In a recent decision, Modern Cleaning Concept Inc. v. Comité paritaire de l’entretien d’édifices publics de la région de Québec, the majority of the Supreme Court of Canada (“SCC”) held that a cleaner who had a franchise agreement with a cleaning company was actually an employee, not an independent contractor. This “employee” determination, however, was in the context of a very particular legislative regime, which applied to the specific franchise relationship. Since the cleaner offered his cleaning services in public buildings, he was covered by a collective agreement, the Decree respecting building service employees in the Quebec region (“Decree”), which sets out minimum standards in the workplace (wages, hours of work, overtime, etc.) and is governed by the Act respecting collective agreement decrees (“Act”). With the scope of its provisions being “public order”, the Decree can apply to any contract where an individual is in a relationship determined to be that of “employee” within the meaning of the Act.
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Ready to Bargain with the Union? Court-Appointed Receivers at Heightened Risk of Successor Employer Determination
Successor rights are a long standing fixture in Ontario’s labour relations legislation. Generally speaking, under s. 69 of the Labour Relations Act (LRA), the purchaser of a business effectively steps into the seller’s shoes for the purpose of labour relations and becomes bound by any collective agreement that the seller is party to, unless the Ontario Labour Relations Board (OLRB) declares otherwise. The same principle applies where the business is leased, transferred or otherwise disposed of. The fundamental purpose of s. 69 of the LRA is to preserve the bargaining rights of the Union. The idea is that once the Union has been recognized with respect to a particular business, the Union may pursue that bargaining right when all or part of the business is sold.
Whether successor rights extend to the context of court-appointed receiverships had been an unsettled area. Recently, the OLRB determined that a court-appointed receiver that actively operated the debtor’s business through its agent was a successor employer for the purpose of s. 69 of the LRA: United Food and Commercial Workers International Union, Local 175 v Rose of Sharon (Ontario) Community cob as Rose of Sharon Korean Long-Term Care Home, 2018 CanLII 32988 (Rose of Sharon). We outline key aspects of the OLRB’s decision below.
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Back in Class: Overtime Pay Class Action Brought Against Global Travel Retailer
Overtime class actions are in the headlines again. On February 22, 2019, a class action claim seeking damages of over $100 million was filed against Flight Centre, an Australia-based travel services provider with stores in Canada and internationally. The claim alleges that Flight Centre systematically failed to pay overtime to its retail sales employees, referred to as “travel consultants”, requiring them to consistently work more than their scheduled hours, and implemented policies that fail to comply with the overtime entitlements under employment standards legislation.
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Privacy Tort Update – Not So Fast on Public Disclosure of Embarrassing Private Stuff
Around this time last year, we blogged about the decision of the Ontario Superior Court of Justice (the “ONSC”) in Jane Doe 464533 v ND (“Jane Doe“), a case that effectively created a new privacy tort – “public disclosure of embarrassing private facts” (you can read our post here). It was a tort that responded to a disturbing trend on the internet where embarrassing images or videos of people are posted without their consent.
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Employers Take Note: OHSA Amendments Under Bill 132 are Now in Force!
Key elements of Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016 (“Bill 132”) come into force today, amending the Occupational Health and Safety Act (“OHSA”). As a result, employers are required to implement comprehensive policies, programs, and investigative procedures to address workplace harassment. Bill 132 also expands the definition of “workplace harassment” to include “workplace sexual harassment”.
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September is fast approaching – New Sexual Violence and Harassment Law will apply to Ontario Employers
Ontario Legislature Passes Bill 132: What Employers Need to Know
Bill 132 will increase the obligations on employers to protect employees against workplace harassment. The Ontario Government recently passed Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015 and employers will need to comply with its requirements as of September 8, 2016.
Police Record Check Reform Act: Restricting Employer Flexibility in Favour of Individual Privacy
On December 3, 2015, the Ontario Legislature’s Bill 113, the Police Record Checks Reform Act, 2015, (the “Act”) received Royal Assent. The Act represents the first provincial legislation of its kind to provide a comprehensive framework aimed at establishing a consistent standard governing how a “police background check” (“PBC”) is requested, conducted and disclosed in the Province.
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A Frustrating Employment Contract: When Does it End in the Case of Terminal Illness?
Employment contracts can be frustrating, but they can also be frustrated. The former is a simple fact of life, while the latter is a key principle of contract law.
“Frustration” occurs where an unanticipated event destroys the heart of the contract to the point where it can no longer be fulfilled. When a contract becomes frustrated, the parties are relieved of any obligation they were contractually bound to perform. The legal concept, while simple in theory, has been difficult for employers to apply, particularly in the case of absences due to the critical illness or injury of an employee.
In the recent case of The Estate of Christian Drimba v Dick Engineering Inc., 2015 ONSC 2843 (“Drimba”), an Ontario court examined the concept of frustration in the case of the terminal illness of an employee who subsequently passed away. The case provides guidance to employers about the factors a court or tribunal may look at when making such a determination.
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The Vacation is Over: The Ontario Labour Relations Board Declares Secondary School Strikes Unlawful and Sends 74,000 Students Back to Class
On May 26, 2015, the Ontario Labour Relations Board (“OLRB”) released a decision that declared the local strikes by teachers in the Durham, Sudbury (Rainbow), and Peel public school boards to be unlawful. At the time the OLRB hearings were held, there were approximately 74,000 secondary students “out of class” as a result of the strikes.
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Not on My Watch – What Employers Can Do When Unions Come Knocking (Part 2)
In our last post, we gave an overview of the union certification process, talked about why employees might choose to join unions and some signs of union organizing that employers should watch for. In this post, we will discuss what employers can and cannot do during an organizing campaign.
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