The Supreme Court declined to grant Benson Group leave to appeal the Ontario Court of Appeal decision in Howard v. Benson Group Inc., meaning that the $188,000 award to an employee dismissed after completing only 23 months of a five-year fixed term contract will stand. The original court found that the termination provision in the contract was unenforceable due to ambiguity and ordered a mini trial to determine common law notice. The Court of Appeal nixed the idea of a common law award and ordered instead that the employee be paid out for the remainder of the fixed term, approximately 3 years. It also found that fixed term employees are under no duty to mitigate, unless the agreement provides otherwise. The case is a cautionary tale on the high cost of ambiguity in fixed term contracts, particularly with respect to termination provisions. This TDS LLP article summarizes the key takeaways for employers.

In Sistema Toronto Academy Inc. v. M.N.R., 2016 TCC 193, the Tax Court of Canada upheld a Canada Revenue Agency finding that six instructors hired by a non-profit organization to provide music instruction to disadvantaged youths were employees and not independent contractors as claimed by the non-profit. Some of the instructors had worked as employees initially, but the non-profit eventually started treating all instructors as independent contractors and modified their engagement letter to reflect this characterization. After examining the relevant factors to determine the central question of whether a service provider is providing the services as a business or not (control, who provided equipment, profitability, degree of risk, and investment/management responsibilities), the court concluded that the objective reality of the terms and conditions of the work relationship suggested a contract for service, notwithstanding a subjective intention on the part of some instructors who had signed the new engagement letter to work as independent contractors.

Two recent Manitoba Labour Board decisions (K.X.S. v Winnipeg (City), 2016 CanLII 70385 (MB LB) and S.T. v Winnipeg (City), 2016 CanLII 70384 (MB LB) concern unsuccessful applications against unions for unfair labour practices under s. 20 of The Labour Relations Act (involving the duty of fair representation). In both cases the board dismissed the application, finding no evidence that the union and its representatives acted in an arbitrary or discriminatory manner or that their actions were reflective of “bad faith.” The first case involved the union’s decision (after legal advice) not to advance a terminated employee’s reinstatement grievance to arbitration; and the second case involved the union’s denial of a former employee’s request to proceed to arbitration concerning her entitlement to be paid back wages pursuant to an underpayment agreement made after she quit working.

Following the agreement in principle executed last spring by Canada’s finance ministers, the federal government introduced legislation to enhance the Canada Pension Plan on October 6, 2016: Bill C-26, An Act to amend the Canada Pension Plan, the Canada Pension Plan Investment Board Act and the Income Tax Act. As the proposed enhanced benefits will require higher contribution rates from both employers and employees, they will be phased in slowly over a 7-year adjustment period starting in 2019. For further details see the legislative summary, the backgrounder, and this Osler blog post. Target Benefit Plans are also on the government’s agenda. Bill C-27, An Act to amend the Pension Benefits Standards Act, 1985, received first reading October 19, 2016. It amends the Pension Benefits Standards Act, 1985 to provide a framework for the establishment, administration and supervision of target benefit plans by federally regulated employers. For an explanation of what that means for employers read Target Benefit Plans Soon to be Available for Federally Regulated Employers.

Federal The House of Commons passed Bill C-4, An Act to amend the Canada Labour Code, the Parliamentary Employment and Staff Relations Act, the Public Service Labour Relations Act and the Income Tax Act, on October 19, 2016. The bill, now before the Senate, repeals the amendments previously brought by the former government in bills C-525 and C-377 (making union certification more difficult and requiring unions to track their spending, among other things). Bill C-5, Economic Action Plan 2015 Act, No. 1, was introduced and received first reading on February 5, 2016 and second reading on September 21, 2016. It repeals Division 20 of Part 3 of the Economic Action Plan 2015 Act, No. 1, which authorizes the Treasury Board to establish and modify terms and conditions of employment related to the sick leave and disability regime of employees of the core federal public administration, notwithstanding the provisions of the Public Service Labour Relations Act. Bill C-7, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures, introduced March 9, 2016, was amended by the Standing Committee on Public Safety and National Security and and passed in June. Among other things, Bill C-7 amends the Public Service Labour Relations Act to provide for a labour relations regime for members of the Royal Canadian Mounted Police and reservists. It also amends the Royal Canadian Mounted Police Act to bar grievances related to the interpretation and application of a collective agreement or arbitral award, which are to be filed in accordance with the Public Service Labour Relations Act. Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code, passed second reading on October 18, 2016, and has been referred to the Standing Committee on Justice and Human Rights. It proposes amendments to the Canadian Human Rights Act to add gender identity and gender expression to the list of prohibited grounds of discrimination and to the Criminal Code to extend the protection against hate propaganda to any section of the public that is distinguished by gender identity or expression and to affect sentencing on such crimes. For further information see the legislative summary, departmental information, and the Slaw article Gender Identity and Gender Expression Protection Under the Law. S-201, the Genetic Non-Discrimination Act, passed by the Senate with amendments on April 14, 2016, passed second reading before the House of Commons on September 20, 2016. It prohibits any person from requiring an individual to undergo a genetic test or disclose the results of a genetic test as a condition of providing goods or services to, entering into or continuing a contract or agreement with, or offering specific conditions in a contract or agreement with, the individual. Specifically it amends the Canada Labour Code to protect employees from being required to undergo or to disclose the results of a genetic test, and provides employees with other protections related to genetic testing and test results. It also amends the Canadian Human Rights Act to prohibit discrimination on the ground of genetic characteristics. Provincial Bill 7, The Labour Relations Amendment Act, passed second reading October 13, 2016. As detailed in the explanatory note, it amends The Labour Relations Act to make a vote by secret ballot mandatory before a union can be certified as the bargaining agent for a group of employees. Bill 15, The Sexual Violence Awareness and Prevention Act (Advanced Education Administration Act and Private Vocational Institutions Act Amended), was introduced October 12, 2016 and passed second reading on October 17, 2016. It requires several Manitoba educational institutions (in consultation with students) to adopt and implement policies that raise awareness of sexual violence and address prevention and reporting. For further details see the explanatory note.

Marijuana and the Canadian workplace – this InHouse article discusses how changes to marijuana laws (particularly as regards the use of medical marijuana) will affect employers and what policy amendments will be required. Ten Top Tips For Age Aware Employers – this list alerts for employers potential inadvertent age discrimination in their policies and processes. Human Rights: 25 Years in Review – this Rubin Thomlinson blog post contains a useful summary of the most notable developments in workplace human rights and how their underlying principles have been applied. Protection from reprisals - this Lawyers Weekly article discusses Ontario legislation and case law protecting employees from reprisals when they assert their rights in the workplace.

eFiling at QB: Next Up – Judicial Reviews - Attend this session to see a demonstration of the new eFiling system at the Court of Queen’s Bench, which will impact all judicial review applications effective January 4, 2017. Lawyers, legal assistants and firm managers are encouraged to attend on November 21, 2016, from noon to 2:00 pm at the Law Society classroom. Plain Language Communication – Learn to communicate more effectively using plain language at this lunch program to be held November 23, 2016 at the Law Society classroom. Registration discounts apply to students and teleconference participants. NEW Language Rights Rule – This program will examine ethical and professional obligations under the new Code of Professional Conduct rule on language rights and offer practical suggestions for both solicitors and litigators to meet those requirements. It will be held at the Law Society classroom on November 24, 2016. You are Not Alone: The Lawyer’s Guide to Dealing with Anxiety – Learn how to recognize and manage anxiety at this highly recommended program developed specifically for Manitoba lawyers by the Anxiety Disorders Association of Manitoba. Take advantage of our reduced rate and register to attend on November 29 or 30, 2016, from 12 noon to 1:30 pm. Retiring Without Debt – If your New Year’s resolutions typically involve plans to get on top of debt you’ll want to attend this upcoming webinar on debt free retirement. Presenter Tim St. Vincent, from the Credit Counselling Society, will discuss strategies to eliminate debt at this timely webinar, which takes place from noon to 1:00 pm on January 6, 2017.

The 2nd Annual MBA Labour Law section Wine & Cheese Reception will be held from 5:00 to 7:00 pm on November 10, 2016, at the Artis Building Conference Centre – Main Floor, 360 Main Street. RSVP to the Manitoba Bar Association to confirm your attendance. Arguing Charter Competence before Administrative Tribunals – Speaker Byron Williams, of the Public Interest Law Centre, will review what the case law says on the Charter competence of administrative tribunals, discuss how to prepare to argue Charter competence, and reflect on the pros and cons of this “extended” jurisdiction, at this lunch session to be held November 24, 2016 at the 2nd floor conference room, 444 St. Mary Avenue.

The 22nd Annual Manitoba Labour Law Review will be held November 8-9, 2016 at the Victoria Inn Hotel & Convention Centre, Winnipeg. Topics to be discussed include: top arbitration and Labour Board decisions, accommodation update, privacy in the workplace, and duty to warn.