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Preview: Slaw» Gabriel Granatstein

Gabriel Granatstein – Slaw

Canada's online legal magazine

Last Build Date: Thu, 22 Feb 2018 12:00:44 +0000


Union Grievances and Discrimination Under the Human Rights Code

Wed, 27 Jan 2016 14:11:27 +0000

Can a unionized employee who received settlement money as a result of a union grievance also make an application under the Human Rights Code, alleging discrimination as a result of the same situation? Two recent cases of the Ontario Human Rights Tribunal have addressed this issue with opposite outcomes. In Ma v University of Toronto, an employee’s application was allowed to continue, whereas in Sikorski v Vaughan (City), the employee’s application was dismissed.

The tribunal reached these decisions after interpreting Section 45.1 of the Code, which states that: “The Tribunal may dismiss an application, in whole or . . . [more]

Ontario Court of Appeal Rules on Childcare and Family Status

Tue, 12 Jan 2016 17:46:21 +0000

What does it mean to discriminate on the basis of family status? The topic has been written about extensively on Slaw. However, the law has still been hard to interpret. Thankfully, the Ontario Court of Appeal has recently provided some clarity on the subject when it recently upheld a decision that found discrimination on the basis of family status after a work schedule was changed and interfered with an employee’s childcare arrangements.

In that decision, the employer demoted an employee who had returned a week earlier from maternity leave, reducing her hours and pay. When the employee objected, the employer . . . [more]

Trends in New Media Unionization

Mon, 04 Jan 2016 18:32:54 +0000

On December 15, 2015 Vice Canada, a growing (and very cool) digital news media company, announced that it was starting a union drive. This announcement comes on the heels of a growing trend in new media unionizing.

Although Canada has a long history of unionization within its major news organizations, digital or “new” media has been long been on the sidelines of union drives, particularly when compared to the US.

Since June 2015, a number of prominent American digital media companies have unionized without any significant conflict, including the Guardian US. The American branch of the British daily newspaper . . . [more]

Workplace Accommodations: I Can’t Work Because I Have to Work (Somewhere Else)!

Mon, 21 Dec 2015 18:37:39 +0000

To what extent does an employer have to accommodate an employee’s other work and personal commitments when those commitments are unrelated to grounds protected under human rights legislation? A recent Ontario decision sheds light on an employer’s ability to dictate an employee’s work schedule in these circumstances.

In this case, the employee was a server who worked part-time for the employer. The employee was absent for over 20% of her scheduled shifts in a one-year period, and the employer terminated her employment in accordance with its attendance policy. The reasons for the employee’s absenteeism were two-fold. First, she worked full-time, . . . [more]

Let 2016 Be a Year of a Compassion for Employees in Canada

Tue, 15 Dec 2015 11:11:36 +0000

Compassionate care benefits are available to employees who have to take time away from work to care for a sick family member who has a significant risk of death. Changes to the availability of compassionate care benefits under the Employment Insurance Act are set to come into force in the New Year. The changes, which were introduced as part of the 2015 Budget, will increase the maximum amount of compassionate care benefits from six weeks to twenty-six weeks. The changes come into force on January 3, 2016.

Compassionate care benefits complement compassionate care leave, which is provided for in provincial . . . [more]

A Tip for Employers? New Rules for Tip-Earners in Ontario

Tue, 08 Dec 2015 16:50:51 +0000

Tips in Ontario’s service industry are currently divided up in a variety of ways: they can be kept by the specific employee who receives them, pooled to share with other employees, or pooled to share with other employees and the employer. An act entitled Protecting Employees’ Tips Act, 2015 amends Ontario’s Employment Standards Act to prohibit employers from taking a share of tips.

Passed yesterday, the Act will take effect in six months. While there will be a few situations in which employers may be permitted to share in tips (such as when the employer regularly performs the same work . . . [more]

Reasonable Notice: Poor Employer Finances No Excuse for Poor Notice

Mon, 30 Nov 2015 15:11:42 +0000

In a recent decision, the Ontario Court of Appeal clarified that when an individual’s employment is terminated without cause, the financial viability of the employer’s business is not a factor that affects the period of reasonable notice owed to that employee.

The case involved a private school’s termination of the employment of three of its teachers. In the wrongful dismissal proceedings, the judge concluded that twelve months was a reasonable notice period in the circumstances. However, the judge proceeded to reduce the teachers’ notice to six months, because of the volatility in the school’s enrolment and funding.

In allowing . . . [more]

Female Candidates Preferred? When Job Postings Time Travel…

Wed, 25 Nov 2015 14:16:07 +0000

A Toronto web design company recently published a job posting for a writing job indicating that “female candidates are preferred”, seemingly time-warping back to the Mad Men era… Specifically, the position was for a content writer and search-engine optimization specialist on LinkedIn. However, the posting also indicated that the successful candidate will need to fulfill the “responsibilities of a receptionist, so female candidates are preferred.”

Not surprisingly, the job posting has attracted negative attention on twitter and news outlets have picked up the story. The company responded on Twitter and LinkedIn by stating that they “did not mean to discriminate . . . [more]

Potential Legal Battle to Ensue Over Transit Employees’ Right to Strike

Wed, 11 Nov 2015 22:58:37 +0000

The Canadian Charter of Rights and Freedoms (the Charter) guarantees that everyone has the “freedom of association” (section 2(d)). The Charter’s guarantee of freedom of association has often been leveraged to protect employees’ rights in the labour relations context. According to recent media reports, the union that represents the Toronto Transit Commission (TTC) employees is looking to rely on section 2(d) to combat provincial legislation that declares the TTC an essential service and prohibits its employees from striking.

In January 2015, section 2(d) was successfully used to persuade a majority of the Supreme Court of Canada to . . . [more]

I Quit(ish)! When a Resignation Is a Termination

Mon, 02 Nov 2015 20:30:31 +0000

When is a resignation not a resignation? Recently, the Ontario Superior Court dealt with a case where an employee cleaned out her desk, didn’t return to work but then took the position that she hadn’t quit after all.

Finding that she didn’t quit, the Court re-iterated that an employee’s resignation must be “clear and unequivocal.” In this case, the employee had sent an e-mail informing her employer that she had packed up her desk, but would be keeping her company cell phone, and that the employer could call her the following day to discuss. This e-mail was sent following an . . . [more]

Facebook & Employment Law: Friend or Fired?

Thu, 29 Oct 2015 20:35:50 +0000

For many, Facebook is a blessing. For some, it’s a curse. For a few, it gets them fired.

For example, last month, an Atlanta employee at an American marketing firm took a “selfie” with the young son of his co-worker and uploaded the picture to his Facebook profile. A number of his friends proceeded to make racist and derogatory remarks about the boy and, in response to some of these comments, the employee published a comment describing the boy as “feral.” He was subsequently terminated by his employer as were some of the other individuals who made racist comments. These . . . [more]

“Outrageous” Employer Conduct Wins Employee $100,000 in Punitive Damages

Tue, 13 Oct 2015 22:07:33 +0000

In a recent decision, the Ontario Superior Court of Justice harshly rejected an employer’s allegation that it had just cause to dismiss an employee. In allowing the employee’s claim for damages for wrongful dismissal, the Court awarded the employee $100,000 in punitive damages in response to the employer’s “terrible conduct.”

The Court found that the employer’s true basis for terminating the individual’s employment was to avoid financial obligations arising out of a share purchase agreement between the employee’s and the employer’s companies. As such, the Court’s view was that the employer had “conjured up a cause” to terminate the . . . [more]

Apology Accepted, but Not as Evidence!

Tue, 29 Sep 2015 15:57:21 +0000

From a young age, we’re all taught to apologize when we do something wrong. As we get older, we learn to apologize even when we are right (or think we are – see here for further information related to apologies in the marital context).

However, in a professional context, we often hesitate to apologize out of fear for liability. Fortunately, in Ontario, there is legislation in place to take mitigate some of that risk and allow people to apologize with less fear.

The Ontario Apology Act came into force on April 23, 2009. Section 2(1) states that “an apology made . . . [more]

Criminal Charges Laid Against Nova Scotia Employer Under the Westray Bill

Tue, 15 Sep 2015 15:40:16 +0000

The former owner of an auto body shop in Dartmouth, Nova Scotia was recently charged with criminal negligence causing death under federal Bill C-45, colloquially known as the “Westray Bill.” The charges relate to a 2013 workplace accident where a car caught fire causing the death of a 58-year-old mechanic. This is the first charge under the Westray Bill against a Nova Scotia employer.

The Westray Bill was passed in 2004 and amended the Criminal Code to impose criminal liability on employers who fail to ensure the safety of their workers. The Westray Bill was created in the wake of . . . [more]

AODA, the Customer Service Standard, and Service Animals: Part 3- Potential Challenges

Sat, 12 Sep 2015 18:49:18 +0000

This is Part 3 in a series looking at the requirements related to “service animals” under the Accessibility Standards for Customer Service, Ontario Regulation 429/07 (the “Standards”) of the Accessibility for Ontarians with Disabilities Act (the “Act”). Click here for Part 1 and Part 2.

For organizations that are subject to the Standards, service animals must be allowed to enter the premises unless “otherwise excluded by law.” The Ministry of Economic Development, Employment & Infrastructure website specifically identifies regulations under the Health Promotion Act and the Food Safety and Quality Act, 2001, respectively, as two examples of . . . [more]

Balancing Act – Freedom of Association vs. Freedom of Religion

Tue, 08 Sep 2015 18:48:03 +0000

The various rights and freedoms protected under the Canadian Charter of Rights and Freedoms are sometimes at odds. Where does my religious right end yours begin? When two protected rights are at odds, who wins? According to recent news reports, a dispute of this nature has recently arisen in northern Ontario between a furniture company and its employees, after the employees attempted to organize.

Following a union certification vote, 69% of the employees at the company voted in favour of unionization. In response, the owner of the company closed shop. The business-owner cited his religion as justification for shutting . . . [more]

AODA, the Customer Service Standard, and Service Animals: Part 2- What Is Required?

Thu, 03 Sep 2015 18:15:08 +0000

This is Part 2 in a series looking at the requirements related to “service animals” under the Accessibility Standards for Customer Service, Ontario Regulation 429/07 (the “Standards”) of the Accessibility for Ontarians with Disabilities Act (the “Act”). Please click here for Part 1.

Section 4 of the Standards requires organizations providing “goods and services to the public or other third parties at premises owned and operated by the provider of the goods or services” (“Providers”) to ensure that a person with a disability accompanied by a service animal “is permitted to enter the premises with the animal and to . . . [more]

Minimum Wage on the Rise – Changes in Alberta and Ontario Could Be Just the Beginning

Tue, 18 Aug 2015 14:44:45 +0000

Just over one month ago, under the leadership of Premier Rachel Notley, the Albertan government announced that, effective October 1, 2015, minimum wage would increase in the province from $10.20 to $11.20 per hour. The increase is the first step for Premier Notley’s NDP in their quest to increase minimum wage to $15 per hour by 2018, a promise that was made repeatedly during the NDP’s 2015 provincial campaign. The changes will end Alberta’s reign as the jurisdiction with the lowest minimum wage in the country.

Interestingly, on the same day that Alberta’s minimum wage will increase, Ontario’s minimum . . . [more]

WestJet Pilots Vote Against Unionization Under New Canada Labour Code Provisions

Thu, 13 Aug 2015 09:00:22 +0000

WestJet’s pilots have voted against unionization following a narrow result released by the WestJet Professional Pilots Association (the “Association”) last week. Out of the nearly 1,300 pilots, 55% percent of those who voted were not in favour of forming a union. These results come following an extensive campaign by the Association, who vocalized their disappointment with the result through the release on their Facebook page. The Association in the release stated that “[w]e hope that the open discussions that have taken place as part of this process will set the stage for constructive dialogue between our pilots and . . . [more]

Canadian Football Leagues Tackles Violence in and Outside of the Workplace

Sun, 09 Aug 2015 13:49:13 +0000

The Canadian Football League (CFL) has just taken a seemingly strong stance against violence towards women, an issue that has been a hot topic over the past year, with several high profile incidents making the news. The league has instituted a new employment policy that imposes harsh penalties for acts of violence. The penalties, which range from suspensions to lifetime bans, will apply not only to players, but to all employees of the league.

The CFL policy provides that:

• The policy applies to everyone who works for the CFL – not just players, but coaches, officials, executives and staff.

. . . [more]

Ontario WSIB Takes to Social Media!

Mon, 03 Aug 2015 18:27:57 +0000

Ontario’s Workplace Safety and Insurance Board (WSIB) has taken to Twitter in an attempt to reach the province’s young workers. The Board has launched a Twitter contest challenging workers between the ages of 15 and 24 to tag a photo of themselves practicing safety on the job with the hashtag #practicesafework.

The timing of the contest is strategic. With many young workers seeking summer employment, the number of new workers is on the rise. Research conducted by the Institute for Work and Health indicates that rates of workplace injury are higher amongst both young workers, and workers on their . . . [more]

OPSEU Workers Seen Protesting the Government’s Privatization Agenda at the 2015 Toronto Pan Am Games

Thu, 30 Jul 2015 09:00:02 +0000

Toronto has been sitting in the spotlight for the last month as the host of the 2015 Pan Am Games, which has brought together athletes, coaches, volunteers, and Games supporters from across the world. The public attention received by the Games has not gone un-noticed by workers in the Ontario Public Service Union (OPSEU), who have been protesting the Liberal government’s privatization agenda outside of the Games venues and events.

OPSEU President Warren (Smokey) Thomas has emphasized the important role that public service workers have played in the success of the Pan Am Games, and wants Ontarians to . . . [more]

Ontario Civic Holiday a “Stat Holiday”: Think Twice…

Mon, 27 Jul 2015 15:53:39 +0000

The upcoming Civic Holiday is celebrated on Monday, August 3 in Ontario. The holiday, which was created in honour of John Graves Simcoe, the first Lieutenant Governor of Upper Canada, often raises questions for employees and employers alike. Contrary to popular belief, the Civic Holiday is not a statutory holiday in Ontario; it is not listed as a public holiday in the province’s Employment Standards Act. This means that while many employers choose to give their employees a holiday, they are not required to do so by law.

A number of other provinces also have a public holiday, . . . [more]

“It’s Summertime and the Living Is Easy” and the Contracts Are Short…

Mon, 20 Jul 2015 13:53:03 +0000

Summer is definitely here in Ontario and with the warm weather comes an uptick in seasonal and fixed-term employment. Ontario students seek summer employment and seasonal operations such as golf courses and amusement parks hire additional staff. These types of seasonal arrangements often lead employees to wonder when, if ever, a fixed-term contract converts into indefinite employment and what that means (usually an entitlement to reasonable notice of termination).

The short answer is that it depends on the reasonable expectations of the parties. While the law varies from province to province (and can be quite different in Quebec), Canadian . . . [more]

SCC to Rule on Dismissal Without Cause Regime Under the Canada Labour Code.

Tue, 14 Jul 2015 13:02:18 +0000

Wilson v. Atomic Energy of Canada Ltd. was thought to put to rest the long-standing debate among adjudicators of whether federally regulated employers can dismiss an employee without just cause if they meet certain criteria (Part III of the the Canada Labour Code (“the Code”) provides protection in the form of reinstatement for employees dismissed “without just cause”).

In January of this year, the Court of Appeal upheld the Federal Court’s decision to allow an application for judicial review concluding that the adjudicator unreasonably found that the law permits only dismissals for cause.

The Federal Court criticized the adjudicator’s reliance . . . [more]

Bill C-377 Is Back: Unions to Be Required to Make Financial Disclosures in Canada

Mon, 06 Jul 2015 23:59:00 +0000

A controversial Private Members Bill that will have a direct impact on unions across Canada is currently working its way through Parliament. Bill C-377, which was passed by the Senate last week, will require unions to essentially open their financial books to the public.

Included in the Bill is a requirement for unions to disclose: a yearly balance sheet indicating their assets, liabilities, income and expenditures; the details of all transactions over $5,000, including the name and address of each party, a statement regarding the purpose of the transaction, and a description of each transaction; a statement indicating the total . . . [more]

Be Heard: The Ontario Ministry of Labour Wants to Hear From You!

Thu, 02 Jul 2015 09:30:15 +0000

Public consultations commenced in Toronto on June 16th as part of the Ontario Ministry of Labour’s (“MOL”) implementation of the Changing Workplaces Review, and are expected to continue throughout the summer until mid-September.

The Changing Workplaces Review was announced earlier this year as part of MOL’s mandate to increase protection for workers and create a support environment for businesses to thrive. The review will consist of public consultations in regions across Ontario to address the changing nature of the modern workplace. The consultations will focus on potential amendments to the Labour Relations Act, 1995 (“LRA”) and the Employment Standards . . . [more]

Novel Approaches to Sentencing in Occupational Health and Safety Convictions

Mon, 29 Jun 2015 12:32:29 +0000

The Nova Scotia Provincial Court is taking new approaches to dealing with occupational health and safety violations. Recently, it sentenced a company found guilty of breaching Occupational Health and Safety laws to complete community service hours.

The sentence was delivered pursuant to Section 75 of Nova Scotia’s Occupational Health and Safety Act, which allows the court to order any number of creative conditions which serve the purpose of “securing the offender’s good conduct and…preventing the offender from repeating the same offence”.

The company’s conviction came after an experienced employee was fatally electrocuted. In determining culpability, the Court found that . . . [more]

Uber Drivers Found to Be Employees in California: Canadian Provinces to Follow?

Fri, 26 Jun 2015 09:00:59 +0000

A recent decision from the California Labour Commission (the Commission) has held that drivers from the popular Uber service are employees and not independent contractors. This decision has sparked public interest as its implications could bring trouble for the successful mobile-based start-up.

In coming down on the side of the drivers, the Commission concluded that the employer was involved in “every aspect of the operation” of the ride hauling service. Uber, however, has appealed the decision emphasizing the significant degree of driver autonomy as the basis for their operations and stating that “the number one reason drivers choose to use . . . [more]

Sexual Harassment in Toronto’s Restaurants

Mon, 22 Jun 2015 12:45:55 +0000

Recently, allegations of sexual harassment in the kitchen of a trendy Toronto restaurant have ignited a dialogue about workplace harassment. While this doesn’t excuse it, industry veterans aren’t surprised by the complaint, saying that many of Canada’s restaurants have a workplace culture that is overwhelming male, close-knit, and full of sexualized banter.

The employee at the heart of the controversy says she was aware of the industry’s reputation when she accepted the job. “I just thought this came with the job and it was something I just had to overcome,” she reports.

In Ontario, sexual harassment in the workplace . . . [more]