Canada: Focus On Employment, Labour & Pensions - October, 2009

Last Updated: October 28 2009

Contents

  • Avoiding Temporary Layoffs: The Work Share Solution
  • Pandemic Planning: Ensuring That Your Organization Is Prepared
  • Temporary Foreign Workers And Labour Unions
  • Buzz About A New National Pension Plan: What's It All About?
  • Making A Medical Breakthrough – How To Get More Than A One-Line Medical Note From Your Absent
  • Ontario Moves To Deal With Workplace Harassment And Violence
  • Client Seminars

AVOIDING TEMPORARY LAYOFFS: THE WORK- SHARE SOLUTION
By Matthew J.G Curtis

The popularity of employee furlough programs in the United States has increased in the economic recession. A furlough is a temporary period when employees take unpaid leaves from work in response to slower business activity.

In Canada, employers should be aware of the Work-Share program, which is a temporary adjustment program offered by the Federal Government allowing employers to avoid instituting temporary layoffs. Where a reduction in business activity is temporary, unexpected, unavoidable and beyond the control of the employer, the Federal Government provides eligible employees with income support through the Employment Insurance system. Eligible employees can collect Employment Insurance benefits for the time they normally would have worked before the reduction of work hours. The 2009 Budget increased the number of weeks an employee can collect Employment Insurance benefits under the Work-Share program to 52 weeks for applications received on or after February 1, 2009 but before April 3, 2010. The previous maximum duration was 38 weeks. The minimum duration of Work-Share benefits is six weeks.

In order to qualify for the Work-Share program, an employer must meet the following criteria:

  • They have been in year-round business in Canada for at least two years (ineligible employers include seasonal and temporary employers)
  • Show the need for reduced hours is unavoidable
  • Show the work shortage is temporary and unexpected
  • Demonstrate (through a Recovery Plan) how the business will remain viable for the duration of the Work Share period and return to normal working hours as the economy strengthens
  • Not be undergoing a labour dispute or a work shortage as a result of a labour dispute at a supplier or customer
  • Have the agreement of the union (if applicable) and employees

For employees to be eligible, they must be:

  • "Core staff"
  • At least two employees
  • Eligible to receive regular Employment Insurance benefits
  • Not participating in a labour dispute

Ineligible employees include students and contract workers. Foreign workers are ineligible to participate unless their job duties are essential to the viability of the business.

Employers must maintain all existing employee benefits and are responsible for compensating workers for statutory holidays that fall within the Work-Share period.

A work shortage must be significant enough to warrant the support of the Work-Share program. An example given by Service Canada is a demonstrated decrease in sales or orders of at least 10 percent. A Work-Share agreement must include an estimated reduction in work activity between a minimum of 20 per cent of the employees' regular work schedule and a maximum of 60 per cent.

To apply for the Work-Share program, the employer and eligible employees must fill a Work Share application, which is available from Service Canada. Applications must be submitted to Service Canada at least one month before the anticipated start date of the Work-Share period. An application must be signed and completed by both the employer and the union. In non-unionized workplaces, affected employees must sign a form, designating an employee representative and approving the Work-Share agreement.

Service Canada assesses every Work-Share application to determine whether the application, meets the program criteria. Additional factors include a cost/benefit analysis, and cost difference/effectiveness analysis conducted by a Service Canada Program Officer. A social and community impact assessment is also performed to examine the overall impact of the business on the community. Decisions by Service Canada regarding the assessment of the Work-Share application are final with no possibility for appeal if an application is rejected.

By joining the Work-Share program, employers can benefit by retaining qualified employees during slow business periods and by avoiding costly hiring expenses when economic prospects improve in the future. Employees are more likely to buy into an unpaid leave program if there is an additional revenue stream from Employment Insurance that can supplement their reduced work income.

PANDEMIC PLANNING: ENSURING THAT YOUR ORGANIZATION IS PREPARED
By Correna Jones

The recent outbreak of the H1N1 virus has caused many organizations to re-evaluate their pandemic planning to ensure that they are prepared and understand their legal obligations. These legal obligations are found in both statute and common law. Employers must take both into account when developing a comprehensive strategy for dealing with the possibility of an influenza pandemic in the workplace.

Statutory Considerations

The first area to consider when developing a pandemic plan is provincial occupational health and safety legislation. In general, occupational health and safety legislation across Canada provides the following:

  • Both employers and employees are responsible for ensuring that workplaces are safe.
  • Employers must ensure the health and safety of all employees and any other workers present at a workplace at which that employer's work is being carried out.
  • Employers must remedy any workplace conditions that are hazardous to the health or safety of employees.
  • Employers must ensure that employees are made aware of all known or reasonably foreseeable health or safety hazards to which they are likely to be exposed by their work.
  • Employers must ensure employees are made aware of their legal rights and duties.
  • Employees must take reasonable care to protect the employee's health and safety and the health and safety of other persons who may be affected by the employee's acts or omissions at work.

In the communicable disease context, this translates as follows:

  • Employees with symptoms of a serious communicable disease have an obligation to report symptoms to the employer and stay home.
  • Employers may have grounds to send people home and any payment made to these individuals would be governed by the sick leave policy of the employer.
  • Employees have a right to refuse work if they have a reasonable belief that the workplace is unsafe.
  • If employees have no symptoms and do not meet the criteria for quarantine but are nonetheless sent home, the employer is liable to pay the employee. Otherwise, the employer may expose itself to constructive dismissal claims, particularly by non-union employees.
  • Any action an employer takes must be put in context and is best approached as a voluntary measure, as mandatory demands may be construed as constructive dismissal.
  • If the employer is suspicious that an employee does not meet the criteria for quarantine, the employer has the right to ask for confirmation that the employee meets the criteria (i.e. medical documentation, airline boarding pass).

Reasonableness should be the key in assessing the situations in which employees can legitimately be absent from work due to pandemic influenza concerns. Each case should be dealt with by the employer on an individual basis that includes a reasonable assessment of the safety of the workplace and the employee's concerns.

Common Law Considerations

The second area that employers must consider when undertaking pandemic planning is the common law or the case law developed by the courts in Canada. Subsequent to the SARS outbreak in 2003, several actions were started in Ontario alleging that various organizations had been negligent, careless or reckless in their handling of the outbreak. The pleadings in these actions alleged that the organizations involved failed to:

  • have adequate organizational communication, planning and training of staff,
  • follow public health directives or take into account statutory obligations,
  • involve or retain necessary experts, and
  • provide protection to non-employees entering and using the premises.

While the majority of the actions commenced subsequent to the SARS outbreak ended up becoming essentially procedural in nature, they indicate the legal risks that an organization may face by being inadequately prepared. Employers owe a common law duty of care to employees, contractors and others who visit their premises to ensure their safety, within reason. Employers must avoid acts or omissions that could foreseeably injure those on their premises and will be held to the standard of care of the reasonably informed person. One measure of what could be considered "reasonable" is the level of preparedness of an organization and its compliance with World Health Organization, Canadian, Provincial and local protocols.

If your organization has not yet undertaken a pandemic planning initiative, now is the time to do so. When beginning your analysis, consider the following policies and procedures that your organization may or may not have in place:

  • occupational health and safety protocols
  • policies relating to sick leave and paid time off to care for sick family members
  • policies relating to short-term disability
  • policies relating to business travel policies
  • policies relating to privacy that include the protection of employee medical information
  • an emergency response plan

While the H1N1 virus has not yet reached critical levels in Canada, with frequent business travel being the norm, organizations should ensure that they are adequately prepared to deal with the possibility of an influenza pandemic in the workplace.

TEMPORARY FOREIGN WORKERS AND LABOUR UNIONS
By Evelyn L. Ackah

Until recently, temporary foreign workers have been a key component of Canada's labour market. With the current economic downturn, these same workers have been experiencing significant uncertainty in their employment and immigration status. What obligations do employers have to foreign workers when dismissing or laying off employees? How are these obligations different in a labour union environment?

Canadian employers looking to dismiss temporary foreign workers must be aware of their obligations pursuant to Service Canada Labour Market Opinions (LMOs). Over the past couple of years, Service Canada LMOs have contained "instructions" for employers indicating that foreign workers must be laid off before Canadian workers in the same job category. These LMO instructions are not binding or enforceable on employers however, if not followed, it could lead to further scrutiny for any future LMO applications submitted by the employer. In addition, employers must also comply with provincial legislation, employment contracts and union agreements when considering layoffs. Sometimes these duties and obligations can conflict and employers must be aware of the appropriate actions to take to ensure compliance with the law at all times.

Labour Disputes

Employers of temporary foreign workers who join a labour dispute must immediately notify Service Canada and advise of the ongoing dispute. One of the factors considered in granting an LMO confirmation approval to an employer, is the consideration of whether the employment of the foreign national is likely to adversely affect the settlement of any labour dispute in progress, or the employment of any person involved in the dispute. Although mandatory disclosure of a labour dispute may impact the employer's ability to immediately obtain additional LMOs, failure to advise Service Canada of a labour dispute may significantly impact an employer's ability to obtain future LMOs as Service Canada is now reviewing proof of past compliance.

Union Agreements

Situations can arise where a Canadian employer who has received LMO approval is also bound by a union agreement which ranks employees based on their length of service. Such a union agreement may result in a foreign worker having more seniority than a Canadian or Permanent Resident holding the same job category. When faced with a conflict between the instructions of the LMO as outlined above, and the union agreement, an employer must first abide by the terms of the union agreement which are binding. This would mean that contrary to the LMO instructions, the employer would be required to dismiss the Canadian or Permanent Resident employee and retain the foreign worker so long as his/her work permit remains valid.

Work-Share and Employment Insurance

As a result of the economic downturn, some Canadian employers are now looking at temporary lay-offs and Work-share strategies as options to avoid employee terminations. It is important however, that employers recognize that these strategies may not apply to their foreign workers that they are trying to retain. For instance, foreign workers are generally not eligible to participate in a work-sharing agreement unless their job duties are considered essential to the viability of the business. Service Canada has confirmed that this is a discretionary decision in terms of who is considered "essential". However, it is unlikely that foreign workers will be considered essential whether or not they are members of a union.

Another consideration for employers when terminating or laying-off employees is whether or not foreign workers will be eligible for employment insurance (EI). Each province across Canada deals with this issue differently, so it is highly recommended that employers confirm with the local EI office whether laid-off foreign workers who are searching for new positions will be temporarily eligible for EI support. In some cases they will not be eligible and this may be a consideration for an employer when making the difficult choice between terminating a foreign worker as opposed to a Canadian worker.

Employer Obligations

Across Canada, each province has its own legislation governing an employer's rights and duties in relation to foreign workers. In Alberta, the obligations of notice periods and general working conditions are found in the Employment Standards Code. Section 55(2)(f) of the Employment Standards Code provides that in a labour dispute involving a strike or lockout, an employer is not required to give an otherwise eligible foreign worker termination notice.

Employers must also comply with human rights legislation, such as Alberta's Human Rights, Citizenship and Multiculturalism Act. The recent British Columbia Human Rights Tribunal decision of C.S.W.U., Local 1611 v. SELI Canada Inc., 1008 BCHRT 436, 2009 C.L.L.C. 230-004 ("CSWU NO. 8") demonstrates the importance of abiding by human rights legislation, and treating all workers fairly, including foreign workers. At issue in CSWU NO. 8, was whether an employer had discriminated against Latin American foreign workers by treating them differently than its European foreign workers who were also in Canada working on the same project. The employer denied that there had been any discrimination, and argued that the discrepancies between the salaries of the two groups of foreign workers was a result of SELI's international compensation practices. SELI argued that the European workers could not be paid less than what SELI had paid them on previous projects in other countries, and that they were more skilled than many of the Latin American foreign workers. The Human Rights Tribunal held that SELI had indeed discriminated against the Latin American workers in respect of salaries, accommodation, meals and expenses, and that no justification existed for the prima facie discriminatory conduct. SELI was ordered to pay each Latin American foreign worker the difference between the salary and expenses they received as compared to the European foreign workers, plus an additional $10,000 each in compensation for injury to dignity. Although it is very rare for foreign workers to pursue legal action in Canada, this could become more common as foreign workers encounter more lay offs and discriminatory practices as a result of challenging economic conditions.

Clearly, Canadian employers retain the right to hire and dismiss foreign workers as they see fit. However, they must always be cognizant of their legal obligations in terms of abiding by provincial legislation, Service Canada LMO requirements, and any employment or union agreements. Abiding by these requirements will help employers avoid legal liability as well as impediments to employing foreign workers in the future, once the economic situation improves.

BUZZ ABOUT A NEW NATIONAL PENSION PLAN: WHAT'S IT ALL ABOUT?
By Heather Di Dio

If you have seen press reports lately about the possibility of a new national pension plan, you may be wondering what it is all about.

In short, federal and provincial finance ministers have launched a task force to evaluate the Canadian retirement system and make recommendations on how to improve it. Among the many alternatives being canvassed, the proposals gaining the most publicity are the overhaul of the Canada Pension Plan (CPP) and the creation of a new national pension plan. It's noteworthy that so many premiers across the country appear to be serious about change.

Discussion surrounding the topic of pension reform is not new. However, as the number of employers in financial trouble climb and uncertainty over the security of pensions grows, retirement issues are now front and centre in the minds of many Canadians. As a result, governments across Canada are taking an active role in re-evaluating the Canadian pension system. What has long been a main concern for workers and the pension regulators seems to have become a priority for cabinet ministers at the provincial and federal levels.

Canadians are just not saving enough when it comes to retirement income. It is estimated that only two in ten employees in the private sector have a company pension plan; and the number of private sector pension plans is declining. Adding to that, the majority of those who are fortunate enough to participate in a private sector plan have been hurt by the financial crisis and have seen the value of their retirement savings drop.

So it seems there is agreement that a major problem exists. The question that needs to be answered is, "how do we fix it?"

In July 2009, ministers from the governments of British Columbia, Alberta, Manitoba, Ontario and Nova Scotia met in Vancouver and decided to immediately begin a formal review to create a national solution to improve retirement incomes. The review was supported by representatives from the other five provinces and two of the three territories, who participated in the meeting by telephone. However, a report is not expected to be completed until December.

Various other reports conducted by pension task forces in British Columbia, Alberta, Ontario and Nova Scotia last year all recommended some type of pension reform. Even the head of the Canada Pension Plan Investment Board, David Denison, recently spoke about the need for change. He suggested that policymakers consider new regional or national pension plans, which could be based on the CPP model intended to help those who don't have company pension plans which could be based on the CPP model.

A consensus is forming that Canada needs a public pension plan covering all workers. One way to achieve this is to expand the CPP. Another alternative would be to allow those without a pension plan to buy supplemental CPP coverage. A third option would be to create regional pension plans covering workers in defined geographical areas, or better yet, create a national pension plan to provide retirement income for all Canadian workers.

The three most western provinces, British Columbia, Alberta and Saskatchewan, seem determined to move forward with developing a regional pension plan on their own, if talks to create a national retirement program fail.

The federal-provincial pension task force plans to reconvene in Whitehorse in December 2009 to discuss their findings on the Canadian retirement system. What will come of their discussions and what will be implemented is yet to be known.

MAKING A MEDICAL BREAKTHROUGH – HOW TO GET MORE THAN A ONE-LINE MEDICAL NOTE FROM YOUR ABSENT EMPLOYEE
By Blair W. Mccreadie

Managing an absent employee's transition back to full-time employment can be a challenge for employers, especially where the employee has not provided clear and adequate medical information. But even where an employer requests a medical certificate, the response can sometimes be a oneline medical note that provides little information to help the employer assess its accommodation obligations.

Most employers understand there is a duty to accommodate an employee who is absent due to illness or disability to the point of undue hardship. But there is a corresponding obligation on the absent employee to provide reasonable proof to support his or her absence, and to co-operate with the employer's return-to-work efforts. An employee must actively participate in the process, and provide sufficient information to help the employer understand what accommodation is needed to get the employee back to work.

So what information is an employer entitled to receive? Generally, an employer cannot request confirmation of an employee's medical diagnosis. However, the employer can request sufficient medical information to justify the employee's ongoing absence from work, assess the employee's fitness to return to work based on any ongoing medical restrictions, and confirm an expected timeline for a return to work.

Where appropriate, the employer's first step should be to send an initial request for information from the employee's treating physician. This initial request should include a questionnaire about the employee's medical restrictions, a detailed job description or physical demands analysis of the employee's position, and an appropriate consent authorizing the treating physician to release this information to the employer.

Each questionnaire should be tailored to confirm the individual employee's ongoing medical restrictions and their projected duration of absence. The physician should also be asked to assess the impact of each restriction on the duties and responsibilities outlined in the employee's job description, and make specific recommendations for any required accommodation. Finally, the physician should also be asked to confirm a timeline for further assessment, and give an opinion on the employee's prognosis to return to work.

It is important for employers to clearly document any requests for information made to the absent employee. If an employee fails to respond, or if the response provided is not sufficient, the employer should clarify that the information is relevant and necessary to assess its accommodation obligations, and gently remind the employee of his or her obligation to co-operate, in the return-to-work process. These documented requests will help to establish that the employer made sufficient efforts to accommodate the absent employee if a dispute arises later.

Where an absent employee either fails to cooperate or refuses to provide sufficient information, it may be appropriate to request that the employee attend an independent medical examination ("IME"). It is important for employers to know that they do not have an inherent right to demand that an employee submit to an IME in the absence of a specific authority under a statute, employment contract or collective agreement. Therefore, an employer should exhaust other less intrusive means to gather information from an absent employee before requesting an IME.

Even in appropriate circumstances, an employer should have reasonable grounds before requesting an IME. This could include ambiguous or conflicting medical information, a demonstrated lack of co-operation by the employee to provide relevant information or a specific lack of expertise by the treating physician. A request for an IME should be in writing, and confirm the reason for the request. Wherever possible, an employer should also provide a choice of acceptable physicians, and give the employee a reasonable time frame to attend the IME. The scope of the examination should be limited to only what is medically relevant to determine the employee's ongoing restrictions. Ideally, an employer should also have either a sick leave policy, or a contractual or collective agreement provision confirming that it may request an IME as part of its return-to-work process.

In addition, an employer can also request that an employee provide reasonable medical clearance confirming that he or she is fit to perform the essential duties of his or her position before returning to work. If the medical certificate provided is not sufficient, and the employer has reasonable grounds to believe that the employee cannot safely perform his or her job duties, an employer may request additional information from an employee before permitting a return to work. Again, the employer should specifically advise the employee what information it requires, and specifically outline its health and safety-related reasons for making the request for additional information.

Finally, employers often ask how to address a situation where an employee simply refuses to cooperate or provide sufficient information. Because the employer's right to request sufficient information must be balanced against the privacy interests of the absent employee, courts and arbitrators are often reluctant to uphold disciplinary action or a termination for just cause without evidence of clear, culpable misconduct on the part of the absent employee. This could include, for example, a situation where the employee provides false medical information in response to the employer's request.

Instead, where an employer has reasonable grounds to request additional medical information, the employee should be placed on unpaid leave and should not return to work until a satisfactory medical certificate is provided. If the employee does not cooperate with his or her employer's accommodation and return-to-work efforts, he or she may ultimately relieve the employer of its duty to accommodate, and allow the employer to end the employment relationship through frustration of contract.

Overall, employers must remember that fulfilling a duty to accommodate an absent or returning employee will take time. Do not rush to final judgment when managing one of these situations - each one should be assessed individually and meaningfully to determine what accommodation is appropriate. An employer should also fully document any requests for additional medical information and any responses received. Finally, it is important to work proactively and co-operatively with other workplace stakeholders – like the treating physician, benefits carrier, or trade union - to obtain the medical information needed by the employer to assess its accommodation and returnto- work obligations.

ONTARIO MOVES TO DEAL WITH WORKPLACE HARASSMENT AND VIOLENCE
By Christina Hall

On November 12, 2005, Lori Dupont, a nurse at Windsor's Hotel-Dieu Grace Hospital, was stabbed and killed at work by her former boyfriend, anaesthesiologist Marc Daniel. In December 2008, Eric Kirkpatrick, recently terminated from his job in British Columbia, arrived at his former employer's Christmas party and fatally shot its CEO in front of horrified employees.

Although these two examples of workplace violence are extreme, they serve to provoke debate on the extent to which governments should intervene in Canadian workplaces to deal with workplace harassment and violence. On April 20, 2009, Ontario responded to these issues by introducing Bill 168, An Act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace and other matters.1

Bill 168 tackles workplace harassment and violence as a health and safety issue. As of June 2009 the legislation has only passed first reading. However, as it is currently drafted, Bill 168 proposes to add definitions of workplace harassment and workplace violence to the Occupational Health and Safety Act ("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 the workplace that could cause physical injury to the worker.

Under these definitions, Bill 168 amends the general obligations under the current OHSA to expressly impose obligations on employers, supervisors and workers to take all reasonable steps to protect workers from workplace violence. There is also an additional obligation on employers to take all reasonable precautions in the circumstances for the protection of a worker if there is a domestic violence situation that is likely to expose a worker to physical injury in the workplace and the employer is aware, or ought to be aware, of the situation. Furthermore, Bill 168 extends the existing work refusals provisions in the OHSA to grant workers the right to refuse work if workplace violence likely to endanger the worker.

More specifically, in order to prevent workplace harassment and violence, Bill 168 requires employers to develop a policy and program to proactively deter workplace harassment and violence. The policy and program must include the conduct of a risk assessment and the creation of a reporting and complaint investigation mechanism. The policy must be reviewed at least annually, and it must be posted at a conspicuous place in the workplace.

In terms of workplace harassment, the Ontario Human Rights Code (the "Code")2 has long prohibited harassment in the workplace based on race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.3 Traditionally, harassment that was based on other, non-protected grounds was not actionable, unless the employer had extended additional protection by way of policy or it had agreed, as part of the collective bargaining process with a union, to incorporate broader protection in a collective agreement. The one caveat to this has been the development of a body of law by the courts in which protracted, serious, personal harassment has been found to amount to a constructive dismissal. This development created protection for employees from severe, harassment based on non-protected grounds, but for less severe harassment, no legal protection existed. Bill 168 will change this because it will require employers to treat harassment based on nonprotected grounds in the same manner as harassment based on Code-protected grounds. Depending on an employers' existing policies or collective agreement language, these obligations may greatly extend an employer's current obligations.

In introducing Bill 168, Ontario is following the lead of other provinces. Two other such provinces include Quebec and Saskatchewan, which have also attempted to legislatively address workplace harassment and violence. Quebec amended its employment standards legislation, An Act respecting labour standards4 in 2002 to introduce a prohibition on "psychological harassment" in the workplace:

"psychological harassment" means any vexatious behaviour in the form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures, that affects an employee's dignity or psychological or physical integrity and that results in a harmful work environment for the employee.

Under Bill 168, proof of an effect on or damage to an employee's dignity or psychological or physical integrity created by the harassment is not required. There is also no requirement in Bill 168 to prove that the harassment creates a harmful work environment – this is effectively assumed to be one of the effects of workplace harassment.

Saskatchewan's legislation, adopted in 2007, is similar to Bill 168 in that it introduced amendments to the Saskatchewan Occupational Health and Safety Act to prohibit harassment on the basis that it created a health and safety issue.5 The definition of harassment in Saskatchewan is a lower standard than that required in Quebec, but appears higher than what will be required in Ontario:

'"harassment" means any inappropriate conduct, comment, display, action or gesture by a person:

(i) that either:

(A) is based on race, creed, religion, colour, sex, sexual orientation, marital status, family status, disability, physical size or weight, age, nationality, ancestry or place of origin; or

(B) subject to subsections (3) and (4), adversely affects the worker's psychological or physical wellbeing and that the person knows or ought reasonably to know would cause a worker to be humiliated or intimidated; and

(ii) that constitutes a threat to the health or safety of the worker.

However, Saskatchewan's legislation did not introduce any additional requirements relating to policies and procedures. Ontario's Bill 168 will go one step farther than this with its obligations to implement a policy and program to address the issue.

So far, reaction to Bill 168 has been mixed. Since the legislation will apply to all Ontario workplaces, some small employers are concerned about the time and cost involved with implementing the requisite policy and procedures. Other employers are concerned about how best to fulfil their obligations to protect workers. On the other hand, some organizations feel that the legislation does not go far enough. For example, there has been criticism in some circles about Bill 168's failure to involve the joint health and safety committees or worker representatives in the workplace harassment and violence assessment or prevention process.

These concerns will no doubt be evaluated as the new Ontario legislation moves forward. What is certain at this point is that Bill 168 remains a piece of legislation to which employers should pay particularly close attention.

CLIENT SEMINARS

FMC regularly hosts employment and labour law updates. Please visit our website for full details of our upcoming FMC Employment | Labour Seminars.

Footnotes

1 1st Sess, 39th Leg., Ontario, 2009.

2 R.S.O. 1990, c. H.19.

3 Ibid, s. 5(2).

4 R.S.Q. c. N-1.1, s. 81.18.

5 An Act to amend the Occupational Health and Safety Act, 1993, S.S. 2007, C.34.

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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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.

Disclaimer

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.

General

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