Header graphic for print

British Columbia Employer Advisor

Keeping Employers Posted on Developments in Labour and Employment Law

Employee’s secret recording of meetings with management contributes to finding of just cause for dismissal

Posted in Discipline, Employee Obligations, Just Cause, Litigation, Termination, Wrongful Dismissal
Donovan Plomp

A recent decision from the Manitoba Court of Queen’s Bench supports that an employee’s use of his work phone to secretly record meetings with management may support an employer’s decision to terminate for just cause.

In Hart v. Parrish & Heimbecker, Limited [Hart], the plaintiff, Mark Hart, sued his former employer for wrongful dismissal after he was terminated for cause following a series of employee complaints against him. In the course of the litigation, Mr. Hart tendered as evidence recordings of conversations he had had with the defendant’s management personnel in the course of the defendant’s investigation into the employee complaints, which the defendant was not aware of at the time of dismissal. During the course of the litigation, in addition to its reliance on Mr. Hart’s conduct with respect to the employee complaints as just cause for dismissal, the defendant employer also alleged after-acquired cause based on the surreptitious recordings. The defendant submitted the recordings amounted to a breach of confidentiality and trust and of the personal code of conduct Hart had created following employment counseling sessions.

With respect to the complaints made against Mr. Hart – which were generally concerned with Mr. Hart’s unprofessional, rude and aggressive conduct at work – the court found that the complaints were serious and amounted to breaches of the defendant’s employee handbook and its anti-harassment policies. The court concluded that the defendant had addressed the complaints appropriately with Mr. Hart, coached him on appropriate workplace behaviour, sent him for professional workplace counseling when matters escalated and otherwise conveyed to Mr. Hart that improvement was necessary or consequences would follow. The court found that the defendant’s failure to specifically warn Mr. Hart that he would be dismissed if his conduct did not improve was not fatal to the employer’s reliance on just cause. As the court put it:

…it is not necessary to specifically warn an employee that he/she will be dismissed if certain objectionable behaviour occurs again, where a reasonable person would know or ought to know that the conduct is inappropriate, contrary to the defendant’s policies and may result in termination.

With respect to Mr. Hart’s secret recording of meetings, the court agreed that Mr. Hart had breached his confidentiality and privacy obligations to the defendant and that the recordings also amounted to a breach of the “personal code of conduct” that Mr. Hart had prepared following his employment counseling. While the court accepted that Mr. Hart’s secret recordings amounted to a breach of his employment obligations and were properly considered pursuant to the doctrine of after-acquired cause, this misconduct was simply a factor in the contextual assessment of just cause and the court considered that Mr. Hart’s misconduct at the time of dismissal was sufficient to establish just cause.

This case is a positive one for employers for a number of reasons.

  1. With respect to the employee complaints and the employer’s response, it supports that a formal warning of potential termination is not necessary if the circumstances are such that an employee ought to know what is expected and the  consequences that may follow for falling below the expected level of workplace behaviour.
  2. Secondly, the case recognizes the obligations of employees to make appropriate use of phones at work, which may include not secretly recording management meetings, and that this form of misconduct may contribute to an employer’s conclusion that it has just cause for dismissal, even if discovered after termination.
  3. Thirdly, the case is a good reminder to review and update your workplace policies to ensure they restrict employees’ use of work phones to appropriate conduct. Given the ubiquity of personal or workplace phones with recording capabilities, the reminder and potential restriction on misuse of such devices that emanates from the court’s decision in Hart is a helpful one.

If you have any questions regarding the use of phones in the workplace, appropriate workplace policies regarding the same or the scope of response to an employee’s misuse of a phone while at work, do not hesitate to contact a member of our Labour and Employment Group.

Genetic code meets Canada Labour Code

Posted in Discrimination
Ryley Mennie

Genes are the building blocks of life, shaping our physical traits, personal characteristics, and our biological make-up, and the field of genetic testing and mapping is advancing rapidly. With a simple cheek swab, health care professionals can now often predict whether an individual is predisposed to developing a particular disease or medical condition.

While such scientific advances can enable individuals to take proactive steps to avoid adverse health consequences, genetic testing also brings with it the risk that individuals may be discriminated against on the basis of the personal information within their genetic codes, either in the workplace, in the context of insurance policies, or elsewhere.  Furthermore, the concern with potential genetic discrimination may dissuade individuals from undergoing genetic testing, sacrificing a valuable opportunity to discover a potential health risk and take appropriate steps to mitigate it.

The Genetic Non-Discrimination Act

On the basis of these concerns, the Canadian government recently enacted the Genetic Non-Discrimination Act, S.C. 2017, c. 3 (the “Act”), which came into force on May 4, 2017.

The Act ushers in three significant changes aimed at eliminating discrimination based on genetic characteristics in Canada:

  1. Prohibition against genetic testing conditions in  agreements

The Act prohibits persons other than health care practitioners and medical researchers from requiring an individual to undergo a genetic test or disclose the results of a genetic test as a condition of:

a. providing goods or services to that individual;

b. entering into or continuing a contract or agreement with that individual; or

c. offering specific conditions in a contract or agreement with that individual.

Although this aspect of the Act is cast in broad and general terms, concerns have been expressed that this prohibition is an unconstitutional attack on the insurance industry (which is a matter falling within provincial jurisdiction) and will likely be tested in court.

2. Prohibitions relating to genetic testing added to Canada Labour Code (“Code”)

The Act adds new provisions to the Code, prohibiting employers from requiring employees to undergo or to disclose a “genetic test”, defined as “a test that analyzes the employee’s DNA, RNA or chromosomes for purposes such as the prediction of disease or vertical transmission risks, or monitoring, diagnosis or prognosis”, or from taking any disciplinary action against an employee:

a. because the employee refused a request to undergo a genetic test;

b. because the employee refused to disclose the results of a genetic test; or

c. on the basis of the results of a genetic test.

Employers are also prohibited from collecting or using the results of a genetic test without the written consent of the employee, and third parties are prohibited from disclosing the results or existence of a genetic test to an employer without the employee’s written consent.

3. New prohibited ground of discrimination added to Canadian Human Rights Act (“CHRA”)

Finally, the Act adds to the CHRA the new prohibited ground of “genetic characteristics”. Though “genetic characteristics” is not defined, the Act includes a provision clarifying that, where the form of discrimination is based on the refusal of a request to undergo a genetic test or to disclose the results of a genetic test, the discrimination shall be deemed to be on the ground of genetic characteristics. This clarification was made, at least in part, in response to concerns that the term “genetic characteristics” might be interpreted in an overly broad manner, as almost any trait could be considered to be based, at least to some degree, on genetics. However, it will be up to the Canadian Human Rights Tribunal to further delineate the scope of discrimination in connection with the new ground of “genetic characteristics”.

The changes introduced by the Act bring Canada in line with all other G7 nations. The full scope of their impact on workplaces in Canada remains to be seen. We will continue to monitor the consequences created by the Act and keep you abreast of relevant developments. If you have any questions about how the new requirements and prohibitions discussed above may affect your business, do not hesitate to contact one of the members of our Labour and Employment group.

*drafted with the assistance of articling student, Connor Bildfell.

BCCA Eyes Enforceability of Restrictive Covenant in IRIS Appeal

Posted in Best Practices, Employee Obligations, Employer Obligations
Christopher McHardy

Restrictive covenants are often a key component of employment agreements and commercial transactions. Enforceability, however, can be challenging, especially in the employment context.  The B.C. Court of Appeal’s recent decision in IRIS The Visual Group Western Canada Inc. v. Park, 2017 BCCA 301, is a good reminder and provides valuable insight into several related legal principles.  The implications of the decision will be of interest to many B.C. employers who rely on restrictive covenants or who are contemplating doing so.

Background

IRIS The Visual Group Western Canada Inc. (“IRIS”), an eye care services provider and eyewear products vendor, operated its business by entering into Optometric Services Agreements (“OSAs”) with individual optometrists to deliver its services and products to customers.  IRIS concluded such an agreement with a certain Dr. Park.  In the agreement, Dr. Park agreed and acknowledged she would provide services as an independent contractor.  The agreement also included a non-competition clause that prohibited Dr. Park from competing with IRIS, whether directly or “in partnership or in conjunction with” any person or company “carrying on, engaged in, interested in or concerned with a business that competes with” IRIS within 5 km of the IRIS location in Vernon where Dr. Park provided services.  The clause also prohibited Dr. Park from being “engaged” or “employed” by any competing persons or companies, subject to the same temporal and geographic constraints.

Dr. Park eventually resigned in order to set up her own practice. She requested that IRIS release her from the non-competition clause, but IRIS refused.  She proceeded to set up her own practice nonetheless, about 3.5 km from the IRIS location where she previously worked.  IRIS then brought an action against Dr. Park seeking a declaration that the non-competition clause was valid and enforceable, and for an injunction preventing her from competing with IRIS within 5 km of its Vernon location.

B.C. Supreme Court Decision

At trial, the B.C. Supreme Court found that because the non-competition clause was a restrictive covenant, the onus was on IRIS to show the restriction was reasonable as between the parties. The judge determined that the OSA was closer to an employment contract than an agreement to sell a business, and accordingly gave the agreement the closer scrutiny that employment relationships attract.  The judge concluded that the temporal and geographic limitations were reasonable, but that the clause was overly broad in terms of the activities it proscribed. Accordingly, the judge declined to enforce the clause.  IRIS appealed.

B.C. Court of Appeal Decision

Three issues were raised on appeal:

  1. Did the trial judge err in characterizing the OSA as an “employment agreement” and consequently scrutinizing the agreement more rigorously?
  2. Did the trial judge err in finding the non-competition clause was unreasonable in terms of the scope of activities it prohibited?
  3. If the non-competition clause was unreasonable as drafted, did the trial judge err in declining to use the “blue-pencil rule” to make the clause reasonable?

(1)  Heightened Scrutiny Test

The Court of Appeal affirmed that agreements containing the elements of an employment relationship – namely, the absence of a payment for goodwill and a power imbalance between the parties – warrant greater scrutiny, as compared to agreements for the sale of a business. Although Dr. Park had been characterized as an “independent contractor” in the agreement, that characterization did not shelter the agreement from stricter scrutiny, as there was no goodwill payment and there was a power imbalance between the parties favouring IRIS. In finding there was a power imbalance, the Court cited the fact that IRIS set Dr. Park’s hours, controlled her vacation time, set the fees she charged, and required that all patient files be transferred to another IRIS optometrist upon termination of the OSA. The Court also noted Dr. Park’s relative inexperience and lack of client base, factors that further suggested a power imbalance. Accordingly, the Court concluded it was appropriate to give the non-competition clause rigorous scrutiny.

(2)  Scope of the Non-Competition Clause

The Court affirmed that IRIS bore the onus of demonstrating that the non-competition clause was cast no more broadly than necessary to protect the legitimate interests of the company, the key interest here being IRIS’s trade connections. The Court noted that in addition to a non-competition clause, the OSA had included a non-solicitation clause and a provision requiring Dr. Park to transfer her client list and files to another IRIS optometrist upon her departure. Both of these provisions provided some protection for IRIS’s trade connections. In the main, however, there were two key issues with the non-competition clause that made it unreasonable:

  • First, the clause was ambiguous. The Court wondered what it meant to compete “in conjunction with” another person, as well as how one would determine whether an individual was “concerned with” a competing business.
  • Second, the clause went beyond what was necessary to protect IRIS’s legitimate interests. If enforced, the clause would prevent Dr. Park from engaging in a wide range of work, including work that had nothing to do with the practice of optometry, such as working with a business that dispenses non-prescription eyeglasses or sunglasses.

Accordingly, the Court concluded that the non-competition clause was not reasonable, in so far as it was ambiguous and overly broad, and therefore was not enforceable.

(3)  Severability

Finally, the Court considered IRIS’s argument that the non-competition clause could be salvaged by employing the “blue pencil rule” or “blue-pencil severance”. IRIS argued that the court should give effect to the parties’ intentions and should make the restriction reasonable by striking out part of the clause to narrow the list of prohibited activities to working with a business that dispenses prescription optical appliances. The Court noted that courts are disinclined to fix defective non-competition clauses by severing offending language. It was confirmed that courts will have recourse to blue‑pencil severance only in cases where the part being removed is “clearly severable, trivial and not part of the main purport of the restrictive covenant”. In IRIS, the court found that blue-pencil severance could not be performed for two reasons:

  • First, trimming the clause in the manner suggested by IRIS would go to the “main purport” of the restrictive covenant, as the company had clearly intended to prevent Dr. Park from competing with it in any way, however remotely. The Court found it would be inappropriate to effectively rewrite the agreement to create a more moderate restriction that did not reflect the parties’ intentions.
  • Second, the Court noted that the “fix” suggested by IRIS would not resolve the ambiguity created by words of association such as “in conjunction with” or “concerned with a business”.

Accordingly, the Court declined to perform blue-pencil severance.

Key Takeaways

There are at least three key lessons that B.C. employers can take away from this case:

  1. An independent contractor agreement will likely be subject to the same degree of scrutiny as an employment agreement. IRIS makes clear that courts will focus on whether the policy rationale for the strict scrutiny given to employment agreements – arising from a power imbalance and the absence of a goodwill payment – is present. If the policy rationale exists, strict scrutiny will follow. IRIS also provides some indication of the sorts of factors that courts may consider when determining whether an imbalance of power exists in cases involving professionals. These factors include the professional’s experience, the level and depth of client base at the time the agreement is entered into, the professional’s ownership and/or control over the client relationships and files, and the employer’s level of control over matters such as working hours, vacation time, and billing rates. Many other factors may also be considered.
  2. Employers must take great care to ensure any restrictive covenant goes no further than is necessary to protect the legitimate interests of the company. This means ensuring, among other things, that the restriction is clear and appropriately constrained in terms of the scope of activities restricted, the length of time during which the restrictions operate, and the geographical scope of those restrictions. In terms of clarity, the Court of Appeal in IRIS emphasized at several points in its decision that the words “in conjunction with” and “concerned with” a business were ambiguous in meaning. This is somewhat surprising given that those terms are likely found in many agreements. It also shows that courts have wide latitude in interpreting restrictive covenant language and can easily take issue with a covenant. Accordingly, in addition to ensuring that the covenant is not overly or unnecessarily restrictive, employers should pay close attention to the language they use – plain language is beneficial.
  3. Courts are reluctant to resort to blue-pencil severance to salvage a defective non-competition clause. Unless it can be demonstrated that the part sought to be removed is clearly severable, trivial, and not part of the “main purport” of the clause, the court will not consider striking portions to make the restrictive covenant reasonable. Hence, it is essential that employers “get it right the first time” and draft an unambiguous, reasonable restriction.

Given the challenges that this area presents, employers are also well advised to seek legal advice on restrictive covenants, especially if such protections are very important to the business.

*This blog was written with the assistance of Connor Bildfell, Articling Student.

British Columbia seeks stakeholder feedback on the new human rights commission

Posted in Human Rights, Litigation
Donovan Plomp

In August, I posted about Premier John Horgan’s announcement of the Government’s intent to re-establish a human rights commission. The intent of this new human rights commission will be to act proactively to address systemic discrimination and inequality in British Columbia.

The Government is now engaged in consultation with stakeholders and citizens, which will include online discussions with Parliamentary Secretary Ravi Kahlon, as well as in person meetings. If you would like to share your views on the role, functions and priorities of the new human rights commission, you can do so any time before November 17, 2017 at 4 pm. For more information on how to participate in the consultation process and to sign up to receive updates about this process, visit the B.C. Human Rights Commission webpage HERE.

Update on Ontario’s Employment and Labour Law Reform Bill

Posted in Employment Standards, Labour Relations, Legislative Changes, Legislative Requirements
Monique Ronning

The Ontario Government is moving forward with its plan to implement wide-sweeping changes to the province’s employment and labour laws. The proposed legislation, Bill 148, the Fair Workplaces, Better Jobs Act, 2017, will enter its Second Reading in the Ontario legislature soon. Our colleagues in Toronto recently addressed the status of Bill 148 in their blog post “Ontario’s Employment and Labour Law Reform Bill Continues to Undergo Changes.”

If you have any questions about Bill 148 and how it will impact your workplace, please do not hesitate to contact us, Tim Lawson, Matthew Demeo or any lawyer in our Ontario Labour and Employment Law group.

British Columbia Supreme Court rules on reasonable notice when an employee is terminated before their first day of work

Posted in Employer Obligations, Litigation, Termination, Wrongful Dismissal
Monique Ronning

In Buchanan v. Introjunction Ltd., 2017 BCSC 1002, the Court considered a case where the employer terminated the plaintiff’s employment before he commenced work. The Court rejected employer’s argument that the probation period clause applied to limit its liability to provide notice of termination of employment. Despite the contractual termination provisions in the employment agreement, the Court awarded the plaintiff common law reasonable notice. It is important that employers take note of the legal principles in this case if they plan to retract an offer of employment.

Background

On October 16, 2017, Colton Buchanan accepted an offer of employment from Introjunction and signed a contract of employment. Expecting to commence work on November 1, 2016, Mr. Buchanan quit his existing job. Unfortunately, after he quit, on October 29, 2016, Introjunction’s CEO informed Mr. Buchanan that the offer of employment was being retracted. Mr. Buchanan commenced an action for wrongful dismissal, seeking four months’ pay in lieu of notice of termination of his employment.

Probationary Period Clause

It is well-established that where an employee is terminated before they start work, they are entitled to reasonable notice or payment in lieu of notice (see, for example, DeGagne v. City of Williams Lake, 2015 BCSC 816). However, Introjunction argued that this principle did not apply because Mr. Buchanan’s employment contract contained a three-month probationary period, and it could rely on the probation provision in the circumstances. The Court disagreed, finding that: (i) the probation period expressly commenced on November 1st; and (ii) even if the probation provision did apply, it required the employer assess the suitability of the employee for the role during the probation period prior to terminating the employee’s employment. As Introjunction had terminated Mr. Buchanan’s employment before he started work, the probation period was not engaged and suitability could not have been a factor in the decision to terminate his employment.

Anticipatory Breach

The Court also found that Introjunction’s conduct demonstrated a clear intention to not honour the employment contract when it retracted the offer of employment before he commenced his employment (it is important to this finding that Mr. Buchanan had already accepted the offer). As a result, Introjunction’s “retraction” of the employment offer amounted to a repudiation of the contract and an anticipatory breach. Accordingly, having repudiated the contract, Introjunction could not rely on any provision in the contract, and it was thus subject to the common law obligation to provide reasonable notice of termination of the contract of employment.

Summary

Ultimately, the Court found that Introjunction wrongfully dismissed Mr. Buchanan from his employment and awarded him six weeks’ pay in lieu of notice.

This result is an important reminder to employers about the potential risks of rescinding an offer of employment after it is accepted, and that caution should be exercised when terminating an employment agreement in such circumstances. Even with no service, and employee may attract a reasonable notice award. In this case it was six weeks, but considering the courts analyze a number of factors in assessing reasonable notice, other cases could involve even longer notice awards. These risks can be mitigated by including carefully drafted contractual termination provisions. Please contact us if you would like further information.

“Waiving” Goodbye to Solicitor-Client Privilege

Posted in Best Practices, Investigations, Litigation
Christopher McHardy

There are a number of reasons an employer may retain a lawyer to conduct an investigation: investigative experience, to avoid a potential or actual conflict of interest, to avoid potential bias and the perception thereof, and to ensure that the investigation is not deficient, leaving the employer vulnerable to claims that result in reputational and other damages (consider one such cautionary tale in Vernon v. British Columbia (Liquor Distribution Branch), 2012 BCSC 133).

Another significant reason employers retain lawyers to conduct workplace investigations is to maintain privilege over legal advice provided by the investigator undertaking the investigation. Of all the reasons to retain a lawyer, this reason may be the most challenging to manage.

As simple as it may be to ensure that privilege attaches to solicitor-client communications, it can be just as easy to waive the privilege and remove the protection. This was demonstrated by a recent British Columbia arbitration decision: Re: British Columbia Emergency Health Services and Ambulance Paramedics of British Columbia (CUPE Local 873) (2017), 276 LAC (4th).

Waiver of Privilege

British Columbia Emergency Health Services (“BCEHS”) retained a lawyer to conduct an investigation into complaints made by employees at an ambulance station.  Subsequently, CUPE Local 873 (the “Union”) filed a grievance about the employer’s investigation of the complaints, and applied for disclosure of the lawyer-investigator’s investigation report to BCEHS (the “Report”).

After assessing the evidence of both the lawyer-investigator and BCEHS, the arbitrator concluded that solicitor-client privilege attached to the Report, as well as the other documents sought by the Union. However, the arbitrator also found that BCEHS had waived privilege over extensive parts of the Report.

This waiver occurred when BCEHS offered the conclusions from the Report to the BC Labour Relations Board to assist it in coming to a conclusion in a separate, but related, matter. This disclosure, combined with further disclosures made by BCEHS at a meeting with Union representatives, amounted to a voluntary waiver of the specific information disclosed, as well as a significant portion of the Report.

The arbitrator’s decision serves as a valuable reminder of the law of waiver of privilege in this context. The BCEHS, the Union, and the arbitrator all relied on S. & K. Processors Ltd. v Campbell Avenues Herring Producers Ltd., [1983] 4 WWR 762 (BCSC) (at para. 6), where Justice McLachlin, as she then was, stated:

Waiver of privilege is ordinarily established where it is shown that the possessor of the privilege (1) knows of the existence of the privilege, and (2) voluntarily evinces an intention to waive that privilege. However, waiver may also occur in the absence of an intention to waive, where fairness and consistency so require. Thus waiver of privilege as to part of a communication, will be held to be waiver as to the entire communication.

The arbitrator concluded that it would be “unfair” for BCEHS to pick and choose parts of the Report to disclose and to retain privilege over the rest. As a result, the arbitrator held that privilege had been waived over a much greater extent of the Report than BCEHS had intended to disclose, and BCEHS was required to produce that portion to the Union.

Cautions

In light of the arbitrator’s decision, employers should be careful of the following:

  • If you choose to disclose portions of privileged information or documents, you may not have full control over the scope of disclosure. In the arbitration, BCEHS’s waiver of privilege over a carefully selected portion of the Report meant that it lost control over the privacy of a much greater extent of the Report.
  • If you waive privilege over documents in one proceeding, you risk waiving privilege over those documents in any related proceeding where you waived the privilege. BCEHS disclosed the conclusions of the Report in a parallel Labour Relations Board proceeding, which constituted waiver in the subsequent arbitration.
  • If you have concerns about solicitor-client privilege and/or use of the report in possible litigation, devise and adopt a strategy prior to initiating the investigation. You likely can structure the investigation, and any related reports, in a way that allows the disclosure of certain information without risking a waiver of solicitor-client privilege.
  • Before making any disclosures relating to interactions you have had with counsel, it is worth getting legal advice about the risk of waiving solicitor-client privilege. Even better, try to determine your needs and potential needs prior to the investigation, and structure it accordingly.

BC’s minimum wage will increase effective September 15, 2017

Posted in Employer Obligations, Employment Standards, Legislative Changes, Legislative Requirements, Wage and Hours
Monique Ronning

On August 15, 2017, the provincial government announced that British Columbia’s minimum wage will increase from $10.85 to $11.35 per hour effective September 15, 2017. This is the Ministry of Labour’s first step in a long-term plan to raise the minimum wage to $15 per hour.

Wage increases will also take effect for employees in the following categories:

  • live-in home support worker;
  • live-in camp leader;
  • resident caretaker;
  • farm workers; and
  • liquor servers.

Please contact us directly if you would like more information about any increase in wages affecting your workforce and the related amendments to the Employment Standards Regulation (B.C. Reg. 396/95).

British Columbia announces re-establishment of the Human Rights Commission

Posted in Human Rights, Legislative Changes
Donovan Plomp

On August 4, 2017, Premier John Horgan announced the Government’s intent to re-establish a human rights commission. The British Columbia Human Rights Commission was dismantled about 15 years ago. Currently British Columbia has a direct access model allowing complaints to be brought directly to the British Columbia Human Rights Tribunal.  In jurisdictions with commissions (in other provinces and federally) complaints must first proceed through an investigation process with a human rights commission.

According to the News Release issued by the Office of the Premier, the intent of the new human rights commission will be to act proactively to address systemic discrimination and inequality in British Columbia. The Government will commence a consultation process this fall, and legislation is expected to follow next year. If you would like to participate in the online or in-person consultation process, watch out for announcements on our blog or on the Government’s News webpage.

The Government of Canada launches a new Global Skills Strategy

Posted in Human Capital, Immigration, Recruiting, Temporary Foreign Worker Program
Christopher McHardy

On June 12, 2017, the Government of Canada launched its new Global Skills Strategy, with the intent of providing employers with a faster and more predictable process for attracting top talent and new skills to Canada, stimulating economic growth, and creating more middle-class jobs for Canadians. In particular, the Global Skills Strategy aims to support high-growth Canadian companies that need to access global talent. The government also hopes the Strategy will result in global companies (i) making large investments in Canada, (ii) relocating to Canada, (iii) establishing new production in Canada, and/or (iv) expanding existing production in Canada, all with the aim of creating new jobs for Canadians.

Effective June 12, 2017, employers and highly-skilled workers can access the Global Skills Strategy in the following ways:

  1. Work Permit Exemptions for Highly Skilled Short-Term Workers: Two new areas of short-term work have been exempt from the requirement to obtain work permits. Highly-skilled workers who need to come to Canada for a very short-term assignment and researchers taking part in short-duration research projects conducted in Canada who qualify for this exemption will not require a work permit. In particular:
    • The exemption for highly-skilled workers applies to all National Occupation Classification (NOC) 0 and NOC A workers (managers and professionals). Eligible NOC 0 and NOC A workers will be allowed one 15-day work permit-exempt stay in Canada every six months, or one 30-day work permit-exempt stay every 12 months; and
    • Researchers coming to Canada will be permitted one 120-day stay every 12 months without requiring a work permit when working on a research project at a publicly-funded degree-granting institution or affiliated research institution.
  2. New Global Talent Stream under the Temporary Foreign Worker Program (TFWP): The new global talent stream allows: (i) faster processing of Labour Market Impact Assessments (LMIAs) to eligible employers; and (ii) recruitment of highly specialized and skilled global talent. The processing times will be 10 business days (to be met 80% of the time) and, while there is no minimum recruitment requirement, the employer is encouraged to recruit Canadian citizens and permanent residents first. The Global Talent Stream has two categories:
    • Category A: This category is for high-growth firms that can demonstrate a need to hire unique and specialized talent, and have been referred to the Global Talent Stream by a Designated Partner (one of 14 agencies, associations and organizations designated by the federal government). Unique and specialized talent is defined as having: (i) advanced knowledge of the industry; (ii) an advanced degree in an area of specialization of interest to the employer; and/or (iii) a minimum of five years of experience in the field of specialized experience; and (iv) a highly paid position with a salary of usually $80,000 or more. The employer must, in their Labour Market Benefit Plan (“LMBP”), commit to creating jobs, either directly or indirectly, for Canadian citizens and/or permanent residents, and must commit to at least two other complementary benefits that are not the same as the mandatory benefits for that employer.
    • Category B: This category is for employers seeking to hire highly skilled foreign workers to fill occupations found on the Global Talent Occupations List. The employer must comply with program requirements and uphold specific conditions as set out in Immigration and Refugee Protection Act and Regulations. As part of the LMBP, the employer must commit to increasing skills and training investments for Canadian citizens and permanent residents, as well as at least two other complementary benefits.
  3. Dedicated Service Channel: A new Dedicated Service Channel (“DSC”) will be available to: (i) employers who are making a significant investment in Canada; and (ii) universities that support publically-funded research chairs coming to Canada. The DSC will give those employers access to an account manager, who will assess the employer’s needs, answer questions, and provide guidance.
  4. Faster Work Permit Processing: High-skilled workers coming to Canada on a temporary basis will be able to have their work permit applications (and temporary resident visas, where necessary) processed within two-weeks. Open work permits for spouses and study permits for dependants will also be processed in two weeks when applicable.

If the Global Skills Strategy is rolled out as intended by the federal government, then it will help employers across Canada access temporary, high-skilled and global talent, and scale up or expand their workforce’s knowledge of specialized skills so that they can be more innovative and build their expertise. Please contact us if you would like to know more, and whether your business can benefit from the programs under the Global Skills Strategy.