Canadian employers have been promised a more streamlined, effective and engaging process for hiring skilled foreign workers. Following an initial announcement in October of last year, the Government of Canada recently issued a news release providing further details on its new system for qualified economic immigrants, called “Express Entry”, which is set to launch in January 2015. The new system is portrayed as a “game changer” for Canadian employers seeking skilled workers from other countries.
Canada’s Minister for Citizenship and Immigration (“CIC”), Chris Alexander, touted the following benefits of the new system:
- greater flexibility and responsiveness to regional labour shortages;
- accepted candidates will be “quickly invited” to apply for permanent residency (infusing the labour market with permanent workers, a key distinction from the Temporary Foreign Worker Program);
- selection of workers to be based on the best candidates, rather than first in line; and
- faster processing times for qualified applicants of “six months or less”.
Perhaps most importantly, the government states that “employers will have a key role in selecting economic immigrants and providing advice to the Government of Canada.”
The new system is a welcome development for employers who have been belaboured by paperwork, long wait times and a flawed selection process for skilled workers under the previous system.
Keep an eye out for information sessions to be provided by CIC, in collaboration with provincial and territorial governments, across the country this spring. We will follow the development of the Express Entry system with interest and will continue to work with employers in preparation for its launch in January 2015.
If your organization is currently thinking about establishing or acquiring a business in Canada, the newest edition of Doing Business in Canada, written by McCarthy Tétrault, will prove to be a valuable resource. The guide provides a broad overview of the legal considerations that non-residents should take into account to help ensure their success as they enter into a business venture in Canada. Each section offers timely information and insightful commentary on different areas of law.
The book includes a chapter on employment in Canada, with sections on:
- employment standards
- labour relations
- human rights
- occupational health and safety
- employment benefits
After downloading the interactive PDF or eBook, we encourage you to consult one of our lawyers for a more comprehensive analysis of the legal implications of your proposed venture.
The long-awaited arbitration decision is in, and the result is a loss for random alcohol and drug testing. (See the Decision here and the Dissent here.)
Suncor had tried to implement a random drug and alcohol testing policy with respect to all of its safety-sensitive employees in the oil sands. The union resisted and was able to get an injunction from the Alberta courts to prevent implementation of the policy until the arbitration was completed.
A majority of the three member arbitration panel ruled against Suncor. They found that there was insufficient evidence of a problem with alcohol and drug use affecting the workplace, and that the evidence was lacking on the issue of whether random testing would help address whatever problem there was. Meanwhile, a dissenting member of the panel found there was compelling evidence (including three alcohol or drug related fatalities and 149 positive post-incident alcohol and drug tests, in 10 years) to justify random testing. Suncor intends to appeal the decision.
It is apparent from the decision that arbitrators are continuing to struggle with determining what will be “sufficient evidence” on the issues of whether there is a problem and the effectiveness of random testing to mitigate the problem. Next up will be the Teck Coal case, where the employer has promised more, and more compelling, evidence on both issues.
We have reviewed the progress of the Teck Coal case in earlier posts and will continue to follow it. One potentially important difference from Suncor is that the union in Teck Coal was not able to get an injunction to stop implementation of the random testing policy. That means that Teck Coal may be able to provide evidence of the positive effect of the policy between the time of implementation and the arbitration hearing.
Teck Coal will be allowed to continue to implement its random alcohol and drug testing policy while the union pursues its grievance to overturn the policy. Arbitrator Colin Taylor had previously denied the union an interim order to stop implementation of the policy (see our previous post here) and the BC Labour Relations Board has dismissed the union’s appeal of that decision. The decision is Teck Coal Limited, BCLRB No. B28/2014.
This means Teck will be allowed to follow its policy for now and the matter will go to arbitration for a decision as to whether the policy can stand in the long term. We will continue to watch this case, which promises to be significant for the continuing random testing controversy.
A recent decision of the BC Supreme Court went in favour of an employee who was terminated by her employer for alleged conflict of interest and breaches of policy. The court determined that there was a lack of clarity, training and consistency in its policies and procedures, and a flawed investigation: Ogden v. CIBC.
Ms. Ogden immigrated to Canada in 2000. She learned English and earned a business degree from Royal Roads University. She went to work with CIBC and built up a portfolio of $233 million working with Chinese clients. She was consistently a top performer.
In the middle of one night in 2010, in an urgent situation, she accepted a wire transfer of funds from China to her personal account and then completed the transfer to the client’s account the next day. There was nothing hidden, no personal benefit to Ms. Ogden, and it was done as the only way to get the funds necessary to avoid the collapse of a house purchase by the client . Apart from the funds being routed through Ms. Ogden’s personal account, the process of getting money from China was consistent with bank practice.
The wire transfer incident came to light some six months later. Ms. Ogden was forthcoming about what she had done. The court found that Ms. Ogden had simply made an error in judgment and that the employer did not give her a full opportunity to explain.
Ms. Ogden was terminated for just cause. The employer relied on a few previous incidents for which it had given a final warning after the wire transfer incident. The court concluded the wire transfer incident could not establish a final incident for cumulative cause, as it preceded the final warning Ms. Ogden had received.
The employer also relied on its conflict of interest policy with respect to the wire transfer. The court decided that there was no breach of the conflict of interest policy and stated:
Where the employee’s conduct is the result of an honest mistake, an error in judgment, or the result of a lack of training, the courts have stopped short again and again from finding that cause – in such circumstances – is warranted.
Intention here is key. Knowing that the transaction was wrong is what connects the conduct to a trust issue. Absent intention, the result is someone who exercised her judgment and made the wrong call.
The court found that Ms. Ogden’s career in financial services was ruined and that she suffered emotional harm. It cited “cavalier, insensitive and reckless” conduct by the employer in its investigation and resulting termination of Ms. Ogden and ordered damages for breach of contract and aggravated damages to be assessed in another trial.
The issue of changes to post-retirement benefits, such as health and welfare benefits provided to employees, is an issue that has arisen for employers trying to reduce costs. Our colleagues in Ontario have published a useful post regarding a recent Supreme Court of Canada decision which we link to here.
The BC Human Rights Tribunal has the power to order costs in favour of an employer. It uses this power very infrequently, but it is an important deterrent to frivolous complaints and helps to protect the integrity of the process. We discussed the use of costs in an earlier post.
Without an occasional cost award against complainants, employers face the prospect of having expensive wins while the complainant faces no risk except loss of their time and personal effort. The situation is exacerbated when the complainant has legal representation through legal aid. The situation is unfair to employers who face a frivolous claim they can’t afford to fight in the short term, but can’t afford not to fight for the sake of the long term. It is also one of the factors that influence the perception of some employers that BC’s human rights system does not provide a level playing field.
The benefits of the occasional cost award against a complainant is best illustrated by looking at a jurisdiction where it cannot happen. That is the situation discussed in a recent post by our colleagues in Ontario. In Ontario there is no deterent against frivolous or vexatious complaints as the Tribunal has no jurisdiction to make any award against a malicious complainant. There, employers have to pin their hope on passage of a private member’s bill to grant the Tribunal the power to award costs.
Everybody knows by now that the B.C. Teachers’ Federation has been awarded $2 million plus costs against the B.C. Government related to the dispute over class sizes. The B.C. Supreme Court ruled that the government simply duplicated previous legislation that had been declared unconstitutional. The court had harsh words for the government, essentially finding that the government ignored the court’s previous orders and that it had tried to provoke a strike by the teachers, supporting the court’s $2 million damage award, and likely a few hundred thousand in costs to be paid.
The cost to the public purse is bad enough but there are other aspects of the decision that may have longer and more important effects on employers. This takes us into the relatively esoteric area of freedom of association under the Charter of Rights and Freedoms, which includes several cases where unions are attempting to turn collective bargaining and strike action into constitutionally guaranteed fundamental freedoms.
We have touched on these issues in a previous post and in material you can find on our website here. The significance of this latest decision may be in its interpretation of the government’s duty to consult before legislating. The earlier cases suggested that government could legislate to limit public sector bargaining rights after consultation about alternatives with the affected unions. The B.C. Teachers’ Federation decision suggests that this will not be sufficient, that there must be a mechanism in the new legislation for “an employees’ association to make representations to the employer and have its views considered in good faith” (emphasis in the original at paragraph 66.) It may also mean that the government has less legislative freedom when it is not technically the employer (as with the teachers) than when it is legislating with respect to its own employees.
This decision may not have an immediate and direct impact on private sector employers, but it all goes into the mix of how broadly the freedom of association rights under the Charter may be interpreted, which is something of interest to all employers.
If you are going to lay off older workers while hiring younger ones in the same category, you better have a good explanation. That’s essentially what the BC Human Rights Tribunal said in Price and Top Line Roofing Ltd., 2013 BCHRT 306. The Complainant, Paul Price, was a journeyman working for the Respondent Top Line. He was one of the two oldest journeymen employed at Top Line. Both were laid off in July, 2012. A few months before this, however, Top Line had hired a journeyman in his 40s and two young journeymen apprentices.
Top Line said Price was laid off because of a shortage of work, lack of speed, and poor motivation and attitude. Price denied performance and motivation issues, and said they had never been raised with him.
Neither party was represented, and the Tribunal noted that Top Line failed to disclose relevant documentation that would have supported its allegations, such as time sheets showing his hours at work compared to those of other employees. The Tribunal also drew an adverse inference because a Top Line representative present at the hearing, who was said to have had input on Price’s termination, did not testify.
The Tribunal concluded that, since 3 younger journeymen employees were hired a few months before the two most senior were terminated, it could infer that age was a factor in the termination of Price’s employment. She found that “the circumstances require an explanation” and that the evidence led by Top Line was not sufficient for her to conclude that performance issues were the cause of Price’s layoff.
More generally, the Tribunal member noted that aging and the lack of capacity to perform certain work can be inextricably linked, and if job performance is the issue, an employer must treat the older employee with the same respect accorded to all employees, by giving notice of the job performance problems and an opportunity to meet the workplace standard.
This case is a reminder that employers must have a compelling rationale for the termination of employees when age may be perceived as a factor. A consistent and rigorous performance management program for all employees will help protect employers where performance problems arise with older employees, especially where fair and documented processes are followed.
For those who may be interested, McCarthy Tétrault has just launched its eleventh blog, Canadian Class Actions Monitor, at http://www.canadianclassactionsmonitor.com. The blog provides the firm’s views on class actions across Canada in sectors including securities, financial services, product liability, competition, healthcare and other areas of business. It also comments on the impact of class actions on Canadian businesses and the legal landscape, and shares our insights on specific class actions in Canada, related developments and cross-border influences.
Please visit the blog!