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EMPLOYMENT
What Should be on Your Radar Screen for 2012?
SEMINAR
OCTOBER 20, 2011
STIKEMAN ELLIOTT LLP
MONTRAL
TORONTO
OTTAWA
CALGARY
VANCOUVER
NEW YORK
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www.stikeman.com
Stikeman Elliotts
EMPLOYMENT, LABOUR & PENSION BLOG
CanadianEmploymentPensionLaw.com
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EMPLOYMENT
CONTENTS
SPEAKERS Moderator: Bruce Pollock, Partner, Stikeman Elliott Presenters: Lorna Cuthbert, Partner, Stikeman Elliott Kathleen Chevalier, Associate, Stikeman Elliott Kelly OFerrall, Associate, Stikeman Elliott Panellists: Bruce Pollock, Partner, Stikeman Elliott Nancy Ramalho, Partner, Stikeman Elliott Alison Burton, Senior Counsel, RBC Law Group PRESENTATION SLIDES Employing Foreign Workers Immigration and Employment Law Nuts and Bolts Lorna Cuthbert Accessibility for Ontarians with Disabilities Act, 2005 Kathleen Chevalier Employment Law: A Year in Review Kelly OFerrall RESOURCES Accessibility for Ontarians with Disabilities Act, 2005: A Primer Canadian Employment Labour and Pension Law FAQ Accessibility Standards for Customer Service: Compliance Checklist Canadian Employment & Pension Law Blog Pages Case Notes Duong v. Linamar Altman v. Steves Music Brito v. Canac Kitchens Mason v. Chem-Trend R. v. Cole Ontario (Ministry of Labour) v. United Independent Operators Kingston (City) v. Canadian Union of Public Employees, Local 109 Hiring and Firing a Foreign Worker FIRM PROFILE An overview of Stikeman Elliott and our Employment, Labour and Pension Group
SEMINAR
OCTOBER 20, 2011
EMPLOYMENT
PROFILES OF TODAYS SPEAKERS
SEMINAR
OCTOBER 20, 2011
Bruce Pollock Partner Stikeman Elliott
Kelly OFerrall Associate Stikeman Elliott
Lorna Cuthbert Partner Stikeman Elliott
Nancy Ramalho Partner Stikeman Elliott
Kathleen Chevalier Associate Stikeman Elliott
Alison Burton Senior Counsel RBC Law Group
Bruce Pollock
5300 Commerce Court West, 199 Bay Street, Toronto, Canada M5L 1B9 Direct: (416) 869-5566 Fax: (416) 947-0866 bpollock@stikeman.com
Law Practice
Bruce Pollock is a partner in Stikeman Elliott's Toronto office, a member of the Employment, Labour and Pension Group and past Head (1998-2008) of the Group. He has been involved in advising clients on all aspects of the employment relationship in both unionized and non-unionized environments. He has also been involved in providing advice in respect of the employment impact of various commercial transactions. Mr. Pollock has been extensively involved in representing clients interests in litigation arising out of employment relationships including wrongful dismissal litigation, occupational health and safety litigation, pension litigation, class actions, arbitration hearings, labour board proceedings, alternative dispute resolution mechanisms, and judicial review of administrative actions. Mr. Pollock also has extensive advocacy experience outside of the employment, labour and pension area, having appeared before all levels of court in Ontario, the Federal Court of Appeal and the Supreme Court of Canada and before numerous administrative tribunals including the Ontario Labour Relations Board and the Financial Services Tribunal.
Professional Activities
Mr. Pollock is a past member of the Toronto Lawyers Association. He has frequently given seminars, lectures and speeches on a variety of employment law matters including occupational health and safety and alternative dispute resolution. Mr. Pollock is an Associate Editor of Canadian Cases on Pensions and Benefits and a past member of the Financial Services Commission's Legal Advisory Committee and the Financial Services Tribunal's Legal Advisory Committee. Mr. Pollock is editor of the firms Employment and Pension law blog, www.canadianemploymentpensionlaw.com.
Publications
Mr. Pollocks publications include: > Confidentiality, Intellectual Property and Competitive Risk in the Employment Relationship Canadian Bar Review, Volume 83, 2004; > Municipal Downloading Is Subcontracting an Answer Municipal World, August, 1998; and > Use of Alternative Dispute Resolution in Employment Related Disputes Federated Press, October, 1996.
Education
University of Toronto (LL.B. 1978), Queens University (B.Comm. Hons. 1975).
Bar Admission
Ontario, 1980.
STIKEMAN ELLIOTT LLP PROFILE
Lorna A. Cuthbert
5300 Commerce Court West, 199 Bay Street, Toronto, Canada M5L 1B9 Direct: (416) 869-5237 Fax: (416) 947-0866 lcuthbert@stikeman.com
Law Practice
Lorna Cuthbert is a partner and head of the Employment, Labour and Pension Group of the Toronto office. Her practice encompasses all matters relating to employment and labour law, with a particular focus on the human resources aspects of commercial matters. She has advised on the employment and labour ramifications on numerous mergers and acquisitions, restructurings, outsourcing and insolvency mandates. She negotiates executive employment agreements, consulting agreements, termination arrangements and regularly advises multinational corporations in establishing operations in Canada, including in relation to business immigration requirements. Ms. Cuthbert also provides advice to clients regarding employment standards compliance, human rights, wrongful dismissal, enforceability of restrictive covenants, and employee privacy.
Ms. Cuthbert is a member of the Law Society of Upper Canada and the Canadian Bar Association. She is Chair of the Toronto offices Diversity Committee and is actively involved with TRIEC (Toronto Region Immigrant Employment Council), both as a mentor and as the firms representative on TRIECs Council Membership.
Publications and Speaking Engagements

In addition to outside speaking engagements, Ms. Cuthbert provides presentations and training to firm clients on all matters relating to human resources. Below are some recent representative engagements: > H1N1 and the Law: What U.S. and Canadian Employers Should Know, Benefits Across Borders, co authored with Heather Egan Sussman, McDermott Will & Emery, October, 2009. > Negotiating and Drafting Key Contract Terms: From the Term Sheet Onwards with Robert Colson for the Osgoode Professional Development CLE, September, 2010. > Hiring and Firing a Foreign Worker, The Six-Minute Employment Lawyer 2011 (Law Society of Upper Canada).
Education
University of Western Ontario (LL.B. 1990), University of South Florida (B.A. magna cum laude 1987).
Bar Admission
Ontario, 1992.
Kathleen Chevalier
5300 Commerce Court West, 199 Bay Street, Toronto, Canada M5L 1B9 Direct: (416) 869-6851 Fax: (416) 947-0866 kchevalier@stikeman.com
Law Practice
Kathleen Chevalier is an associate practising in the Employment, Labour and Pension Group in Stikeman Elliott's Toronto office. She advises clients on a variety of issues relating to employment and labour matters.
Kathleen is a member of the Law Society of Upper Canada and the Ontario Bar Association.
Publications
> Accessibility for Ontarians with Disabilities Act, 2005 - Integrated Accessibility Standards in force, republished by Canadian Corporate Counsel, September 2011.
Education
University of Windsor (LL.B 2008, MBA 2005), (Honours B.Comm. 2004).
Bar Admission
Ontario, 2009.
Kelly O'Ferrall
5300 Commerce Court West, 199 Bay Street, Toronto, Canada M5L 1B9 Direct: (416) 869-6842 Fax: (416) 947-0866 koferrall@stikeman.com
Law Practice
Kelly O'Ferrall is an associate practising in the Employment, Labour and Pension Group in the Toronto office of Stikeman Elliott. She advises clients on a variety of issues relating to employment and labour matters.
Ms. OFerrall is a member of the Canadian Bar Association, the Law Society of Upper Canada and the Ontario Bar Association.
Publications
> Employer liable for long-term disability coverage during the common law notice period, republished in CCHs Labour Notes newsletter, June 2011.
Education
Osgoode Hall Law School (LL.B. 2008), Queens University (Honours BA 2005, B.Sc. 2004).
Bar Admission
Ontario, 2009.
Nancy Ramalho
5300 Commerce Court West, 199 Bay Street, Toronto, Canada M5L 1B9 Direct: (416) 869-5683 Fax: (416) 947-0866 nramalho@stikeman.com
Law Practice
Nancy Ramalho is a partner practising in the Employment, Labour & Pension Group in Stikeman Elliotts Toronto office. In addition to litigation and grievance arbitration, she provides advice and opinions on all aspects of human resources management including employment standards, pay equity, human rights, corporate policies and procedures, employment contracts, health and safety, plant closures, collective bargaining negotiations, and certification and unfair labour applications. She also defends companies and their managerial staff who have been charged with offences under the Occupational Health and Safety Act. Ms. Ramalho also provides assistance with labour and employment issues that arise in corporate transactions, insolvencies and restructuring. She also conducts specialized and practical in-house supervisory training seminars on such topics as workplace harassment and violence, occupational health and safety due diligence requirements, and enforcing policies and procedures including discipline.
Ms. Ramalho is a member of the Canadian Bar Association, the Canadian Association of Counsel to Employers, the Portuguese Canadian Lawyers' Association and the International Women's Insolvency and Restructuring Confederation. She is a member and secretary of the board of directors of the YWCA Canada.
Publications
Ms. Ramalho has participated as a speaker and panellist at various conferences and is the author of a number of papers dealing with employment and labour matters including recent publications on labour matters in an insolvency context.
Education
University of Windsor (LL.B. 1996), Carleton University (BA 1993).
Background
Ms. Ramalho is fluent in English and Portuguese.
Bar Admission
Ontario, 1998.
Alison Burton
Senior Counsel RBC Law Group, Royal Bank of Canada
Alison Burton is Senior Counsel in RBC's Law Group, where she heads up the Employment and Disability Litigation Team. In her role at RBC she, along with her team, primarily manage employment and disability related litigation, but the team also provides advice to the RBCenterprise nationally on a variety of employment related issues, which includes privacy andhuman rights. Prior to joining RBC, Alison practiced employment law at Gowling Lafleur Henderson LLP in Toronto.
EMPLOYMENT
PRESENTATION SLIDES
Employing Foreign Workers Immigration and Employment Law Nuts and Bolts Lorna Cuthbert
SEMINAR OCTOBER 20, 2011
Accessibility for Ontarians with Disabilities Act, 2005 Kathleen Chevalier Employment Law: A Year in Review Kelly OFarrell
WHAT SHOULD BE ON YOUR RADAR SCREEN FOR 2012?
Overview
MODERATOR: BRUCE POLLOCK, STIKEMAN ELLIOTT, TORONTO PRESENTERS: LORNA CUTHBERT, STIKEMAN ELLIOTT Employing Foreign Workers: Immigration and Employment Law Nuts and Bolts KATHLEEN CHEVALIER, STIKEMAN ELLIOTT Accessibility for Ontarians with Disabilities Act, 2005 KELLY OFARRELL, STIKEMAN ELLIOTT Employment Law: A Year in Review
PANELLISTS: BRUCE POLLOCK, STIKEMAN ELLIOTT, TORONTO NANCY RAMALHO, STIKEMAN ELLIOTT, TORONTO ALISON BURTON, SENIOR COUNSEL, RBC LAW GROUP
SLIDE 1
Employing Foreign Workers

Immigration and Employment Law Nuts and Bolts
Lorna Cuthbert Stikeman Elliott
A
www.stikeman.com
STIKEMAN ELLIOTT LLP 1
Introduction
1. 2. Immigration Overview Drafting the Employment Contract a) Term of the Employment Contract b) Who bears responsibility for immigration costs c) Relocation expenses d) Termination of employment e) Choice of law (jurisdictional issues) 3. Other Considerations a) OHIP b) Tax and Customs c) Changing the terms and conditions of employment of the foreign worker 4. Conclusion
SLIDE 3
1 IMMIGRATION OVERVIEW
Immigration Overview - Work Permits

If require Labour Market Opinion (LMO) must advertise for the position determine where positions fits in NOC NOC and A Occupations You will have conducted the minimum advertising efforts required if you:
Conduct recruitment activities with the practice within the occupation (e.g. advertise on recognized internet job sites, in journals, newsletters or national newspapers or by consulting unions or professional associations); OR Advertise on the national Job Bank (or equivalent in Newfoundland and Labrador, Saskatchewan or the Northwest Territories) for a minimum if fourteen (14) calendar days, during the three (3) months prior to applying for an LMO
SLIDE 4
1 IMMIGRATION OVERVIEW 2 DRAFTING THE EMPLOYMENT CONTRACT
Must offer prevailing wage Processing times There are exceptions to LMO: Intra Corporate Transfers
Foreign employer and local employer must be related Employee must have one (1) year of employment Employee must be senior manager or have specialized knowledge
Certain professionals under NAFTA

Lawyers, engineers Management consultants (catch all)
Trainers/Trainees qualify as business visitors
SLIDE 5
2. Drafting the Employment Contract

Terms of employment need to be reflected in a written employment contract governing the relationship Employment must be conditional on employee obtaining a work permit (be aware of criminal inadmissibility) Work permit sets out duration of validity, occupation, location, employer Thomas v. EDS Canada Inc. (a good lesson)
SLIDE 6
2 DRAFTING THE EMPLOYMENT CONTRACT
(a) Term of the Employment Relationship

Recognize interplay between immigration, desire to have longest work permit and possibility that employment relationship will not last that long Guard against arguments of inducement or guaranteed employment
SLIDE 7
(b) Who Bears Responsibility for Immigration Costs

Consider time limits for work permits Consider parties expectations with respect to application for permanent residence Consider ancillary costs family members, taxes
SLIDE 8
(c) Relocation Expenses

Absent clear employment contract - employer is liable to pay costs incidental to the employees post-employment relocation to the extent these costs flow reasonably and foreseeably from the employers breach Make sure agreement covers both coming and going Employment counsel should review ex-pat agreements and relocation policies
SLIDE 9
(d) Termination of Employment

Provide for termination provision in employment contract Nishina v Azuma Foods (Canada) Co.
Employee terminated without cause (not able to work for another employer) Six (6) years of service Awarded twelve (12) months salary, court took into account immigration status with respect to availability of similar employment Court found that immigration status made her particularly vulnerable
SLIDE 10
(e) Choice of law (jurisdictional issues)

Employment standards legislation and common/civil law applies to employees rendering services in the province in which they are located Consider potential ramifications of choosing home country law over employing jurisdiction
SLIDE 11
3. Other Considerations
a) Ontario Health Insurance Plan Coverage

Foreign worker may obtain OHIP coverage if employed full time for an employer in Ontario for a minimum of six (6) months and: Maintain their primary place of residence in Ontario; Physically present in Ontario for at least one hundred fifty-three (153) days in any twelve (12) month period; and Be physically present in Ontario for one hundred fifty-three (153) of the first one hundred eighty-three (183) days immediately after establishing residency in Ontario Primary place of residence = the place with which a person has the greatest connection in terms of present and anticipated future living arrangements, the activities of daily living, family connections, financial connections and social connections and for greater certainty a person only has one primary place of residence, no matter how many dwelling places he/she may have, inside or outside Ontario Three month waiting period following establishment of Ontario
SLIDE 12
3 OTHER CONSIDERATIONS
b) Tax and Custom law

Tax advice and customs advice required
c) Changing terms and conditions of employment of the foreign worker

Work permit is employer specific, location specific and position specific If transfer of location or transfer of position, application to change terms may be required Employers are subject to more rigorous assessment to ensure terms and conditions of employment are satisfied
SLIDE 13
4. Conclusion
Immigration is a Law Preparation, preparation, preparation!!!
SLIDE 14
Accessibility for Ontarians with Disabilities Act, 2005

Kathleen Chevalier Stikeman Elliott
B
www.stikeman.com
Accessibility for Ontarians with Disabilities Act, 2005 (AODA)

Aim of AODA Accessibility Standards Customer Service Standard Integrated Standard Enforcement
SLIDE 16
Aim of AODA
Accessibility through implementation and enforcement of accessibility standards
SLIDE 17
Accessibility Standards
Customer service standard Integrated standard
Information and Communications Employment Transportation
Built environment standard
SLIDE 18
Customer Service Standard

Applies to organizations that:
Provide goods or services to the public, other organizations or third parties; and Have one or more employees in Ontario
Who is a third party? How are employees counted?
SLIDE 19

Does not apply internally Goods do not need to be accessible Contracting outside of Ontario
SLIDE 20
Customer Service Standard: Policies, Practices and Procedures

Establish policies, practices and procedures for providing goods and services to people with disabilities
Principles of dignity, independence, integration and equality Use of assistive devices, and those provided by the organization Entry of service animals to public areas Welcome support persons, set out admission fees if applicable Public notification of disruption to accessible services
SLIDE 21
Customer Service Standard: Training

Develop a training program
AODA and its requirements Policies, practices and procedures Interaction, communications Assistive devices Service animals Support persons
SLIDE 22
Customer Service Standard: Feedback Process

Allows public to provide feedback Accessible in a number of formats Specifies response process
SLIDE 23
Customer Service Standard: Documentation

Applicable to organizations with 20 or more employees One or more documents, available to the public
1. Policies, practices and procedures 2. Training 3. Support persons and service animals 4. Temporary disruption to facilities or services 5. Feedback process
Document notifying the public that documents are available upon request Provide documents in an accessible format
SLIDE 24 STIKEMAN ELLIOTT LLP
Customer Standard: Reporting Requirement

Applicable to organizations with 20 or more employees File an annual accessibility report with the Accessibility Directorate of Ontario Public Sector: March 31st Private Sector: TBD
SLIDE 25
Integrated Standard
Employment
How organizations will incorporate accessibility measures in recruitment processes and during employment Private organizations (50+ employees): January 1, 2016 Private organizations (<50 employees): January 1, 2017
Individualized workplace emergency response plan

Employer is aware of the disability Employees disability requires it January 1, 2012
SLIDE 26
Enforcement
Inspectors Compliance within specified timeframes Monetary penalties
Daily basis Maximum of $100,000.00 for corporations Maximum of $50,000.00 for individuals or unincorporated associates
License Appeal Tribunal Human Rights Tribunal
SLIDE 27
Employment Law: A Year in Review

Kelly OFerrall Stikeman Elliott
C
www.stikeman.com
Duong v. Linamar, 2011 ONSC 3159

Frustration in the employment context Employee dismissed after 3 years on disability leave Employer moved for summary judgment dismissing the employees claim Issue:
Was the employer entitled to terminate the contract for frustration?
SLIDE 29
Duong v. Linamar Timeline
SLIDE 30
Duong v. Linamar Decision

The contract was frustrated No reasonably foreseeable date of return
Employee had been off work for 3 years Evidence that he was permanently disabled No evidence of improvement
Requiring the employer to continue to employ Mr. Duong would have required it to do something radically different from that which was undertaken by the contract of employment (para. 43)
Therefore, the termination was justified
SLIDE 31
Altman v. Steves Music, 2011 ONSC 1480

Wrongful dismissal action by a former employee of Steves Music Store Inc. Shelley Altman:
59 years old 30 years of service Terminated after undergoing treatment for cancer
Steves argued that the contract was frustrated

Provided no notice or compensation upon termination
SLIDE 32
Altman v. Steves The Issue of Frustration
SLIDE 33
Altman v. Steves The Issue of Frustration

Frustration must be assessed at the time of dismissal At the time of termination, Ms. Altman likely could have returned to work
Medical evidence Ms. Altmans letter to Steves No contact from the management of Steves
SLIDE 34
Altman Guidelines for Frustration

Probable length of the relationship (but for the illness) Nature or uniqueness of the employees role Nature of the illness (how long it has persisted and prospect of recovery) Period of employment pre-injury or illness
SLIDE 35
Altman v. Steves Award

The Court awarded Altman: 22-month notice period $35,000 compensatory damages for breach of duty of good faith $20,000 punitive damages (Other amounts owed for unpaid salary, bonus, vacation pay and entitlements under a deferred profit sharing plan were referred to a Master for determination)
SLIDE 36
Brito v. Canac Kitchens, 2011 ONSC 1011

Wrongful dismissal case Mr. Louis Romero Olguin
55 years old Almost 24 years of service Provided with the statutory minimum payment and benefits upon termination without cause
Canac Kitchens
Restructuring History of litigating disputes with employees
SLIDE 37
Canac Kitchens Facts

Mr. Olguin obtained alternate employment shortly after being terminated
Lower paying No disability benefits
16 months after he was terminated, Mr. Olguin developed laryngeal cancer
SLIDE 38
Canac Kitchens Issues

Length of the notice period Entitlements during the notice period Other entitlements?
SLIDE 39
Canac Kitchens Decision (continued)

22-MONTH NOTICE PERIOD Salary during the notice period Short-term disability benefits Long-term disability benefits Termination to Trial Present value up to 65th birthday Ancillary damages Costs TOTAL (approx.): $5,000 $9,000 $147,000 $48,000 $15,000 $125,000 $349,000
SLIDE 40
Mason v. Chem-Trend Limited Partnership, 2011 ONCA 344

Enforceability of post-employment restrictive covenant Tom Mason:
17 years of service, technical salesperson Knowledge of customers, product and pricing information No access to customer lists or technical information
Chem-Trend:
World-wide operations, multinational clients
SLIDE 41
Mason v. Chem-Trend The Covenant

I agree that if my employment is terminated fo r any reason by me or by the Company, I will not, for a period of one year following the termination, directly or indirectly, for my own account or a s an em ployee or agent of any business entity, engage in a ny busines s or acti vity in co mpetition with th e Company by providing services or products to , o r s oliciting business from, any b usiness entity w hich wa s a customer o f the Company during the period in which I was an employee of the Compan y, or take any action that will cause the termination of the b usiness re lationship between the Company and any cu stomer, or s olicit fo r empl oyment any person employed by the Company. [Emphasis added]
SLIDE 42
Mason v. Chem-Trend Court of Appeal Decision

Test for enforceability of a restrictive covenant To be enforceable, a covenant not to compete must be: 1. Clear & unambiguous 2. Reasonable
Proprietary interest to protect Prohibited activity Temporal limits and geographic scope
SLIDE 43
Mason v. Chem-Trend Decision

Necessity of the prohibition
(continued)
Prohibited activity was very broad Practical effect of the prohibition was a complete bar against competing Masons position not the president or the chief financial officer
The Court found the covenant to be unreasonable and unenforceable
SLIDE 44
Other Notable Decisions

R. v. Cole, 2011 ONCA 218
Employee had a reasonable expectation of privacy with respect to employer-provided laptops
Exclusive, personal use of laptops; took the laptops home during school breaks; password-protected No clear policy governing laptop use
Lesson learned:
Maintain policies and right to supervise employees use of electronic devices provided to employees Ensure that there is no reasonable expectation of privacy
SLIDE 45

Ontario (Ministry of Labour) v. United Independent Operators, 2011 ONCA 33
Requirement under the OHSA to maintain a Joint Health & Safety Committee where twenty or more workers are regularly employed at a workplace Independent contractors must be included when calculating how many workers are regularly employed Lesson learned:
Include independent contractors when determining whether the 20 or more workers threshold has been met
SLIDE 46

Kingston (City) v. Canadian Union of Public Employees, Local 109, 2011 CanLII 50313 (ON LA)
Considered the effects of Bill 168 (Workplace Violence & Harassment) Employee with a history of violence made a death threat against the local union President Arbitrator found that the employer was justified in terminating the grievor Lesson learned:
More weight must be given to the seriousness of threats When assessing reasonableness of discipline, workplace safety must be considered
SLIDE 47
Questions and Answers

Bruce Pollock Lorna Cuthbert Kelly O'Ferrall Nancy Ramalho Alison Burton bpollock@stikeman.com lcuthbert@stikeman.com koferrall@stikeman.com nramalho@stikeman.com alison.burton@rbc.com
Kathleen Chevalier kchevalier@stikeman.com
www.stikeman.com
EMPLOYMENT
RESOURCES
Accessibility for Ontarians with Disabilities Act, 2005: A Primer Canadian Employment Labour and Pension Law FAQ
Accessibility Standards for Customer Service: Compliance Checklist Canadian Employment & Pension Law Blog Pages Case Notes Duong v. Linamar Altman v. Steves Music Brito v. Canac Kitchens Mason v. Chem-Trend R. v. Cole Ontario (Ministry of Labour) v. United Independent Operators Kingston (City) v. Canadian Union of Public Employees, Local 109 Hiring and Firing a Foreign Worker
ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT, 2005: A PRIMER

The Accessibility for Ontarians with Disabilities Act, 2005 (the Act) aims to accomplish its goal of accessibility in Ontario through the implementation and enforcement of accessibility standards. The accessibility standards are the rules that businesses and organizations in Ontario will have to follow to identify, remove and prevent barriers to accessibility. The Act sets out the following accessibility standards:

Customer Service Standard;
The Act applies to private sector or non-profit organizations that provide goods, services or facilities directly to the public or to other businesses or organizations in Ontario, and have one or more employees in Ontario (Providers).
ntegrated Standard (which encompasses employment, information and communications, and I transportation); and Built Environment Standard.
Of the accessibility standards, the Customer Service Standard and Integrated Standard have become law. The Customer Service Standard came into effect on January 1, 2008, with private sector compliance required by January 1, 2012. The Integrated Standard came into effect on July 1, 2011 with staggered compliance requirement dates as early as January 1, 2012. It is not yet known when the Built Environment Standard will come into force. In order to comply with the Customer Service Standard, all Providers are legally required to:
1. Establish policies, practices and procedures for providing goods or services to people with disabilities. 3. Use reasonable efforts to ensure that the Providers policies, practices and procedures are consistent with the core principles of independence, dignity, integration and equality of opportunity.
2. Set a policy on allowing people to use their own personal assistive devices to access the goods and use the services and any other measures the Provider offers (assistive devices, services or methods) to enable people to access the goods and utilize the services. 4. Communicate with a person with a disability in a manner that takes into account his or her disability. Ask persons with disabilities how they wish to be communicated with.
5. Train staff, volunteers, contractors and any other people who: (i) interact with the public or other third parties on the Providers behalf on a number of topics as outlined in the Customer Service Standard; or (ii) are involved in developing the Providers policies, practices and procedures on the provision of goods or services on a number of topics as outlined in the Customer Service Standard. 6. Allow people with disabilities to be accompanied by their guide dog or service animal in those areas of the premises that are open to the public, unless the animal is excluded by another law.
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7. Permit people with disabilities who use a support person to bring that person with them while accessing goods or services in premises open to the public or third parties. Where admission fees are charged, provide notice ahead of time on what admission, if any, would be charged for a support person of a person with a disability. 8. Provide notice when facilities or services that people with disabilities rely on to access or use the Providers goods or services are temporarily disrupted. 9. Establish a process for people to provide feedback on how the Provider provides goods or services to people with disabilities and how the Provider will respond to any feedback and take action on any complaints. Make the information about the Providers feedback process readily available to the public.
If a service animal is excluded by law, use other measures to provide goods or services to the person with a disability.
There are documentation requirements for public sector organizations and Providers with 20 or more employees. These organizations must:
Documentation Requirements Under the Customer Service Standard

notify their customers that these documents are available upon request; and
document in writing their accessible customer service policies, practices and procedures;
To ensure that businesses and organizations are complying with the requirements of the Customer Service Standard, they must file an annual online accessibility report with the Accessibility Directorate of Ontario. All public sector organizations must file their report annually by March 31st. The deadline for non-public sector organizations is yet to be determined. Organizations with fewer that 20 employees (except for public sector organizations) are exempt from this requirement. From the requirements listed above, it is clear that the aim of the Customer Service Standard is not to regulate the actual products or services, but rather the way in which the products or services are provided to the public or third parties.
rovide information in the required document(s), when providing them to a person with a disability, in a p format that takes into account their disability.
The Integrated Standard combines three separate accessibility standards: information and communication; employment; and transportation. The Information and Communications Standards focus is to ensure that information and communications relating to the provision of goods and services are accessible to persons with disabilities, while the Employment Standards set out how organizations are to incorporate accessibility measures for persons with disabilities, both in recruitment processes and during employment. The aim of the Transportation Standards is to prevent and remove barriers that persons with disabilities may face when attempting to access transportation services.
Integrated Standard
The Integrated Standard came into force on July 1, 2011 and will be implemented in phases according to its staggered compliance deadlines. Of particular note is that under the Integrated Standard, by January 1, 2012 employers must provide individualized workplace emergency response information to disabled employees if: (i) the employer is aware of the need for accommodation; and (ii) it is required based on the employees disability.
The Act grants the Deputy Minister power to appoint one or more inspectors to determine whether organizations are compliant with the Act and its regulations. In the course of an inspection, an inspector may, without warrant, enter any lands or any building, structure or premises where the inspector has reason to believe there may be documents or things relevant to the inspection and: (i) require the production of any documentation deemed relevant; (ii) remove such documentation; and (iii) question any persons present on matters relevant to the inspection. If a person or organization has contravened the Act, they may be required to comply with the Act within specified timeframes, assigned monetary penalties and/or prosecuted through the courts. Monetary penalties can be levied on a daily basis to a maximum of $100,000.00 for a corporation and $50,000.00 for an individual or unincorporated association.
Enforcement
2 | STIKEMAN ELLIOTT LLP: ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT, 2005
The Licence Appeal Tribunal will hear appeals from organizations on compliance matters. The Tribunal will not hear complaints from individuals. A person who feels that their human rights have not been met will still need to direct their complaints to the Human Rights Tribunal of Ontario.
Accessibility for Ontarians with Disabilities Act, 2005 | FAQ

Q. What is the AODA? A. The Accessibility for Ontarians with Disabilities Act, 2005
(the AODA) lays the framework for the development of province-wide mandatory standards on accessibility. The AODA contains the following accessibility standards, which are the rules that businesses and organizations in Ontario will have to follow to identify, remove and prevent barriers to accessibility: customer service standard; integrated standard (encompasses employment, information and communications, and transportation); and built environment standard.
are responsible for ensuring that the services provided by non-employees on their behalf follow the rules of the standard and that the individuals are trained. The customer service standard does not set a date on which the organization must count its employees. However, the organizations obligations under the standard will change as the number of its employees changes.
Q. What is required under the customer service standard? A. The customer service standard requires employers to: (i)
Q. To whom do the standards apply? A. The standards apply to all organizations (public, private
Q. What does it mean to provide goods, services or facilities to the public? A. If your organization provides goods, services or facilities
and non-profit) that provide goods, services or facilities either directly to the public, other organizations or third parties in Ontario and have one or more employees in Ontario.
Q. What does it mean to provide goods or services to other organizations or third parties? A. The customer service standard applies to persons or
that members of the public are allowed to purchase or use, you are captured under the customer service standard.
establish policies, practices and procedures on providing goods or services to people with disabilities; (ii) train staff, volunteers, contractors and any other people that interact with the public or third parties, or are involved in developing the organizations policies, practices and procedures on the provision of goods or services on a number of required topics; (iii) allow persons to be accompanied by service animals or support persons when present on certain of the organizations premises; (iv) provide notice when facilities or services utilized by persons with disabilities are temporarily disrupted; and (v) establish a feedback process. Organizations with 20 or more employees must also: (i) document and make available in writing their accessible customer service policies, practices and procedures; (ii) provide such documentation in a format that takes into account a persons disability, if applicable; and (iii) file an annual online accessibility report with the Accessibility Directorate of Ontario. provided internally within an organization (for example, services to employees or an in-house legal branch of a corporation). It addresses only those provided externally to the public or other third parties. When a person is both an employee and a customer, an organization must comply with the customer service standard in its role as a goods or services provider, not in its role as an employer.
Q. How are employees counted? A. All full-time, part-time, seasonal and contract employees,
organizations that make goods or services available to third parties, such as other businesses, the government or other organizations. This includes consultants, manufacturers and wholesalers as well as providers of other business and professional services. Under the customer service standard, providers of goods or services to third parties must comply with the same requirements as providers who serve the public. regardless of status, must be counted when determining the number of employees an organization has. Volunteers and independent contractors are not included; however organizations captured by the customer service standard
Q. Does the customer service standard apply within an organization? A. The customer service standard does not apply to services
STIKEMAN ELLIOTT LLP: ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT, 2005 | 3
A. If an organization is captured by the customer service standard, it must Q. What if another company provides some of my services?
A. Of the standards, only the customer service and integrated standards have Q. What are the deadlines for compliance?
Customer service standard:
ensure that those organizations that it has contracted with to provide services on its behalf are compliant with the customer service standards requirements, regardless of where the organizations may be geographically located. become law. The built environment standard, which will help remove barriers in buildings and outdoor spaces for people with disabilities, has not yet come into force. Designated public sector organizations had to meet the requirements of the customer service standard by January 1, 2010. All remaining organizations that provide goods or services either directly to the public, to other organizations or third parties in Ontario and that have one or more employees in Ontario must follow suit by January 1, 2012.
For further information, please contact your Stikeman Elliott lawyer or any of the following: Lorna Cuthbert lcuthbert@stikeman.com (416) 869-5237 Bruce R. Pollock bpollock@stikeman.com (416) 869-5566 Nancy Ramalho nramalho@stikeman.com (416) 869-5683 Kathleen Chevalier kchevalier@stikeman.com (416) 869-6851
Integrated standard:
By January 1, 2012 employers must provide individualized workplace emergency response information to disabled employees if: (i) the employer is aware of the need for accommodation; and (ii) it is required based on the employees disability. With the exception of the obligations relating to workplace emergency response information, private organizations with 50 or more employees must be in compliance with the employment obligations by January 1, 2016 and organizations with less than 50 employees must be in compliance by January 1, 2017. inspectors to determine whether organizations are compliant with the AODA and its various regulations. If a person or organization has contravened the AODA, they may be required to comply within specified timeframes, assigned monetary penalties and/or prosecuted through the courts.
A. The AODA grants the Deputy Minister power to appoint one or more Q. How will the AODA be enforced?
Monetary penalties can be levied on a daily basis to a maximum of $100,000.00 for a corporation and $50,000.00 for an individual or unincorporated association. The Licence Appeal Tribunal will hear appeals from organizations on compliance matters. The Tribunal will not hear complaints from individuals. A person who feels that their human rights have not been met will still need to direct their complaint to the Human Rights Tribunal of Ontario.
STIKEMAN ELLIOTT LLP | www.stikeman.com This publication provides general commentary only and is not intended as legal advice.
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CANADIAN EMPLOYMENT, LABOUR AND PENSION LAW
FAQ
Navigating through Canadian employment and pension issues can be difficult. Stikeman Elliotts National Employment, Labour and Pension Group has developed a solid reputation for guiding firms through this landscape. Based on our experience, the following is a brief outline of some of the significant issues that corporations might want to consider when entering the Canadian labour market.
Q: Does Canadian law recognize

at-will employment?
A:
No. There is no concept of at-will employment in Canada as that term is understood in the United States. Canadian employees who are terminated without just cause are entitled to notice of termination or pay in lieu of notice in accordance with applicable employment standards legislation. Ontario and federal legislation also provide for a statutory severance pay scheme. Non-unionized employees are also entitled to reasonable notice of termination under common law (or pursuant to Quebecs Civil Code). The common law obligation of reasonable notice can be quite onerous: in most provinces, it can require up to 24 months of compensation. Employees often have an expectation that they are entitled to one (1) months compensation per year of service although this is not a rule of law. A written contract can limit an employers common law obligation to provide reasonable notice or pay in lieu thereof, provided that it complies with the minimum requirements set out in the relevant employment standards legislation. In Quebec, this will not be sufficient and the parties may not contract out of the obligation to provide reasonable notice.
Q: Can we impose mandatory A:
drug testing on our Canadian employees?
Random drug or alcohol testing is only permissible in exceptional cases. Other types of testing, such as pre-employment or postaccident testing, are permitted in safetysensitive positions in some jurisdictions. The Alberta Court of Appeal recently upheld mandatory pre-employment drug testing for applicants and new hires in safetysensitive positions in the oil sands industry. The Quebec Court of Appeal recently struck out a provision for random drug testing in safety-sensitive positions in a tire manufacturing plant. Even to the extent that it is possible to impose pre-employment and post-accident alcohol and drug testing policies in the Canadian workplace, employers must be aware of the impact of human rights and privacy legislation in the province in which they wish to impose such testing. Alcohol and drug dependence and perceived dependence fall within the definitions of handicap and disability in such legislation, with the result that there is generally a requirement to show that an employer policy (such as testing for alcohol or drugs) is a bona fide occupational requirement. Given the legal test required, this can often be difficult to achieve.
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Q: How do I deal with a disabled

employee.
A:
Q: What is the equivalent of a 401(k)

plan in Canada and should we establish one?
Under the Canadian Human Rights legislation, every person has the right to be free from discrimination due to disability or perceived disability. Persons with disabilities have the right to equal treatment, which includes the right to an accessible workplace. Employers have a duty to accommodate the disabled employee up to the point of undue hardship. Such a determination involves a case- by case analysis that must consider the following factors: (i) financial cost; (ii) safety risks; and, (iii) outside sources of funding, if any. Employers might be able to dismiss an employee for frustration of the employment relationship, but in all cases, they should exercise caution before terminating a disabled employee because of the sympathy that courts will show in this type of situation. Employers looking to establish a 401(k)-like plan for their Canadian employees generally choose to implement a group registered retirement savings plan (RRSP). Although the tax and legal implications vary somewhat among the different Canadian defined contribution arrangements, an RRSP is a common choice for small groups of employees because it is relatively simple to administer. For larger groups of employees, other more tax-efficient options may make more sense. Our pensions and benefits specialists would be pleased to discuss all of your options to help you find the right plan for your organization.
Q: Do Canadian jurisdictions recognize A:
and Quebec and applies to the collection, use and disclosure of personal information (including employee information) for provincially governed employers operating in those provinces. Whether a Canadian organization can send employees personal information to a U.S.-based head office must be reviewed with reference to the legislation in force in the province in which the organization carries on business (as well as that of the province from which the information is being transferred, if it is not the same province).
the concept of exempt/non-exempt employees?
A:
Q: Can I enrol my Canadian employees

in my US-based incentive plan?
The employment standards legislation of each of the provinces (as well as the federal legislation that governs employers whose business is considered to be a federal work or undertaking) contains provisions that specifically set out which occupations are exempt from overtime pay. The categories of exempt employees tend to be narrower in Canada than in the United States. Accordingly, U.S. employers should be careful not to characterize like positions in Canada as being exempt without first seeking assurance that these positions are indeed exempt from overtime pay. This is especially so given the recent high-profile class action suits initiated in Canada with respect to unpaid overtime. An incentive plan designed to comply with US tax and employment law may not be appropriate for Canadian employees. Certain features common in US plans may result in adverse tax consequences for Canadian employees. For example, a bonus that is not fully payable before the end of the third year following the year in which it was earned (for any reason, including 409A compliance) may be taxable in the year of grant as opposed to the year of payment. Care should be taken in adapting US and other foreign-based plans for a Canadian workforce so as to maximize Canadian tax efficiency and comply with Canadian employment rules.
A:
Q: Can my Canadian organization send

employee information to our head office outside of Canada? A:
Employers should be aware of the Personal Information Protection and Electronic Documents Act (PIPEDA), which is intended to address concerns about the collection of personal information. Interestingly, while PIPEDA applies to all information collected in the course of commercial activities, it does not apply to employee information of a provincially regulated employer (most employers are provincially regulated). Privacy legislation has been introduced in Alberta, British Columbia,
2 | STIKEMAN ELLIOTT LLP: EMPLOYMENT, LABOUR & PENSION GROUP
Q: My Canadian plant has received an A:
application for union certification what do I need to know?
Q: What are the leave entitlements for

pregnant employees? A:
Q: Is there a faster and more costA:
Although the process for union certification differs slightly by province, typically a union must establish a minimum level of employee support through signed membership cards. In most Canadian jurisdictions, a vote is held to determine whether the required level of union support for certification exists although automatic certification can be obtained in certain circumstances. Canadian labour laws restrict the employers right to unduly influence the certification process and, accordingly, only certain types of information can be communicated to employees during the certification process. In some provinces, if an employer is found to have committed an unfair labour practice preventing the union from obtaining the required support, the applicable labour board may automatically certify the union as the bargaining agent of the employees in question. The time limits for an employers response are very short, so you should act immediately upon receipt of an application for certification.
Although particular leave entitlements differ by province, most Canadian employees who have been employed by their employer for a minimum specified period of time are entitled to take jobprotected unpaid maternity and/or parental leave. Where both maternity and parental leave are taken, the maximum combined leave is 52 to 54 weeks (parental leave taken individually generally runs 15 to 17 weeks). In Quebec, such leaves can total up to 70 weeks. Parental leave provisions apply to both natural and adoptive parents, although specific allowances differ by jurisdiction. The employer must return the employee to employment following the leave and most jurisdictions require that it be to the job held before the leave commenced or to a comparable position if the job no longer exists. Employers may face liability under statute and for claims of wrongful dismissal if they do not comply with these requirements.
effective way to litigate civil claims?
Recently, Rule 76 of Ontarios Rules of Civil Procedure, the Simplified Procedure rule was amended. The amendments increased the monetary threshold from $50,000 to $100,000, thereby increasing the likelihood of certain employment litigation matters being governed by Simplified Procedure. The Simplified Procedure process essentially reduces the cost of litigating relatively modest claims by eliminating certain costly procedural elements, such as an extensive discovery process, and by providing for mandatory mediation in Toronto, Ottawa and Windsor, as well as shortened deadlines. Similarly, Quebecs civil procedure has been revised and provides for expedited process for certain types of claims.
For further information, please contact your Stikeman Elliott lawyer or any of the following:
TORONTO
Lorna Cuthbert lcuthbert@stikeman.com (416) 869-5237 Andrea Boctor aboctor@stikeman.com (416) 869-5245
MONTRAL
Hlne Bussires hbussieres@stikeman.com (514) 397-3376 Michel Legendre mlegendre@stikeman.com (514) 397-3309
CALGARY/VANCOUVER
Gary Clarke gclarke@stikeman.com (403) 266-9001 (604) 631-1455
STIKEMAN ELLIOTT LLP: EMPLOYMENT, LABOUR & PENSION GROUP | 3
With a full service practice that dates back more than 40 years, the Employment, Labour and Pension Group at Stikeman Elliott advises on all facets of the employment relationship and pension issues. Although members of the group have wide-ranging employment, labour and pension law experience, each has developed expertise in particular areas. This approach ensures that we can provide advice to our national and international clients in a timely, cost-effective and efficient manner. The Group draws upon expertise from the Corporate, Litigation and Taxation Groups of the firm, providing a flexible and multi-disciplinary solutions tailored to the specific needs of our clients. The Group has been recognized as a leader in the Canadian marketplace by Chambers Global 2010 Guide to the Leading Lawyers for Business.
About Stikeman Elliott
Stikeman Elliotts unsurpassed experience in complex cross-border transactions has made us Canadian counsel of choice to leading U.S. investors, financial institutions and corporations.
For further information please contact your Stikeman Elliott lawyer or any of the Managing Partners or Principals listed below:
MONTRAL
1155 Ren-Lvesque Blvd. West, 40th Floor, Montral, QC, Canada H3B 3V2 Tel: (514) 397-3000 Fax: (514) 397-3222 Contact: Andr J. Roy aroy@stikeman.com
TORONTO
5300 Commerce Court West, 199 Bay Street, Toronto, ON, Canada M5L 1B9 Tel: (416) 869-5500 Fax: (416) 947-0866 Contact: Roderick F. Barrett rbarrett@stikeman.com
OTTAWA
Suite 1600, 50 OConnor Street, Ottawa, ON, Canada K1P 6L2 Tel: (613) 234-4555 Fax: (613) 230-8877 Contact: Stuart McCormack smccormack@stikeman.com
CALGARY
4300 Bankers Hall West, 888 - 3rd Street S.W., Calgary, AB, Canada T2P 5C5 Tel: (403) 266-9000 Fax: (403) 266-9034 Contact: G. Frederick Erickson ferickson@stikeman.com
VANCOUVER
Suite 1700, Park Place, 666 Burrard Street, Vancouver, BC, Canada V6C 2X8 Tel: (604) 631-1300 Fax: (604) 681-1825 Contact: Ross A. MacDonald rmacdonald@stikeman.com
NEW YORK
445 Park Avenue, 7th Floor, New York, NY 10022 Tel: (212) 371-8855 Fax: (212) 371-7087 Contact: Kenneth G. Ottenbreit kottenbreit@stikeman.com
LONDON
Dauntsey House, 4B Fredericks Place, London EC2R 8AB England Tel: 44 20 7367 0150 Fax: 44 20 7367 0160 Contact: Derek N. Lin eld dlin eld@stikeman.com
SYDNEY
Level 12, The Chi ey Tower, 2 Chi ey Square, Sydney N.S.W. 2000 Australia Tel: (61-2) 9232 7199 Fax: (61-2) 9232 6908 Contact: Brian G. Hansen bhansen@stikeman.com
www.stikeman.com
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This publication provides general commentary only and is not intended as legal advice.
ACCESSIBILITY STANDARDS FOR CUSTOMER SERVICE: COMPLIANCE CHECKLIST
Establish policies, practices and procedures which:
Are consistent with the principles of dignity, independence, integration and equality of opportunity
Set out the organizations commitment to providing goods or services to people with disabilities Discuss the use of assistive devices by people with disabilities, as well as any assistive devices provided by the organization Allow the entry of service animals to those parts of the organization that are open to the public Welcome support persons, and set out the admission fee for support persons, if applicable Provide public notification when there is a temporary disruption to accessible services, which sets out accessible alternatives as well as the length of the disruption
Develop a training program for those that interact with the public or other third parties on the organizations behalf, or who develop the organizations policies or procedures, which:
Discusses the AODA and its requirements
Reviews the organizations policies, practices and procedures governing the provisions of goods or services to those with disabilities
Sets out how to interact and communicate with those with various types of disabilities, as well as those who use an assistive device, service animal or support person Provides instruction on how to use equipment or assistive devices provided by the organization, as well as how to assist a person who is experiencing difficulty accessing the organizations goods or services
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Establish a feedback process that is readily available to the public which:
Allows people to provide feedback regarding the organizations provision of goods and services to persons with disabilities
For further information, please contact your Stikeman Elliott lawyer or any of the following: Lorna Cuthbert lcuthbert@stikeman.com (416) 869-5237 Bruce R. Pollock bpollock@stikeman.com (416) 869-5566 Nancy Ramalho nramalho@stikeman.com (416) 869-5683 Kathleen Chevalier kchevalier@stikeman.com (416) 869-6851
Can be accessed in a variety of formats, including: in person, by telephone, in writing, by email, online, on disc or by another method
Specifies the actions that the organization will take when a complaint is received Discuss the organizations customer service polices, practices and procedures regarding the provision of goods or services to those with disabilities, with particular reference to the use of personal assistive devices, as well as those personal assistive devices provided by the organization Describe the policies, practices and procedures regarding the entry of service animals and support persons Set out the organizations policy on providing accessible customer service training Review the steps that will be taken in connection with a temporary disruption to the facilities or services used by persons with disabilities Describe the organizations process for receiving and responding to feedback regarding its provision of goods or services to those with disabilities
Prepare one or more documents which:*
3 3 3
Notify the public that the documents required under the standard are available upon request by posting the notice in a conspicuous place on the premises, or on the organizations website.* Provide the required documents upon request, and when providing documents to a person with a disability, do so in a format that takes into account the particular disability.* Maintain the policies annually.
* Applicable only to those organizations with 20 or more employees and public sector organizations.
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HOME > EMPLOYMENT > SOME HOPE FOR EMPLOYERS DEALING WITH EMPLOYEES ON LONG-TERM DISABILITY LEAVE >
Employment Employment Standards Human Rights Labour Pensions Termination Archives
Some hope for employers dealing with employees on long-term disability leave
POSTED ON JANUARY 20, 2011
Randall Boessenkool The Ontario courts have released another interesting decision regarding the contractual concept of frustration as it applies to the termination of employees receiving long term disability benefits (see our October 27, 2010 post Further frustration for employers dealing with employees on long term disability). In Duong v. Linamar Corp., released on June 2, 2010, Justice Newbould dismissed the wrongful dismissal claim of Mr. Hoa Duong, a former employee of Linamar Corp. who was dismissed following nearly three years on long-term disability leave.
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The Court found that the parties did not agree that the contractual relationship would continue indefinitely in spite of the employee being unable to work. In line with the concept of frustration, Justice Newbould concluded that if the company continued to employ Mr. Duong, it would be required to something radically different from that which was undertaken in the contract of employment. Mr. Duongs Disability Mr. Duong commenced employment with Eston Manufacturing (Eston), a division of the Defendant Linamar Corp, in April of 1998. Mr Doung was employed as a machine operator. In October 2005, Mr. Duong reported to his supervisor that he was experiencing back pain after reaching for parts in a box. Several attempts in the following weeks to return Mr. Duong to work failed after he complained of pain and refused modified duties. Mr. Duong returned to work in mid December though he left shortly after due to persistent pain. He did not return to work again. As an employee, Mr. Duong was entitled to a group benefit program provided by Co-operators Life Insurance Company (Co-operators). This plan provided for short term disability benefits followed by long-term benefits if Mr. Duong was deemed, totally disabled. Mr. Duong was approved for long term disability benefits in May, 2006. He was later informed that these benefits were to continue until he reached the age of 65 as long as he complied with treatment and medical evidence continued to support that he was totally disabled. Co-operators required employees to participate in a rehabilitation program under this policy and Mr. Duong participated in such a program. In August, 2008, Eston asked Mr. Duong to provide medical documentation regarding his prognosis. In response, Mr. Duong provided a letter from the administrator of the rehabilitation program which stated that with comprehensive treatment there was a good likelihood that he could return to work. He also provided two further letters from a physician stating that Mr. Duongs prognosis was poor and that he was not then capable of returning to work. Eston then received a letter from Co-operators in early October 2008, stating that Mr. Duongs long term disability benefits had been terminated as a result of his lack of participation in the rehabilitation program. Shortly thereafter, Mr. Duong approached Estons human resources manager regarding the termination of his benefits. Mr. Duong was told that he would be given assistance if he chose to appeal the termination, but that Eston could not appeal on his behalf. However, no appeal was initiated by Mr. Duong. Mr. Duongs Termination From November 2006 until September 2008, Eston had received reports from Mr. Duongs physician on at least a monthly basis which consistently stated that Mr. Duongs condition had not improved. After Eston learned of the termination of Mr. Duongs long term benefits, Estons HR manager informed Mr. Duong that he could still provide Eston with medical documentation if his situation changed and he could return to work. No further documentation was provided, and on February 25 2009, Eston terminated Mr. Duong. The
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Arbitrator's decision sheds light on responding to workplace threats under Bill 168 Must terminated employees mitigate losses despite lack of express mitigation language in their employment agreement? Ontario court says "yes" Breach of Bank's privacy policy by an employee results in damage award under PIPEDA The Court of Appeal confirms the test applicable to the concept of ''principal contractor'' as defined by the Act Respecting Occupational Health and Safety La Cour d'appel confirme les critres applicables la notion de matre d'uvre au sens de la Loi sur la sant et la scurit du travail (LSST)
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termination letter stated that Mr. Duong had not been able to work since December 2005 and there was no foreseeable date that he would able to return to work. Following his termination, Mr. Duong sued Linamar Corp. for wrongful dismissal, including damage claims for aggravated and punitive damages. Trial Decision: Justice Newbould ultimately held that Eston was entitled to terminate Mr. Duongs employment for frustration. He noted that Mr. Duong had not worked since October 2005 and that Mr. Duongs physicians reports repeatedly stated that there had been no improvements in his condition. While the administrator of the rehabilitation program had said that there was good likelihood that Mr. Duong could return to work, Justice Newbould noted that after his benefits were terminated, Mr. Duong did not appeal the termination, which was an indication that he knew he had not participated as required. The failure to appeal the termination of benefits also supported the position that there was no reasonably foreseeable date for Mr. Duongs return to work. Even if Mr. Duong had continued to participate in the rehabilitation program, there was no evidence provided to Eston or the court indicating that Mr. Duong could return to work in the foreseeable future. In fact, Mr. Duongs counsel agreed that the effect of Mr. Duongs statement of claim was that Mr. Duong was alleged to be permanently disabled. Mr. Duongs counsel argued that the availability of a long term disability plan as part of the employment terms meant that Eston could not rely on frustration against a permanently disabled employee. However, Justice Newbould did not accept this broad statement and held that the parties did not agree that the contractual relationship would continue indefinitely in spite of the employee being unable to work. In line with the concept of frustration, Justice Newbould stated that, to have required Eston to continue to employ Mr. Duong in all of the circumstances would have required Eston to do something radically different from that which was undertaken in the contract of employment. Summary judgement was granted, and the action against Eston was dismissed. Our Views: As opposed to the previously discussed case of Naccarato, Duong presents an example where an Ontario court was willing to find an employment contract to be frustrated in a similar fact situation. Interestingly, Naccarato was heard three weeks prior to Duong, but the decision was released two weeks after, and neither case references the other. Justice Newbould upheld a lower threshold of what constitutes frustration than did Justice Pollack in Naccarato, as Mr. Duong had been off work for approximately three years as opposed to the five years Mr. Naccarato was away from work. However, this decision is arguably in line with Naccarato. Specifically, Mr. Duongs disability met the standard set out in Naccarato that the disability must be so substantial that an objective assessment of it lead[s] to the conclusion that the contract of employment was frustrated, thereby justifying its termination. Mr. Duongs physician reports consistently stated there was no improvement in his condition, and it was agreed by the parties that Mr. Duong was permanently disabled. This distinguishes these facts from Naccarato, where Costco did not provide evidence that there was no reasonable likelihood that Mr. Naccarato would not be able to return to work in the reasonably foreseeable future. It is our view that employers should continue to tread lightly in this as yet unclarified area of the law. We will continue to update this important area of the law as further cases are decided stay tuned!
TAGS: Damages, Disability
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HOME > HUMAN RIGHTS > ONTARIO COURT UNSYMPATHETIC TO EMPLOYER WRONGFULLY CLAIMING CONTRACT WAS FRUSTRATED AND AWARDS SIGNIFICANT DAMAGES TO TERMINATED EMPLOYEE >
Ontario Court unsympathetic to employer wrongfully claiming contract was frustrated and awards significant damages to terminated employee
POSTED ON MAY 15, 2011
Randall Boessenkool In the Ontario Superior Court of Justice case of Altman v. Steves Music Store, the court awarded substantial damages to an employee who filed a claim for wrongful dismissal after she was terminated while recovering from lung cancer. The Court soundly rejected them employers claim that the employment contract had been frustrated, and went on to award significant moral and punitive damages due to the inappropriate conduct in terminating an employee suffering with a disability.
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The employee, Ms. Altman, had been an employee of Steves Music Store for over 30 years, having been hired in October, 1978. During her years at Steves, Ms. Altman worked her way up to the position of Store Manager, a position she held from 1998 until her termination. In 2007, Ms. Altman was diagnosed with lung cancer. She underwent surgery in February 2008, and chemotherapy treatments which were completed on September 17, 2008. Following surgery in February, Ms. Altman was off work for one month, and between March and October 15, 2008, Ms. Altman worked reduced hours. She worked as much as she could; given the amount of time she had to take off for treatment and the physical effects of the treatment. Steves was aware of Ms. Altmans illness, the treatments she was receiving and the reduced hours she was working. Steves was supportive of her and continued to pay Ms. Altman her regular salary. No one at Steve's told Ms. Altman that she was being remiss in her duties or that her absences were putting her job at risk. However, on October 15, 2008, Steves sent Ms. Altman a letter by bailiff from their legal counsel, indicating that unless Ms. Altman began working regular hours Steves would have no alternative but to terminate her employment. The letter came as a complete shock to Ms. Altman, and out of fear of losing her job, she attended work on October 16, 2008. However, that was the last day she worked for Steves, as she began a three-month medical leave of absence that was ultimately extended until April 2009. Ms. Altman was cleared to return to work on April 8, 2009, and indicated to Steves by letter dated April 1, 2009 that she would be returning on that date. However, Ms. Altman fractured her back and was forced to put off her return to work until April 20, 2009. Before she was able to return to work, Steves sent Ms. Altman another letter by bailiff which stated that her employment was terminated as of April 7, 2008. Steves did not pay Ms. Altman her statutory minimum termination pay, and in fact withheld both accrued wages and accrued vacation pay to compensate for time Ms. Altman was absent from work. The Courts Decision: Steves argued that the Ms. Altmans employment contract had been frustrated due to her illness. In his decision, Justice Corrick undertook a review of the law, and summarized frustration as follows: To determine if a contract has been frustrated, regard must be had to the relationship of the term of the incapacity or absence from work to the duration of the contract, and to the nature of the services to be performed. Steve's argued that it terminated Ms. Altman's employment because her illness was permanent in the sense that she was no longer able to perform her duties at work. However, Justice Corrick found that the contract was not frustrated. In particular, Justice Corrick found that Steves had not established that on April 7, 2009 Ms. Altmans illness was of such a nature that she was unable to perform the duties of her job. The decision was based on the following factors: there was undisputed evidence from Ms. Altmans treating physicians that she was able to work on April 7, 2009; Steves never complained of Ms. Altmans quality of work, or advised that she was not performing her duties as required; the October 15, 2008 letter only
commented with respect to the number of hours Ms. Altman was working and not her ability to complete her duties; the April 7, 2009 termination letter was in response to Ms. Altmans April 1, 2009 letter wherein she indicated that she was able to return to work; and, Steves terminated Ms. Altman without inquiring about her ability to fulfill her employment duties. After finding that the defence of frustration was unavailable to Steves, Justice Corrick found that the period reasonable notice was 22 months, citing factors such as Ms. Altmans age (58 years old), service (over 30 years), character of employment (Store Manager and a member of the Steves family) and availability of similar employment (clearly limited by her illness, but unlikely to find a similar position in any event). Steves claimed that the disability payments which Ms. Altman received should be deducted from any award of damages. However, the court found that disability benefits were not deductible from the damage award since Ms. Altman paid some, if not all of the premiums for the long-term disability insurance; the benefits were paid by the provider and not Steves; Ms. Altman received no disability payments until December 2009 - more than one year from the date she took her medical leave - due to Steve's failure to complete the policyholder's portion of the claim form; and Steve's terminated Ms. Altman while on medical leave, but before she had received any disability payment. Additionally, Ms. Altman claimed damages resulting from the failure of Steves to act in good faith in the manner of her termination. Notwithstanding the apparent limiting of such damages in recent Supreme Court of Canada decisions, Justice Corrick found that Steves treatment of Ms. Altman was callous and insensitive and that she deserved to be treated better than twice having a bailiff deliver her a letter replete with mistruths from Steve's lawyers - especially when Steve's knew she was recovering from cancer treatment. Ms. Altman was awarded $35,000 in moral damages as a result of Steve's breach of its duty to deal with Ms. Altman in good faith and with fairness in the manner in which they terminated her employment. Further, Ms. Altman claimed punitive damages, which Justice Corrick stated are restricted to advertent wrongful acts that are so malicious and outrageous that they are deserving of punishment on their own. In these circumstances, Steves conduct was found to be egregious enough to justify an award of $20,000 for punitive damages. Our Views: This case should serve as a warning to employers. Notwithstanding the egregious conduct of Steves in dealing with Ms. Altman, employers should take note that the standard which the Court has set for frustration of contract is quite high, and employers with employees on long-term leave will have to tread carefully before claiming that an employment contract has been frustrated. The decision also reiterates that the Court has a lack of tolerance towards employers who mistreat employees, especially one who is already in an unfortunate situation due to an illness or recent disability. If you have any questions regarding the obligations owing in regards to the termination of a specific employee, you should consult with legal counsel.
TAGS: Damages, Disability, discrimination , Reasonable Notice
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HOME > TERMINATION > EMPLOYER LIABLE FOR LONG-TERM DISABILITY COVERAGE DURING THE COMMON LAW NOTICE PERIOD >
Employer liable for long-term disability coverage during the common law notice period
POSTED ON JUNE 09, 2011
Kelly OFerrall In Brito v. Canac Kitchens, the Ontario Superior Court awarded substantial damages against the employer for wrongful dismissal, including damages for lost disability benefits, payment in lieu of a 22-month notice period and $15,000 in punitive damages due to the employers hardball approach to the termination of a long-service employee. The case should serve as a warning to employers who provide only the statutory minimum amount of notice to employees upon termination without cause and plan to negotiate and/or litigate additional entitlements at a later date. Facts
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The employee, Luis Romero Olguin, had worked for Canac Kitchens for 22 years. He was 55 years old at the time he was terminated without cause as a result of a restructuring. Upon termination he was given the statutory minimum amount of 8 weeks pay in lieu of notice, plus benefits for the same period. While Mr. Olguin found a new job less than a month later, it was lower -paying and did not offer disability benefits. Approximately four months after Mr. Olguin was terminated, he began treatment for cancer, rendering him totally disabled and unable to work. He brought an action for wrongful dismissal, including a claim for damages in lieu of disability benefits. Decision Mr. Olguin was awarded a 22-month notice period and Canac was ordered to pay damages in lieu of shortterm and long-term disability benefits, including the present value of the remainder of his long-term disability entitlements to his 65 th birthday. In coming to this decision, Justice Echlin observed (at para. 13):
Canac consciously chose not to make alternative arrangements to provide its loyal, longservice employee with replacement disability coverage. Rather, it chose to go the "bare minimum" route. It provided only the statutory minimums in pay and benefits and then gambled that he would get another job and stay well. When it lost that gamble, it chose to litigate this matter for over five years. When confronted with its potential significant exposure, it raised the argument that Mr. Luis Romero Olguin failed to mitigate his potential damages by purchasing a replacement disability policy.
Canac failed to establish the plaintiffs failure to mitigate damages, and Justice Echlin found that insufficient evidence had been led to show that comparable replacement coverage would have been available.
In addition to the award for disability benefits, which was in excess of $200,000, Justice Echlin awarded the plaintiff $15,000 in punitive damages, having regard for Canacs cavalier, harsh, malicious, reckless, outrageous and high-handed treatment of the plaintiff and their hardball approach. Our Views This case should serve as a reminder to employers that courts will ensure that employees who are dismissed without cause are made whole and will not be limited to statutory minimums when doing so. In addition, Brito v. Canac Kitchens makes clear that courts will extend liability to forms of compensation outside the ambit of traditional remuneration, including disability benefits. Prudent employers should take proactive steps to mitigate these sources of liability by, for example, advising employees of replacement disability coverage,
extending disability benefits to terminated employees where possible, offering realistic rather than base minimum separate packages or entering into employment agreements with employees which clearly outline employees post-termination entitlements. This decision is also relevant for employers who choose to frequently litigate employment matters before the courts. It appears from the reasons that Canacs continued strategy of exposing terminated employees to extended litigation impacted the Judges decision in this case.
TAGS: Damages, Reasonable Notice
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HOME > EMPLOYMENT > TRYING TO LIMIT YOUR EMPLOYEES FROM POST-EMPLOYMENT ACTIVITIES? YOUR RESTRICTIVE COVENANT BETTER BE SPECIFIC, SAYS ONTARIO COURT OF APPEAL >
Trying to limit your employees from post-employment activities? Your restrictive covenant better be specific, says Ontario Court of Appeal
Randall Boessenkool -
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The Ontario Court of Appeal has recently reviewed the state of the law regarding Share Link restrictive covenants that impose limits on the activities of departed employees, and taken a conservative approach to their enforceability. In its decision in Mason v. Email This Chem-Trend Limited Partnership, the Court held that a restrictive covenant Print signed by an employee was unenforceable. In the midst of ongoing wrongful dismissal litigation, the employee brought a separate application to the court to determine whether and to what extent he was free to compete with his former employer. After being unsuccessful at first instance, the Court of Appeal allowed the employees appeal. In its decision, the Appeal court found the restrictive covenants to be overly broad and ambiguous, and therefore unenforceable against the former employee. This decision is in line with recent Canadian decisions which have limited the application of restrictive covenants in the employment context. Facts: The employee, Tom Mason, was a 17 year employee of Chem-Trend Limited Partnership. Chem-Trend is a Michigan corporation in the business of formulating, manufacturing and selling release agents and related processing chemicals for use in the general rubber, tire, polyurethane, composites, thermoplastics and die casting industries for customers that operate around the world. At the time he was hired in 1992, Mason was required to sign Chem-Trends Confidential Information Guide and Agreement (CIGA). CIGA contained a restrictive covenant which stated that the employee could not, for a period of one year following the termination of their employment
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engage in any business or activity in competition with the Company by providing services or products to, or soliciting business from, any business entity which was a customer of the Company during the period in which I was an employee of the Company
Over his 17 year career at Chem-Trend, Mason was engaged in various positions in the United States and Canada as a technical sales representative. In this position, Mason acquired in-depth knowledge of the business of Chem-Trend, including proprietary and confidential information. IT was accepted that ChemTrends operations were extremely guarded and protected.
Although the one-year period referred to in CIGA had expired at the time of this litigation, the parties were engaged in ongoing litigation in Ontario and Michigan regarding the post-employment activities of Mason. Chem-Trend claimed that Mason breached the non-competition provisions of CIGA, while Mason maintained that the provisions of CIGA were unenforceable as being overly vague and ambiguous. Decision of the Application Judge The application judge followed the Supreme Court of Canadas decision in J.G. Collins Insurance Agencies Ltd. v. Elsley Estate, and found that the provisions found in CIGA were enforceable. Specifically, the applications judge found that (i) the wording used in CIGA was not ambiguous and Mason understood what he was agreeing to when he signed; (ii) the geographic scope, although nearly unlimited, was reasonable due to the worldwide nature of Chem-Trends business and its customers, and that the nearly full restriction on the activities of Mason were reasonable due to the Masons access to information and technical knowledge about
the industry; and (iii) that the one year temporal restriction was relatively short compared to other cases and balanced out the more onerous geographic and activity restrictions. Decision of the Court of Appeal The Court of Appeal overruled the application judges finding that the restrictive covenant in CIGA was reasonable. The Court of Appeal looked to the recent Supreme Court of Canada decision of Shafron v. KRG Insurance Brokers, where the Court held that
although covenants in restraint of trade are contrary to the public policy in favour of trade, certain of such covenants will be upheld if they are found to be reasonable in the circumstances. Where the covenant is found in an employment contract it will be subjected to stricter scrutiny than where it is part of the consideration for the sale of a business.
Applying Shafron to the facts at hand, the Court found several issues with the reasonableness of the restrictive covenant in the CIGA: When examined as a whole, there were other provisions in CIGA that would protect Chem-Trend, particularly a covenant that protected trade secrets and confidential information.
The prohibition of dealing with businesses who may be former customers was overly broad when considering Masons 17-year tenure at Chem-Trend. The Court found a logical disconnect between a one-year restriction on competition which barred Mason from contacting any former employee from his 17-year tenure. Mason was a part of the technical sales force of a large company, who operated in a limited sales territory. He was not of the category of employee (such as CEO or President) whose position would justify a broader prohibition on competition post-employment. It was not possible for Mason to know which potential customers he was prohibited from doing business with. Given the restriction was with all customers of a company with world-wide operations, there was no way for Mason to obtain a list of the companys customers. Chem-Trends proposed solution that Mason could contact the company to enquire about individual customers and receive Chem-Trends permission to deal with future customers was neither practical nor contemplated in CIGA. In summary, the Court of Appeal stated that
[a]fter conducting the balancing process between the rights of the respondent to protect its trade secrets and customer information, and the public interest in free and open competition, in the context of the agreement as a whole and the role of the appellant in the company as a salesman, I conclude that the complete prohibition on competition for one year is overly broad as well as unworkable in practice and makes the restrictive covenant unreasonable and unenforceable.
The appeal was allowed and a declaration was granted that the restrictive covenant found in CIGA was unreasonable and thus unenforceable against Mason. Our Views:
This case sets a standard for the enforceability of restrictive covenants in Ontario. The Ontario Court of Appeal provided the following summary of the governing principles when considering whether a restrictive covenant in a contract of employment is unreasonable and therefore unenforceable. When drafting such covenants, employers should be aware of the following principles: To be enforceable, the covenant must be reasonable between the parties and with reference to the public interest. The balance is between the public interest in maintaining open competition and discouraging restraints on trade on the one hand, and on the other hand, the right of an employer to the protection of its trade secrets, confidential information and trade connections. The validity, or otherwise, of a restrictive covenant can be determined only upon an overall assessment of the clause, the agreement within which it is found and all of the surrounding circumstances. In that context, the three factors to be considered are, 1) did the employer have a proprietary interest entitled to protection? 2) are the temporal or spatial limits too broad? and 3) is the covenant overly broad in the activity it proscribes because it prohibits competition generally and not just solicitation of the employers customers? We note that this list is not exhaustive, and legal advice should be sought before implementing any restrictive covenants to ensure enforceability in the employment context.
TAGS: Restrictive Covenants
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HOME > EMPLOYMENT > EMPLOYEE PRIVACY RIGHTS MAY NOW INCLUDE PERSONAL FILES ON EMPLOYER-PROVIDED DEVICES >
Employee privacy rights may now include personal files on employer-provided devices
Employment
Employment Standards Human Rights Labour Pensions Termination Archives
Kathleen Chevalier Employees may now enjoy a limited reasonable expectation of privacy regarding electronic devices provided by their employer. In the recent judgment of R v. Cole, which arose in relation to a criminal proceeding, the Ontario Court of Appeal held that a teacher had a reasonable expectation of privacy with respect to personal files stored on a work laptop.
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The appellant, a teacher, was provided with a laptop by his school for use in teaching communication technology and supervising a laptop program for students. As a supervisor of the schools network, he had authority to remotely access the data stored on student computers connected to the school network. The appellant accessed a students email account, found nude photographs of another student and copied them onto the hard drive of his laptop. Some time later, a computer technician employed by the school observed a large amount of activity between the appellants laptop and the schools server, so he remotely accessed the appellants hard drive to perform a virus scan and ensure the systems integrity. In doing so, he accessed a hidden folder on the appellants hard drive and found the sexually explicit images. The technician informed the school of the images, and the laptop was seized by the school board. The school board informed the police and provided them with the teachers laptop and information regarding his browsing history. However, the police failed to obtain a warrant before searching the laptop and browsing history. During the criminal trial, the judge excluded all of the evidence from the laptop and browsing history, and held that the teacher had a reasonable expectation of privacy, and the police required a warrant prior to the search. This decision was overturned by the Superior Court of Justice, which held that the teacher had no reasonable expectation of privacy regarding the contents of the laptop. The case was then heard by the Ontario Court of Appeal. The main issues on appeal was whether the appellant had a reasonable expectation of privacy in the contents of a work computer on which he was entitled to store personal information, and if so, whether the searches by the school breached section 8 of the Charter and whether the failure of the police to obtain a warrant should lead to the exclusion of the evidence. The Court held that although the computer in question was a work computer owned by the school board and issued for employment purposes, the following factors created a situation whereby the appellant possessed a reasonable expectation of privacy regarding the contents of the computer: teachers were given personal possession of the laptops and explicit permission to utilize the laptops for personal use; teachers were permitted to take the laptops home on evenings, weekends and summer vacations; passwords were employed by teachers to exclude others from their laptops; personal information was routinely stored on the laptops hard drives; and there was no clear and unambiguous policy to monitor, search or supervise the teachers use of their laptops. However, the appellant's reasonable expectation of privacy was limited to the extent that the school's computer technician could access the laptop to perform work-related functions. Accordingly, as the appellant had no expectation of privacy with respect to this limited type of access, and the images were obtained as a result of this search, the images were admissible. However, as the evidence obtained by police was retrieved without first obtaining a proper warrant, all of the evidence arising from the polices search of the appellants
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hard drive was ultimately excluded as it violated the appellants Charter rights.
Our View: As mentioned above, this decision arose out of a criminal proceeding, and as such the Court was tasked with determining whether the school board and/or police violated the appellants Charter rights. In making its determination, the Court found that the school board was in fact subject to the Charter, and as such the analysis may not be directly applicable to private sector employers. However, it is our opinion that this decision does send a clear message to employers regarding developing and implementing properly drafted internet and electronic use policies, particularly regarding electronic devices which employees utilize outside of the workplace. Such policies should contain clear language stating that an employee has no expectation of privacy regarding such devices, that the employer has a right to monitor email and internet use, and the ramifications for improper usage.
TAGS: Discipline, Privacy
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HOME > EMPLOYMENT > INDEPENDENT CONTRACTORS: COUNT THEM IN >
Independent contractors: count them in

POSTED ON MARCH 31, 2011
Kathleen Chevalier If your company utilizes independent contractors in Ontario, it may now be required to establish a joint health and safety committee. In Ontario (Ministry of Labour) v. United Independent Operators Limited, the Ontario Court of Appeal ruled that independent contractors count as workers regularly employed by an employer, and therefore must be included when determining whether an employer is required to establish a joint health and safety committee under the Occupational Health and Safety Act.
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In July 2004 an independent contractor, operating as a truck driver for United Independent Operators Limited, suffered a broken pelvis and two broken legs when he was trapped between his truck and that of another United truck driver. As the accident occurred at the worksite of a United customer, the Ministry of Labour conducted an investigation. The Ministry charged United with failure to establish and maintain a joint health and safety committee (JHSC), and issued an order under section 9(2) of the OHSA requiring United to establish a JHSC. Section 9(2) of the OHSA requires a JHSC to be established at a workplace at which 20 or more workers are regularly employed. At that time, United had 11 full-time employees, and throughout the year utilized the services of 30-140 independent contractors. United appealed, arguing that independent contractors did not fall under section 9(2) and as such it did not meet the threshold of 20 or more regularly employed workers. After two trial decisions in Uniteds favour, the Ministry of Labour appealed to the Ontario Court of Appeal. The issue before the Court was one of statutory interpretation, and in a unanimous decision, the Court ruled that independent contractors were workers that were regularly employed within the meaning of the OHSA. To reach this determination, the Court conducted a contextual analysis, considering the language of the OHSA, the context in which the language was used, and its purpose. The Court held that Uniteds independent contractors met the definition of workers set out in the OHSA, as they were clearly persons who performed work or supplied services for monetary compensation. The Court went on to find that Uniteds independent contractors were also regularly employed, and reached this determination by considering the OHSAs definition of the word employer. The Court held that as United was clearly an employer, it stood to reason that the independent contractors were therefore employed by United. The final hurdle was whether the drivers were regularly employed by United, and in determining this the Court referred to the dictionary definition of regular, being normal, customary or usual. As United had between 30-140 independent contractors working at any given time, the Court determined that they were in fact regularly employed by United. The Court noted that its interpretation of the terms were consistent with a contextual analysis and promoted the purpose of the OHSA, which is to act as a remedial public welfare statute intended to guarantee a minimum level of protection for the health and safety of workers. Of note is that in reaching this ultimate conclusion, the Court had to overturn existing OLRB jurisprudence, namely the decision of 526093 Ontario Inc. v. (Ontario Ministry of Labour) in which the OLRB held that the words regularly employed applied only to those workers holding a traditional employment relationship. The Court disagreed, and stated that when interpreting the statutory language in that case, the Board failed to conduct a contextual analysis of the specified terms, or consider the overarching purpose of the OHSA. The Court also drew a comparison between Uniteds circumstances and those present in Brewers Retail Inc. (Re), where the OLRB held that employees across a dispersed workplace must be counted when determining whether the threshold for a JHSC had been met. The Court stated that just as a dispersed workplace is not a reason to deny workers the benefit of a JHSC, neither is the absence of a traditional employment relationship. Our view:
The Courts direction is clear: employers must now count independent contractors among workers when determining whether the threshold for a JHSC under section 9(2) has been met. It is our recommendation that every workplace currently utilizing the services of independent contractors conduct an evaluation to determine whether or not a JHSC is now required.
TAGS: Independent Contractors , Legislation , Occupational Health and Safety
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HOME > EMPLOYMENT > ARBITRATOR'S DECISION SHEDS LIGHT ON RESPONDING TO WORKPLACE THREATS UNDER BILL 168 >
Arbitrator's decision sheds light on responding to workplace threats under Bill 168
POSTED ON OCTOBER 17, 2011
Randall Boessenkool, Michael D. Smith (articling student) -
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In June 2010, Bill 168 introduced significant amendments to the Occupational Share Link Health and Safety Act (OHSA) as it relates to violence in the workplace. As one of the first decisions to deal with the Bill 168 amendments in detail, Arbitrator Elaine Email This Newmans award in Kingston (City) v. Canadian Union of Public Employees, Print Local 109 underscores the new obligations of employers in responding to threats made in the workplace. Arbitrator Newman upheld an employers decision to terminate an employee for making a death threat to a co-worker, and found that employers must react to workplace threats in much the same way that they would react to workplace violence.
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The grievor was a 47 year old employee with 28 years of seniority. In the years prior to the incident, the grievors employment relationship had been punctuated by a history of some tension and anger, including past warnings for arguing with and shouting at a supervisor, and angrily confronting a co-worker. Approximately one year prior to the grievors termination, the grievor had angrily confronted a supervisor by yelling, swearing, and slamming a door. A meeting to discuss this incident resulted in a further angry outburst by the grievor. As a result, the grievor received a three-day (subsequently reduced to one-day) suspension. Several months later, a further angry outburst towards a supervisor resulted in a warning letter. Following these incidents, the grievor agreed to attend an anger management program, which was arranged and paid for by the employer. As additional incentive, the employer agreed to pay $2,000 to the grievor upon completion of the program. Two days after completion of the anger management program, the grievor met with the President of the local union to discuss a return to work plan. The discussion became heated, and the grievor made a death threat against the President. The employer terminated the grievor, citing both the seriousness of the incident and Bill 168s more stringent requirements on employers to react to threats of violence in the workplace. In determining whether the decision to terminate was justified, the Arbitrator found that The Bill 168 amendments to the Occupational Health and Safety Act have changed the law of the workplace in a significant way. In the context of workplace threats, the Arbitrator identified four significant impacts of Bill 168: Language can amount to violence. Language that suggests impending danger or refers to the end of a persons life is no longer just language. Threatening language is now clearly considered violence, and must be addressed by the employer as workplace violence. Threats in the workplace require action. The serious nature of threats made in the workplace requires an equally serious employer response. In order to satisfy its obligation to provide a safe workplace, an employer must ensure that threats are reported, investigated, and addressed in a manner appropriate to their categorization as violence. Arbitrators will give more weight to the seriousness of threats. Prior to Bill 168, Arbitrators assessing the reasonableness of a decision to terminate as discipline for a threat would look to the factors from Dominion Glass Co. and United Glass & Ceramic Workers, Local 203 (1975). These factors include, among other considerations: the seriousness of the threat, who was threatened, whether there was provocation or premeditation, the grievors length of service, and whether the grievor was remorseful or had apologized. The Arbitrator confirmed that these same factors will still apply, but the seriousness factor, in light of the changes of Bill 168, should be given substantially more weight in determining
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The Arbitrators Decision
whether a termination was reasonable.

The factor of workplace safety should be added. In addition to the Dominion Glass factors discussed above, the Arbitrator found that an additional factor should be considered when assessing the reasonableness of the discipline for workplace threats: workplace safety. This factor requires employers to ask the question: To what extent is it likely that this employee, if returned to the workplace, can be relied upon to conduct himself or herself in a way that is safe for others? Where it is likely that the violent behaviour will be repeated, an Arbitrator will be more likely to find that termination for the behaviour was reasonable. After assessing the circumstances based on the factors set out above, Arbitrator Newman found that, notwithstanding her lengthy seniority, the employer was justified in terminating the grievor, and dismissed the grievance. The decision notes that termination may not have been the end result if the grievors actions or evidence had reflected an acceptance of responsibility for her misconduct, any appreciation of how serious her misconduct was, or what she herself is going to have to do in order to gain control over her angry impulses. However, by showing no understanding that she was the author of her own misfortune, and taking no meaningful steps to change her behaviours, Arbitrator Newman found that termination was justified.
Our Views
As one of the first decisions to discuss the changes of Bill 168 in depth, the decision of Arbitrator Newman highlights the seriousness with which employers are now required to treat incidences of workplace threats. The new OHSA categorization of threats as violence means that, in the words of Arbitrator Newman, The utterance of a threat in the workplace requires that the workplace parties stop cold. They must report. They must investigate. They must assess the existence of real danger. They must act. The increased seriousness of workplace threats may imply that Arbitrators will be more willing to agree with the reasonableness of an employers disciplinary action, or even termination, imposed in response to workplace threats. However, despite this new approach Arbitrator Newman was careful to point out that Bill 168 does not result in a zero tolerance policy for workplace threats. Even after the amendments of Bill 168, the discipline imposed by an employer must be reasonable and proportionatea determination which will still be guided by the factors discussed above. Furthermore, an individuals actions in response to the workplace threat will have some bearing on the incident and the necessity of discipline, up to and including termination of employment for just cause.
TAGS: Discipline, Occupational Health and Safety
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The Six-Minute Employment Lawyer 2011 HIRING AND FIRING A FOREIGN WORKER
Employers recognize that the immigration process is quite complex and as a result are often anxious when having to secure a work permit (usually on an urgent basis) for a foreign worker. Often, they do not turn their minds to the employment law ramifications of hiring a foreign worker. Inadequate preparation with respect to employment law aspects can result in ambiguity with respect to the terms on which the foreign worker has been hired by the Canadian employer and unwanted claims on termination of employment. In addition, matters such as benefits, OHIP coverage, customs and taxation are often not considered in a timely manner (until the employee has arrived in Canada).
Introduction
The Act applies to private sector or non-profit organizations that provides goods, services or facilities directly to the public or to other businesses or organizations in Ontario, and have one or more employees in Ontario (Providers).
Adequate preparation both in respect of securing the work permit and in concluding the appropriate documentation to reflect the parties intentions relating to the employment of the foreign worker can result in significant cost savings for the employer.
The focus of this paper is on the employment law ramifications of hiring and firing a foreign worker. However, to appreciate the issues raised in this paper it is worthwhile to summarize the immigration basics with respect to the hiring of a foreign worker.
Immigration Overview
Foreign workers can be hired pursuant to the issuance of a Confirmation of Labour Market Opinion (LMO) by Human Resources and Skills Development Canada (HRSDC). An application for a Labour Market Opinion involves various representations by the employer with respect to the terms upon which the foreign worker will be employed. Once granted, the employee can secure a work permit for the period of time approved by HRSDC. An LMO is usually sought where an exemption from the LMO requirements is not available to an employer. These exemptions are contained in the Regulations1 to the Immigration and Refugee Protection Act2 . The most common exemptions relate to the intra corporate transfer of an employee from a related entity of a Canadian employer (such as an affiliate, subsidiary or branch office). In addition, NAFTA permits the hiring of certain professionals (such as lawyers, engineers, computer systems analysts and management consultants) without an LMO. Significant dialogue occurs between a foreign candidate and the Canadian employer with respect to the terms on which the employee will be hired. The terms of employment discussed in that dialogue need to be reflected in a written employment contract that will govern the relationship. Employment must be made conditional on the employee obtaining a work permit. Generally, a work permit is issued for a period of up to three years and can, subject to limitations, be renewed by the employer. The work permit is usually employer specific, occupation specific and location specific3.
The Hiring Process Drafting the Employment Contract
MONTRAL
In the recent decision of Thomas v. EDS Canada Inc.4 , a well drafted contract protected the employer in respect of claims raised by a foreign worker on termination of employment. Thomas, a UK citizen, worked at EDS UK based affiliate from December 1999 to 2007. In 2007, EDS Vice President of Global Sales Support invited Thomas to relocate to Canada on a permanent basis and promised her
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that EDS would sponsor, assist and pay for her application for permanent resident status in Canada. The contract of employment contained a provision regarding termination of employment which provided that EDS could terminate the employment relationship without cause on two weeks prior written notice or such greater period of notice as is prescribed by statute or regulation or pay in lieu thereof. EDS hired an immigration lawyer to process Thomas work permit and subsequent application for permanent resident status. Between September 2007 and January 2009, there was miscommunication between EDS, the immigration lawyer and Thomas about the status of Thomas application for permanent resident status, which resulted in the application not having been filed by the time EDS terminated the employment relationship with Thomas in April 2009. The court found that the termination provision was enforceable. In having drafted an employment contract with an enforceable termination provision EDS was able to defend its position that Thomas was also not entitled to damages for mitigation and relocation expenses in respect of her return to the United Kingdom (more discussion on this point follows). EDS was also able to defend against the claim of negligent misrepresentation with respect to their promise of sponsoring, assisting and paying for the application for permanent resident status in Canada. The court found that EDS had not promised it would actually obtain for the Plaintiff her permanent resident status. The EDS decision is an example of the potential claims that may be made by a foreign worker when the employment relationship sours. In the hiring process the employer should consider a number of issues that are unique to the hiring of a foreign worker. The employment contract should reflect the following: (a) the duration of the employment relationship; (b) the responsibilities of the parties with respect to immigration matters; (e) termination of employment.
(c) the provision of relocation expenses both in moving the employee to Canada and relocation in the event of termination; (d) the law that will govern the employment contract and the jurisdiction of any dispute to be heard under the employment contract; and Each of these elements are discussed below.
Given the time, effort and cost that is often required to secure a work permit for a foreign worker and the increased difficulty in securing the renewal of a work permit (particularly work permits obtained pursuant to an LMO) it is often the employers desire to obtain a work permit for a foreign worker for the longest duration possible; an initial period of three years.
(a) Term of the Employment Relationship.
An employee may have an expectation that they will be employed for the duration of the work permit and may argue that the duration of the work permit was an inducement to leave previous employment in another country to join an employer in Canada. Accordingly, the term of the relationship must be set out clearly in the employment agreement together with the right of the employer to terminate the relationship prior to the end of the term. As well, if the relationship is for a fixed term then it would be prudent to make it clear that the employer will not process the renewal of the work permit at the end of its term. In an interesting decision (Koo vs. 5220459 Manitoba Inc. ) released in May, 2010, the Manitoba Court of Queens Bench, in evaluating whether a stated salary per hour in a Labour Market Opinion was binding on the employer found that the Labour Market Opinion was an expression of an opinion by Service Canada and that none of the essentials of contract were present, including offer, acceptance, privity, consideration and intention to create legal relations. The court stated it would be difficult to find that the LMO in itself or the providing of the LMO creates a contract, express or implied, between the plaintiff and the defendant. Accordingly, the employee could not rely on the LMO to substantiate a claim for increased wages. Even with that decision, we would recommend that as it relates to the duration of the relationship the employers right to end the relationship prior to the expiry of the work permit is clearly provided for in the contract. The Act grants the Deputy Minister power to appoint one or more inspectors to determine whether organizations are compliant The employer will likely bear the costs of obtaining the initial work permit for an employee and the required documentation for the employees family members. It is prudent to set out the
(b) Who Bears Responsibility for Immigration Costs?
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parties expectations with respect to application for permanent residence. As of April 1, 2011, the Regulations have been changed such that there is a four year limit on the length of time some temporary foreign workers may work in Canada if the work permit has been obtained pursuant to an LMO. As well, even with respect to intra corporate transfers there are time limits imposed under which a worker can work in Canada pursuant to a work permit (seven years maximum for senior managers and five years for those who fall within the specialized knowledge category). Accordingly, employers will want to consider whether they will require as a condition of continued employment that the foreign worker obtain permanent residence within a certain period of time and the parties will need to determine who will pay the fees associated with such application. As discussed above with the EDS decision, the employer will also want to be careful with respect to any representations that are made to an employee regarding permanent resident status. Often, the hiring documentation will reflect what the employer is prepared to pay/reimburse in moving the employee to Canada but is silent with respect to relocating the employee to their home jurisdiction either at the end of the term or in the event of an early termination of the employment relationship.
(c) Relocation Expenses.
As David Harris notes in his text, Wrongful Dismissal6 These early cases illustrate a principle which is by now trite law: that the employer is liable to pay costs incidental to the employees post-employment relocation to the extent these costs flow reasonably and forseeably from the employers breach (p. 4-78).
In the EDS decision, the Relocation Agreements entered into between Ms. Thomas and EDS showed that it was the intention of the parties to pay for the employees expenses to move to Canada but not to pay for expenses to move back to the UK. Although there was no legal basis under the Relocation Agreement for payment of the expenses the Court did note if, however, the termination provision of the PA is found to be unenforceable, I find that Ms. Thomas would have been entitled to expenses she incurred to mitigate her damages to find alternate employment. The expenses that would have been reimbursable included office supplies, dues and fees with respect to mitigation efforts, telephone costs, computer software costs, cell phone and internet costs, flights and shipment of personal items to the UK. The costs that would have been reimbursable would have easily exceeded $10,000. This case suggests that mitigation damages flow as part of wrongful dismissal damages even where a separate agreement has addressed relocation. Accordingly, the employment agreement and any relocation agreement must be examined together to ensure that the employer and employees business agreement is properly reflected. In Major v. Phillips Electronics Ltd.7 the British Columbia Court of Appeal overturned a trial judges award of $6124.36 to compensate the employee for expenses incurred by the employee to secure a work permit and appropriate immigration status in Canada. In this case, the employee had been employed in India and accepted an offer from the employer to move to Richmond, British Columbia to take up the position of Site Manager. Shortly following his move to British Columbia the business was sold and the new employer thereafter terminated Majors employment. The trial judge stated Mr. Majors work permit was specific to the Richmond plant and that hampered his efforts to obtain new employment after his termination by Holley (the new employer). He had to retain legal counsel to regularize his immigration status. He could not go to the United States right away because his wife would not be able to come with him for approximately one year. She concluded that significant expenses were incurred to obtained a further work permit and to obtain the appropriate immigration status. Those expenses would not have been necessary if Phillips had not breached its contract with him. Interestingly, the Court of Appeal overturned this decision based on the factual finding by the trial judge that after the employee agreed to leave India he agreed to come as a local rather than as an ex pat which meant that the employer did not guarantee his relocation if things did not work out. Again, a properly worded contract would not have left this issue to the courts determination.
Any international assignment must also consider the choice of law that will apply to the employment contract together with the jurisdiction in which disputes may be heard. Often in the case of intra corporate transfers, which are intended to be for a temporary period, the employer may wish the employment relationship to be continued to be governed by the laws of a foreign jurisdiction particularly where those laws are favourable with respect to matters such as restrictive covenant enforceability and rights on termination. An employer should consider the practical ramifications of choosing one law over another (and the jurisdiction in which disputes will be heard). Additionally, employers should recognize that employment standards legislation applies to employees rendering services in the province in which they are located and as such, even if the governing law clause is that of a foreign jurisdiction the minimum standards provided for in employment standards legislation will govern the relationship.
(d) Choice of Law/Jurisdictional Issues.
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In Hayes v. Peer 1 Network Inc.8 , the Plaintiff, a resident of Ontario, was employed by the Defendant company (the Canadian subsidiary of a U.S. company incorporated in the State of Washington). The Plaintiff started working for the Defendant Company in March 2003 and received a promotion in December of that year. He was presented with a written agreement which he signed and which contained a choice of law and choice of forum clause which provided: This Agreement is governed by the law of the State of Washington and each party irrevocably attorns to the jurisdiction of the court system of the state of Washington. The result of Washington law was that an employee was only entitled to severance if the employer had contracted to provide for it. The Master concluded that as a result of the forum selection clause, the onus was on the Plaintiff to establish that Ontario was a more appropriate forum for the action. He found that the Plaintiff had not met his burden and granted a stay of the Plaintiffs wrongful dismissal action. The Plaintiff appealed. The court determined that the shifting of the onus to the Plaintiff was not appropriate. The court acknowledged that the Master did consider all appropriate factors relating to choice of forum (location in which the contract is signed, location of witnesses, location of evidence, jurisdiction in which the factual matters arose, residence and place of business of the parties, any judicial advantage, governing law of the contract) but as the test requires he did not conclude, nor does an analysis of the factors lead to the conclusion, that Washington is clearly the more appropriate forum. In 2010 we noted two interesting decisions relating to termination of employment of foreign workers.
(e)Termination of Employment
In Nishina v. Azuma Foods (Canada) Co.10 , a 2010 decision of the British Columbia Supreme Court the Plaintiff, a Japanese citizen, worked as a Quality Control Associate for the Defendant in its British Columbia plant from August 2005 until her termination in October 2007. Prior to her transfer to the Canadian plant, she had been employed by the Defendants California based affiliate since June, 2001. Her Canadian work permit was prepared by her employer and was subject to several conditions, inter alia, that she was not authorized to work for any employer other than the Defendant. Between July 5 and October 19, 2007 four minor incidents lead to the Defendant terminating the Plaintiffs contract of employment. As her work permit disqualified her from working for any employer other than the Defendant, the Plaintiff was unable to gain employment elsewhere. She brought an action claiming damages for wrongful dismissal, damages for bad faith or mental distress, damages for loss of fringe benefits and punitive damages based on breach of fiduciary duty. The Plaintiff was awarded twelve months salary in lieu of reasonable notice. In arriving at the award of twelve months notice in lieu of reasonable notice the court applied the criteria laid out in Bardal v. Globe and Mail Ltd 11: (a) the character of the employment (the plaintiff held a position of considerable importance), (b) the length of service of the employee (6 years and 4.5 months), (c) the age of the employee (43 years), and (d) the availability of similar employment having regard to the experience, training, qualifications of the employee. In considering this latter factor the court stated Ms. Nashinas immigration status in Canada was tied to her employment with Azuma Foods, such that she could not work for another employer. [] this factor weighs heavily in favour of a longer notice period. Azuma Foods knew when it dismissed Ms. Nashina that she could not work for another employer (at paragraph 249, emphasis added). In addition, the court awarded $20,000 in punitive damages. Although the Defendant did not owe the Plaintiff a fiduciary duty the court nevertheless found the Defendant liable for punitive damages for breaching its implied obligation of good faith in the manner of dismissal. The court found that Ms. Nashinas immigration status made her particularly vulnerable and that
In Lee v. Anglo-Eastern Ship Management Ltd.9 , a decision of an adjudicator under the Canada Labour Code, the Complainant, a Hong Kong native, started to work for the employer in Hong Kong in 1988. He was transferred to a permanent position as a Technical Officer on board a Canadian flag ship in 1997, based out of the employers Montreal office. His work permits were renewed as necessary, the latest of these permits being set to expire on July 1, 2009. The Complainants application for permanent resident status was also in process. Due to the employer neglecting to file a Labour Market Opinion and Confirmation from Human Resources and Skills Development Canada, the Complainants work permit expired on July 23, 2009. He did not inform his employer of this fact until August 19, 2009. Five days prior, however, the employer had terminated the position of another Technical Officer (junior to the complainant) due to market conditions. Upon learning that the Complainant no longer had a valid work permit, the employer withdrew the other Technical Officers termination and relieved the Complainant of his duties until such time as he would once again be legally entitled to work in Canada. On December 11, 2009 the Complainant received a work permit and in January 2010 he received his permanent resident card. However, having rehired the other Technical Officer as a permanent employee, the Company decided to lay off the Complainant and he brought an action for unjust dismissal under the Canada Labour Code. The employer was ordered to reinstate the Complainant in his position and to compensate him for the lost income from December 11, 2009 (the date of issue of his work permit) until his reinstatement. The adjudicator ruled that despite the Complainants nondisclosure of the expiry of his work permit, the employer should have accommodated an employee with an unblemished employment record of 21 years, especially as it was responsible at least in part for the non-renewal of Mr. Lees work permit.
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Azuma Foods knew or ought to have known that dismissing her meant that she would be unable to work in Canada.
These cases together with the EDS decision discussed above make it clear that in engaging a foreign worker a clear termination provision must be drafted.
In the case of a foreign worker (like Ms. Nashina) who is employed as a work permit holder pursuant to the intra corporate transfer provisions of NAFTA or the Immigration Act the court will evaluate common law service on the basis of all service with the related entities regardless of whether that service may have occurred in a country in which Canadian common law principles would have no application otherwise. In addition to the above, the benefits that will be provided to the employee (including OHIP coverage) and the tax and customs law ramifications to the employee must be discussed with the employee prior to their arrival in Canada. As well, the employer must have a system in place that tracks proposed changes to be made to the foreign workers terms of employment.
A foreign worker employed in Canada will have the benefit of the termination provisions of employment standards legislation protection in the province in which they are employed (or Canada Labour Code if working in a federal undertaking or business) and will be entitled to the protection of common law principles except where a written contract clearly excludes the application of common law12 .
Other Considerations
The general rule for OHIP coverage is that a worker may be eligible for OHIP coverage if they are employed full time for an employer in Ontario for a minimum of six months and:
(a) Benefits and Ontario Health Insurance Plan (OHIP) Coverage

maintain their primary place of residence in Ontario;
Primary place of residence is defined in the Health Insurance Act13 to mean the place with which a person has the greatest connection in terms of present and anticipated future living arrangements, the activities of daily living, family connections, financial connections and social connections and for greater certainty a person only has one primary place of residence, no matter how many dwelling places he or she may have, inside or outside Ontario. Given the mobility of many foreign workers (particularly those from the United States) it is often the case that a foreign worker will not qualify for OHIP coverage. As such the employer needs to give consideration to alternate means of providing for these benefits and to determine who will pay for such benefit coverage. In addition, there is a three month waiting period following the establishment of residence in Ontario for OHIP eligibility and as such benefit coverage will need to be obtained for the employee during this period of time. The benefits that will be offered to the employee must be clearly articulated in the employment contract. (b) The Tax and Customs Law Ramifications to the Employee
be physically present in Ontario for 153 of the first 183 days immediately after establishing residency in Ontario.
be physically present in Ontario for at least 153 days in any twelve month period; and
There are Canadian tax implications to individuals whenever non-residents perform employment services in Canada. A person who is resident in Canada during a taxation year is subject to Canadian income tax on his or her worldwide income from all sources. The determination of when a person is resident requires professional advice and is equally important to individuals who provide services in Canada for the benefit of the Canadian employer on a more transient basis. For those employees who are transferred to Canada to take up employment with a Canadian entity and to be paid by the Canadian entity the individual employee will need advice with respect to their tax obligations in Canada (and the home country from where they have transferred) and the parties will have to determine who will pay for the cost of such advice. With respect to customs issues, the general rule is that a work permit holder can bring personal effects into Canada. However, there are specific rules with respect to the disposition of any personal effects as well as issues arising with respect to the importation of pets, cars and other items such as wine and or gun collections. To ensure a smooth transition the employee should be provided with advice relating to the types of personal goods that they may bring to Canada and any limitations associated with such transfer.
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As noted above, each work permit is generally employer specific, location specific and position specific In this regard, it is not unusual during the course of an employment relationship that an employee is transferred and/ or promoted and/or relocated. Employers must recognize and consider whether such changes for an employee who is employed pursuant to a work permit will require the filing of an Application to Change Terms and Conditions of Employment and approval by Canada Immigration of such change or whether a new Labour Market Opinion is required before the candidate can be relocated into a new position.
(c) Changing the Terms and Conditions of Employment of the Foreign Worker
To the extent that the work permit is based on an LMO, the LMO will also confirm the terms that the employer has represented will be the terms on which the employee will be hired. As a result of the changes to the Regulations effective April 1, 2011, a more rigorous assessment of the genuineness of each job offer has been imposed as well as a two year ban from hiring temporary foreign workers for employers who failed to meet their commitments with respect to wages, working conditions and occupation. Employers will be assessed with respect to their compliance with program requirements. Accordingly, (and despite the Koo decision) careful attention must be made to ensuring the terms contained in the LMO Application are consistent with those reflected in the employment contract.
More and more often, Canadian employers are relying on foreign talent to the extent that such talent cannot be found in Canada. Canadian employers must realize that the hiring of foreign workers and the employment relationship with foreign workers does present different issues that are not part of the local hiring landscape. Employers should never promise employment to a foreign worker without it being subject to the employee obtaining a work permit allowing them to provide services in Canada. Furthermore, enough time should be allowed in the process so as to provide to the employee a well drafted employment contract, containing all terms relevant to the international assignment. The employee should be provided the opportunity to review the terms carefully and if needed seek independent legal advice so that they can understand those issues that will personally effect them in respect of their relocating to Canada.
Conclusion
Advance planning can be a win-win for the Canadian employer and foreign worker. However, if left to the last minute it leaves the Canadian employer open to unwanted (and unnecessary) claims both during and following termination of the employment relationship. Endnotes
1 2 3
Immigration and Refugee Protection Regulations, 50R/2002-227 S.C. 2001, c. 27. This Immigration summary is not intended to be an exhaustive review as to how a foreign worker can obtain a work permit of otherwise provide 2011 ONSC 6188 (Ont. Sup. Ct.) 2010 MBPB 132, 254 Man. R. (21)62 Harris, David. Wrongful Dismissal. (Toronto: Carswell, 1989) [2005] B.C.J. No. 638 (2007) 86 O.R. (3d) 475 (Ont. Sup. Ct.) 2011 Carswell Nat 5740 2010 BCSC 502 (B.C. Sup. Ct.) (1960) 24 D.L.R. (2d) 140 (Ont H.C.) The Civil code will apply in Quebec R.S.O. 1990, c. H. 6
services in Canada
4 5 6 7 8 9
10 11 12 13
For further information, please contact your Stikeman Elliott lawyer or the author: Lorna Cuthbert lcuthbert@stikeman.com (416) 869-5237
*The author is grateful for the assistance given by Mari Maimets, a summer law student
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EMPLOYMENT
FIRM PROFILE
An overview of Stikeman Elliott and our Employment, Labour and Pension Group
Firm Profile
Stikeman Elliott LLP is one of Canada's leading business law firms, with offices in Toronto, Montreal, Ottawa, Calgary and Vancouver as well as in London, New York and Sydney. The firm is recognized as a Canadian leader in each of its core practice areas corporate finance, M&A, corporatecommercial law, banking, structured finance, real estate, tax, insolvency, competition/antitrust, employment and business litigation and is regularly retained by domestic and international companies in a wide range of industries including financial services, insurance, technology, telecommunication, transportation, manufacturing, mining, energy, infrastructure and retail. It was named as the 2011 Canadian Law Firm of the Year by the International Financial Law Review. The firms Canadian offices are leaders in their respective - IFLR1000 jurisdictions and it has prominent cross-border expertise, as the first Canadian firm to open offices in London and New Client Interview York, and extensive experience in the U.S., Europe, China, South and Southeast Asia as well as in Latin America, the Caribbean and Africa. Our 500 lawyers include many of Canadas most prominent business practitioners and leading litigators, and our depth across practice areas enables clients to benefit from efficient, expert teams of lawyers at all levels. The firm has also invested heavily in leading-edge knowledge management and project management systems in order to assure our clients of advice of the highest quality. Stikeman Elliott has been recognized by national and international legal directories as a Canadian leader in business law. > #1 for Lexpert/American Lawyer ranked lawyers in M&A, Corporate Finance and CorporateCommercial > #1 for Lexpert ranked lawyers in M&A, Corporate Finance and Corporate-Commercial > #1 in the Best Lawyers rankings for M&A, Securities, Corporate Law and Arbitration > Ranked Top-Tier in Corporate Law, M&A and Corporate Finance in Chambers Globals The Worlds Leading Lawyers and the International Financial Law Review IFLR 1000 The firms National Litigation Group, whose specializations include class actions, securities litigation, antitrust and restructurings, has been ranked among the top three business litigation practices in Canada by Lexpert. The firm is also well known for its extensive regulatory and government relations expertise; the latter anchored by its office in Ottawa. Stikeman Elliott was named as one of Canadas 50 Best Employers in 2010 and 2011 (as selected by Aon Hewitt), one of Canadas Top 100 Employers from 2009-2011, one of Canada's Best Diversity Employers and Best Employers for New Canadians for 2010 (each as selected by Mediacorp) and as one of Canadas Green 30 environmentally-friendly employers (as selected by Hewitt Associates, in partnership with Macleans and Canadian Business magazines). The firm was the first national Canadian law firm to be certified as carbon neutral, as of 2008.
We wouldnt get business done without them. Theyre that good.
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Our Offices
Stikeman Elliotts Canadian offices are located in the major business and financial centres of Montral, Toronto, Ottawa, Calgary, and Vancouver. Outside Canada, the firms network includes offices or representation in the United Kingdom, the United States and the Asia-Pacific region. Our unsurpassed international experience ensures that we can serve our clients wherever their business takes them.
TORONTO VANCOUVER
OTTAWA
LONDON
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SYDNEY
OUR OFFICES
Stikeman Elliotts Canadian ofces are located in the major business and nancial centres of Montral, Toronto, Ottawa, Calgary,Toronto office of Outside Canada,is a broadly based corporate-commercial law practice with United Kingdom, the The and Vancouver. Stikeman Elliott the rms network includes ofces or representation in the a strong United States and the Asia-Pacic Toronto Our unsurpassedmany of Canadas foremost practitioners in the transactional focus. The firms region. lawyers include international experience ensures that we can serve our clients wherever of M&A, securities, banking, structured finance, insolvency, tax, real estate, competition, areas their business takes them.
Toronto
employment, pensions, technology, outsourcing, mining and electricity law. The Toronto business litigation Toronto is highly regarded for its record in commercial litigation, most notably securities litigation, class Calgary group action defence of Stikeman Elliott is a and restructurings. The office ofce, with currently more The Toronto ofceand complex insolvencies broadly based Our Calgary is renowned for its expertise in than 50 legal cross-border transactional and litigation work and counts personnel, global corporations and financial corporate-commercial law practice with a strong transactional many major is home to some of Albertas leading lawyers. institutions among its lawyers include many of Canadas The Calgary ofce opened as a top regional focus. The rms Toronto clients. The Toronto office has been recognized by local media in 1992 and maintains a business employer and one of the citys most environmentally-sustainable businesses. foremost practitioners in the areas of M&A, securities, banking, law practice focused on M&A, securities, real estate, joint
structured nance, insolvency, tax, real estate, competition, ventures, project nancings, structured nancings, tax, Montral employment, pensions, technology, outsourcing, mining employment and banking. The ofce also has a signicant The firms law. The Toronto business most successful international dimension, advising is foreign on and electricityMontral office is one of thelitigation group is and respected in the city. Its practiceon focused investment in M&A, securities, record in cross-border financial highly regarded for its banking, commercial litigation, mostrestructuring, international tax cross-border trade in energy the Canadian energy sector and and commodity notably securities real estate, environmental law, intellectual property, information technology, transportation, transactions, litigation, class action defence and complex resources. In addition, the ofce maintains a commercial insolvencies and restructurings. The ofce is renowned for its group is widely recognized as one forthe regulatory practice insurance and employment law. The Montral litigation litigation practice and is renowned of its leading expertise in cross-border transactionalin Quebec. Stikeman Elliotts expertise in civil law and commercial business law litigation teams and litigation work and involving oil and gas and electricity related matters. The counts many major global corporations and nancial institutions Calgaryhas operations in won two awards for its active role transactions is particularly significant where an organization ofce has recently Quebec or in other among its clients. in the community.
jurisdictions with codified civil law-based legal systems, such as Central and Eastern Europe and South America. Much of the work carried out in the Montral office has a strong international focus. Montral Vancouver
The rms Montral ofce is one of the most successful and respected in the city. Its practice is focused on M&A, securities, banking, cross-border nancial restructuring, international tax and commodity transactions, real estate, environmental law, intellectual property, information technology, transportation, insurance and employment law. The Montral litigation group is
Celebrating 20 years in the city in 2008, our Vancouver practice includes a number of British Columbias leading lawyers in the areas of M&A, securities, banking, litigation and real estate. Our corporate lawyers lead local matters and draw on expertise of other Stikeman Elliott ofces in national and international matters. We have one of British
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Calgary
Our Calgary office is home to some of Albertas leading lawyers. The Calgary office opened in 1992 and maintains a business law practice focused on M&A, securities, real estate, joint ventures, project financings, structured financings, tax, employment and banking. The office also has a significant international dimension, advising on foreign investment in the Canadian energy sector and cross-border trade in energy resources. In addition, the office maintains a commercial litigation practice and is renowned for its regulatory practice involving oil and gas and electricity related matters. The Calgary office has won four awards for its active role in the community.
Vancouver
With over 23 years in the city, our Vancouver practice includes a number of British Columbias leading lawyers in the areas of M&A, securities, banking, litigation and real estate. Our corporate lawyers lead local matters and draw on expertise of other Stikeman Elliott offices in national and international matters. We have one of British Columbia's most prominent real estate development and acquisition practices, while our Litigation Group has acted for all levels of government and offers a broad range of commercial dispute resolution and advocacy services, including significant class action expertise. A very experienced group of lawyers also practice in the areas of public-private partnerships, infrastructure development and project finance. The Vancouver office has a strong cross-border focus, acting as the firms Canadian gateway to the Asia-Pacific region.
Ottawa
The Ottawa office of Stikeman Elliott focuses on administrative law and regulated industries, with particular emphasis on competition law, intellectual property law, international trade, government procurement and public policy. Industry sectors in which the office has expertise include such federally-regulated commercial sectors as telecommunications, broadcasting, transportation, and energy, as well as those (such as packaging and labelling) that are subject to food and drug administration.
London
Drawing on over 40 years of experience in the city, Stikeman Elliott's London office has long been recognized for its leadership in international corporate transactions, including leveraged buy-outs, takeover bids and share and asset purchases. Our London corporate finance team is a leading advisor to Canadian companies with respect to Toronto Stock Exchange and AIM listings and has been recognized for many years as one of the most prominent international advisors in the Eurobond markets. We have also been at the forefront of developing the legal framework for the issuance of Maple Bonds in Canada. Our lawyers have broad industry expertise, as well as significant experience in Africa, in the mining sector. The office also serves as the gateway for our India, Middle East and Sovereign Wealth Fund practices. As well, our private client practice ranks amongst the worlds leading practices in the area.
New York
The New York office of Stikeman Elliott has extensive experience in Canada-U.S. cross-border corporate transactions, with a particular focus on M&A, corporate finance, banking and structured finance. The firms New York lawyers provide Canadian legal advice on cross-border acquisitions, investments, banking, securities and regulatory matters to U.S. corporations, investment dealers, advisors, banks and funds.
Sydney
Stikeman Elliotts Sydney office, the hub of our Asia-Pacific practice, is involved in multi-jurisdictional securities and M&A law with a sectoral emphasis on mining, cross border M&A, infrastructure development and project finance.
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Stikeman Elliott regularly acts in transactions involving clients across Asia, including, in particular, India, China, Hong Kong, Thailand and the Middle East. Reflecting the position of Canada as a target for a rapidly expanding Asian region and as a significant source of capital, the firm provides advice on a large number of significant transactions from Asia into Canada, as well as advising on Canadian investment into Asia. The firm has a particularly high profile in resource-sector transactions and is involved in the vast majority of IPOs originating in Asia that involve placements into Canada.
Employment and Labour

The Employment & Labour Group at Stikeman Elliott advises employers on all facets of the individual and collective employment relationship, both at the provincial and federal level. All members of the group have wide-ranging employment and labour law experience, and each has developed specific expertise in particular niche areas. This approach ensures that we can provide advice in a timely, cost-effective and efficient manner by calling upon appropriate, targeted resources. While we often deliver our services on a continuing basis, we are also regularly involved in the employment and labour-related aspects of commercial transactions, including those arising from mergers, acquisitions, insolvency and receivership, and in strategic employment and human resource planning. Our advice includes negotiating the human resources aspects of a corporate transaction and drafting various related agreements including transition services agreements, employment agreements and restrictive covenant agreements. As part of our commitment to assist corporate leaders to establish and refine positive management and employee practices, we regularly provide in-house seminars and develop publications that address topical and timely employment issues. For foreign clients looking to invest in Canada, we have produced a Canadian Employment, Labour and Pension Law FAQ, outlining significant issues that companies should consider when entering the Canadian market.
Recognition for Our Work

The Group has been recognized as a leader in the Canadian marketplace by Chambers Globals Guide to the Leading Lawyers for Business. The Group has also been endorsed by PLC Which Lawyer?, with our Quebec practice cited in the area of labour and employment and our Ontario practice cited in the area of pensions and benefits.
Employment Law Services

We regularly assist employers and their executives with: > Business immigration and relocation; > Compliance with employment related statutes; > Director and officer liability issues and fiduciary duties; > Drafting and enforcing confidentiality, non-solicitation and non-competition covenants; > Employee drug and alcohol testing; > Employment contract and incentive compensation issues; > Employment-related class proceedings; > Health and safety in the workplace including the strategic planning of workers compensation assessments (Quebec); > Human rights and harassment in the workplace; > Incentive compensation such as bonus plans and stock option plans; > Management education and training; > Managing chronically ill and absent employees; > Occupational health and safety;
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> Outsourcings, restructurings and plant and facility closures; > Pay equity; > Privacy and access to information issues in the employment setting; > Pleading employmentrelated litigation; > Privacy and access to information issues; > Proactive and strategic advice regarding relevant laws; > Reorganization and workforce reduction; > Strategic human resources planning; > Termination and severance practices and arrangements; > Transition and retention programs, and retirement benefits; > Workplace policies; and > Wrongful dismissal.
Labour Law Services

In the field of labour relations, we focus exclusively on representing management. Our services in this field include advice and representation in: > Collective agreement administration; > Collective bargaining; > Discipline and termination of employment; > Instituting proactive and positive employee relations practices and programmes; > Labour arbitration and dispute resolution; > Industrial conflicts (strikes, lock-outs and picketing); > Successor-employer proceedings; > Unfair labour practices; > Union organizing, certification and decertification campaigns; and > Strategic labour advice. Members of the Group regularly appear as counsel for employers in the courts and before various employment and labour-related administrative tribunals both under federal and provincial legislation.
Several members of the group have lectured at the university level, authored books, legal service manuals and articles, including Le congdiement dguis au Qubec Fondements thoriques et aspects pratiques, The Employment Contract, Le contrat demploi, Executive Employment Law, Les dirigeants: leurs droits et leurs obligations, as well as a section dealing with labour law in the publication titled Doing Business in Canada.
Pensions & Benefits

National and international enterprises have a growing demand for innovative legal advisors to assist in the increasingly sophisticated and complex environment in which pension and employee benefit programmes operate today. Our National Pension and Benefits Practice Group is widely recognized for its ability to assist clients in this area, which will continue to grow in importance as the Canadian population ages. The practice is centred in the firms Employment, Labour & Pension Group, but also draws upon expertise from the Corporate, Litigation and Taxation Groups of the firm. This approach provides flexible and multi-disciplinary solutions tailored to the clients specific needs. As the first law firm in Canada with practitioners in both Montral and Toronto devoted exclusively to pension matters, we offer a unique capacity to advise on matters governed by Quebec, Ontario, and federal pension law. Our practice has been endorsed as a Canadian leader by Chambers Globals Guide to the Worlds Leading Lawyers for Business.
Expertise
Pension and benefit programmes are becoming increasingly sophisticated and the regulatory and legal framework in which they exist increasingly complex. Our pension and benefits expertise includes the full range of legal matters in this area, including: > Drafting registered and supplementary pension plan rules, trust agreements, investment management agreements and investment policies; > Advice on pension plan governance, pension plan conversions, mergers and other restructurings and pension fund investment issues; > Negotiation of pension funding relief and pension surplus-sharing agreements; > Advice on the impact of transactions such as mergers and acquisitions, reorganizations, insolvencies, outsourcings, and privatizations; > Design and administration of employee share ownership plans and phantom stock plans; > Negotiation of and structuring executive compensation arrangements and advice on the taxation thereof; > Assisting financial institutions in the development and administration of pension and retirement products; > Advice on creditor protection of retirement income arrangements; and > Representation of plan sponsors before pension regulatory tribunals and the courts and counsel employers on benefits-related issues in unionized environments.
Members of Stikeman Elliotts National Pension and Benefits Group are involved in many professional development activities, including: > Constituting the editorial board of Canadian Cases on Pensions and Benefits, a monthly law report published by Thomson Carswell; > Sitting on the Quebec Pension Board, Financial Services Commission of Ontario and Financial Services Tribunal Legal Advisory Committees, Ontario Bar Association Pension and Benefits Section Executive, Association of Canadian Pension Management and Canadian Pensions and Benefits Institute; > Publishing articles in various newspapers, law reviews, and pension industry publications; > Contributing the Canada chapter to Employee Share Plans: International Legal and Tax Issues; > Speaking at meetings and conferences of numerous organizations both in Canada and abroad; and > Advising foreign governments on pension reform.
Value-Added Client Resources

As part of our effort to remain at the forefront of client service, we have developed an employment and pension law blog, featuring practical and timely information and commentary on important legal and policy developments in this area of law, including termination of employment, executive compensation, human rights, occupational health and safety, pension plan, governance, pension fund investment issues, overtime, social networking pension plan mergers, conversions and other restructurings, insolvency-related pension issues, employment standards, drug testing legislation updates and privacy. The blog is fully searchable with extensive archived materials, indexed by topic, and allows users to subscribe for regular updates via email or RSS feed. The blog is available at www.CanadianEmploymentPensionLaw.com.
TORONTO
5300 Commerce Court West, 199 Bay Street, Toronto, ON, Canada M5L 1B9 Tel: (416) 869-5500 Fax: (416) 947-0866
MONTRAL
1155 Ren-Lvesque Blvd. West, 40th Floor, Montral, QC, Canada H3B 3V2 Tel: (514) 397-3000 Fax: (514) 397-3222
OTTAWA
Suite 1600, 50 OConnor Street, Ottawa, ON, Canada K1P 6L2 Tel: (613) 234-4555 Fax: (613) 230-8877
CALGARY
4300 Bankers Hall West, 888 - 3rd Street S.W., Calgary, AB, Canada T2P 5C5 Tel: (403) 266-9000 Fax: (403) 266-9034
VANCOUVER
Suite 1700, Park Place, 666 Burrard Street, Vancouver, BC, Canada V6C 2X8 Tel: (604) 631-1300 Fax: (604) 681-1825
NEW YORK
445 Park Avenue, 7th Floor, New York, NY 10022 Tel: (212) 371-8855 Fax: (212) 371-7087
LONDON
Dauntsey House, 4B Fredericks Place, London EC2R 8AB England Tel: 44 20 7367 0150 Fax: 44 20 7367 0160
SYDNEY
Level 12, The Chifley Tower, 2 Chifley Square, Sydney N.S.W. 2000 Australia Tel: (61-2) 9232 7199 Fax: (61-2) 9232 6908
www.stikeman.com
This publication provides general commentary only and is not intended as legal advice.

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EMPLOYMENT

What Should be on Your Radar Screen for 2012?

OCTOBER 20, 2011

STIKEMAN ELLIOTT LLP

Also check out Stikeman Elliotts other blogs:

Check out the site at: www.CanadianEmploymentPensionLaw.com

For more information about Stikeman Elliott, please visit www.stikeman.com

OCTOBER 20, 2011

STIKEMAN ELLIOTT LLP

PROFILES OF TODAYS SPEAKERS

OCTOBER 20, 2011

Bruce Pollock Partner Stikeman Elliott

Kelly OFerrall Associate Stikeman Elliott

Lorna Cuthbert Partner Stikeman Elliott

Nancy Ramalho Partner Stikeman Elliott

Kathleen Chevalier Associate Stikeman Elliott

Alison Burton Senior Counsel RBC Law Group

STIKEMAN ELLIOTT LLP

Publications and Speaking Engagements

STIKEMAN ELLIOTT LLP PROFILE

STIKEMAN ELLIOTT LLP PROFILE

STIKEMAN ELLIOTT LLP PROFILE

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WHAT SHOULD BE ON YOUR RADAR SCREEN FOR 2012?

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Employing Foreign Workers

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Immigration Overview - Work Permits

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1 IMMIGRATION OVERVIEW 2 DRAFTING THE EMPLOYMENT CONTRACT

Certain professionals under NAFTA

Trainers/Trainees qualify as business visitors

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2. Drafting the Employment Contract

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2 DRAFTING THE EMPLOYMENT CONTRACT

(a) Term of the Employment Relationship

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2 DRAFTING THE EMPLOYMENT CONTRACT

(b) Who Bears Responsibility for Immigration Costs

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2 DRAFTING THE EMPLOYMENT CONTRACT

(c) Relocation Expenses

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2 DRAFTING THE EMPLOYMENT CONTRACT

(d) Termination of Employment

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2 DRAFTING THE EMPLOYMENT CONTRACT

(e) Choice of law (jurisdictional issues)

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a) Ontario Health Insurance Plan Coverage

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b) Tax and Custom law

c) Changing terms and conditions of employment of the foreign worker

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