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Posts tagged: toronto employment lawyer

Valuing Employee Pensions in Wrongful Dismissal Cases: A Boring but Important Issue

By , November 6, 2018 10:18 am

A long service, older worker is terminated. Under the terms of the individual’s pension plan, the employer is not permitted to continue his participation in the pension plan. So the question arises: when calculating wrongful dismissal damages, how do you calculate damages for pension benefits?

A recent case considered this question.

The Facts

Imperial Oil Ltd. terminated Donald Dussault’s employment after 39 years of service when he was 63 years old. Imperial Oil immediately discontinued Mr. Dussault’s participation in its pension plan and Mr. Dussault decided to start collecting his pension benefits.

A judge concluded that Mr. Dussault was entitled to compensation in lieu of 26 months’ notice of termination. One component of his compensation was his pension.

Commuted Value of Pension

Imperial Oil called an expert witness who concluded that Mr. Dussault’s pension was worth $189,117 more than if Imperial Oil had kept him in its pension plan for the 26-month period after his termination. Mr. Dussault did not call an expert witness of his own on this issue.

Employee Claim for Damages for the Employer’s Contributions to his Pension During Notice Period is Denied

Since Mr. Dussault would have been enrolled in the pension plan if Imperial Oil had provided him with 26 months’ notice of termination, and since Imperial Oil would have made contributions to his pension during this notice period, Mr. Dussault sought damages equal to these contributions. The court concluded that the value of his pension was higher than if Imperial Oil had continued paying into his pension plan until the end of the 26-month notice period. However, the court refused to order the requested damages because Mr. Dussault could not prove any damages.

Employer Claim to Reduce Employee Damage Award by the Value of the Pension Benefits he Received During the Notice Period is Denied

Mr. Dussault collected pension benefits during the 26-month notice period. Imperial Oil asked the judge to deduct this amount from Mr. Dussault’s wrongful dismissal damages. However, the judge refused to do, concluding that pension benefits are a benefit employees have earned for their years of service and are not meant to be an indemnity for the loss of employment.

Lessons to Be Learned

  1. Every employer should require all employees to sign an employment contract with a legally enforceable termination clause. In this case, Imperial Oil could have reduced a 26-month common law reasonable notice period to as little as 8 weeks’  termination pay and 26 weeks’ severance pay. This is another case where a judge concluded that the common law notice period was more than 24 months.
  2. For long-service employees who are entitled to a lengthy common law reasonable notice period, damages for a reduced or an enhanced pension can be significant. I have represented clients who have not taken pension benefits during the notice period and the value of lost pension value (as opposed to an enhanced pension value in this case) has been significant.
  3. When valuating pension benefits, it is important to retain an expert. A slight change in actuarial assumptions can result in significant differences in a pension’s valuation.

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.

Bill 148 (aka Wynne government changes to the Employment Standards Act) Bites the Dust

By , October 25, 2018 9:31 am

On Tuesday afternoon, the Ford government tabled legislation Bill 47 – Making Ontario Open for Business Act, 2018 which will repeal some of the recent changes to Ontario’s Employment Standards Act, 2000 and eliminate new statutory obligations that are scheduled to be imposed on employers on January 1, 2019.

Although Bill 47 must go through the legislative process, the Ford government has a majority of seats in the Ontario legislature so I expect the changes will take effect on January 1, 2019 when many of the Bill 148 changes are scheduled to become law.

Roll backs

The two paid personal emergency leave days that were introduced by the Wynne government in the past year will be eliminated.

The public holiday pay calculation for part-time employees that was in effect before Bill 148 will become law again.

Equal pay for equal work for substantially the same work regardless of employment status will be repealed. So there will generally be no obligation to pay part-time employees the same rate as full-time employees for performing substantially the same work.

The prohibition for asking an employee for a doctor’s note to prove sickness will be repealed.

The presumption that a person is an employee as opposed to an independent contractor if an individual claims he or she is an employee will be eliminated.

Pending laws that will not take effect

The minimum wage will not increase to $ 15 per hour on January 1, 2019, as scheduled, and there will be no cost of living increase in the minimum wage until October 2020.

The new scheduling rules will not take effect.

The new on call pay rules will not take effect.

An employee’s right to request changes in work hours or work location will not take effect.

An employee’s right to refuse scheduling changes with less than 4 days notice will not take effect.

The requirement to provide an employee with 3 hours pay if a shift is cancelled with less than 48 hours will not take effect.

Changes to the Employment Standards Act

The ten days personal emergency leave will be eliminated under Bill 47 and replaced with three days Sick Leave, three days Family Responsibility Leave, and two days Bereavement Leave for a total of eight days. These eight days are unpaid.

Bill 47 also includes changes to the Labour Relations Act, and the Ontario College of Trades and Apprenticeship Act.

A bill is often sent to a committee after Second Reading and Bill 47 could change after that process, but I doubt there will be any changes to this bill. But stay tuned; I will provide updates on this proposed employment law as we get closer to January 1, 2019.

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.

Cannabis Legalization: Behind the Smoke and Mirrors

By , October 17, 2018 9:44 am

Whether you’ve been looking forward to this day – October 17, 2018 – or whether you’ve been dreading it, the legalization of recreational cannabis in Canada is officially here.

Although employers have had over a year and a half to prepare for legalization, a recent Ipsos poll found that managers and employees are not on the same page when it comes to their respective expectations concerning the use of recreational cannabis in the workplace.

Only 18% of non-management staff say that management has communicated clear expectations on the use of recreational cannabis in the workplace. This number is at odds with manager expectations: 55% of managers believe employees clearly understand management’s expectations.

Leaving employees to self-educate on the changes that follow legalization is not a good idea. Only 16% of those non-management employees polled said they are “very familiar” with the changes and with where they are allowed to consume cannabis. Most others are only somewhat familiar (52%) or not very familiar (24%). Finally, 17% of working Canadians believe it is possible to use recreational cannabis before going to work or during work hours (including lunch and coffee breaks), while another 6% definitely believe it is permissible to do so after October 17, 2018.

Given the disconnect between managers and employees’ expectations, it is important to communicate these expectations through workplace policies. If you already have a policy, here are a few other questions to consider.

  • Does your current policy simply refer to illegal drugs? With the legalization of cannabis, such language will not cover recreational cannabis. Also, impairment can come from various sources, including prescribed, legal medication.
  • Does your current policy include a distinction between recreational and medical cannabis?
  • Does your current policy define the workplace? What if an employee travels for work, or attends many after-hour functions? Does your current policy state under which circumstances cannabis consumption is not permitted as an employee?

There is no one size fits all drug policy. It should be tailored to the needs of your business. We suggest that all employers develop a policy, and then communicate it to employees and provide any necessary training. We are hosting seminars in Toronto and Barrie next week and one of the topics we will be covering is some of the components that should be included in a drug policy. Click here for more information on this seminar, or call Judy Lam at 647-204-8107

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.

Do you only hire workers who can work in Canada on a permanent basis?

By , September 25, 2018 9:56 am

Imperial Oil Limited recently found out the hard way that imposing a Canadian citizen requirement as a job qualification can be a costly mistake.

This case shows that the cost to respond to a human rights application filed by an unsuccessful job applicant can be significant even if a job applicant lies on his application form. The hearing in this case took 13 days.

The Facts

After graduating from McGill University Muhammad Haseeb applied for and obtained a “postgraduate work permit” (PGWP) for a three year term. The PGWP allowed him to work full time, anywhere and with any employer in Canada.

Mr. Haseeb then applied for an entry level position as Project Engineer at Imperial Oil. A condition of employment was that an applicant provide proof of his eligibility “to work in Canada on a permanent basis” by way of (1) Canadian birth certificate (2) Canadian citizenship certificate or (3) Canadian certificate of permanent residence (permanent resident card) or the “permanence requirement”. His permit did not satisfy the permanence requirement so he lied and said he could meet Imperial Oil’s permanence requirement. He went through the application process and was offered a job conditional on proving proof he could “work in Canada on a permanent basis”. He couldn’t so the offer was revoked.

The Issue

Mr. Haseeb claimed that Imperial Oil’s permanence requirement violated his right not to be discriminated against on the basis of citizenship and that the permissible ways to discriminate on the basis of citizenship did not apply.

The Law

Section 5. (1) of the Ontario Human Rights Code states: “ Every person has a right to equal treatment with respect to employment without discrimination because of …citizenship, …”

Discrimination of the basis of citizenship is permitted in the situations set out in section 16 of the Code: namely:

  1.  (1) Canadian Citizenship – A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship is a requirement, qualification or consideration imposed or authorized by law.(2) – A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship or lawful admission to Canada for permanent residence is a requirement, qualification or consideration adopted for the purpose of fostering and developing participation in cultural, educational, trade union or athletic activities by Canadian citizens or persons lawfully admitted to Canada for permanent residence.

    (3)  A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship or domicile in Canada with the intention to obtain Canadian citizenship is a requirement, qualification or consideration adopted by an organization or enterprise for the holder of chief or senior executive positions.

Decision

The adjudicator concluded that Imperial Oil’s eligibility requirement directly discriminated against job applicants on the basis of citizenship and that none of the defences set out in section 16 applied.

In coming to this conclusion the adjudicator stated:

To obtain protection from discrimination under the Code on the basis of “citizenship”, the applicant need only establish that the alleged discriminatory treatment is linked to his personal characteristic of being a non-citizen of Canada (or non-Canadian citizen).

It is thus the Tribunal’s view that in direct discrimination cases … no general BFOR defence is available to a respondent. A respondent in a direct discrimination case has only statutory defence(s) available to excuse a conduct or policy that is found to discriminate in a direct (or express, targeted) manner “where the requirement expressly included a prohibited ground of discrimination” …

In the alternative, assuming the bona fide occupational qualification (or BFOQ) defence was available, the adjudicator concluded this defence was not proved. In particular, “Given the …(conclusion) that I(mperial) O(il)’s permanence requirement is not an “occupational requirement’, there is no need for this Tribunal to examine at length the bona fides or honesty of IO’s belief that the requirement achieved its purported purpose of succession planning and retention of trained employees, or, to examine IO’s assertion of undue hardship.”

Lessons to be Learned

  1. Employers should not establish overly restrictive citizen requirements for jobs –  especially for entry level positions.
  2. An unsuccessful job applicant can file an on-line no-cost human rights application and the applicant is not required to hire a lawyer to do so. The Human Rights Legal Support Centre provides free legal advice to job applicants who want to commence these legal proceedings.
  3. The cost to defend a human rights application can be staggering. An employer should carefully prepare for the three-hour mediation that takes place near the beginning of the application process and try to negotiate a settlement at the mediation (or before) if a reasonable settlement can be reached at that time.

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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