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Posts tagged: employment law toronto

Are All Employment & Labour Lawyers Created Equal?

By , April 4, 2018 8:47 am

Are there many employment & labour lawyers in Ontario?

There are many employment & labour lawyers working in Ontario – especially in large urban centers like Toronto. I go to a Christmas party each year that is attended by about 150 employment & labour lawyers and it is always sold out. Every employment and labour lawyer, however, is unique. Your challenge is to find the lawyer that best suits your needs.

What does an employment lawyer do?

Some lawyers practice a subspecialty within employment law like workers compensation or pay equity. The lawyers at the MacLeod Law Firm are not specialists; we are employment law generalists.

What kind of services does an employment law generalist provide?

Most employment law generalists draft employment contracts and employment related policies and can make sure employee handbooks comply with Ontario’s employment laws.

It will come as no surprise that most employment lawyers advise on employee terminations and draft severance packages. If necessary our lawyers appear in court or at administrative tribunals like the Ontario Human Rights Tribunal on behalf of our clients.

Helping employers comply with new employment laws has been increasingly important in recent years as the provincial government imposes more and more statutory obligations on employers. The MacLeod Law Firm has a fixed fee service to help employers comply with these new obligations.

Employee protection under the Ontario Human Rights Code and the Accessibility for Ontarians with Disabilities Act has been extended in recent years so most employment lawyers have a good understanding of the province’s human rights laws. We provide human rights advice to a myriad of clients each year – especially on an employer’s obligation to accommodate a disabled employee.

Employee protection under the Ontario Health & Safety Act has also been extended in recent years so most employment lawyers can advise on an employer’s obligations under this law. The MacLeod Law Firm  represents employers who have been charged under OHSA.

What is a labour lawyer?

A labour lawyer provides advice and representations to unionized employers.

What kind of services does a labour lawyer provide?

A labour lawyer can recommend that an employer adopt certain practices and policies that will make employees less inclined to want to join a union.

If a union tries to unionize a workforce then a labour lawyer can respond to the Union’s certification application at the Ontario Labour Relations Board on behalf of the employer.

If a union is certified to represent an employer’s workforce then a labour lawyer can negotiate a collective agreement with the Union on behalf of the employer.

If a union files a grievance under a collective agreement then a labour lawyer can represent the employer at an arbitration hearing.

The MacLeod Law Firm provides all of these services to our unionized clients.

The MacLeod Law Firm – Our Value Proposition

We give an employer confidence and peace of mind on employment law and labour law issues because we quickly and competently deal with workplace issues in a way that makes business sense.

We understand that every client has unique legal needs and each client has a different legal risk tolerance. We get to know our clients and their businesses so the advice we give makes business sense.

If you require the services of an employment and labour lawyer and want to see whether the MacLeod Law Firm is a good fit for your organization, please contact our Managing Partner, Doug MacLeod. For over 30 years he has been advising employers on all aspects of the employment relationship. You can contact Doug directly at 416 317-9894 or at [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

 

Recent Changes to the Employment Standards Act – Part I

By , February 5, 2018 10:00 am

Trying to learn and apply the many recent changes to the Employment Standards Act to your workplace can be a daunting task. We are trying to make the process less intimidating by introducing the changes to you a few at a time.

This blog discusses five of the many changes that were made to Ontario’s employment standards legislation as a result of Bill 148

1.Every employee, including a part-time employee, with at least one week service is entitled to take 10 personal emergency days each year and the first two days are paid. An employee can take this leave for a personal illness, injury or medical emergency for themselves or certain family members, or to deal with an urgent matter for themselves or certain family matters. 

2. A pregnant employee can now take up to an 18 month unpaid leave of absence. This change came into effect about the same time that federal employment insurance legislation was amended to permit employees to collect employment insurance benefits over 18 months.

3. The new way to calculate statutory holiday pay is as follows: the total amount of regular wages earned in the pay period immediately preceding the public holiday, divided by the number of days the employee worked in this period. This new calculation will translate into an increase in statutory holiday pay for many part-time employees. There are currently nine paid statutory holidays under the Employment Standards Act. Make sure you use this calculation for Family Day.

4. An employee with at least three months service can request a change in work schedule or work location. The employer must either grant the request or provide reasons for denying the request. This law is subject to an employer’s duty to accommodate an employee on the basis of disability, family status or any other ground prescribed under the Ontario Human Rights Code.

5. As of April 1, 2018, a part-time employee must receive the same rate of pay as a full-time employee when they perform substantially the same kind of work, their performance requires substantially the same skill, effort and responsibility, and when their work is performed under similar working conditions unless an exemption applies.

For a more comprehensive summary of the Bill 148 changes to Ontario’s Employment Standards Act, click here. 

For 30 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416 317-9894 or at [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

 

What does “failing to take every precaution reasonable in the circumstances for the protection of a worker” mean?

By , January 19, 2018 10:03 am

When the Ministry of Labour lays charges under the Occupational Health and Safety Act (“OHSA”) after a workplace injury it often includes a charge under section 25(2)(h) of OHSA which states that an employer is required to “take every precaution reasonable in the circumstances for the protection of a worker”.

A recent case, Ontario (Labour) v. Quinton Steel (Wellington) Limited, 2017 ONCA 1006 interpreted this rather broad statutory obligation.

The Facts

Martin Vryenhoek died when he fell from a temporary welding platform. The platform was 6 feet and 6 inches tall, did not have guardrails, and no fall arrest equipment was utilized. The employer was charged under the OHSA for, among other things, “failing to take every precaution reasonable in the circumstances for the protection of a worker”. Under the applicable regulation, the installation of guardrails was not specifically required, and the worker was not specifically required to wear fall protection equipment because he was working at a height of less than three metres.

The Trial Decision

The trial justice acquitted the employer, concluding that the applicable regulation was a “complete and discrete code with respect to the requirements for protecting workers from falls in a case such as this.”

The Court of Appeal Decision

The Court of Appeal disagreed with the trial judge and stated that an employer’s duty under section 25(2)(h) to take every precaution reasonable in the circumstances does not depend on the existence of a specific regulation prescribing or proscribing particular conduct. Instead, this Court found an employer’s duty under 25(2)(h) is broader than what is contained in the prescribed regulations. The Court also concluded the trial judge failed to ask whether the installation of guardrails was a reasonable precaution necessary in the circumstances of the case. A new trial has been ordered.

Lessons to be Learned

  • An employer can comply with all of its obligations under the regulations under OHSA and be convicted.
  • The duty to take every precaution reasonable in the circumstances for the protection of a worker is broader than the specific obligations that are set out in OHSA and the accompanying regulations.
  • To be in a position to show it took every precaution reasonable in the circumstances an employer should implement a health & safety program which, among other things, identifies workplace hazards and potentially unsafe situations and implements training and instruction in relation to these hazards and unsafe situations. This can include daily toolbox meetings in some circumstances. For other measures that an employer can introduce, click here.

For over 30 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416 317-9894 or at [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

Employer Alert: Termination Clause UPHELD by Ontario’s Court of Appeal in Nemeth v. Hatch Ltd

By , January 12, 2018 2:20 pm

On Monday, Ontario’s Court of Appeal concluded in Nemeth v. Hatch Ltd., 2018 ONCA 7 that the following termination clause was legally enforceable and that the terminated employee who had been employed for 19 years was entitled to 19 weeks termination pay:

The Termination Clause

The Company’s policy with respect to termination is that employment may be terminated by either party with notice in writing. The notice period shall amount to one week per year of service with a minimum of four weeks or the notice required by the applicable labour legislation.

My guess is that most employment lawyers who have read this decision are scratching their collective heads, and asking, “What?”

This decision will result in many plaintiff side lawyers taking pause and re-evaluating their cases.

Until this case was released many trial judges were bending over backwards to find uncertainty and ambiguity in termination clauses and striking them down which benefited employees. For a summary of some of these cases click here

The decision in Nemeth v. Hatch Ltd. is a good case in point. An enforceable termination clause meant the employee was entitled to 19 weeks termination pay. If the clause had been found to be unenforceable however then the employee would have been entitled to closer to 19 months notice.

Lesson To Be Learned

At the moment, it is extremely difficult if not impossible to guess whether or not an Ontario trial judge will enforce a termination clause in an employment contract. The Court of Appeal has found a number of such clauses to be enforceable however for the last few years trial judges have been finding ways to get around these cases or as, lawyers say, have concluded these decisions are distinguishable.

In Nemeth v. Hatch Ltd. the Court of Appeal may have been trying to bring more certainty to the law as it relates to the enforceability of termination clauses. In the short term, however, I predict that this decision will create more uncertainty in this area of the law.

Doug’s Year End Rant

By , December 19, 2017 8:46 am

Earlier this week I concluded that the rule of law no longer applies in many Ontario workplaces. The epiphany hit me when I was meeting with the Managing Director of a boutique law firm.

When I use the expression “rule of law” I mean the principle that all people and institutions are subject to and accountable to law that is fairly applied and enforced.

The fact is many employers are unaware of many of the laws that apply to them, and the Ontario government is not enforcing many of them.

You would think that a law firm would be aware of the laws that apply to it but the reality is that most small and medium size law firms do not have a dedicated HR person and do not have an employment lawyer on staff.

Here are some of the employment laws that apply to a small firm:

As of December 31, 2017 the Law Society of Upper Canada  – soon to be the Law Society of Ontario – requires: all lawyers to adopt a statement of principles acknowledging their obligation to promote equality, diversity and inclusion, and: all law firms with 10 or more lawyers to develop a human rights/diversity policy dealing with recruitment, retention and promotion. There is much uncertainty relating to the required contents of these documents.

As of December 31, 2017 an employer with 20 or more employees must file a compliance report under the Accessibility for Ontarians with Disabilities Act (“AODA”). By 2015 about 65 % of employers had not complied with the 2012 reporting obligation. In addition, nine new obligations were imposed on small employers under AODA earlier this year including the obligation to notify job applicants that accommodations for disabilities will be provided on request.  

On November 22, 2017 the government passed a myriad of significant changes to Ontario’s employment standards law. Some of the changes became effective immediately and many of the changes will take effect on January 1, 2018.

Although a law firm office is not a particularly dangerous place to work, all employees are required to receive mandatory health & safety awareness training under the Occupational Health & Safety Act and mandatory customer service training under AODA. In addition,  employers with more than 5 employees must prepare, post & review annually a health & safety policy, a workplace harassment policy, and a workplace violence policy. Furthermore, all employers are required to appoint a trained investigator to investigate an incident of workplace harassment, and the employer must have a written complaint and investigation process. The employee need not file a complaint; the obligation is to investigate incidents and formal complaints. If not, the Ministry of Labour can appoint an external investigator at the employer’s expense. 

The list of new obligations that have been imposed on Ontario employers in recent years goes on and on.

You would think a small or medium sized law firm would know about all of its legal obligations and comply with them but I doubt all or even most of these law firms are in compliance.

When reputable, well intentioned small to medium size law firms do not follow the rule of law how can we expect less knowledgeable employers to do so.

So I ask the Ontario government: Will you stop introducing new laws that are not being followed or being enforced, and start educating employers on their obligations? When this education process is complete will you start enforcing these laws?

For over 30 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416 317-9894 or at [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

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