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2006

"Labour and Employment Issues in a Hot Mergers & Acquisitions Market"

Jurisdiction: - British Columbia

Carman J. Overholt, Q.C.,  a lawyer at Fraser Milner Casgrain in Vancouver, has written a paper entitled, "Labour and Employment issues in a Hot Mergers & Acquisitions Market".  The paper covers the significant labour and employment law issues that arise in mergers and aquisitions. the specific topics covered are:  read more »

Criminal record check for new employees found to be reasonable given nature of retail sector

Jurisdiction: - Alberta
Sector: - Retail Trade

Union of Calgary Co-Operative Employees v. Calgary Co-operative Assn. Ltd. [2006] A.G.A.A. No. 17 (QL)

"Tell Me Where It Hurts”: Workplace Sexual Harassment Compensation and the Regulation of Hysterical Victims"

Jurisdiction: - Quebec

Finn Makela has written a paper entitled, “Tell Me Where It Hurts”: Workplace Sexual Harassment Compensation and the Regulation of Hysterical Victims" that was published in the McGill Law Journal (2006) 51 McGill L.J. 27. Ms. Makela is a lawyer at Melançon, Marceau, Grenier et Sciortinoin Montreal.

The paper's summary provides:  read more »

BC Privacy Commissioner Issues Two Decisions that Address "Employee Personal Information"

Topics: - Privacy
Jurisdiction: - British Columbia
Sector: - Film & TV

The BC Privacy Commissioner recently issued two decisions which address "employee personal information", as well as some other issues of interest under the BC Personal Information Protection Act ("PIPA").

Twentieth Century Fox Film Corporation decision

In the Twentieth Century Fox Film Corporation (Order P06-04) decision, the Complainant worked in the film industry and complained to the BC Privacy Commissioner about the following practices by Twentieth Century Fox and a company it had incorporated to produce the Fantastic Four film (together, "Fox"):

  • Fox's requirement that applicants for its film crew provide information to prove residency in BC during the year immediately before filming;
  • Fox's refusal to provide a copy of its written privacy policy; and 
  • Fox's decision to store the residency information it collects at its head office in Los Angeles.

Collection, Use and Disclosure of Residency Information
 read more »

"Drug and Alcohol Addiction: Last Chance Agreements"

Jurisdiction: - British Columbia
Sector: - Health Care

Vancouver lawyer Carmen J. Overholt, Q.C. has prepared a paper entitled "Drug and Alcohol Addiction: Last Chance Agreements".

The paper focuses on the BC Court of Appeal's decision in Health Employers Assn. of B.C. (Kootenay Boundary Regional Hospital) v. B.C. Nurses' Union, 2006 BCCA 57 (the Bergen decision).

Ontario Abolishes Mandatory Retirement and BC and Saskatchewan Appear to Follow Soon

Effective December 12, 2006, mandatory retirement will no longer be generally permissible in Ontario, (as a result of amendments to the Ontario Human Rights Code). Employers will, however, still be allowed to enforce mandatory retirement polices if they can show that being younger than 65 (or another designated age) is a bona fide occupational requirement.

As reported in the media on December 2, 2006, Premier Campbell has announced that mandatory retirement in BC will also soon be abolished. Specifically, it is expected that the BC Human Rights Code will be amended in Spring 2007, with the result being that mandatory retirement policies will not be generally permissible in this province.

Similarly, on November 6, 2006 the Saskatchewan Government introduced Bill 9, which will amend the Saskatchewan Human Rights Code, with the result that mandatory retirement policies will not be generally permissible in that province if Bill 9 is enacted. However, the amendments would not come into force for one year after Royal Assent.

Mandatory retirement is already not generally permissible in Alberta, Manitoba, Quebec, PEI, Yukon, the NWT and Nunavut.

"An Employer's Guide to Understanding and Avoiding Alcohol Liability"

Mothers Against Drunk Drivers Canada, or MADD Canada, have prepared "An Employer's Guide to Understanding and Avoiding Alcohol Liability (Second Edition)", with the assistance of a professor in the Faculty of Law, University of Western Ontario. It provides a thorough review of the key cases in Canada on liability for alcohol related incidents and accidents.

Can a "professional" have his/her notice entitlement limited to that in the BC Employment Standards Act?

Jurisdiction: - British Columbia
Sector: - Education

Mr. Wong, a chartered accountant, was hired by UBC in a newly created position of Controller, commencing on September 3, 2002.

The letter confirming his employment stated that the terms and conditions of his employment would be those found in two agreements that UBC had entered into with the Association of Administrative and Professional Staff. One of these agreements contained the following terms in relation to notice:

An employee terminated during the probationary period for reasons other than just cause shall receive notice or pay in lieu of notice in accordance with the provision of the Employment Standards Act.

UBC ended up not implementing Wong's position and thus his employment was terminated just under 7 months later. UBC took the position that, in accordance with the employment contract, it was required to provide him with only 1 week's pay. However, "out of courtesy", it had paid him 1 month's salary.  read more »

Report Issued on Part III of the Canada Labour Code

Jurisdiction: - Canada/Federal

Part III of the Canada Labour Code sets out the employment standards minimums for federally regulated employers. It was enacted in 1965 and had not been systematically reviewed since then.

In December 2004, the federal government appointed Professor Harry Arthurs, a former Dean of Osgoode Hall Law School, to conduct a comprehensive review of Part III.

Professor Arthurs issued his final report (324 pgs) on October 30, 2006. The report, entitled "Fairness at Work Federal Labour Standards for the 21st Century", can be viewed here.

The report contains 172 recommendations in relation to revising Part III, as well as many interesting statistics relating to the type of companies and employees who are regulated by Part III.  read more »

Guidance for employers on how to develop a workplace "Substance Abuse Policy"

Earl Phillips, a lawyer in Vancouver at McCarthy Tetrault LLP, has published "Substance Abuse Policy", a paper that provides guidance to employers on how to develop a workplace substance abuse policy.

"Recreational Drug Use and Pre-Employment Drug Testing: Human Rights Legislation and New Challenges for Employers"

Jurisdiction: - Alberta - Ontario
Sector: - Oil & Gas

Lawyer Gary T. Clarke and articled student, Joana Thackeray, at Fraser Milner Casgrain LLP in Vancouver have written a paper entitled, "Recreational Drug Use and Pre-Employment Drug Testing: Human Rights Legislation and New Challenges for Employers".

The paper was published in Canadian Employment and Equality Rights, Vol. 7, Number 34, October 2006 and concludes with some concrete advice for employers who are looking to implement pre-employment drug testing.

Has the tort of harassment been established as a civil cause of action in Canada?

Jurisdiction: - British Columbia

In Mainland Sawmills Ltd. et al v. IWA-Canada et al 2006 BCSC 1195, the defendants sought an order dismissing the claims of some of the personal plaintiffs on the basis that there is no tort of harassment in Canada, or if there is, that defendants' actions did not meet the test.

The allegations concerned the "storming" of Mainland Sawmills by members of the IWA, which resulted in property damage and people being assaulted.

The court noted that the law was unclear whether the tort of harassment had been established as a civil cause of action in Canada. For example:  read more »

The Interplay Between Long-Term Disability Benefits and CPP, WSIB, Severance Awards, EI, Welfare and more

Toronto lawyer David Share has written a paper that addresses "The Interplay Between Long-Term Disability Benefits" and the following:

  • The Canada Pension Plan Disability (CPP)
  • The Workplace Safety and Insurance Board Benefits (WSIB)
  • Severance Awards
  • Statutory Accident Benefits (Automobile) (SABS)
  • Employment Insurance (EI)
  • Social Assistance (Welfare)
  • Ontario Disability Support Program (ODSP.

The paper, published in October 2006, can be found here.

"Managing Employment Across Borders - Employment Law Considerations"

Jurisdiction: - Ontario - United States

David Elenbaas at McMillan Binch Mendelsohn in Toronto, has written a paper entitled "Managing Employment Across Borders - Employment Law Considerations".

The paper was written for The Canadian Institute's 6th Annual Advanced Forum on Employment Law held on October 19, 2006. The paper was written with the assistance of Emily White, Student-at-Law.

Compassionate Care Leave Regulation Enacted

Jurisdiction: - British Columbia

The Compassionate Care Leave Regulation under the BC Employment Standards Act came into effect on October 20, 2006 (OIC 738).

In accordance with the Regulation, an employee may now take this type of leave in relation to the following additional classes of "family members":  read more »

"Employee Claims in Canadian Insolvency Proceedings"

Linc A. Rogers, at the Chicago office of Blake, Cassels & Graydon, has written a paper on, "Employee Claims in Canadian Insolvency Proceedings" (September 15, 2006). The paper addresses the Air Canada and Stelco restructurings.

Increase in Alberta's Minimum Wage Act

Topics: - Minimum Wage
Jurisdiction: - Alberta - Saskatchewan

Effective September 1, 2005, Alberta's minimum wage was increased from $5.90 to $7.00 an hour.

Historically having the lowest legislated minimum wage in the country, this 19% increase, the first since 1999, positions Alberta ahead of Saskatchewan and the Maritime Provinces for hourly pay. However, most Alberta employers pay more than the minimum wage to attract and retain employees: according to the Alberta government the average hourly wage in Alberta is $18.55 an hour.