites, they reduce their legal risk, demonstrate corporate social responsibility (CSR) and increase customer loyalty. Businesses would be unwise to purposely exclude persons with disabilities.

Suzanne Cohen Share wrote a post back in June 2012 on Why website accessibility matters? It has a lot of good information that fits the primary goal of Global Accessibility Awareness Day!

Yosie Saint-Cyr
First Reference Human Resources and Compliance Managing Editor

Intention not enough to determine employment relationship

An employer cannot rely on intention alone to define workers as independent contractors. That’s the lesson from a recent Federal Court of Appeal case in which an employer had attempted repeatedly to hire independent contractors, but could not satisfy the Canada Revenue Agency criteria. “Despite the stated intent of the parties to characterize their relationship as that of independent contractors, the facts of this case suggest otherwise,” the Court said. The employer had significant control over the workers’ work, and limited their financial risk and opportunity for profit to the extent that the relationship was closer to employer-employee than independent contractor.

Taxability of employer-paid membership fees

This CRA External Interpretation document deals with whether a membership fee paid to an organization to assist the employer with labour relations is a taxable benefit to an employee. (In PDF)

The high price of age discrimination

One of the most important issues facing employers today is the management of employees of the baby boomer generation who are nearing the end of their careers. Organizations need to consider their succession plans, while respecting the rights of senior employees who do not want to retire at the age of 65. (In PDF)