I INTRODUCTION

Canada is a federal state comprised of a central federal government, 10 provincial governments2 and three northern territories.3 The federal government has legislative jurisdiction over matters affecting the country as a whole (i.e., immigration, criminal law, international trade, aeronautics), while the provinces hold legislative jurisdiction over matters such as property, contracts, natural resources, education and healthcare.4 The territories exercise powers delegated by the parliament of Canada and have jurisdiction over some of the same matters as the provinces.

Employment and labour relations for the majority of private enterprises in Canada fall under the authority of the respective provincial or territorial governments. In each province and territory, as well as at the federal level, there are numerous statutes governing employment and labour relations. In addition, all jurisdictions other than Quebec are subject to the common law or judge-made law. Quebec is Canada’s only civil law jurisdiction and it applies the Civil Code of Quebec.

i Federal legislation

The Canada Labour Code5 applies to federal works and undertakings,6 as well as enterprises that are ‘integral’ to federal work or a federal undertaking. The Canada Labour Code addresses employment standards, such as hours of work, vacation, holidays, leave, dismissal, wages, harassment, labour relations and health and safety.

For federally regulated enterprises, the Canadian Human Rights Act7 governs issues relating to human rights and discrimination while the Employment Equity Act8 addresses systemic barriers faced by historically disadvantaged groups.9

In addition, some federal legislation, such as the Canada Pension Plan10 and the Employment Insurance Act,11 applies regardless of whether an enterprise is federally or provincially regulated.

ii Provincial and territorial legislation

Each province and territory has its own legislation setting minimum standards regarding wages, hours of work, notice entitlements upon termination, occupational health and safety, workplace safety and insurance, human rights, discrimination,12 unionisation and the administration of collective bargaining agreements in unionised workplaces.13

Several jurisdictions have pay equity legislation intended to address systemic gender discrimination in the workplace. As discussed below, the federal government announced in October 2016 that it would establish pay equity legislation for federally regulated employers, to be implemented commencing in 2018.

iii Ministries and departments

Government ministries or departments administer workplace laws in the various Canadian jurisdictions. The jurisdictions, through their respective legislatures, have authorised these ministries and departments to develop and oversee adjudicative boards and tribunals tasked with enforcing human rights, employment and labour-related statutes. As a result, many workplace disputes are addressed not through the court system, but rather by way of administrative or other quasi-judicial hearings or decision-making processes.

II YEAR IN REVIEW

The past year, 2016, was another eventful year across the Canadian labour and employment landscape.

A non-employment law case, Doe 464533 v. X (Doe 46533),14 may well have an impact on the release of confidential information by employers. The Ontario Superior Court recognised a claim of ‘public disclosure of embarrassing private facts’ in a case where the former romantic partner of a university student released sexual pictures of the student online, causing considerable damage. The recognition of this tort in Ontario signifies the continuing development of privacy torts in Ontario and throughout the country. Employers will have to monitor whether this new tort obtains judicial traction, particularly with a view towards developing or revising workplace confidentiality policies.

Canadian courts continue to punish those employers that treat their employees poorly. The decision of the Ontario Court of Appeal in Strudwick v. Applied Consumer & Clinical Evaluations Inc15 should serve as a strong reminder to employers that mistreatment of employees may lead to significant financial consequences. In Strudwick, the employer was ordered to pay a former employee hundreds of thousands of dollars for terrible treatment incurred by a long-term, low-paid employee, described as a ‘campaign of abuse designed to force [the employee’s] resignation’ not long after she suddenly became completely deaf.

III SIGNIFICANT CASES

i Wilson v. Atomic Energy of Canada Inc

Federally regulated employers subject to the federal Canada Labour Code (the Code) cannot dismiss their non-unionised employees without cause.16 This is the heart of the Supreme Court of Canada’s decision in Wilson v. Atomic Energy of Canada Ltd.17

Joseph Wilson, an employee of four-and-a-half years, was terminated without cause and was provided with a severance package totalling six months’ pay. He filed an unjust dismissal complaint under the Code. The Labour Adjudicator allowed the complaint, holding that termination without cause is not permitted under the Code. This decision ultimately made its way before the Supreme Court of Canada. Writing for the Majority, Justice Abella noted that there had been more than 1,740 decisions since the unjust dismissal scheme was introduced in the Code. Of these, merely 28 (or 1.61 per cent) found against the principle that Code-regulated employers cannot dismiss their employees without cause.

Atomic Energy restores what was understood by most labour law practitioners to be the status quo on the issue of dismissal of Code-regulated employees without cause. It is important to keep in mind that the Code applies to non-unionised employees employed by a federally regulated employer who have completed 12 consecutive months of continuous employment.18 Remedies available under the Code include reinstatement and employees are not precluded from bringing a civil claim against their employer for wrongful dismissal.

ii Fixed-term employment contracts

Howard v. Benson Group Inc19 is a good reminder of the importance of properly worded employment contracts, especially where the parties agree to a fixed-term contract of a significant duration.

Mr Howard entered into a five-year contract with the employer, an automotive service centre. The employment contract included a clause stating that the employer could terminate the contract at any time and ‘any amounts paid to the Employee shall be in accordance with the [provincial] Employment Standards Act of Ontario’. Mr Howard’s contract was terminated without cause after 23 months. He then brought an action for breach of contract and wrongful dismissal, seeking compensation for the remainder of his contract.

At the motion for summary judgment, the employer argued that the limitation clause in the employment contract applied. The clause would have limited the damages to two weeks of notice (or pay in lieu). The court found that the language was ‘sufficiently ambiguous’ and the clause was unenforceable. It also implied a term of common law ‘reasonable notice’ in assessing damages. Mr Howard appealed. The Ontario Court of Appeal found that the court erred in implying a term of reasonable notice and held that the common law presumption of reasonable notice is ousted where an employment contract unambiguously provides for a fixed term. In addition, if the parties do not properly specify a predetermined notice period, the court will consider the parties to have agreed to a notice period that equals the unexpired portion of the fixed-term contract.

iii Contractual restrictions on bonus payments

The Ontario Court of Appeal delivered two important decisions regarding an employer’s ability to restrict employees’ rights to compensation for bonuses that would have been paid during the employee’s reasonable bonus period upon termination without cause. Often, employers would limit such rights by including language in the employment contract requiring that the employee be ‘actively employed’ on the date a bonus is paid to receive the bonus. Following the decisions of Paquette v. TeraGo Networks Inc 20 and Lin v. Ontario Teachers’ Pension Plan Board,21 this strategy may prove problematic for employers – at least those in Ontario – to execute without risk.

In Paquette, an employee of 14 years had his contract terminated without cause. He was offered 30 weeks’ (approximately eight months) base salary in lieu of notice. Mr Paquette filed a statement of claim seeking payment for the value of his salary, bonuses and benefits for the duration of his reasonable notice period. Mr Paquette was awarded 17 months’ reasonable notice at trial for his salary and benefits but not his lost bonus payments. The employer’s bonus programme included a provision requiring employees to be ‘actively employed by TeraGo on the date of the bonus payout’ to receive a bonus. The trial judge determined that Mr Paquette was not ‘actively employed’ during the reasonable notice period and was, therefore, not entitled to any bonus. The Ontario Court of Appeal held otherwise, determining that the ‘active employment’ obligation contained within the employment contract did not exclude bonuses that Mr Paquette would have been entitled to during the reasonable notice period. Rather, the court focused on what compensation Paquette would have been entitled to, had his employment not been wrongfully terminated. In other words, Mr Paquette’s claim was not for the actual bonuses themselves, but for damages as compensation for the bonuses he would have received if his employer had not breached his employment contract by failing to give him reasonable notice of termination.

In Lin, an employee of eight years had his contract terminated for cause. The employee, an investment professional, sued and was awarded 15 months’ compensation in lieu of notice, which included his salary, benefits, pension and bonuses under the employer’s short and long-term incentive plans. The employer appealed, arguing that the trial judge erred in that the incentive plans included language explicitly stating that no bonus would be paid in the event of termination of employment before receipt of the bonus payment.

The Ontario Court of Appeal affirmed the trial decision, holding that the bonus plan did not unambiguously remove or alter the employee’s common law right to damages. This right included compensation for bonuses he would have received during the notice period.

Paquette and Lin should give employers cause to review their bonus plans and any contractual language purporting to limit the payment of bonuses to employees by requiring them to be employed at the time of payment.

IV BASICS OF ENTERING AN EMPLOYMENT RELATIONSHIP

i Employment relationship

In Canada a written employment contract is not required. If a written employment contract does not exist, certain employment terms will be deemed to be the parties’ contractual obligations to one another, such as reasonable notice at common law. Generally speaking, employees ought to insist on a written, fully executed employment contract.

Standard employment contract terms include such things as wages, hours of work, duties and responsibilities, confidentiality, and rights and obligations upon termination. Employers often create employment policies that form part of the employment contract. Employment standards legislation in each Canadian jurisdiction prescribes certain employment ‘minimums’, that is, basic employment terms that cannot be avoided by way of contract. If a contract provides less than an employee’s minimum entitlements under such legislation, it will often be found to be unenforceable, regardless of the jurisdiction.

Employment contracts can be for fixed or indefinite terms. Fixed-term contracts are often used where the employment relationship is meant to last for a defined period of time, or until a specified task or project is completed. At the end of the term, the employment relationship ends without any obligation on the part of the employer to provide the employee with notice of termination or pay in lieu. Canadian courts look at the language of the contract and the nature of the employment relationship to determine if the contract is for a fixed or indefinite term.

The terms and conditions of employment for unionised workplaces are set out in a collective agreement negotiated between the representative union and the employer. Labour legislation in the various jurisdictions also provides basic ‘minimums’, being the terms of the employment relationship that will be incorporated into the collective agreement if the parties failed to include the ‘minimum’ in their agreement.

ii Probationary periods

Probationary periods are permitted in Canada. The employment contract must clearly set out the existence of the probation period and state what, if any, notice period is required in the event of the employee’s termination in order to supplant the employer’s common law notice obligations to the employee. A collective agreement may also provide for a probationary period.

iii Establishing a presence in Canada

A foreign enterprise may enter into an employment relationship with an individual in Canada without officially registering to carry on business in Canada. They will, however, generally be subject to the employment and labour laws of the Canadian jurisdiction in which the employee works. As taxes are deducted at source in Canada, the enterprise must withhold taxes from an employee’s pay cheque and remit them to the appropriate tax authority.

V RESTRICTIVE COVENANTS

Generally, restrictive covenants are permitted in Canadian employment contracts. However, Canadian courts have severely limited the circumstances in which restrictive covenants, such as a non-competition or non-solicitation clause, are enforceable, as they are viewed from a policy perspective to be a restraint on trade. Courts are often reluctant to enforce restrictive covenants that preclude professionals (e.g., doctors, dentists or lawyers) from earning a livelihood. To be enforceable, restrictive covenants must be reasonable, both as between the parties themselves and with respect to the broader public interest in not limiting trade. They must be reasonable in term of duration (length of time they are in force), scope (what activities they cover) and geography (where they apply). A restrictive covenant will be enforced if it represents the minimal degree of restriction required to protect an employer’s legitimate business interests.

Where a court finds a restrictive covenant is overly broad, ambiguous or is overly restrictive, a court will usually strike down the restrictive covenant rather than read down its scope, amend or remove the offending clause.

VI WAGES

i Working time

Employment standards legislation sets out the standard hours of work in a day and in a week. In some jurisdictions, employment standards legislation sets out the maximum number of hours that can be worked in a week, a day or both. For example:

  • a in the Northwest Territories and Nunavut, this is 60 hours in a week and 10 hours in a day;
  • b in Ontario and federally, this is 48 hours in a week and eight hours in day;
  • c in Saskatchewan, this is 44 hours in a week;
  • d in Alberta, this is 12 hours in a day;22 and
  • e in Newfoundland and Labrador this is 16 hours in a day.

Employees are also entitled to a meal break or rest period after working a prescribed number of hours. Exceptions exist for some management and professional job categories.

ii Overtime

Employment standards legislation in every jurisdiction requires an employee to be paid overtime when he or she works greater than a prescribed number of hours in a week (generally 40–48 hours).23 Some jurisdictions also contemplate daily overtime (generally eight hours).24 The overtime pay rate also varies and can be anywhere from 1.5 times the minimum wage rate,25 1.5 times the employee’s regular wage rate26 or twice the regular wage rate.27

In some jurisdictions, an employer and employee can agree to replace overtime earnings with 1.5 hours of paid time off work for each hour of overtime worked.

Certain jurisdictions also allow an employer and employee to enter into an ‘averaging agreement’ whereby an employee and employer average the number of hours worked over a certain number of weeks for the purposes of determining overtime pay entitlement.

Exceptions exist for some management and professional job categories, or for individuals who make a certain wage rate or have substantial control over their working hours.

The reality is that almost every jurisdiction is unique in its treatment of overtime, and employers must obtain jurisdiction-specific advice when addressing overtime policies or claims.

VII FOREIGN WORKERS

An employer may bring a foreign national to work in Canada, and Canadian law distinguishes between workers who are required to apply for a work permit and those who are not. The most common category of permit-exempt workers is ‘business visitor’: a foreign national who visits Canada temporarily to look for new business or advance existing business.

The majority of foreign nationals working in Canada require a work permit and a labour market impact assessment (LMIA).28 The LMIA was introduced in 2014 as part of a comprehensive reform of the Temporary Foreign Worker Program.

An employer applying for an LMIA must confirm that: (1) there is no Canadian worker available to do the job; (2) there is a need for a foreign worker to fill the job in question; and (3) hiring a temporary foreign worker will not negatively impact the Canadian labour market.

An employer must apply for the LMIA before hiring a foreign worker. A positive LMIA requires the employer to show, among other things, that it made efforts to hire a Canadian first, it is offering wages consistent with comparable market wages and it is offering working conditions that meet legislated standards.

VIII GLOBAL POLICIES

To ensure employee conduct does not breach an employer’s statutory obligations, Canadian employers must govern workplace behaviour through policies.

For example, every jurisdiction requires an employer to maintain a safe and discrimination-free workplace. Ontario’s Occupational Health and Safety Act defines particular workplace behaviour as unsafe and an employer can face liability for the unsafe behaviour of a worker.29 Ontario’s Human Rights Code30 protects workers from discrimination in employment on prohibited grounds, and an employer can face liability for the discriminatory act of an employee.31 To avoid liability in such situations, an employer must demonstrate that it has taken reasonable precautions to prevent unsafe or discriminatory conduct, including harassment and bullying. Proof of these precautions may include the establishment and enforcement, through disciplinary measures, of a written policy outlining prohibited conduct at the workplace.

Employers are generally not required to file workplace rules or policies with government authorities. Some authorities are authorised to inspect the workplace to ensure compliance with the legislation, such as Occupational Health and Safety legislation.32

Enforcement mechanisms for workplace standards are not required to be included in the employment contract, but employers ought to require compliance with workplace policies as a condition of employment. A properly drafted employment contract should include this condition, and employees should be provided with copies of all relevant policies prior to executing the employment contract.

IX TRANSLATION

Quebec is the only province with language legislation affecting private-sector workplaces.33 Written communications must be in French, including offers of employment, employment contracts, policies and publicly displayed signs. An employment contract may be written in English if both parties agree. A collective agreement must be written and filed with the province in French. Any enterprise with 50 or more employees must register with the government for a ‘francisation’ certificate and participate in a process of encouraging the use of French in the workplace.34

X EMPLOYEE REPRESENTATION

Each Canadian jurisdiction has legislation governing the relationship between employers and unions.35 The legislation permits most employees to join and lawfully participate in a trade union.

A union may be voluntarily recognised by the employer to represent its employees, or it may be certified by the appropriate authority. To be certified, a union must obtain sufficient employee support, demonstrated through collection of union cards or a representation vote.36 Throughout the certification process (colloquially known as a ‘union drive’), an employer must refrain from action that may be found to intimidate, threaten or unduly influence an employee regarding his or her decision to join a union.

In most jurisdictions, an employer may express its view on unionisation, so long as any communication does not intimidate, threaten or unduly influence.37

Every Canadian jurisdiction imposes an obligation upon the employer and union to negotiate a collective agreement in good faith.38 As previously discussed, a collective agreement may not provide for rights and obligations that fall below statutory minimums set out in human rights, health and safety or employment standards legislation. A collective agreement (or the relevant legislation) will contain a mechanism for resolving disputes about its interpretation or administration through an adjudicative mechanism.39

xi DATA PROTECTION

i Requirements for registration

In Canada, four jurisdictions40 have legislation governing the collection, use or disclosure of ‘personal information’ concerning employees: federal,41 British Columbia,42 Alberta43 and Quebec.

Personal information is any information about an identifiable individual and includes age, personal contact information, income, evaluations and credit records. Federal privacy legislation, as well as that in British Columbia, Alberta and Quebec, generally operates in the same manner to protect the privacy of personal information, to require the disclosure of the purpose for the collection and to use and disclose only as is consistent with that purpose. Personal information must be safeguarded with security appropriate to the sensitivity of that information, including appropriate policies, physical security, electronic barriers and employee training, and employees must be given access to and the ability to correct inaccurate information.

Federal and provincial privacy legislation varies slightly with respect to the manner in which they address the protection of employee personal information. For example, in British Columbia and Alberta an employer does not require an employee’s consent to the collection, use or disclosure of personal information required to establish, manage or terminate the employment relationship, but must receive consent for the collection, use and disclosure of personal information unrelated to the administration of the employment relationship.

ii Cross-border data transfers

Employers are permitted to transfer personal information across an international or domestic border for processing (i.e., third-party payroll processing) but responsibility for the security of information remains with the organisation that collected it (i.e., the employer).

iii Sensitive data

The Personal Information Protection and Electronic Documents Act (PIPEDA) and similar privacy legislation require that sensitive information be safeguarded with security appropriate to the sensitivity of that information. Although the legislation itself generally does not enumerate categories of sensitive information, federal and provincial authorities have identified examples of sensitive information to include such things as medical history, financial data, racial or ethnic origin, political opinions, religious beliefs, trade union membership and sexual orientation. Organisations are expected to take additional precautions to prevent use or disclosure outside the scope of the purposes consented to. Protections for sensitive information could include restricting access to a ‘need-to-know’ basis or using encryption to prevent theft, loss or accidental disclosure during electronic transfer.

Personal information of a medical nature, often called ‘personal health information’, is the subject of specialised privacy legislation in most jurisdictions. This legislation is distinct from PIPEDA and similar provincial privacy regimes, and in general does not apply to the employment relationship.

iv Background checks

Employers are permitted to perform background checks on an employee or prospective employee. However, human rights legislation in several jurisdictions prohibits discrimination on the basis of information that might be revealed in a credit or criminal record check. In some jurisdictions, employers may require employee consent to collect and use the information, and must safeguard the information appropriately.

XII DISCONTINUING EMPLOYMENT

i Dismissal generally

Canada’s dismissal laws are governed by statute and the common law. They distinguish between unionised and non-unionised workplaces.

With some exceptions,44 a non-unionised employee can be dismissed without cause, so long as the dismissal is not a violation of human rights legislation or reprisal for exercising a workplace right, and the appropriate notice or pay in lieu is provided. In a federally regulated workplace, a non-managerial employee with at least 12 months of service who believes he or she had his or her employment terminated without just cause may seek reinstatement or seek damages in lieu. A unionised employee cannot be dismissed without just cause.

ii No just cause: notice of termination

Employment standards legislation in each Canadian jurisdiction prescribes the minimum statutory notice required at the time of termination where the employee is terminated without just cause. Notice under these statutory schemes generally ranges between one and eight weeks, depending on the employee’s length of service. In addition, Ontario and the federal jurisdiction require severance pay or an enhanced notice period where certain conditions are satisfied.

Unless a properly drafted and implemented employment contract limits the employee’s notice entitlement, the employer must provide reasonable or common law notice of termination (or pay in lieu).

iii Just cause

An employee may be dismissed without notice or pay in lieu where an employer has ‘just cause’ to terminate a worker’s employment. ‘Just cause’ is a high hurdle to overcome. In Canada, it is considered the ‘capital punishment’ of employment law. Generally speaking, an employee’s conduct must be so egregious that it is deemed to have violated an essential condition of the employment contract or violated the employer’s trust.

iv Constructive dismissal

‘Constructive dismissal’ occurs when an employer unilaterally changes a significant term or condition of employment, such that the employer’s actions indicate that it no longer intends to be bound by the terms of the employment agreement. From a legal perspective, the employer has terminated the employee’s employment. In this instance, the employee may resign and bring an action for damages in lieu of reasonable notice.

An employee alleging constructive dismissal must take reasonable steps to mitigate any loss, such as accepting continued employment with the employer where the employer offers similar remuneration and working conditions and where the employer has not created such a hostile or humiliating work environment such that no reasonable individual could be required to continue to attend work.45

v Government notification

Employers are required to provide the federal government and employee with a record of employment detailing the employee’s insurable earnings, hours and the reason for the dismissal. This may permit a dismissed employee to obtain employment insurance benefits following his or her dismissal.

vi Redundancies

Elimination of employees for lack of work is known as a ‘lay-off.’ Lay-offs may be either permanent or temporary. Permanent lay-offs are deemed to be a termination and the relevant employer obligations arise upon dismissal.

The lay-off procedure at a unionised workplace is governed by the collective agreement. A unionised employee generally retains the right to the position from which he or she was laid off for a period determined either by a collective agreement or legislation.

In a non-unionised workplace, employment standards legislation in most jurisdictions allows an employer to lay off an employee for a prescribed period of time without triggering termination entitlements. However, the common law in some provinces treats a temporary lay-off as a constructive dismissal, entitling the employee to notice or pay in lieu.

An employer may be obliged to notify a government agency in the event that a group of employees is permanently laid off within a short period of time.46

XIII TRANSFER OF BUSINESS

Legislation, the common law and civil law provide for the survival of certain employment rights following the sale or transfer of a business.

In a unionised context, this means a new employer assumes the place of the former employer and administers the collective agreement and bargains future agreements, while employees retain their rights and status under the collective agreement.

In a non-unionised context, an employee retains his or her statutory rights and service continues to be recognised for the purpose of statutory and common law reasonable notice.

XIV OUTLOOK

The federal government has indicated its intention to legislate pay equity by 2018, which will affect federally regulated workplaces throughout the country.47 The federal government is also proposing to require publicly traded companies to publish the number of women sitting on their boards and working in senior management positions.

According to Statistics Canada, women earn C$0.87 for every dollar earned by men in the federal private sector and Crown corporations.48 Although all employers should continuously be reviewing their pay structure for gender equality, this should provide added incentive for employers to consider whether they are meeting their obligations to provide equal pay for equal work, whether they are federally regulated or not.

At the federal level, changes to the Canada Pension Plan will mean increased premiums for employers and employees starting in 2019. Employers will have to review their existing benefits and – where available – private pension plans and consider what impact, if any, the changes will mean to them. With slow economic growth anticipated through 2017, including in former economic powerhouses with strong oil industries in Alberta and Newfoundland, trimmed provincial budgets and lower expenditures may strongly influence not only hiring and job creation, but also collective bargaining strategies for public sector employers and employees.

Finally, a continued focus on the ‘gig’ or sharing economy can be expected as companies such as Uber continue to expand throughout Canada and the various provinces and municipalities grapple with the changing employment landscape. With some estimating that there are approximately 20,000 Uber drivers in Canada,49 the arrival of new forms of employment – often characterised as part-time, independent, flexible or transactional – will eventually require the various levels of government in Canada to review and revise their legislation as it relates to worker pay and benefits, minimum wage and other employee protections, workers compensation and income tax regimes.

Footnotes

1 Stephen J Carpenter is a partner and Jonah R K Clements is an associate at Stewart McKelvey. The authors would like to acknowledge the contributions of previous Canada chapter authors, particularly the authors of the previous edition, Erin R Kuzz and Patrick M R Groom.

2 Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Ontario, Prince Edward Island, Quebec and Saskatchewan.

3 Northwest Territories, Nunavut and Yukon.

4 Constitution Act, 1867, 30 & 31 Vict, C 3, Sections 91-92.

5 RSC 1985, Chapter L-2.

6 I.e., interprovincial transportation, banking, federal government services, telecommunications and postal services.

7 RSC 1985, Chapter H-6.

8 SC 1995, Chapter 44.

9 The Employment Equity Act applies to federally regulated enterprises with 100 or more workers.

10 RSC 1985, Chapter C-8. Quebec employers deduct Quebec Pension Plan contributions.

11 SC 1996, Chapter 23.

12 Every jurisdiction has human rights legislation prohibiting discrimination in employment on prescribed grounds. These grounds include, but are not limited to, age, religion, gender, sexual orientation and disability.

13 See, e.g., Prince Edward Island Labour Act, RSPEI 1988, c L-1.

14 2016 ONSC 541.

15 2016 ONCA 520 [Strudwick].

16 There are limited exceptions, including discontinuance of a function or lack of work.

17 2016 SCC 29 [Atomic Energy].

18 Managerial employees are also excluded from the unjust dismissal provisions of the Code. What constitutes a ‘manager’ is the subject of much judicial interpretation and is heavily fact-specific.

19 2016 ONCA 256 [Benson], leave to app’l to the Supreme Court of Canada ref’d, 2016 CanLII 68016 (SCC).

20 2016 ONCA 618 [Paquette].

21 2016 ONCA 619 [Lin]. The lower court decision and underlying facts in Lin were extensively discussed in the seventh edition of the Employment Law Review.

22 In Ontario, Alberta and Saskatchewan, as well as federally, an employee can agree to work a greater maximum number of hours in a day and in a week.

23 In Nova Scotia and Prince Edward Island, overtime rates must be paid for hours worked after 48 hours in a week, while in New Brunswick, Alberta and Ontario, overtime rates must be paid for hours worked over 44 hours in a week. In Manitoba, federally and in the Territories (Northwest Territories, Nunavut and Yukon) overtime rates must be paid for hours worked over eight per day or 40 per week.

24 In British Columbia, Manitoba and Saskatchewan, an overtime rate of 1.5 times the employee’s hourly rate must be paid for all hours worked in excess of eight or 10 per day, and in British Columbia an overtime rate of twice the employee’s hourly rate for all hours worked in excess of 12 in a day.

25 Newfoundland and Labrador, and New Brunswick.

26 Most Canadian jurisdictions.

27 British Columbia, provided the employee has worked in excess of 12 hours in a single day.

28 Some workers are exempt from the LMIA requirement. For more information on an LMIA, employers should visit the Government of Canada, Immigration and Citizenship website at .

29 Occupational Health and Safety Act, RSO 1990, Cap. O.1, Sections 25 and 66.

30 Human Rights Code, RSO 1990, Cap. H.19.

31 Human Rights Code, RSO 1990, Cap. H.19 , Section 46.3. This remedy is not uncommon throughout the country. See, e.g., Prince Edward Island Human Rights Act, RSPEI 1988, c H-12, Section 29.

32 See, e.g., Prince Edward Island Occupational Health and Safety Act, RSPEI 1988, c O-1.01, Section 7.

33 Charter of the French Language, RSQ, Cap. C-11.

34 Charter of the French Language, RSQ, Cap. C-11, Sections 139–140.

35 See, e.g., Prince Edward Island Labour Act, RSPEI 1988, c L-1.

36 See, e.g., Prince Edward Island Labour Act, RSPEI 1988, c L-1, Section 13.

37 Manitoba is an exception. In Manitoba, an employer may not influence employees one way or another (for or against a union). The employer must remain neutral: Manitoba Labour Relations Act, C.C.S.M. c. L10, Sections 6(1), 32(1).

38 See, e.g., Prince Edward Island Labour Act, RSPEI 1988, c L-1, Section 24.

39 For example, arbitration or an administrative hearing before the relevant Labour Relations Board.

40 The Manitoba Personal Information Protection and Identity Theft Prevention Act, CCSM c P33.7 received Royal Assent on 13 September 2013 but, as of the time of writing, is not yet in force.

41 Personal Information Protection and Electronic Documents Act, SC 2000, Cap. 5.

42 Personal Information Protection Act, SBC 2003, Cap. 63.

43 Personal Information Protection Act, SA 2003, Cap. P-6.5.

44 For example, in Nova Scotia an employee with more than 10 years of service may only have his or her employment terminated for just cause.

45 The Ontario decision of Farwell v. Citair Inc., 2012 ONSC 6013 (CanLII), app’l dismissed 2014, ONCA 177 (CanLII) suggests that an employer should notify an employee of an opportunity to continue working for the employer after the employee makes the constructive dismissal claim, to protect the employer’s claim of mitigation.

46 Employers should consult the relevant Employment Standards legislation in their respective jurisdiction to determine whether this notification obligation arises.

47 Or 10,800 employers and 874,000 employees.

48 Marcel Vander Weir, ‘Pay equity to be legislated by 2018’, Canadian HR Reporter (Nov. 14, 2016).

49 Barrie McKenna, ‘It’s time to regulate Uber if a ‘gig’ economy is here to stay’, the Globe and Mail (Online) accessed 6 December 2016.