Littler Global Guide - Canada - Q1 2017

Browse through brief employment and labor law updates from around the globe. Contact a Littler attorney for more information or view our global locations.

View all Q1 2017 Global Guide Quarterly updates

Minimum Wage

New Order or Decree

The minimum wage in British Columbia will rise by 50 cents to $11.35 an hour in mid-September. The minimum wage was raised to $10.85 an hour last September.

New Accommodation Guideline

New Regulation or Official Guidance

On February 1, 2017, the Ontario Human Rights Commission released a new policy statement on medical documentation and disability-related accommodation requests. Under the Ontario Human Rights Code, employers have a legal duty to accommodate the needs of people with disabilities who are adversely affected by a work requirement or standard. Accommodation may mean adapting rules or procedures in the workplace to ensure all employees are able to participate and contribute. Accommodation can also require changes to the physical environment to remove barriers for people with disabilities.

Government Publishes Framework for the Legalization and Regulation of Cannabis in Canada

New Regulation or Official Guidance

In taking the initial steps toward nationwide legalization laws, the Government of Canada recently published A Framework for the Legalization and Regulation of Cannabis in Canada: The Final Report of the Task Force on Cannabis Legalization and Regulation. The report recommends that in creating any federal legalization law, the Government should consider the implications of marijuana use for occupational health and safety policies, and work with local governing bodies, employers and labor representatives “to facilitate the development of workplace impairment policies.”

Validity of Termination Clause

Precedential Decision by Judiciary or Regulatory Agency

On February 2, 2017, the Supreme Court of Canada dismissed an application to appeal the decision in Oudin v. Centre Francophone de Toronto and upheld Court of Appeal's decision which ruled the termination clause valid in spite of the silence on continuation of benefits through the statutory notice period. This case is positive development to employers because it contrasts with prior case law which invalidated termination clauses when the termination clause does not specifically provide mandatory items under Employment Standards Act such as continuation of benefit premiums during the statutory notice period.

Ontario Court of Appeal Clarifies Interpretations of Contractual Termination Provisions

Precedential Decision by Judiciary or Regulatory Agency

In the case of Wood v. Fred Deeley, Ontario’s highest court was asked to consider a termination provision which conflated severance pay and notice and did not provide for benefit continuation. Unexpectedly, the lower court held that the clause did not violate the Employment Standards Act. The Court of Appeal differed and confirmed that termination clauses must specify benefits continuation to be enforceable and that the particular provision in this case also violated the Act by allowing an employee to give working notice in lieu of severance pay. Therefore the court struck down the clause and awarded common law notice to the employee. Considering the active litigation involving termination clauses, employers should carefully review, with counsel, their employment agreements and update them accordingly.

British Columbia Employees Are Owed a Good Faith Assessment of Job Suitability

Precedential Decision by Judiciary or Regulatory Agency

The Supreme Court of British Columbia ruled in Ly v. British Columbia that employees are entitled to a good faith assessment of their suitability for continued employment during the probation period. The court found that even though employers are not required to provide reasons during the probation period, the employer's actions surrounding a dismissal will be reviewed in light of factors including whether the employer acted fairly, granted the employee a reasonable opportunity to demonstrate his or her suitability and whether the decision was based on honest, fair and reasonable grounds. Employers found to breach good faith could owe common law reasonable notice of termination.

Alberta Court of Appeal Clarifies Treatment of Incentive Payments Upon Termination

Precedential Decision by Judiciary or Regulatory Agency

The dispute in Styles v. AIMCo involved an employee who was dismissed prior to the vesting of a bonus in accordance with an incentive plan. At trial, the Court of Queen’s Bench found that the employer had unfairly exercised contractual discretion and that the bonus was payable on the basis of the good faith contractual performance requirement arising out of Bhasin. The Court of Appeal disagreed, and found that where the terms of a contract are clear, the Court will not look to see whether the bargain itself was fair or not.

Ontario Human Rights Commission Releases New Policy Statement on Medical Documentation and Disability Related Accommodation Requests

New Regulation or Official Guidance

Under the Ontario Human Rights Code, employers have a legal duty to accommodate the needs of people with disabilities who are adversely affected by a work requirement or standard. The Commission’s policy statement clarifies the type and scope of medical information to be provided to support an accommodation request. The information should include confirmation of the employee's disability, limitations or needs associated with it, whether the employee can perform the essential duties of the job, the types of accommodations the employee may need and regular updates about when the employee expects to return to work if applicable. The Commission also confirms that employers must respect the dignity and privacy of employees and to request information only to the degree necessary to assess the accommodation request.

Proposed Law Would Require Paid Employment Leave for Domestic Violence Victims

Proposed Bill or Proposed Initiative

Currently being debated by the Legislative Assembly of Ontario, Bill 26 (Domestic and Sexual Violence Workplace Leave, Accommodation and Training Act, 2016) seeks to provide leave for employees who experience domestic violence. The length of the leave is a "reasonable period of time" for the purposes of relocation, seeing a lawyer, doctor, or a victims’ services organization. Interestingly, the bill mandates that the first 10 days of the leave taken each year is paid and is in addition to any paid leave the employee is entitled to under their contract.

British Columbia Bill M237 Seeks to Prevent Employers from Requiring High Heel Shoes

Proposed Bill or Proposed Initiative

A private member’s bill has been introduced in the Legislative Assembly of British Columbia that seeks to ban employers from setting gender-specific footwear and other apparel requirements. Although the Bill is general, the particular target of this legislation is the requirement that women wear high heel shoes in some workplaces which the member contends is discriminatory, uncomfortable and unsafe. This Bill comes on the heels of debate over a similar ban in the United Kingdom House of Commons.

Bill S-201, Genetic Non-Discrimination Act

Proposed Bill or Proposed Initiative

Once in force, this Act will prohibit federally regulated employers from taking adverse action against an employee on the basis of the employee's refusal to undergo a genetic test, refusal to disclose the results of genetic tests or the results of a genetic test. Third parties will also be prohibited from disclosing results of genetic tests to employers without written permission of employees. Bill S-201 also adds genetic characteristics as a ground of discrimination under the Canadian Human Rights Act.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.