Comparative Guides
Welcome to Mondaq Comparative Guides - your comparative global Q&A guide.
Our Comparative Guides provide an overview of some of the key points of law and practice and allow you to compare regulatory environments and laws across multiple jurisdictions.
Start by selecting your Topic of interest below. Then choose your Regions and finally refine the exact Subjects you are seeking clarity on to view detailed analysis provided by our carefully selected internationally recognised experts.
Results: 4 Answers
Labour and Employment
1.
Legal framework
1.1
Are there statutory sources of labour and employment law?
 
Canada
Employment in all Canadian jurisdictions is regulated by a constellation of statutes, including employment standards legislation, collective bargaining legislation, human rights legislation, occupational health and safety legislation, privacy legislation, employment insurance and social welfare legislation, and workers’ compensation legislation.

For more information about this answer please contact: Tim Lawson from McCarthy Tétrault LLP
1.2
Is there a contractual system that operates in parallel, or in addition to, the statutory sources?
 
Canada
Statutory sources of labour and employment law supplement contractual terms and conditions of employment and the common law. Generally speaking, employers and employees are free to negotiate terms and conditions of employment. However, contractual terms must be compliant with statutory standards and obligations, which are implied by law into all employment contracts as a matter of public policy. Contracting parties cannot contract out of or under these standards. Courts will find contractual terms which conflict with public policy to be void or unenforceable, and this can have far-reaching consequences for the integrity of the contract as a whole, as well as the liability that can arise in the event of a breach.

For more information about this answer please contact: Tim Lawson from McCarthy Tétrault LLP
1.3
Are employment contracts commonly used at all levels? If so, what types of contracts are used and how are they created? Must they be in writing must they include specific information? Are implied clauses allowed?
 
Canada
Employment contracts are commonly used and presumptively enforceable if the basic contract law requirements of offer, acceptance and consideration are satisfied. Employment contracts can be in writing, can be unwritten and concluded orally, or can consist of a combination of written and unwritten terms.

Employers are strongly advised to utilise written contracts of employment in order to pre-empt disputes about employees’ terms and conditions of employment, and in particular about employees’ entitlements to reasonable notice of termination or payment in lieu thereof. Uncertainty about these matters can lead to costly wrongful dismissal claims and litigation.

The rights and obligations arising from employment-related statutes are deemed to be incorporated into every employment contract, whether or not they are reduced to writing in the contract itself. Express contractual terms are also supplemented by common law principles, such as the general duties of loyalty and good faith, and the implied term of common law reasonable notice of termination or payment in lieu.

Special considerations apply in Quebec, where contractual relations and other private law matters are regulated by the civil law as well as the common law. For example, the Quebec Civil Code contains specific provisions on restrictive covenants, the duty of confidentiality, reasonable notice of termination and the tacit renewal of defined-term contracts, which are not similarly codified in other jurisdictions and arise instead from the common law of employment.

For more information about this answer please contact: Tim Lawson from McCarthy Tétrault LLP
2.
Employment rights and representations
2.1
What, if any, are the rights to parental leave, at either a national or local level?
 
Canada
All Canadian jurisdictions provide new parents with the right to take parental leave. In all jurisdictions, the statutory entitlement to parental leave is to unpaid time off work when a baby is born or first comes into the care of the parents. This leave is in addition to the maternity/pregnancy leave available for a mother and applies to biological as well as adoptive parents. Some Canadian jurisdictions require that an employee be employed by the same employer for a specified period before being eligible for parental leave.

Some Canadian jurisdictions provide for a single parental leave entitlement per birth/adoption. This means that the parental leave entitlement can be taken by one parent or shared by both parents. Other Canadian jurisdictions provide both parents with full individual parental leave entitlements.

For more information about this answer please contact: Tim Lawson from McCarthy Tétrault LLP
2.2
How long does it last and what benefits are given during this time?
 
Canada
The length of parental leave varies depending on the Canadian jurisdiction and the applicable employment standards legislation. Employees may be provided with a greater right or benefit than the applicable minimum standard pursuant to an employment contract or collective agreement.

Some jurisdictions also allow for an extension of parental leave in certain circumstances. For example, in the province of Quebec, if the health of the child requires an extension of parental leave, the employee will be entitled to extended parental leave for as long as is indicated in a medical certificate. In other jurisdictions where extensions are permitted, employees are entitled to up to five consecutive weeks of additional parental leave.

While on parental leave, employees can continue earning credit for length of service and have a right to return to their job after parental leave. It is not permissible for an employer to penalise an employee because the employee is eligible for parental leave or intends to take parental leave. Moreover, employees on parental leave are entitled to continue participating in certain benefit plans and are eligible to receive employment insurance benefits from the government.

For more information about this answer please contact: Tim Lawson from McCarthy Tétrault LLP
2.3
Are trade unions recognised and what rights do they have?
 
Canada
Trade unions are recognised in all Canadian jurisdictions. Collective bargaining legislation gives employees the statutory right to become members of a trade union. In all jurisdictions, this right is protected by statutory provisions which prohibit interference with those rights. For example, unfair labour practice provisions prohibit employers from interfering with the administration and activities of a trade union.

Trade unions are usually certified as the employees’ exclusive bargaining agent following a vote in which a majority of employees in the bargaining unit express their wish to be represented by the union. Following certification, trade unions represent employees in collective bargaining and labour disputes, as well in more routine workplace matters and political advocacy.

Legislation in each Canadian jurisdiction permits collective agreements to require that all employees within a bargaining unit be or become members of the signatory trade union, regardless of whether they personally support the union. Moreover, employees are generally required to pay trade union membership dues and it is permissible for employers to deduct these dues from employees’ wages and remit them to the union.

As the exclusive bargaining agent for the employees they represent, trade unions have a duty to represent their members fairly. This duty requires unions to treat their members in a manner that is not arbitrary, discriminatory or in bad faith.

Where a workplace is unionised and thereby covered by a collective agreement, the collective agreement governs the terms and conditions of employment. Employers cannot enter into individual employment contracts with the employees concerned.

In all Canadian jurisdictions, collective agreements are required to contain certain provisions. Generally, they must provide that the agreement’s term is at least one year and that strikes or lock-outs are prohibited during the term of the agreement. Thus, industrial action is permitted only once a collective agreement has expired and negotiations have broken down; or, where no collective agreement previously applied, in the case of a first contract negotiation following certification.

The Supreme Court of Canada has constitutionalised the right to meaningful collective bargaining and the right to strike. These rights are anchored in freedom of association, which is protected by the Canadian Charter of Rights and Freedoms. The charter applies only to government action and public employees, so the ambit of these constitutional principles is relatively limited in application.

For more information about this answer please contact: Tim Lawson from McCarthy Tétrault LLP
2.4
How are data protection rules applied in the workforce and how does this affect employees’ privacy rights?
 
Canada
All Canadian jurisdictions have privacy and access to information laws that apply to government agencies within the jurisdiction. However, unlike the federal jurisdiction’s privacy legislation, the Personal Information Protection and Electronic Documents Act (PIPEDA), most provinces do not have specific data protection legislation that applies to employment within the private sector. In fact, only Quebec, Alberta and British Columbia have enacted data protection statutes that have been deemed substantially similar to PIPEDA.

PIPEDA protects employees’ ‘personal information’, which it defines as information about an identifiable individual, except an employee’s name, title, business address and telephone number. PIPEDA requires employers to limit the collection of personal information to that which is necessary for the purposes identified by the employer.

Common law principles and human rights law are also developing in ways that promote and protect personal privacy. Canadian courts and tribunals have broadly accepted internationally recognised principles of privacy and data protection, such as the requirement of specific and informed consent to collection, use and disclosure of personal information. The Ontario Court of Appeal has also recognised the privacy-related tort of ‘intrusion upon seclusion’.

Common privacy issues in the workplace include surveillance, collection and use of personal health information, drug and alcohol testing, biometrics and background checks.

For more information about this answer please contact: Tim Lawson from McCarthy Tétrault LLP
2.5
Are contingent worker arrangements specifically regulated?
 
Canada
Canadian jurisdictions do not specifically regulate independent contractor relationships through employment standards legislation. However, as the courts have held that the term ‘employee’ is to be broadly and liberally interpreted, it is possible for the definition of an ‘employee’ to encompass independent contractors and other contingent workers. For example, in some jurisdictions, health and safety laws have been interpreted to include independent contractors in the definition of a ‘worker’. Similarly, while an individual may claim to be an independent contractor, the courts may still consider the individual to be an employee of the employer based on the true nature of the relationship. If the court determines that the individual is in fact an employee of the employer, that employee will be afforded employment protection under both the common law and employment legislation for the applicable jurisdiction.

Many Canadian jurisdictions specifically regulate aspects of the employment of foreign workers and contingent workers such as temporary help agency workers.

For more information about this answer please contact: Tim Lawson from McCarthy Tétrault LLP
3.
Employment benefits
3.1
Is there a national minimum wage that must be adhered to?
 
Canada
There is no national minimum wage in Canada. In Canada, the provinces and territories are responsible for setting their own statutory minimum wages. For federally regulated employees, they are to be paid the minimum wage of the province or territory in which they are usually employed. Notwithstanding the statutory minimum wage, employees may be provided with a greater right or benefit under their respective employment contracts or under a collective agreement.

For more information about this answer please contact: Tim Lawson from McCarthy Tétrault LLP
3.2
Is there an entitlement to payment for overtime?
 
Canada
Employees are entitled to be paid for overtime in all Canadian jurisdictions. This means that an employer is responsible for paying employees overtime pay for all hours worked beyond their standard working day or standard working week, as defined by the applicable employment standards legislation.

While overtime tends to be calculated at 1.5 times the regular hourly rate of pay, some jurisdictions calculate the overtime rate based on the minimum wage. A number of jurisdictions allow for the granting of time off in lieu of overtime pay.

Moreover, some jurisdictions provide for limits on the total number of hours that employees may work or be required to work. These limits are inclusive of overtime.

For more information about this answer please contact: Tim Lawson from McCarthy Tétrault LLP
3.3
Is there an entitlement to annual leave? If so, what is the minimum that employees are entitled to receive?
 
Canada
Employees who are covered by employment standards legislation are entitled to paid annual leave (‘vacation’). The amount of vacation days varies by province. However, employment contracts or collective agreements may, and often do, provide for a greater right or benefit than what is statutorily required. Thus, many employees will receive more than what the minimum standards provide.

Employers must allow employees to take their vacation within a certain period after the year in which it was earned. It is not generally permissible for employees to carry over their vacation entitlement beyond the time limits provided for in their jurisdiction. Generally, the timing of an employee’s vacation is at the employer’s discretion. As a result, many jurisdictions require employers to give employees minimum notice of their vacation dates.

Further, each jurisdiction has rules on the calculation of employees’ holiday pay. The amount of holiday pay is determined as a proportion of an employee’s total wages during the year in which the entitlement to vacation was acquired.

For more information about this answer please contact: Tim Lawson from McCarthy Tétrault LLP
3.4
Is there a requirement to provide sick leave? If so, what is the minimum that employees are entitled to receive?
 
Canada
All Canadian jurisdictions provide employees with an entitlement to sick leave. In some jurisdictions, some or all of the sick leave days that an employee is entitled to take will be paid. Moreover, while the number of days varies by jurisdiction, employment contracts, collective agreements and supplemental health insurance benefits may provide for a greater right or benefit than what is statutorily required. Thus, many employees are entitled to more sick days than what the minimum standards provide.

For more information about this answer please contact: Tim Lawson from McCarthy Tétrault LLP
3.5
Is there a statutory retirement age? If so, what is it?
 
Canada
There is no statutory retirement age in Canada and human rights tribunals have found mandatory retirement to be discriminatory. Both federal and provincial human rights codes protect Canadians from age discrimination. Some Canadian jurisdictions provide for an exception where the retirement age can be justified as bona fide in the circumstances of a particular job. For example, under Ontario’s Human Rights Code, an employee’s right to equal treatment with respect to employment is not infringed if the age of the applicant is a reasonable and bona fide qualification because of the nature of the employment, as might be the case in respect of physically demanding jobs. Moreover, in New Brunswick, an employee that reaches a certain age may be obligated to retire if this is stipulated in a bona fide pension plan.

For more information about this answer please contact: Tim Lawson from McCarthy Tétrault LLP
4.
Discrimination and harassment
4.1
What actions are classified as unlawfully discriminatory?
 
Canada
Discrimination is the unlawful imposition of burdens on an individual or group by virtue of their possession of certain protected characteristics. Discrimination is closely linked to stereotyping and prejudice and may be advertent or inadvertent, specific or systemic.

There are two broad categories of discrimination: direct discrimination and indirect discrimination. Direct discrimination occurs when an employer institutes a practice or rule which, on its face, discriminates against an individual on a prohibited ground. For instance, an example of direct discrimination might be where an employer has a policy that only men are allowed breaks, which would discriminate against individuals who do not identify as men.

Indirect or ‘adverse-effect’ discrimination occurs when an employer institutes a practice or rule which is facially neutral, but has the effect of being discriminatory on the basis of a prohibited ground, in the sense of imposing disproportionate burdens. The core aspect of indirect discrimination is that it imposes greater obligations, penalties or conditions upon those employees because of the prohibited ground than it does on other employees. For example, a mandatory workplace dress code or uniform could effectively require individuals who wear religious garments, such as turbans or kippahs, to abandon their religious practice in order to comply with the workplace policy and participate fully in the workplace.

For more information about this answer please contact: Tim Lawson from McCarthy Tétrault LLP
4.2
Are there specified groups or classifications entitled to protection?
 
Canada
The Canadian Charter of Rights and Freedoms and the human rights codes in each province protect broadly similar groups and classifications.

The common groups and classifications entitled to protection are age, sex, family status or affiliation, sexual orientation, race, colour, ethnicity, religion, disability and genetic characteristics.

Certain provinces have also established protections from discrimination on the grounds of national origin, political beliefs, association, criminal record and history, citizenship, linguistic origin or background, and even irrational fear of contracting an illness or disease.

For more information about this answer please contact: Tim Lawson from McCarthy Tétrault LLP
4.3
What protections are employed against discrimination in the workforce?
 
Canada
Employers have a duty to accommodate employees on the basis of protected grounds in human rights law to the point of ‘undue hardship’. The duty to accommodate helps to facilitate full participation of employees in the workplace notwithstanding personal characteristics such as disability or religious observance. The duty to accommodate is triggered once an employer learns of an employee’s needs relating to a protected ground of human rights law, usually through a request from the employee directly. Employers are ultimately responsible for determining what kind of accommodation would be appropriate in the context of the particular workplace and the employee’s circumstances.

Employers have a duty to take seriously and investigate complaints of discrimination, including harassment based on a protected ground of human rights law. Failure to respond appropriately to complaints of discrimination and harassment could result in liability even if the underlying complaint is ultimately unsubstantiated. An employer’s failure to remediate discrimination and harassment can also contribute to a ‘poisoned work environment’, for which the employer may be held liable.

Employees who request accommodation or raise concerns about discrimination and harassment are protected against reprisal for exercising their statutory rights to be free from discrimination and harassment in the workplace.

For more information about this answer please contact: Tim Lawson from McCarthy Tétrault LLP
4.4
How is a discrimination claim processed?
 
Canada
Discrimination complaints are processed predominantly by provincial human rights tribunals and human rights commissions. Some of the provinces employ a ‘direct access’ model for human rights complaints, while others use human rights commissions to perform a ‘gatekeeper’ role in the complaints and adjudication process.

In both models, the process typically begins with the filing of a formal claim with the commission or tribunal and the parties concerned. The direct access model proceeds in a similar manner to the court-based civil litigation process, with the exchange of pleadings and documents, the opportunity for the parties to make preliminary objections concerning jurisdictional and procedural matters, and ultimately adjudication on the merits before the tribunal with witness examinations and oral argument.

In provinces using the gatekeeper model, the parties’ submissions are often received by the respective human rights commission, which then typically investigates, mediates, prepares a report and ultimately decides whether to advance the claim to adjudication. Depending on the province and the complaint, the commission may, in addition to referring a complaint to the tribunal, take carriage of the complaint, in which case the commission will represent the complainant throughout the remainder of the proceedings.

The decisions of human rights tribunals are final and binding, but may be subject to judicial review, typically on the deferential reasonableness standard. Some tribunals also allow for reconsideration of tribunal decisions in limited circumstances.

For more information about this answer please contact: Tim Lawson from McCarthy Tétrault LLP
4.5
What remedies are available?
 
Canada
The remedies that are available in human rights complaints depend largely on the nature of the case and the responsible tribunal or commission’s remedial jurisdiction as defined by the applicable human rights legislation and rules.

Many different remedies are codified in human rights legislation. Common remedies include orders:

  • to pay ‘human rights damages’ to compensate for injury to dignity, feelings and self-respect;
  • to cease and desist from the discriminatory contravention;
  • to reinstate the complainant employee;
  • to pay damages for specific financial loss attributable to the discrimination (ie, lost wages and expenses incurred);
  • to introduce measures to make facilities accessible; and
  • imposing public interest remedies, such as requiring an employer to adopt policies, implement training and education, and post human rights legislation and notices of contraventions in the workplace.
For more information about this answer please contact: Tim Lawson from McCarthy Tétrault LLP
4.6
What protections and remedies are available against harassment, bullying and retaliation/victimisation?
 
Canada
Harassment and bullying on the basis of a protected ground of human rights law amount to discrimination. Harassment and bullying of this nature will be investigated, processed and remedied in the same manner as other complaints of discrimination.

Harassment and bullying which do not relate to a protected ground of human rights law and therefore do not amount to discrimination are often regulated by health and safety legislation. In Ontario, for example, health and safety legislation requires employers to implement policies and procedures for preventing and investigating instances of workplace harassment and violence. In Quebec, the Act Respecting Labour Standards also provides a general mechanism whereby employees may seek redress for ‘psychological harassment’, which is defined in Section 81.18 as “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”. The scope of this definition is notably broader than that in other pieces of provincial legislation, which in some cases specifically exclude reasonable actions taken by a manager or supervisor relating to the management and direction of the workplace from the ambit of ‘workplace harassment’.

For more information about this answer please contact: Tim Lawson from McCarthy Tétrault LLP
5.
Dismissals and terminations
5.1
Must a valid reason be given to lawfully terminate an employment contract?
 
Canada
In Canada, an employment contract can be terminated in two circumstances: for just cause or without cause. A termination for cause occurs when the employee’s misconduct has irreparably damaged the employment relationship. In these circumstances, the employer is not required to provide notice of termination or payment in lieu of notice. In Quebec, the Section 2094 Civil Code right to “resiliate” a contract “for a serious reason” and the Act Respecting Labour Standards right to terminate employment for “good and sufficient cause” parallel the common law right to terminate for cause in other jurisdictions.

Conversely, without cause termination occurs where an employee is terminated without a reason. Generally, an employer may terminate an employment contract without cause at any time by providing notice to the employee or payment in lieu of notice to the employee. In addition, an employee may resign at any time by providing the employer with notice. Moreover, where an employer has fundamentally failed to fulfil its obligations to the employee or made a substantial unilateral change to the employee’s terms and conditions of employment, the employee may resign in protest and claim his or her lawful termination entitlements, as if he or she were wrongfully dismissed. This is known as ‘constructive dismissal’.

An employer’s right to terminate an employee without cause does not permit the employer to terminate for reasons which discriminate on the basis of a protected ground in human rights law or as a reprisal for the employee exercising certain statutory rights.

In the federal jurisdiction, the Supreme Court of Canada has held that the unjust dismissal provisions of the Canada Labour Code preclude an employer from terminating employment without cause and merely offering severance. Instead, subject to prescribed exceptions, federally regulated employees with over 12 months’ service are entitled to complain of unjust dismissal and to have recourse to any of the code’s remedies which may be appropriate in the circumstances, including reinstatement.

For more information about this answer please contact: Tim Lawson from McCarthy Tétrault LLP
5.2
Is a minimum notice period required?
 
Canada
Notice of termination is required when an employee is terminated without cause. Employers can provide employees with working notice of termination, payment in lieu or notice or some combination of the two.

The length of an employee’s notice entitlement depends on the terms of the employee’s employment contract and the applicable employment standards legislation.

Common law ‘reasonable notice’ of termination is implied in employment contracts and applies by default where a contract is silent with respect to the applicable notice period. Common law reasonable notice invariably constitutes a longer entitlement and therefore a greater benefit than the minimum termination notice required by employment standards legislation.

Common law reasonable notice of termination is determined with reference to the employee’s age and length of service with the employer, the nature of the position and the availability of other employment in light of the employee’s experience and qualifications. Each of these factors may be weighted differently depending on the facts of a given case and the list is not considered exhaustive. Employees often receive approximately one month’s salary per year of service to a ceiling of roughly 24 months.

Employers and employees can generally agree in advance, by way of contract, to provide a certain period of termination notice or payment in lieu. However, they cannot contract out of employment standards legislation by providing for less than the minimum termination notice required by statute. Contractual termination clauses which contravene employment standards legislation or lack sufficient clarity to limit employees’ entitlements will be found void or unenforceable, in which case common law reasonable notice will apply.

In Quebec, Article 2092 of the Civil Code provides that “[t]he employee may not renounce his right to obtain an indemnity for any injury he suffers where insufficient notice of termination is given or where the manner of resiliation is abusive”. As such, in Quebec, employees and employers may not contract out of either the minimum notice required by the Act Respecting Labour Standards or the reasonable notice required by Section 2091 of the code. Further, an employee who has been provided with sufficient notice under the code may still claim back pay, an indemnity for loss of the right to reinstatement and other relief pursuant to Sections 124 and 128 of the Act Respecting Labour Standards.

For individual terminations, minimum notice periods mandated by employment standards legislation generally increase with the employee’s years of service before maxing out at around eight weeks. Employment standards statutes also contain group termination provisions, which apply when a defined number of employees are terminated within a prescribed period. In the case of group terminations, all terminated employees are generally entitled to the same enhanced period of notice notwithstanding their individual years of service.

For more information about this answer please contact: Tim Lawson from McCarthy Tétrault LLP
5.3
What rights do employees have when arguing unfair dismissal?
 
Canada
The rights that employees have when challenging their dismissal vary depending on whether the employee concerned is employed pursuant to an individual employment contract or a collective agreement.

Employees in the non-unionised sector can initiate a court action against their former employer for wrongful dismissal in breach of the employment contract. Wrongful dismissal claims generally occur where:

  • the employee alleges that the employer did not give reasonable notice of termination or dismissed him or her without notice where there was no just cause for doing so; or
  • the employee has resigned because he or she claims that the employer has made a unilateral change to a fundamental term of the employment contract.

Employees have a legal obligation to make reasonable efforts to obtain alternate employment in order to mitigate their damages.

In the unionised sector, employees typically have recourse to the grievance and arbitration machinery of the collective agreement. Collective agreements generally require employers to have just cause for termination, which is viewed as the ‘capital punishment’ of industrial discipline. The just cause threshold will usually be met only where progressive discipline has been applied and has failed to correct the employee’s behaviour or performance. Collective agreements allow employees to file grievances challenging their dismissal. Grievances are heard by arbitrators, whose decisions are considered final and binding. Arbitrators can order reinstatement, damages and/or compensation to successful claimants.

In both the unionised and non-unionised sectors, employees who believe that they have been dismissed on the basis of a prohibited ground under human rights legislation may file a discrimination complaint with a human rights tribunal or commission. The human rights tribunal has the power to award compensation and/or reinstatement if it determines that the employer discriminated against the employee.

Special rights with respect to termination of employment also exist in Quebec and in the federal jurisdiction. In Quebec, Section 124 of the Act Respecting Labour Standards provides that employees with two or more years of uninterrupted service for the same employer cannot be terminated without “good and sufficient cause”. An employee alleging termination without good and sufficient cause is entitled to complain to the Commission des relations de travail, an administrative tribunal. Among other things, the commission requires employers to apply progressive discipline in order to justify termination and has the power to reinstate employees or substitute a lesser penalty, much like a labour arbitrator hearing a grievance in the unionised employment sector.

In the federal jurisdiction, the unjust dismissal provisions of Part III of the Canada Labour Code also provide expansive protections akin to those available to employees covered by a collective agreement. Subject to limited exclusions, non-unionised federally regulated employees have recourse to the code’s unjust dismissal scheme if they have completed 12 consecutive months of employment. A dismissed employee or an inspector can ask the employer for a written statement setting out the reasons for the dismissal. The employer must then provide the statement within 15 days. If an adjudicator determines that the dismissal was unjust, he or she has broad authority to grant an appropriate remedy, including requiring the employer to pay the person compensation or reinstate the person. No complaint can be considered by an adjudicator if the employee was laid off because of lack of work or the discontinuance of a function.

For more information about this answer please contact: Tim Lawson from McCarthy Tétrault LLP
5.4
What rights, if any, are there to statutory severance pay?
 
Canada
Statutory severance pay is required only under the federal jurisdiction and in the province of Ontario. Statutory severance pay is separate and distinct from payment in lieu of notice.

Federally, an employee is eligible for severance pay if he or she:

  • has at least 12 months’ continuous service with his or her employer;
  • has a ‘qualified appointment’, which excludes employees who are on fixed-term contracts;
  • has been removed from his or her job involuntarily;
  • has not been dismissed for just cause; and
  • has not turned down a reasonable offer of employment in another federally regulated job.

For federally regulated employees, once eligibility has been established, the employee is then entitled to two days’ pay for each completed year of service, with a minimum entitlement of five days’ pay.

In Ontario, statutory severance pay applies only to employees who have at least five years’ service and whose employer either has an annual payroll of at least C$2.5 million or has severed the employment of 50 or more employees in a six-month period due to a business closure. Severance pay is calculated by multiplying the employee’s regular wages for a normal work week by the number of years of completed service with the employer, pro-rated for partial years of service. The maximum amount of statutory severance pay is capped at 26 weeks’ pay in Ontario.

For more information about this answer please contact: Tim Lawson from McCarthy Tétrault LLP
6.
Employment tribunals
6.1
How are employment-related complaints dealt with?
 
Canada
The nature of the claim and the circumstances of the individual’s employment determine the manner in which claims can be processed. Various courts and tribunals enjoy concurrent jurisdiction over different types of employment-related disputes.

Wrongful or unjust dismissal complaints can be made in court if the claimant is employed pursuant to an individual contract of employment. Non-unionised employees must generally bring human rights complaints before dedicated human rights tribunals. However, there is an exception for wrongful dismissal actions that concern allegations of termination for discriminatory reasons, which may proceed before the courts.

On the other hand, employees represented by a trade union and employed pursuant to a collective agreement are required to utilise the local grievance and arbitration procedure for all claims arising out of their employment and do not generally have recourse to the courts.

Administrative tribunals, like labour relations boards and human rights tribunals, have jurisdiction over complaints of particular statutory violations such as discriminatory treatment, harassment, reprisal, unfair labour practices and contraventions of minimum employment standards. In the unionised employment context, many of these claims can and in some cases must be referred to grievance arbitration, since labour arbitrators have exclusive jurisdiction to interpret and apply various employment-related statutes in addition to specific collective agreement provisions.

For more information about this answer please contact: Tim Lawson from McCarthy Tétrault LLP
6.2
What are the procedures and timeframes for employment-related tribunals actions?
 
Canada
Court and tribunal processes and timeframes vary depending on the jurisdiction, the specific rules of procedure and other factors. Generally speaking, a claim is commenced once a statement of claim or complaint is filed with the court or tribunal and the parties concerned. The defendant then has an opportunity to file written submissions in response within a prescribed timeline, followed in some cases by a further complainants’ reply.

Some jurisdictions make mediation and alternative dispute resolution procedures mandatory before disputes can proceed to a full oral hearing. The parties are also required to make disclosure of relevant documents well in advance of any hearing.

The rules of natural justice apply to court and tribunal proceedings, and as such, concerned parties have the right to be heard and to test the evidence against them, including through witness examinations.

In the court system, the summary judgment procedure has been recognised as an appropriate procedure for the adjudication or wrongful dismissal claims. Summary judgment entails the full or partial disposition of a claim on a preliminary motion, therefore avoiding the need for a full trial (or a full trial of all matters in dispute). Summary judgment motions can often be scheduled within one year of the claim being filed, whereas proceeding to a full trial often takes longer.

The procedures for grievance arbitration in the unionised employment context are generally less formal and costly than court proceedings, though not always more expeditious. Written pleadings are not generally required for grievance arbitration under a collective agreement, and rules of evidence and other legal doctrines may be applied in a more flexible or relaxed manner than would be the case in court.

For more information about this answer please contact: Tim Lawson from McCarthy Tétrault LLP
7.
Trends and predictions
7.1
How would you describe the current employment landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?
 
Canada
No answer submitted for this question.
8.
Tips and traps
8.1
What are your top tips for navigating the employment regime and what potential sticking points would you highlight?
 
Canada
No answer submitted for this question.