Canada: 2017 In Review: A Look Back At The Top Cases And Key Legislative Changes That Impacted Your Workplace

With major legislative amendments made to the Employment Standards Act, Labour Relations Act, Occupational Health and Safety Act, Workplace Safety and Insurance Act; and precedent-setting decisions by the Courts, 2017 has been an important year for employers and employees. Here is a recap of our top cases and major legislative changes along with links to the original blog.

Top Labour and Employment Cases of 2017

1. Travel Time was not Work Time

   Tradium Mechanical Inc. v Abdellatif Jaidane, 2016 CanLII 86508: In December 2016, Brian Silva of CCPartners successfully argued before the Ontario Relations Board on behalf of the applicant employer. The Board ruled that time spent by an employee travelling from home to the first job site of the day and back home from the last job site of the day in a company vehicle was commuting time and not time spent working for which the employer was required to pay. However, employers should note that in this case the employee was not obligated to take the company vehicle home, instead he was provided with the option to take the company vehicle home. Although not binding, employers should be mindful of the Ministry of Labour's Travel Time Policy as it still suggests that commute time is time worked under certain circumstances. Read more here.

2. Just Cause Dismissal Upheld for Nurse Stealing Drugs from Employer Hospital

   Cambridge Memorial Hospital v Ontario Nurses' Association, 2017 CanLII 2305: In January 2017, an Ontario arbitrator upheld the termination of a nurse because she was stealing narcotic drugs from her employer and patients. The arbitrator was convinced that the nurse's addiction did not cause her to steal the drugs. The arbitrator noted that the nurse did not need to be on drugs while working and did not suffer from physical withdrawal symptoms while being treated for her addiction. Her termination was upheld, notwithstanding her drug addiction disability. Employers should be diligent, but also very careful, when disciplining employees dealing with possible addiction issues, and be sure to explore potential accommodation obligations for such employees. Read more here.

3. Employment Contract Termination Clause Struck for Excluding Benefits

   Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158: In March 2017, the Ontario Court of Appeal determined the enforceability of a termination provision in a written employment contract. The Court ruled that the termination clause outright excluded employment benefits during the notice period and hence, was unenforceable. Employers should note that the Court's finding in this case was not based on the fact that the contract failed to expressly provide for benefits continuation. Additionally, it is important to note that the Supreme Court of Canada denied leave in Oudin v. Centre Francophone de Toronto, where a termination provision was upheld despite the fact that it did not specifically set out every obligation owed to the plaintiff under the Employment Standards Act. Employers ought to be cautious in drafting enforceable termination provisions that are consistent with these decisions. Read more here.

4. Employment Contract Clause Denying Bonus to Terminated Employee Upheld

   Kielb v. National Money Mart Company, 2017 ONCA 356: In March 2017, Susan Crawford of CCPartners successfully argued on behalf of National Money Mart. The Ontario Court of Appeal upheld a clearly worded bonus limitation and termination language that prohibited an employee from being entitled to bonus if not employed on the date of bonus payout. The employment agreement also provided examples of how this would work in an attempt to clarify the bonus plan. Employers can limit their liability upon terminating an employee with a clear and properly worded employment agreement. Read more here.

5. Court of Appeal Upheld Just Cause Termination of Long Service Employee

   De Jesus v. Linamar Holdings Inc. (Camcor Manufacturing), 2017 ONCA 384: In May 2017, the Ontario Court of Appeal upheld the termination of a long service employee who was negligent in his performance or duties and was dishonest with the employer. The employee, a production supervisor, failed to ensure that a production line was checked for defects. While the employee's termination was upheld and the costs were awarded to the employer, employers should be aware that a just cause termination being upheld in Ontario is an exception and not the rule. Employers should ensure that they can bear the high onus of proving that the nature and severity of the dishonest conduct that resulted in a break down in the employment relationship. Read more here.

6. Supreme Court of Canada Upheld Termination of Employee for Cocaine Use

   Stewart v. Elk Valley Coal Corp., 2017 SCC 30: In June 2017, the Supreme Court of Canada upheld the Alberta Tribunal's decision which held that the employer was correct in terminating a mine operator that tested positive for cocaine following a workplace incident. The Supreme Court of Canada found it critical that the termination letter did not cite his addiction as a factor in the termination and that the Policy was crafted in such a way that both a casual user and addict would be terminated. Employers should be cautious in terminating employees with a proven addiction to alcohol or drugs as it likely will be viewed as having a disability pursuant to the human rights legislation. Going forward, employers should diligently draft employment agreements that effectively balance their duty to accommodate employees for their addiction against their right to dismiss an employee that is impaired. Read more here.

7. Random Drug and Alcohol Testing Justified and Allowed...For Now

   Suncor Energy Inc. v Unifor Local 707A, 2017 ABCA 313: In September 2017, the Alberta Court of Appeal upheld Suncor's random drug and alcohol testing for workers in safety-sensitive positions at various sites in northern Alberta. The Court of Appeal concluded that there was sufficient evidence of a substance problem to justify random drug and alcohol testing, even in light of the privacy concerns inherent in such random testing. It was emphasized that while in certain workplaces there could a reason to distinguish between the evidence of substance abuse by unionized and non-unionized employees, in this case the evidence was that all employees (unionized, non-unionized and contractor employees) worked side-by-side in an integrated workforce. Hence, it was not reasonable to draw an arbitrary distinction between evidence of substance abuse problems in the workplace specific to unionized employees. While, this is helpful to employers in a safety sensitive workplace seeking to curb dangerous behaviour in the workplace, employers should consult the CCP team before implementing or acting on such tricky policies. The Union recently obtained an injunction stopping Suncor's random testing. The Union has also appealed the Alberta Court of Appeal's decision to the Supreme Court of Canada. The team at CCPartners continues to monitor the appeal and will update you on any forthcoming developments. Read more here.

8. Directors Avoid Jail Time in OHSA Conviction

   R v. New Mex Canada Inc.: In September 2017, Karen Fields of CCPartners successfully appealed on behalf of New Mex Canada Inc. The Appeal Court of Justice significantly reduced fines for the corporate accused and incarceration of the two Directors was overturned. In his decision, the Appeal Judge considered the size of the company, scope of the economic activity, potential or actual harm to workers, maximum penalty set in legislation and deterrence. Employers should be proactive in addressing health and safety issues in the workplace, and recognize that prison sentences are a possible consequence of failing to keep a safe workplace. The team at CCPartners can help you implement these proactive measures and ensure that your workplace is in compliance with the Occupational Health and Safety Act. Read more here.

9. Management Rights Affirmed by Supreme Court of Canada

   Association of Justice Counsel v. Canada (Attorney General), 2017 SCC 55: In November 2017, the Supreme Court of Canada affirmed that management rights for unionized employers must always be exercised reasonably and consistently with the collective agreement. The collective agreement between the Employer and the Association of Justice Counsel was silent on standby duty but specified that the Employer retained all management rights and powers that had not been modified or limited by the collective agreement. The Employer revised the standby system, even though it was not addressed in the collective agreement. The Supreme Court of Canada agreed with the arbitrator in holding that the mandatory standby directive was neither reasonable nor fair. Assessing the reasonableness of an employer's policy includes a well-established approach towards balancing interests of both parties and the policy's impact on employees. Employers should ensure that their unilateral implementation of a policy or directive is within its reasonable exercise of management rights. Read more here.

10. Human Rights Complaint Made Against a Different Employer
    British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62: In December 2017, the Supreme Court of Canada held that employees may bring discrimination complaints against the employees of a different employer. The Supreme Court interpreted the British Columbia Human Rights Code to mean that discrimination was prohibited against employees whenever that discrimination has a sufficient nexus with the employment context, including discrimination by co-workers, even when those co-workers have a different employer. The Supreme Court further sets out a test for determining whether discriminatory conduct has a sufficient nexus within the employment context. Since the Ontario Human Rights Code is very similar to the Human Rights Code of British Columbia, employers should be aware that they could be responsible for discrimination against workers who are not their employees. Read more here.

Important Legislative changes of 2017

1. Accessibility for Ontarians with Disabilities Act (AODA): AODA requirements have been in force since 2005. However, certain requirements for small private organizations (1-49 employees) became effective on January 1, 2017. Some of the requirements require organizations to: notify all employees and public about being able to accommodate applicants with disabilities in recruitment process, inform employees of its accommodation policy, and ensure that performance management processes take into account the accessibility needs of employees. To ensure your organization's compliance with AODA, read more here.
2. Bill 26 - Domestic and Sexual Violence Workplace Leave, Accommodation and Training Act, 2016: Bill 26 has passed second reading and is pending review by the Standing Committee in the Legislative Assembly. Bill 26 will amend the Occupational Health and Safety Act and Employment Standards Act. The Bill in its current form requires employers to ensure that supervisors and workers are provided with adequate information and training on domestic violence and sexual violence in the workplace. The Bill is focused on providing a combination of paid and unpaid leave to employees that suffer domestic or sexual violence. The team at CCPartners continues to monitor the status of this Bill.For a detailed summary, read more here.
3. Bill 127 - the Stronger, Healthier Ontario Act (Budget Measures), 2017: On May 17, 2017, Bill 127 received Royal Assent and was proclaimed into law. The Bill expanded the Workplace Safety and Insurance Act's scope of entitlement for mental stress. It provided that a worker may be entitled to benefits under the insurance plan for chronic or mental stress caused by decisions or actions of the worker's employer relating to the worker's employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment. Employers should ensure that they effectively address the implications resulting from this expanded benefit coverage for mental stress. Read more here.
4. Workplace Violence Prevention in Health Care: On May 15, 2017, the Ontario government released its report intending to elevate violence prevention for health care workers. The report and recommendations aim to improve workplace safety culture in relation to violence, reduce the number of violent workplace incidents, and make the health care industry safer for patients and staff. Phase 1 of the report's implementation focuses on nurses in hospital setting. Phase 2 focuses on all workers in hospitals and long term care facilities. Lastly, Phase 3 focuses on all workers in the broader health care sector. The recommendations in this report can assist employers in implementing proactive measures in their workplace. Read more here.
5. Bill 148 - the Fair Workplaces, Better Jobs Act, 2017: Bill 148 received Royal Assent on November 27, 2017 amending the Employment Standards Act, Labour Relations Act, and the Occupational Health and Safety Act. Under the Employment Standards Act, amendments were made to the general minimum hourly wages, vacation entitlements, personal emergency leave, critical illness leave, and pregnancy and parental leave. New scheduling obligations were included along with entitling employees to equal pay for equal work. Under the Labour Relations Act, some of the amendments include changes to consolidation of bargaining units, card-based certification, union access to employee lists, return to work protection post-strike. Lastly, under the Occupational Health and Safety Act, changes to the requirement of mandatory high heels in the workplace were enacted. For a comprehensive summary, read more here, and listen to our Bill 148 Podcast here.
6. Bill 177 - Stronger, Fairer Ontario Act: Bill 177 was proclaimed into law on December 14, 2017 and made significant amendments to the Occupational Health and Safety Act and to the Workplace Safety and Insurance Act. The maximum penalty for individuals and corporations was increased drastically along with creating additional notification obligations for a constructor of a project. Bill 177 also entitles workers to benefits for mental stress as if mental stress were a personal injury by accident. To understand these changes impacting your workplace, read more here.
7. Bill C-63 - Budget Implementation Act, 2017, No. 2: On December 14 2017, Bill C-63 received Royal Assent and amended a number of acts, including the Canada Labour Code. Some of the amendments now entitle employees to three-day unpaid family responsibility leave, ten-day unpaid leave for victims of family violence, five-day unpaid leave for traditional Aboriginal practices.Employers are required to provide employees with at least 24 hours' notice of change in shift and provide employees with a right to refuse overtime in order to fulfill a family responsibility. To ensure that your workplace is in compliance with the modifications to work schedules, overtime and annual vacation, read more here.
8. Bill 174: On December 12, 2017, the Ontario government passed Bill 174. Bill 174 establishes the Cannabis Act, the Ontario Cannabis Retail Corporation Act, and the Smoke-Free Ontario Act, along with amending the Highway Traffic Act. The Cannabis Act establishes that employees will not be able to use marijuana even when the drug is legalized. However, employers should create exceptions for individuals who use medical marijuana. Under the Smoke-Free Ontario Act, employers should revise their workplace policies to reference this new legislation. Additionally, certain employers such as employers of long term care homes, retirement homes, psychiatric facility can be exempt from the obligation to provide a smoke free environment. To understand how your workplace can prepare for these incoming changes, read more here.

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.