Equity Partner Not an Employee: SCC

The test for whether a law firm equity partner could be considered to be an employee under the BC Human Rights Code is contextual and depends upon the degree of employer control and employee dependency, according to the Supreme Court in McCormick v. Fasken Martineau DuMoulin LLP, 2014 SCC 39. The court found that the BC lawyer who challenged the mandatory retirement policy in his firm's partnership agreement on the basis that it was age discrimination, was not in an employment relationship. Rather, as an equity partner, he was part of an employer collective that controlled the workplace conditions and remuneration of the firm's employees. Unlike the Court of Appeal, however, the Supreme Court did not rule out the possibility of a partner being an employee under the Code, but said "such a finding would only be justified in a situation quite different from this case, one where the powers, rights and protections normally associated with a partnership were greatly diminished." (para. 46)

Pregnant Teacher Entitled to Refuse Unsafe Work: SCC

A pregnant supply teacher who was vulnerable to contagious viruses which could harm her fetus was a "worker" within the meaning of Quebec's occupational health and safety legislation and entitled to refuse unsafe work in the classroom according to the Supreme Court in Dionne v. Commission scolaire des Patriotes, 2014 SCC 33. As noted in this Gowlings article, the court's broad interpretation of Quebec's preventive withdrawal scheme will have implications for employers even in jurisdictions lacking such legislated protections.

Accommodating Employees With Childcare and Family Responsibilities: FCA

Childcare obligations fall under the protected ground of family status under the Canadian Human Rights Act and must be accommodated according to the Federal Court of Appeal in Canada (Attorney General) v. Johnstone, 2014 FCA 110. The court sets out a four part test for accommodation of family status at para. 93:

in order to make out a prima facie case where workplace discrimination on the prohibited ground of family status resulting from childcare obligations is alleged, the individual advancing the claim must show (i) that a child is under his or her care and supervision; (ii) that the childcare obligation at issue engages the individual's legal responsibility for that child, as opposed to a personal choice; (iii) that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible, and (iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.

The court found that Ms Johnstone, a border services employee whose employer refused her request to change to static shifts on a full time basis following the birth of her first child because it had no duty to accommodate her childcare responsibilities, had "clearly made out a prima facie case of discrimination on the ground of family status resulting from childcare obligations."  

The court applied the Johnstone principles in companion case Canadian National Railway Company v. Seeley, 2014 FCA 111. These articles discuss the landmark decisions:

• Federal Court of Appeal Rulings on Landmark Family Status Cases - Slaw
• Johnstone v. Canada Border Services Agency: Federal Court of Appeal unanimously upholds family status accommodation obligations - Gowlings

Learning From Wal-Mart's Mistakes: ONCA

Much has been written about the Ontario Court of Appeal decision in Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, in which the court reduced the jury's punitive damages award against Wal-Mart for failing to act against workplace bullying from $1.1 million to $110,000. As these commentators point out, despite Wal-Mart's success in reducing the massive award, the case should still serve as a cautionary tale for employers to take employee complaints about workplace misbehaviour seriously:  

• How Much Punishment Is Enough? Lessons Learned From "Boucher v. Wal-Mart Canada" - Gowlings
• Massive Aggravated Damage Awards Contain a Punitive Element - Slaw

Legislative Update

Bill 54, The Labour Relations Amendment Act (Time Lines for Labour Board Decisions and Hearings), received royal assent and came into force June 12, 2014. As the explanatory note indicates, it "requires the Manitoba Labour Board to make regulations setting out the time periods within which it will make decisions following the hearing of a complaint, application or referral to the Board. In the case of applications for union certification or decertification, the Board must also make regulations setting out the time period within which it will hold a hearing."

Bill 65, The Workers Compensation Amendment Act, received royal assent June 12, 2014 and will come into force on proclamation. It broadens claims suppression offences and proposes substantial fine increases for offences under the Act (the ceiling for worker fines would increase to $5000 and the ceiling for employer fines would increase to $50,000). The bill also introduces several injury prevention strategies which are discussed in the explanatory note.  

Bill 33, The Apprenticeship Employment Opportunities Act (Public Works Contracts), received royal assent on June 12, 2014, and will come into force on proclamation. As indicated in the explanatory note it requires the government and certain public sector bodies to implement an apprenticeship policy to ensure that public works contractors employ apprentices.

Bill 50, The Protection for Temporary Help Workers Act (Worker Recruitment and Protection Act and Employment Standards Code Amended), amends The Worker Recruitment and Protection Act to require temporary help agencies to be licensed. A temporary help agency is prohibited from charging its temporary employees fees for services that the agency provides and from taking actions that will restrict its employees from becoming employed by others. The director is also given the ability to authorize an unlicensed individual to recruit a foreign worker on an employer's behalf, if the position to be filled pays at least double the Manitoba industrial average wage.

Part 2 of the Bill amends The Employment Standards Code to entitle a temporary help employee to notice of termination or wages in lieu of notice.

Bill 64, The Court of Queen's Bench Small Claims Practices Amendment Act, received royal assent on June 12, 2014, and will come into force on proclamation. Key amendments are summarised in the explanatory note. They include clarification on appeals and on which matters must be decided by a judge, and specify that evidence given at a hearing must be recorded.

Rule 20 Amendment in Force

Rule 20 has been amended by Manitoba regulation 54/2014 to provide that summary judgment motions shall be heard by a judge, rather than a master, in the first instance. The amendment came into effect June 1, 2014

Recommended Reading

Perspectives - the June 2014 edition of the CBA's National Labour and Employment Law section newsletter contains articles on enforcing post-employment obligations, restrictive covenants, injunctions in employment law, and non-competition clauses and restraint of trade.  

Employment lawyers should prepare for new world following mental-distress ruling - this Law Times article discusses the potential impact of an Ontario tribunal ruling on chronic workplace-related stress.

Employment and Labour Law Conference 2014 (Montreal) and (Toronto) - these Davis LLP publications contain the materials from their May 2014 conferences on employment and labour law, including research papers on Accommodating Gender in the Workplace, Progressive Discipline in an Age of Harassment, Employee Privacy Rights, Reference Checks, and Top Developments in Labour and Employment Law, as well as Powerpoint slides on technology and employment law, the hostile work environment, hiring temporary foreign workers, and off-duty misconduct. (Hint: the booklets are lengthy and you will have to scroll through to find the papers.)  

Annual Accommodation in the Workplace Program: Save the Date

The joint LSM/MBA 11^th annual Accommodation in the Workplace program will be held October 24, 2014. Among the many topical issues to be discussed are the four point test in accommodating family status from the Johnstone case, mandatory retirement and partnership, accommodating potholes, and addictions. Register early to make sure you get a spot.

Fall CPD: LSM

Register now to take advantage of early bird prices or group discounts on these fall CPD programs at the Law Society:

Making Great and Lasting First Impressions - discover simple ways to enhance your image and connect with others at this lunch hour webinar on September 23, 2014. Group registrants receive a discount.  

Perfecting the Twenty-First Century Law Practice - Law office management expert Jim Calloway, Director of the Oklahoma Bar Association Management Assistance Program, will be in town October 3, 2014 to present this all day program on the many ways to improve your practice. Register now to take advantage of the early bird rate.

June MBA Programs

The New Social Security Tribunal - The Administrative Law section will host this webinar presented by the general counsel of the Social Security Tribunal on June 26, 2014. The tribunal has been hearing appeals in relation to the Employment Insurance Act, the Canada Pension Plan and the Old Age Security Act since April, 2013. The presenter will discuss the new system and the changes made in April 2014 relating to first level CPP and OASA appeals.    

Small Claims Court Primer - The Young Lawyers' section will host this lunch program to be held July 11, 2014 at the Law Society classroom. Speakers Karen Poetker and Matthew Maslanka will discuss how to prepare and file a small claim and bring it before a hearing officer.

Progressive Discipline Seminar

The Centre for Labour-Management Development is holding a one-day Progressive Discipline Seminar on June 26, 2014 at the Hotel Fort Garry. Presenter Grant Mitchell, Q.C. will review the fundamentals of progressive discipline and provide guidelines for handling various discipline scenarios such as poor performance, drug and alcohol misconduct, absenteeism, and human rights issues.