Employment & Human Rights Law In Canada : Canada Employment Human Rights Lawyer : Lisa Stam, Law Firm : Labour Law in Toronto, Ontario

While we may share a love of hockey, beer and Justin Bieber, there remains many intangible cultural and legal differences between Canadian and US employment law.  Given the global nature of most of the clients I work with, I frequently advise US employers on the subtle - and sometimes not so subtle - distinctions between our legal landscapes.

Here are a few of the more common questions:

1.  Which laws apply to our Canada-based employees?

It will depend on which province the employee works in, as well as the type of industry.  Section 92(13) of the Constitution Act, 1867 lays out the list that divides the powers up between the provinces and federal government. 

Keep in mind the context of when and where this list was made:  in 1867, Canada (finally) became a country, there were only four provinces (the largest of which was a French, catholic population), and there was a quasi-alcoholic anglo prime minister in Ottawa (which was essentially in the middle of the forest to avoid attack by the Americans) who was trying to hang on to the areas that would consolidate political power, while encouraging economic growth and political support in the regions.  So, railroads, banks, postal service, telegraphs, shiplines and the military, for example, are governed by the federal government. 

"Property and civil rights", however, falls under provincial jurisdiction, and over the years, as been read more and more broadly, contributing to the growing decentralization of powers since the country's 19th century birth.  To make a long constitutional story short, labour and employment falls under this category, so that by default, the provincial laws usually apply (unless your industry was useful to the federal government in 1867, as per preceding paragraph).  Wikipedia has an article on Canadian federalism if you are keen to know more.

2.  There is no "at-will" employment in Canada?  I can't just fire anyone I want??

Actually, employers can usually fire all they want, but it will be very, very expensive.  The biggest difference between US and Canadian employment law is that we do not have "at-will" employment north of the border.  Every employment relationship is deemed to be based on an employment contract.  An employer breaches the employment contract if it terminates an employee without sufficient notice, giving rise to an entitlement to the employee for damages.

3.  Isn't the employment contract just the signed agreement between the parties?

No, the employment contract can be express or implied, written or oral, and ultimately, all  workplace documents, handbooks, policies, offer letters, etc. form part of the terms and conditions of employment.  Employees can therefore initiate legal claims for promises made in any of these workplace documents, such as benefits, compensation, and vacation days. 

4.  Why should an employer bother making an employment agreement?

While employees can rely on the employment agreement to enforce rights, by far the most important advantage to employers is to limit the scope of the package upon termination.  While an employer cannot contract out of the minimum requirements set out in the various employment law statutes, the parties can agree to cap such payments slightly above the statutory minimums.  It also enables the parties to articulate other workplace expectations such as compensation, vacation, hours of work, reporting structures and other factors important to a particular workplace.

5.  There's no employment contract, so why do I have to pay termination pay?

Welcome to Canada!  Land of the termination payment!  All Canadian jurisdictions have employment law statutes that set out the minimim notice an employer must give an employee if it wants to end the employment contract.  An employer can instead pay out that notice, provided the minimums in the statute are met. 

In the absense of an employment contract that contains a termination provision, on top of the statutory minimums, the courts will award a "common law" amount.  This is the amount that adjudicators over the years have awarded to employees above the statutory minimums.  Thus, an employer can pay out the statutory minimum only, but the significant risk is that the employee will take his or her termination letter to a lawyer, who will advise that the employee should sue for the amount above the statutory minimums.

This area is by far the greatest source of employment litigation in Canada.  Typically, a plaintiff lawyer will first take a look at any of the employment contracts to see what can be attacked and rendered void to get access to the "common law" damages, so it is always a good idea to seek legal advice when both drafting the original employment contract documents, as well as when developing a termination package for an employee. 

6.  One of my employees is not working out.  Can I fire her and give working notice instead of a termination payment?

Employers must either provide sufficient notice (i.e. "working notice"), or make a payment in lieu of notice that required notice.  Some employers want to give notice that the position will end in X weeks, and then expect the employee to remain motivated, loyal and cheerful until that end date. 

See my post from July 2010 on working notice - I'm not a big fan for all kinds of practical reasons, most of which turn on the reality that most do not want to keep working when they've just been fired.  More often than not, it will be cheaper, less hassle and less risk to your business information and operations to simply pay out the employee and have a clean break.

7.  "My employee takes SO much vacation - like, 3 or 4 weeks a year!"

This is actually an exact quote from one client.  Again, welcome to Canada!  While we are no France, it is quite standard to take at least 3 or 4 weeks a year.  And yes, women tend to take more than 3 hours off for maternity leave.  And heck, occasionally men do too. 

8.  Can a salaried employee claim overtime pay?

Entitlement to overtime pay is based on the tasks performed in the job itself, not whether the employee is categorized by an employer as salaried or hourly.  Typically, all employees are entitled to overtime, unless an exemption (such as managerial employees) applies.  The exemptions are generally applied more narrowly than the US overtime laws.

9.  Where are all of your class action suits?

While class actions for employment claims are nowhere near the popular vehicle that they are in the US, there have been a number of claims in Canada, particularly dealing with overtime and with pension/benefit issues.  Individuals have a number of employee-friendly avenues of recourse in Canada, so it's unlikely we'll see the heavy use of class actions as a legal vehicle up here anytime soon.

10.  Does everyone speak French in Canada?

Non, pas tout le monde parle le français au Canada.  Okay, I admit that no client has ever asked me this, but I do get questions about managing a workplace in Quebec.  Let's just start by saying that Quebec, Canada's French speaking province, is different than any other place on earth.  Quebec has some of the oldest, deeply held culture on the continent, which, as an aside, is partly why there continues to be such a robust, home-grown music and arts scene in Montreal.  Who doesn't love Arcade Fire, after all?

Quebec continues to comprise of approximately a quarter of the Canadian population, and yes, pretty much everyone in Quebec speaks at least conversational French.  Immigration, sign and education laws all foster the use of French throughout the province.

In addition to a language difference, Quebec's legal system is based on the civil code, rather than the common law.  While overall the approach to employment law is similar, there are always unique nuances that requires the expertise of a bilingual lawyer called to the bar in that province.  (And yes, there is such an expert a few doors down from me in my office, if you should require such expertise.)

11.  What's up with the Queen?

Yes, statistically, many Canadians (mostly outside of Quebec) still love the Queen, who technically remains the head of Canada.  We went wild when Will and Kate visited us this past summer.  I recently heard that the magazine Hello Canada (which is clearly a front for the Monarchy) is the second highest selling magazine in Canada.  We're a generally non-rebellious, rule-following culture up here.  The Queen and her matching hats and handbags make us feel good and proper about the universe.

12.  Did you guys really burn down our White House?

Yup, on August 14, 1814 - the only time a foreign power occupied the US capital.  To be fair, the US started it, burning and looting York (now Toronto) in 1813.  

To my US readers, this FAQ list is just a starting point for discussion.  Please feel free to send me your questions about expanding into Canada and/or about handling HR issues in Canada.  I'll continue to add to this list as they come in.

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This is Part 2 of my three part series on the Accessibility for Ontarians with a Disability Act, 2005.  In my first post, I discussed the Customer Service Standard, which was passed this summer and requires the private sector to comply by January 1, 2012.

In this post, I outline the AODA Integrated Accessibility Standards, which set out further detail on the requirements of businesses and workplaces to become accessible for individuals with a disability.

The Integrated Accessibility Standards is divided into 5 parts:

1. Part I - General: addresses the general purpose of the Standards, and general requirements regarding accessibility policies, plans and training.
2. Part II - Information and Communication Standards: addresses requirements around accessible formats of documents such as training material and websites, as well as laying out requirements regarding service animals and communication supports.
3. Part III - Employment Standards:  lays out accessibility requirements during specific stages of the employment relationship such as recruitment, return to work processes, performance management and career development.  This part also lays out requirements regarding emergency response information.
4. Part IV - Transportation Standards: lays out accessibility requirements for transportation providers such as bus and taxi businesses.
5. Part V - Compliance: lays out the compliance requirements for both this standard, as well as for the Customer Service Standard.

What to do by January 1, 2012

By January 1, 2012, all employers with at least one employee must provide individualized workplace emergency response information to employees who have a disability, if:

1. the disability is such that the individualized information is necessary; and
2. the employer is aware of the need for accommodation due to the employee's disability.

As with other situations requiring accommodation, employers need not be clairvoyant and detect undetectable disabilities in the workplace.  While employers must be observant of reasonably obvious disabilities in the workplace, employees are similarly required to voice their needs and to actively and meaningfully participate in dialogs concerning their own workplace accommodation.

Take-Away for Employers

For most employers, Part II and III will require the most effort to become compliant.  The deadline to comply is staggered over the next several years, primarily between 2013-2021.  While that sounds like a lot of lead time, some items will require significant effort. 

For example, as I discussed in a post this past summer, the website accessibility standard will require "large organizations" (employers with 50 or more employees) to ensure all website content conforms with the WCAG 2.0 Level A.  If you don't know what that means, you probably want to simply outsource through your IT department.

Another area requiring some lead time to prepare are workplace policies.  As with most aspects of Canadian employment law, much will turn on your organization's policies.  AODA lays out general requirements for workplace policies.  While many workplaces already have policies that address anti-discrimination or disability, few will have the layer of detail required by AODA, let alone written accessibility programs to implement and train on the policies.

Finally, the Employment Standards (Part III) will have an impact on your organization's recruitment process.  Application forms, selection processes, and communications with successful applicants will all require certain steps to ensure accessibility.  Additionally, if you are part of the growing world of online recruitment, you'll need to ensure your content on Facebook, LinkedIn, your website and any other social media platform "notify" the public, applicants, and employees of the availability of accommodation.

Stay tuned for my next AODA post, which will look at the enforcement and compliance issues associated with the standards.

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Today the Supreme Court of Canada will hear a highly anticipated case on Canada's freedom of religion and speech laws.  The case involves Bill Whatcott and his passionate, public promotion of anti-gay and anti-abortion views, all in the name of his religion. 

Kirk Makin provides a good summary in today's Globe and Mail.

Whatcott's Case

A prostitute in his youth, Whatcott found religion and, apparently, also found a hateful perspective on some of the issues that tend to push the buttons of Canadians.  In 2005, the Saskatchewan Human Rights Tribunal ordered Whatcott to pay $17,500 to four individuals after he put anti-gay leaflets in their mailboxes.  In February 2010, the Tribunal's decision was overturned, and today, the parties will make their arguments to the SCC.

The case will turn on whether Whatcott's flyers contravened section 14 of the Saskatchewan Human Rights Code:

14(1) No person shall publish or display, or cause or permit to be published or displayed, on any lands or premises or in a newspaper, through a television or radio broadcasting station or any other broadcasting device, or in any printed matter or publication or by means of any other medium that the person owns, controls, distributes or sells, any representation, including any notice, sign, symbol, emblem, article, statement or other representation:

(a) tending or likely to tend to deprive, abridge or otherwise restrict the enjoyment by any person or class of persons, on the basis of a prohibited ground, of any right to which that person or class of persons is entitled under law; or

(b) that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground.

(2) Nothing in subsection (1) restricts the right to freedom of expression under the law upon any subject. 

Clear as mud:  you cannot publish or display anything hateful to another person's dignity, but nothing in the provision restricts the right of freedom of expression.

Freedom of Expression

So do Canadians have the right to say hateful things?  While the US speaks of "free speech" as a religion in of itself, in our land of the Charter of Rights and Freedoms, we can say anything we want, "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". 

Clearly a PR firm did not write our Charter, but it does provide a more sophisticated, albeit complicated approach to the issue of free speech.  This is not, and never will be, a black and white issue.  As a society, we want to deal with discrimination and hateful comments effectively.  However, although I may think Whatcott has archaic and ridiculous views about being gay or a woman's right to make choices about her own body , I do feel uncomfortable shutting him down completely - that really is a legal dictatorship that relies on mortal law makers getting it right in the first place.

Freedom of Speech in the Workplace

Having said that, I do believe that placing some limits on free speech in the workplace makes sense.  Employees come to work and require a space to thrive, and to keep the company productive.  Unlike the choices we can make outside of the workplace, an employee cannot escape, or choose to sit at a different table at the restaurant client meeting, or choose a different co-worker to share an office with, or decide to not interact with a department that promotes hateful comments about him or her. 

The workplace is a confined space, a micro-environment, that requires a common workplace culture to promote employee buy-in and sense of belonging, to keep everyone productive.  If your employees have nutty views - or hateful views - on the big ticket issues, the workplace is not the venue to push the envelope on freedom of speech.

Workplace policies, having your managers lead by example, openly supporting employees you see may be targets of intolerant comments and behaviours are all common sense necessities to balance our society's right to free speech in the workplace.

Have you had any recent experience with "free speech" issues in the workplace?  Have you run across any innovative ways to deal with it?  I'd love to hear from you.

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