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Time for Large Ontario Employers to Review their Multi-year Accessibility Planshttps://blog.blg.com/nfp/Lists/Blog Posts/DispForm.aspx?ID=578Time for Large Ontario Employers to Review their Multi-year Accessibility Plans578BLG Blog PostStephanie Youngsyoung@blg.com | Stephanie Young | 693A30232E777C626C6763616E6164615C73796F756E67 i:0#.w|blgcanada\syoung The Integrated Accessibility Standards Regulations, Ontario employers are due to review and update their five-year accessibility plans in 2019 <div align="center"><table width="100%" border="0" cellspacing="0" cellpadding="0" style="margin:0px;width:100%;border-collapse:collapse;"><tbody><tr><td valign="top" style="margin:0px;padding:0cm 0cm 3.75pt;border:0px #000000;background-color:transparent;"><p style="margin:0cm 0cm 7.5pt;line-height:12pt;"><span style="margin:0px;color:#262626;font-family:"arial",sans-serif;font-size:10pt;"><span style="font:400 16.8px/20.16px arial,helvetica,sans-serif;text-align:left;color:#4d4d4d;text-transform:none;text-indent:0px;letter-spacing:normal;text-decoration:none;word-spacing:0px;display:inline !important;white-space:normal;orphans:2;float:none;text-shadow:none;background-color:transparent;">The </span><em style="background:none;text-align:left;color:#4d4d4d;text-transform:none;text-indent:0px;letter-spacing:normal;font-family:arial,helvetica,sans-serif;font-size:16.8px;font-style:italic;font-variant:normal;font-weight:400;text-decoration:none;word-spacing:0px;white-space:normal;box-sizing:border-box;orphans:2;text-shadow:none;">Integrated Accessibility Standards Regulations</em><span style="font:400 16.8px/20.16px arial,helvetica,sans-serif;text-align:left;color:#4d4d4d;text-transform:none;text-indent:0px;letter-spacing:normal;text-decoration:none;word-spacing:0px;display:inline !important;white-space:normal;orphans:2;float:none;text-shadow:none;background-color:transparent;">, Ontario employers are due to review and update their five-year accessibility plans in 2019</span></span></p></td></tr></tbody></table></div><p><br></p>Effective January 1, 2014, private sector employers with 50 or more employees in Ontario had to have multi-year accessibility plans in place and posted on their websites. A multi-year accessibility plan must outline the employer’s strategy for preventing and removing barriers faced by individuals with disabilities, and for meeting all of the requirements under the Integrated Accessibility Standards, Ontario Regulation 191/11 (the Regulation).The Regulation requires employers to review and update their accessibility plans at least once every five years. That means that this year, five years after the requirement was put in place, large private sector employers are due to undertake a review of their multi-year accessibility plans. Next year, in 2020, employers will also have to file accessibility compliance reports by December 31, so it is important that the requirement to review and update their multi-year plans does not slip through the cracks. Key dates to comply with accessibility standards are available on the Government of Ontario website.Additional Accessibility UpdateAn Information and Communications Standards Development Committee (the Committee) has recently issued recommendations for updating and amending the Information and Communication Standards contained in the Regulation. The Committee is now calling for feedback on these recommendations. All feedback must be submitted by September 27, 2019. The Information and Communication Standards address requirements relating to the following areaswebsite accessibility;feedback processes;accessible formats and communication supports for individuals with disabilities;emergency procedures and plans;educational and training resources and materials;training to educators;production of educational or training material; andlibraries (both education and training institution libraries and public libraries). Other notable recommendations includeOrganizations should be required to obtain agreement from individuals requesting communication supports or accessible formats about the specific support or format to be provided and the timeframe in which it is to be provided;The website standards should be broadened to include mobile applications;Additional accessibility design, criteria and features ought to be incorporated when procuring goods, services and facilities;Various exemptions from the website standards ought to be removed, including those currently exempting extranets and intranets and pre-2012 active content;Certification requirements of provincially regulated professions must include knowledge and application of accessibility and the prevention of attitudinal barriers; andA new category of “high-impact” organizations should be created to capture organizations that do not have many employees in Ontario, but have a widespread impact on Ontarians through services provided. These organizations would be subject to the same requirements as large organizations. It remains to be seen what recommendations, if any, will actually be implemented through amendments to the Regulation, however, it is worthwhile for employers and service providers alike to review the recommended changes and to consider whether they have concerns arising out of their experiences with the Information and Communication Standards so far, or whether they have concerns about the recommendations that they want to raise through the Committee’s feedback process.AuthorStephanie Young SYoung@blg.com416.367.6032ExpertiseLabour and EmploymentLabour and Employment Law <p style="background:none;font:400 13.93px/22.28px arial,helvetica,sans-serif;margin:0px 0px 10px;text-align:left;color:#4d4d4d;text-transform:none;text-indent:0px;letter-spacing:normal;text-decoration:none;word-spacing:0px;white-space:normal;box-sizing:border-box;orphans:2;font-size-adjust:none;font-stretch:normal;text-shadow:none;">Effective January 1, 2014, private sector employers with 50 or more employees in Ontario had to have multi-year accessibility plans in place and posted on their websites. A multi-year accessibility plan must outline the employer’s strategy for preventing and removing barriers faced by individuals with disabilities, and for meeting all of the requirements under the <em style="background:none;color:#4d4d4d;font-style:italic;box-sizing:border-box;text-shadow:none;">Integrated Accessibility Standards</em>, Ontario Regulation 191/11 (the Regulation).</p><p style="background:none;font:400 13.93px/22.28px arial,helvetica,sans-serif;margin:0px 0px 10px;text-align:left;color:#4d4d4d;text-transform:none;text-indent:0px;letter-spacing:normal;text-decoration:none;word-spacing:0px;white-space:normal;box-sizing:border-box;orphans:2;font-size-adjust:none;font-stretch:normal;text-shadow:none;">The Regulation requires employers to review and update their accessibility plans at least once every five years. That means that this year, five years after the requirement was put in place, large private sector employers are due to undertake a review of their multi-year accessibility plans. Next year, in 2020, employers will also have to file accessibility compliance reports by December 31, so it is important that the requirement to review and update their multi-year plans does not slip through the cracks. Key dates to comply with accessibility standards are available on the <a href="https://www.ontario.ca/page/accessibility-rules-businesses-and-non-profits" target="_blank" style="background:none;color:#295077;text-decoration:none;cursor:pointer;box-sizing:border-box;text-shadow:none;"> Government of Ontario website</a>.</p><h4 style="background:none;font:700 22.53px/31.54px arial,helvetica,sans-serif;margin:25px 0px 10px;text-align:left;color:#295077;text-transform:none;text-indent:0px;letter-spacing:normal;text-decoration:none;word-spacing:0px;white-space:normal;box-sizing:border-box;orphans:2;font-size-adjust:none;font-stretch:normal;text-shadow:none;">Additional Accessibility Update</h4><p style="background:none;font:400 13.93px/22.28px arial,helvetica,sans-serif;margin:0px 0px 10px;text-align:left;color:#4d4d4d;text-transform:none;text-indent:0px;letter-spacing:normal;text-decoration:none;word-spacing:0px;white-space:normal;box-sizing:border-box;orphans:2;font-size-adjust:none;font-stretch:normal;text-shadow:none;">An Information and Communications Standards Development Committee (the Committee) has <a href="http://www.ldao.ca/information-and-communications-standards-development-committees-initial-recommendations-report/" target="_blank" style="background:none;color:#295077;text-decoration:none;cursor:pointer;box-sizing:border-box;text-shadow:none;">recently issued recommendations </a>for updating and amending the Information and Communication Standards contained in the Regulation. The Committee is <a href="https://www.ontario.ca/page/consultation-initial-recommendations-improve-accessibility-standards-information-and-communications" target="_blank" style="background:none;color:#295077;text-decoration:none;cursor:pointer;box-sizing:border-box;text-shadow:none;">now calling for feedback on these recommendations.</a> All feedback must be submitted by September 27, 2019.</p><p style="background:none;font:400 13.93px/22.28px arial,helvetica,sans-serif;margin:0px 0px 10px;text-align:left;color:#4d4d4d;text-transform:none;text-indent:0px;letter-spacing:normal;text-decoration:none;word-spacing:0px;white-space:normal;box-sizing:border-box;orphans:2;font-size-adjust:none;font-stretch:normal;text-shadow:none;"> <strong style="background:none;color:#4d4d4d;font-weight:600;box-sizing:border-box;text-shadow:none;">The Information and Communication Standards address requirements relating to the following areas:</strong></p><ul style="background:none;margin:16px 0px;padding:0px 0px 0px 16px;text-align:left;color:#4d4d4d;text-transform:none;text-indent:0px;letter-spacing:normal;font-family:arial,helvetica,sans-serif;font-size:16px;font-style:normal;font-variant:normal;font-weight:400;text-decoration:none;word-spacing:0px;list-style-type:none;white-space:normal;box-sizing:border-box;orphans:2;text-shadow:none;"><li style="background:none;list-style:disc;margin:0px 0px 6.96px;padding:0px;color:#4d4d4d;line-height:22.53px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">website accessibility;</li><li style="background:none;list-style:disc;margin:0px 0px 6.96px;padding:0px;color:#4d4d4d;line-height:22.53px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">feedback processes;</li><li style="background:none;list-style:disc;margin:0px 0px 6.96px;padding:0px;color:#4d4d4d;line-height:22.53px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">accessible formats and communication supports for individuals with disabilities;</li><li style="background:none;list-style:disc;margin:0px 0px 6.96px;padding:0px;color:#4d4d4d;line-height:22.53px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">emergency procedures and plans;</li><li style="background:none;list-style:disc;margin:0px 0px 6.96px;padding:0px;color:#4d4d4d;line-height:22.53px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">educational and training resources and materials;</li><li style="background:none;list-style:disc;margin:0px 0px 6.96px;padding:0px;color:#4d4d4d;line-height:22.53px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">training to educators;</li><li style="background:none;list-style:disc;margin:0px 0px 6.96px;padding:0px;color:#4d4d4d;line-height:22.53px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">production of educational or training material; and</li><li style="background:none;list-style:disc;margin:0px 0px 6.96px;padding:0px;color:#4d4d4d;line-height:22.53px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">libraries (both education and training institution libraries and public libraries).</li></ul><p style="background:none;font:400 13.93px/22.28px arial,helvetica,sans-serif;margin:0px 0px 10px;text-align:left;color:#4d4d4d;text-transform:none;text-indent:0px;letter-spacing:normal;text-decoration:none;word-spacing:0px;white-space:normal;box-sizing:border-box;orphans:2;font-size-adjust:none;font-stretch:normal;text-shadow:none;"> <strong style="background:none;color:#4d4d4d;font-weight:600;box-sizing:border-box;text-shadow:none;">Other notable recommendations include:</strong></p><ul style="background:none;margin:16px 0px;padding:0px 0px 0px 16px;text-align:left;color:#4d4d4d;text-transform:none;text-indent:0px;letter-spacing:normal;font-family:arial,helvetica,sans-serif;font-size:16px;font-style:normal;font-variant:normal;font-weight:400;text-decoration:none;word-spacing:0px;list-style-type:none;white-space:normal;box-sizing:border-box;orphans:2;text-shadow:none;"><li style="background:none;list-style:disc;margin:0px 0px 6.96px;padding:0px;color:#4d4d4d;line-height:22.53px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">Organizations should be required to obtain agreement from individuals requesting communication supports or accessible formats about the specific support or format to be provided and the timeframe in which it is to be provided;</li><li style="background:none;list-style:disc;margin:0px 0px 6.96px;padding:0px;color:#4d4d4d;line-height:22.53px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">The website standards should be broadened to include mobile applications;</li><li style="background:none;list-style:disc;margin:0px 0px 6.96px;padding:0px;color:#4d4d4d;line-height:22.53px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">Additional accessibility design, criteria and features ought to be incorporated when procuring goods, services and facilities;</li><li style="background:none;list-style:disc;margin:0px 0px 6.96px;padding:0px;color:#4d4d4d;line-height:22.53px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">Various exemptions from the website standards ought to be removed, including those currently exempting extranets and intranets and pre-2012 active content;</li><li style="background:none;list-style:disc;margin:0px 0px 6.96px;padding:0px;color:#4d4d4d;line-height:22.53px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">Certification requirements of provincially regulated professions must include knowledge and application of accessibility and the prevention of attitudinal barriers; and</li><li style="background:none;list-style:disc;margin:0px 0px 6.96px;padding:0px;color:#4d4d4d;line-height:22.53px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">A new category of “high-impact” organizations should be created to capture organizations that do not have many employees in Ontario, but have a widespread impact on Ontarians through services provided. These organizations would be subject to the same requirements as large organizations.</li></ul><p style="background:none;font:400 13.93px/22.28px arial,helvetica,sans-serif;margin:0px;text-align:left;color:#4d4d4d;text-transform:none;text-indent:0px;letter-spacing:normal;text-decoration:none;word-spacing:0px;white-space:normal;box-sizing:border-box;orphans:2;font-size-adjust:none;font-stretch:normal;text-shadow:none;"> It remains to be seen what recommendations, if any, will actually be implemented through amendments to the Regulation, however, it is worthwhile for employers and service providers alike to review the recommended changes and to consider whether they have concerns arising out of their experiences with the Information and Communication Standards so far, or whether they have concerns about the recommendations that they want to raise through the Committee’s feedback process.</p><h4 style="background:none;font:700 22.53px/31.54px arial,helvetica,sans-serif;margin:20px 0px -5px;text-align:left;color:#295077;text-transform:none;text-indent:0px;letter-spacing:normal;text-decoration:none;word-spacing:0px;white-space:normal;box-sizing:border-box;orphans:2;font-size-adjust:none;font-stretch:normal;text-shadow:none;">Author</h4><p style="background:none;font:400 13.93px/23.67px arial,helvetica,sans-serif;width:160px;text-align:left;color:#4d4d4d;text-transform:none;text-indent:0px;letter-spacing:normal;text-decoration:none;margin-top:0px;margin-right:20px;margin-bottom:13.93px;word-spacing:0px;display:block;white-space:normal;word-wrap:break-word;box-sizing:border-box;orphans:2;font-size-adjust:none;font-stretch:normal;float:left;text-shadow:none;"><a href="https://blg.com/en/Our-People/Pages/Young-Stephanie.aspx" style="background:none;color:#295077;text-decoration:none;cursor:pointer;box-sizing:border-box;text-shadow:none;"><strong style="background:none;color:#295077;font-weight:600;box-sizing:border-box;text-shadow:none;">Stephanie Young </strong> </a><br style="background:none;color:#4d4d4d;box-sizing:border-box;text-shadow:none;"><a style="background:none;color:#295077;text-decoration:none;cursor:pointer;box-sizing:border-box;text-shadow:none;">SYoung@blg.com</a><br style="background:none;color:#4d4d4d;box-sizing:border-box;text-shadow:none;">416.367.6032</p><h4 style="background:none;font:700 22.53px/31.54px arial,helvetica,sans-serif;margin:25px 0px -5px;text-align:left;color:#295077;text-transform:none;text-indent:0px;letter-spacing:normal;clear:left;text-decoration:none;word-spacing:0px;white-space:normal;box-sizing:border-box;orphans:2;font-size-adjust:none;font-stretch:normal;text-shadow:none;">Expertise</h4><p style="background:none;font:400 13.93px/23.67px arial,helvetica,sans-serif;text-align:left;color:#4d4d4d;text-transform:none;text-indent:0px;letter-spacing:normal;text-decoration:none;margin-top:0px;margin-bottom:13.93px;word-spacing:0px;white-space:normal;box-sizing:border-box;orphans:2;font-size-adjust:none;font-stretch:normal;text-shadow:none;"><strong style="background:none;color:#4d4d4d;font-weight:600;box-sizing:border-box;text-shadow:none;"><a href="https://blg.com/en/Expertise/Pages/LabourAndEmployment.aspx" style="background:none;color:#295077;text-decoration:none;cursor:pointer;box-sizing:border-box;text-shadow:none;">Labour and Employment</a></strong><br style="background:none;color:#4d4d4d;box-sizing:border-box;text-shadow:none;"><strong style="background:none;color:#4d4d4d;font-weight:600;box-sizing:border-box;text-shadow:none;"><a href="https://blg.com/en/Expertise/Pages/LabourAndEmploymentLaw.aspx" style="background:none;color:#295077;text-decoration:none;cursor:pointer;box-sizing:border-box;text-shadow:none;">Labour and Employment Law</a></strong></p><p style="background:none;font:400 13.93px/22.28px arial,helvetica,sans-serif;margin:0px;text-align:left;color:#4d4d4d;text-transform:none;text-indent:0px;letter-spacing:normal;text-decoration:none;word-spacing:0px;white-space:normal;box-sizing:border-box;orphans:2;font-size-adjust:none;font-stretch:normal;text-shadow:none;"><br></p><p><br></p>9/3/2019 4:00:00 AM2019-09-03T04:00:00ZTrue1float;#9.00000000000000float;#2019.00000000000string;#Septemberfloat;#201909.000000000GP0|#1f545747-a71f-4c1c-94c9-a8e53c3f977f;L0|#01f545747-a71f-4c1c-94c9-a8e53c3f977f|Employment Law;GTSet|#be1313dc-bb7d-47da-bdde-8d7d979d477aEmployment Law
Tribunal’s Remedial Order against Transport Canada Reminds Employers to Follow Sound Hiring Practiceshttps://blog.blg.com/nfp/Lists/Blog Posts/DispForm.aspx?ID=579Tribunal’s Remedial Order against Transport Canada Reminds Employers to Follow Sound Hiring Practices579BLG Blog PostZoë Hutchinsonzhutchinson@blg.com | Zoë Hutchinson | 693A30232E777C626C6763616E6164615C7A6875746368696E736F6E i:0#.w|blgcanada\zhutchinson ​Employers should review their hiring processes, having regard to the Canadian Human Rights Tribunal's recent award of remedies in Hughes v. Transport Canada, 2018 CHRT 15 <p>​<span style="font:400 16.8px/20.16px arial,helvetica,sans-serif;text-align:left;color:#4d4d4d;text-transform:none;text-indent:0px;letter-spacing:normal;text-decoration:none;word-spacing:0px;display:inline !important;white-space:normal;orphans:2;float:none;text-shadow:none;background-color:transparent;">Employers should review their hiring processes, having regard to the Canadian Human Rights Tribunal's recent award of remedies in</span><em style="background:none;text-align:left;color:#4d4d4d;text-transform:none;text-indent:0px;letter-spacing:normal;font-family:arial,helvetica,sans-serif;font-size:16.8px;font-style:italic;font-variant:normal;font-weight:400;text-decoration:none;word-spacing:0px;white-space:normal;box-sizing:border-box;orphans:2;text-shadow:none;"> Hughes v. Transport Canada, </em><span style="font:400 16.8px/20.16px arial,helvetica,sans-serif;text-align:left;color:#4d4d4d;text-transform:none;text-indent:0px;letter-spacing:normal;text-decoration:none;word-spacing:0px;display:inline !important;white-space:normal;orphans:2;float:none;text-shadow:none;background-color:transparent;">2018 CHRT 15</span><br></p>Facts In 2005, Mr. Hughes applied for the position of Intelligence Analyst at Transport Canada. When he was asked to provide references during the process, Mr. Hughes informed the selection board that it would be difficult for him to provide references due to litigation he had been involved in with respect to previous employers, and that he suffered from a mental health disability that had arisen from difficulties he experienced with the same previous employers. Despite receiving advice that it should rely on supplemental documentation such as performance reviews instead, the selection board insisted on communicating with external references to establish that Mr. Hughes possessed the criterion of being “detail-oriented”, which the Intelligence Analyst position required.The Canadian Human Rights Tribunal (The Tribunal) determined that Transport Canada discriminated against Mr. Hughes when it declined to find that the performance reviews and other supplementary documents submitted by Mr. Hughes established that he met the hiring criterion of detail-oriented. The Tribunal determined that based on the evidence, Mr. Hughes should have met the detail-oriented criterion and that he was therefore qualified for the position; that the selection board ought to have taken a more liberal approach in this case due to the abundance of supplemental documentation Mr. Hughes had provided and his particular circumstances; and that the successful candidates’ answers to the detail-oriented questions in their interviews were no better than those of Mr. Hughes. The Tribunal also found it notable that there was evidence that a document favourable to Mr. Hughes’ candidacy had been altered without explanation from the selection board. As such, the Tribunal determined that Mr. Hughes had established a prima facie case of discrimination.The Tribunal then found that the selection board’s explanation of its decision to screen out Mr. Hughes’ application was not credible, and that it had been inappropriate to insist on external references in light of the fulsome supplemental documentation Mr. Hughes had provided, and determined that Transport Canada was liable for discrimination.The Federal Court set aside this decision on reasonability grounds in Canada (Attorney General) v. Hughes, 2015 FC 1302, but the Federal Court of Appeal later restored the decision in Hughes v. Canada (Attorney General), 2016 FCA 271.Reasons for JudgmentIn Hughes v. Transport Canada, 2018 CHRT 15, the Tribunal released its decision in respect of remedies (the Remedies Decision). The Tribunal ordered that Transport Canada instate Mr. Hughes in the Intelligence Analyst position, and that Transport Canada pay to Mr. Hughes compensation for lost wages and benefits from the time he should have been appointed to the position up until the point when the causal link between Transport Canada’s discrimination and Mr. Hughes’ loss of wages was severed May 2006 to May 2011. The Tribunal also awarded to Mr. Hughes $15,000 for pain and suffering, and $5,000 as compensation for Transport Canada’s reckless engagement in a discriminatory practice.With respect to the finding of recklessness, the Tribunal relied on the fact that the chair of the selection board did not give due consideration to the supplemental documents Mr. Hughes had provided and continued to insist on communication with external references despite having received advice to the contrary, and that another member of the selection board had “brushed aside” Mr. Hughes supplemental documents.According to this news article, Transport Canada recently paid out the amount of $518,000 to the complainant in compliance with the decision.On AppealBoth parties applied for judicial review of the Remedies Decision, and the Federal Court released its decision on July 31, 2019.The Federal Court determined that the Remedies Decision ought to be set aside in part – namely, insofar as the Tribunal erred in its causation analysis by setting the cut-off date for compensation for lost wages and benefits as May 2011. Whereas the Tribunal had cited a number of intervening factors which severed the causal relationship – including Mr. Hughes’ other temporary employment, health issues unrelated to Mr. Hughes’ mental disability, and the fact that there was an approximate five-year tenure of Intelligence Analysts – the Federal Court determined that the Tribunal erred in relying on the presumption that Mr. Hughes would have left the Intelligence Analyst position after five years, as this premise was based on the personal circumstances of other individuals and not on evidence directly related to Mr. Hughes. As a result, the Federal Court set aside the Remedies Decision in part on this point alone and remitted it to the Tribunal for redetermination.However, the Federal Court affirmed the Tribunal’s awards of instatement and compensation for lost wages, as well as the award for reckless engagement in a discriminatory practice. The Federal Court affirmed that instatement and lost wages compensation are different heads of damages that address different components and therefore do not constitute double recovery. Instatement is forward-looking, seeking to remedy the opportunity lost, whereas a lost wages award seeks to compensate past losses, which would not have occurred but for the discrimination.TakeawaysThe Hughes v. Transport Canada jurisprudence serves as an important reminder to employers with respect to discrimination in hiring. First, employers should ensure that selection processes are well-established and systematic for all candidates. Any departure from the regular process should only be made for clearly non-discriminatory purposes and should be adequately documented. In light of the Tribunal’s award of damages for recklessness in the case, it is important that if a candidate raises a characteristic protected by human rights legislation, employers should heed any reasonable advice sought from HR or legal advisors. More generally, employers should seek legal advice if a candidate discloses a mental illness during the hiring process. AuthorZoë Hutchinson ZHutchinson@blg.com604.632.3545ExpertiseLabour and EmploymentLabour and Employment Law <div aria-labelledby="ctl00_PlaceHolderMain_PageContent_label" style="background:none;text-align:left;color:#4d4d4d;text-transform:none;text-indent:0px;letter-spacing:normal;font-family:arial,helvetica,sans-serif;font-size:16px;font-style:normal;font-variant:normal;font-weight:400;text-decoration:none;word-spacing:0px;display:inline;white-space:normal;word-wrap:break-word;box-sizing:border-box;orphans:2;text-shadow:none;"><h4 style="background:none;margin:25px 0px 10px;color:#295077;line-height:31.54px;font-family:arial,helvetica,sans-serif;font-size:22.53px;font-weight:700;box-sizing:border-box;text-shadow:none;">Facts </h4><p style="background:none;margin:0px 0px 10px;color:#4d4d4d;line-height:22.28px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">In 2005, Mr. Hughes applied for the position of Intelligence Analyst at Transport Canada. When he was asked to provide references during the process, Mr. Hughes informed the selection board that it would be difficult for him to provide references due to litigation he had been involved in with respect to previous employers, and that he suffered from a mental health disability that had arisen from difficulties he experienced with the same previous employers. Despite receiving advice that it should rely on supplemental documentation such as performance reviews instead, the selection board insisted on communicating with external references to establish that Mr. Hughes possessed the criterion of being “detail-oriented”, which the Intelligence Analyst position required.</p><p style="background:none;margin:0px 0px 10px;color:#4d4d4d;line-height:22.28px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">The Canadian Human Rights Tribunal (The Tribunal) determined that Transport Canada discriminated against Mr. Hughes when it declined to find that the performance reviews and other supplementary documents submitted by Mr. Hughes established that he met the hiring criterion of detail-oriented. The Tribunal determined that based on the evidence, Mr. Hughes should have met the detail-oriented criterion and that he was therefore qualified for the position; that the selection board ought to have taken a more liberal approach in this case due to the abundance of supplemental documentation Mr. Hughes had provided and his particular circumstances; and that the successful candidates’ answers to the detail-oriented questions in their interviews were no better than those of Mr. Hughes. The Tribunal also found it notable that there was evidence that a document favourable to Mr. Hughes’ candidacy had been altered without explanation from the selection board. As such, the Tribunal determined that Mr. Hughes had established a <em style="background:none;color:#4d4d4d;font-style:italic;box-sizing:border-box;text-shadow:none;">prima facie</em> case of discrimination.</p><p style="background:none;margin:0px 0px 10px;color:#4d4d4d;line-height:22.28px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">The Tribunal then found that the selection board’s explanation of its decision to screen out Mr. Hughes’ application was not credible, and that it had been inappropriate to insist on external references in light of the fulsome supplemental documentation Mr. Hughes had provided, and determined that Transport Canada was liable for discrimination.</p><p style="background:none;margin:0px 0px 10px;color:#4d4d4d;line-height:22.28px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">The Federal Court set aside this decision on reasonability grounds in <em style="background:none;color:#4d4d4d;font-style:italic;box-sizing:border-box;text-shadow:none;">Canada (Attorney General) v. Hughes,</em> 2015 FC 1302, but the Federal Court of Appeal later restored the decision in <em style="background:none;color:#4d4d4d;font-style:italic;box-sizing:border-box;text-shadow:none;">Hughes v. Canada (Attorney General)</em>, 2016 FCA 271.</p><h4 style="background:none;margin:25px 0px 10px;color:#295077;line-height:31.54px;font-family:arial,helvetica,sans-serif;font-size:22.53px;font-weight:700;box-sizing:border-box;text-shadow:none;">Reasons for Judgment</h4><p style="background:none;margin:0px 0px 10px;color:#4d4d4d;line-height:22.28px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">In <em style="background:none;color:#4d4d4d;font-style:italic;box-sizing:border-box;text-shadow:none;">Hughes v. Transport Canada</em>, 2018 CHRT 15, the Tribunal released its decision in respect of remedies (the Remedies Decision). The Tribunal ordered that Transport Canada instate Mr. Hughes in the Intelligence Analyst position, and that Transport Canada pay to Mr. Hughes compensation for lost wages and benefits from the time he should have been appointed to the position up until the point when the causal link between Transport Canada’s discrimination and Mr. Hughes’ loss of wages was severed: May 2006 to May 2011. The Tribunal also awarded to Mr. Hughes $15,000 for pain and suffering, and $5,000 as compensation for Transport Canada’s reckless engagement in a discriminatory practice.</p><p style="background:none;margin:0px 0px 10px;color:#4d4d4d;line-height:22.28px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">With respect to the finding of recklessness, the Tribunal relied on the fact that the chair of the selection board did not give due consideration to the supplemental documents Mr. Hughes had provided and continued to insist on communication with external references despite having received advice to the contrary, and that another member of the selection board had “brushed aside” Mr. Hughes supplemental documents.</p><p style="background:none;margin:0px 0px 10px;color:#4d4d4d;line-height:22.28px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">According to this <a href="https://www.cbc.ca/news/canada/british-columbia/transport-canada-record-payout-homeless-victoria-man-job-discrimination-1.5174363" target="_blank" style="background:none;color:#295077;text-decoration:none;cursor:pointer;box-sizing:border-box;text-shadow:none;">news article</a>, Transport Canada recently paid out the amount of $518,000 to the complainant in compliance with the decision.</p><h4 style="background:none;margin:25px 0px 10px;color:#295077;line-height:31.54px;font-family:arial,helvetica,sans-serif;font-size:22.53px;font-weight:700;box-sizing:border-box;text-shadow:none;">On Appeal</h4><p style="background:none;margin:0px 0px 10px;color:#4d4d4d;line-height:22.28px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">Both parties applied for judicial review of the Remedies Decision, and the Federal Court released its decision on July 31, 2019.</p><p style="background:none;margin:0px 0px 10px;color:#4d4d4d;line-height:22.28px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">The Federal Court determined that the Remedies Decision ought to be set aside in part – namely, insofar as the Tribunal erred in its causation analysis by setting the cut-off date for compensation for lost wages and benefits as May 2011. Whereas the Tribunal had cited a number of intervening factors which severed the causal relationship – including Mr. Hughes’ other temporary employment, health issues unrelated to Mr. Hughes’ mental disability, and the fact that there was an approximate five-year tenure of Intelligence Analysts – the Federal Court determined that the Tribunal erred in relying on the presumption that Mr. Hughes would have left the Intelligence Analyst position after five years, as this premise was based on the personal circumstances of other individuals and not on evidence directly related to Mr. Hughes. As a result, the Federal Court set aside the Remedies Decision in part on this point alone and remitted it to the Tribunal for redetermination.</p><p style="background:none;margin:0px 0px 10px;color:#4d4d4d;line-height:22.28px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">However, the Federal Court affirmed the Tribunal’s awards of instatement and compensation for lost wages, as well as the award for reckless engagement in a discriminatory practice. The Federal Court affirmed that instatement and lost wages compensation are different heads of damages that address different components and therefore do not constitute double recovery. Instatement is forward-looking, seeking to remedy the opportunity lost, whereas a lost wages award seeks to compensate past losses, which would not have occurred but for the discrimination.</p><h4 style="background:none;margin:25px 0px 10px;color:#295077;line-height:31.54px;font-family:arial,helvetica,sans-serif;font-size:22.53px;font-weight:700;box-sizing:border-box;text-shadow:none;">Takeaways</h4><p style="background:none;margin:0px;color:#4d4d4d;line-height:22.28px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">The <em style="background:none;color:#4d4d4d;font-style:italic;box-sizing:border-box;text-shadow:none;">Hughes v. Transport Canada </em>jurisprudence serves as an important reminder to employers with respect to discrimination in hiring. First, employers should ensure that selection processes are well-established and systematic for all candidates. Any departure from the regular process should only be made for clearly non-discriminatory purposes and should be adequately documented. In light of the Tribunal’s award of damages for recklessness in the case, it is important that if a candidate raises a characteristic protected by human rights legislation, employers should heed any reasonable advice sought from HR or legal advisors. More generally, employers should seek legal advice if a candidate discloses a mental illness during the hiring process.</p></div><span style="text-align:left;color:#4d4d4d;text-transform:none;text-indent:0px;letter-spacing:normal;font-family:arial,helvetica,sans-serif;font-size:16px;font-style:normal;font-variant:normal;font-weight:400;text-decoration:none;word-spacing:0px;display:inline !important;white-space:normal;orphans:2;float:none;text-shadow:none;background-color:transparent;"> </span><h4 style="background:none;font:700 22.53px/31.54px arial,helvetica,sans-serif;margin:20px 0px -5px;text-align:left;color:#295077;text-transform:none;text-indent:0px;letter-spacing:normal;text-decoration:none;word-spacing:0px;white-space:normal;box-sizing:border-box;orphans:2;text-shadow:none;">Author</h4><p style="background:none;font:400 13.93px/23.67px arial,helvetica,sans-serif;width:160px;text-align:left;color:#4d4d4d;text-transform:none;text-indent:0px;letter-spacing:normal;text-decoration:none;margin-top:0px;margin-right:20px;margin-bottom:13.93px;word-spacing:0px;display:block;white-space:normal;word-wrap:break-word;box-sizing:border-box;orphans:2;float:left;text-shadow:none;"><a href="https://blg.com/en/Our-People/Pages/Hutchinson-Zoe.aspx" style="background:none;color:#295077;text-decoration:none;cursor:pointer;box-sizing:border-box;text-shadow:none;"><strong style="background:none;color:#295077;font-weight:600;box-sizing:border-box;text-shadow:none;">Zoë Hutchinson</strong> </a><br style="background:none;color:#4d4d4d;box-sizing:border-box;text-shadow:none;"><a style="background:none;color:#295077;text-decoration:none;cursor:pointer;box-sizing:border-box;text-shadow:none;">ZHutchinson@blg.com</a><br style="background:none;color:#4d4d4d;box-sizing:border-box;text-shadow:none;">604.632.3545</p><h4 style="background:none;font:700 22.53px/31.54px arial,helvetica,sans-serif;margin:25px 0px -5px;text-align:left;color:#295077;text-transform:none;text-indent:0px;letter-spacing:normal;clear:left;text-decoration:none;word-spacing:0px;white-space:normal;box-sizing:border-box;orphans:2;text-shadow:none;">Expertise</h4><p style="background:none;font:400 13.93px/23.67px arial,helvetica,sans-serif;text-align:left;color:#4d4d4d;text-transform:none;text-indent:0px;letter-spacing:normal;text-decoration:none;margin-top:0px;margin-bottom:13.93px;word-spacing:0px;white-space:normal;box-sizing:border-box;orphans:2;text-shadow:none;"><strong style="background:none;color:#4d4d4d;font-weight:600;box-sizing:border-box;text-shadow:none;"><a href="https://blg.com/en/Expertise/Pages/LabourAndEmployment.aspx" style="background:none;color:#295077;text-decoration:none;cursor:pointer;box-sizing:border-box;text-shadow:none;">Labour and Employment</a></strong><br style="background:none;color:#4d4d4d;box-sizing:border-box;text-shadow:none;"><strong style="background:none;color:#4d4d4d;font-weight:600;box-sizing:border-box;text-shadow:none;"><a href="https://blg.com/en/Expertise/Pages/LabourAndEmploymentLaw.aspx" style="background:none;color:#295077;text-decoration:none;cursor:pointer;box-sizing:border-box;text-shadow:none;">Labour and Employment Law</a></strong></p><p><br></p>9/3/2019 4:00:00 AM2019-09-03T04:00:00ZTrue1float;#9.00000000000000float;#2019.00000000000string;#Septemberfloat;#201909.000000000GP0|#1f545747-a71f-4c1c-94c9-a8e53c3f977f;L0|#01f545747-a71f-4c1c-94c9-a8e53c3f977f|Employment Law;GTSet|#be1313dc-bb7d-47da-bdde-8d7d979d477aEmployment Law
Attention Federal Employers: Significant Changes to Canada Labour Code as of September 1, 2019https://blog.blg.com/nfp/Lists/Blog Posts/DispForm.aspx?ID=580Attention Federal Employers: Significant Changes to Canada Labour Code as of September 1, 2019580BLG Blog PostJennifer M. Fantinijfantini@blg.com | Jennifer M. Fantini | 693A30232E777C626C6763616E6164615C6A66616E74696E69 i:0#.w|blgcanada\jfantini ​Significant reforms to vacation and break periods, among other areas, have taken effect as of September 1, 2019 <p>​<span style="font:400 16.8px/20.16px arial,helvetica,sans-serif;text-align:left;color:#4d4d4d;text-transform:none;text-indent:0px;letter-spacing:normal;text-decoration:none;word-spacing:0px;display:inline;white-space:normal;orphans:2;float:none;text-shadow:none;background-color:transparent;">Significant reforms to vacation and break periods, among other areas, have taken effect as of September 1, 2019</span><br></p>Federally regulated employers should take note of significant reforms to the Canada Labour Code (Code) that have been proclaimed into force and have taken effect as of September 1, 2019. These changes are part of sweeping reforms aimed at modernizing the outdated Code through a series of Budget Implementation Bills (notably, Bill C-63 and Bill C-86). Some of these proposed changes were highlighted in our newsletter article Bill C-86 Federal Government Proposes Significant Changes to Minimum Labour Standards of Canada Labour Code. These reforms have taken effect as of September 1, 2019, and are summarized below.Work ScheduleAn employer will be required to give an employee notice of their work schedule in writing at least 96 hours prior to the start of the employee’s first work period or shift under that schedule. Failure to provide 96 hours’ notice may result in the employee refusing to work that shift. An exception applies if the change or extension of the shift is due to a threat to the life, health or safety of a person, a threat of damage or loss to property, or threat of serious interference with the ordinary working of the employer’s industrial establishment that was not reasonably foreseen by the employer. If an employer changes a period or shift during which an employee is required to work or adds another work period or shift to the employee’s schedule, the employer must give at least 24 hours’ notice.Break PeriodsEmployees will be entitled to an unpaid 30 minute break during every period of five consecutive hours of work. If employees are required to work through their breaks, they must be paid. An employer can postpone or cancel a break period in the case of unforeseen situations that present an imminent or serious threat to the life, health or safety of a person, threat of damage to or loss of property, or that present a serious interference with the ordinary working of the employer’s industrial establishment that was not reasonably foreseen by the employer. Employees will also be entitled to a rest period of at least eight consecutive hours between work periods or shifts. While the Code was previously silent on the issue of break periods, these standards are consistent with many provincial employment standards.Breaks for Medical Reasons or NursingEmployees will now be entitled to unpaid breaks that are necessary for medical reasons, or in order to nurse or express breast milk. The new provisions do not specify a maximum frequency or duration of such breaks, but do permit an employer to request a medical certificate issued by a health care practitioner setting out the length and frequency of the breaks required by the employee for medical reasons.Time Off in Lieu of Overtime PayThe Code now specifically allows for employees to be either paid for overtime worked at the rate of one and a half times their regular wages, or to be granted time off with pay (at one and half hours for each overtime hour worked), subject to certain conditions. The time off must taken within three months of the pay period during which overtime was worked (but can be extended if a longer period is set out by collective agreement, or extended to twelve months on agreement of the employer and employee). If banked time is not taken within the applicable period or if the employee ceases to be employed, it must be paid out within 30 days. Employees now have the right to refuse to work overtime if it interferes with any family responsibility provided for under the new Family Responsibility Leave.Flexible Work ArrangementsEmployees with six consecutive months of continuous employment have a right to request a flexible work arrangement relating to the number of hours the employee is required to work, the employee’s work schedule or work location, and other prescribed terms and conditions. The request must be in writing and include certain particulars. Upon receiving such a request, the employer must decide to either grant the request in full, or in part, or refuse the request. The employer must give written notice of the decision and reasons for refusing the request or any part of it. The legislation prohibits reprisals for making a flexible work arrangement request.VacationVacation entitlements have increased toTwo weeks after one years’ service (paid at a minimum of four per cent of wages);Three weeks after five years consecutive service (paid at a minimum of six per cent of wages); andFour weeks after 10 years of consecutive employment (paid at a minimum of eight per cent of wages).The Code provides for vacation to be taken in one period, or at the employee’s request and the employer’s approval (both in writing), more than one period. Vacation can be interrupted for certain leaves.Bereavement LeaveBereavement leave is extended to five days (from three days), and may be taken beginning on the day the death occurs and ending six weeks after the latest of the days on which any funeral, burial or memorial service of the immediate family member occurs. For employees with three consecutive months of continuous employment, the first three days of the leave must be paid (with the remaining two days unpaid).New LeavesThe Code now includes new leaves as follows Personal Leave. An employee is entitled to a leave of absence for up to five days per calendar year for treating their illness or injury, carrying out responsibilities related to health care of a family member, carrying out responsibilities related to the education of family members under the age of 18, addressing any urgent matter concerning themselves or a family member, or attending a citizenship ceremony. Employees who have completed three consecutive months of continuous employment are entitled to the first three days of personal leave with pay. Leave for Victims of Family Violence. An employee who is the victim of family violence or the parent of a child who is the victim of family violence is entitled to a leave of up to 10 days per year to be used in periods of one day or more. The leave may be used to seek medical attention for the employee or their child, to obtain services or counselling, legal or law enforcement assistance, or to relocate. Employees who have completed three consecutive months of continuous employment are entitled to the first five days of personal leave with pay. Leave for Traditional Aboriginal Practices. Any employee who is an Aboriginal person (defined as Indian, Inuit or Métis), and who has completed three months of continuous employment is entitled to take five days per calendar year to engage in traditional Aboriginal practices including hunting, fishing and harvesting.Each of the leaves can be taken in one or more periods of at least one day. An employer may request the employee to provide documentation to support the reasons for the leave within 15 days of the employee returning to work following the leave.Medical LeaveMedical Leave replaces the former Sick Leave provisions of the Code. Employees remain entitled to up to 17 weeks of unpaid leave, which may now be used because of (a) personal illness or injury; (b) organ or tissue donation; or (c) medical appointments during work hours. The employee must give written notice of the leave (and its duration) four weeks prior to the first day of the leave, unless there is a valid reason why such notice cannot be given, and otherwise as soon as possible.Jury DutyEmployees are entitled to be granted a leave of absence for attending court in order to act as a witness or juror in a proceeding, or for jury selection. The length of the leave is not limited by the Code.Transfer or RetenderingContinuity of service applies to cases where a contract is retendered to a new employer, or where a provincially regulated operation becomes a federally regulated operation due to a change in activities.CommentFederal employers continue to face sweeping legislative changes with more to come as additional provisions of the Budget Implementation Bills come into force going forward. In addition to the modernization of the Canada Labour Code, a new regime to address workplace harassment situations will come into effect some time in 2020 as a result of the adoption of Bill C-65 See Federal Employers Prepare for a Wave of Change in Workplace Harassment Obligations. To be sure, the only constant for federally regulated employers, is change. AuthorJennifer M. Fantini JFantini@blg.com604.640.4247ExpertiseLabour and EmploymentLabour and Employment Law <div aria-labelledby="ctl00_PlaceHolderMain_PageContent_label" style="background:none;text-align:left;color:#4d4d4d;text-transform:none;text-indent:0px;letter-spacing:normal;font-family:arial,helvetica,sans-serif;font-size:16px;font-style:normal;font-variant:normal;font-weight:400;text-decoration:none;word-spacing:0px;display:inline;white-space:normal;word-wrap:break-word;box-sizing:border-box;orphans:2;text-shadow:none;"><p style="background:none;margin:0px 0px 10px;color:#4d4d4d;line-height:22.28px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">Federally regulated employers should take note of significant reforms to the <em style="background:none;color:#4d4d4d;font-style:italic;box-sizing:border-box;text-shadow:none;">Canada Labour Code</em> (Code) that have been proclaimed into force and have taken effect as of September 1, 2019. These changes are part of sweeping reforms aimed at modernizing the outdated Code through a series of Budget Implementation Bills (notably, Bill C-63 and Bill C-86). Some of these proposed changes were highlighted in our newsletter article <a href="https://blg.com/en/News-And-Publications/Pages/Publication_5470.aspx" style="background:none;color:#295077;text-decoration:none;cursor:pointer;box-sizing:border-box;text-shadow:none;">Bill C-86: Federal Government Proposes Significant Changes to Minimum Labour Standards of Canada Labour Code</a>. These reforms have taken effect as of September 1, 2019, and are summarized below.</p><h4 style="background:none;margin:25px 0px 10px;color:#295077;line-height:31.54px;font-family:arial,helvetica,sans-serif;font-size:22.53px;font-weight:700;box-sizing:border-box;text-shadow:none;">Work Schedule</h4><p style="background:none;margin:0px 0px 10px;color:#4d4d4d;line-height:22.28px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">An employer will be required to give an employee notice of their work schedule in writing at least 96 hours prior to the start of the employee’s first work period or shift under that schedule. Failure to provide 96 hours’ notice may result in the employee refusing to work that shift. An exception applies if the change or extension of the shift is due to a threat to the life, health or safety of a person, a threat of damage or loss to property, or threat of serious interference with the ordinary working of the employer’s industrial establishment that was not reasonably foreseen by the employer. If an employer changes a period or shift during which an employee is required to work or adds another work period or shift to the employee’s schedule, the employer must give at least 24 hours’ notice.</p><h4 style="background:none;margin:25px 0px 10px;color:#295077;line-height:31.54px;font-family:arial,helvetica,sans-serif;font-size:22.53px;font-weight:700;box-sizing:border-box;text-shadow:none;">Break Periods</h4><p style="background:none;margin:0px 0px 10px;color:#4d4d4d;line-height:22.28px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">Employees will be entitled to an unpaid 30 minute break during every period of five consecutive hours of work. If employees are required to work through their breaks, they must be paid. An employer can postpone or cancel a break period in the case of unforeseen situations that present an imminent or serious threat to the life, health or safety of a person, threat of damage to or loss of property, or that present a serious interference with the ordinary working of the employer’s industrial establishment that was not reasonably foreseen by the employer. Employees will also be entitled to a rest period of at least eight consecutive hours between work periods or shifts. While the Code was previously silent on the issue of break periods, these standards are consistent with many provincial employment standards.</p><h4 style="background:none;margin:25px 0px 10px;color:#295077;line-height:31.54px;font-family:arial,helvetica,sans-serif;font-size:22.53px;font-weight:700;box-sizing:border-box;text-shadow:none;">Breaks for Medical Reasons or Nursing</h4><p style="background:none;margin:0px 0px 10px;color:#4d4d4d;line-height:22.28px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">Employees will now be entitled to unpaid breaks that are necessary for medical reasons, or in order to nurse or express breast milk. The new provisions do not specify a maximum frequency or duration of such breaks, but do permit an employer to request a medical certificate issued by a health care practitioner setting out the length and frequency of the breaks required by the employee for medical reasons.<strong style="background:none;color:#4d4d4d;font-weight:600;box-sizing:border-box;text-shadow:none;"><span style="text-decoration:underline;"></span></strong></p><h4 style="background:none;margin:25px 0px 10px;color:#295077;line-height:31.54px;font-family:arial,helvetica,sans-serif;font-size:22.53px;font-weight:700;box-sizing:border-box;text-shadow:none;">Time Off in Lieu of Overtime Pay</h4><p style="background:none;margin:0px 0px 10px;color:#4d4d4d;line-height:22.28px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">The Code now specifically allows for employees to be either paid for overtime worked at the rate of one and a half times their regular wages, or to be granted time off with pay (at one and half hours for each overtime hour worked), subject to certain conditions. The time off must taken within three months of the pay period during which overtime was worked (but can be extended if a longer period is set out by collective agreement, or extended to twelve months on agreement of the employer and employee). If banked time is not taken within the applicable period or if the employee ceases to be employed, it must be paid out within 30 days. Employees now have the right to refuse to work overtime if it interferes with any family responsibility provided for under the new Family Responsibility Leave.</p><h4 style="background:none;margin:25px 0px 10px;color:#295077;line-height:31.54px;font-family:arial,helvetica,sans-serif;font-size:22.53px;font-weight:700;box-sizing:border-box;text-shadow:none;">Flexible Work Arrangements</h4><p style="background:none;margin:0px 0px 10px;color:#4d4d4d;line-height:22.28px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">Employees with six consecutive months of continuous employment have a right to request a flexible work arrangement relating to the number of hours the employee is required to work, the employee’s work schedule or work location, and other prescribed terms and conditions. The request must be in writing and include certain particulars. Upon receiving such a request, the employer must decide to either grant the request in full, or in part, or refuse the request. The employer must give written notice of the decision and reasons for refusing the request or any part of it. The legislation prohibits reprisals for making a flexible work arrangement request.</p><h4 style="background:none;margin:25px 0px 10px;color:#295077;line-height:31.54px;font-family:arial,helvetica,sans-serif;font-size:22.53px;font-weight:700;box-sizing:border-box;text-shadow:none;">Vacation</h4><p style="background:none;margin:0px 0px 10px;color:#4d4d4d;line-height:22.28px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">Vacation entitlements have increased to:</p><ul style="background:none;margin:16px 0px;padding:0px 0px 0px 16px;color:#4d4d4d;list-style-type:none;box-sizing:border-box;text-shadow:none;"><li style="background:none;list-style:disc;margin:0px 0px 6.96px;padding:0px;color:#4d4d4d;line-height:22.53px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">Two weeks after one years’ service (paid at a minimum of four per cent of wages);</li><li style="background:none;list-style:disc;margin:0px 0px 6.96px;padding:0px;color:#4d4d4d;line-height:22.53px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">Three weeks after five years consecutive service (paid at a minimum of six per cent of wages); and</li><li style="background:none;list-style:disc;margin:0px 0px 6.96px;padding:0px;color:#4d4d4d;line-height:22.53px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">Four weeks after 10 years of consecutive employment (paid at a minimum of eight per cent of wages).</li></ul><p style="background:none;margin:0px 0px 10px;color:#4d4d4d;line-height:22.28px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">The Code provides for vacation to be taken in one period, or at the employee’s request and the employer’s approval (both in writing), more than one period. Vacation can be interrupted for certain leaves.</p><h4 style="background:none;margin:25px 0px 10px;color:#295077;line-height:31.54px;font-family:arial,helvetica,sans-serif;font-size:22.53px;font-weight:700;box-sizing:border-box;text-shadow:none;">Bereavement Leave</h4><p style="background:none;margin:0px 0px 10px;color:#4d4d4d;line-height:22.28px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">Bereavement leave is extended to five days (from three days), and may be taken beginning on the day the death occurs and ending six weeks after the latest of the days on which any funeral, burial or memorial service of the immediate family member occurs. For employees with three consecutive months of continuous employment, the first three days of the leave must be paid (with the remaining two days unpaid).</p><h4 style="background:none;margin:25px 0px 10px;color:#295077;line-height:31.54px;font-family:arial,helvetica,sans-serif;font-size:22.53px;font-weight:700;box-sizing:border-box;text-shadow:none;">New Leaves</h4><p style="background:none;margin:0px 0px 10px;color:#4d4d4d;line-height:22.28px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">The Code now includes new leaves as follows:</p><ul style="background:none;margin:16px 0px;padding:0px 0px 0px 16px;color:#4d4d4d;list-style-type:none;box-sizing:border-box;text-shadow:none;"><li style="background:none;list-style:disc;margin:0px 0px 6.96px;padding:0px;color:#4d4d4d;line-height:22.53px;font-size:13.93px;box-sizing:border-box;text-shadow:none;"> <strong style="background:none;color:#4d4d4d;font-weight:600;box-sizing:border-box;text-shadow:none;">Personal Leave. </strong>An employee is entitled to a leave of absence for up to five days per calendar year for treating their illness or injury, carrying out responsibilities related to health care of a family member, carrying out responsibilities related to the education of family members under the age of 18, addressing any urgent matter concerning themselves or a family member, or attending a citizenship ceremony. Employees who have completed three consecutive months of continuous employment are entitled to the first three days of personal leave with pay.</li><li style="background:none;list-style:disc;margin:0px 0px 6.96px;padding:0px;color:#4d4d4d;line-height:22.53px;font-size:13.93px;box-sizing:border-box;text-shadow:none;"> <strong style="background:none;color:#4d4d4d;font-weight:600;box-sizing:border-box;text-shadow:none;">Leave for Victims of Family Violence</strong>. An employee who is the victim of family violence or the parent of a child who is the victim of family violence is entitled to a leave of up to 10 days per year to be used in periods of one day or more. The leave may be used to seek medical attention for the employee or their child, to obtain services or counselling, legal or law enforcement assistance, or to relocate. Employees who have completed three consecutive months of continuous employment are entitled to the first five days of personal leave with pay.</li><li style="background:none;list-style:disc;margin:0px 0px 6.96px;padding:0px;color:#4d4d4d;line-height:22.53px;font-size:13.93px;box-sizing:border-box;text-shadow:none;"> <strong style="background:none;color:#4d4d4d;font-weight:600;box-sizing:border-box;text-shadow:none;">Leave for Traditional Aboriginal Practices.</strong> Any employee who is an Aboriginal person (defined as Indian, Inuit or Métis), and who has completed three months of continuous employment is entitled to take five days per calendar year to engage in traditional Aboriginal practices including hunting, fishing and harvesting.</li></ul><p style="background:none;margin:0px 0px 10px;color:#4d4d4d;line-height:22.28px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">Each of the leaves can be taken in one or more periods of at least one day. An employer may request the employee to provide documentation to support the reasons for the leave within 15 days of the employee returning to work following the leave.</p><h4 style="background:none;margin:25px 0px 10px;color:#295077;line-height:31.54px;font-family:arial,helvetica,sans-serif;font-size:22.53px;font-weight:700;box-sizing:border-box;text-shadow:none;">Medical Leave</h4><p style="background:none;margin:0px 0px 10px;color:#4d4d4d;line-height:22.28px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">Medical Leave replaces the former Sick Leave provisions of the Code. Employees remain entitled to up to 17 weeks of unpaid leave, which may now be used because of (a) personal illness or injury; (b) organ or tissue donation; or (c) medical appointments during work hours. The employee must give written notice of the leave (and its duration) four weeks prior to the first day of the leave, unless there is a valid reason why such notice cannot be given, and otherwise as soon as possible.</p><h4 style="background:none;margin:25px 0px 10px;color:#295077;line-height:31.54px;font-family:arial,helvetica,sans-serif;font-size:22.53px;font-weight:700;box-sizing:border-box;text-shadow:none;">Jury Duty</h4><p style="background:none;margin:0px 0px 10px;color:#4d4d4d;line-height:22.28px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">Employees are entitled to be granted a leave of absence for attending court in order to act as a witness or juror in a proceeding, or for jury selection. The length of the leave is not limited by the Code.</p><h4 style="background:none;margin:25px 0px 10px;color:#295077;line-height:31.54px;font-family:arial,helvetica,sans-serif;font-size:22.53px;font-weight:700;box-sizing:border-box;text-shadow:none;">Transfer or Retendering</h4><p style="background:none;margin:0px 0px 10px;color:#4d4d4d;line-height:22.28px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">Continuity of service applies to cases where a contract is retendered to a new employer, or where a provincially regulated operation becomes a federally regulated operation due to a change in activities.</p><h4 style="background:none;margin:25px 0px 10px;color:#295077;line-height:31.54px;font-family:arial,helvetica,sans-serif;font-size:22.53px;font-weight:700;box-sizing:border-box;text-shadow:none;">Comment</h4><p style="background:none;margin:0px;color:#4d4d4d;line-height:22.28px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">Federal employers continue to face sweeping legislative changes with more to come as additional provisions of the Budget Implementation Bills come into force going forward. In addition to the modernization of the <em style="background:none;color:#4d4d4d;font-style:italic;box-sizing:border-box;text-shadow:none;">Canada Labour Code,</em> a new regime to address workplace harassment situations will come into effect some time in 2020 as a result of the adoption of Bill C-65: See <a href="https://blg.com/en/News-And-Publications/Pages/Publication_5682.aspx" style="background:none;color:#295077;text-decoration:none;cursor:pointer;box-sizing:border-box;text-shadow:none;">Federal Employers: Prepare for a Wave of Change in Workplace Harassment Obligations</a><em style="background:none;color:#4d4d4d;font-style:italic;box-sizing:border-box;text-shadow:none;">. </em>To be sure, the only constant for federally regulated employers, is change.</p></div><span style="text-align:left;color:#4d4d4d;text-transform:none;text-indent:0px;letter-spacing:normal;font-family:arial,helvetica,sans-serif;font-size:16px;font-style:normal;font-variant:normal;font-weight:400;text-decoration:none;word-spacing:0px;display:inline !important;white-space:normal;orphans:2;float:none;text-shadow:none;background-color:transparent;"> </span><h4 style="background:none;font:700 22.53px/31.54px arial,helvetica,sans-serif;margin:20px 0px -5px;text-align:left;color:#295077;text-transform:none;text-indent:0px;letter-spacing:normal;text-decoration:none;word-spacing:0px;white-space:normal;box-sizing:border-box;orphans:2;text-shadow:none;">Author</h4><p style="background:none;font:400 13.93px/23.67px arial,helvetica,sans-serif;width:160px;text-align:left;color:#4d4d4d;text-transform:none;text-indent:0px;letter-spacing:normal;text-decoration:none;margin-top:0px;margin-right:20px;margin-bottom:13.93px;word-spacing:0px;display:block;white-space:normal;word-wrap:break-word;box-sizing:border-box;orphans:2;float:left;text-shadow:none;"><a href="https://blg.com/en/Our-People/Pages/Fantini-Jennifer.aspx" style="background:none;color:#295077;text-decoration:none;cursor:pointer;box-sizing:border-box;text-shadow:none;"><strong style="background:none;color:#295077;font-weight:600;box-sizing:border-box;text-shadow:none;">Jennifer M. Fantini</strong> </a><br style="background:none;color:#4d4d4d;box-sizing:border-box;text-shadow:none;"><a style="background:none;color:#295077;text-decoration:none;cursor:pointer;box-sizing:border-box;text-shadow:none;">JFantini@blg.com</a><br style="background:none;color:#4d4d4d;box-sizing:border-box;text-shadow:none;">604.640.4247</p><h4 style="background:none;font:700 22.53px/31.54px arial,helvetica,sans-serif;margin:25px 0px -5px;text-align:left;color:#295077;text-transform:none;text-indent:0px;letter-spacing:normal;clear:left;text-decoration:none;word-spacing:0px;white-space:normal;box-sizing:border-box;orphans:2;text-shadow:none;">Expertise</h4><p style="background:none;font:400 13.93px/23.67px arial,helvetica,sans-serif;text-align:left;color:#4d4d4d;text-transform:none;text-indent:0px;letter-spacing:normal;text-decoration:none;margin-top:0px;margin-bottom:13.93px;word-spacing:0px;white-space:normal;box-sizing:border-box;orphans:2;text-shadow:none;"><strong style="background:none;color:#4d4d4d;font-weight:600;box-sizing:border-box;text-shadow:none;"><a href="https://blg.com/en/Expertise/Pages/LabourAndEmployment.aspx" style="background:none;color:#295077;text-decoration:none;cursor:pointer;box-sizing:border-box;text-shadow:none;">Labour and Employment</a></strong><br style="background:none;color:#4d4d4d;box-sizing:border-box;text-shadow:none;"><strong style="background:none;color:#4d4d4d;font-weight:600;box-sizing:border-box;text-shadow:none;"><a href="https://blg.com/en/Expertise/Pages/LabourAndEmploymentLaw.aspx" style="background:none;color:#295077;text-decoration:none;cursor:pointer;box-sizing:border-box;text-shadow:none;">Labour and Employment Law</a></strong></p><p><br></p>9/3/2019 4:00:00 AM2019-09-03T04:00:00ZTrue1float;#9.00000000000000float;#2019.00000000000string;#Septemberfloat;#201909.000000000GP0|#1f545747-a71f-4c1c-94c9-a8e53c3f977f;L0|#01f545747-a71f-4c1c-94c9-a8e53c3f977f|Employment Law;GTSet|#be1313dc-bb7d-47da-bdde-8d7d979d477aEmployment Law
Lay Off the Layoffs? The Requirement for Proper Temporary Layoffs https://blog.blg.com/nfp/Lists/Blog Posts/DispForm.aspx?ID=581Lay Off the Layoffs? The Requirement for Proper Temporary Layoffs 581BLG Blog PostTommy Leungtoleung@blg.com | Tommy Leung | 693A30232E777C626C6763616E6164615C746F6C65756E67 i:0#.w|blgcanada\toleung ​Dunbar v. Northern Air, 2019 ABPC 179 <p>​<em><font color="#4d4d4d" face="Arial" size="4">Dunbar v. Northern Air</font></em><span style="font:400 16.8px/20.16px arial,helvetica,sans-serif;text-align:left;color:#4d4d4d;text-transform:none;text-indent:0px;letter-spacing:normal;text-decoration:none;word-spacing:0px;display:inline !important;white-space:normal;orphans:2;float:none;text-shadow:none;background-color:transparent;">, 2019 ABPC 179</span><br></p>In a recent Alberta Provincial Court decision, Dunbar v. Northern Air, 2019 ABPC 179, the court reminds employers that layoff is not another word for termination despite their frequent interchangeable use in common parlance. In Canada Safeway Ltd v. RWDSU, Local 454, [1998] 1 SCR 1079, the Supreme Court of Canada described the term layoff as a cessation of employment where there is the possibility or expectation of a return to work. The employment relationship is suspended rather than terminated.The FactsIn this decision, the employee, Dunbar, was hired in June of 2014, but his employment agreement was silent on layoffs. The employer’s handbook did reference temporary layoffs with the possibility of recall as a possible consequence to a variety of business conditions, however, the handbook and the signed acknowledgement both emphasized that the handbook and policies of the employer are not an employment contract. The employee has no authority to bind the employer to any of the terms of the handbook. The employment agreement also did not reference the handbook as a condition or term of the agreement.On June 30, 2016, the plaintiff received a call from the employer, Northern Air, informing him that he would be laid off effective that day due to restructuring and downsizing. The employee felt his employment had been terminated, but the defendants responded that it was a layoff rather than termination. In September 2016, the employer sent the employee a recall letter, which the employee declined.The DecisionIn this decision, the court applied the common law rule that an employer could only lay off employees when the employer had a contractual right to do so. The court found the handbook’s reference to layoffs had no bearing on the employee’s employment, because it was not a condition of the employment agreement. There were also no other agreements between the parties regarding layoffs, thus the employee’s employment was found to be terminated, and the employee was entitled to common law reasonable notice.Statutory ProvisionsSection 62 of the Employment Standards Code (the Code) does allow an employer to temporarily lay off an employee, however, whether the Code provisions oust the common law requirement that the right to layoff must be contractually agreed upon may still be in question. The Court of Appeal in Vrana v. Procor, 2004 ABCA 126, chose to leave this issue undecided, while the court in Dunbar determined that the statutory provisions did not alter the common law position and only applied when the employer has a contractual right to lay off an employee. As a result, it will be important to see whether future case law will further develop this issue.Although the court in Dunbar did not analyze the temporary layoff provisions under the Code (because the court found that the claim was proceeding under the common law, even if the Code provisions were considered), the employer’s actions also failed to comply with the Code based on the facts provided. In Vrana, the court found that at a minimum, the employer should provide a fair notice to the employee of its intention to lay off, and the notice should contain not only the fact of the temporary layoff and its effective date but also the relevant sections of the Code outlining the effect of that layoff (ss.62, 63 and 64). The requirements for the content of the notice is entrenched under section 62(3) of the Code.The Code requires this notice to be givenat least one week prior to the date that the layoff is to commence, if the employee has been employed for less than two years;at least two weeks prior to the date that the layoff is to commence, if the employee has been employed for two years or more; orif unforeseeable circumstances prevent an employer from providing the notice in accordance with the above, as soon as is practicable in the circumstances.It is also important to note that the layoff period is not indefinite. Under the Code, after 60 days of layoff within a 120-day period, employment will be deemed to have been terminated unless during the layoff the employer, by agreement with the employee, pays the employee wages or an amount instead of wages, or makes payments for the benefit of the laid-off employee in accordance with a pension or employee insurance plan or similar plan; orthere is a collective agreement binding the employer and employee containing recall rights for employees following layoff.ConclusionIn light of the Dunbar decision, it is recommended that if employers would like to keep their option to lay off open, this specific right should be explicitly included in their employment agreements, and employers should ensure that the statutory requirements for temporary layoffs under the Code are also followed. AuthorTommy Leung ToLeung@blg.com403.232.9512Other AuthorJared Armstrong Summer StudentExpertiseLabour and EmploymentLabour and Employment Law <div aria-labelledby="ctl00_PlaceHolderMain_PageContent_label" style="background:none;text-align:left;color:#4d4d4d;text-transform:none;text-indent:0px;letter-spacing:normal;font-family:arial,helvetica,sans-serif;font-size:16px;font-style:normal;font-variant:normal;font-weight:400;text-decoration:none;word-spacing:0px;display:inline;white-space:normal;word-wrap:break-word;box-sizing:border-box;orphans:2;text-shadow:none;"><p style="background:none;margin:0px 0px 10px;color:#4d4d4d;line-height:22.28px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">In a recent Alberta Provincial Court decision, <em style="background:none;color:#4d4d4d;font-style:italic;box-sizing:border-box;text-shadow:none;">Dunbar v. Northern Air</em>, 2019 ABPC 179, the court reminds employers that layoff is not another word for termination despite their frequent interchangeable use in common parlance. In <em style="background:none;color:#4d4d4d;font-style:italic;box-sizing:border-box;text-shadow:none;">Canada Safeway Ltd v. RWDSU, Local 454, </em>[1998] 1 SCR 1079, the Supreme Court of Canada described the term layoff as a cessation of employment where there is the possibility or expectation of a return to work. The employment relationship is suspended rather than terminated.</p><h4 style="background:none;margin:25px 0px 10px;color:#295077;line-height:31.54px;font-family:arial,helvetica,sans-serif;font-size:22.53px;font-weight:700;box-sizing:border-box;text-shadow:none;">The Facts</h4><p style="background:none;margin:0px 0px 10px;color:#4d4d4d;line-height:22.28px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">In this decision, the employee, Dunbar, was hired in June of 2014, but his employment agreement was silent on layoffs. The employer’s handbook did reference temporary layoffs with the possibility of recall as a possible consequence to a variety of business conditions, however, the handbook and the signed acknowledgement both emphasized that the handbook and policies of the employer are not an employment contract. The employee has no authority to bind the employer to any of the terms of the handbook. The employment agreement also did not reference the handbook as a condition or term of the agreement.</p><p style="background:none;margin:0px 0px 10px;color:#4d4d4d;line-height:22.28px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">On June 30, 2016, the plaintiff received a call from the employer, Northern Air, informing him that he would be laid off effective that day due to restructuring and downsizing. The employee felt his employment had been terminated, but the defendants responded that it was a layoff rather than termination. In September 2016, the employer sent the employee a recall letter, which the employee declined.</p><h4 style="background:none;margin:25px 0px 10px;color:#295077;line-height:31.54px;font-family:arial,helvetica,sans-serif;font-size:22.53px;font-weight:700;box-sizing:border-box;text-shadow:none;">The Decision</h4><p style="background:none;margin:0px 0px 10px;color:#4d4d4d;line-height:22.28px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">In this decision, the court applied the common law rule that an employer could only lay off employees when the employer had a contractual right to do so. The court found the handbook’s reference to layoffs had no bearing on the employee’s employment, because it was not a condition of the employment agreement. There were also no other agreements between the parties regarding layoffs, thus the employee’s employment was found to be terminated, and the employee was entitled to common law reasonable notice.</p><h4 style="background:none;margin:25px 0px 10px;color:#295077;line-height:31.54px;font-family:arial,helvetica,sans-serif;font-size:22.53px;font-weight:700;box-sizing:border-box;text-shadow:none;">Statutory Provisions</h4><p style="background:none;margin:0px 0px 10px;color:#4d4d4d;line-height:22.28px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">Section 62 of the <em style="background:none;color:#4d4d4d;font-style:italic;box-sizing:border-box;text-shadow:none;">Employment Standards Code</em> (the Code) does allow an employer to temporarily lay off an employee, however, whether the Code provisions oust the common law requirement that the right to layoff must be contractually agreed upon may still be in question. The Court of Appeal in <em style="background:none;color:#4d4d4d;font-style:italic;box-sizing:border-box;text-shadow:none;">Vrana v. Procor</em>, 2004 ABCA 126, chose to leave this issue undecided, while the court in <em style="background:none;color:#4d4d4d;font-style:italic;box-sizing:border-box;text-shadow:none;">Dunbar</em> determined that the statutory provisions did not alter the common law position and only applied when the employer has a contractual right to lay off an employee. As a result, it will be important to see whether future case law will further develop this issue.</p><p style="background:none;margin:0px 0px 10px;color:#4d4d4d;line-height:22.28px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">Although the court in <em style="background:none;color:#4d4d4d;font-style:italic;box-sizing:border-box;text-shadow:none;">Dunbar</em> did not analyze the temporary layoff provisions under the Code (because the court found that the claim was proceeding under the common law, even if the Code provisions were considered), the employer’s actions also failed to comply with the Code based on the facts provided. In <em style="background:none;color:#4d4d4d;font-style:italic;box-sizing:border-box;text-shadow:none;">Vrana</em>, the court found that at a minimum, the employer should provide a fair notice to the employee of its intention to lay off, and the notice should contain not only the fact of the temporary layoff and its effective date but also the relevant sections of the Code outlining the effect of that layoff (ss.62, 63 and 64). The requirements for the content of the notice is entrenched under section 62(3) of the Code.</p><p style="background:none;margin:0px 0px 10px;color:#4d4d4d;line-height:22.28px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">The Code requires this notice to be given:</p><ul style="background:none;margin:16px 0px;padding:0px 0px 0px 16px;color:#4d4d4d;list-style-type:none;box-sizing:border-box;text-shadow:none;"><ul style="background:none;margin:0px;padding:0px 0px 0px 16px;color:#4d4d4d;font-size:16px;list-style-type:none;box-sizing:border-box;text-shadow:none;"><li style="background:none;list-style:disc;margin:0px 0px 6.96px;padding:0px;color:#4d4d4d;line-height:22.53px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">at least one week prior to the date that the layoff is to commence, if the employee has been employed for less than two years;</li><li style="background:none;list-style:disc;margin:0px 0px 6.96px;padding:0px;color:#4d4d4d;line-height:22.53px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">at least two weeks prior to the date that the layoff is to commence, if the employee has been employed for two years or more; or</li><li style="background:none;list-style:disc;margin:0px 0px 6.96px;padding:0px;color:#4d4d4d;line-height:22.53px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">if unforeseeable circumstances prevent an employer from providing the notice in accordance with the above, as soon as is practicable in the circumstances.</li></ul></ul><p style="background:none;margin:0px 0px 10px;color:#4d4d4d;line-height:22.28px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">It is also important to note that the layoff period is not indefinite. Under the Code, after 60 days of layoff within a 120-day period, employment will be deemed to have been terminated unless: </p><ul style="background:none;margin:16px 0px;padding:0px 0px 0px 16px;color:#4d4d4d;list-style-type:none;box-sizing:border-box;text-shadow:none;"><ul style="background:none;margin:0px;padding:0px 0px 0px 16px;color:#4d4d4d;font-size:16px;list-style-type:none;box-sizing:border-box;text-shadow:none;"><li style="background:none;list-style:disc;margin:0px 0px 6.96px;padding:0px;color:#4d4d4d;line-height:22.53px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">during the layoff the employer, by agreement with the employee, pays the employee wages or an amount instead of wages, or makes payments for the benefit of the laid-off employee in accordance with a pension or employee insurance plan or similar plan; or</li><li style="background:none;list-style:disc;margin:0px 0px 6.96px;padding:0px;color:#4d4d4d;line-height:22.53px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">there is a collective agreement binding the employer and employee containing recall rights for employees following layoff.</li></ul></ul><h4 style="background:none;margin:25px 0px 10px;color:#295077;line-height:31.54px;font-family:arial,helvetica,sans-serif;font-size:22.53px;font-weight:700;box-sizing:border-box;text-shadow:none;">Conclusion</h4><p style="background:none;margin:0px;color:#4d4d4d;line-height:22.28px;font-size:13.93px;box-sizing:border-box;text-shadow:none;">In light of the <em style="background:none;color:#4d4d4d;font-style:italic;box-sizing:border-box;text-shadow:none;">Dunbar</em> decision, it is recommended that if employers would like to keep their option to lay off open, this specific right should be explicitly included in their employment agreements, and employers should ensure that the statutory requirements for temporary layoffs under the Code are also followed.</p></div><span style="text-align:left;color:#4d4d4d;text-transform:none;text-indent:0px;letter-spacing:normal;font-family:arial,helvetica,sans-serif;font-size:16px;font-style:normal;font-variant:normal;font-weight:400;text-decoration:none;word-spacing:0px;display:inline !important;white-space:normal;orphans:2;float:none;text-shadow:none;background-color:transparent;"> </span><h4 style="background:none;font:700 22.53px/31.54px arial,helvetica,sans-serif;margin:20px 0px -5px;text-align:left;color:#295077;text-transform:none;text-indent:0px;letter-spacing:normal;text-decoration:none;word-spacing:0px;white-space:normal;box-sizing:border-box;orphans:2;text-shadow:none;">Author</h4><p style="background:none;font:400 13.93px/23.67px arial,helvetica,sans-serif;width:160px;text-align:left;color:#4d4d4d;text-transform:none;text-indent:0px;letter-spacing:normal;text-decoration:none;margin-top:0px;margin-right:20px;margin-bottom:13.93px;word-spacing:0px;display:block;white-space:normal;word-wrap:break-word;box-sizing:border-box;orphans:2;float:left;text-shadow:none;"><a href="https://blg.com/en/Our-People/Pages/Leung-Tommy.aspx" style="background:none;color:#295077;text-decoration:none;cursor:pointer;box-sizing:border-box;text-shadow:none;"><strong style="background:none;color:#295077;font-weight:600;box-sizing:border-box;text-shadow:none;">Tommy Leung</strong> </a><br style="background:none;color:#4d4d4d;box-sizing:border-box;text-shadow:none;"><a style="background:none;color:#295077;text-decoration:none;cursor:pointer;box-sizing:border-box;text-shadow:none;">ToLeung@blg.com</a><br style="background:none;color:#4d4d4d;box-sizing:border-box;text-shadow:none;">403.232.9512</p><h4 style="background:none;font:700 22.53px/31.54px arial,helvetica,sans-serif;margin:25px 0px -5px;text-align:left;color:#295077;text-transform:none;text-indent:0px;letter-spacing:normal;clear:left;text-decoration:none;word-spacing:0px;white-space:normal;box-sizing:border-box;orphans:2;text-shadow:none;">Other Author</h4><p style="background:none;font:400 13.93px/23.67px arial,helvetica,sans-serif;width:160px;text-align:left;color:#4d4d4d;text-transform:none;text-indent:0px;letter-spacing:normal;text-decoration:none;margin-top:0px;margin-right:20px;margin-bottom:13.93px;word-spacing:0px;display:block;white-space:normal;word-wrap:break-word;box-sizing:border-box;orphans:2;float:left;text-shadow:none;"><strong style="background:none;color:#4d4d4d;font-weight:600;box-sizing:border-box;text-shadow:none;">Jared Armstrong<br style="background:none;color:#4d4d4d;box-sizing:border-box;text-shadow:none;"> Summer Student</strong><br style="background:none;color:#4d4d4d;box-sizing:border-box;text-shadow:none;"></p><h4 style="background:none;font:700 22.53px/31.54px arial,helvetica,sans-serif;margin:25px 0px -5px;text-align:left;color:#295077;text-transform:none;text-indent:0px;letter-spacing:normal;clear:left;text-decoration:none;word-spacing:0px;white-space:normal;box-sizing:border-box;orphans:2;text-shadow:none;">Expertise</h4><p style="background:none;font:400 13.93px/23.67px arial,helvetica,sans-serif;text-align:left;color:#4d4d4d;text-transform:none;text-indent:0px;letter-spacing:normal;text-decoration:none;margin-top:0px;margin-bottom:13.93px;word-spacing:0px;white-space:normal;box-sizing:border-box;orphans:2;text-shadow:none;"><strong style="background:none;color:#4d4d4d;font-weight:600;box-sizing:border-box;text-shadow:none;"><a href="https://blg.com/en/Expertise/Pages/LabourAndEmployment.aspx" style="background:none;color:#295077;text-decoration:none;cursor:pointer;box-sizing:border-box;text-shadow:none;">Labour and Employment</a></strong><br style="background:none;color:#4d4d4d;box-sizing:border-box;text-shadow:none;"><strong style="background:none;color:#4d4d4d;font-weight:600;box-sizing:border-box;text-shadow:none;"><a href="https://blg.com/en/Expertise/Pages/LabourAndEmploymentLaw.aspx" style="background:none;outline:0px;color:#295077;text-decoration:underline;cursor:pointer;box-sizing:border-box;text-shadow:none;">Labour and Employment Law</a></strong></p><p><br></p>9/3/2019 4:00:00 AM2019-09-03T04:00:00ZTrue1float;#9.00000000000000float;#2019.00000000000string;#Septemberfloat;#201909.000000000GP0|#1f545747-a71f-4c1c-94c9-a8e53c3f977f;L0|#01f545747-a71f-4c1c-94c9-a8e53c3f977f|Employment Law;GTSet|#be1313dc-bb7d-47da-bdde-8d7d979d477aEmployment Law
Managing Insider Risk – Recent Best Practices Guidancehttps://blog.blg.com/nfp/Lists/Blog Posts/DispForm.aspx?ID=577Managing Insider Risk – Recent Best Practices Guidance577BLG Blog PostBradley J. Freedmanbfreedman@blg.com | Bradley J. Freedman | 693A30232E777C626C6763616E6164615C626A66 i:0#.w|blgcanada\bjf Managing Insider Risk – Recent Best Practices Guidance <p>Managing Insider Risk – Recent Best Practices Guidance<br></p>Employees and other insiders are a major security risk. A significant portion of cybersecurity incidents are caused or facilitated by the affected organization’s insiders, whether acting inadvertently or intentionally. Organizations should assess their insider risk management program for compliance with recent best practices guidance, and ensure that their insider risk management program complies with applicable law.Insider RiskStudies consistently indicate that a significant portion of cybersecurity incidents and data breaches are caused or facilitated by a current or former insider (e.g. a director, executive/manager, employee or contract worker) of the affected organization or its business partners. The Verizon Insider Threat Report concludes that 20 percent of all cybersecurity incidents and nearly 15 percent of all data breaches in the Verizon 2018 Data Breach Investigations Report resulted from “insider and privilege misuse” by individuals within the affected organization.An organization’s insiders present significant risk because they have authorized access to the organization’s information technology systems, special knowledge of the organization’s valuable data and security practices, and a greater window of opportunity for misconduct. Those circumstances can enable an insider to engage in misconduct that is harder to detect and remedy, and results in more harm, than external attacks.Insiders can cause or facilitate a cybersecurity incident or data breach inadvertently (e.g. due to mistake or manipulation by other persons) or deliberately for various motives (e.g. financial gain, malice or enjoyment). Regardless of whether an insider’s actions are inadvertent or deliberate, the results can be the same – potentially devastating harm to the organization and potentially significant liabilities by the organization to individuals and organizations harmed by the incident. For more information about insider risk and rogue employees, see BLG bulletin Insider Risk Management and Rogue Employees.Best Practices GuidanceEffective insider risk management requires a risk-based, multi-functional approach by an organization’s various departments and disciplines (e.g. human resources, legal, physical security, and information technology) to deter, prevent, detect and respond to cybersecurity incidents and data breaches caused by insiders. An organization should carefully hire, educate, train and disengage insiders, and establish and implement administrative, technological and physical security policies and procedures to protect the information technology systems and data of the organization and its relevant business partners, and to monitor and verify compliance.Best practices guidance for managing insider risk has recently been issued by Carnegie Mellon University’s CERT Division, Verizon and Public Safety Canada. Following is a summary of each guidance document.CERT – Common Sense Guide to Mitigating Insider ThreatsIn December 2018, Carnegie Mellon University, Software Engineering Institute’s CERT Division issued its Common Sense Guide to Mitigating Insider Threats, 6th Edition. The guide details twenty-one recommended best practices for managing insider risk (1) know and protect your critical assets; (2) develop a formalized insider threat program; (3) clearly document and consistently enforce policies and controls; (4) beginning with the hiring process, monitor and respond to suspicious or disruptive behavior; (5) anticipate and manage negative issues in the work environment; (6) consider threats from insiders and business partners in enterprise-wide risk assessments; (7) be especially vigilant regarding social media; (8) structure management and tasks to minimize insider stress and mistakes; (9) incorporate malicious and unintentional insider threat awareness into periodic security training for all employees; (10) implement strict password and account management policies and practices; (11) institute stringent access controls and monitoring policies on privileged users; (12) deploy solutions for monitoring employee actions and correlating information from multiple data sources; (13) monitor and control remote access from all end points, including mobile devices; (14) establish a baseline of normal behavior for both networks and employees; (15) enforce separation of duties and apply the principle of least privilege; (16) define explicit security agreements for cloud services; (17) institutionalize system change controls; (18) implement secure backup and recovery processes; (19) close the doors to unauthorized data exfiltration; (20) develop a comprehensive employee termination procedure; and (21) adopt positive incentives to align the workforce with the organization.For most recommended best practices, the guide identifies the organizational groups involved in executing each recommendation, and lists “quick wins and high-impact solutions” to help organizations accelerate their insider risk management program.Verizon – Insider Threat ReportIn March 2019, Verizon published its Insider Threat Report to provide a “data-driven view” of insider risk, illustrated by real-life case scenarios, and to recommend countermeasure strategies for a comprehensive insider risk management program. The report identifies and illustrates five insider personalities (1) the careless worker (misusing assets); (2) the inside agent (stealing information on behalf of outsiders); (3) the disgruntled employee (destroying property); (4) the malicious insider (stealing information for personal gain); and (5) the feckless third party (compromising security).The report details eleven recommended countermeasures for insider risk (1) integrate security strategies and policies; (2) conduct threat hunting activities; (3) perform vulnerability scanning and penetration testing; (4) implement personnel security measures; (5) employ physical security measures; (6) implement network security solutions; (7) employ endpoint security solutions; (8) apply data security measures; (9) employ identity and access management measures; (10) establish incident management capabilities; and (11) retain digital forensics services. The report contains a number of recommended tasks for each countermeasure. The report emphasizes that an insider risk strategy must focus on two factors – assets and people. The report encourages organizations to address the “most impactful situations” (i.e. high-value assets and areas of highest risk), rather than just applying blanket coverage, to improve the effectiveness of their insider risk management program.Public Safety Canada – Enhancing Canada’s Critical Infrastructure Resilience to Insider RiskIn April 2019, Public Safety Canada’s Critical Infrastructure Directorate issued Enhancing Canada’s Critical Infrastructure Resilience to Insider Risk to provide Canadian critical infrastructure organizations with guidance on what constitutes insider risk, and recommendations on how to monitor, respond to and mitigate insider risk. The report details eight recommended security actions (1) establish a culture of security; (2) develop clear security policies and procedures; (3) reduce risks from partners and third party providers; (4) implement a personnel screening life-cycle; (5) provide training, raise awareness and conduct exercises; (6) identify and protect critical assets; (7) monitor for, respond to and mitigate unusual behaviour; and (8) protect data. The report contains a number of recommended tasks for each security action. The report concludes “Organizations must … be vigilant and resilient; continuously monitor the threat landscape; meticulously plan for response and recovery activities; and implement measures to protect against incidents”.CommentOrganizations should evaluate their insider risk management program in light of recent best practices guidance, and make appropriate improvements with an emphasis on protecting the organization’s high-value assets and areas of highest risk.When establishing and implementing an insider risk management program, organizations should be mindful of legal compliance requirements. For examplePerforming background checks and screening (including reviewing social media activity) of individuals, as part of hiring/engagement process or during the course of employment, implicates compliance with privacy/personal information protection, labour/employment and human rights laws.Designing and implementing IT system policies and procedures implicates compliance with privacy/personal information protection and labour/employment laws.Monitoring IT system use and other work-related activities implicates compliance with privacy/personal information protection and labour/employment laws.Testing incident response plans, and responding to cybersecurity incidents and data breaches, implicates compliance with privacy/personal information protection and labour/employment laws, and collecting and maintaining evidence of breaches and remediation activities implicates laws regarding the admissibility of evidence.Timely legal advice can assist an organization to effectively address legal compliance requirements. In addition, the involvement of lawyers in certain insider risk management activities (e.g. assessing relevant policies/procedures and conducting testing/training activities) and in responding to cybersecurity incidents and data breaches is necessary to establish legal privilege over communications regarding those activities. For more information, see BLG bulletins Cyber Risk Management – Legal Privilege Strategy (Part 1), Cyber Risk Management – Legal Privilege Strategy (Part 2), Legal Privilege for Data Security Incident Investigation Reports, and Loss of Legal Privilege over Cyberattack Investigation Report.Organizations should also consider whether they have appropriate insurance for residual insider risk. The cyber insurance market is evolving rapidly. At this time, there is no standard form language used in cyber insurance policies, and there can be significant differences in the coverage provided by similar kinds of policies. For those reasons, organizations should obtain appropriate advice regarding cyber insurance. For more information, see BLG bulletin Insurance for Cybersecurity Incidents and Privacy Breaches.AuthorBradley J. Freedman BFreedman@blg.com604.640.4129ExpertiseCybersecurity <div aria-labelledby="ctl00_PlaceHolderMain_PageContent_label" style="box-sizing:border-box;color:#4d4d4d;font-family:arial, helvetica, sans-serif;font-size:16px;background-color:#ffffff;display:inline;"><p style="box-sizing:border-box;font-size:0.875rem;">Employees and other insiders are a major security risk. A significant portion of cybersecurity incidents are caused or facilitated by the affected organization’s insiders, whether acting inadvertently or intentionally. Organizations should assess their insider risk management program for compliance with recent best practices guidance, and ensure that their insider risk management program complies with applicable law.</p><h4 style="box-sizing:border-box;margin:25px 0px 10px;font-weight:bold;font-family:arial, helvetica, sans-serif;font-size:1.41578rem;color:#295077;line-height:1.4;">Insider Risk</h4><p style="box-sizing:border-box;font-size:0.875rem;">Studies consistently indicate that a significant portion of cybersecurity incidents and data breaches are caused or facilitated by a current or former insider (e.g. a director, executive/manager, employee or contract worker) of the affected organization or its business partners. The Verizon <a href="https://enterprise.verizon.com/resources/reports/insider-threat-report.pdf" target="_blank" style="box-sizing:border-box;color:#295077;cursor:pointer;"><em style="box-sizing:border-box;">Insider Threat Report</em></a> concludes that 20 percent of all cybersecurity incidents and nearly 15 percent of all data breaches in the Verizon <a href="https://enterprise.verizon.com/resources/reports/DBIR_2018_Report.pdf" target="_blank" style="box-sizing:border-box;color:#295077;cursor:pointer;"><em style="box-sizing:border-box;">2018 Data Breach Investigations Report</em></a> resulted from “insider and privilege misuse” by individuals within the affected organization.</p><p style="box-sizing:border-box;font-size:0.875rem;">An organization’s insiders present significant risk because they have authorized access to the organization’s information technology systems, special knowledge of the organization’s valuable data and security practices, and a greater window of opportunity for misconduct. Those circumstances can enable an insider to engage in misconduct that is harder to detect and remedy, and results in more harm, than external attacks.</p><p style="box-sizing:border-box;font-size:0.875rem;">Insiders can cause or facilitate a cybersecurity incident or data breach inadvertently (e.g. due to mistake or manipulation by other persons) or deliberately for various motives (e.g. financial gain, malice or enjoyment). Regardless of whether an insider’s actions are inadvertent or deliberate, the results can be the same – potentially devastating harm to the organization and potentially significant liabilities by the organization to individuals and organizations harmed by the incident. For more information about insider risk and rogue employees, see BLG bulletin <em style="box-sizing:border-box;"><a href="https://blg.com/en/News-And-Publications/Documents/Publication_5169.pdf" target="_blank" style="box-sizing:border-box;color:#295077;cursor:pointer;">Insider Risk Management and Rogue Employees</a></em>.</p><h4 style="box-sizing:border-box;margin:25px 0px 10px;font-weight:bold;font-family:arial, helvetica, sans-serif;font-size:1.41578rem;color:#295077;line-height:1.4;">Best Practices Guidance</h4><p style="box-sizing:border-box;font-size:0.875rem;">Effective insider risk management requires a risk-based, multi-functional approach by an organization’s various departments and disciplines (e.g. human resources, legal, physical security, and information technology) to deter, prevent, detect and respond to cybersecurity incidents and data breaches caused by insiders. An organization should carefully hire, educate, train and disengage insiders, and establish and implement administrative, technological and physical security policies and procedures to protect the information technology systems and data of the organization and its relevant business partners, and to monitor and verify compliance.</p><p style="box-sizing:border-box;font-size:0.875rem;">Best practices guidance for managing insider risk has recently been issued by Carnegie Mellon University’s CERT Division, Verizon and Public Safety Canada. Following is a summary of each guidance document.</p><p style="box-sizing:border-box;font-size:0.875rem;"><span style="box-sizing:border-box;font-weight:600;">CERT – <em style="box-sizing:border-box;">Common Sense Guide to Mitigating Insider Threats</em></span></p><p style="box-sizing:border-box;font-size:0.875rem;">In December 2018, Carnegie Mellon University, Software Engineering Institute’s CERT Division issued its <em style="box-sizing:border-box;"><a href="https://resources.sei.cmu.edu/asset_files/TechnicalReport/2019_005_001_540647.pdf" target="_blank" style="box-sizing:border-box;color:#295077;cursor:pointer;">Common Sense Guide to Mitigating Insider Threats, 6th Edition</a></em>. The guide details twenty-one recommended best practices for managing insider risk: (1) know and protect your critical assets; (2) develop a formalized insider threat program; (3) clearly document and consistently enforce policies and controls; (4) beginning with the hiring process, monitor and respond to suspicious or disruptive behavior; (5) anticipate and manage negative issues in the work environment; (6) consider threats from insiders and business partners in enterprise-wide risk assessments; (7) be especially vigilant regarding social media; (8) structure management and tasks to minimize insider stress and mistakes; (9) incorporate malicious and unintentional insider threat awareness into periodic security training for all employees; (10) implement strict password and account management policies and practices; (11) institute stringent access controls and monitoring policies on privileged users; (12) deploy solutions for monitoring employee actions and correlating information from multiple data sources; (13) monitor and control remote access from all end points, including mobile devices; (14) establish a baseline of normal behavior for both networks and employees; (15) enforce separation of duties and apply the principle of least privilege; (16) define explicit security agreements for cloud services; (17) institutionalize system change controls; (18) implement secure backup and recovery processes; (19) close the doors to unauthorized data exfiltration; (20) develop a comprehensive employee termination procedure; and (21) adopt positive incentives to align the workforce with the organization.</p><p style="box-sizing:border-box;font-size:0.875rem;">For most recommended best practices, the guide identifies the organizational groups involved in executing each recommendation, and lists “quick wins and high-impact solutions” to help organizations accelerate their insider risk management program.</p><p style="box-sizing:border-box;font-size:0.875rem;"><span style="box-sizing:border-box;font-weight:600;">Verizon – <em style="box-sizing:border-box;">Insider Threat Report</em></span></p><p style="box-sizing:border-box;font-size:0.875rem;">In March 2019, Verizon published its <em style="box-sizing:border-box;"><a href="https://enterprise.verizon.com/resources/reports/insider-threat-report.pdf" target="_blank" style="box-sizing:border-box;color:#295077;cursor:pointer;">Insider Threat Report</a></em> to provide a “data-driven view” of insider risk, illustrated by real-life case scenarios, and to recommend countermeasure strategies for a comprehensive insider risk management program. The report identifies and illustrates five insider personalities: (1) the careless worker (misusing assets); (2) the inside agent (stealing information on behalf of outsiders); (3) the disgruntled employee (destroying property); (4) the malicious insider (stealing information for personal gain); and (5) the feckless third party (compromising security).</p><p style="box-sizing:border-box;font-size:0.875rem;">The report details eleven recommended countermeasures for insider risk: (1) integrate security strategies and policies; (2) conduct threat hunting activities; (3) perform vulnerability scanning and penetration testing; (4) implement personnel security measures; (5) employ physical security measures; (6) implement network security solutions; (7) employ endpoint security solutions; (8) apply data security measures; (9) employ identity and access management measures; (10) establish incident management capabilities; and (11) retain digital forensics services. The report contains a number of recommended tasks for each countermeasure. The report emphasizes that an insider risk strategy must focus on two factors – assets and people. The report encourages organizations to address the “most impactful situations” (i.e. high-value assets and areas of highest risk), rather than just applying blanket coverage, to improve the effectiveness of their insider risk management program.</p><p style="box-sizing:border-box;font-size:0.875rem;"><span style="box-sizing:border-box;font-weight:600;">Public Safety Canada – <em style="box-sizing:border-box;">Enhancing Canada’s Critical Infrastructure Resilience to Insider Risk</em></span></p><p style="box-sizing:border-box;font-size:0.875rem;">In April 2019, Public Safety Canada’s Critical Infrastructure Directorate issued <em style="box-sizing:border-box;"><a href="https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/nhncng-crtcl-nfrstrctr/index-en.aspx#a2" target="_blank" style="box-sizing:border-box;color:#295077;cursor:pointer;">Enhancing Canada’s Critical Infrastructure Resilience to Insider Risk</a></em> to provide Canadian critical infrastructure organizations with guidance on what constitutes insider risk, and recommendations on how to monitor, respond to and mitigate insider risk. The report details eight recommended security actions: (1) establish a culture of security; (2) develop clear security policies and procedures; (3) reduce risks from partners and third party providers; (4) implement a personnel screening life-cycle; (5) provide training, raise awareness and conduct exercises; (6) identify and protect critical assets; (7) monitor for, respond to and mitigate unusual behaviour; and (8) protect data. The report contains a number of recommended tasks for each security action. The report concludes: “Organizations must … be vigilant and resilient; continuously monitor the threat landscape; meticulously plan for response and recovery activities; and implement measures to protect against incidents”.</p><h4 style="box-sizing:border-box;margin:25px 0px 10px;font-weight:bold;font-family:arial, helvetica, sans-serif;font-size:1.41578rem;color:#295077;line-height:1.4;">Comment</h4><p style="box-sizing:border-box;font-size:0.875rem;">Organizations should evaluate their insider risk management program in light of recent best practices guidance, and make appropriate improvements with an emphasis on protecting the organization’s high-value assets and areas of highest risk.</p><p style="box-sizing:border-box;font-size:0.875rem;">When establishing and implementing an insider risk management program, organizations should be mindful of legal compliance requirements. For example:</p><ul style="box-sizing:border-box;margin:-6px 0px 0px;padding:0px 0px 0px 1em;list-style-type:none;line-height:1.4;"><li style="box-sizing:border-box;list-style:disc;margin:0px 0px 0.5em;padding:0px;font-size:0.875rem;line-height:1.61803;">Performing background checks and screening (including reviewing social media activity) of individuals, as part of hiring/engagement process or during the course of employment, implicates compliance with privacy/personal information protection, labour/employment and human rights laws.</li><li style="box-sizing:border-box;list-style:disc;margin:0px 0px 0.5em;padding:0px;font-size:0.875rem;line-height:1.61803;">Designing and implementing IT system policies and procedures implicates compliance with privacy/personal information protection and labour/employment laws.</li><li style="box-sizing:border-box;list-style:disc;margin:0px 0px 0.5em;padding:0px;font-size:0.875rem;line-height:1.61803;">Monitoring IT system use and other work-related activities implicates compliance with privacy/personal information protection and labour/employment laws.</li><li style="box-sizing:border-box;list-style:disc;margin:0px 0px 0.5em;padding:0px;font-size:0.875rem;line-height:1.61803;">Testing incident response plans, and responding to cybersecurity incidents and data breaches, implicates compliance with privacy/personal information protection and labour/employment laws, and collecting and maintaining evidence of breaches and remediation activities implicates laws regarding the admissibility of evidence.</li></ul><p style="box-sizing:border-box;font-size:0.875rem;">Timely legal advice can assist an organization to effectively address legal compliance requirements. In addition, the involvement of lawyers in certain insider risk management activities (e.g. assessing relevant policies/procedures and conducting testing/training activities) and in responding to cybersecurity incidents and data breaches is necessary to establish legal privilege over communications regarding those activities. For more information, see BLG bulletins <a href="http://blg.com/en/News-And-Publications/Documents/Publication_4602.pdf" target="_blank" style="box-sizing:border-box;color:#295077;cursor:pointer;"><em style="box-sizing:border-box;">Cyber Risk Management – Legal Privilege Strategy (Part 1)</em></a>, <em style="box-sizing:border-box;"><a href="http://blg.com/en/News-And-Publications/Documents/Publication_4603.pdf" target="_blank" style="box-sizing:border-box;color:#295077;cursor:pointer;">Cyber Risk Management – Legal Privilege Strategy (Part 2)</a></em>, <em style="box-sizing:border-box;"><a href="http://blg.com/en/News-And-Publications/Documents/Publication_4963.pdf" target="_blank" style="box-sizing:border-box;color:#295077;cursor:pointer;">Legal Privilege for Data Security Incident Investigation Reports</a></em>, and <em style="box-sizing:border-box;"><a href="https://blg.com/en/News-And-Publications/Documents/Publication_5375.pdf" target="_blank" style="box-sizing:border-box;color:#295077;cursor:pointer;">Loss of Legal Privilege over Cyberattack Investigation Report</a></em>.</p><p style="box-sizing:border-box;font-size:0.875rem;margin-bottom:0px;">Organizations should also consider whether they have appropriate insurance for residual insider risk. The cyber insurance market is evolving rapidly. At this time, there is no standard form language used in cyber insurance policies, and there can be significant differences in the coverage provided by similar kinds of policies. For those reasons, organizations should obtain appropriate advice regarding cyber insurance. For more information, see BLG bulletin <a href="https://blg.com/en/News-And-Publications/Documents/Publication_5207.pdf" target="_blank" style="box-sizing:border-box;color:#295077;cursor:pointer;"><em style="box-sizing:border-box;">Insurance for Cybersecurity Incidents and Privacy Breaches</em></a>.</p></div><span style="color:#4d4d4d;font-family:arial, helvetica, sans-serif;font-size:16px;background-color:#ffffff;"></span><h4 style="box-sizing:border-box;margin:20px 0px -5px;font-weight:bold;font-family:arial, helvetica, sans-serif;font-size:1.41578rem;color:#295077;line-height:1.4;background-color:#ffffff;">Author</h4><p style="box-sizing:border-box;font-size:0.875rem;line-height:1.69959;margin-bottom:1em;color:#4d4d4d;font-family:arial, helvetica, sans-serif;background-color:#ffffff;float:left;margin-right:20px;width:160px;"><a href="https://blg.com/en/Our-People/Pages/Freedman-Bradley.aspx" style="box-sizing:border-box;color:#295077;cursor:pointer;"><span style="box-sizing:border-box;font-weight:600;">Bradley J. Freedman</span> </a><br style="box-sizing:border-box;"><a href="mailto:BFreedman@blg.com" style="box-sizing:border-box;color:#295077;cursor:pointer;">BFreedman@blg.com</a><br style="box-sizing:border-box;">604.640.4129</p><h4 style="box-sizing:border-box;margin:25px 0px -5px;font-weight:bold;font-family:arial, helvetica, sans-serif;font-size:1.41578rem;color:#295077;line-height:1.4;background-color:#ffffff;clear:left;">Expertise</h4><p style="box-sizing:border-box;font-size:0.875rem;line-height:1.69959;margin-bottom:1em;color:#4d4d4d;font-family:arial, helvetica, sans-serif;background-color:#ffffff;"><span style="box-sizing:border-box;font-weight:600;"><a href="https://blg.com/en/Expertise/Pages/Cybersecurity.aspx" style="box-sizing:border-box;color:#295077;cursor:pointer;">Cybersecurity</a></span></p><p><br></p>7/23/2019 4:00:00 AM2019-07-23T04:00:00ZTrue1float;#7.00000000000000float;#2019.00000000000string;#Julyfloat;#201907.000000000GP0|#a05243ff-0ad7-48e2-8cdf-d007fbe27f5f;L0|#0a05243ff-0ad7-48e2-8cdf-d007fbe27f5f|Information Technology;GTSet|#be1313dc-bb7d-47da-bdde-8d7d979d477aInformation Technology
Government offering surplus items to charitieshttps://blog.blg.com/nfp/Lists/Blog Posts/DispForm.aspx?ID=575Government offering surplus items to charities575BLG Blog PostVictoria Princevprince@blg.com | Victoria Prince | 693A30232E777C626C6763616E6164615C767072696E6365 i:0#.w|blgcanada\vprinceCharities and giving - What's newRecent news and updates Attention all registered charities! Public Services and Procurement Canada (PSPC) is inviting registered charities interested in receiving donations of surplus goods from the federal government to identify themselves. PSPC is seeking charities interested in the following items Entertainment items Games and toys Clothing, footwear, outerwear Outdoor equipment Household items Furniture To participate, complete the Request for Information questionnaire currently posted on the Buyandsell.gc.ca site by August 30, 2019. The information you provide will help PSPC determine the demand for donations and evaluate the viability of a program for donating Government of Canada surplus goods. <h1>Charities and giving - What's new</h1><h2>Recent news and updates:</h2><p>Attention all registered charities! Public Services and Procurement Canada (PSPC) is inviting registered charities interested in receiving donations of surplus goods from the federal government to identify themselves.</p><p>PSPC is seeking charities interested in the following items:</p><ul style="list-style-type:disc;"><li>Entertainment items</li><li>Games and toys</li><li>Clothing, footwear, outerwear</li><li>Outdoor equipment</li><li>Household items</li><li>Furniture</li></ul><p>To participate, complete the <a href="https://buyandsell.gc.ca/procurement-data/tender-notice/PW-19-00880845">Request for Information questionnaire</a> currently posted on the Buyandsell.gc.ca site by August 30, 2019. The information you provide will help PSPC determine the demand for donations and evaluate the viability of a program for donating Government of Canada surplus goods.<br></p><p><br></p>7/18/2019 4:00:00 AM2019-07-18T04:00:00ZTrue1float;#7.00000000000000float;#2019.00000000000string;#Julyfloat;#201907.000000000GP0|#696599a5-e2e1-43a1-8414-66747294ab96;L0|#0696599a5-e2e1-43a1-8414-66747294ab96|Donations/Fundraising;GTSet|#be1313dc-bb7d-47da-bdde-8d7d979d477a;GP0|#43895e49-9068-49a6-9f7a-03c16d57aff7;L0|#043895e49-9068-49a6-9f7a-03c16d57aff7|Tax/CRA UpdatesDonations/Fundraising;Tax/CRA Updates
What Duty Does a City Owe to an Individual Who Gets Assaulted on Its Propertyhttps://blog.blg.com/nfp/Lists/Blog Posts/DispForm.aspx?ID=576What Duty Does a City Owe to an Individual Who Gets Assaulted on Its Property576BLG Blog PostRuby Egit;Kevin A. McGivneyregit@blg.com | Ruby Egit | 693A30232E777C626C6763616E6164615C7265676974 i:0#.w|blgcanada\regit;kmcgivney@blg.com | Kevin A. McGivney | 693A30232E777C626C6763616E6164615C6B6D63676976656E i:0#.w|blgcanada\kmcgiven ​McAllister v. The City of Calgary, 2019 ABCA 214 <p>​McAllister v. The City of Calgary, 2019 ABCA 214<br></p>A city’s duty of care is the focus of McAllister v. The City of Calgary, 2019 ABCA 214. The City of Calgary (City) owns and operates a public transit system. At one of the stations, there is an open-air pedestrian overpass that provides pedestrian access to the station. The overpass is open 24 hours a day and there are no restrictions on access to it.The plaintiff was with a friend, Chelsea, walking across the overpass when they saw Chelsea’s ex-boyfriend and a friend. Chelsea’s ex-boyfriend “just lost it” when he saw her with a “perceived rival” and he and his friend proceeded to assault the plaintiff for approximately 20 minutes. The incident went unnoticed by video surveillance monitoring personnel. The plaintiff brought the action against the City of Calgary only. The Court of Appeal (Court) considered whether the City was the occupier of the pedestrian overpass and the scope of the duty and standard of care owed by the City under the Occupiers' Liability Act, RSA 2000, c O-4 (the Alberta OLA).Was the City an Occupier of the Overpass?The Alberta OLA defines an occupier as a person who is in physical possession of premises or has responsibility for and control over the condition of the premises, the activities conducted on those premises and the persons allowed to enter those premises.Although the overpass was open 24 hours a day, had no restrictions to access, and the City did not have staff present in the area the majority of the time, the Court nonetheless found that the City was an occupier of the overpass. In making this finding, the Court emphasized that the City built, owned and maintained the overpass and could block access to it if it chose to do so. Further, City personnel had the authority to order anyone to leave the overpass. These factors were suggestive of the fact that the City had the requisite control and responsibility of the premises pursuant to the Alberta OLA and therefore qualifies as an occupier.Standard of Care is Not UniversalSection 5 of the Alberta OLA statesAn occupier of premises owes a duty to every visitor on the occupier’s premises to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which the visitor is invited or permitted by the occupier to be there or is permitted by law to be there.Notwithstanding that the City was an occupier of the overpass, the Court found that the standard of care is not universal. The Court emphasized the importance of the nature and function of the premises in determining the level of control and, therefore, the standard of care. The Court noted that the standard of care will vary between open public spaces such as a sidewalk, park or pedestrian overpass as compared to a building in which the City conducts its business. In this case, the Court found that the City had little real control over who used the overpass and the conduct of persons on it and, therefore, engaged a less expansive duty than would be required in the public transit station itself.While the City has regard for the overall safety of the pedestrian overpass, there is no reasonable expectation that that the City will be automatically responsible for crimes that are committed on it. The standard of care on the City with respect to the overpass is to have systems in place that could reasonably detect and respond to assaults and other events.The Duty to Prevent Crime and Damage Caused by Third PartiesThe Court found that where a tort is committed by a third party on City property, the nature of the third party’s tort becomes relevant in determining the standard of care of the occupier of the premises where the tort occurred. The Court explained that an occupier will only be held responsible for failing to prevent damage caused by the intentional tort of a third party in narrow circumstances. It emphasized that the amount of control of the occupier over the third party was a key factor in determining the standard of care. As an occupier will generally have less control over third parties who engage in intentional torts, the standard of care is lower in those situations.In this case, the City had no control over the action of the third parties who assaulted the plaintiff, especially as the third parties’ violent actions were spontaneous. As a result, the Court did not find the City liable for the assault itself.Standard of Care for Detecting and Responding to AssaultThe standard of care requires the City to respond to an assault in a reasonable time having regard to all the circumstances. The Court found that the standard of care allows the City a reasonable time to first detect the assault (including contacting security personnel or police) and then a reasonable time to respond (i.e. for the security personnel to arrive at the scene).In this case, the Court found that there would be a reasonable probability that the assault on the respondent should have been detected within five minutes if adequate monitoring had been in place. Once the assault was detected and a call for assistance was made, a response could have reasonably been expected in five to ten minutes after receipt of the call. In this case, the City didn’t respond at all. As a result, the City was found liable for the damages that occurred between the time they ought to have responded to the assault and the end of the assault. The City was not responsible for the entirety of the damages, but rather, only for the incremental damages suffered by the plaintiff after 10 minutes, being what the Court determined would be a reasonable response time.Implications for Other ProvincesWe note that this decision may also have implications for other provinces with similarly worded Occupiers' Liability Acts, such as Ontario. However, it is important to note there may be slight differences in each province, which will make a close review of the relevant legislation against case law from other provinces important. <p style="box-sizing:border-box;color:#4d4d4d;font-family:arial, helvetica, sans-serif;font-size:13.93px;line-height:22.28px;text-shadow:none;">A city’s duty of care is the focus of <a href="http://canlii.ca/t/j0lcf" target="_blank" style="box-sizing:border-box;color:#295077;cursor:pointer;text-shadow:none;"><em style="box-sizing:border-box;text-shadow:none;"> McAllister v. The City of Calgary</em>, 2019 ABCA 214</a>. The City of Calgary (City) owns and operates a public transit system. At one of the stations, there is an open-air pedestrian overpass that provides pedestrian access to the station. The overpass is open 24 hours a day and there are no restrictions on access to it.</p><p style="box-sizing:border-box;color:#4d4d4d;font-family:arial, helvetica, sans-serif;font-size:13.93px;line-height:22.28px;text-shadow:none;">The plaintiff was with a friend, Chelsea, walking across the overpass when they saw Chelsea’s ex-boyfriend and a friend. Chelsea’s ex-boyfriend “just lost it” when he saw her with a “perceived rival” and he and his friend proceeded to assault the plaintiff for approximately 20 minutes. The incident went unnoticed by video surveillance monitoring personnel. The plaintiff brought the action against the City of Calgary only. The Court of Appeal (Court) considered whether the City was the occupier of the pedestrian overpass and the scope of the duty and standard of care owed by the City under the <em style="box-sizing:border-box;text-shadow:none;">Occupiers' Liability Act</em>, RSA 2000, c O-4 (the Alberta OLA).</p><h4 style="box-sizing:border-box;color:#295077;font-family:arial, helvetica, sans-serif;font-size:22.53px;font-weight:700;line-height:31.54px;margin:25px 0px 10px;text-shadow:none;">Was the City an Occupier of the Overpass?</h4><p style="box-sizing:border-box;color:#4d4d4d;font-family:arial, helvetica, sans-serif;font-size:13.93px;line-height:22.28px;text-shadow:none;">The Alberta OLA defines an occupier as a person who is in physical possession of premises or has responsibility for and control over the condition of the premises, the activities conducted on those premises and the persons allowed to enter those premises.</p><p style="box-sizing:border-box;color:#4d4d4d;font-family:arial, helvetica, sans-serif;font-size:13.93px;line-height:22.28px;text-shadow:none;">Although the overpass was open 24 hours a day, had no restrictions to access, and the City did not have staff present in the area the majority of the time, the Court nonetheless found that the City was an occupier of the overpass. In making this finding, the Court emphasized that the City built, owned and maintained the overpass and could block access to it if it chose to do so. Further, City personnel had the authority to order anyone to leave the overpass. These factors were suggestive of the fact that the City had the requisite control and responsibility of the premises pursuant to the Alberta OLA and therefore qualifies as an occupier.</p><h4 style="box-sizing:border-box;color:#295077;font-family:arial, helvetica, sans-serif;font-size:22.53px;font-weight:700;line-height:31.54px;margin:25px 0px 10px;text-shadow:none;">Standard of Care is Not Universal</h4><p style="box-sizing:border-box;color:#4d4d4d;font-family:arial, helvetica, sans-serif;font-size:13.93px;line-height:22.28px;text-shadow:none;">Section 5 of the Alberta OLA states:</p><p style="box-sizing:border-box;color:#4d4d4d;font-family:arial, helvetica, sans-serif;font-size:13.93px;line-height:22.28px;margin-left:40px;text-shadow:none;">An occupier of premises owes a duty to every visitor on the occupier’s premises to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which the visitor is invited or permitted by the occupier to be there or is permitted by law to be there.</p><p style="box-sizing:border-box;color:#4d4d4d;font-family:arial, helvetica, sans-serif;font-size:13.93px;line-height:22.28px;text-shadow:none;">Notwithstanding that the City was an occupier of the overpass, the Court found that the standard of care is not universal. The Court emphasized the importance of the nature and function of the premises in determining the level of control and, therefore, the standard of care. The Court noted that the standard of care will vary between open public spaces such as a sidewalk, park or pedestrian overpass as compared to a building in which the City conducts its business. In this case, the Court found that the City had little real control over who used the overpass and the conduct of persons on it and, therefore, engaged a less expansive duty than would be required in the public transit station itself.</p><p style="box-sizing:border-box;color:#4d4d4d;font-family:arial, helvetica, sans-serif;font-size:13.93px;line-height:22.28px;text-shadow:none;">While the City has regard for the overall safety of the pedestrian overpass, there is no reasonable expectation that that the City will be automatically responsible for crimes that are committed on it. The standard of care on the City with respect to the overpass is to have systems in place that could reasonably detect and respond to assaults and other events.</p><h4 style="box-sizing:border-box;color:#295077;font-family:arial, helvetica, sans-serif;font-size:22.53px;font-weight:700;line-height:31.54px;margin:25px 0px 10px;text-shadow:none;">The Duty to Prevent Crime and Damage Caused by Third Parties</h4><p style="box-sizing:border-box;color:#4d4d4d;font-family:arial, helvetica, sans-serif;font-size:13.93px;line-height:22.28px;text-shadow:none;">The Court found that where a tort is committed by a third party on City property, the nature of the third party’s tort becomes relevant in determining the standard of care of the occupier of the premises where the tort occurred. The Court explained that an occupier will only be held responsible for failing to prevent damage caused by the intentional tort of a third party in narrow circumstances. It emphasized that the amount of control of the occupier over the third party was a key factor in determining the standard of care. As an occupier will generally have less control over third parties who engage in intentional torts, the standard of care is lower in those situations.</p><p style="box-sizing:border-box;color:#4d4d4d;font-family:arial, helvetica, sans-serif;font-size:13.93px;line-height:22.28px;text-shadow:none;">In this case, the City had no control over the action of the third parties who assaulted the plaintiff, especially as the third parties’ violent actions were spontaneous. As a result, the Court did not find the City liable for the assault itself.</p><h4 style="box-sizing:border-box;color:#295077;font-family:arial, helvetica, sans-serif;font-size:22.53px;font-weight:700;line-height:31.54px;margin:25px 0px 10px;text-shadow:none;">Standard of Care for Detecting and Responding to Assault</h4><p style="box-sizing:border-box;color:#4d4d4d;font-family:arial, helvetica, sans-serif;font-size:13.93px;line-height:22.28px;text-shadow:none;">The standard of care requires the City to respond to an assault in a reasonable time having regard to all the circumstances. The Court found that the standard of care allows the City a reasonable time to first detect the assault (including contacting security personnel or police) and then a reasonable time to respond (<em style="box-sizing:border-box;text-shadow:none;">i.e. </em>for the security personnel to arrive at the scene).</p><p style="box-sizing:border-box;color:#4d4d4d;font-family:arial, helvetica, sans-serif;font-size:13.93px;line-height:22.28px;text-shadow:none;">In this case, the Court found that there would be a reasonable probability that the assault on the respondent should have been detected within five minutes if adequate monitoring had been in place. Once the assault was detected and a call for assistance was made, a response could have reasonably been expected in five to ten minutes after receipt of the call. In this case, the City didn’t respond at all. As a result, the City was found liable for the damages that occurred between the time they ought to have responded to the assault and the end of the assault. The City was not responsible for the entirety of the damages, but rather, only for the incremental damages suffered by the plaintiff after 10 minutes, being what the Court determined would be a reasonable response time.</p><h4 style="box-sizing:border-box;color:#295077;font-family:arial, helvetica, sans-serif;font-size:22.53px;font-weight:700;line-height:31.54px;margin:25px 0px 10px;text-shadow:none;">Implications for Other Provinces</h4><p style="box-sizing:border-box;color:#4d4d4d;font-family:arial, helvetica, sans-serif;font-size:13.93px;line-height:22.28px;margin-bottom:0px;text-shadow:none;">We note that this decision may also have implications for other provinces with similarly worded Occupiers' Liability Acts, such as Ontario. However, it is important to note there may be slight differences in each province, which will make a close review of the relevant legislation against case law from other provinces important.<br></p><p><br></p>7/18/2019 4:00:00 AM2019-07-18T04:00:00ZTrue1float;#7.00000000000000float;#2019.00000000000string;#Julyfloat;#201907.000000000GP0|#9328c50b-1860-4c9a-9849-2aa250cbb500;L0|#09328c50b-1860-4c9a-9849-2aa250cbb500|Litigation;GTSet|#be1313dc-bb7d-47da-bdde-8d7d979d477aLitigation
Denunciation by Whistleblowers: was the Ex-Employee’s Defamation Suit Abusive? https://blog.blg.com/nfp/Lists/Blog Posts/DispForm.aspx?ID=574Denunciation by Whistleblowers: was the Ex-Employee’s Defamation Suit Abusive? 574BLG Blog PostRose Massicottermassicotte@blg.com | Rose Massicotte | 693A30232E777C626C6763616E6164615C726D61737369636F747465 i:0#.w|blgcanada\rmassicotte Can a senior executive who has been dismissed based on allegations made in an anonymous letter, and who has signed a release and discharge agreement with his employer, later take suit against the presumed whistleblowers, as well as his ex-employer and its directors? In its recent decision in Fournier c. Brouillet1, the Superior Court reiterated that filing a legal proceeding before a court of law is not something to be undertaken lightly, merely to cast about in search of a cause of action.The Facts Mr. Éric Fournier (Fournier) held the position of General Manager of the Association Touristique Régionale de la Montérégie (the Association), a not-for-profit organization founded in 2002. In January 2014, the Association's directors received an anonymous letter in the mail expressing the desire of the employees to have Fournier removed from his position as general manager. The letter criticized him for lack of motivation, competence and vision. Following an investigation conducted by an outside consultant, the Association's directors concluded that Fournier's continuation in his position was unrealistic, considering the deterioration of his relationship with the employees. The Association then offered Fournier a choice between resigning voluntarily and being dismissed. Fournier decided to resign and signed a severance agreement, together with a release and discharge agreement, providing "the employee hereby releases, discharges and grants a full and final receipt to the employer." However, the release and discharge agreement did not specifically mention the Association's employees or its officers. In November 2014, Fournier filed a lawsuit for damage to his reputation against seven employees and four directors of the Association, claiming from them $320,000, plus extrajudicial fees. Alleging that he had sustained both moral and material damages as a result of the sending of the anonymous letter, he further claimed punitive damages. During the proceedings, Fournier's original application was amended four times, increasing the claim from $320,000 to $3,051,614.16, and reducing the number of defendants from 11 to nine, including the Association. The court further rendered a case management order striking out certain defendants named in the allegations of unjustified dismissal — a cause of action separate from that relating to the alleged defamation. Fournier nonetheless took another such action, asking the court to strike out those allegations a second time. Fournier also launched a campaign against the Association in the media. Simultaneously with Fournier's action, the Association applied to the court to reserve its legal recourses, so as to permit it to file a claim for damages for abuse of process. The Decision The defamation suit In a decision dated January 16, 2019, the Superior Court held that no defamation had been demonstrated. Since Fournier had been unable to establish the identity of the author or authors of the anonymous letter, he had not met his burden of proof in demonstrating a wrongful injury to his reputation. Moreover, several individuals, even from outside the Association, had disapproved of Fournier's working methods and had requested the Association to let him go. In any event, the defamation action was prescribed, because it had been instituted more than one year after release of the contents of the consultant's report. Enforceability of the release and discharge agreement Furthermore, the release and discharge agreement concluded between the Association and Fournier rendered his action inadmissible, both against the Association and against its directors. The parties' intention was to settle all of the consequences connected with the termination of Fournier's employment with the Association. In addition, the Association's directors had acted in good faith throughout the whole process. It is noteworthy that if the release and discharge agreement had been drafted clearly and had protected the directors and employees as fully as it did the employer, there would have been no ambiguity as to the inadmissibility of Fournier's action against them. Abuse of process Regarding the abuse of process, the court allowed the Association's application. Indeed, Fournier's statements to the media, his behaviour during his testimony, as well as the multiple amendments to his written proceedings, were all instruments serving to identify the author or authors of the anonymous letter, which identity he was nevertheless unable to establish. Costs Lastly, Fournier's claim for reimbursement of his extrajudicial fees was held unfounded and was dismissed.Conclusion This decision is interesting in a number of respects. First, it shows that whistleblowers need not necessarily live in dread of being sued for defamation. The terminated employee must be able to meet his or her burden of demonstrating some reputational harm, by proving a fault, an injury and a causal connection, which will obviously not be the case if the allegations are unfounded. Secondly, the decision reminds us of the principle that judicial proceedings may not be used for purely exploratory purposes. Finally, it highlights the importance of always concluding a release and discharge agreement with the employee who is being terminated, and of drafting such documents in clear and complete terms that will prevent the ex-employee from suing not only the employer, but also the other employees, the officers, directors, shareholders and other agents of the company, and even its insurers, where applicable. 1 2019 QCCS 62. <p>Can a senior executive who has been dismissed based on allegations made in an anonymous letter, and who has signed a release and discharge agreement with his employer, later take suit against the presumed whistleblowers, as well as his ex-employer and its directors? In its recent decision in <em>Fournier </em>c<em>. Brouillet</em><sup>1</sup>, the Superior Court reiterated that filing a legal proceeding before a court of law is not something to be undertaken lightly, merely to cast about in search of a cause of action.</p><h2>The Facts</h2><p>Mr. Éric Fournier (Fournier) held the position of General Manager of the Association Touristique Régionale de la Montérégie (the Association), a not-for-profit organization founded in 2002. In January 2014, the Association's directors received an anonymous letter in the mail expressing the desire of the employees to have Fournier removed from his position as general manager. The letter criticized him for lack of motivation, competence and vision.</p><p>Following an investigation conducted by an outside consultant, the Association's directors concluded that Fournier's continuation in his position was unrealistic, considering the deterioration of his relationship with the employees. The Association then offered Fournier a choice between resigning voluntarily and being dismissed. Fournier decided to resign and signed a severance agreement, together with a release and discharge agreement, providing: "the employee hereby releases, discharges and grants a full and final receipt to the employer." However, the release and discharge agreement did not specifically mention the Association's employees or its officers.</p><p>In November 2014, Fournier filed a lawsuit for damage to his reputation against seven employees and four directors of the Association, claiming from them $320,000, plus extrajudicial fees. Alleging that he had sustained both moral and material damages as a result of the sending of the anonymous letter, he further claimed punitive damages.</p><p>During the proceedings, Fournier's original application was amended four times, increasing the claim from $320,000 to $3,051,614.16, and reducing the number of defendants from 11 to nine, including the Association. The court further rendered a case management order striking out certain defendants named in the allegations of unjustified dismissal — a cause of action separate from that relating to the alleged defamation. Fournier nonetheless took another such action, asking the court to strike out those allegations a second time. Fournier also launched a campaign against the Association in the media. </p><p>Simultaneously with Fournier's action, the Association applied to the court to reserve its legal recourses, so as to permit it to file a claim for damages for abuse of process. </p><h2>The Decision</h2><p><strong>The defamation suit</strong></p><p>In a decision dated January 16, 2019, the Superior Court held that no defamation had been demonstrated. Since Fournier had been unable to establish the identity of the author or authors of the anonymous letter, he had not met his burden of proof in demonstrating a wrongful injury to his reputation. Moreover, several individuals, even from outside the Association, had disapproved of Fournier's working methods and had requested the Association to let him go. In any event, the defamation action was prescribed, because it had been instituted more than one year after release of the contents of the <em>consultant's report. </em></p><p><strong>Enforceability of the release and discharge agreement</strong></p><p>Furthermore, the release and discharge agreement concluded between the Association and Fournier rendered his action inadmissible, both against the Association and against its directors. The parties' intention was to settle all of the consequences connected with the termination of Fournier's employment with the Association. In addition, the Association's directors had acted in good faith throughout the whole process.</p><p>It is noteworthy that if the release and discharge agreement had been drafted clearly and had protected the directors and employees as fully as it did the employer, there would have been no ambiguity as to the inadmissibility of Fournier's action against them. </p><p><strong>Abuse of process</strong></p><p>Regarding the abuse of process, the court allowed the Association's application. Indeed, Fournier's statements to the media, his behaviour during his testimony, as well as the multiple amendments to his written proceedings, were all instruments serving to identify the author or authors of the anonymous letter, which identity he was nevertheless unable to establish.</p><p><strong>Costs</strong></p><p>Lastly, Fournier's claim for reimbursement of his extrajudicial fees was held unfounded and was dismissed.</p><h2>Conclusion</h2><p>This decision is interesting in a number of respects. First, it shows that whistleblowers need not necessarily live in dread of being sued for defamation. The terminated employee must be able to meet his or her burden of demonstrating some reputational harm, by proving a fault, an injury and a causal connection, which will obviously not be the case if the allegations are unfounded. Secondly, the decision reminds us of the principle that judicial proceedings may not be used for purely exploratory purposes. Finally, it highlights the importance of always concluding a release and discharge agreement with the employee who is being terminated, and of drafting such documents in clear and complete terms that will prevent the ex-employee from suing not only the employer, but also the other employees, the officers, directors, shareholders and other agents of the company, and even its insurers, where applicable.</p><p><br></p><p><sup>1</sup> 2019 QCCS 62. </p>4/5/2019 4:00:00 AM2019-04-05T04:00:00ZTrue1float;#4.00000000000000float;#2019.00000000000string;#Aprilfloat;#201904.000000000GP0|#1f545747-a71f-4c1c-94c9-a8e53c3f977f;L0|#01f545747-a71f-4c1c-94c9-a8e53c3f977f|Employment Law;GTSet|#be1313dc-bb7d-47da-bdde-8d7d979d477aEmployment Law
N.L. Supreme Court: Undue Hardship Can Arise from Inability to Measure Cannabis Impairment and Manage Workplace Riskhttps://blog.blg.com/nfp/Lists/Blog Posts/DispForm.aspx?ID=573N.L. Supreme Court: Undue Hardship Can Arise from Inability to Measure Cannabis Impairment and Manage Workplace Risk573BLG Blog PostOdessa O'Delloodell@blg.com | Odessa O'Dell | 693A30232E777C626C6763616E6164615C6F6F64656C6C i:0#.w|blgcanada\oodell Even before the legalization of cannabis in Canada, employers were in the throes of dealing with the impact of medically prescribed cannabis in the workplace. This has been particularly challenging for safety-sensitive employers struggling to strike the delicate balance between both safety and human rights obligations. The recent decision from the Newfoundland and Labrador Supreme Court in International Brotherhood of Electrical Workers, Local 1620 v. Lower Churchill Transmission Construction Employers' Association Inc.1 (Lower Churchill) is an important decision on the limits of accommodation for employees who may be using medically prescribed cannabis in a safety-sensitive workplace.Background The employee, a labourer of more than 30 years, had been suffering from chronic pain due to Crohn's disease and osteoarthritis for a decade or more. Despite attempting several conventional therapies and medications without success, he was eventually prescribed medical cannabis which provided him with greater pain relief. The employee disclosed his use of medical cannabis, after which he was denied employment on the Lower Churchill Transmission Construction Project because of concerns regarding the potential for impairment in the performance of safety-sensitive duties. A grievance was subsequently filed; the union took the position that the refusal was discriminatory and contrary to both the collective agreement and the human rights legislation. Both the union and the employer agreed that the employee had a disability which required cannabis to effectively treat. It was also accepted that there were no non-safety-sensitive positions available.Arbitrator and Supreme Court Decisions At arbitration, the primary question was whether the employer had met its duty to accommodate the employee's disability without undue hardship. There was competing expert evidence from general practitioners, pharmacologists, toxicologists and pain management specialists as to the effects of cannabis and how long any impairment might last. The arbitrator found that medical cannabis can impair the ability of a worker to function safely in a safety-sensitive environment, that this impairment can last up to 24 hours, that the employee may be unable to determine that they remain impaired, and that there are no testing methods available to accurately determine impairment from cannabis use in the workplace. As such, the arbitrator concluded that undue hardship would arise if the employer were to put the employee to work. In other words, because the employer could not adequately measure impairment — both in terms of effect and duration — it could not appropriately manage the safety risk and thus, there would be an unacceptable increased safety risk if the employee were to return to the workplace. In dismissing the judicial review application, Justice Daniel M. Boone found that the arbitrator's findings were within the range of reasonable outcomes. The union argued that the employer was obligated to hire the employee unless they could demonstrate an impairment. On that point, Justice Boone affirmed that once the issue of possible impairment had been raised, the employer was reasonably entitled to request medical information which demonstrated the employee's ability to work safely. There was no obligation on the part of the employer to hire the employee to assess the risk first-hand.Takeaway As there are relatively few reported decisions on this issue, the Lower Churchill decision will no doubt be of interest, and may well be of some persuasive value in future decisions as they relate the limitations associated with an employer's duty to accommodate when dealing with an inability to measure and mitigate the impairment associated with medically prescribed cannabis. 1 2019 NLSC 48 <p>Even before the legalization of cannabis in Canada, employers were in the throes of dealing with the impact of medically prescribed cannabis in the workplace. This has been particularly challenging for safety-sensitive employers struggling to strike the delicate balance between both safety and human rights obligations.</p><p>The recent decision from the Newfoundland and Labrador Supreme Court in <em>International Brotherhood of Electrical Workers, Local 1620 v. Lower Churchill Transmission Construction Employers' Association Inc.</em><em><sup>1</sup></em><em> (Lower Churchill)</em> is an important decision on the limits of accommodation for employees who may be using medically prescribed cannabis in a safety-sensitive workplace.</p><h4><strong>Background</strong></h4><p>The employee, a labourer of more than 30 years, had been suffering from chronic pain due to Crohn's disease and osteoarthritis for a decade or more. Despite attempting several conventional therapies and medications without success, he was eventually prescribed medical cannabis which provided him with greater pain relief. </p><p>The employee disclosed his use of medical cannabis, after which he was denied employment on the Lower Churchill Transmission Construction Project because of concerns regarding the potential for impairment in the performance of safety-sensitive duties. A grievance was subsequently filed; the union took the position that the refusal was discriminatory and contrary to both the collective agreement and the human rights legislation. </p><p>Both the union and the employer agreed that the employee had a disability which required cannabis to effectively treat. It was also accepted that there were no non-safety-sensitive positions available.</p><h4><strong>Arbitrator and Supreme Court Decisions</strong></h4><p>At arbitration, the primary question was whether the employer had met its duty to accommodate the employee's disability without undue hardship. </p><p>There was competing expert evidence from general practitioners, pharmacologists, toxicologists and pain management specialists as to the effects of cannabis and how long any impairment might last. The arbitrator found that medical cannabis can impair the ability of a worker to function safely in a safety-sensitive environment, that this impairment can last up to 24 hours, that the employee may be unable to determine that they remain impaired, and that there are no testing methods available to accurately determine impairment from cannabis use in the workplace. </p><p>As such, the arbitrator concluded that undue hardship would arise if the employer were to put the employee to work. In other words, because the employer could not adequately measure impairment — both in terms of effect and duration — it could not appropriately manage the safety risk and thus, there would be an unacceptable increased safety risk if the employee were to return to the workplace. </p><p>In dismissing the judicial review application, Justice Daniel M. Boone found that the arbitrator's findings were within the range of reasonable outcomes. The union argued that the employer was obligated to hire the employee unless they could demonstrate an impairment. On that point, Justice Boone affirmed that once the issue of possible impairment had been raised, the employer was reasonably entitled to request medical information which demonstrated the employee's ability to work safely. There was no obligation on the part of the employer to hire the employee to assess the risk first-hand.</p><h4><strong>Takeaway</strong></h4><p>As there are relatively few reported decisions on this issue, the <em>Lower Churchill </em>decision will no doubt be of interest, and may well be of some persuasive value in future decisions as they relate the limitations associated with an employer's duty to accommodate when dealing with an inability to measure and mitigate the impairment associated with medically prescribed cannabis. </p><p><br></p><p><sup>1</sup> 2019 NLSC 48 </p>4/4/2019 4:00:00 AM2019-04-04T04:00:00ZTrue1float;#4.00000000000000float;#2019.00000000000string;#Aprilfloat;#201904.000000000GP0|#1f545747-a71f-4c1c-94c9-a8e53c3f977f;L0|#01f545747-a71f-4c1c-94c9-a8e53c3f977f|Employment Law;GTSet|#be1313dc-bb7d-47da-bdde-8d7d979d477aEmployment Law
Ontario Labour Relations Board Sheds Light on Severance Pay Calculation Ruleshttps://blog.blg.com/nfp/Lists/Blog Posts/DispForm.aspx?ID=572Ontario Labour Relations Board Sheds Light on Severance Pay Calculation Rules572BLG Blog PostMaria Gerginmgergin@blg.com | Maria Gergin | 693A30232E777C626C6763616E6164615C6D67657267696E i:0#.w|blgcanada\mgergin In its December 2018 decision in Doug Hawkes v. Max Aicher (North America) Limited (Hawkes), the Ontario Labour Relations Board (OLRB) addressed the issue of whether an employer's global payroll should be considered in determining an employee's entitlement to severance pay under the Employment Standards Act, 2000 (the ESA). As Ontario employers are aware, section 64 of the ESA requires an employer who terminates an employee's employment without cause to provide an employee with severance pay, where the employee has five or more years of service and the employer has a payroll of at least $2.5 million. Since the Ontario Superior Court's decision in Paquette v. Quadraspec Inc. (Paquette), there has been some question as to whether, for the purposes of determining the $2.5 million threshold, the calculation of an employer's payroll should be restricted to its payroll in Ontario or whether the payroll outside of Ontario must also be considered. Paquette had held that the severance pay obligation set out at section 64 of the ESA required a consideration of the employer's national payroll and not just its Ontario payroll in determining whether the employer had met the $2.5 million threshold. This finding was contrary to a well-established line of case law which had interpreted the $2.5 million threshold to apply only to an employer's Ontario payroll.The Hawkes Decision In Hawkes, the applicant was a former employee of Max Aicher (North America) Limited (MANA), which had operations in Ontario. MANA was a wholly owned subsidiary of Max Aicher GmbH & Co KG (MAG), a company incorporated in Germany. In 2015, the applicant's employment was terminated without cause. At the time, he had more than five years of service but was not paid severance pay under the ESA. The applicant filed an ESA complaint seeking unpaid vacation pay, termination pay, and severance pay. The Employment Standards Officer (ESO) determined that the applicant was entitled to vacation pay and termination pay. She concluded, however, that he was not entitled to severance pay, as MANA did not have a payroll of $2.5 million or more in Ontario. In arriving at this conclusion, the ESO determined that it was only employee salaries within Ontario that were to be considered in calculating the payroll threshold. The applicant appealed the ESO's decision to the OLRB. At the OLRB, the question to be considered was whether the payrolls of both MANA and MAG ought to be considered in determining MANA's total payroll for the purposes of calculating severance under section 64 of the ESA. The applicant relied upon the Ontario Superior Court's decision in Paquette, to argue that the OLRB should not restrict the computation of his former employer's total payroll to only its Ontario operations. The applicant argued that the employer in Paquette had operations in both Ontario and Québec, and that the Court had determined that it was appropriate to consider the combined payroll in both provinces in determining whether or not the employer had met the $2.5 million threshold. The OLRB rejected the applicant's argument that the reasoning in Paquette should be applied to the present circumstance to include a related employer's global payroll. In particular, the OLRB found that The facts of Paquette were distinguishable from the present case. In Paquette, the employer had operations in both Ontario and Québec. In the present case, the related employer, MAG, did not have any employees in Ontario. Paquette did not consider the interaction between sections 3 and 64 of the ESA. Section 3 of the ESA provides that the ESA applies to employees who perform work in Ontario. The circumstances of the present case did not warrant a departure from the pre-Paquette line of cases, which had held that section 64 must be read in light of section 3 of the ESA, resulting in an interpretation of the severance threshold as applicable only to Ontario payroll. Notably, the OLRB made the following general finding "[W]hile an employer may have operations and payrolls outside Ontario, it is only Ontario-based employment and operations that is captured by section 3 and therefore section 64 of the Act." On the basis of the above-noted reasoning, the OLRB determined that for the purposes of the severance pay obligation under section 64 of the ESA, only MANA's payroll in Ontario, and not MAG's global payroll, should be considered. As such, the OLRB upheld the ESO's finding that Hawkes was not entitled to severance pay at termination.Takeaway for Employers The decision in Hawkes confirms that an Ontario employer will not be liable for severance payments if the company's Ontario payroll is less than $2.5 million, even if the Ontario employer's parent company has a global payroll in excess of $2.5 million. This interpretation of the severance obligations under the ESA is favourable for employers who have operations outside of Ontario. What remains to be seen is whether future adjudicators will follow the OLRB's reasoning in Hawkes when confronted with a fact scenario outside of the related employer context similar to that in Paquette. 1 2018 CanLII 125999 (ON LRB) 2 [2014] O. J. No. 5484 <p>In its December 2018 decision in <em>Doug Hawkes v. Max Aicher (North America) Limited (Hawkes)</em>, the Ontario Labour Relations Board (OLRB) addressed the issue of whether an employer's global payroll should be considered in determining an employee's entitlement to severance pay under the <em>Employment Standards Act, 2000</em> (the ESA). </p><p>As Ontario employers are aware, section 64 of the ESA requires an employer who terminates an employee's employment without cause to provide an employee with severance pay, where the employee has five or more years of service and the employer has a payroll of at least $2.5 million.</p><p>Since the Ontario Superior Court's decision in <em>Paquette v. Quadraspec Inc. (Paquette)</em>, there has been some question as to whether, for the purposes of determining the $2.5 million threshold, the calculation of an employer's payroll should be restricted to its payroll in Ontario or whether the payroll outside of Ontario must also be considered.</p><p><em>Paquette</em> had held that the severance pay obligation set out at section 64 of the ESA required a consideration of the employer's national payroll and not just its Ontario payroll in determining whether the employer had met the $2.5 million threshold. This finding was contrary to a well-established line of case law which had interpreted the $2.5 million threshold to apply only to an employer's Ontario payroll.</p><h4><strong>The </strong><em><strong>Hawkes</strong></em><strong> Decision</strong></h4><p>In <em>Hawkes, </em>the applicant was a former employee of Max Aicher (North America) Limited (MANA), which had operations in Ontario. MANA was a wholly owned subsidiary of Max Aicher GmbH & Co KG (MAG), a company incorporated in Germany. </p><p>In 2015, the applicant's employment was terminated without cause. At the time, he had more than five years of service but was not paid severance pay under the ESA. The applicant filed an ESA complaint seeking unpaid vacation pay, termination pay, and severance pay. The Employment Standards Officer (ESO) determined that the applicant was entitled to vacation pay and termination pay. She concluded, however, that he was not entitled to severance pay, as MANA did not have a payroll of $2.5 million or more in Ontario. In arriving at this conclusion, the ESO determined that it was only employee salaries within Ontario that were to be considered in calculating the payroll threshold. The applicant appealed the ESO's decision to the OLRB.</p><p>At the OLRB, the question to be considered was whether the payrolls of both MANA and MAG ought to be considered in determining MANA's total payroll for the purposes of calculating severance under section 64 of the ESA.</p><p>The applicant relied upon the Ontario Superior Court's decision in <em>Paquette</em>, to argue that the OLRB should not restrict the computation of his former employer's total payroll to only its Ontario operations. The applicant argued that the employer in <em>Paquette</em> had operations in both Ontario and Québec, and that the Court had determined that it was appropriate to consider the combined payroll in both provinces in determining whether or not the employer had met the $2.5 million threshold. </p><p>The OLRB rejected the applicant's argument that the reasoning in <em>Paquette</em> should be applied to the present circumstance to include a related employer's global payroll. In particular, the OLRB found that: </p><ol><li>The facts of <em>Paquette</em> were distinguishable from the present case. In <em>Paquette</em>, the employer had operations in both Ontario and Québec. In the present case, the related employer, MAG, did not have any employees in Ontario. </li><li><em>Paquette </em>did not consider the interaction between sections 3 and 64 of the ESA. Section 3 of the ESA provides that the ESA applies to employees who perform work in Ontario. </li><li>The circumstances of the present case did not warrant a departure from the pre-<em>Paquette</em> line of cases, which had held that section 64 must be read in light of section 3 of the ESA, resulting in an interpretation of the severance threshold as applicable only to Ontario payroll. </li></ol><p>Notably, the OLRB made the following general finding:</p><p>"[W]hile an employer may have operations and payrolls outside Ontario, it is only Ontario-based employment and operations that is captured by section 3 and therefore section 64 of the Act."</p><p>On the basis of the above-noted reasoning, the OLRB determined that for the purposes of the severance pay obligation under section 64 of the ESA, only MANA's payroll in Ontario, and not MAG's global payroll, should be considered. As such, the OLRB upheld the ESO's finding that <em>Hawkes</em> was not entitled to severance pay at termination.</p><h4><strong>Takeaway for Employers</strong></h4><p>The decision in <em>Hawkes</em> confirms that an Ontario employer will not be liable for severance payments if the company's Ontario payroll is less than $2.5 million, even if the Ontario employer's parent company has a global payroll in excess of $2.5 million. This interpretation of the severance obligations under the ESA is favourable for employers who have operations outside of Ontario. What remains to be seen is whether future adjudicators will follow the OLRB's reasoning in <em>Hawkes</em> when confronted with a fact scenario outside of the related employer context similar to that in <em>Paquette</em>. </p><p><br></p><p><sup>1</sup> 2018 CanLII 125999 (ON LRB)</p><p><sup>2</sup> [2014] O. J. No. 5484 </p>4/3/2019 4:00:00 AM2019-04-03T04:00:00ZTrue1float;#4.00000000000000float;#2019.00000000000string;#Aprilfloat;#201904.000000000GP0|#1f545747-a71f-4c1c-94c9-a8e53c3f977f;L0|#01f545747-a71f-4c1c-94c9-a8e53c3f977f|Employment Law;GTSet|#be1313dc-bb7d-47da-bdde-8d7d979d477aEmployment Law