Ontario employers face a number of new challenges in 2018 as a result of the Fair Workplaces, Better Jobs Act, 2017 (“Bill 148”). To help employers navigate the many changes under Bill 148, we have outlined the key changes that employers need to be aware of. We have also indicated planning actions to consider in view of these changes.
Continue Reading

In 2013, the Supreme Court of Canada confirmed that, before employees in safety sensitive positions can be subjected to random drug and alcohol testing, it must be established that there is a general problem of substance abuse in the workplace (see our article summarizing that decision here)But what evidence is relevant to this inquiry? Should the employer consider its entire industry, its particular worksites, or just the employees in a particular bargaining unit?
Continue Reading

Random drug and alcohol testing for most Toronto Transit Commission (TTC) employees can proceed following a decision of Justice Marrocco denying the ATU Local 113’s application for an injunction earlier this week. The ruling permits the TTC to test 10,000 of its 14,000 employees, including those deemed to be in “safety-sensitive” jobs, as well as those in designated management positions and all executives (including CEO Andy Byford) under the TTC’s Fitness for Duty Policy (the Policy).
Continue Reading

On July 15, 2016, we wrote about the Supreme Court of Canada’s recent decision in Wilson v. Atomic Energy, 2016 SCC 29 (“Wilson”). In that case, the SCC held that most federally-regulated, non-union employees with 12 or more consecutive months of service can only be dismissed for “just cause”. See our earlier blog post here.

Following the Wilson decision, many federal employers were left wondering whether they still have the right to downsize or impose layoffs in response to a decline in their business. Such employers will be happy to learn that “downsizing” imposed for legitimate business reasons is still possible (subject to certain restrictions). Under s. 242(3.1)(a) of the Canada Labour Code, RSC, 1985, c L-2 (the “Code“), an adjudicator will not consider the complaint of an employee who has been laid off due to a “lack of work” or “discontinuance of a function”.
Continue Reading

As some of our regular readers might recall, in November 2013, the Supreme Court of Canada (“SCC”) released an interesting decision declaring Alberta’s privacy legislation, the Personal Information Protection Act (“PIPA”) unconstitutional, and giving Alberta’s legislature 12 months to come up with something new. In declaring PIPA unconstitutional, the SCC pitted a union’s freedom of expression against an individual’s right to privacy, holding that privacy legislation must be sufficiently flexible to allow a union to collect, use, and disclose personal information without consent for legitimate purposes, including to protect a union’s ability to communicate, to persuade the public, and to use one of its most effective bargaining tools: picketing.

Last month, the Alberta legislature passed the new PIPA which allows a union to collect, use, and disclose personal information without the consent of the individual to whom the information relates in relation to a labour dispute if the personal information is:

  • For the purpose of informing or persuading the public about a matter of significant public interest or importance relating to a labour relations dispute involving the trade union;
  • Reasonably necessary for that purpose; and
  • It is reasonable to collect the personal information without consent for this purpose, taking into consideration the relevant circumstances including the nature and sensitivity of the information.
    Continue Reading

In Bernard v Canada (Attorney General), 2014 SCC 13, the Supreme Court of Canada confirmed that employee privacy rights do not override a union’s right to receive the information that it requires to fulfill its representational duties.  Accordingly, employers may be required to disclose information that will allow a certified union to contact members of its bargaining unit at home, and failure to do so may constitute an unfair labour practice.


Continue Reading