Canada: Doing Business In Canada 2019 - Labour & Employment

Last Updated: July 3 2019
Article by Fasken Martineau

Legal Framework

Employment law in Canada is governed both by statute and, in nine of the ten provinces, by common law. The province of Québec differs in this respect in that it has no system of common law. Instead, it is governed by the Civil Code of Québec, which was originally modelled on the French Napoleonic Code, and the jurisprudence interpreting it.

While statutory provisions may vary from province to province, there remains a fair amount of uniformity across the country in employment standards, workers' compensation, occupational health and safety, labour relations and prohibitions on discrimination in employment.

An overall comparison between Canadian and US laws governing labour and employment also shows a considerable degree of similarity. One major difference between the two countries, however, is that there is no "employment at will" doctrine in Canada.

Employment Standards

Each Canadian province or territory sets the minimum employment standards applicable to all employees within their jurisdiction. These minimum statutory employment standards include:

  • The minimum wage for hours worked
  • The maximum number of hours worked in a day and week
  • The minimum time required off work
  • Notice and severance entitlements in the event of termination of the employment relationship

Employment standards legislation prescribes a minimum standard that employees cannot waive by contract. Higher standards are often customary in many industries in Canada, and lower standards are unenforceable.

Human Rights

All jurisdictions in Canada (federal, provincial and territorial) have passed human rights legislation prohibiting discrimination in the employment relationship based on grounds that usually include race, sex, age, religion, colour, disability, marital or family status, ancestry or place of origin and sexual orientation. Gender identity is increasingly becoming protected against discrimination as well.

Federal works and undertakings are subject to employment equity legislation, the purpose of which is to provide employment and promotion opportunities to members of four protected groups: women, Aboriginal people, people with disabilities and visible minorities.

Equal Pay

Most Canadian provinces, including Ontario, Alberta, Québec, British Columbia and Saskatchewan, have adopted legislation requiring public sector employers and, in some cases, private sector employers to provide equal pay for work of equal value. In addition, in all provinces, employment standards or human rights legislation prohibits discrimination based on gender for similar or substantially similar work.

As a result, female employees and, in some jurisdictions, employees in "female job classes" will have a right to be remunerated at the same level as the male employees or, as the case may be, employees in "male job classes" where the work performed is of similar, substantially similar or of equalvalue.

Occupational Health and Safety

All jurisdictions have legislation and other measures designed to reduce the incidence of occupational accidents and diseases in the workplace. Numerous obligations are placed on both employers and employees to create and maintain a safe environment to work in. Health and safety authorities carry out inspections at construction sites, industrial plants and other hazardous sites to ensure compliance with the regulations. In some jurisdictions, joint employer-employee health and safety committees are required for larger workplaces.

Workers' Compensation / Workplace Safety Insurance

Workers' compensation is not dealt with in Canada through private insurance. Rather, workers' compensation is dealt with by way of statute and systems administered by government bodies or agencies.

Workers' compensation programs provide benefits for workers suffering from job-related injuries and diseases. These legislated regimes provide a public "no fault" compensation system, whereby injured workers receive benefits from the program but cannot take legal action against the employer. Employers pay premiums to provincial workers' compensation boards at rates determined primarily on the basis of the type of industry, size of payroll and the employer's claim record.

Employment Insurance

Employment Insurance (EI) is a federal initiative established and governed by the Employment Insurance Act. The statute is designed to help workers adjust to economic change, while maintaining the incentive to work. The legislation recognizes provincial responsibility for labour market training and allows for federal-provincial partnerships to create new programs to assist in this regard. The employment insurance system is financed through payroll taxes levied on both employees and employers. For 2017, maximum insurable earnings are $53,100.

In Québec, the EI premium rate is $1.25 for every $100 of salary earned, up to a maximum annual employee contribution of $663.75, and a maximum employer contribution of $929.25. Note, in Québec there is the Québec Parental Insurance Plan (QPIP). The QPIP replaces benefits that Québec residents previously received under the Employment Insurance Act. Because of this, all employers who have employees working in Québec, regardless of the employees' province or territory of residence, have to deduct a reduced EI premium using a reduced EI premium rate as well as QPIP premiums.

In the rest of Canada, the EI premium rate is set at $1.62 per $100 of salary earned, up to a maximum annual employee contribution of $860.22 and a maximum annual employer contribution of $1,204.31.

Collective Bargaining

Canada's system of collective bargaining is embodied in federal and provincial labour relations acts and labour codes. Canadian workers have the right to join trade unions, which may be certified to collectively bargain conditions of employment with their employers on their behalf. Slightly less than one third of all Canadian employees are members of unions.

In general, the system seeks to minimize disruption by certifying trade unions as the bargaining agents for specific groups of workers, often all or part of the non-managerial employees in a company. Exclusions from the bargaining unit are also provided in certain jurisdictions for non-managerial employees who have access to confidential information relating to labour matters. Each jurisdiction has its own rules respecting the certification process.

Once a union has been certified by a labour relations board as an agent for a specific "bargaining unit", it has the exclusive right to negotiate with the employer on behalf of the employees, whether or not they are members of the union. In return, the union is obliged to represent all employees fairly. Specific rules also regulate when a union can be decertified or replaced with another union.

Strikes and lock-outs during the term of a collective agreement are normally prohibited in all jurisdictions. In some jurisdictions, for first collective agreements, there is a system of binding arbitration available to resolve disputes in a cost-effective and timely manner. Both the federal and provincial governments provide mediation and conciliation services, which can be mandatory before employees may strike or employers may lock out employees in furtherance of their bargaining aims.

Considerations for the Acquisition of a Canadian Business

Share Acquisition

When the shares of a company are purchased, the legal personality of the corporation does not change. All that has changed is who owns the shares. Thus, even though a shift in control has occurred, the corporation still continues to be the employer and generally there is no resulting reduction or break in service and seniority. Furthermore, any liabilities existing at the time of the sale of shares (such as claims for wrongful dismissal, human rights complaints, safety infractions, etc.) will also continue when the shares are acquired.

Asset Acquisition

In Québec, a contract of employment is not terminated by the sale or alienation of the assets of a business. In the rest of Canada, however, each employee will need to be offered a new contract or offer of employment with the purchaser, as their employment will be deemed terminated upon the conclusion of the sale for common law purposes. However, most employment standards statutes do provide for continuity of service for those employees who continue in employment with the purchaser. The offer of employment is often based on the same or substantially similar terms, and the employees who accept the offer will carry over their accumulated service and seniority.

Collective Agreements

Labour relations acts and labour codes usually require that the purchaser of the shares or assets assume any applicable collective agreements. This is an important consideration if the purchaser intends to reduce the workforce or transfer employees, as there may be restrictions imposed within the collective agreement.

Employment Termination

In Canada, an employment relationship may legally be terminated in one of two typical ways: for cause or by way of providing reasonable notice or pay in lieu of notice to the other party. However, the right to terminate the contract of employment in the absence of just cause by providing the appropriate notice of termination of payment in lieu is limited in certain jurisdictions (Québec, Nova Scotia and federal). Cause for termination can include incompetence, insubordination, conflict of interest, theft or material dishonesty, and other judicially recognized misconduct that warrants discharge. If an employee is terminated for cause, there is no obligation to provide advance notice to the employee or payment in lieu thereof.

Termination without cause occurs where an employee is terminated from employment not necessarily because the employee has done something terribly wrong, but rather because the employer, for whatever reason, has decided that the employee's services are no longer required. This includes a redundancy or reorganization scenario.

For termination without cause, employers in all jurisdictions are required to provide advance notice of termination or layoff, or to offer compensation in lieu of notice. The applicable employment standards legislation mandates the minimum notice period and provides a "sliding scale" of notice depending on the seniority of the employee, which typically peaks at 8 weeks' notice. These termination notice periods are simply the statutory minimum periods of notice required. Some jurisdictions, such as federal and Ontario, also have a minimum statutory severance pay entitlement that varies depending on the seniority of the employee.

In addition to the minimums set by statute, and absent a binding employment contract setting out termination entitlements, employers are generally required to provide reasonable notice under both common law and civil law, as applicable. In the event of dispute, courts may be called upon to determine how much notice an employee is entitled to receive. Although the courts have never used a "rule of thumb" approach in determining the reasonable period of notice, judicial awards reach a typical maximum of 24 months for senior executives in their late 50s or early 60s with lengthy service. The courts will award additional damages to employees where their employment has been terminated in bad faith.

Additional advance notice of "group layoff" or "mass termination" (generally 50 or more terminated employees) obligations are required in all Canadian jurisdictions except Prince Edward Island.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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