pink plastic flamingo on a sandy beachBill 148 has brought significant amendments to the Ontario Employment Standards Act.  Over the past couple of months SpringLaw presented a series of Bill 148 webinars to our clients. We designed this series to help our employer clients get acquainted with all the changes introduced by the Bill 148 amendments.

We covered the following topics:

  • Overview and Wage Changes                                  
  • Record Keeping and Policy Changes
  • Leaves, Scheduling and Vacation
  • Changes Affecting Unionized Workplaces

We will also be shortly issuing an Employer’s Guide to Bill 148, an ebook which will cover these changes in depth. Stay tuned!

My favourite part of any live presentation is the audience questions. Over the next few weeks I’ll be posting some common Bill 148 questions and our answers. To start us off here is one about vacations.

Q: What is the effect of lay-off periods when determining whether or not a seasonal employee is entitled to the vacation increase?

A: Under the Bill 148 amendments, employees with five or more years of service to the employer are entitled to three weeks of vacation annually, up from two weeks.

The new section 33 reads:

Right to vacation

33 (1) An employer shall give an employee a vacation of,

(a) at least two weeks after each vacation entitlement year that the employee completes, if the employee’s period of employment is less than five years; or

(b) at least three weeks after each vacation entitlement year that the employee completes, if the employee’s period of employment is five years or more. 2017, c. 22, Sched. 1, s. 21.

The changes make the length of employment relevant. How is the length of employment calculated when the employee does not work throughout the year?

Unless there is a break in the employment relationship, meaning the employee quit or was terminated, the employee will continue to accrue seniority regardless of whether or not he or she is on a leave of absence (parental leave, family caregiver leave, etc.) or a temporary lay-off. Therefore, employees who have been consistently employed for five or more years are entitled to the vacation increase, even if there have been periods of lay-off in those five years.

Under the Ontario Employment Standards Act both active and inactive periods of employment are included when calculating entitlement to vacation. There are no industry exemptions for entitlement to vacation.

Many employers may now find themselves with contracts that are unenforceable due to the changes to vacation and other new entitlements. If you need help making sure that your documents are compliant, we’d be pleased to assist.

Are non-competes, non-solicitations and confidentiality agreements enforceable in Canada? Aside from termination provisions, restrictive covenants are probably the clauses that give us employment lawyers the most to think about. A restrictive covenant is a contractual clause, typically in an employment agreement, that seeks to limit a former employee’s ability to solicit the employer’s clients and/or to compete for those same clients in the same area.

In Canada, courts have generally been reluctant to uphold agreements that have the effect of restricting an individual’s ability to earn a living or pursue the job of their choice. Indeed, courts take the initial position that restrictive covenants in employment agreements are unenforceable, unless the employer can demonstrate otherwise. A restrictive covenant must jump through several hoops to be deemed enforceable.

Firstly, the employer must demonstrate that they have a proprietary interest in need of protection. Once a proprietary interest has been established the court will consider whether there may have been a less restrictive means to protect that interest.

Non-Competition Agreements

These clauses or agreements attempt to limit the former employee’s ability to work for a competitor, or open a competing business. These are generally only upheld in exceptional cases. The requirement that the restrictive covenant be as minimally restrictive as necessary often means that a non-solicitation clause is sufficient.   

When considering whether or not a non-competition clause is truly necessary, the courts will look at the following factors:

  • Vulnerability of the employer to competition or solicitation – Is there a lot of opportunity or clientele not yet serviced by anyone?
  • How much confidential information the employee had access to during the course of their employment and how much confidential information they know about a key client
  • How close the employee was with key clients – For example, how much service did they provide and did they provide it exclusively?
  • How much damage could a competing or soliciting employee do in the same market as the employer
  • How long the employee has been with that employer
  • Whether the employee had influence over clients – For example, did the clients rely on the employee’s advice and trust the employee?
  • The nature of the business with respect to the strength of customer loyalty

Non-Solicitation Agreements

A non-solicitation agreement will allow a former employee to work for a competitor, but prevent them from soliciting the clients (and possibly the employees) of their former employer for a specific period of time. Former employees may have close relationships with clients. Allowing them to solicit these clients may give them an unfair advantage against the former employer in the marketplace. If the employee does not solicit the client, but the client leaves to follow them anyway, there is little an employer can do.

Once it has been established that a restrictive covenant is necessary to protect the proprietary interests of the employer it must also be established that the covenant is of a reasonable scope with respect to geography, time and prohibited activities.

If a court finds a restrictive covenant clause unreasonable, for example it restricts solicitation for 12 months when 6 would have been reasonable, they will not read it down to fix it. Canadian courts require the employer to get it right the first time and a flawed clause will therefore normally be unenforceable.

Case Example – Competition in the Eyewear Industry

Last year the British Columbia Court of Appeal considered the enforceability of a non-competition clause in IRIS The Visual Group Western Canada Inc. v. Park. IRIS delivered eye care services and sold eyewear products at outlets where they also employed optometrists to assess vision and write prescriptions. The respondent, Dr. Park, was one such optometrist, who was contracted to provide services to IRIS from 2007-2016. In 2016 Dr. Park left IRIS to set up her own optometry practice, 3.5 kms away from where she had worked for IRIS.

At the outset of their relationship, Dr. Park had signed a non-compete agreement which restricted her from competing with IRIS for a period of 3 years within 5 km of their location. The trial judge held that these temporal and geographic limitations were reasonable, but that the description of the prohibited activities was too broad. Activities prohibited were “carrying on, engaged in, interested in or concerned with a business that competes with” IRIS. The Court of Appeal upheld the trial judge’s ruling, also finding that the clause was ambiguous and overbroad.

Of note, the Court felt that nature of the connection deemed by the phrases “in conjunction with” and “concerned with” a competing business was ambiguous and not easy to understand. The clause also defined a competing business as including a business that dispensed non-prescription optical appliances. This could presumably mean a business such as a sunglasses store and include business or work that had nothing to do with the practice of optometry. This aspect of the clause was broader than necessary to protect IRIS’s proprietary interests. The court declined to read down the clause and remove the reference to “non-prescription”.

Employer Take-Aways

Employers concerned about protecting their client relationships and proprietary information should employees leave are advised to have solid restrictive covenant provisions in place. While these are typically contained in the employment agreement at hiring, employers can also take steps to have existing employees enter into enforceable agreements.

See our recent blog post for an example of how a very long non-compete clause will typically require a payment in lieu.

If this is a live issue in your workplace, or if you are an executive looking for a new job and wondering if that non-compete you signed five years ago will come back to haunt you, contact us at SpringLaw. We’re here to help.  

By now everyone should know that sexual harassment is not permissible in the workplace, but even amidst the flurry of allegations we have seen in the #metoo era, exactly what constitutes sexual harassment might still be a little fuzzy. With love in the air today, workers across the land might be wondering, can I ask my co-worker to be my Valentine? In today’s post we will take a closer look at the law around sexual harassment and try to answer that burning question.

Section 10 of the Human Rights Code

The Ontario Human Rights Code defines harassment in section 10 as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.”

This definition creates a hybrid subjective and objective test for what will constitute harassment. The harasser’s own knowledge is considered (subjective) as well as what would be reasonably known (objective). Harassment on the basis of the protected ground of sex would be considered sexual harassment.

What about Consenting Adult Relationships?

So if I think that my co-worker has been sending me green light signals and so would a reasonable person, I might be okay. However, the analysis does not stop there.  While there is nothing illegal or objectively wrong with a workplace romance between two consenting adults, it’s rarely that simple.

Facebook and Google have both been in the news lately for their takes on the office romance issue. Both companies are reported to have office dating policies specifying that employees will only be permitted to ask a co-worker for a date ONE time. If the propositioning employee is turned down, they are not permitted to ask again. If the answer is ambiguous, they are to take it as a NO. These policies also have mandatory date reporting requirements and prohibitions on dating where there is a conflict of interest, for example dating a direct report.

Power Imbalances

Section 7(3)(a) of the Human Rights Code establishes an individual’s right to be free from unwelcome sexual  advances or solicitations from a person in a position to grant or deny a benefit. This would generally be someone in a position of authority, but not necessarily. For example, even if my co-worker and I have the same level of position, if I have been in the position longer and my co-worker relies on me for information and guidance in the workplace, I may be seen as being in a position to grant or deny a benefit.

In situations where there is power imbalance, it is safe to say that one should never risk making a sexual advance, or asking a subordinate on a date. This is because the power imbalance makes it such that the less powerful individual cannot truly ever be seen to be giving consent freely, regardless of the genders involved.  

Asking for a Date

So if my co-worker is objectively sending positive signs, such that a reasonable person would think a (very polite, respectful, mild and non-physical) advance would not be unwelcome, and I am not in any way in a position to grant or deny a workplace benefit, then it may be safe to ask them to be my Valentine.

The next question to consider will be the type of outing request itself. Asking them if they’d like to accompany you to the Vagina Monologues might be a nice idea but certainly a step further than a coffee after work. Those green light signals need to be pretty clear. Just because a person does not openly communicate their distaste for a comment or behaviour, does not mean the actor can interpret it as not unwanted.

Examples of Sexual Harassment

The Ontario Human Rights Commission provides us with a long list of what activities may be sexual harassment including:

  • Demanding hugs
  • Unnecessary physical contact
  • Sex-specific derogatory comments or language (towards men or women)
  • Displaying or circulating sexual images
  • Propositions of physical intimacy
  • Demanding dates
  • Sexual questions or discussion
  • Requiring an employee to dress in a sexualized or gender-specific way

The Employer’s Role

Employers too need to be aware of the sexual tensions at play in an office, or risk being held liable for failing to address a poisoned work environment. For example, if two co-workers had a relationship and then broke up, and one is now showing revealing photos of the other around the office, this likely creates a poisoned work environment for the depicted employee. Though a manager may be tempted to deem the matter personal, the employer has an obligation to protect the employee.

The Ontario Occupational Health and Safety Act establishes standards for safe and healthy work environments. As under the Human Rights Code, under OHSA employers have obligations to prevent and address sexual harassment. Employers can protect themselves and their employees from sexual harassment with appropriate policies, training and complaint and investigation procedures.

No one ever said love would be easy.

If you need help establishing best practices, or navigating a tricky situation in your workplace, contact us at SpringLaw for help.

Stacks of Canadian currencyWal-Mart Canada has been hit with the largest award for moral damages in a Canadian employment case ever. In December, the Ontario Superior Court awarded punitive and moral damages of $750,000 to former Wal-Mart Canada employee Gail Galea. Read the full decision here (nearly 100 pages).

Ms. Galea was a senior management employee, hired by Wal-Mart in 2002. She quickly climbed the ranks, eventually earning nearly $500,000 in annual total compensation and the position of Vice-President, General Merchandise.

Pre-Termination Conduct

In January 2010 Wal-Mart restructured. Ms. Galea was removed from her position and told that she was “still valued,” but that that they “did not know what to do with her.” Ms. Galea remained employed by Wal-Mart, but largely without a role, for the next ten months. She was put in the position of taking temporary assignments, and of trying to find herself a new position within the company. With respect to the restructuring, the court found that the then-president and CEO of Wal-Mart Canada had removed Ms. Galea from her position with the hopes that she would resign. Regarding Wal-Mart’s conduct during this time Justice Emery stated:

Wal-Mart would make representations to Ms. Galea about her career prospects while making decisions that detracted from, or even defeated that purpose. It is not that Wal-Mart set Ms. Galea up to fail; it is that Wal-Mart built her up, only to let her down that much more. That corporate behaviour was not just unduly insensitive, it was mean.

He found that Wal-Mart knew Ms. Galea’s career with Wal-Mart was over in January 2010, and effectively strung her along for another 10 months. In November 2010 Ms. Galea was terminated, without cause.

Moral Damages

In making the moral damages award Justice Emery considered Wal-Mart’s conduct before and after the termination, as well as their conduct during litigation. The court awarded Ms. Galea damages for Wal-Mart’s conduct during the 10 month period during which Ms. Galea remained employed, but was effectively without a job. Holding that Wal-Mart had breached the employer’s implied duty of good faith, and that this breach had caused Ms. Galea mental distress.

The court determined that Ms. Galea was not required to provide expert medical evidence with respect to her claim for mental distress, holding that in the employment context, that the law in Ontario does not require that a plaintiff lead medical evidence to make out a case for this type of damages.

Wal-Mart’s litigation, and post termination, conduct was such that the court awarded $50,000 against them. As part of her employment Ms. Galea had signed a two year non-compete agreement, a term of which was that Wal-Mart continue to pay her her base salary during that time, if she was terminated without cause. Among its post-termination wrongs, Wal-Mart stopped paying Ms. Galea after 11.5 months. Wal-Mart also was found to have delayed litigation, causing “mental distress” and “prolonged anguish” to Ms. Galea.

In total Ms. Galea was awarded $250,000 in moral damages ($200,000 for Wal-Mart’s conduct during the 10 months and $50,000 for post termination conduct), including aggravated damages and damages for mental distress and $500,000 in punitive damages.

Takeaways

This is not the first time Wal-Mart Canada has been slapped with a large moral damages award. In Boucher they were successful on appeal of reducing a $1,000,000 punitive damages award to $100,000. We will have to wait to see if Wal-Mart will choose to appeal this case.

This case represents a trend of courts holding employers liable for bad behaviour towards employees. While the dollar amounts in this case are high, it should be kept in mind that one purpose of punitive damages is to deter the reprehensible behaviour. The bigger the company the bigger the award needs to be for it to have meaning.

If you are about to enter into a contentious termination in your workforce, contact us at SpringLaw to help you navigate what could otherwise be an expensive and high risk situation.

Fountain pen writing on note paperAmongst the many changes to the Employment Standards Act introduced by Bill 148 is the expansion of Personal Emergency Leave. Previously only available to employees in workplaces with 50 or more employees, this 10 day leave is now available to everyone. The first two days of leave are paid. Effectively this amounts to two days of paid sick, caregiver or bereavement leave per year for all employees.

Entitlement to Personal Emergency Leave

Personal emergency leave can be taken for the following reasons:

  1. A personal illness, injury or medical emergency.
  2. The death, illness, injury or medical emergency of an individual described in subsection (2).
  3. An urgent matter that concerns an individual described in subsection (2).

Subsection (2) details a list of individuals from the employee’s spouse to the step-grandparent of the employee’s spouse – basically the leave can be taken with respect to any of the employee’s or the employee’s spouse’s relatives.

Evidence of Entitlement

A tricky amendment, and the one that we anticipate will create a lot of headaches for employers, is with respect to evidence. Subsection (13) sets out that employers “shall not require an employee to provide a certificate from a qualified health practitioner as evidence” of their entitlement to the leave. “Qualified health practitioner” is defined in this section as a doctor, nurse or psychologist. What is permitted under subsection (12) is the mysterious “evidence reasonable in the circumstances.”

We can appreciate that not every illness requires a trip to the doctor (or nurse or psychologist), and that the hassle of getting a doctor’s note can create its own set of problems, however what type of evidence will employers be able to require from employees using these days?

What is “evidence reasonable in the circumstances”?

While the amendments to the Personal Emergency Leave are too new to have been considered by the courts at this point, the phrase “evidence reasonable in the circumstances” was in the previous version of the legislation and has been considered by decision makers.

The most comprehensive discussion of this ambiguous phrase comes from Arbitrator Chauvin in Access Alliance Multicultural Community v Health, Office, Professional Employees and Education Division of UFCW, Local 175. In that case he provided the following guiding comments about what is “reasonable in the circumstances”:

  • Determining what is reasonable requires a balancing of the rights and interests of the employer and the employee
    • The employee has a statutory right to the leave
    • The employer has the right to operate its business productively
  • Ideally, the employee will provide the best evidence reasonably available to support their entitlement to the leave
  • Evidence requested by the employer should be proportionate to the length of the leave – for example, in the case of a leave of only one day the employee’s statement may be sufficient and it may be unreasonable to require that the employee provide further evidence
  • Where grounds exist to question the legitimacy of the leave, it may be reasonable to require more evidence  

An example given in the case is that of an employee missing a day of work because of a migraine. This situation was considered in Tilbury Assembly Ltd. v. United Automobile, Aerospace and Agricultural Implement Workers of America, Local 251 (International Union) (Butler Grievance), [2004] O.L.A.A. No. 111, 124 L.A.C. (4th) 375 where the arbitrator ruled that it was not reasonable to require a doctor’s note, because it was not necessary for the employee to see a doctor because of a migraine. A note from the pharmacist and a receipt for migraine medication was sufficient “evidence reasonable in the circumstances.”

What’s an Employer to Do?

While an employer cannot require a doctor’s note this does not mean an employer cannot ask for one, there will just be no recourse where the employee refuses to provide it. Employers need to act as reasonably as possible and tailor their requests for evidence to the circumstances. If a leave is taken to care for a sick child, it may be reasonable to request evidence of the child’s absence from school. If a leave is taken because of the death of a family member, it may be reasonable to request to see the obituary. If an employee takes one day off because they have a sore throat it may be reasonable to just take them at their word. If, however, they have a pattern of having a sore throat every Monday and Friday it may be reasonable to require more evidence.

Employer’s should bear in mind that the leave entitlement is for 10 days (the first two are paid). Therefore, it is permissible to require an employee to provide a doctor’s note on the 11th day.

If you need help understanding the amendments to Ontario’s workplace laws or implementing an attendance management program we would be happy to assist. Contact us at SpringLaw for more information and to discuss the specifics of your situation.

robotStories about artificial intelligence (AI) stealing our jobs and robots going rogue have been in our collective consciousness for years. Elon Musk has also sounded the alarm bells, calling AI the “biggest risk we face as a civilization”. While he may know a few things I don’t, I can’t say that I agree. Always one to embrace technology, I think AI has great potential to be used by businesses in the HR space, such as to make hiring practices more efficient and more fair.

Online dating sites such as OkCupid have been using AI for over a decade to help people find their love match, so why not apply that success to employers looking for the right candidate.

Picture a hiring manager faced with a thousand job applications to sort through – AI can help Human Resources sift through resumes and identify suitable candidates. AI assisted applicant screening also has great potential to reduce the risk that candidates will be discounted because of implicit bias that human hiring managers may unconsciously hold. For example, studies have shown that those with anglicized names get more job interviews than those whose names suggest they are members of a minority group.

AI can act as a bias-free screening tool. AI hiring assistants do not know how old candidates are, what they look like or what sex they are. This levels the playing field, ensures diversity of candidates and helps businesses truly find the best talent.

Some businesses are doing away with resumes entirely, amid suggestions that they reveal too much information that could trigger potential bias – name, gender, schooling – and that these attributes have very little to do with whether or not the candidate will be a good fit.

One new technology works with employers to film candidates answering questions. AI then measures things like micro-muscle movements in the person’s face to make judgments about their communication skills, level of enthusiasm etc. This practice shortlists candidates based on applicable skills in a way that is free of human bias.

Another iteration of AI hiring technology, currently being used by some large organizations, uses OkCupid-like questions to find candidates jobs that would be a good match for them. Searching the entire opening pool, candidates are directed to jobs that they would not have necessarily applied for, but that may be a good fit. Similar technology is being used to ensure that current employees are in positions that fit well with their skills.

Giving all these jobs to robots and algorithms raises interesting ethical questions. Is it an invasion of a candidates privacy to measure the quiver of their lip during a video interview? Plus, any AI system is only as good as the data inputted into the system to be assessed.  How do we assure there are no baked in biases in the data or the way the data is prioritized, that the human directed data is not somehow tainted with bias, leading to further system discrimination?

What if something goes wrong, who will be held responsible? Computers do not act with intention and they cannot not be punished. How will the law navigate these questions of liability? Corporations for example are legally recognized as their own entities. Could the law evolve in the same way with respect to AI?  

The expansion of AI in the workplace will continue to raise big questions, and likely trigger the need for policy changes as well as new government regulation.  Either way, HR is not being outsourced anytime soon.  Rather, technology like AI will serve as another tool to deal with the high volume of work facing every HR department.

Contact us at SpringLaw for help with all of your workplace law questions.  

inside Notre Dame Cathedrale, MontrealMerry Christmas! Wait. What? Can we still say that in public?  Why yes, we can, but not at the cost of excluding all other religions in the workplace.

For those that do not celebrate Christian holidays (and/or secular commercial holidays derived from Christian traditions), focusing only on Christian traditions can feel like exclusion.

It’s hard to feel like you belong if you don’t share similar traditions. Taken too far, and the exclusion can evolve into religious discrimination, giving rise to religious accommodation obligations.

Religious accommodation can be tricky, particularly where an employer may not be aware of the religious practices of the religion practiced by an employee. For example, if one of my employees came to me, told me they practiced the religion Klingon and required certain days off would I have to let them? What makes a religion a religion such that an employer must accommodate an employee’s religious practices?

Creed Under the Human Rights Code

The Ontario Human Rights Code prohibits discrimination or adverse treatment with respect to religion or “creed.” This could look like refusing to make an exception to dress code requirements or refusing to recognize religious dress requirements, refusing to allow employees to observe periods of prayer at particular times of the day or refusing to allow employees time off to observe religious holidays.  

So back to my Klingon question, do I have to allow my Star Trek worshiping employee the day off or face a religious discrimination complaint?

What Constitutes a Religion?

According to the Ontario Human Rights Commission a religion “includes the practices, beliefs and observances that are part of a faith or religion” and “[i]t does not include personal moral, ethical or political views.” The Code also does not provide protection for beliefs “that promote violence or hate towards others, or that violate criminal law.”

Creed in the Case Law

Atheism ✔

In R.C. (Next friend of) v. District School Board of Niagara, the Ontario Human Rights Tribunal determined that atheism is a creed deserving of protection under the Code. The Tribunal looked at the Supreme Court’s comments, and definition of religion under s.2(a) of the Canadian Charter of Rights and Freedoms, in Syndicat Northwest v. Amselem. In Syndicat the Court stated that:

“In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfilment, the practices of which allow the individuals to foster a connection with the divine or with the subject or object of that spiritual faith.”

While atheism refutes, as opposed to fosters, a connection with the divine, the Tribunal also considered  international human rights law, particularly Article 18(1) of the International Covenant on Civil and Political Rights, to which Canada is a ratifying party.

Section 18(1) of the International Covenant on Civil and Political Rights reads:

“Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.”

This has been interpreted to include protection for theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. As stated by Article 2 of the 1993 General Comment on this article by The Office of the High Commissioner for Human Rights, General Comment No. 22, UN Doc. CCPC/C/21/Rev.1/Add/4L, “[t]he terms ‘belief’ and ‘religion’ are to be broadly construed,” and “Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions.”

The Tribunal determined that it is appropriate to take “a liberal and purposive interpretation of the prohibition on discrimination because of ‘creed’” and to include the prohibition on discrimination because a person is an atheist.

Falun Gong ✔

The Tribunal applied similar reasoning in Huang v. 1233065 Ontario Inc. (Ontario Senior Chinese Cultural Assn.) (c.o.b. Ottawa Chinese Senior Assn.) in determining that Falun Gong is a creed. Beliefs of this practice include that people may be possessed by animals, that the founder of Falun Gong possessed paranormal abilities and that there is a rotating wheel in the stomach. The Tribunal held that it was not for the Tribunal to determine whether or not a belief systems is reasonable, would withstand scientific scrutiny or whether its beliefs are consistent with Charter values.

Festivus ?

The takeaway? The Tribunal is likely to interpret the question of what is a creed broadly. Employers should take requests for religious accommodation seriously, even where an employee professes to be a member of a religion (or non-religion) the employer didn’t know existed.

For those of you that do celebrate Christmas, have a wonderful holiday season and all the best in 2018.

(And for those that celebrate both Christmas and Star Trek, here’s our favourite TNG Christmas Carol)

A few weeks ago a new judge was put forward as the recommended candidate to replace our current Supreme Court of Canada Chief Justice Beverley McLachlin, who will be retiring this month. The candidate, Alberta Court of Appeal Justice Sheilah Martin, would fill a seat that some had expected to go to an Indigenous judge, or a judge from British Columbia. However, the appointment would maintain the current gender balance on the court.

Chief Justice McLachlin, our first female Chief, has been the Chief Justice for 17 years, a judge for 36 years and on the Supreme Court for 28. In Canada judges have a mandatory retirement age of 75 years. The Chief Justice will be retiring 9 months before she hits that mark. Though she may continue to sign off on outstanding judgements for another 6 months post retirement her last day at the office will be December 15.

How We Appoint Judges to the Supreme Court

In Canada we appoint, as opposed to elect, our judges. This is true at all levels of our court system, though processes vary. Traditionally, judges of the Supreme Court are appointed by the Governor General-in-Council, based on the advice of the Queen’s Privy Council for Canada. This “advice” is generally exclusively garnered through consultation with the Prime Minister. The provinces and parliament have historically had no formal role in the appointment of a judge to the Supreme Court.

However, Prime Minister Trudeau has shaken things up by changing the process by which appointments are made. Instead of being selected, anyone eligible can now apply to the job. An independent and nonpartisan advisory board identifies suitable candidates. The identity of the members of the advisory board, the assessment criteria and process used with applicants is available to the public.  

Once the advisory board compiles a shortlist of candidates, parliament gets involved. The Minister of Justice consults the Chief Justice, provincial and territorial attorneys-general, members of the House’s justice and human rights committee, the Senate’s legal and constitutional affairs committee and the Opposition justice critics. Once a nominee is selected, as Justice Martin has been, a special justice and human rights committee hearing is held where the Minister of Justice and the chair of the advisory board will explain the reasons behind the nomination. In the case of Justice Martin, this hearing took place December 4th. Members of the house then have an opportunity to participate in a Q & A session with the nominee, which Justice Martin participated in December 5th.

Justice Malcolm Rowe, from Newfoundland, was appointed under the new process to fill the vacancy left by Justice Thomas Cromwell in October 2016. You can check out his application questionnaire here.

However, it is noteworthy that this new more transparent process is not law so nothing legally compels the Prime Minister to follow it.

Eligibility

In order to be eligible for appointment, or to apply for the top job, candidates must be current judges of the Superior Court system or have been members of the legal bar (lawyers) for at least ten years. They must also be bilingual.

Regional Representation

There are nine seats on the Supreme Court. Three are reserved for judges from Quebec. This is the case despite the fact that only 24% of Canada’s population resides in Quebec, but is considered justified due to Quebec’s very different legal system.

Of the remaining six seats, three are to be filled by judges from Ontario, two from western provinces, divided generally as one from British Columbia and then a rotation between the other provinces and one judge from the Atlantic provinces typically Nova Scotia or New Brunswick. If Justice Martin is appointed there will be two judges from the province of Alberta on the court.

While consideration is given to regional representation, there have been no formal changes to ensure equitable representation with respect to race or gender. Presently all justices of the Supreme Court are white. Four are women and five are men. Critics were generally surprised by Trudeau’s appointment of Justice Rowe, a white man, in 2016 and, as noted, it was expected that he may have appointed an Indigenous judge next.

The Next Chief Justice

While Justice Martin would take Chief Justice McLachlin’s place, she would not replace her as Chief Justice. Yesterday it was announced that the Chief’s shoes will be filled by a Harper appointee, Justice Richard Wagner who is presently 60 years old. Prime Minister Trudeau follows custom with this appointment – Traditionally, the Chief Justice post is filled alternately by the most senior anglophone and francophone member of the court. Justice Wagner is the most senior francophone member of the court.

 

infant on a blanket with feet upThe Liberal government has introduced changes to the federal parental leave benefits program. Details of the changes were announced early November and are set to come into force on December 3, 2017.  This change is separate from the various Bill 148 changes coming down the pipe.

What’s New?

These are not additional monetary benefits, but rather, once the changes come into effect, eligible parents will be able to spread their 12 months of EI parental leave payments over 18 months. This means that the parent on leave will now be eligible to receive up to $326 a week for 18 months, as opposed to the current 55% of average weekly earnings or a max of $543 a week for 12 months. While the 18 months of  leave can be split between two parents, it must be taken all at once. Expectant mothers will also be able to start their maternity leaves 12 weeks before the baby is due.

Who will be affected?

Currently, the changes only affect employees in the federally regulated sector, which includes banking, transportation, telecommunication companies and other federally regulated businesses. We will have to wait and see if the provinces similarly change their legislation to follow suit. So far only Ontario has publicly committed to doing so.

The new 18 month leave will only be available to parents beginning their leave after the changes come into effect on December 3, 2017, and is not available to parents currently on leave.

What will this mean for employers?

Unless an employer offers a “top-up” to an employee’s income during parental leave, they are not required to continue to pay an employee’s salary during a parental leave. Employers will continue to be required to hold the employee’s job open, now for 18 months instead of 12, and to continue to pay for their extended health care benefits during the leave period.

Federally regulated workplaces will need to amend existing parental leave policies to reflect the changes. If employers offer a “top-up” to the EI parents will receive on leave, then employers will need to decide how they will deal with situations where employees opt to take the full 18 months.

Additionally, any reference to lengths of parental leaves in contracts, including Collective Agreements, will need to be updated.

Pregnant Employees

While having an employee take a parental leave can be disruptive to the workplace, employers need to be aware that pregnant employees are protected from discrimination by human rights law. Employers should take care not to make assumptions about what a pregnant woman can or cannot do. Comments, for example, about “mommy brain” are not appropriate. Employers cannot terminate an employee, or unilaterally change her working conditions, because she is pregnant. As with most things in life, good communication is key. If an employee tells you they are expecting, the first words out of your mouth should be congratulations!

Time will tell if employees will take advantage of the new 18 month leave. As the amendments do not affect the amount of money available to parents on parental leave, just length of time, it is anticipated that taking 18 months will not be affordable for many families. However, it is also anticipated that extending the leave period to 18 months will encourage more fathers to take a leave.

Brace yourself, Ontario.  Today Bill 148 passed Third Reading and the Ontario Legislature will pass the bill into law on November 27, 2017 when it receives Royal Assent.  Most of the changes will come into force on January 1, 2018, while a small handful of the amended ESA sections may possibly come into force as early as December 3, 2017 (leave of absence related provisions).  Provisions related to equal pay come into force on April 1, 2018.

As an aside, it also appears that the high heels OHSA amendment I blogged about this morning was incorporated into the final version of Bill 148 and thus also became law this afternoon.  Happy new year to those women who can no longer be forced to wear heels if they don’t wish to.

Stay tuned for details on what this all means.  For now, feel free to review our past blog posts on highlights of Bill 148 or go straight to the full text of the Bill on the Legislative Assembly of Ontario’s website.

The following acts are amended by this bill, making this an expansive and important moment in the development of Ontario’s workplace laws:

  • Colleges Collective Bargaining Act
  • Crown Employees Collective Bargaining Act, 1993
  • Employment Protection for Foreign Nationals Act (Live-in Caregivers and Others), 2009
  • Employment Standards Act, 2000
  • Labour Relations Act, 1995
  • Occupational Health and Safety Act
  • Public Sector Dispute Resolution Act, 1997
  • Public Sector Labour Relations Transition Act, 1997
  • School Boards Collective Bargaining Act, 2014