1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar

Ontario regulatory form regarding pension plan contributions: comply!

Trustees and administrators of Ontario registered pension plans: beware of Form 7.

That’s the form that administrators of registered pension plans must complete, and send to their pension fund trustees, that summarizes the estimated employer and employee contributions that will be due to be made to the pension plans in future. The form must be provided by the registered administrator of every Ontario registered pension plan to the trustee, at least annually.  If there’s a change to the estimated future pension contribution requirements, the administrator must send a revised Form 7 to the pension fund trustee within 60 days of becoming aware of the change.

Trustees of pension plans (which for this purpose include insurance companies) are not required to complete Form 7’s. But trustees have an important, independent legal obligation to notify the Ontario Superintendent of Financial Services if they do not receive the required Form 7.  Further, if contributions to the pension plan are not received by the trustee in accordance with the estimates in the Form 7 received by the trustee, the trustee must notify the Superintendent.  There are prescribed time limits for all of these requirements.

In essence, the Form 7 rules require pension fund trustees to police timely plan contributions. The law requires trustees to blow the whistle if a plan administrator is not making contributions on time.

In 2013 a trustee was prosecuted in Ontario for failing to report the non-filing of a Form 7 with respect to a plan administrator who eventually filed for bankruptcy protection from its creditors. The trustee plead guilty and was fined $50,000.

The gravity of compliance with Form 7 rules was recently emphasized by the Ontario pension regulator in an announcement that can be found here.  A few days ago, the regulator released a revised Form 7 that can be found here, as well as a comprehensive User Guide that can be found here, to assist plan administrators in completing Form 7.  It also released two new standardized templates, to be used by pension fund trustees to report to the Superintendent when a plan administrator fails to submit a Form 7, or fails to make the contributions as summarized in a Form 7.  The templates can be found here.

Although Form 7 is a prescribed form, it does not have to be filed with the Ontario pension regulator. It is simply a required communication from plan administrators to pension fund trustees.  Do not take this as an indication that the Ontario pension regulator is indifferent about compliance with the Form 7 rules.  It has clearly demonstrated that it requires compliance, and it has provided a guide and templates to assist the pension industry with the rules.

,

Ontario regulatory form regarding pension plan contributions: comply!

British Columbia Arbitrator Reinstates Firefighter Convicted of Possession of Stolen Boat

In a recent grievance decision, Re Prince George and Prince George Firefighters, Local 1372 (Williams), 2016 CarswellBC 2591, a labour arbitrator reinstated a firefighter whose employment was terminated after being found guilty of possession of a stolen boat and trailer.

The arbitrator concluded that in order to justify terminating a unionized employee, there must be a sufficient nexus between the employee’s misconduct away from work, and his employment duties.

Facts

The Grievor had been a firefighter for 11 years with a pristine work record. There were no concerns with his honesty or work.  In 2012, he purchased a boat and trailer for $9,500 from a fellow firefighter.  The boat, reportedly worth approximately $30,000, had been stolen.  The state of the Grievor’s knowledge when he purchased the boat was disputed.

The Grievor was arrested in 2013. The RCMP phoned the Grievor and asked to attend his property to investigate a tip that a stolen boat was located on his property.  Within minutes of the call, the Grievor hooked the boat and trailer up to his car and began towing it away from his property.  However, the Grievor’s property was under surveillance and he was arrested.

The Grievor lied about his acquisition of the boat and trailer in his initial statement to police, providing a story about how he purchased the boat, and three different purchase prices. He later admitted to the RCMP that he bought the boat from a fellow firefighter for much less, but he did not admit to knowing the boat was stolen.  However, he made some comments that he had doubts about the deal, and suggested he “had an inkling in the pit of his stomach” about it.

The employer investigated and the Grievor reluctantly admitted to the arrest. The Grievor was placed on leave, but the employer did not initially ask if he knew the boat was stolen.  When asked in a subsequent interview, the Grievor said it was a “grey area”.  He also advised the employer of his attempt to flee with the boat.  The employer allowed the Grievor to return to work with conditions, accepting that he was being forthright.

In the criminal proceedings, the court did not accept the Grievor’s evidence, and he was found to have known the boat was stolen. The trial was widely reported in the local media.

Upon learning of the verdict, the employer terminated the Grievor’s employment. The employer’s reasons, as stated at arbitration, included: the comments made by the judge regarding the non-acceptance of the Grievor’s evidence and his credibility, dishonesty and lack of judgment; the media reports and negative publicity; and concerns about the Grievor’s honesty during the employer’s investigation.

Arbitrator’s Reasons

The arbitrator found it difficult to reconcile evidence regarding the Grievor’s police statement and his evidence at trial and arbitration that he had no concern the boat was stolen. She noted that she had “grave doubts” as to his understanding of the underlying issue of his honesty.  Nevertheless, she proceeded to consider the question of whether termination was excessive in the circumstances.

To this end, relying on Millhaven Fibres Ltd. and OCAW, Local 9-670, Re, [1967] O.L.A.A. No. 4 (Ont Arb), the arbitrator noted that in determining whether the Grievor’s conduct away from the place of work was a justifiable reason for discharge, there was an onus on the employer to show that:

  1. The conduct of the Grievor harms the employer’s reputation or product;
  2. The Grievor’s behaviour renders the employee unable to perform his duties satisfactorily;
  3. The Grievor’s behaviour leads to refusal, reluctance or inability of the other employees to work with him;
  4. The Grievor has been guilty of a serious breach of the criminal code and thus rendering his conduct injurious to the general reputation of the employer and its employees;
  5. The conduct causes difficulty in the way the employer properly carries out its function of efficiently managing its works and efficiently directing its working force.

The arbitrator found there was no direct link between the misconduct and the Grievor’s duties. There was no suggestion he could not be trusted to do his firefighting duties. The arbitrator accepted that it was an isolated incident by an employee with a pristine work record, not likely to be repeated.  Moreover, he was not in a fiduciary position, and his duties did not expose him to the temptation of greed.

In short, the arbitrator concluded that there was an insufficient nexus between the Grievor’s misconduct and his duties to warrant termination. Accordingly, the arbitrator reinstated the Grievor, but declined to award wages, seniority or benefits from the date of termination to the date of reinstatement.

Take Away

Criminal convictions in and of themselves may not justify termination of an employee on the basis of dishonesty and lack of trust. Despite findings of misconduct in criminal proceedings, employers terminating for cause must establish that the misconduct actually relates in more than a general manner to the duties to be performed by the employee.

,

British Columbia Arbitrator Reinstates Firefighter Convicted of Possession of Stolen Boat

Ontario Minimum Wage Increase Now in Effect

Ontario employers are reminded that the general minimum wage in Ontario increased on October 1, 2016 to $11.40 per hour, up from $11.25 per hour.  The liquor server minimum wage also increased to $9.90 per hour and the student minimum wage is now $10.70 per hour. The Ontario minimum wage is indexed to Ontario’s Consumer Price Index so future increases will be published on or before April 1 and will come into effect on the following October 1.

,

Ontario Minimum Wage Increase Now in Effect

Increase to the Alberta Minimum Wage

Alberta employers are reminded that the general minimum wage in Alberta will be increased on October 1, 2016 to $12.20 per hour, up from $11.20 per hour. Additionally, the current liquor server rate will be eliminated effective October 1, 2016 and these employees will also now earn the general minimum wage. Employers are reminded to update their employment contracts and practices to ensure they reflect the new minimum wage.

The minimum wage will increase a further $1.40 to $13.60 per hour on October 1, 2017, and by $1.40 to $15.00 per hour on October 1, 2018.

,

Increase to the Alberta Minimum Wage

Ontario Court Rules that ESA Temporary Layoff may still Result in Constructive Dismissal

An Ontario Court has ruled in Bevilacqua v Gracious Living Corporation, 2016 ONSC 4127 that even in cases where an employer has complied with the temporary layoff provisions of the Employment Standards Act, 2000 (the “Act”), the layoff does not protect the employer from a successful claim in constructive dismissal by the employee at common law. In the case, a 15 year Facilities Manager was told by his employer that he was being temporarily laid off and that he would be recalled in three months. His company benefits were continued during the layoff period. While the layoff was done in accordance with the Act, the employee immediately took the position that he had been effectively terminated when he was placed on layoff. The Court agreed with the employee, and held that absent a provision in the employee’s employment contract allowing for a temporary layoff, a unilateral layoff constituted a constructive dismissal, regardless of whether it was done in compliance with the Act. The employee in the case, who was unemployed for 15 months after he was placed on layoff, was less successful with the remedy that the Court ordered. The employee was entitled to be paid for the three months he was on layoff, but the Court found that he had failed to mitigate his damages when he declined the employer’s offer to return to his old job after the layoff period was over.

Employers who wish to place employees on unpaid layoff should use this case as a reminder to update their employment agreements to provide for the right to unilaterally impose temporary layoffs in accordance with the Employment Standards Act, 2000 without further notice or compensation.

To view the decision, click here: http://www.canlii.org/en/on/onsc/doc/2016/2016onsc4127/2016onsc4127.html.

 

,

Ontario Court Rules that ESA Temporary Layoff may still Result in Constructive Dismissal

BC Minimum Wage Increase Now in Effect

British Columbia employers are reminded that the general minimum wage in British Columbia increased on September 15, 2016 to $10.85 per hour, up from $10.45 per hour.  The liquor server minimum wage also increased to $9.60 per hour. Employers are reminded to update their employment contracts and practices to ensure they reflect the new minimum wage.

,

BC Minimum Wage Increase Now in Effect

Trend continues in alberta for higher general damages in human rights awards

General damages awarded by human rights tribunals are intended to compensate for discrimination and to act as a deterrent.

The Alberta Human Rights Act provides no statutory limit on how much general damages can be awarded.  However, in the past general damages awarded by the Human Rights Tribunal of Alberta (the “Tribunal”) generally ranged from $3,000 to a top end “cap” of $10,000.

This has changed since the Alberta Court of Appeal decision in 2013 of Walsh v. Mobil Oil Canada.  In Walsh, the court stressed that inadequate damage awards undermined the mandate of human rights legislation to recognize and affirm that all persons are equal, and to protect against and compensate for discrimination.  The court concluded that low damage awards could actually perpetuate discriminatory conduct.

Beginning in 2015 there has been a notable trend towards higher general damages awards, and the Tribunal has issued a number of decisions awarding general damages in the range of $10,000 to $15,000.

In Amir and Nazar v. Webber Academy Foundation the Tribunal found that it was not undue hardship to allow Muslim students to pray during the school day in a secular private school, and awarded general damages of $12,000 and $14,000 to each complainant.

Similarly, in Andric v. 585105 Alberta Ltd. o/a Spasation Salon & Day Spa, the Tribunal found that the employer had unjustifiably changed the complainant’s position and work location of 10 years after she was assaulted by a co-worker. The Tribunal concluded that the shared religious beliefs between the co-worker who assaulted the complainant and the employer were a factor in the respondent’s decision to transfer the complainant.  The complainant was awarded general damages of $15,000 and lost wages for a 24 month period.

More recently, on July 5, 2016 the Tribunal issued its decision in Thu Hien Pham v. Vu’s Enterprise Ltd. o/a La Prep, which continued this trend of higher general damage awards.  The complainant, Ms. Pham was awarded $15,000 in general damages by the Tribunal, who found that Ms. Pham had been harassed by her former employer.  On awarding $15,000 in general damages, the Tribunal chair noted that “it was important to ensure that damages are not so low as to trivialize the protection of human rights”, and “[w]hile I may have been inclined to consider a greater amount…this was the amount requested by the Director and the complainant”.

Accordingly, employers can expect to see larger awards in the future for both general damages and loss of income, and should not discount the risks and exposure of a human rights complaint.

These decisions of the Human Rights Tribunal of Alberta can be found here:

  • Amir and Nazar v. Webber Academy Foundation, 2015 AHRC 8 (currently under appeal): http://www.canlii.org/en/ab/abhrc/doc/2015/2015ahrc8/2015ahrc8.html?resultIndex=1
  • Andric v. 585105 Alberta Ltd. o/a Spasation Salon & Day Spa, 2015 AHRC 14: http://www.canlii.org/en/ab/abhrc/doc/2015/2015ahrc14/2015ahrc14.html?resultIndex=1
  • Pham v. Vu’s Enterprises Ltd., 2016 AHRC 12: http://www.canlii.org/en/ab/abhrc/doc/2016/2016ahrc12/2016ahrc12.html?resultIndex=1

,

Trend continues in alberta for higher general damages in human rights awards

A Rose by Any Other Name is Not as Sweet: When a Non-Solicit is Actually a Non-Compete

The Ontario Court of Appeal has held that the words “accept business”, in what the employer intended to be a non-solicitation clause, served to restrict competition and is therefore not merely a non-solicitation clause.

In this case, the personal defendant, Mary Murphy, was employed by the plaintiff Donaldson Travel Inc. (“DTI”) as a travel agent from October 2004 to April 2007 and then again from June 2007 to February 3, 2012, when she resigned from that employment. On February 6, 2012, Ms. Murphy commenced employment as a travel agent with the defendant, Goliger’s TravelPlus (“Goliger’s”).

Following Ms. Murphy’s resignation, DTI brought claims of breach of contract, misappropriation of confidential information, inducing breach of contract and interference with contractual relations against Ms. Murphy, Goliger’s and its President and director. Its claims were dismissed on a summary judgment motion, and DTI appealed to the Court of Appeal.

One of the issues on appeal was whether the motion judge erred in finding that the restrictive covenant in Ms. Murphy’s contract with DTI was in fact a non-competition clause rather than a non-solicitation clause, and therefore that it was unreasonable and unenforceable.

The clause at issue stated:

Mary agrees that in the event of termination or resignation that she will not solicit or accept business from any corporate accounts or customers that are serviced by Uniglobe Donaldson Travel, directly, or indirectly.

The Court of Appeal agreed with the motion judge that, based primarily on the language “or accept business”, the restrictive covenant did in fact restrict competition and was therefore a non-competition clause. Further, the Court of Appeal held that since this non-competition clause contained no temporal limitation, there was no basis on which to interfere with the motion judge’s conclusion that the clause was unreasonable and therefore unenforceable.

DTI’s appeal was dismissed with costs of $7,500.00 awarded to each defendant.

The key takeaway from this case is to ensure that the language of restrictive covenants is carefully chosen, so as to avoid inadvertently going beyond what is considered sufficient in the circumstances (in this case a non-solicitation clause) to protect an employer’s proprietary interest.

The Court of Appeal’s decision in Donaldson Travel Inc. v. Murphy, 2016 ONCA 649 (CanLII) can be found here:  https://www.canlii.org/en/on/onca/doc/2016/2016onca649/2016onca649.html.

,

A Rose by Any Other Name is Not as Sweet: When a Non-Solicit is Actually a Non-Compete

B.C. and Canada Adopting Gender Identity and Gender Expression Human Rights Protections

Both the British Columbia and the Federal Government have recently introduced legislation to amend their respective human rights legislation to include gender identity and gender expression among the protected grounds of discrimination. These amendments will mean that individuals will have a right under the respective legislation to make a complaint if they have been discriminated against because of their gender identity or expression, including in employment settings.

Federally regulated employers and employers in British Columbia should review and update their policies on non-discrimination to ensure that these two new prohibited grounds of discrimination are covered.

British Columbia’s Human Rights Code Amendment Act, 2016, S.B.C. 2016, c.26 was passed on July 25, 2016 and came into force on July 28, 2016 whereas the Federal Bill C-16 passed first reading in the House of Commons on May 17, 2016 and has yet to become law.

,

B.C. and Canada Adopting Gender Identity and Gender Expression Human Rights Protections

Ontario Pension Plan Members Will Soon Have Significant New Rights

Ontario is on the verge of implementing new rights for members of registered pension plans. Members will have the right to form committees that will have broad rights to review information about all aspects of plan administration including investments.  Employers who sponsor or administer a registered pension plan should familiarize themselves with these new Ontario legal requirements.  They are not yet law, but likely will be in a matter of months.

Last week the Ontario government released revised draft regulations about these new legal requirements, seeking comments by September 12th, 2016.  The new requirements have been kicking around in draft for the past six years and will replace current Ontario legislation regarding member advisory committees.  Most employers probably haven’t heard of the current requirements regarding such committees, because the current rules have no teeth.  The new ones will.  You can find the new requirements here.

The new requirements will apply to pension plans that have at least 50 members (including retirees). For those plans, if 10 members (or their union) notify their plan administrator of their desire to form a member advisory committee, a process must be launched to inform all plan members and conduct a vote.  If a majority of members vote in favour of establishing an advisory committee, it should be established in a matter of months.  The plan administrator will have no right to representation on the committee.  Reasonable expenses of the committee are payable from the pension fund.

Once a new committee is formed, the plan administrator must:

  • arrange for the plan actuary (for defined benefit plans) to meet with the committee at least annually;
  • give the committee access, at least annually, to an individual who can report on the plan’s investments; and
  • give information to the committee, and allow it to examine the plan records.

These new legal requirements will not give plan members a say on how their plan should be administered, but they certainly will change the landscape of members’ access to information about their pension plan. The new requirements will come into play only where there is sufficient interest among members, or unions, in forming a member advisory committee.

These new Ontario rules will create an entirely new type of scrutiny of pension plan administration. Prepare now.

,

Ontario Pension Plan Members Will Soon Have Significant New Rights