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Employee Time Off to Vote in the Upcoming Federal Election

Canadians head for the polls in the federal election on Monday, October 19, 2015.  The Canada Elections Act provides that with the exception of certain employees in the transportation sector, every employee who is an elector is entitled to have three consecutive hours away from work during voting hours for the purpose of casting his or her vote. In most cases, this will not be an issue, since work schedules will already result in an employee having three consecutive hours off during voting hours.  If, however, an employee’s schedule at work is such that he or she does not already have three consecutive hours off to vote, the employer must, at a time chosen by the employer, allow each employee time off such that the employee has three consecutive hours free from work during voting hours.  Employers cannot make a deduction from the pay of an employee, or impose a penalty, for the time that the employer allows the employee to vote.

For example, if the voting hours in the riding are 9:30 a.m. to 9:30 p.m. and the employee usually works from 11:00 a.m. to 7:00 p.m., the hours of work will not allow for three consecutive hours for voting. To give the employee three consecutive hours to vote, the employer could allow the employee to arrive late (at 12:30 p.m.), let the employee leave early (at 6:30 p.m.), or give the employee three hours off at some point during the work day.  Notwithstanding the time off, the employee must still receive the full pay for the regular shift.

Polls are open for twelve hours on election day but voting hours vary across Canada. For more information, please visit: http://www.elections.ca/home.aspx.

Employee Time Off to Vote in the Upcoming Federal Election

Minimum Wage Increase Now In Effect in many Canadian Provinces

On October 1, 2015, the minimum wage in Alberta, Manitoba, Newfoundland and Labrador, Ontario and Saskatchewan has increased.

Province Current General Minimum Wage (as of October 1, 2015) Previous General Minimum Wage
Alberta $11.20/hour $10.20/hour
Manitoba $11.00/hour $10.70/hour
Newfoundland and Labrador $10.50/hour $10.25/hour
Ontario $11.25/hour $11.00/hour
Saskatchewan $10.50/hour $10.20/hour


Please note that there are different minimum wage requirements in many provinces that depend on the classification of the worker, such as liquor servers.

Employers are reminded to update their employment contracts and practices to ensure they reflect the new minimum wage

Minimum Wage Increase Now In Effect in many Canadian Provinces

Employee denied bonus payment on the basis of “somewhat draconian” termination provision

In the recent Ontario Superior Court of Justice decision, Kielb v National Money Mart Company[1], an employee was denied a bonus payment upon termination based on the provisions of the employment contract.  In the decision, Justice Akhtar confirmed that “the harshness of [a] provision does not make it invalid if both parties have agreed to it”.

The plaintiff, a lawyer named Jonathan Kielb, commenced employment with National Money Mart Company (“Money Mart”) in 2008. The employment contract that Mr. Kielb signed included a termination clause, as well as the following provision in respect of his bonus (the “Limitation Clause”):

Any bonus which may be paid is entirely at the discretion of the Company, does not accrue, and is only earned and payable on the date that it is provided to you by the Company. For example, if your employment is terminated, with or without cause, on the day before the day on which a bonus would otherwise have been paid, you hereby waive any claim to that bonus or any portion thereof. In the event that your employment is terminated without cause, and a bonus would ordinarily be paid after the expiration of the statutory notice period, you hereby waive any claim to that bonus or any portion thereof.

On April 21, 2010, Money Mart terminated Mr. Kielb’s employment on a without cause basis, and offered him 8 weeks of pay in lieu of notice (inclusive of the 2 weeks of statutory termination pay), in compliance with the termination clause of his employment contract.

With respect to the bonus, since Mr. Kielb was not an employee on the September 17, 2010 payment date, and the payment date was not within Mr. Kielb’s statutory notice period, Mr. Kielb did not receive any bonus payment in respect of the 2010 fiscal year. [2]

Mr. Kielb’s position was that the bonus was an integral part of his compensation, and therefore should be payable up to the last day worked and through the contractual notice period, despite the language in the Limitation Clause.  Mr. Kielb argued that because the bonus was an integral part of his compensation the Limitation Clause was unenforceable, because it was: contrary to public policy, inconsistently applied, and/or ambiguous, contradictory and illegal.

In considering Mr. Kielb’s arguments, Justice Akhtar came to the following conclusions:

  • Given Money Mart’s representations to Mr. Kielb at the time of hiring, the bonus did form an integral part of his compensation package. However, the Limitation Clause was not contrary to public policy and as such, it operated to restrict Mr. Kielb’s right to the bonus payment. Mr. Kielb was dismissed in April and since the bonus payment date did not fall within the 2-week statutory notice period, Mr. Kielb was not entitled to any bonus payment.
  • Additionally, while Money Mart’s treatment of Mr. Kielb’s bonus entitlement may have differed from its treatment of other terminated employees’ entitlements, Mr. Kielb was nevertheless ineligible for the bonus payment because of the terms of the Limitation Clause.
  • Lastly, the Limitation Clause was unambiguous. The language was clear that Mr. Kielb was only entitled to a bonus if the payment date fell within the statutory notice period, and since the payment date was well outside of this period, Money Mart was not required to make a bonus payment.

This case is a good example of how an employer can use clear and unambiguous language in an employment contract to restrict its liabilities upon termination, specifically with respect to bonus payments.  While Money Mart’s verbal representations to Mr. Kielb about its bonus program caused the bonus payment to be an integral part of his compensation package, Mr. Kielb accepted the position with full knowledge that on termination his entitlements would be restricted by the Limitation Clause, and was consequently bound by its terms.

[1] 2015 ONSC 3790.

[2] Had it been payable, the bonus would have amounted to 59.4% of his base salary (i.e. approximately $86,239.56).

Employee denied bonus payment on the basis of “somewhat draconian” termination provision

Medical Marijuana in the Workplace

With the recent expansion of legislation permitting the production, sale and use of marijuana for medical purposes, employers should begin to think about crafting a policy which addresses medical marijuana use in their workplace.

For example, the smoking of regular cigarettes is not permitted in buildings or near entrances and exists to buildings.  Employees who want a smoke usually need to head further afield during their breaks.  But is it proper to ask the same of employees who are smoking medical marijuana and may have a disability?  Is it proper to make them smoke in the presence of others, so that their disability is no longer a private matter?  Is it proper to have regular smokers ingesting medical marijuana smoke if all smokers are required to smoke in the same area?
These are but some of the questions which an employer should be considering  when drafting a policy to address the use of medical marijuana in the workplace.  Other questions to be considered include the following:

  • Should a designated room be provided on the premises in which medical marijuana users can smoke on a private and confidential basis?
  • What rules will apply to the employee?  Should he or she be required to cease working and report to a manager in the event of feeling unwell after medicating?  Should he or she be required to refrain from operating a motor vehicle or machinery for work purposes after medicating?
  • What documentation will be required from the employee’s treating healthcare professional?
  • What steps will be taken by the employer in order to ensure that the needs of the employee are being met, without compromising the employee’s ability to perform his or her job, or the safety of the workplace?
  • Who at the company must know about and approve an employee’s use of medical marijuana in the workplace?  What steps will be taken in order to otherwise keep that information confidential?

There are no guidelines in place to assist employers with drafting policies such as this, although reference to policies which provide for accommodations to disabled employees may be a good starting point.  The important thing for an employer is to be aware of the fact that it is best to have a policy in place in advance of these questions being raised by an employee seeking to medicate at work, and that we can assist with ensuring that your workplace policy strikes the proper legal balance with respect to meeting the needs of all potentially affected individuals.

Medical Marijuana in the Workplace

“You quit!” “No I Didn’t, I’m Sick!”

In Betts v. IBM Canada Ltd., the Court was faced with a dispute between Mr. Betts, who claimed he was legitimately absent from his employment due to illness, and his employer IBM, which claimed that Mr. Betts effectively resigned by not returning to work after his application for short-term disability (“STD”) benefits was declined.

Mr. Betts had been employed with IBM for approximately 15 years, most recently in New Brunswick.  During his employment, he had had absences in the past for depression and anxiety, for which he had received STD benefits from IBM.

In October 2013, Mr. Betts stopped reporting for work, claiming he was disabled due to illness, being a further incident of depression and anxiety.  Shortly thereafter, without informing IBM, he moved to Ontario to live with his girlfriend.  His move contravened IBM’s STD policy, which required approval of the third party STD adjudicator before a move away from the employee’s usual place of residence during illness.

Mr. Betts failed to submit medical information by the deadline as stated in the Plan.  Ultimately, Mr. Betts submitted notes from a psychotherapist located in Mississauga, but again this contravened the terms of the Plan, which required that medical information be submitted from a registered physician (which the psychotherapist was not).  As a result, Mr. Betts’ claim for STD was declined, and on December 2, 2013, IBM wrote to Mr. Betts, advising him that he would have to either return to work or submit medical documentation to substantiate his appeal.

This pattern continued, with Mr. Betts submitting several appeals with further documentation from his psychotherapist, but without submitting documents from a registered physician.  Each time, IBM wrote to Mr. Betts to advise him that if he failed to submit the necessary medical documentation to support an appeal, he would have to either return to work or be considered to have voluntarily resigned.

IBM even extended the time for appealing, and after Mr. Betts complained that his manager was harassing him, assigned him a new manager.  Still Mr. Betts did not provide a note from a physician, and failed to return to work, despite IBM’s warnings that failure to do so would result in his deemed resignation.  Ultimately, Mr. Betts exhausted all levels of appeals, but refused to return to work, claiming that the note from the psychotherapist justified his continued absence.  IBM proceeded to end his employment, claiming abandonment.

The Court first cited the recognized test for determining resignation/abandonment, as follows:

Do the statements or actions of the employee, viewed objectively by a reasonable person, clearly and unequivocally indicate an intention to no longer be bound by the employment contract.

In cases of claimed abandonment, this is often an extremely difficult hurdle for an employer to meet.

Although the Court accepted that Mr. Betts suffered from depression and anxiety disorders, the Court also recognized that an employee suffering from medical issues is “not immune from being found to have abandoned his/her employment”.  The Court ultimately held that Mr. Betts was well aware of what was required of him, and that IBM made clear that the consequences of non-compliance would be loss of employment.  As such, notwithstanding that Mr. Betts argued that he did not intend to give up his employment, the Court held that the facts demonstrated that Mr. Betts had no real intention to return to work.  Mr. Betts’ undisclosed move to Ontario clearly factored into the Court’s analysis.

The Court specifically rejected the argument that IBM was under an independent duty to accommodate Mr. Betts over and above the terms of the Plan, and held that IBM was under no obligation to provide Mr. Betts with a leave of absence while it independently assessed Mr. Betts’ claim by retaining an independent physician to assess him.  Since Mr. Betts had not produced a note from a doctor as required by the terms of the Plan, IBM had no obligation to undertake such steps.

Since IBM’s expectations were clear and reasonable and IBM provided ample time and opportunity for Mr. Betts to comply, coupled with Mr. Betts’ failure to provide a reasonable explanation for failing to comply, the Court held that Mr. Betts had in fact abandoned his employment.

This case is a good example of how to proceed with an uncooperative employee.  At every turn, IBM was clear in its expectations, patient (and even generous) when dealing with time lines and “bent over backwards” to assist Mr. Betts.  IBM only proceeded with ending the employment relationship after its clear instructions were ignored, it provided Mr. Betts with ample warnings of the consequences of failing to comply, and it responded to his concerns about the workplace.  For employers dealing with such employees, this case is a good road map for successfully managing the relationship.

Betts v. IBM Canada Ltd., 2015 ONSC 5298

“You quit!” “No I Didn’t, I’m Sick!”

What If Your Independent Contractor Is Really a Dependent Contractor?

Many employers hire independent contractors to assist in their workplace and in most cases, the assumption is that doing so will result in minimal or no notice of termination having to be paid at the end of the relationship.  A recent case has confirmed that that assumption can be a risky one to make.

Earlier this year, the Ontario Superior Court of Justice released its decision in the case of Keenan v. Canac Kitchens.  For those familiar with employment law in Ontario, the name Canac Kitchens will be familiar as it has been on the losing end of a number of employment law cases.

In this particular case, Lawrence and Marilyn Keenan were employed by Canac Kitchens beginning in 1976 and 1983 respectively.  In 1987, both were advised that their employment was coming to an end but that they could carry on as independent contractors.  Independent contractor agreements were signed and the Keenans carried on as before.  They continued working for Canac until the company closed its operations in 2009.  No notice of termination or pay in lieu of notice was provided.

The court looked back at the 2009 Ontario Court of Appeal decision in McKee v. Reid’s Heritage Home Limited and confirmed that employment relationships exist on a continuum, with employees at one end, independent contractors at the other, and dependent contractors in the middle.  The court also confirmed that unlike independent contractors, dependent contractors are entitled to reasonable notice of termination.  In determining the status of the Keenans, the court looked to the following:

  • Whether the individuals were limited exclusively to the service of the company;
  • Whether the individuals were subject to the control of the company, not only as to the product sold, but when, where and how it was sold;
  • Whether the individuals had an investment in the “tools” relating to their service;
  • Whether the individuals undertook any risk in relation to their business, or had an expectation of profit apart from a fixed fee or commission; and
  • Whether the business was that of the individual or the company.

While there were some factors in this case which suggested an independent contractor agreement, the court was particularly fixated on the fact that the Keenans worked exclusively for Canac until 2007.  Although they did some small amount of work for a competitor between 2007 and 2009 due to a shortage of work at Canac, the judge accepted that Canac turned a blind eye to same.  In other words, for all intents and purposes the Keenans provided services only to Canac for almost the entire duration of the relationship.  Moreover, Canac had almost complete control of the work performed by the Keenans.

As a result, the court found that although the Keenans were contractors, they were in a dependent relationship to Canac and therefore entitled to notice of termination.  Due to the 32 and 25 years of service provided by Lawrence and Marilyn respectively (which resulted in an average length of service of 28.5 years between the two of them), the court found that a whopping 26 month notice period was reasonable.

As always, independent contractor agreements should be entered into with careful consideration as to the true nature of the relationship between the parties.  As the saying goes, “if it walks like a duck and talks like a duck, the chances are good that it’s a duck”.  In such a case, no amount of contractual drafting will lead to another conclusion.


What If Your Independent Contractor Is Really a Dependent Contractor?

Ontario’s Changing Workplaces Review

In May, Ontario’s Ministry of Labour commenced what is being called the “Changing Workplaces Review”.  The review is intended to take a close look at the Employment Standards Act, 2000 (“ESA”) and the Labour Relations Act, 1995 (“LRA”), with the special advisors making recommendations to the Ontario government.  The review has been ordered both to address the significant period of time which has passed since both statutes were enacted, and the changes that have occurred in the workplace and society since then.   The special advisors appointed to conduct the review and issue recommendations are Michael Mitchell, a former Toronto partner from employee-side law firm Sack Goldblatt Mitchell, and the Honourable John Murray, a former judge and former a management-side lawyer.

It is anticipated that the advisors’ report to the government will touch on such things as: (a) the increase in non-standard working relationships (eg. involuntary part-time work, temporary jobs, and self-employment); (b) greater workplace diversity; (c) technological change; and (d) minimum standards under the ESA and LRA.  More specifically, and with reference to the questions posed in the government’s Guide to Consultations, it can be expected that the advisors may look at things like: (i) whether there should be more or less (or different) overtime exemptions for different groups of employees; (ii) whether additional types of leaves of absence are recommended; and (iii) whether the notice of termination provisions currently set out under the ESA are sufficient.

Public consultations are being held across the province from June through September, and written submissions can also be provided to the advisors by email, fax or regular mail prior to September 18th.  For further details on the dates and locations of public consultations, as well as where to direct written submissions, please click here.



Ontario’s Changing Workplaces Review

Another Ontario Termination Clause Decision in Favour of Employees…

The Ontario Divisional Court recently affirmed the lower court’s decision in the case of Miller v. A.B.M., an important case with respect to the interpretation of termination provisions in employment contracts. Regular readers of this blog may recall our earlier blog discussion about the lower court’s decision.

In Miller, the employee signed an employment agreement with the following termination clause: “Regular employees may be terminated at any time without cause upon being given the minimum period of notice prescribed by applicable legislation, or by being paid salary in lieu of such notice or as may otherwise be required by applicable legislation.” The termination provision did not expressly state that benefits would be continued during the statutory notice period under the Employment Standards Act, 2000 (the “ESA”). As a result, the court found that the termination provision contravened the ESA. In upholding the lower court’s decision that the termination provision was void and common law notice should instead be substituted, the Divisional Court made the following findings.

First, the court stated that the employment agreement in question distinguished salary, pensions and car allowance under the heading of ‘remuneration’, but that the termination provision specifically just referenced salary. As a result, it was clear that just salary was to be provided on termination.

Second, the court found that the employment agreement’s silence on providing benefits during the notice period did not lead to a presumption that benefits would be provided. At best, the court found that there was an ambiguity in the agreement with respect to the question of whether benefits would be continued, and ambiguities should be interpreted against the drafter (in this case, the employer).

This case confirms the law set out in earlier decisions such as Wright v. Young and Rubicam Group of Companies and Stevens v. Sifton Properties Ltd. In short, in order to ensure that the termination provision in an employment agreement is not set aside, it must be carefully drafted and it must not appear to undercut the minimum provisions of the ESA. If the termination provision does not expressly state that benefits will continue during the ESA notice period, then the employer risks having the termination provision set aside.

For employers who have not had the termination provisions in their employment agreement templates reviewed recently, now would be a good time to ensure that they are in order and to consider updating them if they are not.


Another Ontario Termination Clause Decision in Favour of Employees…

Required New ESA Poster for Ontario Workplaces

The Ontario Ministry of Labour has prepared and published a new Employment Standards Act, 2000 (“ESA”) poster entitled “Employment Standards in Ontario”. The poster is version 6.0 in a long line of ESA posters and Ontario employers were required to post it in the workplace effective as of May 1, 2015. The poster outlines for employees their rights under the ESA and the requirements of employers under the ESA.

The Ministry’s rules regarding the new ESA poster are as follows:

  • The poster must be in English but if the majority workplace language is other than English and if the Ministry has version 6.0 available in that language, then both posters must be posted side by side.
  • Version 5.0 should be removed at the time that version 6.0 is posted.
  • In addition to posting the poster in the workplace, employers are also required to give a copy of the poster to each employee by June 19, 2015.
  • New employees hired after May 20, 2015 must be given a copy of the poster within 30 days of hire.
  • The poster may be given to employees in hard copy form, as an email attachment, or as a link to an internet database (but then only if the employer ensures that the employee has reasonable access to the database, a computer and a printer).
  • The poster is available in English, French, Arabic, Chinese, Hindi, Portuguese, Punjabi, Spanish, Tagalog, Thai and Urdu.

An English copy of the poster can be obtained at http://www.labour.gov.on.ca/english/es/pdf/poster.pdf and a French copy of the poster can be obtained at http://www.labour.gov.on.ca/french/es/pdf/poster.pdf. For copies of the poster in other languages, please go to the following link: http://www.labour.gov.on.ca/english/es/pubs/poster.php.



Required New ESA Poster for Ontario Workplaces

Upcoming Employment Standards Blitz – Precarious Employment

Beginning in May 2015, the Ontario Ministry of Labour will begin a province-wide employment standards workplace inspection blitz targeting the janitorial, security, business services, fitness and recreation centres, amusement, and recreation sectors. The Ministry of Labour has labeled the blitz’s focus as “precarious employment”, likely due to the high occurrence of part-time and other atypical forms of employment in these sectors. This blitz follows the release of the Ministry of Labour’s results on its vulnerable and temporary foreign workers employment standards blitz last fall.  Those inspections found 171 non-compliant employers, recovering over $175,000 for 1,406 employees.  As is typical, the most common violations included non-compliance with the public holiday pay, vacation pay, and overtime pay requirements of the ESA.

Employers should keep in mind that part-time employees are protected under the ESA.  As such, they are entitled to minimum wages (currently at $11 per hour in Ontario, but soon to increase), vacation pay, public holiday pay, and overtime pay. These employees will also have rights upon termination, including under both the ESA and to sue for wrongful dismissal at common law.

Any employer found to be non-compliant with the ESA can face a compliance order, an order to pay, a ticket with a fine, a notice of contravention, or prosecution. These penalties can bring significant financial consequences. In 2012, a Mississauga operator of 25 fitness clubs was fined $100,000 for violating the wage provisions of the ESA.  In addition, with the amendments brought by Bill 18 now in effect, wage claims may grow, as there is no longer a monetary cap on the wage amount that the Ministry of Labour can order an employer to pay per employee.

In addition to the sectors targeted by this blitz, employers across the province may face stricter regulations and increased enforcement, as the Ontario government undertakes a formal review of both the ESA and the Ontario Labour Relations Act to address the rise of precarious employment.

Upcoming Employment Standards Blitz – Precarious Employment