In the recent decision of Humber River Regional Hospital and Ontario Nurses Association (“ONA”) (Cherubino Grievance), an Ontario arbitrator dismissed the union’s grievance alleging harassment by a supervisor and found that neither management duties nor the employer’s internal investigation process should be held to a standard of perfection. Continue Reading Management Duties and Complaint Investigations: Perfection Not Required
Jennifer Bernardo has a broad litigation and advocacy practice, encompassing all areas of labour and employment law in Canada’s common law jurisdictions, with a particular focus on employment standards, labour relations, human rights claims and wrongful dismissal actions. Ms. Bernardo also advises on the labour and employment implications of corporate transactions, as well as issues relating to international labour and human rights standards, corporate compliance and risk management, and internal investigations.
A lawsuit brought by several Guatemalans for alleged damages suffered during a 2013 protest at the Escobal silver mine in San Rafael Las Flores has cleared a final hurdle and will now proceed to trial in British Columbia. Continue Reading BC Trial on Alleged Human Rights Violations by Canadian Mining Company in Guatemala Can Proceed
On July 27, 2016, an Ontario court certified a class action against Just Energy, a natural gas and electricity retailer, in which 7,000 of its sales agents claimed they were misclassified as independent contractors.
The case, Omarali v. Just Energy, is the first of its kind to be certified in Canada. If the sales agents are successful, the company could face large liabilities relating to unpaid wages (including overtime, vacation and public holiday pay) and unremitted income taxes and other required deductions. Continue Reading First in Class: Independent Contractor Class Action Certified in Canada
Starting June 10, 2016, Ontario employees have increased protection regarding the tips and gratuities left by customers. As we discussed in a previous post, Bill 12 amends the Employment Standards Act, 2000 (“ESA”) to prohibit employers from withholding, making deductions from, or collecting tips or other gratuities from employees, unless authorized to do so under the ESA.
In the recent decision of Hamilton-Wentworth District School Board v. Fair, 2016 ONCA 421, the Ontario Court of Appeal (“ONCA”) upheld the Human Rights Tribunal of Ontario’s 2013 decision to reinstate an employee, more than 10 years after her employment was terminated. By the time of the ONCA’s decision, almost 15 years had passed since the original termination.
The ONCA’s decision may encourage other decision-makers to order reinstatement as a remedy in discrimination cases. The decision also highlights the importance of considering all possible positions, vacant or not, in order to meet the duty to accommodate employees with disabilities.
A recent decision of the Human Rights Tribunal of Ontario (the “HRTO”) has further defined the scope of the test for “family status” discrimination. Employees may not be required to take measures to find alternative arrangements for infrequent, sporadic or unexpected family needs, before seeking protection under the Human Rights Code (the “Code”). Continue Reading Family Status Discrimination: HRTO Narrows “Self-Accommodation” Requirement
The Thomson Reuters Foundation has announced the upcoming launch of the Stop Slavery Award. The purpose of this award is to honour and recognize businesses that have excelled in their efforts to eradicate forced labour from their supply chains.
Join Baker & McKenzie on January 27, 2016 for the second half of a special, 2-part webinar series, which will focus on key updates in the US and around the globe. Drawing on the legal talent of Baker & McKenzie’s global employment team, the webinars will feature a panel of top lawyers discussing major developments in 2015 and trends to watch for in 2016.
Click here to register.
On December 10, 2015, Bill 109, the Employment and Labour Statute Law Amendment Act, 2015 (the “Act“) received Royal Assent. The Act introduces new labour relations provisions for two large groups of employees in Ontario: firefighters and public sector employees. Most significantly, the Act also amends the Workplace Safety and Insurance Act, 1997 (“WSIA“), increasing employer liability (retroactively, in some cases) regarding workers’ compensation claims and survivor death benefits.
Loblaws, Joe Fresh, Nevsun Resources, Hudbay Minerals, and Tahoe Resources. What do these Canadian companies have in common? They have been targeted in significant lawsuits in Canadian courts for alleged labour and/or human rights violations in their overseas operations or supply chains.
Canadian multinational corporations must take note that our courts are revealing a new willingness to expand their jurisdictional reach in light of modern commercial realities and perceived corporate impunity (see: Chevron Corp. v. Yaiguage, 2015 SCC 42), and they are keeping an open mind as to whether a duty of care exists between Canadian companies and the foreign workers who produce their products (see: Choc v. Hudbay Minerals Inc., 2013 ONSC 1414). This emerging trend in Canada is taking place against the backdrop of hardening and expanding international business and human rights standards and norms.
A key test case for this shift in Canada is the ongoing class action lawsuit against Loblaws and Joe Fresh (the “Loblaws Defendants“), which was launched by Bangladeshi garment workers in response to the well-known 2013 Rana Plaza collapse in Dhaka, Bangladesh, which killed 1,130 workers.