At this year’s Davos World Economic Forum, Google’s co-founder, Sergey Brin, professed surprise at the rapid onslaught of AI — artificial intelligence. “This revolution has been very profound and definitely surprised me even though I was right in there”, commented Mr. Brin, whose Alphabet unit leads the AI charge. He advised that these developments have enormous global repercussions on all aspects of commerce and law, and certainly on employment. Continue Reading Domo Arigato: the Mechanizing of the Workforce
Given Blue Monday, many of us are reminded of how depressing January can be after the euphoria of the “festive season” has passed. But feeling “off” is not the same as being clinically depressed. Just ask Bruce Springsteen, who recently unmasked his quiet suffering in his autobiography Born to Run : “I believe it’s the same for most people. You’re looking for something, some place where you feel comfortable, where you’re able to express yourself; some place you feel safe. It is the answer to a lot of the conflicts.” Continue Reading Brilliant Disguise: The Duty to Accommodate Mental Illness and The Boss
Join Baker McKenzie for a special 2-part webinar series that will focus on major developments in 2016 and trends to watch for in 2017 in the United States and around the globe. Drawing on the legal talent of Baker McKenzie’s employment team, the series will feature a panel of top lawyers discussing key updates. This series is a “must-view” for professionals who deal with employment matters within Canadian businesses operating outside of Canada. Register now for this complimentary webinar series! Continue Reading Upcoming Webinar – Navigating Employment Laws Where You Work: 2016 Review and 2017 Preview
The untimely passing of George Michael and the corresponding ubiquitous airplay of his hit “Faith” may seem a curious segway to legal developments, but we don’t like our readers getting unexpectedly ‘whammed’ by subtle yet powerful trending in the law. Continue Reading Supreme Court of Canada Tells Employers ‘You Gotta Have Faith’
Amid the post-holiday whirlwind, amendments to the Ministry of Training, Colleges and Universities Act and the Private Career Colleges Act, 2005 under Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016 (“Bill 132”) have come into force. As of January 1, 2017, colleges and universities in Ontario must have a sexual violence policy in place that outlines how the institution will respond to and address incidents or complaints of sexual violence involving students. Bill 132 also adds a definition of “sexual violence” to the Ministry of Training, Colleges and Universities Act and the Private Career Colleges Act, 2005. The definition encompasses non-consensual sexual acts and acts targeting a person’s sexuality, gender identity or gender expression, whether the act is physical or psychological in nature. Continue Reading Reminder: With the New Year Come New Obligations for Colleges and Universities!
To ring in the New Year, we highlight the ten most significant developments in Canadian labour and employment law in 2016:
- For Federal Employers, a Dismissal “Without Cause” is an “Unjust Dismissal”. In Wilson v. Atomic Energy, the Supreme Court of Canada confirmed that, after 12 consecutive months of service, most federally-regulated, non-union employees can only be dismissed for “just cause”. Consequently, it is now clear that employees who are regulated under Part III of the Canada Labour Code cannot, following their first year of employment, simply be provided with termination notice or pay in lieu, absent just cause. Federal employers may nevertheless dismiss an employee who has been laid off due to a “lack of work” or “discontinuance of a function”.
- HRTO Revisits the Test for Family Status Discrimination. In Misetich v. Value Village Stores Inc., the Human Rights Tribunal of Ontario was critical of the current test for family status discrimination—a test that was established and upheld by the Federal Court of Appeal in Johnstone v Canada. In Misetich, the HRTO set out a new test that would not require the applicant to establish that their family obligation engages a “legal” responsibility. The proposed new test would also relax the current standard of requiring the applicant to demonstrate they made a reasonable effort to “self-accommodate”.
- Employer Held Liable for Failing to Protect Employees Against Social Media Harassment. In Toronto Transit Commission and ATU, Local 113, a labour arbitrator held an employer was liable for failing to protect its workers against harassment in customer posts associated with the employer’s Twitter account. Employers with a social media presence now face a greater risk of liability for failing to prevent workers from being exposed to harassment in the workplace by way of social media.
- Litigation in Canada for Overseas Workplace Human Rights Violations Now More Likely. In Araya v. Nevsun Resources Ltd., the British Columbia Supreme Court ruled that a lawsuit commenced in Canada by Eritrean miners may proceed. The miners allege they were forced to work in a mine, located in Eritrea, owned by a Canadian mining company. This is the first time that foreign claimants have been able to proceed to trial in a lawsuit in Canada against a Canadian company for alleged human rights abuses overseas (based on violations of customary international law).
- ONCA Raises the Bar for Enforcing Fixed Term Contracts. In Howard v. Benson Group Inc., the Ontario Court of Appeal confirmed that, if an early termination provision in a fixed term contract is too ambiguous or vague to be enforced, the employee may be entitled to full wages for the remainder of the term of contract. The employee will not have to make reasonable efforts to secure alternate income during the remainder of the fixed term unless there is a specific provision of contract to the contrary.
- Canada Pension Plan Enhancement Appears Imminent. On October 6, 2016 the federal government introduced Bill C-26, which sets out amendments to the Canada Pension Plan. If passed (and this appears likely), Bill C-26 will increase CPP contributions over 7 years, commencing in 2019. Among other things, Bill C-26 would increase the maximum CPP benefit from 25% of earnings to 33% of earnings (up to the year’s maximum pensionable earnings).
- Independent Contractor Class Action Certified in Canada. In Omarali v. Just Energy, an Ontario court certified a class action against Just Energy, a natural gas and electricity retailer. In this case, 7,000 of Just Energy’s sales agents claimed they were misclassified as independent contractors. This case is the first of its kind to be certified in Canada. If the sales agents are successful, the company could face significant liability for unpaid wages (including overtime, vacation and public holiday pay), and for failure to apply statutory deductions.
- New Privacy Tort – Public Disclosure of Embarrassing Private Facts. In Jane Doe 464533 v. N.D., the Ontario Superior Court of Justice recognized the tort of “public disclosure of embarrassing private facts”. The tort requires the plaintiff to prove that “the matter publicized or the act of the publication” is “highly offensive to a reasonable person” and is not “of legitimate concern to the public”. It is likely that employers will now face claims for liability under this tort, including claims for vicarious liability.
- OHSA Amendments Strengthen Protections Against Workplace Harassment. On September 8, 2016, portions of Bill 132 came into force, amending (among other things) Ontario’s Occupational Health & Safety Act. These amendments increase protections against workplace harassment, which now expressly includes “workplace sexual harassment”. Central to these amendments are more robust workplace investigation requirements.
- Court of Appeal Rules Termination Clause Without Benefits Continuation is Enforceable. In Oudin v. Centre Francophone de Toronto, the Ontario Court of Appeal upheld a decision enforcing a termination clause that established a termination notice period without mentioning benefits continuation. While enforceability will continue to turn on the language of the employment contract in issue, this case marks a departure from a recent trend towards striking down termination clauses.
Earlier this year, we wrote about the U.S. Department of Labor’s (DOL) publication of the Final Rule, which significantly increased the minimum salary an employee must earn to qualify for the “white collar” exemption and the highly compensated employee exemption under federal law (see our blog post here). However, on November 22, 2016, a federal court in Texas blocked the enactment of the amendments that were set to go into effect next week on December 1, 2016. Finding that the DOL had exceeded its authority in increasing the salary basis for these exemptions, the court entered a nationwide preliminary injunction against the amendments going into effect.
For further information about the court’s preliminary order and our recommended actions for employers with operations in the U.S., please read our client alert.
In a recent decision, Merritt v. Tigercat Industries, 2016 ONSC 1214, an Ontario court held that the employer did not have sufficient cause for dismissing an employee on the basis of his pending criminal charges and allegations by another employee of potentially related conduct, where the employer had failed to carry out a proper investigation into the matter. This case underscores the need to carry out an appropriate investigation before determining that termination, or any form of disciplinary action, is merited.
The case also brings clarity to the issue of whether an employee can refuse to answer questions in a workplace investigation that pertain to criminal charges brought against him. Continue Reading The Right to Remain Silent: Employer Mishandles Workplace Investigation (and Pays for It!)
On October 6, 2016, the British Columbia Supreme Court ruled that a lawsuit by Eritrean miners, who allege they were forced to work in a mine owned by Nevsun Resources Ltd, a Canadian mining company, can proceed to trial. Vancouver-based Nevsun had argued that the case should be dismissed and that any suit should be properly heard in Eritrea. Justice Abrioux disagreed, stating that “there is sufficient cogent evidence from which I can conclude that there is a real risk that the plaintiffs could not be provided with justice in Eritrea,” thereby paving the way for an unprecedented trial in a Canadian court. Justice Abrioux stated that “claims of crimes against humanity, slavery, forced labour and torture can go forward against Nevsun.” Continue Reading BC Case Against Canadian Mining Company for Overseas Human Rights Violations to Proceed to Trial
Canadian businesses with operations in the United States should be aware that the U.S. Department of Justice and Federal Trade Commission recently issued antitrust guidance for human resource professionals and others who are involved in hiring and compensation decisions. The guidance warns of criminal prosecution against companies, human resource professionals and other individuals for formal and informal wage-fixing or no-poaching agreements between companies. The agencies also encourage companies, human resource professionals and other individuals to quickly report antitrust violations to the Department of Justice under its Corporate and Individual Leniency Policies. To learn more about the guidance, please read our client alert. Continue Reading U.S. Federal Agencies Issue Joint Guidance for HR Professionals Warning of Criminal Liability for Wage-Fixing and No-Poaching Agreements