Editor’s Message

The spring edition of the Labour & Employment News features an article both on the duty to accommodate religious beliefs, and increasing damage awards under human rights legislation. In addition, new mandatory training under the Ontario Occupational Health and Safety Act is outlined. A recent Guideline for defined contribution pension plans is featured, as well as changes to Canada’s Temporary Foreign Workers Program. Finally, and further to recent media reports, the rules for unpaid internships are outlined.

We value your feedback. If you have suggestions, or an issue you would like addressed in a future edition, please feel free to contact us directly.

Editors: Jennifer Fantini and Naomi Calla

Announcements

BLG is pleased to announce that earlier this year a group of leading labour and employment lawyers joined its Montreal and Ottawa offices:

  • Danny J. Kaufer
  • Robert Bonhomme
  • Corrado De Stefano
  • Chantal Lamarche
  • Maryse Tremblay
  • Stuart S. Aronovitch
  • Dan Palayew (Ottawa, Regional Leader)
  • Alexandre W. Buswell
  • Frédéric Massé
  • Myriane Le François
  • Michael D. Grodinsky
  • Shawn Connelly
  • Frédéric Desmarais

The addition of this group will expand the scope of the labour and employment practice for BLG. Now more than ever, BLG is the one-stop shop for all of your labour and employment needs.

The addition of this group will expand the scope of the labour and employment practice for BLG. Now more than ever, BLG is the one-stop shop for all of your labour and employment needs.

Hot Off The Press

Ontario Introduces New Minimum Wage

In late January 2014, the Ontario government announced it would increase the general minimum wage from $10.25 to $11.00 per hour effective June 1, 2014. (Special minimum wage rates for students, liquor servers, hunting and fishing guides and homeworkers will also increase effective June 1, 2014.) Ontario Regulation 285/01 (“Exemptions, Special Rules and Establishment of Minimum Wage”) pursuant to the Ontario Employment Standards Act, 2000 has been amended to effect these changes.

Additional minimum wage changes may also be on the horizon. On February 25, 2014, the government introduced Bill 165 (also known as the Fair Minimum Wage Act, 2014). If passed, Bill 165 would tie all future minimum wage increases to the rate of provincial inflation (per the Consumer Price Index). Increases to the minimum wage would be announced on April 1 of each year, and would take effect on October 1 of the same year, giving employers six (6) months to prepare and comply. Bill 165 also provides that the Ministry of Labour must review the minimum wage and the process for adjusting it by October 1, 2020 and every five (5) years thereafter.

The minimum wage in Ontario has increased nearly 50 per cent since 2003. The last minimum wage increase took place on March 31, 2010. When it moves to $11.00 per hour on June 1, 2014, Ontario’s minimum wage will be tied with that in Nunavut for the highest in Canada.

Not-For-Profit And Charity Law In Canada Blog

Have you seen BLG’s Not-for-Profit and Charity Law  in Canada blog at blog.blg.com/nfp? It provides information on legal issues affecting those even outside of the not-for-profit and charity sectors. Some of the more recent postings include:

  • Q&A: Clarifying Arbitration vs. Mediation vs. Litigation
  • New Fact Sheet Released on Privacy and Outsourcing
  • Guidance on Consent under Canada’s Anti-Spam Law
  • Q&A: CRA’s Requirements on Keeping Records
  • Offer to Lease: Beware of Upcoming Milestones
  • Countdown to Canada’s Anti-Spam Law: Will You Be Ready to Comply by July 1, 2014?
  • Be Aware of Privacy Precautions When Using Foreign Service Providers
  • 8 Ways to Protect Your Trademark Registrations

Keep checking the blog for postings on legal issues that may affect you.

L&E@BLG Speaks

Speaking Engagements for Spring 2014

Topic Date

BLG Breakfast Club (Toronto), Workplace Investigations

April 30, 2014

 

BLG Breakfast Club (Calgary), Protecting Your Business from your (former) Employees

May 1, 2014

BLG Breakfast Club (Toronto), What’s new for federally regulated employers?: Legal developments you should know about.

May 8, 2014

Costly Consequences of Discrimination: BC Human Rights Tribunal Increases Unofficial Cap On Injury To Dignity Damages

Damages awarded for injury to dignity, feelings and self-respect under the British Columbia Human Rights Code (the “Code”) appear to be on the rise again following the B.C. Human Rights Tribunal’s recent remedy decision in Kelly v. University of British Columbia.1

Such damages are intended to be compensatory and not punitive. Prior to the Kelly decision, the unofficial, but generally adhered to maximum amount awarded as damages for injury to dignity by the Tribunal was $35,000. However, the Kelly decision dramatically increased this amount, and in doing so provided a strong reminder that there is no legislative cap to the amount that may be awarded for this type of damages under the Code.

The complainant had been enrolled in the Family Practice Residency Program (the “Program”) at the University of British Columbia (“UBC”) in its rural program. He suffered from Attention Deficit Hyperactivity Disorder and a non-verbal learning disability and was struggling to succeed in the rural Program, failing his first rotation. UBC attempted to accommodate the complainant by moving him out of the rural Program to Vancouver and providing increased supervision and mentorship. The complainant did complete some rotations however he continued to struggle and following an inappropriate email sent by the complainant to his fellow residency students, concern arose over his suitability to continue in the Program. The complainant was placed on a leave of absence and was required to undergo medical assessments, which resulted in recommendations  for accommodation. However, UBC determined that it was unable to accommodate the complainant without breaching the required College of Family Physicians of Canada residency guidelines and suffering undue hardship, and accordingly terminated him from the Program. This subsequently led to his dismissal from his employment with the Providence Health Care Society (which was conditional on his participation in the Program).

In an earlier decision, the Tribunal determined that UBC had discriminated against the complainant on the basis of disability in contravention of both section 8 (discrimination in accommodation, service and facility) and section 13 (discrimination in employment) of the Code by terminating him from the Program. The Tribunal held that UBC failed to prove it could not have reasonably accommodated the complainant, finding that, among other things, UBC’s conclusion that it would suffer undue hardship was not grounded in clear and factual evidence.

In the Tribunal’s remedy decision in Kelly, the complainant sought damages for lost wages and injury to dignity. The Tribunal determined the complainant’s entry into the medical profession had been delayed for six years as a result of UBC’s actions and awarded over $385,000 in lost wages for that period of delay. However, the most significant aspect of this remedy decision was the Tribunal’s decision to award the complainant damages for injury to dignity of $75,000, an amount more than double the previous high watermark for such damages.

In determining that such an unprecedented and significant award was warranted in this case, the Tribunal pointed to the following factors, among others:

  • the complainant had been delayed for six years in entering the career of his choice and for which he expended a lot of time and money;
  • being a physician was a life-long passion for the complainant and accordingly the discrimination was especially detrimental to him;
  • he suffered humiliation, depression and other health issues and the discrimination had a severe impact on his self-esteem and self-identity for an ongoing and prolonged period;
  • the complainant had difficulty securing alternative employment based on concerns over why he was not in the medical profession or that he was overqualified;
  • he had to move back home with his parents and his personal relationships suffered; and
  • he was in a particularly vulnerable position as a student and an individual with a disability.

Although the Tribunal expressly stated in Kelly that this was a particularly unique and serious case for the above-mentioned reasons, this decision may signify a trend of increasing damage awards for injury to dignity in human rights cases. Awards for injury to dignity have historically rarely been above $20,000. In any event, this case serves as an important reminder to employers of the vast remedial powers of the Tribunal and the unpredictability of damage awards in human rights cases. Employers should make sure they have considered all reasonable accommodations, including through consultation with the employee, and have clear and factual evidence of any undue hardship. The consequences for failing to do so may be costly.

Author: Lisa Carlson


12013 BCHRT 302

Accommodating Religious Beliefs In The Workplace

Recent events at York University have brought the complex and evolving discussion about the duty to accommodate religious beliefs into the national spotlight. The situation at York University involved a male student who claimed his religious beliefs prevented him from engaging in face-to-face group work with female students. The media attention that resulted in the disagreement between the student’s professor and York University over how to accommodate the student’s request shows just how difficult it can be for public institutions and employers to address this issue.

Human rights legislation exists in each jurisdiction that protects individuals from discrimination in employment. Specifically, employers are prohibited from discriminating against potential or current employees  on certain grounds, including race, national or ethnic origin, religion, age, sex, sexual orientation, marital status, family status, and disability.

Implied in the prohibition against discrimination is a positive duty on the part of the employer to accommodate their employees’ needs for reasons associated with recognized discriminatory grounds, which is known more simply as the duty to accommodate. This requires accommodation of an employee based on the protected discriminatory ground to the point of undue hardship. This standard is highly fact-specific in each employment relationship. As evidenced by the York University incident, accommodation of religious beliefs can be a controversial topic, particularly as organizations respond to an increasingly diverse workforce or student population.

Generally, employers will be able to accommodate religious requests by providing days off work or short leaves of absence to allow the employee to participate in religious observances or holidays. However, other requests which may detrimentally impact the operations of the employer’s business, or bring competing rights into play may be more difficult to implement. Failure to properly accommodate an employee’s religious beliefs could not only lead to potential human rights complaints, but also negative media coverage, as was the case with York University.

Employers should consider the following guiding principles when determining how to accommodate their employees’ religious beliefs, particularly in light of the obligation to accommodate to the point of undue hardship:

  • Health and Safety: Does complying with the request endanger the health and safety of the requesting employee or others in the workplace? Are there any measures the employer can institute to mitigate those health and safety risks and accommodate the employee’s request without causing undue hardship to the employer?
  • Cost: Is the cost of accommodating the employee’s request substantial? If not, it often will not rise to the level of undue hardship.
  • Conflicting Rights: The duty to accommodate an employee’s religious beliefs must not result in discrimination against another employee. Such conflicts will usually rise to the point of undue hardship for the employer and will justify modifying or refusing the employee’s request.

A final consideration for employers is that the law does not require accommodation to the complete satisfaction of the requesting employee. Rather, the employer is obligated to find reasonable accommodations for both the employee and the employer in the context of the specific employment relationship.

Satisfying the duty to accommodate is highly fact specific exercise in which both the employee and employer must participate. Employers are well advised to contact legal counsel at the outset of an employee request to accommodate religious beliefs or any other request for accommodation, in order to mitigate any potential for conflict, unwanted media attention or costly litigation.

Author: Landon M. Miller

Ontario Introduces New Mandatory Occupational Health And Safety Awareness Training

The Occupational Health and Safety Awareness and Training Regulation, O. Reg. 297/13 (the “Regulation”), is a new regulation, which was filed under the Occupational Health and Safety Act (the “OHSA”) on November 14, 2013. The Regulation requires Ontario employers to provide their workers and supervisors with basic occupational health and safety awareness training, starting July 1, 2014. These new training requirements are additional to the pre-existing OHSA obligations of Ontario employers to inform their workers of workplace-specific hazards, and to inform, instruct and supervise workers to protect their health or safety.

Training For Employees

All employees must receive basic occupational health and safety training, unless an employee has previously completed a basic occupational health and safety awareness training program, and provides his or her employer with proof of completion.

Employee training must include the following:

  • The duties and rights of workers under the OHSA;
  • The duties of employers and supervisors under the OHSA;
  • The roles of health and safety representatives and joint health and safety committees under the OHSA;
  • The roles of the Ministry, the Workplace Safety and Insurance Board and entities designated under section 22.5 of the OHSA (safe workplace associations, medical clinics, or training centres specializing in occupational health and safety) with respect to occupational health and safety;
  • Common workplace hazards;
  • The requirements set out in Regulation 860 (Workplace Hazardous Materials Information System) with respect to information and instruction on controlled products; and
  • Occupational illness, including latency.

Training For Supervisors

All supervisors must complete training within one week of becoming a supervisor, unless a supervisor previously completed basic occupational health and safety training, and provides his or her employer with proof of completion. A supervisor is also exempt from the awareness training requirements if he or she was performing work as a supervisor before they came  into force (July 1, 2014), and has previously completed training that meets the requirements of the Regulation.

Employers must train supervisors on the following:

  • The duties and rights of workers under the OHSA;
  • The duties of employers and supervisors under the OHSA;
  • The roles of health and safety representatives and joint health and safety committees under the OHSA;
  • The roles of the Ministry, the Workplace Safety and Insurance Board and entities designated under section 22.5 of the OHSA (safe workplace associations, medical clinics, or training centres specializing in occupational health and safety) with respect to occupational health and safety;
  • How to recognize, assess and control workplace hazards, and how to evaluate those controls; and
  • Sources of information on occupational health and safety.

Record Keeping Obligations

Employers must maintain records of any basic occupational health and safety awareness training completed, as well as any exemptions that apply to supervisors or workers. Employers must also
provide supervisors and workers with proof of training completion, or any applicable exemption, upon request.

Ontario employers should begin thinking about how they will develop basic occupational health and safety awareness training programs in order to bring their organizations into compliance with the Regulation by July 1, 2014.

Author: Stephanie J. Young

Changes to The Temporary Foreign Workers Program

The federal government has made significant changes to Canada’s Temporary Foreign Worker Program (TFWP) during the past year, and additional changes are on the horizon. Critics of the TFWP allege that employers have used this program to reject or even displace qualified Canadian workers in favour of lower-paid foreign nationals. In an effort to respond to such criticism, the government has imposed strict new requirements on employers using TFWP, with potentially heavy penalties for non-compliance.

In December 2013, the federal government imposed new requirements for TFWP employers. Employers who hire foreign workers must now retain all documents relevant to their TFWP compliance for a period of six years after a work permit is issued to a foreign worker. During this period, employers must also be able to demonstrate that the information provided in these documents was accurate. Furthermore, employers must make reasonable efforts to hire or train Canadian citizens or permanent residents before turning to the TFWP.

The new regulations authorize the Ministry of Employment and Social Development Canada (EDSC) to conduct warrantless inspections of TFWP employers. The EDSC may conduct such an inspection if there is “reason to suspect” that an employer is not in compliance with the requirements of the TFWP. The EDSC may conduct  an inspection up to six years after a work permit was issued to a foreign worker, and may interview the  foreign worker(s) as well as other employees during an inspection. If an inspector concludes that the employer is not in compliance with the TFWP, the employer may be publicly “blacklisted” and deemed ineligible to hire foreign workers.

Further revisions of the TFWP requirements and penalties for non-compliance are forthcoming.

On March 28, 2014, Bill C-31, an omnibus budget implementation bill entitled Economic Action Plan 2014 Act, No. 1, was tabled in the House of Commons. Should this Bill become law, it will authorize the Ministers of Employment and Social Development and for Multiculturalism to impose administrative monetary penalties for “abuses” of the TFWP. The “abuses” targeted by these penalties are not yet specified, nor are the amounts of the respective penalties. However, the federal government has stated that contraventions likely to attract a fine in the future include (but are not limited to):

  • Hiring a foreign worker rather than a qualified and available Canadian citizen or permanent resident;
  • Paying a foreign worker less than the prevailing wages for the occupation and region;
  • Making false or misleading statements on a Labour Market Opinion (LMO) application.

The speed and complexity of the federal government’s revisions to the TFWP raises concern that employers may face heavy penalties for inadvertent non- compliance. It is likely that substantial new fines for contraventions that are as yet unspecified will be enacted within the year. Indeed, on April 24, 2014,

the government placed an immediate moratorium on the Food Services Sector’s access to the TFWP after it was made aware of serious allegations of abuse. It is clear that employers who are found to have violated the rules may face potential criminal prosecution including fines and jail time. Employers are well advised to monitor the forthcoming changes closely and minimize their exposure.

Authors: Brian D. Dingle & Meagan Jemmett

Employers Providing Defined Contribution Plans Given Additional Guidance

On March 28, 2014, the Canadian Association of Pension Supervisory Authorities released Guideline No. 8: Defined Contribution Pension Plans Guideline. The Guideline supplements existing CAPSA guidance related to DC plans and provides additional guidance to employers that provide a defined contribution pension plan or a pension plan with a defined contribution component. Although the Guideline is not a legal requirement, it reflects the expectations of regulators regarding the operation of DC plans. For plan administrators, in particular, the Guideline can assist in meeting their fiduciary duties.

The New Guideline

Employers will likely be aware of existing CAPSA guidance related to DC plans, such as Guideline No. 3: Guidelines for Capital Accumulation Plans (CAP Guidelines) and Guideline No. 4: Pension Plan Governance Guidelines and Self-Assessment Questionnaire. Another applicable CAPSA guideline that employers also will likely be aware of, and which we wrote about in November 2011, is Guideline No. 6: Pension Plan Prudent Investment Practices Guideline.

The new Guideline summarizes the existing guidance, and outlines and clarifies the rights and responsibilities of applicable DC plan stakeholders, such as employers, plan sponsors (often the employer), and plan administrators. More notably, the Guideline is also intended to:

  • Provide DC plan administrators with guidance regarding tools and information to provide to members while they are choosing among retirement options.
  • Clarify what constitutes an “adverse amendment” with respect to DC plans.

Information for Members

The Guideline provides plan administrators additional guidance (which goes beyond the guidance provided in the CAP Guidelines) on providing information to members during the accumulation phase and (ii) members who are approaching the payout phase.

During the accumulation phase, the Guideline encourages plan administrators to consider providing information regarding investment choices, information regarding contributions, and information regarding projected account balance at retirement. Of note, the Guideline provides that plan administrators should consider providing members with information and tools to help them understand and estimate their plan benefits on retirement.

During the period where members are approaching the payout phase, the Guideline outlines a number of considerations, including that it is expected that plan administrators will provide information regarding all of the regulated retirement products available to members. The Guideline refers to a separate document that was released by CAPSA on the same day as the Guideline: CAPSA Reference Document: Registered Retirement Products for DC Plan Members.

The Reference Document provides further details on the information and general features regarding retirement products that plan administrators may provide to members.

The Guideline also comments on ongoing communication during the payout phase, clarifying that plan administrators are responsible for ongoing communication during that phase only where the payout product is a variable benefit.

Adverse Amendments

The Guideline provides that adverse amendments are amendments which adversely affect the prospective benefits, rights or obligations of members or other persons (e.g. beneficiaries) entitled to payments from the fund. Some examples of changes which may be considered to be adverse amendments are reduction of employer contributions, increase in employee contributions, changes in expense allocation and changes to possible member retirement age.

The Guidelines highlights that some jurisdictions may require plan administrators to provide appropriate notice of adverse amendments.

The release of this Guideline provides a sound rationale for employers who provide DC plans to assess their pension plan policies and procedures. In particular, employers who are also DC plan administrators should consider whether any practices should be adjusted to align with the additional guidance set out in the Guideline. For example, some of the Guideline’s information-related guidance is new or has not been set out explicitly in previous CAPSA guidelines so plan administrators may wish to consider such guidance.

Authors: Andrew Harrison & James Fu

 

Unpaid Internships Under Scrutiny

The Ontario Ministry of Labour has recently been cracking down on unpaid internships at magazines, prompting the publishers at Toronto Life and The Walrus to shut down their programs. As summer approaches and post-secondary students begin their hunt for relevant work experience, is worth reviewing the rules around whether and when people receiving training must be paid for their labours.

The Ontario Employment Standards Act, 2000 (the “ESA”) makes no reference, anywhere, to “interns”. Instead, the ESA refers to “a person receiving  training”. Some trainees are considered to be employees (and therefore covered by, and entitled to the protections in, the ESA), and some are not. In order to be considered an employee, a trainee must be trained in a skill that is used by the employer’s other employees. However, a trainee who is trained in a skill that is used by the employer’s other employees will not be covered by, or entitled to the protections in, the ESA, if all of the following six conditions are met:

  1. The training is similar to that provided in a vocational school.
  2. The training is for the benefit of the trainee (i.e., not the employer).
  3. The employer derives little, if any, benefit from the trainee’s activities.
  4. The trainee does not displace other employees in the workplace.
  5. The trainee is not accorded a right to become an employee of the employer.
  6. The trainee is advised that he or she will not be paid for the time spent in training.

It doesn’t matter whether the trainee agreed to work as an unpaid intern, has signed an agreement indicating that he or she would work as an unpaid intern, or did not attempt to negotiate for monetary compensation. If the trainee is being trained in a skill used by the employer’s other employees, and one or more of the six conditions in the above list is not met, then the trainee must be paid at least minimum wage, and will enjoy all of the other protections in the ESA, including those pertaining to hours of work, overtime pay, paid vacations, public holidays, leaves of absence, termination and severance pay, etc.

It should also be noted that the ESA also contains exemptions for certain, specific types of
trainees, including:

  1. a secondary school student who performs work under a work experience program authorized by the school board; and
  2. an individual who performs work under a program approved by a college of applied arts and technology or a university.

Furthermore, students in training to become certain professionals (including in architecture, law, professional engineering, public accounting, surveying, veterinary science, chiropody, chiropractic, dentistry, massage therapy, medicine, optometry, pharmacy, physiotherapy, psychology, and naturopathy, or teaching as defined in the Teaching Profession Act) are exempt from the minimum wage, hours of work, overtime pay, paid vacations and public holiday provisions of the ESA. Most of these professions have some type of work experience or apprenticeship requirement that must be completed before a person can qualify to practise the profession, and such work experience is often mandated by the profession’s governing statute. This exemption will not apply merely because a student who is studying this subject area at a university or college is seeking employment.

If you would like assistance determining whether unpaid interns at your organization should be paid and/or receive other protections outlined in the ESA, please contact a member of the BLG labour and employment law group.

Author: Melanie A. Warner

Authors

Andrew Harrison 
AHarrison@blg.com
416.367.6046

James Fu 
JFu@blg.com
416.367.6513

Brian Dingle 
BDingle@blg.com
416.367.6189

Stephanie Young  
SYoung@blg.com
416.367.6032

Lisa Carlson 
LCarlson@blg.com
604.632.3521

Jennifer M. Fantini 
JFantini@blg.com
604.640.4247

Naomi Calla 
NCalla@blg.com
416.367.6129

Expertise

Labour and Employment
Labour and Employment Law