Littler Global Guide – Canada – Q2 2021

New federal holiday on September 30, 2021

New legislation enacted

On June 3, 2021, the federal government’s Bill C-5, An Act to amend the Bills of Exchange Act, the Interpretation Act and the Canada Labor Code (National Day for Truth and Reconciliation) received the royal assent. This bill amends the Canada Labor Code to provide for annual compliance by the federal government and federally regulated workplaces (e.g., airlines, banks, interprovincial transportation companies, telecommunications, etc.) of a new public holiday on September 30, the National Day of Truth and Reconciliation. Although provincially regulated workplaces are not subject to this new holiday, some employers may voluntarily choose to recognize it.

Employer responsibility for severance pay depends on the size of the global wage bill

Prior decision by the judiciary or regulatory agency

The Ontario ruling (registered in 2021 ONSC 4290) establishes that in determining whether statutory severance pay liability under the Ontario Employment Standards Act, 2000 will apply, employers must take into account the size of their global wage bill. If an employer’s payroll in Ontario is less than $ 2.5 million but their aggregate payroll is $ 2.5 million or more, the employer will still be liable for severance pay under of the ESA (as long as the employee in question has at least five years of service).

Punitive damages for the conduct of the supervisor

Prior decision by the judiciary or regulatory agency

Before the Ontario Court of Appeal (CPO), an employer appealed a jury’s compensation for punitive damages of $ 150,000 against the employer. The OCA dismissed the appeal. This ruling warns employers that if the conduct of a supervisor in their workplace demonstrates that the supervisor has little regard for the safety of an employee, the conduct of the supervisor may be considered the conduct of the employer, potentially resulting in the liability of substantial punitive damages.

Viability of a constructive dismissal request due to a COVID-19 layoff

Prior decision by the judiciary or regulatory agency

Just six weeks after ruling that Ontario Regulation 228/20 (IDEL Regulation) under the Employment Standards Act, 2000 failed to remove an employee’s common law right to claim constructive dismissal resulting from a layoff during the COVID-19 pandemic, the Ontario Superior Court of Justice (SCJ) arrived at the opposite conclusion. In a decision (archived 2021 ONSC 3135), the CSJ ruled that the IDEL regulation prohibits an employee who was laid off during the pandemic from claiming constructive dismissal at common law. We will report later on any important call or development.

Should CERB be deducted from damages for wrongful dismissal

Prior decision by the judiciary or regulatory agency

To date, few decisions in Canada have examined whether the amount of the Canada Emergency Benefit (CEP) that employees receive after termination of employment should be deducted from their damages instead of reasonable notice in advance. common law. The PCU was a, now closed, program put in place by the federal government to provide financial support to employed and self-employed Canadians who were directly affected by COVID-19.

In Iriotakis v. Peninsula Employment Services Limited, 2021 ONSC 998, the Ontario Superior Court refused to reduce the employee’s right to damages in lieu of reasonable notice of the amount of the Canada Emergency Benefit (CEP) he received. In Hogan v. 1187938 BC Ltd., 2021 BCSC 1021, the British Columbia Supreme Court recently distinguished Iriotakis when it deducted the employee’s PCU payments from his wrongful dismissal damages. Based on the reasoning of the Ontario and British Columbia courts in these cases, it appears that the decision whether or not to deduct PCU payments may depend on whether they will put the employee in a better economic position. than it would be otherwise.


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