Join Lancaster’s experts as they explain how the most important decisions in workplace law from 2015 will affect you in the coming year. The panellists will also highlight significant legislative and policy developments from the past year. In addition to covering major legislative or jurisprudential developments that take place between the posting of this program and the air date of the audio, the following topics will be discussed:
Impact of Major Cases Decided Recently
- Partridge v. Botany Dental Corporation (Ontario Court of Appeal); SMS Equipment Inc. v. Communications, Energy and Paperworkers Union, Local 707 (Alberta Court of Queen’s Bench): What is the proper test for establishing prima facie family status discrimination? Is the four-part test from the Federal Court of Appeal’s Johnstone decision overly restrictive? How far does the legal obligation to self-accommodate go?
- Sault Area Hospital v. Ontario Nurses’ Association (Ontario Grievance Arbitration); Health Sciences Association (Influenza Control Program Policy Grievance) v. Health Employers Association of British Columbia (British Columbia Grievance Arbitration): Are workplace influenza policies that impact on employee privacy a reasonable exercise of management rights?
- Ontario Public Service Employees Union v. The Crown in Right of Ontario (Ontario Grievance Settlement Board); Evans v. The Bank of Nova Scotia (Ontario Superior Court of Justice): Do employers have exposure on the basis of vicarious liability for an employee’s unauthorized, intentional intrusion upon the privacy of another employee or third party? Are class actions for breach of privacy on the rise?
Wrongful and constructive dismissal
- Potter v. New Brunswick Legal Aid Services Commission (Supreme Court of Canada): How did the Supreme Court of Canada clarify the test for constructive dismissal in this case? What principles did the Court set out in relation to an employer’s right to impose an administrative suspension? What did the Court say about whether bringing an action for constructive dismissal will result in a finding of resignation?
- Fredrickson v. Newtech Dental Laboratory Inc. (British Columbia Court of Appeal); Morgan v. Vitran Express Canada Inc. (Ontario Court of Appeal): When is a wrongfully dismissed employee required to accept an offer of re-employment in order to mitigate his or her damages?
Federal Labour Law
- Wilson v. Atomic Energy of Canada Ltd. (Federal Court of Appeal): What is the significance of the Federal Court of Appeal’s decision in Wilson v. Atomic Energy of Canada Ltd. that federally regulated employers may dismiss employees on a “without cause” basis if the dismissal is not otherwise unjust? What is “unjust dismissal” under the Canada Labour Code if it is not dismissal without just cause?
Duty of good faith and honesty in contractual performance
- Bhasin v. Hrynew and Heritage Education Funds Inc. (Supreme Court of Canada): What was the Supreme Court’s rationale for extending the organizing principle of good faith and the duty of honest performance, implicit in employment contracts and collective agreements, to commercial dealings? How, if at all, has the decision in Bhasin had an impact in the employment context to date?
Damages for discrimination
- CK v. University of British Columbia (British Columbia Supreme Court); Hamilton-Wentworth District School Board v. SF (Ontario Superior Court); OPT v. Presteve Foods Ltd. (Human Rights Tribunal of Ontario): In matters involving human rights violations, what trends are occurring in the amounts being awarded by tribunals and courts for general damages or damages for injury to dignity, feelings and self-respect?
- Silvera v. Olympia Jewellery Corporation and Bazik (Ontario Superior Court); Partridge v. Botany Dental Corporation (Ontario Court of Appeal): How are courts applying s.46.1 of the Human Rights Code, which allows employees to seek human rights remedies in wrongful dismissal actions?
Aggravated and/or punitive damages
- DC v. IBM Canada Limitée (Québec Court of Appeal); Gordon v. Altus (Ontario Superior Court); Karmel v. Calgary Jewish Academy (Alberta Court of Queen’s Bench); George v. Cowichan Tribes (British Columbia Supreme Court): In what circumstances are courts awarding aggravated and/or punitive damages?
Freedom of association under the Charter
- Saskatchewan Federation of Labour v. Saskatchewan (Supreme Court of Canada); British Columbia Teachers’ Federation v. British Columbia (British Columbia Court of Appeal): What did the Supreme Court of Canada rule in Saskatchewan Federation of Labour? Is legislation restricting the right to bargain and strike saved from a finding of a violation of freedom of association under the Charter if the government has consulted with the union in advance?
Major Legislative and Policy Developments
- Strengthening worker protections (Ontario; Nova Scotia; Alberta): What protections for vulnerable workers were brought into effect by the coming into force, on November 20, 2015, of a number of amendments set out in Ontario’s Bill 18, Stronger Workplaces for a Stronger Economy Act, 2014? What reforms to workplace laws are forthcoming as a result of the passage of Bill 109, the Employment and Labour Statute Law Amendment Act, 2015, in the Ontario legislature on December 10, 2015? What potential changes to Ontario’s employment standards and labour relations legislation are being discussed as part of the province’s Changing Workplaces Review? How will upcoming amendments to Nova Scotia’s Labour Standards Code better protect workers from employer reprisal? What legislative measures have been taken in Alberta to enhance safety protections for farm workers?
- Leaves of absence (Nova Scotia; Prince Edward Island; Manitoba): What new unpaid leaves of absence have been introduced in Prince Edward Island by Bill 39, An Act to Amend the Employment Standards Act, which received royal assent on December 2, 2015? How is the Nova Scotia government proposing to amend the leaves of absence provisions of the province’s Labour Standards Code? What new domestic violence leave requirements are being proposed in Manitoba under Bill 8, The Employment Standards Code Amendment Act, which passed second reading on December 3, 2015?
- Essential services legislation (Saskatchewan; Alberta): Does Saskatchewan’s Bill 183, The Saskatchewan Employment (Essential Services) Amendment Act, 2015, which received royal assent on November 19, 2015, adequately address the Supreme Court of Canada’s Saskatchewan Federation of Labour decision? Why is the Government of Alberta conducting a consultation about public sector essential services legislation?
- Restrictive legislation (Nova Scotia; Ontario): How is the Nova Scotia government proposing to address the province’s fiscal challenges? Is Bill 148, the Public Services Sustainability (2015) Act, imposing wage restraints, susceptible to a Charter challenge? How will Bill 115, the Putting Students First Act, 2012 (since repealed), fare in the pending Charter challenge before the Ontario Superior Court?
- Promised repeal of new union disclosure and certification/decertification laws (Federal): Will the former Conservative government’s Bill C-525 (eliminating card-check certification and creating a minority-driven decertification process) and Bill C-377 (imposing substantial financial reporting obligations on unions) be repealed, as promised, by Prime Minister Justin Trudeau?
- Sexual violence and harassment (Ontario): How should employers prepare for the possibility of heightened duties with regard to workplace sexual violence and harassment, as proposed under Bill 132, the Sexual Violence and Harassment Action Plan Act?
- Accessibility (Ontario; Manitoba): What new accessibility standards are in effect under Ontario’s Accessibility for Ontarians with Disabilities Act and Manitoba’s The Accessibility for Manitobans Act?
- Police record checks (Ontario): How will Bill 113, the Police Record Checks Reform Act, 2015, restrict the use of criminal record checks in Ontario once it is proclaimed into force?
- The Ontario Retirement Pension Plan (Ontario): What are the main features, benefits and drawbacks of the new Ontario Retirement Pension Plan (ORPP)? How will the ORPP be phased in?