Focus On

Labour & Employment


Monday, June 26, 2017 @ 09:17 AM

Asian legal clinic toll-free hotline has access to justice dialled in Avvy Go

A toll-free hotline launched on June 18 at the Metro Toronto Chinese and Southeast Asian Legal Clinic will provide legal advice for people across Ontario whose access to justice is limited by language barriers. ... [read more]

Thursday, June 22, 2017 @ 08:34 AM

APPEALS AND JUDICIAL REVIEW - Stay of arbitration award pending review

Application by the Union to lift the stay of execution of an order pursuant to Rule 15 of the Court of Appeal Rules, or in the alternative, for an order declaring that the judgment was not stayed except to the extent of the appeal taken by the Union. The Union represented Type 1 Wildland firefighters working for the province. Since 1999, the firefighters had been required to pass a fitness test. The Union and the province had agreed by a Letter of Understanding (LOU) that employees hired prior to April 1, 1999 would be “grandfathered” and not have to successfully complete the fitness test, known as the “arduous test”. In 2012, the province replaced the arduous test with a new fitness test, the “WFX-Fit Test”. The new test was implemented unilaterally and firefighters hired prior to April 1, 1999 were not exempted. The Union filed two policy grievances and argued that the new test was discriminatory against certain employees and that its implementation violated the terms of the LOU. The arbitrator found that the test was discriminatory against older male and female employees and that its implementation breached the LOU by failing to exempt grandfathered firefighters. On judicial review, the Chambers judge quashed the arbitrator’s decision in part, finding that the WFX-Fit Test was not discriminatory with respect to gender and age. The Union appealed the order setting aside the arbitrator’s finding that the new test was discriminatory. It applied to lift the stay imposed on the implementation of the portion of the arbitrator’s decision that was not quashed, specifically, the finding that the implementation of the new test breached the LOU. The Union pointed out that of 47 formerly exempt employees, only 20 of those employees passed the new test and that several lost work or feared losing work in the future if they had to complete the WFX-Fit Test. ... [read more]

Wednesday, June 21, 2017 @ 08:59 AM

Workplace reorganizations: Quebec employers beware

Workplace reorganizations often come with their fair share of challenges and require employees and managers alike to be patient and understanding. Changes in working methods, tasks or lines of authority may ruffle the feathers of certain employees, which is why management should not spare any efforts to efficiently communicate the reasons behind the proposed changes and the objectives it strives to achieve. ... [read more]

Tuesday, June 20, 2017 @ 08:50 AM

CONTRACT OF EMPLOYMENT - Express terms - Remuneration - Commissions

Appeal by the corporate defendant, GWR Resources (GWR), from a $55,000 award in quantum meruit compensating the respondent, Birch, for the role he played in acquiring an investment in the appellant’s mining project. In 2009 or 2010, GWR’s president approached the respondent with respect to finding investors for the mining property. The president said words like: “find us some money and we’ll look after you”. Birch took this statement to mean that he would receive a finder's fee if he introduced investors who made substantial investments in GWR's project. In August 2010, GWR hired Birch as an investment relations consultant on a part-time basis in a month-to-month salaried position. In late 2010 or early 2011, Birch arranged meetings between an investor and GWR’s vice president of exploration. In June 2011, the investor invested $1.8 million in the project. In September 2011, a newly-appointed director of GWR advised Birch that he would not be receiving a finder’s fee in relation to the investment and terminated Birch’s services as an investment relations consultant. Birch sued for breach of the contract to pay a finder's fee or, in the alternative, for damages in quantum meruit. The chambers judge found that the respondent’s efforts had contributed to the investment and that he was not compensated in his role as an investment relations consultant for his work in securing the investment. Accordingly, recovery on the basis of quantum meruit was not precluded on the basis of any contract governing the benefit that was provided by Birch. The appellant argued that the chambers judge erred in making the award because the respondent was paid pursuant to his employment contract for finding the investment and a separate finder’s fee was prohibited by the Securities Act and the policy of the TSX Venture Exchange. ... [read more]

Monday, June 19, 2017 @ 09:34 AM

Stewart McKelvey adds associate

Stewart McKelvey welcomes the newest associate to its Charlottetown office, Hilary Foster.  ... [read more]

Thursday, June 15, 2017 @ 05:15 PM

SCC okays zero tolerance drug policy for safety-sensitive workplaces Peter Gall

In a boost for employers with “zero tolerance” drug and alcohol policies in their safety-sensitive workplaces, the Supreme Court has upheld the automatic termination of a cocaine-addicted heavy machinery operator who was fired after he got into an accident at a coal mine. ... [read more]

Thursday, June 15, 2017 @ 01:28 PM

Stewart McKelvey adds three new associates

East coast law firm Stewart McKelvey has added three new associates. ... [read more]

Thursday, June 15, 2017 @ 01:14 PM

DISCRIMINATION - Prohibited grounds - Mental or physical disability - Context - Workplace discrimination - Drug and alcohol policies - Termination

Appeal by the employee Stewart, through his union representative, from an Alberta Court of Appeal decision which upheld the Alberta Human Rights Tribunal’s finding that Stewart was not terminated because of his drug addiction, but for breaching his employer’s policy related to alcohol, drug and medication use. Stewart worked in a mine operated by the Elk Valley Coal Corporation, driving a loader. The employer implemented an Alcohol, Illegal Drugs & Medication Policy (Policy) with the goal of ensuring safety in the mine. Employees were expected to disclose any dependence or addiction issues before any drug-related incident occurred. If they did, they would be offered treatment. However, if they failed to disclose and were involved in an incident and tested positive for drugs, they would be terminated. The Policy was dubbed the “no free accident” rule. Stewart attended a training session at which the Policy was reviewed and explained. He also signed a form acknowledging receipt and understanding of the Policy. Stewart used cocaine on his days off, but did not tell his employer that he was using drugs, and one day his loader was involved in an accident. No one was hurt, but Stewart tested positive for drugs. In a meeting with his employer following the positive drug test, Stewart indicated that he thought he was addicted to cocaine. Nine days later, his employment was terminated in accordance with the “no free accident” rule. Stewart submitted that he was terminated for addiction and that this constituted discrimination under the Human Rights, Citizenship and Multiculturalism Act (Act). The Alberta Human Rights Tribunal (Tribunal) held that Stewart was not terminated because of his addiction, but for breaching the Policy, which required him to disclose his addiction or dependency before an accident occurred to avoid termination. The Tribunal’s decision was affirmed by the Alberta Court of Queen’s Bench and by the Alberta Court of Appeal. The main issue in the appeal was whether the employer terminated Stewart because of his addiction (raising a prima facie case of discrimination), or whether the employer terminated him for breach of the Policy prohibiting drug use unrelated to his addiction because he had the capacity to comply with those terms (not raising a prima facie case of discrimination). ... [read more]

Thursday, June 15, 2017 @ 08:43 AM

Wellness: Does the Law Society Tribunal have a duty to accommodate? | Darryl Singer

Those who practise in the areas of human rights law and employment law are familiar with the concept of “duty to accommodate.” At the intersection of employment legislation and the Ontario Human Rights Code, employers have long been held to have a duty to accommodate an employee with disability. Addiction and mental health issues are deemed disabilities. ... [read more]

Tuesday, June 13, 2017 @ 08:34 AM

ENFORCEMENT AND PROCEDURE - Commissions - Powers - Complaints - Appeals and judicial review

Applications by 17 complainants for judicial review of a decision by the Canadian Human Rights Commission dismissing the applicants' complaints against the respondents, Air Canada and the Air Canada Pilots Association. The applicants were pilots whose employment was terminated by Air Canada in 2010 and 2011 pursuant to a collective agreement requiring retirement at age 60. The Association was the designated bargaining agent for Air Canada pilots. The applicants filed human rights complaints against Air Canada and the Association. The Commission dismissed the complaints on the basis it was plain and obvious they could not succeed. The Commission relied upon the exception within s. 15(1)(c) of the Canadian Human Rights Act, whereby termination upon reaching normal age of retirement for a particular position was not discriminatory. The Commission cited two prior Federal Court decisions in which age 60 was confirmed as the normal retirement age for Air Canada pilots, and in which s. 15(1)(c) was found constitutionally valid. The applicants sought judicial review. ... [read more]