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eLaw - Labour and Employment Update
October 2014 - No. 14
ISSN 1916-3916
In This Issue
"Bound to Fail" Case Dismissed: SCC
Other SCC Decisions on Quebec Labour Issues
Unpaid Overtime Class Action Settlement Approved: ONSC
Legislative Update
Temporary Foreign Worker Program Update
Recommended Reading
Pitblado Lectures
Continuing Professional Development: LSM
National Conference: CBA
"Bound to Fail" Case Dismissed: SCC

A Quebec union's bid to revive a dispute over the federal government's ability to accumulate and reallocate EI surpluses had "no reasonable chance of success" said the Supreme Court in Canada (Attorney General) v. ConfÈdÈration des syndicats nationaux, 2014 SCC 49, since the union's main argument (whether the government's Consolidated Revenue Fund was indebted to the Employment Insurance Account) had already been decided in a previous SCC case dealing with the same issue. The decision is being lauded for clarifying the test for stare decisis and for reinforcing the court's views on enhancing access to justice:

Supreme Court of Canada Dismisses EI Case Based on Stare Decisis - Slaw

Preliminary Dismissal of Meritless Case: A Second Message of Encouragement from the Supreme Court - Canadian Appeals Monitor
Other SCC Decisions on Quebec Labour Issues

The Supreme Court confirmed in Quebec (Commission des normes du travail) v. Asphalte Desjardins inc., 2014 SCC 51 that, as is the case for employers in other provinces, Quebec employers seeking to terminate employment before an employee's resignation date must provide reasonable notice or pay in lieu. The court disagreed with the QCA interpretation of the termination provisions in the Civil Code of Quebec. These articles discuss the decision:
And, in United Food and Commercial Workers, Local 503 v. Wal-Mart Canada Corp., 2014 SCC 45, the court restored the original ruling of the arbitrator that Wal-Mart had violated Quebec labour law when it shut down its JonquiËre store during collective agreement negotiations. As noted in these commentaries, while based on Quebec law, this decision will apply both federally and in other provinces, since the statutory freeze mechanism is not unique to Quebec:
Unpaid Overtime Class Action Settlement Approved: ONSC

The Supreme Court of Ontario recently approved settlement of the class action in Fulawka v. Bank of Nova Scotia, 2010 ONSC 1148, providing class members with a remedy that will likely cost the bank in excess of $95 million. The case is one of a number of unpaid overtime class actions against employers who have traditionally refused to pay overtime. The settlement came after nearly seven years of litigation, including a hard fought certification that ended when the SCC denied leave to appeal in March of 2013. Under the settlement, class members will submit simple claims for unpaid hours worked, regardless of whether the overtime was approved or not. Any claims rejected by the bank can be appealed to an arbitrator. The court also approved the $10.45 million legal fees award and a $15,000 honorarium for the representative plaintiff.
Legislative Update

Federal
Amendments to Part II of the Canada Labour Code (from Bill C-4) will come into effect October 31, 2014. The changes to Part 3, Division 5 are described in this executive summary and in this description of Division 5. Among other things, the amendments redefine the definition of "danger" in the context of work refusals and introduce a new process for complaints enforcement.  For a critical response see this submission by the CBA's Labour and Employment Law section chair and the Law Times article Public sector employee protections watered down under Bill C-4. This Lavery article discusses the implications for employers.

Manitoba
Sections 1, 2, 6 to 8, 10, 11, 13 and 14 of The Workers Compensation Amendment Act were proclaimed into force October 15, 2014, establishing a prevention committee to oversee SAFE Work Manitoba on workplace prevention initiatives, public awareness campaigns, planning, and budgeting. The balance of the Act (introducing greater rewards for employers who act to increase workplace safety and penalizing those who suppress claims) will come into force January 1, 2015. See the explanatory note to Bill 65 and the government news release for further details.
Temporary Foreign Worker Program Update

The federal government announced another series of changes to the temporary foreign workers program on June 20, 2014. The changes are aimed at limiting access to the program, establishing better labour market information, and strengthening enforcement and penalties.  Review are mixed. For commentary on the changes see these posts:
Recommended Reading

These papers are from a May 2014 Davis LLP conference on employment and labour law:
Policy on Preventing Discrimination Based on Mental Health Disabilities and Addictions - this Ontario Human Rights Commission policy is a comprehensive guide to assessing, handling and resolving human rights matters related to mental health and addictions. It discusses Ontario and federal law on this issue and on the duty to accommodate.

The future of unconventional restrictive covenants - this Lawyers Weekly article discusses a recent BCCA decision in which the court rejected the usual formalistic approach and instead used a functional analysis to find that an unconventional restrictive covenant was a restraint of trade.

Cannabis Quandary - this Lexpert article discusses how employers are implementing random drug and alcohol testing post Irving, and the emerging issue of medical marijuana use in the workplace.
Pitblado Lectures

The 2014 Isaac Pitblado Lectures, Accessing Justice: Beyond Barriers, will take place November 28-29, 2014 at the Fort Garry Hotel. Presenters will examine how access to justice demands may affect legal education, professional practice, regulation, and ethics; and make the business case for law firms to participate in access initiatives.
Continuing Professional Development: LSM

Upcoming cpd programming options at the Law Society include:

The Approximately 11th Annual Accommodation in the Workplace - don't miss the 11th installment of this popular program co-presented by the MBA and the LSM on October 24, 2014. Presenters will review such recent developments in accommodation law as accommodating family status and choosing the right forum for complaints.

Everyday Ethics Series - Register for multiple sessions in this 6 month series of lectures on ethics issues featuring Allan Fineblit, Q.C. and save money as you learn what you need to know to practise responsibly.

NEW Expert Opinion Evidence - counsel of all experience levels encounter challenges when working with expert witnesses. Experienced litigators Steve Vincent and Jeff Baigrie will walk you through what you need to know about expert opinion evidence at this lunch hour program on February 20, 2015. Register now to ensure your spot.
National Conference: CBA

The CBA's 15th Annual Administrative Law, Labour and Employment Law Conference, Navigating the Future: Emerging Issues for Practitioners in Administrative, Labour and Employment Law, will be held November 28-29, 2014 in Ottawa, Ontario. In addition to the usual year in review and view from the bench sessions, program topics include a fireside chat with Retired Chief Justice of Ontario, Warren Winkler; digital evidence; issues in labour arbitration; and attacking/defending the record on judicial review.
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