This page contains general information pertaining to my law practice, the law firm of Ball & Alexander, federal and provincial legislation, published legal papers, articles and commentaries concerning significant developments in the law and current legal issues. The contents of this page are provided and intended as general legal information only and should not form the basis of legal advice of any kind. You should not act on this information or other legal information found online without first obtaining proper, professional legal advice.
If you have any questions pertaining to the contents of this page that may be applicable to your particular situation, please contact Stacey Reginald Ball at srball@82scollard.com.
WHAT'S NEW?:
2. Pregnancy and Wrongful Dismissal Damages
3. Nervous Shock Caused By Employer.
4. Reinstatement Of Federal Jurisdiction Employees
5. Disabled Employees Entitled To Severance
6. New Law To Protect Employees Who Disclose Wrong Doings
8. Ontario Government Raises Minimum Wage
9. Ontario Government Ends Mandatory Retirement
10. In Ontario - The Holiday Season Has Three Public Holidays
11. Extended Damages no longer subject to Mitigation12. Canadian Employment Law - Stacey R. Ball, Author
WRONGFUL REFERENCING:
The law in the United Kingdom has for several years allowed an action against the employer for negligent referencing based on the tort of negligent mis-statement (see Spring v. Guardian Assurance plc, [1994] 3 All E.R.129 (H.L.). The Supreme Court of Canada has now affirmed that this approach is now the law in Canada. In Young v. Bella 2006 SCC 3 the Supreme Court held that one could be liable for negligent statements which ruin an individual’s employment prospects despite the defence of qualified privilege found in defamation law. The Young decision represents an important development in Canadian employment law. It should cause employers to take great care in giving references which could harm a former employee by causing him or her to lose a job prospect.
PREGNANCY AND WRONGFUL DISMISSAL DAMAGES:
Recent decisions in both British Columbia and Ontario have awarded employees dismissed while they were pregnant extended notice periods. See Harris v. Yorkville Sound (Dec. 13 2005), 04-CV-262019CUI (Ont. S.C.) and Woodward v. Union Life Insurance Co. of Canada (2002), 4 B.C.L.R. (4th) 333 (B.C.S.C.)
NERVOUS SHOCK CAUSED BY EMPLOYER:
In Sulz v. Canada (A.G.) [2006] B.C.J. No. 121 (B.C.S.C.) a former R.C.M.P. was awarded $950,000 because of harassment and abuse caused by a supervisor. In Downham v. Lennow and Addington (County) [2005] O.J. No. 5227 (Ont. S.C.) a substantially false investigation report circulated within a small community caused the court to awarded $100,000 in punitive damages, damages in the amount of $50,000 for extreme humiliation, embarrassment and loss of enjoyment of social activities. The individual was awarded an additional $20,000 for the intentional infliction of mental distress.
RE-INSTATEMNET OF FEDERAL JURISDICTION EMPLOYEES:
Under the Canada Labour Code, employees can apply to be re-instated with back pay. In the decision of Alberta Union of Provincial Employees v. Lethbridge Commuity College [2004] 1 S.C.R. 727 the Supreme Court of Canada held that as a general rule reinstatement of a grievor to his or her previous position will normally be ordered. Although this was a collective bargaining decision, given that the Canada Labour Code was enacted to provide unorganized federal employees protection that exist for organized employees, it is expected that this decision will apply to unjust dismissals under the Code.
DISABLED EMPLOYEES ENTITLED TO SEVERANCE:
May 4, 2005 - The Ontario Court of Appeal has held that persons with long-term, severe disabilities, are entitled to severance pay when they are unable to return to work. Prior to the decision in Ontario Nurses Association v. Mount Sinai Hospital, employees who could not return to work and therefore 'frustrated' their contracts, were treated as though they had resigned. This meant they could not recover severance pay under employment standards legislation. The Ontario Court of Appeal's decision has changed this. They found that the Charter of Rights and Freedoms protects disabled employees from discrimination. Consequently, severance liabilities, which are in part intended to reward past service, should be payable to individuals unable to work due to disability, just as severance would be owing to employees terminated without cause.
NEW FEDERAL WHISTLE BLOWER PROTECTION ACT:
November 25, 2005 -- The federal government has adopted the Public Servants Disclosure Protection Act, which was designed to protect employees who disclose government wrongdoing. Bill C-11 covers all federal government employees, including those working for Crown corporations, with new procedures for complaints and investigations. Under the new law, employees who complain will be protected against reprisals, and shielded from privacy-related disclosures. The House of Commons Standing Committee on Government Operations and Estimates, which studied the bill, proposed numerous amendments, including one to create a new Public Sector Integrity Commissioner reporting directly to Parliament. The Government listened to the views of the Committee and brought forward the motions to create the position of Public Sector Integrity Commissioner.
E I REPORT TABLED IN HOUSE of COMMONS:
On February 15, 2005, Mrs. Raymonde Folco, the Chair of the Standing Committee on Human Resources, Skills Development, Social Development and the Status of Persons with Disabilities, tabled a report entitled Restoring Financial Governance and Accessibility in the Employment Insurance Program in the House of Commons. It contains 28 recommendations designed to restore integrity to the Employment Insurance (EI) Program and has asked the government to halt its current practices and establish a new approach for governing EI finances. Most of what’s recommended would ensure that all future uses of the Employment Insurance program would only be for the benefit of employees and not for any other purpose.
Key changes submitted to the House of Commons that may be of interest to employers are:
* The creation of a new EI fund that is dedicated exclusively to EI, has the capacity to maintain premium rate stability, and is managed by an independent EI Commission that is broadly representative of EI contributors;
* The gradual return of the EI surplus to program contributors;
* A new premium rate-setting process that ensures program solvency and premium rate stability on a five-year, look-forward basis;
* The implementation of a $3,000 yearly basic earnings exemption to replace the current premium refund for contributors with low earnings;
* The development and introduction of a means for refunding premiums paid by employers that correspond to over-contributions to EI from employees;
* The creation of a 360-hour uniform qualification requirement, irrespective of regional unemployment rates and the type of benefit;
* An increase in maximum regular benefit entitlement from 45 to 50 weeks of benefits, the same as that afforded special benefits;
* An increase in the benefit rate from 55% to 60% of average weekly insurable earnings;
* The adoption of a new rate calculation period equal to the qualifying period, and a new approach for calculating average weekly insurable earnings based on the best 12 weeks of insurable earnings;
* The government amend the Employment Insurance Regulations so as to not consider pension, severance and vacation income in the determination of earnings for benefit purposes;
* Greater access to and spending on Employment Benefits and Support Measures;
* The government initiate a pilot project to assess the effectiveness of providing a premium refund to employers who: (1) provide training to alleviate skill shortages; (2) incur training costs while replacing workers receiving maternity/parental benefits; (3) provide training to seasonal and older workers; and (4) provide workplace literacy training to their employees. If the pilot project finds this training incentive to be effective then it should become a regular feature of the Employment Insurance program and its cost should not be included as part of the expenditure limit found in the Employment Insurance Act.
ONTARIO GOVERNMENT INCREASES MINIMUM WAGE:
TORONTO --The Ontario Government is raising minimum wages, with the general minimum wage to be raised to $7.75 per hour on February 1, 2006, with a further increase to $8 per hour on February 1, 2007.
Other minimum wage rates will also increase on February 1, 2006. The minimum wage for:* Students under 18 years old and employed for not more than 28 hours a week will rise from $6.95 to $7.25 per hour
* Liquor servers will increase from $6.50 to $6.75 per hour
* Hunting and fishing guides currently paid a minimum of $37.25 for less than five consecutive hours in a day and $74.50 for five or more hours in a day (whether or not the hours are consecutive) will also increase to $38.75 and $77.50 respectively.
MANDATORY RETIREMENT ENDS:
TORONTO, December 12, 2005 -- Labour Minister Steve Peters announced that one year from today, mandatory retirement will be illegal in Ontario.
The Ending Mandatory Retirement Statute Law Amendment Act was approved by the legislative assembly in an overwhelming 60-5 vote on December 8 and was given royal assent by Lieutenant Governor James Bartleman. It takes effect one year from today, to allow employers time to adjust their workplace policies and practices.
“We want to give Ontarians time to get ready for the change. Some employers, for instance, may need to adapt their human resources policies and practices to comply with the law,” said Peters. “We would urge employers to consider the legislation when dealing with employees coming up on age 65 in the next year.”
People are healthier and living longer, so it is unfair to insist that they stop working simply because they turn 65, he said. Ending mandatory retirement allows workers to decide when to retire based on lifestyle, circumstance and priorities.
The Ontario Human Rights Code will protect people aged 65 and over from age discrimination for most employment purposes. The legislation also amends a variety of other statutes that have provisions connected to mandatory retirement.
HOLIDAY SEASON HAS THREE PUBLIC HOLIDAYS UNDER EMPLOYMENT STANDARDS ACT:
TORONTO November 30, 2005 -- Many workers will get three public holidays off this holiday season with public holiday pay. Three of eight public holidays under Ontario’s Employment Standards Act, 2000 fall on Christmas Day on December 25, Boxing Day on December 26 and New Year’s Day on January 1.QUALIFYING FOR PUBLIC HOLIDAY ENTITLEMENTS:
Generally, employees qualify for public holiday entitlements unless they fail, without reasonable cause, to work:
* Their entire regularly-scheduled shift before or after the public holiday; or
* Their entire shift on the public holiday if they agreed or were required to work that day.
Public holiday pay is an amount equal to an employee’s regular wages earned in the four work weeks prior to the public holiday plus any vacation pay payable during that period, divided by 20.
Employees who qualify for public holiday entitlements can be full-time, part-time, permanent or on a limited-term contract. They can also be students. It does not matter how recently they were hired or how many days they worked before the public holiday.ENTITLEMENTS IF YOU ARE SCHEDULED TO WORK ON ANY OF THE PUBLIC HOLIDAYS:
Qualified employees are entitled to take off the public holidays with public holiday pay. They can also agree in writing to work on the public holidays and:
* Be paid their regular rate for all hours worked on the public holidays plus receive a substitute holiday with public holiday pay; or
* If the employee and employer agree in writing, be paid public holiday pay plus “premium pay” of one-and-a-half times their regular rate for all hours worked on the public holidays.
ENTITLEMENTS IF ANY OF THE PUBLIC HOLIDAYS ARE NON-WORKING DAYS:
For any public holiday that falls on a non-working or vacation day, qualified employees can either take a substitute work day off with public holiday pay or, if they agree in writing, they can receive public holiday pay for the public holiday with no substitute day off.ENTITLEMENTS FOR NON-QUALIFIED EMPLOYEES:
Generally, employees who don’t qualify for public holiday entitlements must work on the public holiday if asked by their employer. Most non-qualified employees are entitled to be paid one-and-a-half times their regular rate of pay for each hour worked on the public holidays. There is no substitute day off.
If a non-qualified employee is not asked to work on the public holidays, he or she gets the days off with no pay.SPECIAL RULES / EXCEPTIONS:
Retail Employees:
Most employees who work in retail businesses--businesses that sell goods or services to the public--have the right to refuse to work on the public holidays even if they don’t qualify for public holiday entitlements.
Retail employees who have agreed to work on the public holidays may still refuse the assignment if they give their employer 48 hours advance notice before the first hour of work on the public holiday.
However, these rules for retail employees do not apply to those who work for businesses that primarily:
* Sell prepared meals (restaurants, cafeterias, cafés, etc.)
* Rent living accommodations (hotels, tourist resorts, camps, inns, etc.)
* Provide educational, recreational or amusement services to the public (museums, art galleries, sports stadiums, etc.)
* Sell goods and services that are incidental to the businesses described above and are located on the same premises (museum gift shops, souvenir shops in sports stadiums, etc.).
Under the Retail Business Holidays Act, most retail outlets must close on Christmas Day and New Year’s Day. However, stores may open if they choose on Boxing Day. Employees still retain the right to refuse to work on Boxing Day.Hospital, Continuous Operations and Hospitality Employees:
Employees in hospitals, continuous operations and the hospitality industry may be required to work on the public holidays if they fall on days they would normally work and if they are not on vacation. This applies to employees who work for hospitals, nursing homes, hotels, motels, tourist resorts, restaurants and taverns, as well as to employees who work for continuous operations (operations or parts of operations that do not shut down or close down more than once a week such as oil refineries and alarm monitoring companies).
Elect-to-work employees
Elect-to-work employees--those who decide without penalty whether or not to work when requested--are not covered by the public holidays provisions of the Employment Standards Act, 2000 except for the right to be paid one-and-a-half times their regular rate of pay for each hour worked on the public holidays.EMPLOYEES NOT ELIGIBLE FOR PAID PUBLIC HOLIDAYS:
Some employees are not eligible for public holiday entitlements because public holiday provisions under the Employment Standards Act, 2000 do not apply to certain jobs. These employees include:
* Seasonal workers (employees who work for an employer no more than 16 weeks in a calendar year) in a hotel, motel, tourist resort, restaurant or tavern who are provided with room and board
* Taxicab drivers
* Professionals such as lawyers, doctors, teachers, architects, chiropodists, chiropractors, dentists, massage therapists, optometrists, pharmacists, professional engineers, physiotherapists, psychologists, public accountants, surveyors, veterinarians and those covered under the Drugless Practitioners Act
* Students in training for any of the professions listed above
* Students who instruct or supervise children or who work at a children’s camp or recreational program operated by a charitable organization
* Hunting and fishing guides, commercial fishers and some farm workers
* Commissioned salespeople, except route salespeople, who normally work away from their employer's place of business
* Employees who install and maintain swimming pools
* Employees in landscape gardening, mushroom growing, or the growing, transporting and laying of sod
* Employees who grow flowers or trees and shrubs for retail and wholesale trade
* Employees who breed and board horses on a farm or who keep fur-bearing mammals for propagation or the production of pelts for commercial purposes
* Construction workers who receive 7.3 per cent or more of their wages for vacation pay or holiday pay
* Residential building superintendents, janitors or caretakers who live in the building
* Firefighters
* Registered real estate salespeople.
EXTENDED DAMAGES NO LONGER SUBJECT TO MITIGATION
The Supreme Court of Canada in Keays v. Honda [2008], 66 C.C.E.L. (3d) 159 (S.C.C.) has reconfirmed that extended damages because of employer bad faith and fair dealing are payable to an employee even if the employee has mitigated his or her damages by finding new employment.
LEGAL TEXT - CANADIAN EMPLOYMENT LAW
Information of interest to the legal community is addressed in Mr. Ball's excellent legal text Canadian Employment Law (Canada Law Book). Canadian Employment Law has been quoted and cited by the Supreme Court of Canada, as well as superior courts in every Canadain Province.The Canadian Bar Review, Vol. 77, 1998 states: "Ball's text is the most comprehensive text on employment law in Canada. It is carefully constructed and accurate."
Citing over 5500 cases, this one-stop reference provides you with a thorough survey of the law. It clearly analyzes current law and developing trends, suggests potential avenues of attack, as well as identifies potential weaknesses in the law.
Updated 3 times per year, Mr. Ball's text is designed to keep you up-to-date on this rapidly changing area of law.
The text covers:
- wrongful dismissal
- human rights
- fiduciary obligations
- tort law and vicarious liability issues
- restraint of trade
- developing causes of action
- employment contracts
- remedies
- constitutional issues
- occupational health.... and much more.
Click on the following title Canadian Employment Law (Canada Law Book) to order.
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