Canada: Labour & Employment Law Highlights From 2016

Labour and employment law had some interesting developments in 2016. What follows are a few highlights from the last year and an introduction to an issue that may attract significant attention in 2017.

The Supreme Court says no to without cause dismissals in the federal sector:  In Wilson v. Atomic Energy of Canada Ltd1,the Supreme Court of Canada held that federally regulated employees cannot be dismissed without just cause. Prior to Wilson, there were two diverging sets of authority as to whether a federally-regulated employer could dismiss a non-unionized employee without cause, with notice or compensation in lieu of notice. Wilson ended the debate and now, in effect, employees who fall under the unjust dismissal provisions of the Canada Labour Code have similar protections to those of unionized employees. A dismissed employee can pursue a complaint under the Canada Labour Code even if the employee received notice of the termination or compensation in lieu of notice. This serves as an additional reminder that employers should be diligent in documenting all employee misconduct and applying progressive discipline prior to termination to ensure that there is a sufficient evidentiary record to support a with cause dismissal when circumstances warrant. 

The potential pitfalls of fixed-term contracts: In Howard v. Benson Group Inc. (The Benson Group Inc.)2, the Ontario Court of Appeal ordered an employer to pay a former employee 37 months of salary and benefits following termination – after only 23 months of employment. The Court of Appeal held that when the employer terminated a fixed term employment contract, without cause, and there was no enforceable provision for early termination without cause, the employee was entitled to the compensation that he would have received to the end of the employment contract. Additionally, the Court held that the employee had no duty to mitigate his damages. Leave to appeal the decision to the Supreme Court was dismissed in October. For a more fulsome review of the decision and its lessons for employers, please see: The Potential Pitfalls of Fixed-Term Employment Contracts by Terra Welsh.

No more automatic certifications in Manitoba: In November, the Manitoba government changed the certification process for forming a new bargaining unit. Prior to November, if a union was able to gather at least 65% support from within the proposed bargaining unit, no vote of the proposed members was required and the Labour Board automatically certified the unit. If a proposed bargaining unit had between 40% and 65% support, a vote was required. Now, the minimum threshold of 40% remains, but a certification vote by secret ballot is required regardless of the amount of support.

The Manitoba Human Rights Commission continues the upward trend in damage awards: While the MHRC is certainly not at the levels of the human rights commissions in British Columbia or Alberta, most recently, in Jedrzejewska, Chaudhry, and Chaudhry v. A+ Financial Services Ltd and Wayne McConnell, three complainants who were subjected to workplace harassment were each awarded $20,000 as damages for injury to dignity, feelings and self-respect. This presents a considerable escalation when considered in the context of the high-water marks of $7,750 in 2013 and $15,000 in 2014.

New leaves under The Employment Standards Code: There were some significant amendments to the Code in 2016 relating to the addition of long-term leave for serious injury or illness, the extension of compassionate care leave, and the addition of domestic violence leave. For a more fulsome review of the amendments, please see: New Additions to The Employment Standards Code by Melissa Beaumont.

Not an employee or an independent contractor? Dependent contractor it is! In Keenan v. Canac Kitchens Ltd.3, the Ontario Court of Appeal considered the appropriate notice period for a married couple who worked for Canac Kitchens for 33 years. Thirteen years into the engagement, the company informed the couple that they were changing their relationship from employees to contractors and had the Keenans sign agreements indicating same. They were required to devote their full time and attention to Canac and did so until 2006. In 2007, the Keenans started doing some work for a competitor of Canac, because Canac was providing less work. Canac ended the relationship in 2009 and provided no notice or payment whatsoever. The Court of Appeal concluded that the Keenans were "dependent contractors" because of the exclusivity of the relationship and, therefore, they were entitled to notice of the termination of their engagement. The Court found that exclusivity is to be determined by looking at the entire relationship between the parties and the Keenans' recent work from an alternate source was insufficient to displace the average 28.5 years of service the Keenans had provided. The Keenans were awarded pay in lieu of 26 months of notice.

Marijuana in the workplace: The potential legalization of marijuana in 2017 will likely add an additional challenge to the already complex area of workplace drug and alcohol testing. Employers will need to turn their minds to whether their policies require amendment and whether the change in law will change their employees' on-duty conduct. The legalization of marijuana will affect the criminality of the drug, but does not change the fact that marijuana is an impairing substance that is unacceptable in the workplace in normal circumstances. As always, employers will have an obligation to maintain a safe workplace while balancing the privacy interests of their employees.


1 2016 SCC 29.

2 2016 ONCA 256.

3 2016 ONCA 79.

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.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions