Canada: Labour And Employment Legislative Update 2015

2015 ends with changes in workplace laws that our region's employers will want to be aware of moving into 2016. Some legislation has been proclaimed and is in force, some has passed and will be proclaimed at a future date, and some is effective through government regulatory powers. The following is our annual province-by-province roundup of changes we know employers in Atlantic Canada will want to know about.

1. NEW BRUNSWICK

Overview

New Brunswick introduced several amendments during the spring sitting of the legislature that have an impact at the workplace.

(a) Amendments

An Act to Amend the Workplace Health, Safety and Compensation Commission and Workers' Compensation Appeals Tribunal Act (SNB 2015, c.33) - Effective June 5, 2015

This amendment to the Workers' Compensation Appeals Tribunal Act expanded on the Workplace Health, Safety and Compensation Commission's responsibilities (Section 7) to generally establish policies consistent with the legislation. The Act now says:

(f.1) establish policies not inconsistent with this Act, the Workers' Compensation Act, the Firefighters' Compensation Act and the Occupational Health and Safety Act to promote workers' health, safety and compensation.

An Act to Amend the Occupational Health and Safety Act (SNB 2015, c. 28) - Effective June 5, 2015

The Occupational Health and Safety Act was amended to change the words "controlled product" to "hazardous product" throughout the legislation and removes discretionary disclosure language applicable to medical practitioners or registered nurses. The legislation now says (changes underlined)

40.1(1) An employer shall provide, in respect of a hazardous product that is or was present in a place of employment, any information, including confidential business information, that is in the possession of the employer to a medical practitioner or registered nurse who requests information on the hazardous product for the purpose of making a medical diagnosis, or rendering medical treatment to a person, in an emergency.

40.1(2) No person to whom information is provided by an employer under subsection (1) shall disclose or communicate the information, other than to another medical practitioner or registered nurse for the purpose mentioned in that subsection.

An Act to Amend the Smoke-Free Places Act (SNB 2015, c. 34) - Effective July 1, 2015

The Smoke-Free Places Act was expanded and now includes the following in relation to the workplace:

  • Within nine metres of doorways, windows and air intakes of enclosed public places and indoor workplaces;

The Act also bans the use of e-cigarettes and water pipes anywhere that traditional smoking is not allowed under the legislation.

An Act to Amend the Public Service Labour Relations Act (SNB 2015, c. 41) - Effective June 5, 2015

Section 44(2)(b) of the Public Service Labour Relations Act was amended to extend the notice to bargain period from two to six months where a collective agreement or arbitral award is in force and now says:

(b) where a collective agreement or arbitral award is in force, within the period of six months before the agreement or award ceases to operate.

2. NEWFOUNDLAND AND LABRADOR

Overview

Compared to 2014 - a year in which there were significant legislative changes, 2015 saw relatively few changes to legislation impacting the workplace. There were no changes to the Labour Standards Act RSNL 1990 cL-2, the Human Rights Act 2010, SNL 2010, c. H-13.1, Occupational Health and Safety Act or the Workplace, Health, Safety and Compensation Act, RSNL 1990, c O-3.

(a) Amendments and New Legislation

Canada-Newfoundland and Labrador Atlantic Accord Implementation Newfoundland and Labrador Act RSNL 1990, c C-2

An Act to Amend the Canada-Newfoundland and Labrador Atlantic Accord Implementation Newfoundland and Labrador Act RSNL 1990, c C-2 was assented to on June 23, 2015 (the "Accord"). The Accord is an agreement between Newfoundland and Labrador and the Federal Government concerning the management of the Canada-Newfoundland and Labrador Offshore Area oil and gas reserves.

Previous amendments, which are now in force, designated that "Newfoundland social legislation" would apply to employees working in the offshore oil industry on a permanent or semi-permanent platform, engaged in resource exploration and exploitation off the coast of Newfoundland. Affected vessels are those which meet the definition of a "marine installation or structure". "Marine installation or structure" to include "a ship, including a ship used for construction, production or diving or for geotechnical or seismic work".

This means that Newfoundland social legislation, like the Labour Standards Act, Human Rights Act and Workplace health, Safety and Compensation Act, may now apply to vessels engaged off the coast of Newfoundland and Labrador which were previously unaffected and even to vessels flying flags other than Canadian.

Other notable highlights of the 2015 Amendments include:

  • The C-NLOPB must consider the safety of the work or activity by reviewing, in consultation with the chief safety officer, the system as a whole and its components, including its structures, facilities, equipment, operating procedures and personnel before issuing an authorization for a work.
  • There remains to be no due diligence offence for the commission of a violation under the Accord.
  • A "polluter-pays" principle for the offshore was established and offshore operators can now be responsible for $1 billion in clean-up costs and damages from a major spill without any proof of fault or negligence. This includes liability for the full cost of remediation of petroleum product spills or discharges, and any expenses incurred by government agencies in responding to a spill or discharge.
  • Workers in transit to or from offshore platforms will be covered by this regime.
  • The C-NLOPB will be authorized to disclose to the public information related to occupational health and safety.
  • Occupational health and safety officers have increased enforcement powers, including the powers of inspection and investigation, warrant provisions and order measures in case of dangerous situations.
  • Owners of offshore facilities are responsible for facilitating and funding inspector's visits to and from the facility, including transportation, accommodations and meals.

Access to Information and Protection of Privacy Act, 2015, SNL 2015, c A-1.2

A new access and privacy legislation, the Access to Information and Protection of Privacy Act, 2015 ("ATIPPA") came into force on June 1, 2015. The purpose of ATIPPA is to advance accountability in public bodies by providing the public a right of access to records and to prevent unlawful use of personal information by public bodies. ATIPPA does not apply to the private sector.

Highlights of this new legislation include:

  • An increased emphasis on the public interest in determining whether records should be disclosed. The 'public interest' may override exceptions to disclosure of public documents. Under the old act a public body could refuse to disclose records that may be harmful to labour relations interests of a public body as employer. The new act requires disclosure where the public interest in disclosure outweighs the reason for utilizing the exception.
  • The elimination of application fees for all requests and increased free research time for general access requests.
  • The removal of a public body's ability to unilaterally disregard a request.

3. NOVA SCOTIA

Overview

From increasing bereavement and compassionate care leave under the Labour Standards Code to providing legislation aimed at fiscal responsibility in public service collective bargaining, it's been a busy year in the Nova Scotia legislature.

(a) Amendments and New Legislation

Limitations of Actions Act, SNS 2014, c 35 - in effect on September 1, 2015

Nova Scotia's new Limitation of Actions Act greatly simplifies the applicable limitation periods for lawsuits in this Province. Key points for employers include:

  • There is now a basic limitation period of 2 years "from the day on which the claim is discovered" that will apply to most types of claims. This is unlike the former Act, where limitation periods depended on the particular causes of action involved.
  • The Act defines "claim" as "a claim to remedy the injury, loss or damage that occurred as a result of an act or omission" so would include a wrongful dismissal claim, for example, along with other breach of contract claims; tort claims; and equitable claims.
  • This basic limitation period is based on discoverability. There are factors set out in the Act to help determine when the claimant actually "discovered" the claim.
  • There is an ultimate limitation period of 15 years "from the day on which the act or omission on which the claim is based occurred." So this limitation period is based on occurrence, not discoverability, and should only apply where the claim has not been "discovered" within the basic limitation period.
  • Parties can contract out of the Act, but only to extend a limitation period – not to shorten it.
  • The limitation period will start running again if the defendant acknowledges liability on a contract.
  • Where there is a limitation period set out in another statute, that is the limitation period that will govern.
  • The Act binds the Crown, except when the Crown is trying to recover money in certain listed scenarios.
  • There is no limitation period for claims based on "misconduct of a sexual nature".
  • The limitation period under the Act can only be extended (by up to 2 years) if the claim is "brought to recover damages in respect of 'personal injuries'". These provisions are not expected to have much if any impact in the employment law context.
  • There is a provision to guide the transition from the old Act to the new. Application of this provision will depend on the particular facts and dates involved so each case is best analyzed on its own. For general information, the Department of Justice has prepared a helpful flowchart here

Bill No. 60 - An Act to Amend Chapter 12 of the Acts of 2002, the Smoke-free Places Act - in effect on May 31, 2015

2014 amendments to the Smoke-free Places Act came into effect on May 31, 2015. The amended legislation now also prohibits the use of e-cigarettes and waterpipes in indoor public places in Nova Scotia and prohibits smoking these devices within 4 metres of windows, air intake vents and entrances to places of employment.

Bill No. 127 - An Act to Amend Chapter 256 of the Revised Statutes, 1989, the Labour Standards Code - in effect on January 3, 2016

Bill No. 127 amended the Labour Standards Code to provide greater leave entitlements under both bereavement leave and compassionate-care leave. Effective January 3, 2016 the legislation will do the following:

  1. Bereavement Leave

    • Increase bereavement leave from either a one or three-working day unpaid leave to up to five days unpaid bereavement leave
  2. Compassionate Care Leave

    • Increase unpaid compassionate-care leave from eight to 28 weeks;
    • Allow an employee to end and to re-start unpaid compassionate-care leave during the 52 weeks following the first day of the week that leave was commenced;
    • Provide that when leave is re-started after 26 weeks – no further medical certificate is required.

Bill No. 128 - An Act to Amend Chapter 256 of the Revised Statutes, 1989, the Labour Standards Code - in effect December 18, 2015

Bill No. 128 amended the Labour Standards Code to provide broader protections against discharge, layoff, suspension, intimidation, penalty, discipline or discrimination protection for employees from their employer when they are able to establish a connection to the following:

  • assist another to make a complaint
  • initiate or help initiate an inquiry, investigation or proceeding
  • have participated or are about to participate or who the employer believes will participate in any proceeding
  • made or is about to make an inquiry about another's rights
  • made or is about to make any statement or provide any information to the Director or an Officer
  • has been asked or required by an employer to comply with the legislation
  • taken or will take a leave of absence that he or she is or will be entitled to take

Bill No. 126 - An Act to Amend Chapter 37 of the Acts of 2014, the Pooled Registered Pension Plans Act - royal assent December 18, 2015

Bill No. 126 is a set of amendments to the Pooled Registered Pension Plans Act ("PRPP Act") which is yet to be proclaimed in force. The concept behind the Nova Scotia Act is to largely incorporate the Federal Pooled Registered Pension Plans Act (Canada), with minor modifications for the province. This is similar to what the provincial legislatures in British Columbia and Saskatchewan have done. Like those acts, the Nova Scotia PRPP Act will apply to provincial employees, federal employees in the province who are not covered by the federally-governed Act, and the self-employed. The purpose is to provide those workers with a low-cost regulated pension option.

In mid-November 2015, amendments to the PRPP Act were introduced under Bill No. 126. This Bill received royal assent on December 18, 2015 (S.N.S. 2015, c. 48). The amendments introduced two new transfer options to the PRPP Act:

  • New sections 12A and 12B will allow funds in pooled registered pension plans to be transferred to retirement savings arrangements that are prescribed under the Pension Benefits Act. This makes it possible for funds to be transferred from a PRPP to a locked-in vehicle, such as a locked-in retirement account.
  • New subsections 14(4) and (5) were added to provide a process for transferring funds as a result of division of assets, for example as the result of a relationship breakdown, from the PRPP to the plan of the member's spouse upon division of asset funds in the member's account. They may be transferred to a PRPP account of that person's spouse, to the spouse's pension plan, to a prescribed retirement savings arrangement for the spouse, or to purchase a life annuity for the spouse.

There were also a handful of ancillary amendments to the PRPP Act and other related acts (such as the Pension Benefits Act) that were necessary to allow for the transfer of funds from one account to another.

Bill No. 148 - Public Services Sustainability (2015) Act - in effect on a future date by Proclamation

The government introduced Bill No. 148 to provide "certainty that the Province will be able to stay within its fiscal plan and protect the sustainability of public services". A more detailed overview of the legislation is found here. The objectives of the bill are set out in the Bill Briefing as:

  • To meaningfully engage public sector employees through their unions in a collective bargaining process where:

    • Efficiency, effectiveness and innovation are promoted
    • Some of the benefits are shared with employees.
  • To protect and preserve public services by negotiating collective agreements that are affordable to the taxpayers of the province.
  • To operate in conformity with the Finance Act, the principles of responsible fiscal management, and the four-year Fiscal Plan.

Bill No. 148 (a) applies to all public sector employers and employees – unionized and non-unionized (section 3(n)); (b) does not apply to bargaining units with renewed agreements prior to proclamation; (c) does not apply to provincial court judges or family court judges. Bill No. 148 does not prevent current negotiation of agreements and does not impose an agreement if negotiations breakdown. Instead, Bill No. 148 provides a compensation framework and limits an arbitrator's authority if the parties are unable to effect an agreement themselves:

  • A compensation framework for increases of 3% over four years (sections 13 and 14).
  • Limits arbitrators from making awards that exceed the compensation framework and declares that an award that exceeds "the framework is of no force or effect".
  • Public sector employers cannot be bound to an arbitrator's award that provides an increase that exceeds the framework.

Bill No. 148 retroactively (to April 1, 2015) freezes a service award currently made to retiring or resigning public sector employees that is based on years of public service and provides that future accrual will end. Employees hired after April 1, 2015 will not be eligible for this service award.

Lastly, Bill No. 148 establishes a new Public Service Sustainability Board ("PSSB") that will be responsible for dealing with questions arising out of the application or interpretation of the legislation once proclaimed. Members of the PSSB will be cross-appointed from the province's Labour Board with the powers of the PSSB to be determined by regulation which we expect will be introduced soon after the Bill becomes law.

(b) Regulations

Canada-Nova Scotia Offshore Marine Installations and Structures Occupational Health and Safety Transitional Regulations N.S. Reg. 229/2014 - in effect on January 5, 2015

The Canada-Nova Scotia Offshore Marine Installations and Structures Occupational Health and Safety Transitional Regulations entered came into force on January 5, 2015. The regulations function as interim rules until more formal legislation can be developed. The temporary regulations address a broad range of occupational health and safety offshore rules targeting:

  • building safety
  • temporary structures and excavations
  • elevating devices
  • boilers and pressure vessels
  • lighting levels
  • sound levels
  • electrical safety
  • sanitation
  • hazardous substances
  • controlled products
  • hazardous substances other than controlled products
  • confined spaces
  • protection equipment
  • tools and machinery
  • materials handling
  • design and construction
  • maintenance, operation and use
  • manual handling of materials
  • storing materials
  • hazardous occurrence investigation, recording and reporting
  • first aid
  • safe occupancy of the workplace
  • diving

4. PRINCE EDWARD ISLAND

Overview

Prince Edward Island had a relatively quiet year on the legislative amendment front, as it applies to the workplace. The most significant amendments were made to the Employment Standards Act, RSPEI 1988, c E-6.2, aligning the unpaid leave provisions more closely with those of the Federal Canada Labour Code.

(a) Amendments and New Legislation

Employment Standards Act, RSPEI 1988, c E-6.2

The Act was amended by Bill 39, An Act to Amend the Employment Standards Act, changing several provisions to reflect changes already made by the Federal government to the Canada Labour Code (which applies only to federally regulated employers) with respect to unpaid leave for an employee whose child has died, disappeared, or has a critical illness.

  1. Crime-related Child Death or Disappearance Leave

    The amended Act provides unpaid leave for an employee responding to the death or disappearance of their child as a result of a "probable criminal act". The Act grants the employee up to 52 weeks (for a disappearance) or 104 weeks (for a death) leave. Notably, the employee is not eligible for leave if they are charged with the crime.
  2. Critically Ill Child Care Leave

    An employee can receive up to 37 weeks leave, within a one year time frame, where the employee provides information to the employer from a qualified medical practitioner confirming that the child has a critical illness, and outlining the time period during which the child will require care.
  3. Employer/Employee Requirements

    The employee seeking to utilize the amended leave provisions must have worked for the same employer for a 3 month period. In addition, the child must be under the age of 18 years for the employee to qualify for leave.

    The employer must allow the employee to return to their employment following their leave, with at least the same pay and benefits as before.

The amendments received Royal Assent on December 2, 2015.

Occupational Health and Safety Act, RSPEI 1988, c 0-1.01

The Act was amended by Bill 35, An Act to Amend the Occupational Health and Safety Act, making minor revisions, the most significant of which is to change the authority that appoints occupational health and safety officers from the Workers Compensation Board to the Director.

The amendments received Royal Assent on December 2, 2015.

Workers Compensation Act, RSPEI 1988, c W-7.1

The Act was amended by Bill 34, an Act to Amend the Workers Compensation Act.

The most significant amendment to the Act was to increase the maximum wage loss benefits payable to a worker for an injury or accident that occurs on or after January 1, 2016. Where the injury results in a loss of earning capacity for the worker after the date of the accident, the Board will pay the worker wage loss benefits equal to 85% of the worker's loss of earning capacity. Previously, injured workers received 80% for the first 38 weeks for which benefits were payable, and 85% thereafter. Workers now receive 85% straight through. In addition, there is no longer any waiting period for wage loss benefits in respect of accidents that occur on or after January 1, 2016.

The amendments received Royal Assent on December 2, 2015. Proclamation is pending.

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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