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Posts tagged: Cannabis

Doug’s Top 10 Employment Law Stories of 2018

By , December 27, 2018 9:36 am

In 2018 there were many new developments in the employment law world.

Here are my top 10 stories of the year:

1. Bill 148 Bit the Dust

Ontario’s Employment Standards Act received its last major update in 2000. During the last three years, the Liberal provincial government consulted widely and introduced comprehensive changes to this law by way of Bill 148. After this year’s spring election, the PC government reversed almost all of these changes. See here and here for blogs on the to and froing on changes to Ontario’s minimum employment standards law.

Bottom line: the time that employers, human resources consultants, and employment lawyers spent on this process was all for nought and a law that needed updating has not really changed.

2. The Ontario Government is Now Selling Recreational Cannabis

In October 2018, Canada became the second country in the world to legalize the sale of cannabis. When edibles start being sold by the Ontario government in 2019, it will be difficult to detect cannabis use or impairment in the workplace. As a result, we recommend that all employers introduce or update its substance abuse policy and we can draft one for you. Here and here are links to blogs on this issue.

3. #MeToo is Alive and Well

In 2018, several senior executives in a number of industries were fired for sexual harassment. The public and employers are keenly aware of this issue. So are employees and as a result the number of complaints have increased. Employees in Ontario can file a complaint at work or file an application with the Human Rights Tribunal of Ontario. See here and here for some of our blogs on this issue.

We recommend that every employer introduce a no-discrimination policy and we can draft one for you.

4. The Number of Workplace Harassment Complaints Has Skyrocketed

In the fall of 2016, Ontario’s health & safety law was amended to require Ontario employers to investigate any incident or complaint of workplace harassment and the investigator must be trained on how to investigate. Since that time, we have seen a significant increase in the number of complaints. Here is a link to a blog on this issue.

In 2018, the number of external, professional workplace investigators mushroomed and most are currently working at full capacity. We recommend that every employer make sure that one employee is trained on how to conduct a workplace investigation. We are offering a one day training session on February 14, 2019. For more information, contact Judy Lam at 647-204-8107.

5. The Uncertainty Around the Enforcement of Termination Clauses Continues

This story has been in my top 10 list for 3 years. Many wrongful dismissal cases involve a dispute as to whether or not the termination clause in the employee’s employment contract is enforceable. Despite numerous court cases on this issue (including several cases from the Ontario Court of Appeal) it is still difficult to predict whether a judge will enforce a termination clause in an employment contract. See here, here, and here for some of our blogs on this issue.

I sincerely hope our Court of Appeal will provide some clear guidance in this area in 2019. In the meantime, we can draft legally enforceable termination clauses for you.

6. Limiting Group Benefits for Seniors has Been Found to be Unconstitutional

There are provisions in Ontario’s human rights and employment standards legislation which permit employers to discriminate against employees who are 65 years old when it comes to providing coverage for some group benefits. Here is a link to a case which stated that these laws are unconstitutional.

We therefore suggest that you talk to your benefit provider to find out whether senior citizen employees are excluded from any of your group benefits.

7. Wrongful Dismissal Damages are Increasing for Older Workers

Since 1960, judges have been directed to take an employee’s age into account when determining the appropriate reasonable notice period. In 2006, mandatory retirement was eliminated in Ontario. Recently, a number of judges have suggested or implied that notice periods should be extended for employees over 60 years old and that these employees are not really expected to find alternative employment. Here is a blog on this issue.

8. Are Executives Entitled to Variable Compensation During the Applicable Notice Period?

Variable compensation makes up the majority of many senior executives’ compensation.  One issue that often arises when an executive is terminated is whether or not the employee is entitled to pay in lieu of this variable compensation during the applicable notice period. The employer says no because the employee has not done anything to achieve the results needed to trigger this compensation. However, Courts are not sympathetic to this kind of argument. See here, here, and here for cases where the employer’s argument was rejected by a judge.

The good news is that it is possible to draft contractual language that precludes an executive from receiving any variable compensation after his or her last day of active employment. Please contact me if you want to discuss how this can be accomplished.

9. Secretly Recording Conversations at the Workplace

Michael Cohen secretly taped Donald Trump and more and more employees are taping conversations in the workplace. In this age of social media and the use of a cell phone as a person’s appendage, I think this trend will continue. Depending on your perspective, doing so undermines the trust needed between employees and employers or is evidence that such trust does not exist. Managing this possible scenario is tricky. Here is a blog on this topic.

10. The Number of Employment Standards Act Audits is Increasing

In 2017, the Liberal government announced it was hiring 175 Employment Standards officers who would randomly visit 1 in 10 Ontario workplaces each year to make sure the employer is complying with the Employment Standards Act. As a result of the PC government’s hiring freeze not all of these people have been hired, however, these audits have begun on a more limited scale. A number of our clients have been randomly selected for an audit. If you receive notification that your organization has been selected for an audit we can help you prepare for the audit.

Fun Fact: In 2018 the MacLeod Law Firm was nominated as one of Canada’s top employment and labour law boutiques by the Canadian Lawyer Magazine and by the Canadian HR Awards.

For almost 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.

Vicarious Liability – The Fallout from Festive Staff Parties

By , November 2, 2018 1:31 pm

With the legalization of cannabis behind us and holiday parties on the horizon, one question on employers’ minds is how to deal with cannabis use at staff parties.

Vicarious Liability

Employees need to be mindful of the doctrine of vicarious liability whereby employers are ultimately responsible for the actions and omissions of their employees in the course of employment. Liability is imposed to the employer not on the basis of the fault of the employer, but on the ground that as the person responsible for the activity or enterprise in question, the employer should be held responsible for loss to third parties that result from the activity or enterprise.

To take an example from the most similar context, when it comes to alcohol use at company-sponsored events, the courts have clarified that due to the nature of the employer-employee relationship, the standard of care imposed on an employer is higher than that imposed on a tavern owner.

In addition to their duty to maintain a safe workplace under the Occupational Health and Safety Act, employers who provide alcohol at a company-sponsored event are obligated to monitor the amount of alcohol consumed by employees; and take positive steps to prevent an employee from driving home after drinking. Such steps include: demanding the employee for their car keys, paying for a cab to send the employee home safely, calling the police, calling a contact to come and take the employee home, or physically stopping the employee from hurting themselves or others.

Where employees drive while intoxicated and subsequently get into a serious car accident after leaving a workplace event where alcohol was served, employers may be found vicariously liable for the actions of their employees.

How Does This Apply to Cannabis?

The legalization of cannabis further complicates matters. As stigma around cannabis use decreases, it is not out of the question to picture employees consuming cannabis at a Company-sponsored event, such as a staff holiday party.

One way to deal with this potential problem is through a Company policy. The use of alcohol, cannabis and drugs at Company-sponsored events can be addressed in a drug and alcohol policy. If the nature of your industry involves requiring employees to attend many events in which they represent the Company, whether the events are sponsored by the Company or not, an employer may want to consider having a separate policy on events.

One question I’ve been asked often from beleaguered employers is: even if we address cannabis use in a policy, how can we justify treating cannabis any differently than alcohol now that cannabis is legal? Although this area of law is still developing and we will have to wait and see how the doctrine of vicarious liability evolves with the legalization of cannabis, one main difference between the two substances is their availability to the general public and the systems in place behind distribution and service. An employer serving alcohol at a party would be prudent to do so through a licensed distributor (such as a restaurant or bar), or through people that are licensed and certified to serve alcohol. The reality is that these systems are not (legally) in place for cannabis consumption, and there is, therefore, no way to monitor consumption and ensure your employees’ safety. In other words, there is no such thing as a “cannabis server” or a  “Smart-Serve” certificate for cannabis distribution. Until such time, an employer may be able to justify making a distinction between alcohol and cannabis at a holiday party.

However, although an employer may have eyes and ears at the Company-sponsored function itself, an employee could always find a way to consume cannabis and escape the employer’s detection. For this reason, it is more important for an employer to focus on identifying impairment and circumstances where an employee may need an employer’s intervention to prevent them from driving while impaired, than to focus on identifying (and prohibiting) the source of the impairment.

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.

Don’t Let Cannabis Laws Leave You Dazed and Confused

By , July 17, 2018 11:03 am

In October, smoking or ingesting cannabis will be legal in Canada. Does your business have policies and procedures in place to handle this transition?

The federal government has passed legislation that will make cannabis legal, giving the provinces power to control how it will be used and sold.

This historic change is likely to lead to a significant increase in cannabis consumption. Prudent employers should be ready to handle the presence of cannabis in the workplace.

Federally, The Cannabis Act

Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts (the “Cannabis Act”) is scheduled to take effect on October 17, 2018. It creates a legal framework for the sale and possession of cannabis in Canada.

The underlying purpose of legalizing cannabis is to deter criminal activity, prevent young persons from accessing cannabis, and to protect public health and safety.

The Cannabis Act will allow adults to possess up to 30 grams of cannabis.

Provincially, Ontario’s Regulations

The Ontario government will be responsible for regulating the distribution of cannabis. Most provinces plan to use their liquor agency as the main distributor of recreational cannabis. Ontario has passed laws about where, how, and who can consume recreational cannabis. The minimum age to possess or use cannabis in Ontario will be 19.

After province-wide consultation, Ontario passed Bill 174, Cannabis, Smoke-Free Ontario, and Road Safety Statute Law Amendment Act, 2017 (Bill 174). This omnibus legislation enacts

  • the Cannabis Act, 2017 (Schedule 1),
  • the Ontario Cannabis Retail Corporation Act, 2017 (Schedule 2), and
  • the Smoke-Free Ontario Act, 2017 (Schedule 3).

Bill 174  repeals the Smoke-Free Ontario Act and the Electronic Cigarettes Act, 2015, and makes amendments to the Highway Traffic Act including driving with drugs or alcohol present in the body (Schedule 4).

Bill 174 prohibits the use of tobacco or cannabis in many locations including

  • Any public places
  • Motorized vehicles
  • The workplace

How Bill 174 Affects Employers

Consuming recreational cannabis in the workplace remains illegal. The term “workplace” is given the same broad definition as in the Occupational Health and Safety Act (“OHSA”). This means that an employee cannot use cannabis at work, during lunch breaks, or at work events. However, it is not prohibited to bring cannabis into the workplace, absent an employer policy. It will remain the responsibility of employers to enforce these prohibitions.

Further, Bill 174 has specific provisions affecting particular industries. For example, there are provisions protecting home healthcare workers from second-hand smoke and prohibiting the use of cannabis while operating a motor vehicle.

The Maze of Employer’s Obligations

With marijuana legalization around the corner, there are a minefield of issues facing employers. First and foremost, the law does not authorize employees to be impaired at work and employees do not have a right to smoke cannabis at the workplace. This is particularly important in safety sensitive workplaces, as employers must continue to meet their obligations under the OHSA.

A tricky issue facing employers is the detection of cannabis impairment in the workplace. A thorough drug and alcohol policy can assist employers in this regard. Introducing drug and alcohol testing however is very controversial and often leads to litigation.

The duty to maintain a safe work environment must be balanced with an employer’s obligation under human rights legislation to accommodate an employee with a disability. As most employers already know, medical use of marijuana has been legal in Canada since 1999. It is currently regulated under the Access to Cannabis for Medical Purposes Regulations.

It is important for employers to note:

  • employees who use medical marijuana have a right to be accommodated, to the point of undue hardship
  • an addiction to marijuana can fall under the definition of disability
  • an employer’s drug and alcohol policy should distinguish between recreational and medical marijuana. 

Employers will have the power to develop policies on the possession and use of recreational cannabis in the workplace. Policies can outline acceptable employee behavior while maintaining employee privacy.

Be Proactive! Steps Employers Can Take

To manage expectations in relation to cannabis use, an employer can create a drug and alcohol policy before Bill C-45 comes into force in October. If a drug and alcohol policy already exists, it can be updated to reflect the legislative changes regarding cannabis. This policy making process can take time. Further, employees need training to understand what is expected of them at work.

The intersection of issues surrounding cannabis at the workplace including health and safety considerations, the duty to accommodate, and the complex area of drug testing can result in the need for professional advice on how to create a reasonable and enforceable drug and alcohol policy. MacLeod Law Firm offers a fixed fee to prepare such a policy, taking into account the nature of the business to ensure the policy suits your needs.

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.

Employment Law Update: Mid-Year Report

By , June 26, 2018 3:34 pm

In this blog, as we enter the dog days of summer, I will review five current trends and developments in Ontario’s employment laws.

1.  A New Sheriff is in Town: The PC party has replaced the Liberal party as Ontario’s governing party

I anticipate this change in government will result in less government regulation of Ontario’s workplaces. During the election campaign, Doug Ford promised not to increase the minimum wage from $ 14.00 to $ 15.00 on January 1, 2019. I will let you know in a future blog whether he keeps this promise.

In the meantime, two laws the Liberal government introduced are scheduled to take effect on July 1, 2018 and January 1, 2019.

One law changes the way public holiday is calculated. Bill 148 changed the way public holiday pay was calculated, however, effective July 1, 2018, public holiday pay will once again be calculated using the formula that applied prior to the coming into force of Bill 148. In other words, the employee’s public holiday pay for a given public holiday will be equal to the total amount of regular wages earned and vacation pay payable to the employee in the four work weeks before the work week in which the public holiday occurred, divided by 20.

The second law will require an employer to provide salary information to job applicants and prohibit employers from asking job applicants about their salary history. In particular, on April 26, 2018 the  Pay Transparency Act was passed. Unless Doug Ford repeals this law, on January 1, 2019 all employers will be prohibited from either directly/ indirectly asking candidates about past compensation, they will be required to post a compensation rate or range for all publicly advertised job postings, and they will be prohibited from reprising against employees who make inquiries about compensation practices.

Last year, the Liberal government announced it was hiring 175 employees to make sure Ontario employers are complying with the Employment Standards Act. Many of these people have now been hired, and trained and are conducting inspections of Ontario’s workplaces. The government has stated it intends to inspect 1 in 10 Ontario workplaces each year.

For more information on how we help employers comply with the Employment Standards Act, click here

2.Cannabis Use Will Be Legal On October 17, 2018

The federal government has announced that cannabis use will be legal on October 17, 2018. In the meantime, the Ontario government must decide how to regulate the sale of cannabis in Ontario. Employers need to decide whether or not to introduce or amend a drug and alcohol use policy. An employee who is impaired at work can be a health and safety problem particularly if the employee is working in a safety sensitive position. Drug testing to address this issue is, however, an extremely controversial and complex legal issue. In fact, a number of drug testing cases have been appealed to the Supreme Court of Canada.

To assist employers with this issue, we can draft a drug use policy for a fixed fee.

3. It Is Increasingly Difficult To Predict Whether The Courts Will Enforce A Termination Clause

I have been writing about this issue for a number of years. Despite numerous Ontario court cases including several Court of Appeal decisions I still cannot predict with any degree of certainty whether a termination clause will be enforced. In 2017, the Court of Appeal in North v. Metaswitch Networks Corp. basically overturned its 2016 decision in Oudin v. Centre Francophone de Toronto on the same issue. In the 2018 decision in Nemeth v Hatch Ltd, the Court of Appeal  found that the following clause was enforceable: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. Most employment lawyers including myself were surprised by this decision.

We will review and draft needed changes to your employment contract including the termination clause for a fixed fee. For more information on our employment contract service, click here

4. Notice Period For Older Senior Managers May Be Trending Upwards

Since 1960, Ontario judges have been applying the Bardal factors when determining the appropriate reasonable notice period in wrongful dismissal cases. The age of an employee and the employee’s position are two factors that are taken into account.

A couple of 2018 decisions suggest that Ontario judges may be increasing the notice period for older, senior, relatively short service employees. In Chambers v. Global Traffic Technologies Canada Inc a 57 year old general manager with 2.5 years service was awarded 9 months pay in lieu of reasonable notice. In Hale v. Innova Medical Ophthalmics Inc. a  59 year old President with 6 years and 8 months of service was awarded 18 months termination pay. To reduce the litigation risk associated it is a good idea to require these kinds of employees to sign an employment contract with a termination clause – if you can figure out how to draft an enforceable termination clause!

5. The Cost Of Health & Safety Violations Is Likely Going Up

The Ministry of Labour investigates most “critical injuries” as that term is defined under Ontario’s Occupational Health & Safety Act (“OHSA”) and the Ministry often charges an employer for a violation of OHSA in connection with such an accident. Fines for relatively minor injuries often exceed $ 50 000. On December 17, 2017,  the maximum fine for a breach of OHSA increased from $ 500 000 to $ 1 500 000. The Ontario Court of Appeal has stated that deterrence and the size of an employer are two factors that trial judges should take into account when determining fines under OHSA. In the future, I therefore expect the Ministry of Labour will be looking for larger fines from large profitable employers when negotiating plea bargains.

We help employers comply with OHSA. For more information on our fixed fee service, 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.

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