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We are pleased to share a recent Benefits Canada article, “Newfoundland and Labrador arbitrator rules pension grievance can proceed despite late filing, citing ‘culture of acquiescence’,” with quotes from Ajanthana Anandarajah.

In this case, an arbitrator ruled that a pension grievance filed seven years beyond a collective agreement’s time limit could proceed because of the employer’s “culture of acquiescence” regarding enforcement of the limit.

Click here to view the article (originally published in Benefits Canada).

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Special thanks to our Baker McKenzie speakers Jim Holloway, Theo Ling and Usman Sheikh, and Industry Experts Mark Crestohl, Senior Counsel, Accenture, Diana Drappel, Assistant General Counsel, Royal Bank of Canada, and Raees Nakhuda, Senior Counsel, Thomson Reuters.

Baker McKenzie is pleased to invite you to a morning breakfast symposium on October 11 exploring the legal ramifications of the Artificial Intelligence (AI) Revolution.

Our symposium will feature two 60-minute panels with leading Baker McKenzie AI team members and also our esteemed client industry experts from Accenture, the Royal Bank of Canada, and Thomson Reuters. 

The panels will explore key industry developments, highlight essential operational considerations involving AI projects, and examine the cutting edge legal and regulatory issues impacting companies now.

Date:

Wednesday, October 11, 2023

Time:

8:00 am – 8:30 am | Registration and Breakfast
8:30 am – 10:30 am | Program

Location:

Baker McKenzie
181 Bay Street
Suite 2100
Toronto, ON M5J 2T3

View the invitation and click here to register.

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Cyberbullying is becoming an increasingly pertinent issue in the workplace. With the growing prevalence of remote work and employee social media groups, employers face greater liability for online communications that occur outside of the office.

While the law is sparse on the topic of cyberbullying, victims may have several legal avenues to address this issue. Employers should review their workplace violence and harassment policies and procedures to ensure they align with the current state of the workplace. In fact, employers ought to consider drafting a standalone cyberbullying policy to ensure they can adequately respond to a complaint of cyberbullying.

In a webinar hosted by the Human Resources Professional Association, our Labour and Employment lawyers discuss how employers can navigate this significant workplace issue, limit their liability, and comply with legal requirements.

Please click here to view highlights from this webinar recording.

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Special thanks to our articling student Ravneet Minhas for contributing to this update.

The Alberta Court of King’s Bench recently became the first Canadian province to recognize the tort of harassment. This development is notable in the face of recent case law out of both British Columbia and Ontario that has declined to recognize a general tort of harassment.  

For example, the Ontario Court of Appeal in Merrifield v Canada (Attorney General), 2019 ONCA 205 overturned the finding of a trial judge who found that the tort of harassment existed in Ontario. The Court’s analysis explained that significant changes to the law should be left to the legislature, and the role of the courts is only to make incremental changes to the law. Similarly, British Columbia courts have also resisted recognizing the tort of harassment (Stein v Waddell, 2020 BCSC 253, Anderson v Double M Construction Ltd, 2021 BCSC 1473). 

The recognition of a general tort of harassment by the Alberta Court of King’s Bench, coupled with case law post-dating Merrifield[1], may lead other Canadian courts to rethink their position on this issue. As discussed further below, Justice Feasby in Alberta Health Services v Johnston, 2023 ABKB 209, recognized the tort on the basis that the harm in question could not be adequately addressed by any existing torts (Nevsun Resources Ltd v Araya, 2020 SCC 5 at para 123). As such, where the facts of a case demand the creation of a novel legal remedy, other Canadian courts may recognize a similar tort of harassment.

Alberta Establishes a Tort of Harassment

In Alberta Health Services v Johnston, Alberta Health Services (AHS) and two of its senior employees sued Mr. Johnston for defamation, invasion of privacy, assault and harassment. Mr. Johnston, an online talk show host and mayoral candidate, used his talk show to frequently criticize the AHS’s response to the COVID-19 pandemic. He repeatedly alleged an intention to prosecute AHS employees for “heinous crimes”, and stated that his goal was to “bankrupt AHS members”. He further referred to the AHS as Nazis and suggested that they should be subject to violent attacks. He particularly targeted one AHS employee, Ms. Nunn, by sharing photos from her social media accounts, attacking her family and alleging that she was an alcoholic. 

The Court awarded Ms. Nunn $300,000 in general damages for defamation, $100,000 in general damages for harassment, and $250,000 in aggravated damages. While the Court held that AHS was not eligible for damages, both Ms. Nunn and AHS were granted permanent injunctions restraining Mr. Johnston. 

In recognizing the tort of harassment, Justice Feasby canvassed the existing case law across the country and found that no existing torts squarely addressed the harms caused by the harassment. He found that while defamation and assault share some elements with harassment, they fall short of clearly addressing the type of harm suffered by Ms. Nunn. Similarly, the new privacy torts only address harassment where there is a reasonable expectation of privacy. 

Justice Feasby also noted that the recognition of the tort was merely a reflection of what Alberta courts have already been doing in the context of granting restraining orders.

In his decision, Justice Feasby defined the tort of harassment to exist where a defendant has: 

  1. Engaged in repeated communications, threats, insults, stalking, or other harassing behaviour in person or through other means;
  2. That he knew or ought to have known was unwelcome;
  3. Which impugn the dignity of the plaintiff, would cause a reasonable person to fear for her safety or the safety of her loved ones, or could foreseeably cause emotional distress; and
  4. Caused harm.
Continue Reading An Emerging Tort of Harassment in Canada?
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Special thanks to our former summer associate Thanusa Sounthararajah for contributing to this update.

On July 1, 2023, the Employment Standards Act, 2000 (“ESA“), was amended to require temporary help agencies (“THAs“) and recruiters to obtain a license to operate in Ontario as of January 1, 2024. In addition, the Ontario government has published three regulations, O.Reg. 99/23, O.Reg. 288/01 and O.Reg. 289/01, that provide guidance on the new licensing regime and related requirements. These regulations also came into force on July 1, 2023.

Summary of Key Changes

The most important changes include:

  • Licensing Requirements: THAs and those who are considered recruiters under the ESA will need to apply for licenses to operate in Ontario. The ESA and O.Reg. 99/23 set out additional details on applying, renewing, refusing and revoking a license.
  • Record-Keeping Obligations: Recruiters will need to retain records of each prospective employee or employer who engages in the recruiter’s services for three years after the recruiter ceases to provide services to that individual. The recruiter will need to ensure that the records retained are readily available for inspection as required by an employment standards officer, to ensure accurate remuneration for employees.
  • Agency and Recruiter Transparency: Under O.Reg. 99/23, businesses and prospective employees in Ontario will now be able to consult the Ontario government’s online database before working with a THA or recruiter, to check if they have met the province’s licensing requirements. It will be a violation of the ESA if businesses knowingly engage and use unlicensed agencies.
  • Penalties: There are prescribed penalties in the ESA for when someone provides false or misleading information in a THA or recruiter license application. The amount can range from $15,000-$50,000. Furthermore, employment standards officers will issue penalties to THAs and recruiters if they operate without a license, and to those who knowingly use an unlicensed THA or recruiter. If businesses hire unlicensed recruiters, they will be responsible for compensating workers for any illegal fees charged to them. The penalties for each contravention are outlined in O.Reg 289/01.
  • Termination and Severance of Employment: Under O.Reg. 288/01, if an employment contract is terminated because the Director of Employment Standards has refused, revoked or suspended a license, the employment contract is not frustrated. The employee may still be entitled to termination or severance pay as per the ESA.

Key Takeaways

The Ontario government implemented these new licensing requirements to protect employee rights and to ensure that THAs and recruiters are all competing on a level playing field.

THAs and recruiters under the ESA should ensure that they are onside with the new requirements by the prescribed deadlines. Additionally, businesses and those working with THAs and recruiters must ensure that they are aware of and comply with these new amendments.

If you have any questions or need assistance with any of the above, please contact someone from our team.

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Special thanks to our former articling student, Eloise Somera.

In British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd., 2023 BCCA 168 (“Gibraltar Mines“), the British Columbia Court of Appeal upheld the BC Human Rights Tribunal’s decision that a change in employment terms is not a necessary precondition to a finding of prima facie discrimination based on family status.

The Relevant Legal Tests

In Moore v. British Columbia (Minister of Education), 2012 SCC 61 (“Moore“), the Supreme Court of Canada outlined the test for establishing discrimination in the workplace:

  • The employee must first demonstrate prima facie discrimination by proving that:
    • they have a characteristic protected under human rights legislation;
    • they have experienced an adverse impact; and
    • the protected characteristic was a factor in the adverse impact.
  • If an employee establishes prima facie discrimination, the burden then shifts to the employer to justify its requirement as a bona fide occupational requirement that cannot be accommodated without undue hardship.

In conjunction with this general test, the British Columbia Court of Appeal in Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 (“Campbell River”) elaborated on what is required to prove prima facie discrimination based on family status. The Campbell River test requires an employee to prove:

  • a change in a term or condition of employment by the employer; and
  • that the change resulted in a serious interference with a substantial parental or other family duty or obligation.

The Campbell River test was reaffirmed in Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46 (“Suen”).

Factual Background

Continue Reading A Change in Employment Terms is No Longer Required to Constitute <em>Prima Facie </em>Family Status Discrimination – The British Columbia Court of Appeal Clarifies
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Special thanks to our summer associate Keyonna Trojcak for contributing to this blog.

On July 1, 2023, Ontario implemented a number of amendments to Regulation 854 – Mines and Mining Plants under Ontario’s Occupational Health and Safety Act. Effective September 1, 2023, additional requirements will take effect.

The Regulation has and will create many new safety obligations for employers in Ontario’s mining industry, and will increase the requirements for safety policies and procedures in mining operations across Ontario. You can find the newest version of the Regulation with all of the changes here.

Summary of Key Changes Effective July 1, 2023

  • Flammable Hazards: Oil, grease and flammable liquids must be stored or transported in metal containers, receptacles or portable containers or safety cans that are government-approved when being used underground.
  • Ladderways: Where a worker could fall more than three meters, a ladderway should be fixed in place with a safety cage and a protective device to prevent the worker from falling. Furthermore, if a ladderway is seven meters or longer and at an angle step greater than 70 degrees, the ladderway needs to have platforms at intervals not greater than seven meters.
  • Mine Design: Mine designs must now be prepared under the direction of an engineer, instead of a “competent person.” Mine designs will also be required to describe both the geology and geotechnical aspects of the mine.
  • Power Sources: Independently powered conveyances used instead of a ladderway must have a source of power that is independent of the main power source of the mine, and must be capable of safely transferring persons through the shaft to a location they can use to safely exit the shaft. These must be readily available for use.
Continue Reading Digging into the Amended Ontario <em>Occupational Health and Safety Act </em>Mining Regulation
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On June 27, 2023, Canada’s Minister of Immigration, Refugees, and Citizenship launched Canada’s new Tech Talent Strategy. Through this strategy, Canada hopes to improve on existing measures and introduce new measures for attracting top talent and supporting high-growth STEM industries and occupations. Additionally, on the same day, the Minister announced that study authorization would be extended for certain eligible work permit holders.

What’s Changing: Study Authorization for Work Permit Holders

Starting immediately, this new public policy removes the limit on the length of study programs that a temporary foreign worker can enroll in without a study permit—which previously was limited to programs of six months or less in duration. Now, regardless of the program length, foreign workers will now be able to improve their education, upskill or validate their foreign credentials through certain programs, or receive additional professional training, without needing to first apply for a study permit. It should be noted, however, that any Canadian work experience gained during a period of full-time study may negatively impact a person’s eligibility for permanent residence, as this work experience does not count toward eligibility for the Canadian Experience Class, nor for receiving Canadian work experience points under the Express Entry system.

Continue Reading Canada’s First-ever Tech Talent Strategy
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Special thanks to our summer associate Daniel Dai for contributing to this update.

British Columbia’s Pay Transparency Act, which received royal assent on May 11, 2023, imposes pay disclosure and reporting obligations on both public and private sector employers to address systemic discrimination in the workplace. It is the latest in a series of new pay transparency laws across Canada.

This push for more transparency to bridge the pay gap for historically disadvantaged groups is a global trend. In the United States, 8 states, including California, Colorado and Washington, along with cities like New York City, have recently adopted salary disclosure laws. There is also pending legislation at the federal level—the Salary Transparency Act—that would require all job postings to include the wage or wage range for a position. Similarly, the European Parliament approved the Pay Transparency Directive in March 2023, which is set to enter into force in 2024. Among other things, this Directive establishes a right to certain pay information and imposes pre-employment pay disclosure obligations on both public and private sector EU employers.

Recent Canadian Developments

Continue Reading The Legislative Push for Pay Transparency in Canada Mirrors Global Trend
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On May 31, 2023, Immigration, Refugees, and Citizenship Canada (IRCC) announced a significant change in the Express Entry application management system. They will now conduct category-based selection draws to provide more opportunities to skilled workers in specific occupations who may not otherwise receive an Invitation to Apply (ITA) for permanent residence. This change aims to support individuals working in Canadian industries facing or expected to face labour shortages.

Background

The Express Entry system operates on a points-based system, where applicants earn points for personal characteristics including age, language ability, education, work experience (both inside and outside Canada), and arranged employment in Canada.

However, even with attributes like work experience and strong language skills, some individuals may not have enough points to receive an ITA for permanent residence. Consequently, eligible candidates remain in the candidate pool without the ability to submit an application. To address this, IRCC is introducing targeted draws to assist skilled workers in high-demand occupations who have a lower points score. This change provides more predictability for Canadian businesses in specific industries to invest in foreign talent, while reducing the burden and costs associated with ongoing work permit extensions and compliance administration.

What’s changing

Category-based selection draws will initially focus on industries with the highest demand, such as STEM occupations and healthcare professions, which are already experiencing widespread labour shortages expected to worsen due to increasing retirement rates.

Continue Reading Addressing labour shortages in Canada through changes to Express Entry