eLaw - Labour and Employment Law Update | June 2018 - No. 32

The Law Society of Manitoba
Professional Education and Competence 		The Law Society of Manitoba
eLaw Labour and Employment Law Update June 2018
In This Issue
Ensuring Workplace Safety a Shared Responsibility: SCC
Pay Equity Regimes Scrutinized: SCC
Duty to Accommodate Disabled Employees
a Fundamental Tenet of Labour Law: SCC
Unsuccessful Appeal of Bad Faith Claim: MBCA
Ungovernable Conduct Finding and Penalty Upheld: MBCA
Reasonable Notice, Compensation for Manner of Dismissal and
Failure to Mitigate: MBCA
Evidence Insufficient to Prove Overtime Claim: MBQB
Non-surreptitious Surveillance Reasonable: MB LA
Legislative Update
Federal Budget 2018
Recommended Reading
Summer CPD Replays: LSM
Save the Date

Ensuring Workplace Safety a Shared Responsibility: SCC

In West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, a majority of the Supreme Court upheld a BC appeal tribunal finding that the owner of a forest property on which an independent contractor’s employee was killed while felling trees was an employer within the meaning of the Workers Compensation Act and could be fined for failure to meet its safety obligations. The majority found at para. 43 that “a broad interpretation of s. 196(1) to include employers under the Act whose conduct can constitute a breach of their obligations as owners will best further the statutory goal of promoting workplace health and safety and deterring future accidents;” that “(t)here is a connection between increased remedies against owners who hold duties as employers for given workplaces and increased occupational health and safety;” and that “(t)he general scheme of the Act is to hold both owners and employers responsible in an overlapping and cooperative way for ensuring worksite safety.”  For key takeaways see:

Supreme Court of Canada Upholds Workers’ Compensation Order Against Site Owner – McCarthy Tetrault

Am I my brother’s keeper? Supreme Court of Canada confirms employers are responsible for the safety of their contractors’ employees as well as their own employees – DLA Piper

SCC upholds claim of workers compensation against a non-employer – Canadian Lawyer

Pay Equity Regimes Scrutinized: SCC

The Supreme Court considers Quebec’s pay equity regime in two recent decisions: Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18 and Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17. In the former, the court upheld the constitutionality of a section of the Act allowing a further 2 year delay (the total delay was 6 years) in establishing a methodology to implement pay equity in workplaces with no male comparator job classifications. In the majority’s view, the steps taken by the government to keep the delay within reasonable bounds were not unreasonable and the employees benefited from the end result. In the latter case, a 6-3 majority upheld the striking down of provisions granting “pay equity amnesty” to employers for up to 5 years. The court noted that pay inequities emerging during the five year period between audits go uncorrected until the next audit and no retroactive adjustments are made unless bad faith by the employer is proven. These articles discuss the decisions:

Certain Provisions of Quebec’s Pay Equity Act Are Invalid, SCC Rules – Blakes

Supreme Court of Canada Releases New Charter Cases on Systemic Discrimination – Pink Larkin

Duty to Accommodate Disabled Employees a Fundamental Tenet of Labour Law: SCC

In Quebec (Commission des normes, de l’équité, de la santé et de la sécurité du travail) v. Caron, 2018 SCC 3, the Supreme Court confirmed that employers have a duty to accommodate workers who have suffered workplace injuries even where the legislation does not explicitly say so. According to the court at para. 27, “the duty to accommodate requires accommodation to the point that an employer is able to demonstrate ‘that it could not have done anything else reasonable or practical to avoid the negative impact on the individual.’” The practical implications of the decision are discussed in these articles:

Supreme Court of Canada Confirms That the Duty to Accommodate Applies to Workers Injured at their Workplace - BLG

SCC Integrates Reasonable Accommodation Concept Into Assessment Of The Right To Return To Work - Blakes

Unsuccessful Appeal of Bad Faith Claim: MBCA

In Warkentin v BMO Nesbitt Burns Inc et al, 2018 MBCA 22, an investment advisor was unsuccessful in appealing the dismissal of his breach of contract case against his former employer, who had let him go without cause when they discovered he was under investigation for falsification of documents concerning his assets on a loan application. The advisor argued that his termination constituted a breach of contract since BMO had hired him with full knowledge of the misconduct. The appeal court found that the trial judge had not erred in his credibility assessments; in finding a lack of bad faith or deceit on BMO’s part; or in concluding that funds paid by BMO to the appellant were a loan and not a signing bonus. The appeal was dismissed with costs. 

Ungovernable Conduct Finding and Penalty Upheld: MBCA

In Kuny v College of Registered Nurses of Manitoba, 2018 MBCA 21, a nurse disciplined by his governing body for professional misconduct was unsuccessful in appealing the finding of the committee that he was ungovernable, the imposition of a $30,000 fine, and cancellation of his registration. The Court of Appeal found no merit to the first ground in light of his refusal to accept authority or take direction from his governing body. In addition, the penalty and costs awards were not unreasonable given that he had been found to be ungovernable in a previous disciplinary matter.

Reasonable Notice, Compensation for Manner of Dismissal and Failure to Mitigate: MBCA

The Court of Appeal considers the law on reasonable notice periods in Grant v Electra Sign Ltd, 2018 MBCA 5, a wrongful dismissal appeal and cross appeal from a lower court decision awarding a wrongfully dismissed 13.5 year employee a total of 10 months’ notice (12 months’ reasonable notice plus 2 months for manner of dismissal, minus 4 months for failure to mitigate). The court found that 12 months’ notice, while on the high side, was not so clearly wrong as to amount to an injustice, but set aside the award of two months’ pay in lieu of notice as compensation for the manner of dismissal, since this type of award was declared to be inappropriate in Keays. The court also set aside the four-month reduction in the notice period related to the failure to mitigate damages since the employer had not met its onus to prove the failure to mitigate nor introduced any evidence regarding the availability of alternative comparable employment. The employee’s cross appeal for punitive damages was dismissed

Evidence Insufficient to Prove Overtime Claim: MBQB

A Board of Arbitration decision declining to award overtime to an MTS employee who failed to prove the claim was not unreasonable, according to the court in Telecommunications Employees Association of Manitoba, Inc. (Team-IFPTE Local 161) v. MTS Inc., 2018 MBQB 50. Although the board found that the grievor had worked some overtime, it would have had to speculate or guess as to the actual amount due to errors and discrepancies in the records and unreliable and embellished testimony by the grievor. According to the court, the comprehensive reasons given by the board provided a rational basis for the decision it took and its decision was entitled to deference. 

Non-surreptitious Surveillance Reasonable: MB LA

Following a contextual analysis of the employer’s use of video surveillance cameras in its manufacturing plant the arbitrator in Carte International Inc. v United Steelworkers, Local 9355, 2018 CanLII 37195 (MB LA) concluded that the “current use of cameras under the present circumstances” was not unreasonable. In arriving at this conclusion the arbitrator balanced the legitimate privacy interests of the employees (who were being filmed every day as they worked and moved about the plant) and the legitimate employer interest in protecting its workplace operation (from safety and security concerns such as theft or vandalism). Crucial to the determination was the fact that there was no real-time monitoring of the video images and that the employer followed a protocol for viewing the video surveillance. The arbitrator dismissed the employees’ grievance but ordered that in future the Union receive notice of any contemplated changes to the non-surreptitious surveillance which might impact on the privacy interest of the employees.

Legislative Update

Federal

C-62, An Act to amend the Federal Public Sector Labour Relations Act and other Acts, was reported without amendment by the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities on June 11, 2018. It amends the Federal Public Sector Labour Relations Act to restore the procedures for the choice of process of dispute resolution that existed before December 13, 2013. For further details see the legislative summary. 

C-65, An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1, was referred to the Standing Senate Committee on Human Rights on June 7, 2018. It proposes amendments to strengthen the existing framework for the prevention of harassment and violence in the work place.  For further details see the legislative summary, backgrounder, and the Fasken article Bill C-65, Proposed Amendments To The Canada Labour Code (Harassment And Violence).

Provincial

The Health Sector Bargaining Unit Review Act, S.M. 2017, c. 25 was proclaimed in force May 9, 2018. It deals with bargaining units and collective bargaining in Manitoba's health sector and allows for the appointment of a commissioner who will have the authority to determine the composition of the bargaining units and implement the new bargaining framework.

Bill 20, The Employment Standards Code Amendment Act (2), received royal assent and came into force in part (ss. 1-4 and 7) on June 4, 2018. The remaining sections will come into force on proclamation.  Among other things, the amendments extend parental leave to 63 weeks and raise the minimum age for employment to 13 years. See the explanatory note to the bill and the Slaw post, Manitoba Extending Parental Leave and Introducing Critical Illness Leave, for further details.

Federal Budget 2018

The 2018 federal budget proposes enhanced CPP and EI contributions as well as various initiatives aimed at improving women’s equality in the workforce and will have an impact on both federal and provincial employers. Among the proposals are a new parental leave benefit and changes to the federal pay equity regime. These articles outline what employers should expect:

HR and Payroll Related Measures in the 2018 Federal Budget - Slaw

The 2018 Federal Budget: What Employers Should Know - McMillan

Budget 2018: New Parental Leave Benefit & Pay Equity Regime - Baker & McKenzie LLP

Recommended Reading

The Duty To Accommodate Mental Disability: 5 Practical Tips To Help Employers Mentally Prepare  - this McInnes Cooper article provides a comprehensive outline of how employers can fulfill their duty to accommodate mental disability in the workplace.

Pot legalization to impact employers  (Law Times) and Legalization of Marijuana: Managing this New Workplace Reality (Miller Thomson) -  these are just a few of the many recent articles on how legalization of marijuana will affect the workplace.

Workplace Harassment 101: Fundamentals of the law and risk mitigation strategies – this Osler post provides links to a webinar and powerpoint slides on workplace harassment law and risk mitigation strategies for start-ups.

Credit for service clarified after company changes hands  - this Law Times article discusses a recent Ontario decision in which the court addresses how employees are given credit for service when ownership of a company changes hands.

Survey Says? A look at the industry-specific sexual harassment survey boom in the wake of #MeToo – this RT blog post outlines the key considerations for employers raised by the findings of the many industry-specific sexual harassment surveys conducted over the last year.

Human rights tribunal awards $75,000 to unpaid intern – this Canadian Lawyer article discusses an Ontario human rights tribunal decision concerning a 15-year-old unpaid intern at a tattoo parlour.

No 24-month cap on wrongful dismissal damage – this Canadian Lawyer article looks at recent Ontario decisions dealing with reasonable notice and notes that there appears to be an increasing willingness by Ontario courts to award damages in excess of 24 months.

Gail Galea As THE Face Of Moral And Punitive Damages (MacDonald & Associates) – this article discusses Galea v. Wal-Mart Canada Corp., 2017 ONSC 245, in which an Ontario judge orders the largest damage award in Canada against an employer whose egregious conduct was sanctioned by moral and punitive damages.

Summer CPD Replays: LSM

For those looking to catch up on CPD hours during the quieter summer months, the CPD Summer Replay schedule is now posted on the LSM website. Find a program and date that works for you, with a wide variety of programming topics offered from July 17 to August 15, 2018.

Save the Date

The 2018 CBA Administrative Law, Labour and Employment Law Conference will be held November 16-17, 2018 in Ottawa, Ontario. For further details see the conference agenda and registration form.


ISSN 1916-3916

 

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