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Intrusive surveillance systems for security purposes: the line Big Brother must not cross

Technological developments and the need for employers to monitor employees’ activities and to minimize accidents and hazards require constant adjustments in order to respect the right to privacy. While it may be tempting for employers to replace old surveillance methods with new technologies capable of watching their personnel’s every move, the inclination to use easier and more reliable ways of supervising employees must nonetheless not violate employees’ right to privacy, which, while being more limited in a work context, nevertheless exists.

In a recent Quebec arbitration ruling, Sysco, a food delivery company, had decided to install a DriveCam® safety program inside the drivers’ cabins of its trucks in Quebec. The Union disagreed with the introduction of this new surveillance measure and filed a grievance to have said cameras removed, alleging that they were not only violating the truck drivers’ rights to privacy and dignity, but that they were also leading to unfair and unreasonable working conditions.  In addition, the Union claimed that Sysco had failed to establish serious motives which would justify its resort to the use of such invasive surveillance, especially considering the existence of a no‑fault system in Quebec.  On its end, Sysco claimed that it was justified to install the cameras as they were meant to (i) be used as a training tool for the drivers, (ii) increase and encourage safe driving and (iii) assist with liability determination or exoneration in case of accident.

In ruling that Sysco was not justified in installing those cameras and ordering that they be removed, the Arbitrator used a two-fold analysis. First, did Sysco have a specific problem that needed to be addressed with these cameras?  Second, were these cameras the only way to fix the alleged problem, or was there a less intrusive way to achieve similar results?

On the first part of the analysis, the Arbitrator found that Sysco had failed to establish that it had an existing problematic situation that needed to be fixed. The employer’s concern for prevention regarding safe driving and liability determination or exoneration did not constitute strong motives for which the surveillance would be warranted.  Considerable risks revealing an existing problem would have been enough to establish the presence of a problem, but Sysco had not established such a problem. For example, a widespread problem having to do with alcohol or drug consumption during working hours would have constituted a great risk in the matter of safe driving.

With respect to the second aspect of the analysis, Sysco’s concern could easily have been addressed by other less intrusive means, such as training, random safety spot-checks, or cameras installed outside of the trucks rather than inside the cabins. In fact, cameras constantly filming the drivers inside the trucks’ cabins had even proven to be distracting for the drivers, thus potentially creating a greater risk from a safety perspective.

Employers who may be tempted to install such surveillance systems on their fleet will need to remember that any such violation of their employees’ right to privacy will only be justified by identifying an existing specific problem that cannot be fixed by a less intrusive means than the surveillance system the employer wishes to install.

The decision can be found here: Syndicat des travailleurs et travailleuses de Sysco-Québec-CSN et Sysco Services alimentaires du Québec, 2016 QCTA 455.

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Intrusive surveillance systems for security purposes: the line Big Brother must not cross

Supreme Court of Canada to Federally Regulated Employers: No “Without Cause” Dismissals Under Canada Labour Code

In a decision which returns us to what many thought was the status quo, the Supreme Court of Canada has ruled that, (save for exempt employees), the unjust dismissal scheme in the Canada Labour Code (the “Code”) does not permit federally regulated employers to dismiss employees without cause once they have one year of service or more. This decision reverses the decisions of the Federal Court and Federal Court of Appeal, which had ruled that nothing in the Code precluded federally regulated employers from dismissing non-unionized employees on a without cause basis. As a result, for federally regulated employers, when it comes to dismissal, the right of non-union employees to protection from dismissal tracks the right of their unionized counterparts.

Facts:

In November 2009, Atomic Energy Canada Limited (“AECL”) dismissed a procurement supervisor after four and a half years of service. The employee promptly filed an “Unjust Dismissal” complaint, claiming that he had been unjustly dismissed contrary to the Code. In response, AECL argued that because it had provided the employee with a generous severance package well in excess of his minimum statutory entitlements (i.e. 6 months’ pay), the employee had not been unjustly dismissed. The Adjudicator appointed to hear the matter disagreed with AECL and ruled that an employer could not rely on severance payments, however generous, to avoid a finding that an employee had been unjustly dismissed under the Code.

In a surprise to many, the Federal Court of Canada, and then the Federal Court of Appeal, disagreed with the Adjudicator, holding that nothing in the Code prevented federally regulated employers from dismissing non-unionized employees without cause. The employee appealed to the Supreme Court of Canada.

Supreme Court of Canada:

Writing for the majority, Justice Abella stated that the purpose of the Code’s unjust dismissal scheme was to provide “…a cost-effective alternative to the civil court system for dismissed employees to obtain meaningful remedies which are far more expansive than those available at common law”. In Justice Abella’s view, the remedies contemplated by the Code for non-unionized employees were meant to reflect those generally available in the collective bargaining context. As such, in the federal sphere, the common law right of employers to dismiss “…whomever they want for whatever reason they want so long as they give reasonable notice or pay in lieu” was superseded by the Code, which did not give federally regulated employers such a right.

What this means for Federally Regulated Employers:

For better or for worse, the Supreme Court of Canada’s decision provides legal certainty for Canada’s federally regulated employers, as it ends the debate about whether the Code permits without cause dismissals. That said, the Supreme Court of Canada’s decision does not mean that an employee’s right to sue his or her former employer in court for wrongful dismissal has been extinguished. As the minority noted in this case, due to a legislative wrinkle, a federally regulated employer can dismiss an employee without cause as long as that employee chooses to challenge the lawfulness of the dismissal in the civil courts.  However, if the employee files a complaint under the Code’s unjust dismissal scheme, the notice provided to the employee will not insulate the employer from an adjudicator’s finding that the dismissal was nonetheless unjust.

Accordingly, unless and until the Code’s unjust dismissal scheme is amended to allow for without cause dismissals, federally regulated employers can only dismiss an employee with one year of service or more due to performance issues, a lack of work or the discontinuance of a function. Failure to meet this requirement could result in significant liability for the employer, including reinstatement.

Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29 (http://www.canlii.org/en/ca/scc/doc/2016/2016scc29/2016scc29.pdf)

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Supreme Court of Canada to Federally Regulated Employers: No “Without Cause” Dismissals Under Canada Labour Code

Join Us for a Legal Update at Dentons’ June 10th employment law seminar in Toronto

Dentons will be providing a complimentary half-day employment law seminar in Toronto on Friday, June 10th.  You are welcome to join us.

Presentations at the seminar will be as follows:

  • Recent OHS Cases of Interest”, presented by Adrian Miedema
  • “Workplace confidential: How to maintain privilege over workplace investigations”, presented by Andy Pushalik and Rahim Punjani
  • “Bill 132: Ontario’s new sexual violence and harassment legislation – what employers need to know”, presented by Sabrina Serino
  • “To compete or not to compete? Tips and traps when drafting restrictive covenants”, presented by Jeff Mitchell and Chelsea Rasmussen
  • “How to support transgender employees”, presented by Anneli LeGault
  • “You tweeted what?!: Tips on effectively managing social media in the workplace”, presented by Matthew Curtis and Saba Zia
  • “Covering your assets: Common employer liabilities and best practices for managing HR risk”, presented by Blair McCreadie and Carmen Francis
  • “Do you sponsor a Group RRSP or defined contribution pension plan? Beware of “estimates” that your provider wants to give your employees”, presented by Mary Picard and Aiwen Xu

Date & Time Friday, June 10, 2016 Registration and breakfast:  8:30-9:00 a.m. Welcome remarks and special guest speaker:  9:00-9:30 a.m. Breakout sessions:  9:45-12:15 p.m. Lunch and special guest speaker:  12:15 p.m.

Location Dentons Canada LLP 77 King Street West 5th Floor Toronto, ON

Click here to RSVP

Contact Please contact toronto.events@dentons.com for any questions.

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Join Us for a Legal Update at Dentons’ June 10th employment law seminar in Toronto

The Right to Strike: Changes to Alberta Labour Legislation

In light of the Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4 decision, the Alberta government has undertaken a review of the Labour Relations Code (“LRC”) and the Public Service Employees Relations Act (“PSERA”). Following a consultation with affected employers, unions and employees, on March 15, 2016 the Alberta government introduced Bill 4, An Act to Implement a Supreme Court Ruling Governing Essential Services (“Bill 4”).

Prior to the amendments, public sector employees governed by PSERA and the LRC could not strike. The new legislation, colloquially known as the essential services legislation, allows for strikes and lockouts of public sector employees who could not previously strike. This includes health care workers employed by Alberta Health Services and other approved hospitals, employees of the provincial government and agencies, boards and commissions and non-academic staff at post-secondary institutions. The amendments do not impact firefighters, non-Alberta Health Services ambulance operators and their attendants, police officers, academic staff and graduate students at post-secondary institutions.[1]

The amendments will allow employees to strike while still maintaining essential services. In order to maintain essential services, the employer and the employees’ union will negotiate essential services agreements. The amendments require the negotiations to be in good faith and make every reasonable effort to enter into an essential services agreement. The following must be included in all essential services agreements:

  1. provisions that identify the essential services that are to be maintained by employees in the bargaining unit in the event of a strike or lockout;
  2. provisions that set out the classifications of employees, and the number of positions in each classification, required to perform the essential services referred to in clause (a);
  3. provisions that set out a method by which the employees capable of performing and qualified to perform essential services will be assigned to perform those services during a strike or lockout;
  4. provisions that set out the procedures to be followed in responding to emergencies and foreseeable changes to the essential services that need to be maintained during a strike or lockout;
  5. provisions describing changes or permitted changes, if any, to the terms and conditions of employment that are to apply to designated essential services workers under sections 130(2) and 147(4) of the Act and sections 24.1(2) and 46(2.1) of the PSERA;
  6. provisions that identify sufficient umpires, but at least one umpire, to be available to provide timely resolution of disputes under section 95.7; and
  7. any other provisions specified in the regulations.

Should parties be unable to agree on the contents of an essential services agreement, they may agree to use an umpire to mediate and, if necessary, may seek guidance from the Commissioner (the individual who oversees the administration of the essential services legislation, as defined in the legislation), to assist with settling the essential services agreement.

Once an essential services agreement is reached, it must be filed for each round of collective bargaining. The parties must also declare to the Commissioner: (a) whether the agreement ensures that essential services are maintained during any strike or lockout; and (b) whether the provision of essential services required by the essential services agreement during a strike or lockout will substantially interfere with meaningful collective bargaining. The Commissioner has several options should an essential services agreement be unacceptable, including making unilateral amendments to the agreement.

An essential services agreement accepted for filing is binding on: (a) the employer; (b) the bargaining agent; and (c) every employee of the employer who is in the bargaining unit represented by the bargaining agent.

Bill 4 has since undergone its second reading and amendments during the Committee of the Whole and on April 16, 2016, the Bill passed its third reading in the legislature. Bill 4 is currently waiting Royal Assent. The deadline to amend the legislation was extended to the end of the spring 2016 sitting of the Alberta Legislature.

Once given Royal Assent and the amendments have come into force, a number of public sector employees will now have the right to strike with only essential services designated workers being prohibited to do such.

[1] However, the Post-secondary Learning Act is currently under review.

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The Right to Strike: Changes to Alberta Labour Legislation

Hidden Camera Leads to Dismissal

An arbitrator recently upheld the termination of a “reliable and capable” Personal Support Worker (a “PSW”) with no prior disciplinary record, because of significant mistreatment of an individual she was responsible for, and because she did not show the kind of insight required.

The Grievor had 6 years of service as a PSW in a licensed long-term care home (the “Home”). Her most recent performance appraisal showed perfect attendance and an overall rating of 41 out of 48 for the relevant review period.  She was nominated for the “2013 Face of Safety Award”, but by May 2013 she had become the face of the villain in a video that was widely circulated in the media.

The Home served vulnerable residents living with significant physical, psychological and/or behavioural impairments. The Grievor’s role as a PSW involved assisting residents with their activities of daily living (ADL), often alone and unsupervised. The resident at the centre of this grievance was an 85-year old woman living with Alzheimer’s (the “Resident”).

The Grievor claimed that on the day of the incident that culminated in her termination, smells emanating from the Resident’s room alerted her to the fact that the Resident needed to be cleaned and changed. She testified that although the Resident resisted care, she persisted out of concern for the Resident’s comfort and her fear that the Resident might develop sores if left unattended in the “pool of urine and feces”. The Grievor also testified that because the Resident was resisting care, she showed the Resident the soiled washcloth to prove to her that she needed care.

The 7-minute montage from a hidden camera that the Resident’s son had placed in the room, and later shared with the media, told a different story. The Resident was seen lying contentedly on her bed until the Grievor attempted to get her out of bed. As the Resident resisted, the Grievor pulled the Resident, grabbed her by her neck and tried to lift her out of bed. The next few minutes were not captured by the camera, as the Grievor and the Resident moved to the bathroom. After they returned the Resident lay on the bed without protest, rolled onto her side without protest and appeared totally compliant. The Grievor then waved the feces-covered cloth in the Resident’s face. As a result the Resident became agitated and began to refuse care. The Grievor persisted in delivering care and roughly pushed the Resident and rolled her around. At no point in the video did the arbitrator see any soiled bedding or any “pool of urine and feces”.

The Home alleged that the Grievor’s conduct constituted abuse, breached the Resident’s Bill of Rights under the Long-Term Care Homes Act, 2007 and breached several organizational and generally accepted protocols.‎

The Home led evidence that given the Resident’s frailty and the manifestations of Alzheimer’s, it was critical that the Grievor comply with the protocols the Home had developed for dealing with resistance. Instead, the Grievor began by ignoring the two-person lifting and transferring protocol. She also ignored the universally accepted “leave and reapproach” method. When the Resident refused care, instead of persisting, the Grievor should have left, waited a few minutes and then reapproached with the assistance of another employee. The Home maintained that the Grievor’s conduct was a significant breach of trust requiring not just discipline, but termination.

The arbitrator agreed. He said the Grievor demonstrated a “fundamental lack of judgement”, falling within the definition of abuse and going to the heart of the employment relationship. He also acknowledged that long-term care employees like the Grievor held positions of public trust and public interest, which demanded a very high standard of conduct.

The arbitrator commented that reinstatement would have been very likely if he had found that the Grievor had accepted full responsibility and provided him with confidence that she would not repeat her conduct. Moreover, if he had accepted her explanation as being credible and consistent with the video he would have seriously considered reinstatement. Instead, the arbitrator concluded that the Grievor did not seem to grasp that in future she should use the “leave and reapproach” method. Although the Grievor apologized and declared her willingness to undergo counselling and do whatever was required to repair the employment relationship, this was, in the eyes of the arbitrator, not enough to give him the confidence that would make reinstatement appropriate.

The Grievor’s ideal response would have been one that satisfactorily explained her conduct, demonstrated insight, and above all, instilled confidence she would never repeat her conduct. An earnest response would not have “downplayed her culpability”.

On one level this case is a reminder that grievances can turn on the ability to adduce evidence or elicit testimony about the likelihood that an employee will re-offend. Beyond that, this is an important reminder of the value of effective recruitment and selection processes. Employers should design recruitment and selection processes to identify candidates who likely possess the insight to appreciate and apply the policies and training that are provided to help them deal with difficult situations.

St. Joseph’s at Fleming Long-Term Care Facility v Canadian Union of Public Employees, Local 2280, 2015 CanLII 2811 (ON LA) 

Hidden Camera Leads to Dismissal

A Definitive Ruling on the Issue of Without Cause Terminations under the Canada Labour Code

Federally regulated employers take note.  The Federal Court of Appeal has recently confirmed that without cause dismissals are not automatically deemed to be “unjust” under the provisions of the Canada Labour Code (the “Code”).

For decades, adjudicators have been at odds with one another regarding the question of whether the Code permits dismissals on a without cause basis.  As a matter of background, the Code applies only to federally regulated employers such as banks, railways and telecoms.  After years of uncertainty in this area, the Federal Court of Appeal recently decided to end the discord and definitively determine the legal point.

In the case of Wilson v. Atomic Energy of Canada Limited, Mr. Wilson was employed for 4.5 years before being terminated on a without cause basis and offered a common law package equal to about 6 months of pay.  Mr. Wilson chose not to sign a release in exchange for the offer and instead filed a complaint under the Code which alleged that he had been unjustly dismissed.

After both an adjudication and a Federal Court hearing, the matter proceeded to the Federal Court of Appeal, which found that a dismissal without cause is not automatically “unjust” under the Code and that adjudicators must examine the circumstances of each particular case in order to decide whether or not a dismissal is unjust.  In its analysis, the court determined that Part III of the Code (which contains exceptional remedies such as reinstatement of employment) is merely intended to offer employees more remedies than exist under the common law, but only if the dismissal is unjust.  The extra remedies granted under Part III do not, however, mean that all without cause dismissals under the Code are automatically unjust.

As a result, federally regulated employees who are terminated without cause must prove that they have been terminated unjustly if they want that conclusion to be drawn.  In practical terms, this means that where there is no finding of unjust dismissal, a federally regulated employee can be terminated without cause and simply provided with a notice or severance package.  In order to gain the benefit of Code remedies which do not exist under the common law, such as the right to reinstatement, the employee must go the extra step and establish that the without cause termination was “unjust”.

The decision in Wilson v. Atomic Energy of Canada Limited can be found here: http://decisions.fct-cf.gc.ca/fca-caf/decisions/en/item/100689/index.do.

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A Definitive Ruling on the Issue of Without Cause Terminations under the Canada Labour Code

On the Radar Screen: the Stronger Workplaces for a Stronger Economy Act, 2014

As we reported in a previous blog post that can be found here, the Stronger Workplaces for a Stronger Economy Act, 2014 makes some significant changes to several Ontario statutes.  The legislation received Royal Assent on November 20, 2014 and a copy can be found here, but the significant changes include the following:

1. Starting on October 1, 2015, it provides for increases (but not decreases) to the minimum wage under the Employment Standards Act, 2000 (the “ESA”) based on the Ontario Consumer Price Index. The CPI will be announced by April of each year, with the minimum wage change to come into effect on October 1.  This will likely result in the minimum wage changing incrementally every year, creating an additional administrative burden on employers who pay their employees at or near the minimum wage.

2. It eliminates the $10,000 cap on the recovery of unpaid wages through Ministry of Labour Orders to Pay under the ESA.  This provision comes into force on February 20, 2015, although the cap still applies to orders made in respect of wages due prior to the date on which the provision comes into force.

3. It requires employers to provide each of their employees with a copy of the most recent poster published by the Ministry of Labour that provides information about the ESA. An employer must provide available translations of the poster if requested by an employee.  The poster must be provided to all employees within 30 days of the day on which the provision comes into force, and thereafter (for new employees) within 30 days of the day on which an individual becomes an employee of the employer.  This provision comes into force on May 20, 2015.

4. It increases the period of recovery of unpaid wages (i.e. the limitation period) under the ESA to two years, and gives Ministry of Labour inspectors the ability to order an employer to conduct a “self-audit”, whereby it examines its own records to ensure it is in compliance, after which the employer must report back to the officer on the level of compliance.  This provision comes into force on February 20, 2015.

5. It expands employment protections to cover all foreign employees who come to Ontario under an immigration or foreign temporary employee program (previously the protections had only been in place for live-in caregivers).  This provision comes into force on November 20, 2015.

6. It creates “joint liability” for a temporary help agency and its client for certain ESA violations, such as the failure to pay regular wages, overtime pay, and public holiday entitlements.  Although the temporary help agency still has the primary liability, the client is now jointly liable.  This provision comes into force on November 20, 2015.

7. It amends the Workplace Safety and Insurance Act to add “temporary help agencies” as a recognized definition, and to assign workplace injury and accident costs to the client of a temporary help agency when an employee is injured while performing work for the agency’s client.  This provision will come into force on a future date to be proclaimed by the Lieutenant Governor, so it is unclear when it will take effect.

8. It expands coverage under the Occupational Health and Safety Act to include unpaid co-op students and other unpaid learners, which will give them protections such as the right to know about workplace hazards and the right to refuse unsafe work.  This provision came into force on November 20, 2014.

9. It amends the Labour Relations Act, 1995 in respect of the unionized construction industry’s “open period”, to decrease the time when construction workers can change their union representation (or apply to remove their union) from three months before the expiry of the current collective agreement down to two months.  This provision comes into force on May 20, 2015.

Particularly in respect of the changes to the ESA, these expanded powers will likely result in an increase in claims made to the Ministry of Labour, as this process is generally cheaper and faster than court-based civil litigation.

On the Radar Screen: the Stronger Workplaces for a Stronger Economy Act, 2014

Significant Changes Proposed to Ontario’s Workplace Laws

Ontario’s government introduced workplace legislation on July 16, 2014 that would affect five labour and employment statutes in the province. Significant changes that are proposed in the Stronger Workplaces for a Stronger Economy Act, 2014 include:

  • Eliminating the $10,000 cap on the recovery of unpaid wages by employees through the Ministry of Labour claim process under the Employment Standards Act, 2000;
  • Increasing the limitation period to two years for employees to recover unpaid wages through the Ministry of Labour claim process under the Employment Standards Act, 2000.  The current limitation period is six months or one year depending on the type of claim;
  • Requiring employers to provide each of their employees with a copy of the most recent poster published by the Ministry of Labour that provides information about the Employment Standards Act, 2000. An employer must provide available translations of the poster if requested by an employee;
  • Making temporary help agencies and their clients jointly and severally liable for unpaid regular wages and unpaid overtime pay;
  • Requiring the Workplace Safety and Insurance Board to assign workplace injury and accident costs to temporary help agency clients when an employee is injured while performing work for the agency’s client;
  • Extending the safety protections under the Occupational Health and Safety Act to unpaid workers receiving training under prescribed conditions;
  • Decreasing the construction industry’s open period, when construction workers can join a different union close to the end of the term of their collective agreement, from three months to two months;
  • Expanding employment protections for foreign nationals who are in Ontario under an immigration or foreign temporary employee program. The protections include a prohibition on charging a recruiter fee or taking possession of the foreign national’s property, such as their passport or work permit; and
  • Tying future minimum wage increases under the Employment Standards Act, 2000 to the Consumer Price Index. The new minimum wage will be announced by April 1 of each year and will come into effect on October 1.

It is currently unclear when the proposed changes will be passed by the Ontario legislature. We will keep you apprised of any developments.

A copy of the Stronger Workplaces for a Stronger Economy Act, 2014 can be found here: http://www.ontla.on.ca/bills/bills-files/41_Parliament/Session1/b018.pdf

Significant Changes Proposed to Ontario’s Workplace Laws

The Non-Working Worker: A Practical Guide for Dealing with Employee Absences – Seminar

We hope that you will join us in Vancouver on Wednesday, November 20th as we discuss:

  • When They’re Not at Work: Managing Employees on Leave – Jeff Bastien
  • When They Don’t Return: Managing Employees who are Unwilling or Unable to Return – Andrea Raso
  • They’re Baaaaack…: Managing Reintegration and Performance Expectations – Dana Hooker

BC HRMA members – this workshop may be eligible for CHRP recertification credits.

Event Details
November 20, 2013
8:00 AM – 10:00 AM PDT

Terminal City Club
Walker Room
837 West Hastings St.
Vancouver, British Columbia
Canada

This session is complimentary. Please email vancouver.events@dentons.com to RSVP before November 15th.

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The Non-Working Worker: A Practical Guide for Dealing with Employee Absences – Seminar

Fall Employment and Labour Law Update – Seminar

Dentons Canada LLP
77 King Street West, 5th Floor
Toronto, ON M5K 0A1
Canada
 

On October 9th, 2013, Dentons hosted the Fall Employment and Labour Law Update.  This seminar featured presentations from our firm members Anneli LeGaultJeff Mitchell and Andy Pushalik.

Presentations include:

  • AODA Update: What Employers Should Know About the Accessibility for Ontarians with Disabilities Act, 2005, presented by Anneli LeGault
  • Return to Work Strategies: Sick and Disabled Employees, presented by Jeff Mitchell
  • Non-Solicitation and Non-Competition Covenants: Making them Enforceable, presented by Andy Pushalik

CHRP Accreditation

This program may be eligible for recertification points.

CPD Accreditation

This 1.5 hour program can be applied toward 9 of the 12 educational hours for Continuing Professional Development required annually by the Law Society of Upper Canada. Please note that these CPD hours are not accredited for the New Member Requirement.

This seminar is also offered via webinar.

To download a PDF of the presentation, or the seminar booklet, click here.

To view the full presentation, click here.

For additional information, please contact:

Marina Tsouloufas
Event Specialist, Toronto
+1 416 361 2398
marina.tsouloufas@dentons.com

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Fall Employment and Labour Law Update – Seminar