Publications
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Supreme Court of Canada ruling: Managers are not eligible for unionization under the Labour Code
On April 19, 2024, the Supreme Court of Canada rendered its decision in Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, marking the end of an almost 15 year-long debate on the freedom of association of managers and their exclusion under the Labour (…)
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Labour shortage: Revised ratios of qualified staff members in child care centres
At a time when the pandemic is continuing to have repercussions and we are experiencing a severe labour shortage, the educational childcare sector is facing unprecedented challenges. These circumstances have led to a reassessment of the standards relating to the presence of qualified childcare staff (…)
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An employer’s criminal negligence upheld on appeal
On August 11, 2023, the Court of Appeal of Quebec handed down a decision in CFG Construction inc. c. R.,1 dismissing the appeal of the guilty verdict against an employer, CFG Construction inc. (“CFG”), for criminal negligence having caused the death of one of its employees. This decision serves as (…)
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A possible workaround to the long processing times at the Bureau d’évaluation médicale
In recent years, the job market has changed considerably, especially further to the pandemic and the impacts it has had. Employers and employees in Quebec faced unprecedented situations, and these appear to have led to a significant increase in claims for recognition of psychological occupational (…)
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The Success of Employer-Organized Christmas Parties: It Is Everyone's Business?
Workplace Christmas parties are just around the corner. While such celebrations are a great opportunity to strengthen team spirit and acknowledge everyone’s hard work, it is important to remember that it is not only up to employers to make sure they run smoothly—their entire workforces, managers and (…)
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Clarifications regarding the application of mandatory disclosure rules to severance agreements
On November 2, 2023, in response to certain controversy, the Canada Revenue Agency (“CRA”) sought to clarify the application of the new disclosure rules, in force since June 22, 2023. The CRA’s comments relate, in particular, to the impact of reporting obligations on severance agreements, a topic we (…)
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Termination agreements: New reporting requirements apply!
On June 22, 2023, the federal government significantly expanded the reporting requirements for certain so-called avoidance transactions, in particular with respect to termination agreements.1 The new rules will make it easier for the Canada Revenue Agency (CRA) to detect certain avoidance schemes, (…)
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Payroll deductions: what employers need to know about changes to provincial income tax rates
On March 21, 2023, during his traditional budget speech, the Minister of Finance of Québec announced that Quebecers will benefit from a general reduction in personal income taxes starting in 2023. The effect will be a reduction in the tax rates that apply to the first two taxable income brackets of (…)
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New Employment Obligations for Federally Regulated Businesses
On July 9, 2023, major amendments to the Canada Labour Code 1 (the “Code”) came into force, and further amendments are set to come into force shortly. These amendments relate to Part III of the Code, which covers labour standards. They were provided for in the Budget Implementation Act, 2018, No. 2 (…)
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An Act respecting the regulation of work by children Now in Force: Employers of Young Workers Must Act Quickly
On June 1, 2023, Bill 19 entitled An Act respecting the regulation of work by children (the “Act”) which establishes, in particular, a minimum working age of 14 and a maximum number of hours of work for children subject to compulsory school attendance, was assented to. Most of the Act’s provisions (…)
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Competition Act amendments are about to come into force – What businesses need to know following the release of the official Enforcement Guidelines
On June 23, 2023, major amendments to section 45 of the Competition Act1 (the “Act”) are set to come into force. Adopted in 2022 by the Parliament of Canada, these amendments are primarily designed to harmonize Canadian non-competition law with legislation in various other countries, particularly (…)
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The return of Christmas parties: what employers need to know
After two years of navigating COVID-19, the end of 2022 will be an opportunity for employers to organise larger activities for their employees, such as Christmas parties. The purpose of this newsletter is to make employers aware of their obligations during the holiday season festivities. Below, we (…)
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CNESST – Transfer of Costs Under Section 326 of the Act Respecting Industrial Accidents and Occupational Diseases: Important Decision from the Tribunal
Employers subject to the personalized rate or retrospective rate regime know how important it is to control the costs related to occupational injury cases in order to limit the impact on their annual premiums. One way to attain this objective is to apply for a transfer of costs under section 326 of (…)
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Ten things you should know about the amendments to Quebec’s Charter of the French language
Quebec recently enacted Bill 96, entitled An Act respecting French, the official and common language of Québec, which aims to overhaul the Charter of the French language. Here are 10 key changes in this law that will impose significant obligations on businesses: As of June 1, 2025, businesses (…)
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Confinement in an institution: a judge must intervene where evidence is insufficient
In a judgement rendered on June 3, 2022,1 the Court of Appeal of Quebec reiterated that a judge who has an application for confinement in an institution before them must inform the parties when they consider that the psychiatric reports filed are insufficiently detailed. In these circumstances, the (…)
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Telework: Better Safe
Telework is not a new phenomenon. According to the International Labour Organization, its rise dates back to the 1970s when a major oil crisis prompted many companies to keep their employees at home to reduce their energy consumption1. That said, since the Covid pandemic, teleworking has become (…)
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Improved Protection of Trainees in the Workplace: Key Points
On February 24, Bill 14, An Act to ensure the Protection of Trainees in the workplace (hereinafter the “Act”), received assent. The purpose of this Act is to provide better protection for people completing a training in a workplace. For this reason, it contains several provisions similar to those (…)
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A dismissed employee’s obligation to mitigate damages in the context of the COVID-19 pandemic
Over the years, the Quebec courts have repeatedly stated that dismissed employees have a duty to mitigate the damages they suffer as a result of a dismissal. This obligation, which is now codified in the Civil Code of Québec,1 has been adapted to the circumstances of the cases over which the courts (…)
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Minimal! - Court of Appeal Reduces the Post-Employment Duty of Loyalty
Suppose that your best employee, the up-and-comer you’ve been training for several years, resigns. It’s terrible news for you, especially amid a labour shortage. And, to top it off, their new employer is your main competitor. How long has the employee been planning to leave? Did they plan during (…)
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Constructive dismissal and mitigation of damages: Is there an obligation to accept another position offered by the employer?
The Supreme Court of Canada has previously addressed this issue in Evans v. Teamsters Local Union No. 311 and concluded that, in certain circumstances, when an employer offers a new position to a dismissed employee, the latter may have to accept it in order to mitigate their losses. A few years (…)
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Abuse of the grievance arbitration process: Arbitrators rule in favour of employers
An employer grievance is a means that employers can use to obtain compensation for material damages caused by pressure tactics or to recover overpayments resulting from a union’s wrongdoing. Such a recourse can also be filed to claim damages and legal fees from a union that has abused the grievance (…)
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Work, Lockdown and Curfew: Answers to Your Questions
In order to reduce community transmission and preserve everyone’s safety and that of our healthcare system, the government requires everyone to make extra efforts, both in their private lives and at work. The closure of retail businesses, save for some exceptions, is maintained, the lockdown to (…)
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Teleworking: What are the allowable expenses for employees and tax impacts for employers?
The COVID-19 pandemic has changed Canadian workplaces. For many organizations, the pandemic and its containment measures have fast-tracked the shift to teleworking. In this context, the Canada Revenue Agency (the “CRA”) and the Agence du Revenu du Québec (the“ARQ”) have published administrative (…)
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Artificial Intelligence and Telework: Security Measures to be Taken
Cybersecurity will generally be a significant issue for businesses in the years to come. With teleworking, cloud computing and the advent of artificial intelligence, large amounts of data are likely to fall prey to hackers attracted by the personal information or trade secrets contained therein. (…)
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Important Changes to the CEWS announced: will you now be eligible, and what should you consider?
The Canada Emergency Wage Subsidy (the “CEWS”) is a key component of the Government of Canada’s COVID-19 economic response plan. The purpose of the CEWS, adopted on April 11, 2020, is to help Canadians keep their jobs during the crisis and help companies maintain an employment relationship with (…)
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Travel and Immigration: Update on Restrictions in Canada
If you have any questions about this publication, please contact Nicolas Joubert. Thanks to David Nachfolger for his contribution to this article. Since the start of the COVID-19 pandemic, Canada has imposed a series of travel and immigration restrictions for all travelers who are not Canadian (…)
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Return to Work After COVID-19: What Plans Should You Make?
As an employer, you are probably preparing for the reopening of the workplace in a pandemic setting and actively planning for your employees’ return to work. To help you in your thought process and preparations, we have prepared a list of items that you should address or consider in order to make (…)
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Why and How Should Companies Manage their Post‑Crisis Recovery?
When Crisis Increases Risk Since the beginning of the crisis, we have been witnessing a spectacular collective effort marked by solidarity and the determination to ensure everyone’s health and safety. The COVID-19 pandemic has created many challenges for all levels of government, for employers and (…)
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Managing Employment Injuries in the Age of COVID‑19
The management of employment injury claims has not halted due to the current pandemic. Not only are new employment injuries taking place and claims being filed, ongoing claims are still being processed. Managers must be vigilant in order to limit the financial impact of the pandemic with respect (…)
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Thinking Post-Crisis Recovery: Two New Programs for Worker Training and Retention
Two weeks ago, we published an article on the challenge of retaining your workforce amidst the pandemic. Since that time, two new programs on the subject have been announced by the provincial government. The first is meant to respond to the effects of the Canada Emergency Response Benefit (CERB) on (…)
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COVID-19 and Telework: A Common HR Solution but not Without Risk!
Due to the ongoing pandemic and the resulting suspension of many company activities, certain employers are maintaining their operations by means of telework. Employers have had to swiftly redeploy their human resources to an extent that would have been unimaginable just a few weeks ago. The (…)
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COVID-19 - Flexibility in the Federal Work-Sharing Program: A Solution for Retaining Your Human Capital?
In order to best support our clients and business partners, our team is following developments related to COVID-19 very closely. We invite you to visit on our website the page that centralizes all of the tools and information produced by our professionals. There is a concern that simply laying off (…)
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The Coronavirus Guide for Employers: Everyday Measures for the Workplace
Employers must review their action plan on a daily basis to promote prevention, manage possible or proven contagion among their employees and ensure that business operations continue. Two actions are key: Seeking accurate information from public health officials and governments daily; Taking (…)
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Constant supervision: how does the recent court decision impact CPEs, daycare centres and home childcare providers?
On January 15, 2020, the Court of Québec handed down an important decision that could have an impact very quickly on the entire childcare network.1. In its ruling dealing with a breach of the obligation to provide constant supervision of the children, the court questioned the concept of auto-pauses (…)
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Judicial Review: impact of the Vavilov Judgment
In Vavilov, the Supreme Court of Canada revised the applicable legal framework for the determination and application of the standard of judicial review of administrative decisions. Changes were made to the analytical framework for determining the applicable standard of review and clarification was (…)
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Amendments to the Labour Standards Act : What is the rule for paid leave?
The latest amendments to the Labour Standards Act (“LSA”) provide that, in certain specific circumstances, the employers must pay the first two days of absence of their employees instead of granting them a leave without pay. In some instances, employees claimed two additional days of paid leave (…)
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Labour shortage: answers to your questions about hiring a foreign worker
The labour shortage that affects Quebec as a whole as well as many other provinces has been a well-known issue for several years. Almost every week, we hear about companies that are forced to close their doors or limit their activities due to a lack of staff in positions of all nature. In order to (…)
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What can be done to discipline a manager? Potential solutions to keep in mind
Except in cases of “serious misconduct,” managing a manager whose performance is unsatisfactory or whose conduct is inappropriate can be delicate. Because of workplace usage and practices in Quebec, disciplinary management of managers differs from that applied to other employees of the company. (…)
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Right to Privacy: Can the Employer conduct Surveillance?
On October 3, the Court of Appeal of Quebec overturned an arbitral decision in which videotaped surveillance of an employee, suspected of activities incompatible with her alleged disability, would not be admitted into evidence. The majority of the appeal court judges concluded that the employer was (…)
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Duty of Loyalty and Non-competition: What are your Rights and Duties to Protect your Interests?
During Major Symposium in Montréal held on June 4, our colleagues Michel Desrosiers and Ariane Villemaire discussed the employees’ duty of loyalty under the Civil Code of Québec. In their presentation, they discussed the case of Xit Télécom Inc. and Madysta Constructions Ltée v. Beaumier et al.1 on (…)
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Conclusion of the Supervac 2000 saga: Dismissal is part of the inherent risks of a workplace
The Administrative Labour Tribunal (“ALT”) has ruled on the merits of the Supervac 20001 case, putting an end to the saga dealing with interpreting the part of section 326 of the Act respecting Industrial Accidents and Occupational Diseases (“AIAOD”) that concerns applications for transfer of costs (…)
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The Court of Appeal hands down its decision in the Kativik case: A second chance for poor performance employees?
Does an employer have to make reasonable efforts to reassign an employee to another suitable position before proceeding to dismissal due to poor performance? This issue has been the cause of a great jurisprudential controversy, especially since the Superior Court rendered its decision in Kativik1. (…)
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Employers: What is defamation and how do you protect your reputation?
At a time when it is becoming harder to distinguish true information from fake news and when a photo posted on social media can travel the world, companies are eager to do all they can to protect their image. What about when it’s your own employees who tarnish your company's reputation? Defamatory (…)
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3 things employers need to know about the modernization of the Canada Labour Code
As an employer, you may occasionally be required to impose disciplinary measures on problem employees. Handling such difficult situations requires an objective, planned approach so as to put an end to the misconduct and minimize the risk of litigation. To assist you in implementing your intervention (…)
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Amendments to the Pay Equity Act: What are the changes to expect?
On April 10, 2019, came into force several long-awaited amendments to the Pay Equity Act, which are mainly intended to improve the pay equity audit process. These amendments follow last year’s Supreme Court of Canada ("SCC") judgment1. We discussed these judgments in a previous bulletin. It should (…)
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Disciplinary measures: What should employers do to reduce the risk of litigation?
As an employer, you may occasionally be required to impose disciplinary measures on problem employees. Handling such difficult situations requires an objective, planned approach so as to put an end to the misconduct and minimize the risk of litigation. To assist you in implementing your intervention (…)
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Personnel placement and recruitment agencies : what are the constraints of the new regulation?
In June 2018, amendments made to the Labour Standards Act ("LSA") included additional obligations and responsibilities for personnel placement agencies and temporary foreign worker recruitment agencies (the "Agencies"). However, these amendments were only supposed to come into effect on the date (…)
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“ Don't work here! ”: Employers' denigration may prove very costly
The Québec Superior Court has ordered a former employee to pay her employer $11,000 in moral and punitive damages because she posted defamatory comments about the company on Ratemyemployer.ca 1. In doing so, the employee contravened her loyalty obligations and the confidentiality and (…)
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Recruitment: Why you need to prepare your interview questions?
During a job interview, an employer cannot ask questions that involve grounds for discrimination prohibited under the Charter of Human Rights and Freedoms1 (the “Charter”), including the religion, marital status, or ethnic or national origin of a candidate. Simply asking such questions could result (…)
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Is the duty of loyalty a limit to freedom of expression?
The right to freedom of expression is not absolute. It does not permit employees to comment on political events unrelated to their workplace at all times and an employer can intervene if an employee expresses his opinions at work and on social networks. An employer has the right to request that his (…)
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Employer-sponsored holiday parties: What are you liable for?
Your guests have arrived and it’s time to give the toast! Are you ready to celebrate? December is undoubtedly the most festive month of the year. It’s a great opportunity for employers to thank their employees for the services rendered during the year, but also for employees to interact with their (…)
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Employers: 6 main amendments to the Act respecting labour standards
On June 12, 2018, the Act respecting labour standards (the “Act”) was amended to give employees more flexibility in order to improve their family work balance. Here is an overview of the main changes made to the Act. The reference guide specifies which amendments will be coming into force on (…)
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Cannabis legalization: a reference guide for employers
The use of cannabis for recreational purposes will be legal in Canada as of October 17, 2018. Employers will have to manage cannabis consumption in the workplace to ensure that employees do their work safely while respecting applicable laws. Summary of the law in Quebec Considering the various (…)
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New Regulation Respecting Immigration to Québec: Economic needs of Quebec and its regions come first
The new Regulation Respecting Immigration to Québec (“RIQ”), the purpose of which includes fostering the participation of immigrants in the development of Quebec and alleviating the labour shortage currently experienced by many employers in the region, came into force on August 2nd, 2018. The (…)
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A new step in processing requests for accommodations on religious ground
On July 1st, 2018, the provisions of the Act to foster adherence to state religious neutrality and, in particular, to provide a framework for requests for accommodations on religious grounds in certain bodies, RLRQ, c. R-26.2.01 (“Act”) came into force. This Act applies to the “public bodies” that (…)
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Amendments to the Act respecting labour standards adopted: new changes with immediate effect
On June 12, 2018, Bill 176 was adopted, resulting in the immediate enactment of several amendments to the Act respecting labour standards (ALS) which seeks in particular to facilitate work-family balance. Our article published March 21, 2018 addresses the key aspects of these changes. However, (…)
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Confinement in an establishment: establishments must exercise caution before making an application
In a decision rendered on March 13, 20181, the Court of Appeal reiterated that caution is in order when making an application for confinement. The Court also took the opportunity to review the topic of confinement orders and the supervision and safety requirements that healthcare establishments have (…)
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Key aspects of the changes made to the Act respecting labour standards
On March 20, 2018, Minister Dominique Vien introduced the much-awaited bill no. 176 to the National Assembly of Quebec, entitled the Loi modifiant la Loi sur les normes du travail et d’autres dispositions législatives afin principalement de faciliter la conciliation « famille-travail » [An Act to (…)
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The Court of Appeal sets the record straight on applications for assignment of costs
On January 24, the Quebec Court of Appeal1 released a very important decision on the application of section 326 of the Act respecting industrial accidents and occupational diseases2 (“A.I.A.O.D.”), thereby setting the record straight on the true effect of this provision. An employer will no longer (…)
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Clothes make the man
When an individual chooses to enter into an agreement via a management company, he has to accept all of the consequences of that decision, the good and the bad. This principle applies in particular to working relationships. In the Kucer case,1 the Superior Court recently confirmed that, (…)
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Is workplace discrimination everyone’s business?
Ariane Villemaire and Véronique Morin The Supreme Court held that the British Columbia Human Rights Code protects employees against all forms of discrimination in the workplace, even if the perpetrator of such discrimination is not their employer. On December 15, 2017, the Supreme Court (…)
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Freedom of association of physicians practising at a specialized medical centre: the Supreme Court of Canada declines to intervene
On February 8, 2019, the Supreme Court of Canada dismissed the application by the Fédération des médecins spécialistes du Québec for leave to appeal from the judgment of the Court of Appeal of Quebec1 in a case concerning the freedom of association of physicians practising at a specialized medical (…)
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Artificial Intelligence, Implementation and Human Resources
In this era of a new industrial revolution, dubbed as “Industry 4.0”, businesses are facing sizable technological challenges. Some refer to smart plants or the industry of the future. This revolution is characterized by the advent of new technology that allows for the “smart” automation of human (…)
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Caron confirms that employers have a duty to accommodate workers with an employment injury
On February 1, 2018, the Supreme Court of Canada rendered an important decision in Commission des normes, de l’équité, de la santé et de la sécurité du travail (“CNESST”) v. Caron1 (“Caron”), confirming the position expressed by the Court of Appeal in 20152 as well as the state of the law regarding (…)
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New developments regarding the criminal negligence of employers
On August 31, 2017, the Ontario Court of Justice sentenced1 Detour Gold Corporation (“Detour Gold”) to pay a fine of $2,625,333 after it pleaded guilty to a charge of criminal negligence causing the death of an employee. Facts Detour Gold has operated an open pit mine near the Ontario-Québec (…)
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Has there been a change in the standard for the administrative dismissal of an employee due to poor performance?
On October 4, 2017, the Honourable Justice Pierre-C. Gagnon of the Superior Court of Québec, sitting in judicial review of an arbitral award, rendered a key decision1 on the criteria to be considered in order to uphold an administrative dismissal. The facts An employee working as an administrative (…)
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No return to work in the foreseeable future: an undue hardship for employers
Reversing a decision of the Tribunal administratif du travail (“TAT”), the Superior Court of Québec confirmed that the employer will meet the burden of demonstrating undue hardship, thus justifying a non-discriminatory administrative dismissal, where there is no evidence that the employee will be (…)
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Dismissed after being convicted of procuring
In a decision rendered on May 29, 2017,1 arbitrator Jean-Pierre Lussier confirmed the dismissal of a cashier employed by the Société de transport de Montréal who was convicted of procuring. The facts Hired in February 2008, the employee pleaded guilty to charges of procuring in 2014. The victim (…)
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Dismissal due to a breach of the occupational health and safety rules
related to lockoutIn a decision rendered on August 14, 2017,1 Arbitrator François Blais dismissed a grievance contesting a dismissal, holding that a breach of occupational health and safety rules constitutes an objectively serious fault which must be dealt with severely regardless of whether or not the breach caused (…)
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Investing in the health of your employees - a wise decision! The legal issues to consider
Numerous studies confirm that the poor health of workers, among other things caused by the increasingly sedentary nature of positions and the illnesses associated with this, will ultimately result in significant costs for businesses related to: Absenteeism; Compensation for work-related injuries (…)
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Employers and emergency call centre workers: your liability for property damage is limited
In May 12, 2017, the Court of Québec1 concluded that an emergency call centre had no liability for property damage caused by first responders who broke down the door of a residence in order to assist a user in respiratory distress. In this case, the Court held that a call centre who required the (…)
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“Senior managerial personnel” status under the Act respecting labour standards
In Delgadillo c. Blinds To Go inc. and the Tribunal administratif du travail,1 the Court of Appeal of Québec rendered a very important decision regarding the concept of “senior managerial personnel” under the Act respecting labour standards (“ALS” or the “Act”). In the future, this decision should (…)
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Inappropriate conduct, lack of cooperation and insufficient availability
are sufficient grounds for a health institution’s to refuse to renew a physician’s practice privilegesOn May 31, 2017, the Superior Court of Québec1 (the “Court”) dismissed a urologist’s application for judicial review of a decision of the Administrative Tribunal of Québec2 (the “ATQ”) upholding a decision made by the Board of Directors of a health institution (the “Board”) not to renew the (…)
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Essential services in the health sector :
the Tribunal administratif du travail declares section 111.10
of the Labour Code unconstitutionalIn a decision rendered this past August 31st by Justice Pierre Flageole,1 the Tribunal administratif du travail (the “Tribunal”) declared section 111.10 of the Labour Code2 to be constitutionally inoperative. This provision requires that a set minimum percentage of employees must remain on the job (…)
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Victory for the managerial personnel of the Health and Social Services Network in Superior Court of Québec – What is the immediate takeaway?
On July 27, 2017, the Superior Court of Québec rendered a decision in favour of the managerial personnel of the Health and Social Services Network, concluding that the changes made to some of their working conditions by the Minister of Health were null and void.1 Background The Association des (…)
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The award of moral damages following a collective dismissal
A recent Superior Court decision in Peintures Industrielles Évotech1 ruled that the grievance arbitrator had acted within his jurisdiction in awarding moral damages to employees dismissed abruptly when the Company moved its operations to Ontario. Context of the Évotech case Évotech, which (…)
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Global Skills Strategy – Latest Developments in Workforce Mobility
In November 2016, the federal government announced the launch of a Global Skills Strategy (the "Strategy"), with the goal of stimulating Canada’s economic growth and, as a result, increasing employment opportunities for all Canadians. On June 12, 2017, in order to maximize the positive impact of the (…)
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Dividing up of certified bargaining units – The Québec Court of Appeal calls into question the automatic application of traditional criteria
By way of two decisions 1 handed down jointly on May 8th of this year, the Québec Court of Appeal held that it is no longer appropriate to mechanically apply the existing analytical framework regarding the criteria for the division of a bargaining unit. Based on principles recently stated by the (…)
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Bill 143: Salient points regarding educational childcare services
On June 16th of this year, Mr. Sébastien Proulx, Minister of Education, Recreation and Sports and Minister of Families, presented Bill 143 1 to improve the educational quality and foster the harmonious development of educational childcare services (the “Bill”). The Bill proposes amendments to the (…)
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The new act to prohibit and prevent genetic discrimination
On May 4, 2017, the Senate passed the Act to prohibit and prevent genetic discrimination (Genetic Non-Discrimination Act), which came into force on the same date. This Act also amended the Canada Labour Code and the Canadian Human Rights Act. The new Act aims to regulate the use of genetic tests, (…)
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When artificial intelligence is discriminatory
Artificial intelligence has undergone significant developments in the last few years, particularly in respect of what is now known as deep learning.1 This method is the extension of the neural networks which have been used for a few years for machine learning. Deep learning, as any other form of (…)
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A physician refusing to follow a professional training course constitutes sufficient ground for an establishment to refuse to renew the physician’s status and privileges – TAQ confirms its decision
On March 29, 2017, the Tribunal administratif du Québec issued a decision1 (the “TAQ2 decision”) reviewing one of its own judgments (the “TAQ1 judgment”)2 which had confirmed the decision of a health establishment not to renew the privileges of a physician who had refused to follow a professional (…)
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Artificial Intelligence and the 2017 Canadian Budget: is your business ready?
The March 22, 2017 Budget of the Government of Canada, through its “Innovation and Skills Plan” (http://www.budget.gc.ca/2017/docs/plan/budget-2017-en.pdf) mentions that Canadian academic and research leadership in artificial intelligence will be translated into a more innovative economy and (…)
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Social media: when the court declares the evidence inadmissible
Social media sites, like Facebook, are inexhaustible sources of personal information which can constitute evidence in the context of employer-employee disputes. In matters related to evidence, the general rule is that any relevant evidence is admissible.1 Moreover, the courts have ruled that an (…)
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First-aid course required by the ministère de la Famille: is the employer required to pay for the training time?
The Educational Childcare Regulation1 (the “Regulation”) requires every permit holder to ensure that each member of its childcare staff holds a certificate not older than 3 years which must have been obtained through the successful completion of an early childhood first-aid course of a minimum of 8 (…)
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Put that perimeter in your pipe and smoke it: the imminent broadening of the prohibition on smoking within a nine-meter radius
On November 26, 2016, the new provisions of the Tobacco Control Act1 (the “Act”) will come into force. One of these provisions will considerably expand the scope of the rule which currently prohibits smoking within a nine-meter radius of any door leading to an enclosed place governed by the Act. (…)
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Pay Equity Audits: The Québec Court of Appeal Renders its Decision
On October 12, 2016, the Québec Court of Appeal rendered an important decision dealing with pay equity,1 confirming the decision rendered on January 22, 2014 by the Honourable Édouard Martin of the Superior Court invalidating sections 76.3 and 76.5 of the Pay Equity Act2 (hereinafter, the “Act”) (…)
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Bilingual candidate sought: The Court of Appeal clarifies the scope of this requirement in employment-related matters
Last January 18, Lavery published a Need to Know entitled “Knowledge of English as a requirement for employment: A Tower of Babel”, which considered a controversy in the case law surrounding the requirement of English as a condition of employment by employers in Québec. At the time, the authors (…)
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Employer surveillance of employees: criteria and application in the age of social media1
Several reasons may lead an employer to conduct surveillance on an employee, to have him followed without his knowledge and to observe his activities. Rumours that an employee absent from work for health reasons is engaged in activities that are incompatible with his alleged health condition, a (…)
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Dismissal without cause under federal law: The Supreme Court of Canada closes the door
The case of Wilson v. Atomic Energy of Canada Limited1 came to a close on July 14, 2016, when the Supreme Court of Canada (the “Supreme Court”) reversed a controversial Federal Court of Appeal decision in which it had been held that a dismissal without cause was not necessarily an “unjust dismissal” (…)
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The Canadelle case and the importance of contesting certain CNESST decisions promptly
On June 17, 2016, the Superior Court1 affirmed the 2014 decision of the Commission des lésions professionnelles2 (“CLP”) in Canadelle, s.e.c. and Commission de la santé et de la sécurité du travail.3 This decision put an end to the jurisprudential controversy regarding the application of sections 31 (…)
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The lack of conclusive scientific evidence is not necessarily a fatal bar to proving causation in relation to an occupational disease, according to the Supreme Court of Canada
Last June 24th, the Supreme Court of Canada (the “Supreme Court”) rendered judgment in the case of British Columbia (Workers’ Compensation Appeal Tribunal) v. Fraser Health Authority1 (“Fraser”). Briefly, this case involved seven laboratory technicians from the same hospital who had breast cancer. (…)
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No indemnity for federal employees on preventive withdrawal
In December 2015, the Court of Appeal of Quebec in Éthier v. Compagnie de chemins de fer nationaux du Canada1 confirmed that section 36 of the Act Respecting Occupational Health and Safety (“AROHS”)2 does not apply to federal undertakings and that, accordingly, a worker who is pregnant or (…)
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Tobacco Control and E-cigarettes: New Challenges for Businesses
Bill 44 has been adopted in the context of a major expansion of electronic cigarette sales.1 Bringing with it significant legislative reforms, this Bill regulates the use of electronic cigarettes in much the same way as it does tobacco. It also amends the Tobacco Act,2 changing its name to the (…)
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Right to return to work: The jurisdiction of the arbitrator or of the CNESST and TAT?
On November 24, 2015, the Québec Court of Appeal rendered a much anticipated judgment in the case of Université McGill v. McGill University Non Academic Certified Association (MUNACA)1 (“McGill”). In this judgment, the Court dispelled the ambiguity that has existed for several years in the case law (…)
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Three important rulings rendered in 2015 by the Tribunal administratif du Québec regarding attending physicians
Over the past year, the Tribunal administratif du Québec (TAQ) has issued several rulings dealing with oversight of the medical practice of professionals working in health and social services institutions. Several of these rulings will be of interest to institutions since they set out principles (…)
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Knowledge of English as a requirement for employment: A Tower of Babel
The purpose of this newsletter is to raise the awareness of employers regarding the problems related to making knowledge of English a requirement for employment. Section 46 of the Charter of the French Language (the “Charter”)1 provides that “[A]n employer is prohibited from making the obtaining of (…)
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Fatal work injury: Metron’s project manager sentenced to three and a half years in prison
On January 11, 2016, Vadim Kazenelson, a project manager for Metron Construction Corporation (“Metron”), was sentenced to three and a half years in prison.1 This sentence follows the decision rendered on June 26, 2015 in which the Superior Court of Ontario found Mr. Kazenelson guilty of the five (…)
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The importance of good communication
with one’s insurer: a childcare center is suedPROVIDERS OF EDUCATIONAL CHILDCARE SERVICES, SUCH AS CHILDCARE CENTRES AND DAYCARE CENTRES, MUST HOLD VARIOUS TYPES OF INSURANCE COVERAGE, INCLUDING PROPERTY AND LIABILITY INSURANCE. ALTHOUGH SOME MAY THINK THAT THE SIMPLE FACT OF TAKING OUT SUCH INSURANCE COVERAGE IS ENOUGH TO PROTECT THEM, YOU (…)
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Bill 42 and the reorganization of the Quebec labour-related institutions
Last June 12, Bill 42, entitled « An Act to group the Commission de l’équité salariale, the Commission des normes du travail and the Commission de la santé et de la sécurité du travail and to establish the Administrative Labour Tribunal1 » (the « Loi Act to group the CÉS, the CNT and the CSST and (…)
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An important decision of the Court of Appeal of Quebec changes the way the employer’s duty to accommodate applies to employment injuries
On June 15th, the Court of Appeal of Quebec, in Commission de la santé et de la sécurité du travail v. Caron,1 issued an important judgment that changes the law governing an employers’ duty to accommodate employment injuries. The Court in Caron held that it needed to intervene to harmonize the Act (…)
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Reminder to employers : The deadline for complying with certain regulatory provisions for safe asbestos management expires June 6, 2015
In Quebec, it is possible to find materials and products containing asbestos in civil engineering works, construction materials, facilities and equipment in all types of buildings, whether industrial, commercial, public or residential. According to various sources, the need to adopt new standards on (…)
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Verifying impediments
Children are precious, and their health, safety and well-being are at the very heart of childcare providers’ responsibilities. Several actors work with or alongside children on a daily or occasional basis in order to provide them care and education. In selecting people who work with children, (…)
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Constructive dismissal revisited by the Supreme Court of Canada
Following the key judgments in Farber1 and Cabiakman2, the Potter3 judgment rendered on March 6, 2015 by the Supreme Court of Canada (the “Court”) emerges as another indispensable judgment in employment law. In this judgment, the Court decided that the administrative suspension with pay of an (…)
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Dismissal without cause makes its way to the Canada Labour Code: The Federal Court of Appeal decides
On January 22, 2015, the Federal Court of Appeal rendered an extremely important decision,1 unanimously holding that dismissal on a without cause basis does not necessarily constitute “unjust dismissal” under the Canada Labour Code (the “Code”).2 With its decision in Wilson v. Atomic Energy of (…)
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The dismissal of an emergency room employee for breach of confidentiality is confirmed
In a decision rendered on December 30, 20141, arbitrator Nathalie Faucher concluded that the dismissal imposed by a hospital centre on an employee for breach of confidentiality was well-founded. The employee, an administrative agent at the emergency room of the hospital centre, was dismissed for (…)
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A corporation receives a hefty fine and two of its officers face jail time for violations of the Ontario occupational health and safety regulations
On January 13, 2015, New Mex Canada Inc. ("New Mex"), an Ontario corporation and employer in that same province, was sentenced to pay a fine of $250,000 while two of its officers each received 25-day prison terms after pleading guilty to several offences under the Ontario occupational health and (…)
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Hiring in the New Year? What to do when a new recruit overpromises and underdelivers?
A recent decision1 by the Commission des relations du travail (“CRT”) highlights the plight of an employer faced with an employee who oversold his abilities during the job interview and later proves incapable of delivering on his promises. In this case, Laurentian Bank Securities inc. (“Laurentian”) (…)
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The Supreme Court of Canada further clarifies the rights of workers
On January 30, 2015, in the Saskatchewan Federation of Labour v. Saskatchewan (2015 SCC 4) decision, the Supreme Court of Canada further clarified the scope of the rights of workers pursuant to section 2(d) of the Canadian Charter of Rights and Freedoms (the “Charter”). Indeed, in its 2007 decision (…)
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Ditomene c. Boulanger, the next round: the Court of Appeal holds that procedural fairness rules need not be followed in the context of an employer’s investigation into alleged harassment
In a unanimous decision dated November 17, 2014,1 the Court of Appeal of Québec held that the procedural fairness rules applicable in administrative and public law do not apply in the context of a psychological harassment investigation conducted by an employer. As a result, the Court set aside the (…)
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An employer can file a counter claim against an employee in the context of proceedings instituted by the Commission des normes du travail in order to enforce the right of set-off
In Commission des normes du travail v. Compagnie d'assurances Standard Life du Canada,1 (the “Standard Life of Canada case”), the Court of Québec allowed an employer to file a counterclaim against an employee in the context of proceedings instituted by the Commission des normes du travail (“CNT”) on (…)
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A pregnant worker’s right to benefits in the event of preventive withdrawal pursuant to section 36 of the AROHS does not apply to a business under federal jurisdiction: Éthier v. Commission des lésions professionnelles
This decision of the Superior Court of Québec addresses a pregnant worker’s right to preventive withdrawal where said worker is employed by a business under federal jurisdiction.1 In this case, questions of constitutional jurisdiction were raised and the Superior Court confirmed that article 36 of (…)
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The Asphalte Desjardins matter: the Supreme Court of Canada overturns the decision of the Québec Court of Appeal
On July 25, 2014, the Supreme Court of Canada rendered its decision inQuébec (Commission des normes du travail) v. Asphalte Desjardins inc.1 In this ruling, which overturned a judgment by the Québec Court of Appeal,2 the Supreme Court concluded that an employer who receives notice of termination (…)
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Right to refuse to work and preventive withdrawal: the Dionne v. Commission scolaire des Patriotes case
In Québec, the objective of the Act Respecting Occupational Health and Safety1 (the “Act”) is the elimination, at the source, of dangers to the health, safety and physical well-being of workers. Recently, the Supreme Court of Canada rendered a decision in the Dionne v. Commission scolaire des (…)
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The Wal-Mart Decision: The Supreme Court of Canada confirms that the collective dismissal of the employees of the Jonquière establishment constituted an illegal change in their conditions of employment under section 59 of the Labour Code[1]
THE FACTSWal-Mart Canada Corporation (hereinafter “Wal-Mart”) opened its Jonquière establishment in 2001. After the United Food and Commercial Workers, local 503 (hereinafter the “Union”), was certified to represent the employees in 2004, negotiations were initiated in view of concluding a first (…)
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Notice to employers under federal jurisdiction: amendments to the Canada Labour Code will take effect on October 31, 2014
On December 12, 2013, A second act to implement certain provisions of the budget tabled in Parliament on March 21, 2013 and other measures1 (“Bill C-4”) received royal assent. Bill C-4, which consists of more than 300 pages, proposes a significant number of legal amendments, some of which relate to (…)
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Serious breaches of the duty of loyalty by a human resources employee – Dismissal upheld by the C.R.T.
The Commission des relations du travail, both in its initial decision and on review, dismissed the complaints challenging the dismissal of an employee despite the absence of prior disciplinary measures. The complainant, who was hired in April 2011, held a position as an administration technician for (…)
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Employees and the Cost of Justice: The Court of Appeal of Québec concludes that a complaint pursuant to section 124 of the Act Respecting Labour Standards (the Act) is admissible despite the existence of an internal arbitration procedure
THE FACTSThe complainant, a non-unionized employee, was hired by McGill University (hereinafter the “University”) in 1987 to be a member of the administrative staff. After working as an administrative assistant since 1994, she was dismissed by the University on June 30, 2009 for fraud. The (…)
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Heavy burden for employers respecting mitigation of damages for lost salary: following dismissal, an employee who makes no effort to mitigate his damages may still be entitled to an indemnity
The Court of Appeal recently reviewed the scope of the duty of employees to mitigate their damages for lost salary pursuant to section 128(2) of the Act respecting labour standards (ARLS).1In this case, the Court of Appeal allowed in part the appeal of an employee following a decision of the (…)
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Fieldturf Tarkett inc. v. Gilman(1): The Court of Appeal upholds the payment of « phantom share » bonuses where employment has been terminated without a serious reason
THE FACTSOn January 22, 2014, the Court of Appeal of Québec confirmed the 2012 decision of the Superior Court of Québec in Gilman v. Fieldturf Tarkett inc.2 At issue in this case was whether the payment of so-called “phantom share” bonuses were to be paid to employees whose employment (…)
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Quarterly legal newsletter intended for accounting, management, and finance professionals, Number 23
CONTENTS The 2014 Federal Budget Plan sounds the death knell for two family tax planning measures much appreciated by entrepreneurs and some professionals The Expert and the Court You signed a contract for services... with an employee? How to properly identify the relationship between the (…)
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Following the termination of a senior executive, a clause in a stock option plan is declared abusive and the behaviour of the employer deemed oppressive
In Dollo v. Premier Tech Ltée,1 the Superior Court of Québec declared a clause contained in the Stock Option Plan (the “Plan”) offered by Premier Tech Ltée (“Premier Tech”) to some of its employees to be abusive and also declared Premier Tech’s conduct towards a (…)
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Update of Penal and Criminal Law in Occupational Health and Safety Matters
Every year, several judgments are rendered in penal law cases involving occupational health and safety issues. However, judgments in an occupational health and safety context resulting from the laying of criminal negligence charges are more rare. While the sections of the Criminal Code1 which (…)
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The Quebec Government Announces an Increase to the Minimum Wage
On February 5, 2014, the Minister of Labour announced that as of May 1, 2014, the minimum wage will be increased by $0.20 an hour to $10.35 an hour.The hourly minimum wage of employees receiving tips will be increased to $8.90 an hour, which represents an increase of $0.15 an hour.Finally, the (…)
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Employee or Self-employed Worker? The Court of Appeal of Québec Rules
The Court of Appeal of Québec recently ruled on the criteria for distinguishing between an employment agreement and a contract for services in the case of Bermex international inc. v. Agence du revenu du Québec.1It is worth noting that regardless of the fact that the parties labelled their agreement (…)
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Should Pension Benefits be Deducted from Damages for Wrongful Dismissal? The Supreme Court of Canada Rules
On December 13, 2013, the Supreme Court of Canada rendered its judgment in the case of IBM Canada Limited v. Waterman (2013 SCC 70). In this case, IBM wrongly dismissed Mr. Waterman, a long-time employee. Mr. Waterman had to begin collecting his pension under IBM’s defined benefit pension (…)
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Legal newsletter for business entrepreneurs and executives, Number 19
CONTENT Notifying your insurer of potential legal proceedings : A sensible measure which may help you avoid significant costs! The ABCs of Managing >Absenteeism at WorkNOTIFYING YOUR INSURER OF POTENTIAL LEGAL PROCEEDINGS: A SENSIBLE MEASURE WHICH MAY HELP YOU AVOID SIGNIFICANT (…)
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The theory of contractual repudiation does not apply to employment contracts
Can an employee’s insubordination amount to repudiation of his employment contract, thus providing his employer with just and sufficient cause to dismiss him? In a judgment rendered on September 20, 2013, the Québec Court of Appeal answered this question in the negative.1The plaintiff, (…)
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Criminal negligence: The Court of Appeal of Ontario increases to $750 000 the fine imposed on Metron Construction Corp.
On September 4, 2013, the Ontario Court of Appeal ordered Metron Construction Corporation (“Metron”) to pay a fine in the amount of $750 000 for criminal negligence causing death.1 After Metron pled guilty to the offence, the trial judge ordered the company to pay a fine of $200 000. (…)
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The Supreme Court of Canada will hear the Asphalte Desjardins case on the issue of the employer’s right to waive the resignation notice given by an employee
On September 5, 2013, the Supreme Court of Canada allowed the motion for leave to appeal filed by the Commission des normes du travail against the decision rendered in March 2013 by the Court of Appeal of Québec in the case of Commission des normes du travail v. Asphalte Desjardins inc.1In this (…)
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The Supreme Court of Canada Renders a Decision on Restrictive Covenants Contained in an Asset Sale Agreement
On September 12, 2013, in Payette v. Guay inc.1, the Supreme Court of Canada rendered a decision which will be of interest to anyone involved in a transaction for the purchase or sale of assets. The Court shed some light on the interpretation of clauses restricting employment and post-employment (…)
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Class action based on the thesis of constructive dismissal: the Superior Court dismisses the application for authorization
In July 2007, Allstate Insurance Company of Canada (hereinafter referred to as “Allstate”) sent a notice of change of working conditions to all its insurance agents. Allstate was then employing approximately 90 agents in Quebec.The notice was sent 26 months prior to the implementation of (…)
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Supreme Court of Canada rules on random alcohol testing
The Supreme Court of Canada recently rendered a divided decision in which it concluded that an employer’s policy imposing mandatory random alcohol testing was not justified.1 This decision is of interest to employers in Quebec since it confirms arbitral case law on the subject.BackgroundIn (…)
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Can smoking at work justify an automatic dismissal?
In a recent arbitration award, an arbitrator assessed a company's internal policy which provided for the dismissal of any employee caught smoking at the employer's plant of on its property, even in the case of a first offence.1THE DISPUTEThe plaintiff worked at ADM Milling Co.’s flourmill for (…)
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Quarterly legal newsletter intended for accounting, management, and finance professionals, Number 20
CONTENTS Life Insurance Policy: How to Extract Funds from a Corporation with No Tax Impact Constructive Dismissal Analyzed in the Context of a Business Acquisition The Right of Withdrawal, a Controlled Form of Contractual Freedom Transfers of Residences Involving a Spousal Testamentary Trust (…)
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'I lied, but I did so in good faith!1'
The pre-hiring process is a key step to the viability of the employer-employee relationship. Both the employer and the applicant must not underestimate the importance of this process which establishes the basis of their contractual relationship. This process is governed by a legislative framework (…)
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Employers: to what extent can you control your employees’ physical appearance?
It is generally understood that an employer has the authority to manage and control its employees to ensure its business runs smoothly. In exercising such authority, an employer can adopt and implement policies that govern how employees perform their work. In certain circumstances, an employer can (…)
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An analysis of constructive dismissal in the context of a business acquisition
The Courts have considered the concept of constructive dismissal on many occasions. Generally, the expression “constructive dismissal” refers to situations in which an employee does not agree to a substantial change made unilaterally by his employer to one or more essential terms of his employment (…)
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Legal newsletter for business entrepreneurs and executives, Number 15
Employment Conditions of Foreign Workers Share Ownership : an Overview Certificate of Intellectual Property Pertaining to Software
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Francization – Bill No 14 amending the Charter of the French language
This publication was authored by Luc Thibaudeau, former partner of Lavery and now judge in the Civil Division of the Court of Québec, District of Longueuil. The title of this newsletter gives a good summary of the explanatory notes that serve as an introduction to Bill 14, entitled An Act to amend (…)
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The Metron Construction Corp. Case: Another conviction for criminal negligence in the area of occupational health and safety
Since the adoption of Bill C-45 amending certain provisions of the Criminal Code in March of 2004, employers have had to take on increased responsibility in the area of occupational health and safety. Indeed, the effect of sections 22.1 and 217.1 of the Criminal Code is to facilitate the laying of (…)
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The Court of Appeal rules on the scope of section 59 of the Labour Code with respect to a definitive business closure
The Québec Court of Appeal rendered an important decision on the legality of termination of employment for some 190 employees of the Wal-Mart store in Jonquière. In the context of several proceedings, which were filed to obtain compensation for those job losses, the United Food and Commercial (…)
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Does an employer have the right to forbid the recording of cell phone conversations by employees?
In the era of smartphones and their ever-increasing sophisticated applications, it may be difficult for an employer to control what employees do with their cell phones while at work. What is the extent of an employer’s powers when an employee makes use of his personal cell phone? Does an (…)
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Legal newsletter for business entrepreneurs and executives, Number 14
Last Call: Do you have any private corporation shares in your RRSP? Plan Nord: Maximize your business opportunities Can the refusal to sign a non-competition clause constitute a just and sufficient cause for dismissal?
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The Arbitrator’s decision in the case of Centre Jeunesse de Montréal – It has the authority to set rules for proper dress, piercings, tattoos and personal appearance in the workplace
The employer, Centre jeunesse de Montréal – University Institute (hereinafter the "Centre"), adopted a dress code as well as a piercings, tattoos and personal appearance policy for its employees (hereinafter the "Policy").Although the validity of the Policy was contested by (…)
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The Court of Appeal confirms that a distinction based on age provided for by section 56 of the AIAOD is not discriminatory
On June 14, 2012, the Quebec Court of Appeal confirmed the validity of the second paragraph of section 56 of the Act Respecting Industrial Accidents and Occupational Diseases (hereinafter the “AIAOD” or the “Act”). Although this paragraph establishes a distinction based on (…)
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Quarterly legal newsletter intended for accounting, management, and finance professionals, Number 16
The Trust : An Efficient Asset Protection Tool? Amendments to the Obligations of Employers Hiring Foreign Workers – One Year Later: Are you Ready for Service Canada’s Verification? Did you Know? Trustee’s Tax Liability
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Can the refusal to sign a non-competition clause constitute just and sufficient cause for dismissal?
In a recent decision, Jean c. Omegachem inc., the Court of Appeal answered that question by ruling that an employee’s refusal to sign a non-competition agreement during employment, which had been discussed when the employee was hired but presented to him three years after commencement of (…)
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Negotiations in the construction industry: At last a role for the ultimate clients
Bill 33, whose very title announced the elimination of union placement of employees to improve the operation of the construction industry, was assented to on December 2, 2011, and it has raised a lot of comments.The media made a great deal of the changes proposed in this Bill, regarding mainly union (…)
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Legal newsletter for business entrepreneurs and executives, Number 12
The Powers of CSST Inspectors Confidentiality Agreements : The importance of Protecting your Secrets Your First Financing with a Financial Institution
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Disciplinary Measures relating to the use of Computer Equipment : Coca-Cola is forced to reinstate an employee
The Commission des relations du travail (the «Commission») recently ruled on the way in which an employer proceeded to impose a disciplinary measure on an employee due to his use of computer equipment belonging to the employer.On October 11, 2011, the Commission allowed the complaint (…)
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The Court of Appeal confirms the right of an employer to continue its operations during a labour dispute
On September 14, 2011, the Court of Appeal of Quebec rendered a significant decision in the context of the labour dispute which occurred at the Journal de Québec in 2007 2008. This decision sheds some light on the scope of the “anti strikebreaker” provisions of the Labour Code (…)
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The Superior Court Overturns the Decision of the Commission des lésions professionnelles: the Reduction of the Income Replacement Indemnity at Age 65 is not Discriminatory
On March 18, 2010, the Commission des lésions professionnelles (“CLP”), in the case of Côté et Traverse Rivière-du-Loup, declared invalid section 56 of An Act respecting industrial accidents and occupational diseases (the “AIAOD”). It found that the section was discriminatory (…)
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Update on Planned Production Shutdowns
Since 1968, labour relations in the construction industry have been governed by a specific statute, the Act respecting labour relations, vocational training and workforce management in the construction industry.At the time, R-20 was enacted to put some order in an industry struggling with an (…)
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The Supreme Court of Canada Confirms the Jurisdiction of Arbitrators to Decide if Grievances Based on Section 124 of the Arls are Admissible
On July 29, 2010, the Supreme Court of Canada rendered three judgments in which five of the nine judges declared that grievance arbitrators have jurisdiction to decide whether employees who do not have job security and grievance rights under a collective agreement may file grievances based on (…)
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Is a clause requiring an employee to reimburse training costs legal?
Can the parties to an individual employment contract include a clause stipulating that the employee must reimburse his training costs to the employer if he resigns? Upon hiring and throughout the course of employment, employers often require employees to receive training. Significant costs can be (…)
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The decrease of the income replacement indemnity at 65 years of age is judged to be discriminatory by the Commission des lésions professionnelles
On March 18, 2010, administrative judge Richard Hudon of the Commission des lésions professionnelles (the "Commission") rendered a very interesting decision in the case of Côté et Traverse Rivière-du-Loup St-Siméon.The Commission had to decide whether, on November 29, 2008, the income (…)
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In accommodation matters, the employer must take into consideration both the rights of the employee and those of the clientele
Last August, an arbitrator ruled on a dispute in the context of which accommodation measures were sought for the benefit of a person who had in excess of ten years of seniority and no longer held her position, having been absent for nearly three years for physiological reasons.The arbitration (…)
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Amendments to the Pay Equity Act
The Pay Equity Act (hereinafter the “Act”) celebrated its 10th anniversary in 2006. To mark the occasion, the Commission de l’équité salariale took stock of what had been achieved. After completing this analysis, on May 27, 2009, the National Assembly passed Bill 25, which made (…)
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Despite a Recent Judgment of the Superior Court Pertaining to Employees Hired Through an Employment Agency, the Agency may be the True Employer, Depending on the Circumstances
On December 2, 2009, The Superior Court upheld a decision of the Commission des relations de travail which concluded that nurses hired through an employment agency were employees of the health-care facility and, therefore, covered by the bargaining certificate of the union in question.However, the (…)
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Legal newsletter for business entrepreneurs and executives, Number 3
The member-funded pension plan: a defined benefit pension plan that limits the employer’s financial risk Doing business with the government: a question of transparency Your company and the influenza H1N1 flu pandemic
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Comments on Bill 35 entitled
Passed into law on June 10, 2009, Bill 35 makes significant amendments to the modification of a method of levying assessments under the Act respecting industrial accidents and occupational diseases, the convertion of certain allowances and benefits, a gradual increase in the fines levied under the (…)
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Can no smoking rules on property be sweeping?
Under the Tobacco Act, employers must prohibit their employees from smoking inside their establishments. However, the Act is mute on no smoking outside, on the company’s land.Can an employer be stricter than the Tobacco Act by implementing a no smoking policy intended to entirely ban smoking (…)
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Pensions: Good News from the Supreme Court of Canada!
In the Kerry decision rendered on August 7th, 2009, the Supreme Court of Canada confirmed that employers may oblige pension funds to pay Plan expenses, that is the expenses associated with the employment of actuaries, accountants, counsel and other service providers required for the administration (…)
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The CSST'S New Table of Maximum Consolidation Period: Whistling in the Wind!
Much has been and continues to be written about applications for cost-sharing under section 329 of An Act respecting industrial accidents and occupational diseases (the "AIAOD").The purpose of this provision, which is regularly used by employers, is to counterbalance the consequences of (…)
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Legal newsletter for business entrepreneurs and executives, Number 1
Can an employer trim its costs by changing one element of its employees’ remuneration ? Entering the “Zone of Insolvency“ - What to do ? Ecomonic slowdown - Some concrete financing indications and how to react
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New Labour Standards: Leave for Reservists, the Concept of Cohabitation and the new Advance Notice for Paternity Leave
Various changes were recently made to the Act respecting labour standards essentially applicable to the following:* the introduction of a new type of authorized leave for employees who are also reservists of the Canadian Forces;* the clarification of the concept of spousal cohabitation with regard (…)
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The Anastasia Act: Implications for School and Health Networks
The Act to protect persons with regard to activities involving firearms and amending the Act respecting safety in sports was assented to on December 13, 2007 and came into force on September 1, 2008. This Act was passed in the wake of the tragic events that occured at Dawson College in September (…)
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The Commission des Relations du Travail has Exclusive Jurisdiction to Hear Complaints Made Under Section 124 of the Act Respecting Labour Standards
On June 2, 2008, following the hearing of six cases at the same time, the Quebec Court of Appeal ruled that section 114 of the Labour Code grants exclusive jurisdiction to the Commission des relations du travail to hear complaints made under section 124 of the Act respecting Labour Standards.Despite (…)
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CSST Assessments and Third-Party Fault
Many employers are rightly concerned about the significant amounts they are required to pay to the Commission de la santé et de la sécurité du travail in respect of employment injuries sustained by their employees.The general rule underlying the financing system of the regime is that the cost of (…)
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The Hydro-Québec Case: The Supreme Court Confirms That There are Definitive Limits to an Employer's Duty to Accomodate
On July 17, 2008, the Supreme Court of Canada rendered a unanimous judgment setting aside the ruling by the Quebec Court of Appeal and affirming that the employer had fulfilled its duty to accommodate in the case of Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau (…)
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The Transpavé Inc. Case: a Quebec Company Pays for its Negligence
On March 17, 2008, the Court of Québec fined Transpavé Inc. $110,000 after it pleaded guilty to a charge of criminal negligence causing the death of one of its employees. This is a first in Canada since the Criminal Code was amended so that an organization could be found guilty of criminal (…)
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Labour Shortages and Foreign Workers
Difficulties in recruiting skilled employees and the labour shortage in some sectors are currently a source of headaches for many businesses. In this context, one solution may be to consider hiring foreign workers. In a press release published in September 2007, the Fédération des chambres de (…)
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The Court of Appeal Rules on the Validity of an Alcohol and Drug Detection Policy in Light of the Charter of Human Rights and Freedoms
On December 6, 2007, the Quebec Court of Appeal declared that part of Goodyear’s alcohol and drug detection policy implemented in its Valleyfield plant in the summer of 2004 was valid. The Court of Appeal’s judgement maintained in part a decision rendered on April 21, 2006 by the (…)
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New Labour Standards: Authorized Absences due to a Criminal Offence, the Disappearance of a Child or the Suicide of a Close Relative
The Act respecting labour standards (hereinafter the "ALS") was amended recently concerning absences due to sickness or accident and absences for family or parental reasons. In particular, these amendments include the employee’s right to be absent from work for a period ranging (…)
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Can Last Chance Agreements and the Duty to Accommodate Live Side-by-side?
A last chance agreement is an arrangement entered into between an employer, an employee with serious and persistent behavioral problems and, where applicable, the union, that gives the employee a final chance. Such an agreement imposes strict conditions to be met by the employee in order to maintain (…)
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December 13th is coming up fast! Is your pension committee ready?
December 13th is coming up fast! Is your pension committee ready?
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Recent Amendments Concerning the National Holiday: Enactment of Bill 10 and its Impacts on Certain Employers
Recent Amendments Concerning the National Holiday: Enactment of Bill 10 and its Impacts on Certain Employers
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Bill 30: Is your pension committee ready for December 13, 2007?
The countdown has begun! Have the governance rules for your pension committee been set out in an internal by-law? If not, there's no time to lose! The deadline is December 13, 2007.In the wake of the increasing number of lawsuits in Quebec and elsewhere in Canada involving the responsibilities of (…)
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Recent CLP Decision: the obligation to give reasons for its decisions and the power to issue a stay of proceedings
On January 22, 2007, the Commission des lésions professionnelles (the "Board") handed down a decision in Harvey et Brasserie Labatt ltée further to a motion for revocation filed by the employer against a decision rendered by a first commissioner.This decision deals with the reasons that (…)
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Discrimination at work: Grievance Arbitrator or Human Rights Tribunal of Quebec... The debate rages on!
On November 30, 2006, the Human Rights Tribunal of Quebec released a judgment in which it concluded that a grievance arbitrator did not have jurisdiction over litigation stemming from allegations of employment discrimination.In the case of Commission des droits de la personne et des droits de la (…)
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Absenteeism and the Duty to Accommodate: the Supreme Court grants Hydro-Québec Leave to Appeal
Absenteeism and the Duty to Accommodate: the Supreme Court grants Hydro-Québec Leave to Appeal
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Disability and the duty to accommodate: loss of seniority and loss of employment clauses are still relevant!
The Supreme Court of Canada recently handed down a highly anticipated judgment in McGill University Health Centre (Montreal General Hospital) (the “MUHC”) vs. Syndicat des employés de l’Hôpital Général de Montréal (2007 SCC 4). This case sets out the scope of an employer’s (…)
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Disability and duty to accommodate: The Supreme Court of Canada allows the employer's appeal
Disability and duty to accommodate: The Supreme Court of Canada allows the employer's appeal
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Compulsory deduction of drug insurance premiums: a new obligation for employers
Do you offer your employees group insurance? If so, since January 1, 2007, under the Act respecting prescription drug insurance, you must deduct directly from the remuneration paid to each of your employees his or her portion of the premium applicable to the basic prescription drug insurance (…)
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Has the contractor with whom you are doing business paid his assessments to the CSST? You could be held responsible as the employer who retained his services ...
Has the contractor with whom you are doing business paid his assessments to the CSST? If he hasn’t, you could be held responsible for payment of these assessments as the employer who retained his services!An employer who receives a notice of assessment or a request for information from the (…)
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Notice to all employers! Do you provide prescription drug insurance? Important changes come into effect on January 1, 2007
Notice to all employers! Do you provide prescription drug insurance? Important changes come into effect on January 1, 2007
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Recent developments in the area of psychological harassment: an overview of the decisions pertaining to the interpretation of the new provisions of the Act respecting labour standards
The new provisions pertaining to psychological harassment that were added to the Act respecting labour standards on June 1, 2004, have given rise to many arbitration awards and interpretations over the last two years that have expounded on the concept of psychological harassment.In the light of (…)
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Recording in the work environment: do your telephone conversations belong to you?
Recording in the work environment: do your telephone conversations belong to you?
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Bird flu: businesses asleep at the wheel could wake up with a nasty headache
As the poultry farming crisis looms and countries are on the lookout for outbreaks of infection, scientists are closely following the evolution of the virus, which is moving to new sources of infection.Before a crisis is on our doorstep, businesses should prepare themselves for the consequences of a (…)
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Is it permissible to communicate with the employees of the opposite party? Do the employees then have a duty of loyalty?
These questions arise periodically and always pose problems of conscience for the lawyers and employers concerned. A recent decision of the Court of Appeal sets out the latest state of the law on the subject.
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New funding and governance rules for defined benefit pension plans: the legislature takes a position
On June 14th, Bill 30, entitled An Act to amend the Supplemental Pension Plans Act, particularly with respect to the funding and administration of pension plans, was tabled in the National Assembly by Ms. Michelle Courchesne, the Minister of Employment and Social Solidarity. The highlights of the (…)
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Clearing the air in the workplace: The Tobacco Act's new provisions and the implementation of employer's policy
Enacted in June 1998, the Tobacco Act (the «Act») is a major component of the Government of Quebec’s strategy to fight smoking.In June 2005, Quebec’s legislature reinforced the Act by adopting the Act to amend the Tobacco Act and other legislative provisions (the (…)
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Determination of the real employer under the Act respecting Industrial Accidents and Occupational Diseases when a business entrusts the management of its human resources to a personnel agency
Generally, Labour Relations laws assume the interaction of two parties, an employer and an employee. The employee offers his services, for pay, to an employer, who determines the working conditions and ensures discipline. This is a bipartite relationship. However, when a business entrusts the (…)
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Absenteeism and the obligation to accommodate: When the employer is required to consider the measures recommended by the medical experts
In a judgment rendered on February 7, 2006, the Quebec Court of Appeal reiterated the obligations of the employer and the employee to play a role in seeking a reasonable accommodation. In cases where a collective agreement exists, the union has the same obligation.More specifically, the Court of (…)
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The new Quebec Parental Insurance Plan: What should you know?
The new Quebec Parental Insurance Plan: What should you know?
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Psychological Harassment in the Workplace: What's New?
Since June 1, 2004, the Labour Standards Act (hereinafter the "L.S.A.") requires employers to provide a work environment free from psychological harassment. Thus, employers must, as a first step, take reasonable measures to prevent psychological harassment and then, whenever they become (…)
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An Arbitrator Rules On the Validity of an Alcohol Consumption and Drug Use Policy
An Arbitrator Rules On the Validity of an Alcohol Consumption and Drug Use Policy
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Guidelines on the Role of Experts: the Commission des lésions professionnelles Takes Action!
Guidelines on the Role of Experts: the Commission des lésions professionnelles Takes Action!
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Countdown to Implementation of Legislation on Psychological Harassment in the Workplace
Countdown to Implementation of Legislation on Psychological Harassment in the Workplace
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Bill C-45 and Safety in the Workplace: What You Should Know!
Bill C-45 and Safety in the Workplace: What You Should Know!
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Maintenance and Repair Work on a Building: Are You Subject to the Rules Governing the Construction Industry?
Maintenance and Repair Work on a Building: Are You Subject to the Rules Governing the Construction Industry?
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Section 45 of the Labour Code and the Transfer of Part of the Operation of an Undertaking: The New Provisions Come Into Force on February 1, 2004!
Section 45 of the Labour Code and the Transfer of Part of the Operation of an Undertaking: The New Provisions Come Into Force on February 1, 2004!
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Section 45 of the Labour Code and the Transfert of Part of the Operation of an Undertaking (Bill 31)
Section 45 of the Labour Code and the Transfert of Part of the Operation of an Undertaking (Bill 31)
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The Commission des relations du travail: A New Beginning!
The Commission des relations du travail: A New Beginning!
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Major Reform
Major Reform
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The New Commission des relations du travail Soon in Operation
The New Commission des relations du travail Soon in Operation
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The New Jurisdiction of the Office of the Labour Commissioner General Over the Dismissal of Municipal Officers
The New Jurisdiction of the Office of the Labour Commissioner General Over the Dismissal of Municipal Officers
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Can a Unionized Employee Go Before the Superior Court to Contest an Arbitration Award - If His Union Refuses To Do So?
Can a Unionized Employee Go Before the Superior Court to Contest an Arbitration Award - If His Union Refuses To Do So?
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Dismissal: Just Cause and Fair Treatment
Dismissal: Just Cause and Fair Treatment
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Industrial Accidents and Occupational Diseases - The Case Law on Applications for the Transfer of Costs Following an Atttack by a Beneficiary: A Change of Course?
Industrial Accidents and Occupational Diseases - The Case Law on Applications for the Transfer of Costs Following an Atttack by a Beneficiary: A Change of Course?
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Recent Amendments to the Québec Labour Code
Recent Amendments to the Québec Labour Code
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The Importance of Directors following Proper Resignation Procedures in order to Minimize their Statutory Liability
The Importance of Directors following Proper Resignation Procedures in order to Minimize their Statutory Liability
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An Ontario employer is held liable for an employee's intoxication
An Ontario employer is held liable for an employee's intoxication
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The Supreme Court of Canada revisits the notion of freedom of expression in a labour dispute context
The Supreme Court of Canada revisits the notion of freedom of expression in a labour dispute context
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The Tobacco Act becomes more severe as of July 17, 2000
The Tobacco Act becomes more severe as of July 17, 2000
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Pay Equity: Will your Business be Ready in Time?
Pay Equity: Will your Business be Ready in Time?
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The Ville de Montréal case - The Supreme Court examines the notion of handicap
The Ville de Montréal case - The Supreme Court examines the notion of handicap
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Quebec Changes the Rules of the Game: No Difference in Treatment
Quebec Changes the Rules of the Game: No Difference in Treatment
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The New Canadian Environmental Protection Act: Voluntary Reporting by Employees
The New Canadian Environmental Protection Act: Voluntary Reporting by Employees
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Video Surveillance: Yes but under what conditions?
Video Surveillance: Yes but under what conditions?
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Recognition of same sex spouses
Recognition of same sex spouses
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Dismissal for good and sufficient cause.' means the same thing as dismissal for a serious reason!!!
Dismissal for good and sufficient cause.' means the same thing as dismissal for a serious reason!!!
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The Desormeaux judgment is set aside: a grievance arbitrator is the competent tribunal in respect of claims relating to deferred pay leave
The Desormeaux judgment is set aside: a grievance arbitrator is the competent tribunal in respect of claims relating to deferred pay leave
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What You Must Know Before Joining a Prevention Mutual Group
What You Must Know Before Joining a Prevention Mutual Group
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Pay Equity: The Countdown Has Started
Pay Equity: The Countdown Has Started
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A victim of sexual harassment at work has no right of action against her employ'er for damages
A victim of sexual harassment at work has no right of action against her employ'er for damages
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The employer's recourse for recovery of an employee's indebtedness arising from a leave of absence with deferred salary
The employer's recourse for recovery of an employee's indebtedness arising from a leave of absence with deferred salary