Canada: News and Trends in Labour and Employment Law

Last Updated: January 30 2011
Article by Marie-Noël Massicotte and Sandrine Thomas

The Labour and Employment Law Practice Group of Fraser Milner Casgrain LLP (FMC) Montréal is pleased to send you the January 2011 edition of its electronic newsletter.

The Supreme Court Renders Decisions That Will Have a Significant Impact on Claims that Involve Wrongful Dismissal Brought by Employees with a Precarious Status

In our September 2008 issue of the Focus newsletter, we informed you of several decisions in which the Court of Appeal1 held that the Commission des relations du travail ("C.R.T.") has exclusive jurisdiction to rule on complaints submitted by unionized employees pursuant to section 124 of the Labour Standards Act2 ("L.S.A.") when the employees have two years of uninterrupted service and, due to their precarious status, do not have access to the arbitration procedure provided for in their collective agreement. On July 29, 20103, the Supreme Court rendered three decisions on the appeals lodged against the 2008 decisions.

These cases raise the issue of the types of recourse available to employees with a precarious status who have had two years of uninterrupted service with the same employer when their employment is terminated. The Supreme Court had to determine whether the C.R.T. or the grievance arbitrator has jurisdiction in such cases.

The Supreme Court decided unanimously that section 124 L.S.A. is not implicitly incorporated in every collective agreement. However, the section remains a public order standard. For this reason, the majority judges held that collective agreement clauses depriving employees with two years of uninterrupted service the right to contest wrongful dismissal are invalid and must be deemed void.

To determine whether the C.R.T. or the grievance arbitrator has jurisdiction to rule on an employee's claim, it is therefore advisable to verify whether the collective agreement, as amended by the cancellation of the clauses deemed void, contains a form of recourse equivalent to that provided by section 124 L.S.A. Even if the remedy is not identical, it will be considered equivalent if it allows the arbitrator to review the employer's decision and to impose appropriate penalties (cancelling the dismissal, reinstating the employee, setting compensation levels). If the grievance and arbitration procedure is equivalent, the arbitrator must hear the grievance. Only in the absence of an equivalent recourse in the collective agreement does the C.R.T. have jurisdiction. In the decision in one of the cases in point, Syndicat de la fonction publique du Québec v. Quebec (Attorney General), the majority of the Supreme Court considered the relevant collective agreement clauses to be absolutely null in that they deprived casual and probationary employees of the right to contest dismissal without good and sufficient cause after two years of uninterrupted service. The majority of Supreme Court judges concluded that because the collective agreement contained an arbitration procedure equivalent to the procedure in section 124 L.S.A., the grievance arbitrator had jurisdiction. The dissenting judges, meanwhile, held that the collective agreement clauses restricting access to arbitration for casual and probationary employees did not contravene public order because they did not deprive these employees of their rights and recourse in accordance with section 124 L.S.A. Given the restrictions on exercising the right to arbitration, the dissenting judges concluded that only the C.R.T. had jurisdiction to preside over cases involving wrongful dismissal of casual and probationary workers.

In the decision in Syndicat des professeurs et des professeures de l'Université du Québec à Trois Rivières, the Supreme Court applied the principles that emerged from majority opinion in the Syndicat de la fonction publique du Québec decision and rejected the appeal, concluding that the grievance arbitrator had jurisdiction because a remedy equivalent to section 124 L.S.A. was present in the collective agreement. The Court sent the case back to the arbitrator to be ruled on its merits. In the decision in Syndicat des professeurs du Cégep de Ste-Foy, the Supreme Court considered that the relevant clause in the collective agreement, dealing with the removal of a teacher from the employment priority list, pertained to a particular type of termination of employment and was not contrary to public order. The Supreme Court rejected the appeal, thus confirming the arbitrator's decision that the teacher's removal was based on reasonable grounds and that the arbitrator did not have jurisdiction to rule on section 124 L.S.A.

New Provisions to Address Workplace Violence and Harassment in Ontario Came into Effect on June 15, 2010

On December 15, 2009, Bill 168 to amend Ontario's Occupational Health and Safety Act received Royal Assent4. The measures for this new Act came into effect on June 15. The Ontario Occupational Health and Safety Act5 as amended ("OHSA"), introduces new obligations for employers regarding violence and harassment in the workplace.

The concepts of workplace violence and workplace harassment are defined by the OHSA as follows:

"Workplace harassment" means engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.

"Workplace violence" means:

  1. the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker;
  2. an attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker;
  3. a statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.

The employer must assess the risk of workplace violence that may arise from the nature of the workplace, the type of work or the conditions of work, and inform workers of the results of this assessment. Risk must be re‐evaluated as often as necessary.

The employer must also draw up a policy regarding workplace violence and harassment, and this policy must be re-examined as often as necessary and at least once per year. Unless the number of people regularly employed in the workplace is equal to or less than five, the policy must be written up and posted in a conspicuous location in the workplace. The employer must develop a policy implementation program whose core content is determined by the OHSA.

The OHSA also requires the employer to protect workers from domestic violence. If an employer is aware or ought reasonably to be aware that domestic violence that would likely expose a worker to physical injury may occur in the workplace, the employer must take every precaution reasonable in the circumstances to protect the worker.

In addition, the employer has the duty to provide workers with information, including personal information, about the risk of workplace violence from a person with a history of violent behaviour. This information must be provided if the worker can be expected to encounter that person in the course of work and is likely at risk of physical injury.

Workers may also refuse to work or to carry out a particular task if they have reason to believe they are in danger of workplace violence. The right to refuse work, however, does not apply to professions where danger is inherent in the work or is a normal condition of employment, or when refusing to work, in such a profession, would endanger the life, health or safety of another person.

A failure to respect the duties imposed on employers by the OHSA can result in a fine of up to $25,000 and/or imprisonment of up to 12 months for natural persons, and a fine of up to $500,000 for legal persons. In addition, the name of a natural or legal person convicted of an offence may be published, along with a description of the offence, the date of the conviction and the person's sentence.

Taking Vacation Time during the Reference Year does not Entitle Employees to Vacation Pay upon Termination of Employment

Since May 1, 2003, section 70 of the Labour Standards Act6 ("L.S.A.") has allowed annual vacations to be taken during the reference year at the employee's request. What happens when vacations are taken during the reference year at the request of the employer?

In the recent Nestlé7 case, which involved employees who took annual vacations in advance at the employer's request, the Court of Appeal ruled that the employer was not required to pay for vacation time again when employment terminated.

The case involved two employees who gave their notice in the fall of 2005. The Commission des normes du travail took legal action against the employer on the grounds that the vacation time taken at the employer's request during the reference year did not constitute annual vacation as defined by the L.S.A., and that the employees were therefore entitled to vacation pay for the year in question.

At trial, the Court of Quebec ruled that the employer needed to establish that the advance leave had been taken at the employees' request, which the employer was unable to do. The Court concluded that the employer's policy, while generous, contravened L.S.A. provisions. Therefore, by granting vacation time during the reference year, the employer was in no way reducing its obligation to provide vacation pay corresponding to that period when employment terminated8.

The Court of Appeal allowed the appeal of this decision. It struck down the Court of Quebec's judgement that the pay provided for vacations taken in advance constituted a gift from the employer, as this argument had no legal basis. In addition, no financial loss was suffered by the employees as a result of taking early vacation time, because they had been paid at that time. The L.S.A. has no provision for granting compensation in cases where the violation of one of its provisions does not result in any financial loss. Finally, the employees did not successfully demonstrate that the employer's violation of the L.S.A. had caused them any difficulty or inconvenience that would justify awarding damages.


1 Quebec (Attorney General) v. Syndicat de la fonction publique du Québec, D.T.E. 2008T‐513 (C.A.); Quebec (Attorney General) v. Syndicat de la fonction publique du Québec, 2008 QCCA 1046 (C.A.); Syndicat du personnel de soutien de la Commission scolaire des Sommets (CSN) v. Commission scolaire des Sommets, 2008 QCCA 1055 (C.A.); Syndicat des professeurs et professeures de l'Université du Québec à Trois-Rivières v. Université du Québec à Trois-Rivières, 2008 QCCA 1056 (C.A.); Syndicat des professeurs du Cégep de Ste‐Foy v. Quebec (Attorney General), 2008 QCCA 1057 (C.A.).

2 R.S.Q., c. N.1-1.

3 Syndicat de la fonction publique du Québec v. Quebec (Attorney General), 2010 CSC 28; Syndicat des professeurs du Cégep de Ste-Foy v. Quebec (Attorney General), 2010 CSC 29; Syndicat des professeurs et des professeures de l'Université du Québec à Trois-Rivières v. Université du Québec à Trois‐Rivières, 2010 CSC 30

4 Act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace, S.O. 2009, c. 23.

5 R.S.O. 1990, c. O.1.

6 R.S.O., c. N-1.1.

7 Nestlé Canada Inc. v. Commission des normes du travail, D.T.E.2009T-838 (C.A.)

8 Commission des normes du travail v. Nestlé Canada Inc., D.T.E. 2008T 282 (C.Q.).

About Fraser Milner Casgrain LLP (FMC)

FMC is one of Canada's leading business and litigation law firms with more than 500 lawyers in six full-service offices located in the country's key business centres. We focus on providing outstanding service and value to our clients, and we strive to excel as a workplace of choice for our people. Regardless of where you choose to do business in Canada, our strong team of professionals possess knowledge and expertise on regional, national and cross-border matters. FMC's well-earned reputation for consistently delivering the highest quality legal services and counsel to our clients is complemented by an ongoing commitment to diversity and inclusion to broaden our insight and perspective on our clients' needs. Visit:

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.