Publications

Packed with valuable information, our publications help you stay in touch with the latest developments in the fields of law affecting you, whatever your sector of activity. Our professionals are committed to keeping you informed of breaking legal news through their analysis of recent judgments, amendments, laws, and regulations.

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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 citizens or permanent residents. These regulations govern both commercial airline carriers transporting foreign nationals to Canada and immigration processes and procedures for those seeking to visit, study, or work in Canada. For ease of reference, we have summarized these restrictions as follows: Visitors For foreign nationals seeking to visit Canada from outside the United States, travel will not be permitted save for individuals who, among other criteria, are: Immediate family members (spouse or common-law partner, dependent child or dependent child of a dependent child, parent or step-parent, guardian or tutor) of a Canadian citizen or permanent resident. Travelling for a non-discretionary purpose. It is important to note that officers of the Canada Border Service Agency make the final determination on admission into Canada at a Canadian port of entry. Recently, officers have been interpreting the entry into Canada of immediate family members of Canadian citizens or permanent residents narrowly and refusing admission to some family members. Foreign nationals seeking to visit Canada from the United States must demonstrate that their reason for entering Canada is essential and non-discretionary (reasons include critical infrastructure support, certain types of work, and economic services and supply chains). Students International students who have a valid study permit or who were approved for a study permit on or before March 18, 2020, can travel to Canada. Temporary Foreign Workers Workers who hold valid Canadian work permits and normally live in Canada (even if they have been laid off) can enter Canada. This also applies to workers who have applied for work permits from outside of Canada and have a work permit approval letter from Canadian authorities. Foreign workers who have received work permit approval letters for jobs at Canadian businesses that have closed because of Covid-19 will not be admitted, along with individuals who have received work permit approval letters for open work permits (with no contract of employment). For foreign nationals who do not hold Canadian work authorizations, only those with offers of employment in critical industries such as agriculture, food processing, health, transportation and emergency services will be processed. For foreign nationals whose objective in travelling to Canada is to perform work normally exempt from the requirements of a work permit (such as urgent aftersales service or emergency repair work), they can self-identify to commercial air carriers with a letter of support from the their Canadian employer and documentation outlining the urgency of their entry, which will also be needed to persuade a CBSA officer of the non-discretionary and non-optional purpose of their entry. General Information Airline officials will conduct a health check, and anyone showing symptoms of COVID-19 will not be allowed to board their flight to Canada. All travelers must have a plan to quarantine for 14 days when they arrive in Canada. This is mandatory, even if they have no symptoms. Travelers without a plan should not travel to Canada. All travelers should wear a non-medical mask during travel. Restrictions apply to individuals travelling to Canada by private and commercial operators. Canadian authorities have announced that Canadian visa application centres that collect biometrics are temporarily closed further to the COVID-19 outbreak. In addition, any applicants who are required to undergo a medical exam with an approved panel physician will be unable to do so given that most, if not all, panel physicians are not currently performing medical examinations because of the COVID-19 outbreak. The inability to give biometrics or undergo a medical examination effectively prevents many foreign nationals from applying to enter Canada at this time, even if they are exempt from the travel restrictions. Canadian authorities have also confirmed that work permit applicants who are currently outside Canada must confirm that their employer is not subject to the mandatory closure of non-essential businesses and that they will be able to start their employment after the 14-day self-isolation period before making any travel arrangements. Workers should not travel to Canada if their employer is no longer offering them a job. CBSA officers may ask if the offer of employment still stands or if the employer is still operating. If not, CBSA may refuse the work permit as the foreign national no longer meets the applicable eligibility requirements. The members of our Business Immigration team are available to answer any questions you may have about measures you are considering or the solutions you are seeking given the realities of your organization and its activities.-->

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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 the return to work as safe and effective as possible. While we don’t claim that ours is an exhaustive list, it does provide a general overview of things to consider before you resume your activities. Note that each business and industry is different and will need a specifically tailored plan. Our professionals are available to help you implement your return-to-work plan. Key planning steps Risk Assessment Before your employees return to work, conduct a site inspection to identify potential COVID-19 transmission or contamination risks. Implement measures to prevent and control identified risks with the collaboration of your employees, to the extent possible, and their union representatives, if any. Make sure that work methods comply with guidelines issued by the CNESST, the government and public health officials. Develop a plan to gradually reopen your workplace and share this plan with your employees. Encourage your employees to participate in identifying workplace risks and provide them with a forum or mechanism to make it easy for them to participate. Prevention Develop a procedure for checking employee and visitor health to avoid contagion in the workplace as much as possible. This may be done through a questionnaire, screening or self-reporting. Issue a directive that all workers and visitors must be vigilant and notify the employer if they experience COVID-19-like symptoms such as a fever or cough, difficulty breathing or sudden loss of smell or taste, or any other symptoms that government authorities may add, before reporting to the workplace.1 Set rules regarding hygiene, including hand washing, and respiratory etiquette at work2. Develop an environmental hygiene procedure involving daily disinfection of workplaces, objects and surfaces.3 Establish a procedure for isolating and managing employees or visitors who have symptoms in the workplace, as well as a procedure for disinfecting the premises. Encourage employees at higher risk of developing serious or severe complications from COVID-19 infection to follow appropriate prevention measures. Stay abreast of updates and guidelines issued by government, public health or occupational health and safety authorities, and follow them. Physical Distancing Issue clear guidelines regarding the physical distancing rules4 and how employees and visitors are responsible for respecting them. Inform employees and others such as customers, suppliers and business partners of these rules through the use of posters, memos, etc. Encourage telework for all employees wherever possible in order to reduce the number of employees on-site. Take steps to ensure that physical distancing is respected, and make certain that everyone can do so every day by rearranging workstations and work schedules, installing physical barriers, closing common areas, arranging or coordinating access to workplaces, installing contactless equipment, using technological means, holding virtual meetings, arranging for flexible hours, changing work methods, and so forth.  Revisit the organization of any in-person events or gatherings and consider holding these virtually or postponing them. Prohibit social practices that violate distancing rules, such as shaking hands. Develop protocols for the use of elevators or common areas. Policies Review your telework policies or procedures. Check your workplace civility or harassment prevention policies and update them to include virtual communications. Review your policies relative to attendance and leave for family or medical reasons in preparation for possible COVID-19-related absences. Create a policy or procedure for the return to work of employees who have been diagnosed with COVID-19, who think they may have COVID-19 or who have been exposed to someone who has contracted the disease5. Develop procedures to monitor for positive COVID-19 cases in order to notify persons who have been exposed and prevent further spread. Review your occupational health and safety policies in light of these COVID-19 contamination prevention measures. Communication Before employees return to work, inform them of the risks related to their work, including those related to COVID-19, and the preventive measures put in place to prevent and control these risks. Provide training on each employee’s role and responsibility in preventing the risk of COVID-19 transmission and contamination and guidelines to be followed. If you provide or recommend protective equipment, make sure that employees are trained to use such equipment in a safe and optimal manner. Inform employees of any revised or updated policies and explain the practical aspects of these policies to them, where necessary. Maintain training logs and have employees acknowledge that they have read updated policies with a signature. Train supervisors and managers to help them monitor compliance and enforcement of new occupational health and safety rules and procedures. Stay abreast of updates and guidelines issued by the CNESST and government and public health authorities. Inform your employees of any important updates. Be respectful of employee privacy. Do not tolerate any violation of your occupational health and safety guidelines, policies and procedures. Other Considerations Assess the psychosocial risks inherent to a pandemic context, such as balancing telework and family, providing support for loved ones, working in a different work climate, etc. Prepare what your response will be should some employees refuse to return to work for various reasons, whether or not they can do so legally. Be aware of tax legislation or legislation regarding unemployment insurance or emergency benefits—for example, the need to update an employee’s Record of Employment if work is available but they refuse to return to work for a reason deemed invalid. Be familiar with laws involving labour standards, discrimination, privacy, occupational health and safety and industrial accidents. Develop an emergency response plan now to deal with a possible second wave of the pandemic or a spike in infections following the reopening of workplaces or the lifting of the lockdown. Start to consider a future plan to resume pre-pandemic activities such as business travel, client visits, team meetings, events, etc. Encourage employees to raise questions or concerns and designate a contact person to dialogue with them. The professionals of our Labour and Employment team can assist you in implementing these measures, and others, as you resume your activities.   For more information on the exclusion or isolation of workers during a pandemic, consult the CNESST reference document. For more details on respiratory etiquette, consult the CNESST reference document. For more details on maintaining a hygienic environment during a pandemic, consult the CNESST reference document. For more details on physical distancing in the workplace, consult the CNESST reference document. See the INSPQ’s recommendations [French only] on the rules to follow when isolation is lifted.

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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 for employees. Employers have had to adapt their methods by changing the way work is organized. The state of emergency caused by the crisis has quickly engendered additional risk exposure. At the same time, employees have generally been understanding and flexible regarding the measures announced by employers. Going forward, however, employee cooperation, force majeure, and health and safety challenges may no longer be sufficient to maintain the kind of flexibility employers and employees shared during the crisis. As a result, it is important to get back on track right away, taking only calculated risks and returning to the conventional legal framework that governs the employer-employee relationship. Short-Term Crisis Recovery: Anticipating Challenges and Minimizing Risk Well organized companies focused on the challenges of recovery will likely be capable of successfully commencing their recovery while keeping any associated risks linked with new measures to a minimum.  The following are some suggestions on how to do so: It is essential to maintain, re-establish and/or preserve an effective, open channel of communication with employees. Workers will need assurance that their return to work is being properly managed and that their health and safety is a top priority for the company. Develop and implement health and safety measures for workers, or ensure that the measures already in place are adapted to the context of COVID-19. Employers have an obligation to ensure the health and safety of their workers and implement methods to identify, correct and control risks. Establish a policy for working at home (a subject recently discussed by our expert colleagues). Expect unusually high rates of absenteeism and work refusal situations and establish a plan to manage problem cases, keeping the rights and obligations of everyone involved in mind. Make sure these measures are applied in a consistent, unequivocal and uniform manner when it comes to your employees. Train managers on your organization’s key messages and positions in order to ensure that you are conveying a unified message. Coaching front-line managers will become even more important in the context of the recovery. Employers can evaluate the potential use of the Quebec government’s PACME program (which we have reviewed) as part of their recovery plan.  The most significant challenge businesses will face in the medium-term (and probably in the long-term as well) is the very unstable economic situation and potentially declining employee cooperation. Though many are current focused on short-term recovery, it is crucial to begin thinking of ways to help our organizations manage the crisis in the medium-term. The economic instability that will characterize this period will also create opportunities. In order to seize them, it is essential for companies to be flexible and agile. Every organization must set a solid action plan in motion now so that their human resources can operate with the flexibility that the unstable economic situation will require. Our Labour and Employment team is prepared to support companies facing this immense challenge. We can help you. Despite the challenging circumstances, crisis can often reveal new opportunities.

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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 to employment injury claims. They can act in one of two (2) ways: Investigating the circumstances in which the worker contracted COVID-19 in order to determine whether it can be considered an employment injury; Monitoring employment injury cases to identify the impact of the pandemic on the way cases are treated to then try to obtain a reduction in financial consequences for the employer by an assignment of costs. Can COVID-19 be considered an employment injury? Although a worker infected with COVID-19 is at liberty to file an employment injury claim, they are responsible for proving that they contracted the disease or came into contact with the virus due to or in the course of their work. According to the current laws and jurisprudence, a COVID-19 diagnosis does not trigger the application of any legal presumption facilitating the acceptance of a worker’s claim under either the category of occupational disease or that of industrial accident. Helpful tip: If one of your employees has contracted COVID-19, investigate the origin of the infection. Ask the following questions and document the answers you receive: Has the worker travelled recently? Where and when? When did they return from abroad? Has one of their loved ones recently been diagnosed with COVID-19? Have one or more colleagues, clients or business partners contracted the disease? What symptoms did they experience, and when did they begin experiencing them? What was their schedule and who did they work with in the days before they began experiencing symptoms? Why do they believe they contracted the disease at work? What hygiene, preventive and protective measures and distancing did they use in the workplace? Can employers apply for an assignment of costs due to COVID-19? In terms of employment injuries, the pandemic can have many consequences, such as treatments and temporary assignments of work being temporarily interrupted and medical assessments and examinations by the Bureau d’évaluation médicale (BEM) being cancelled or postponed for an indefinite period. This situation will inevitably prolong the period during which employment injury benefits are paid, potentially significantly in some cases. Employers could apply for an assignment of costs for these claims in order to reduce the financial impact of the pandemic by demonstrating, for example, that the treatments necessary to consolidate the worker’s injury were suspended due to the pandemic, delaying consolidation or increasing the consequences o permanent impairment. A pandemic the size of COVID-19 is probably very much outside the scope of risks most employers generally have to face. When applying for an assignment of costs due to “undue burden”1, the employer will need to demonstrate that the consequences stemming from the pandemic such as delayed consolidation or more substantial permanent consequences represent a significant proportion of the costs attributable to the employment injury.  Helpful tips: If you have workers who are currently receiving income replacement benefits, find out whether their treatments or medical care have been interrupted due to the pandemic, if they have had medical or surgical appointments cancelled, etc. Document this information. The impact of these events on the cost of the claim can be documented retrospectively. Keep in mind, however, that applications for an assignment of costs due to “undue burden” must be submitted within the time limit established by law, as interpreted by jurisprudence2. The members of our Labour and Employment team are available to answer any questions you may have about occupational health and safety measures you are considering or the solutions you are seeking given the realities of your organization and its activities.   Section 326 of the Act respecting Industrial Accidents and Occupational Diseases (“AIAOD”). Section 326 of the AIAOD states that the application must be made in writing within the year following “the date of the accident”, and must include an explanation of the reasons for the application. However, the Court of Appeal has interpreted this time limit as being able to start from the day the right to the exception begins in Commission de la santé et de la sécurité du travail v. 9069-4654 Québec inc., 2018 QCCA 95 (known as the “Supervac 2000” case), as has the majority of the Tribunal administratif du travail jurisprudence that followed.

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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 employee retention, while the second promotes worker training. Incentive Program to Retain Essential Workers (IPREW) Although the CERB has been generally well received, it has led to difficulties for certain businesses that provide essential services. This is because the salaries of many workers (particularly those working part-time and those working as cashiers, delivery persons, security guards and maintenance workers) is lower than the CERB. In some cases, employees who were laid off and later recalled to work on a part-time basis felt penalized (unlike the regular Employment Insurance program, the CERB does not allow beneficiaries to keep part of the wages they receive by working). This disadvantage has led to surging rates of absenteeism. To incentivize essential services workers to remain in their posts, the IPREW provides a taxable bonus of $100 per week up to a maximum of $1,600 over the course of the program. This bonus is retroactive to March 15, 2020. The government estimates that 600,000 workers will be able to benefit from the program. Workers must submit their applications online beginning on May 19, 2020. The first payment is scheduled for May 27, 2020. To be eligible for the IPREW, workers must: Be working part-time or full-time in an essential service; Be over 15 years of age and living in Quebec; Earn $550 or less per week for an annual income of no less than $5,000 and no more than $28,600 for the year 2020; and Not be receiving CERB or PATT benefits. Workers whose employers receive financial aid from the federal government are still eligible. Non-essential businesses may want to consider implementing incentives inspired by the IPREW in order to retain their workforce when they are recalled to work following the gradual return to normal activities scheduled to begin on May 4, 2020. Non-essential businesses will most likely face problems similar to those that led to the creation of the IPREW, most notably because the CERB will be available until October 3, 2020. Concerted Action Program to Maintain Employment (PACME) It is reasonable to assume that companies resuming their operations after the province-wide shutdown will need to adopt many new measures, particularly in terms of workers’ health and safety and, as we wrote about last week, telework. Training workers will become even more relevant and essential. The PACME offers an opportunity to be proactive in that regard. PACME offers funding to employers seeking to promote training and best practices, with a special focus on human resource management during the crisis and in preparation for the reopening of the economy. It also aligns well with the federal wage subsidy program. The PACME is available to businesses whose operations have been reduced, suspended, increased or diversified by the crisis, as well as self-employed workers and organizational partners. To learn more about the PACME, please see the article published by our colleagues on the subject. Our Labour and Employment team is available to advise and accompany you throughout the crisis and the reopening process.

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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 redeployment of resources now working from home was done in a time of crisis, without the benefit of advanced planning, training, and strategic evaluation that usually accompanies changes of this magnitude. With no prediction yet available on how long the current crisis will last, employers must take steps now to ensure that the measures implemented to promote the continuity of their operations do not result in negative consequences, disputes or claims from their employees, clients or partners. In Quebec, thousands of employees are currently using new technological tools in a new environment (their homes), often without supervision.  The boundary between private life and work has never been more blurred. The magnitude of the current context can artificially obscure the importance of employers adapting their operational methods and associated human resource policies to avoid the risks associated with working remotely. Employers must remember that legal action could be taken after the crisis to address any problematic situations in play now. It is important to act now in order to avoid exposure to significant liability in a post-Covid environment. To that end, we have identified the following four areas of concern. These have been highlighted so that employers can take any required measures to ensure that the telework performed is not only appropriate and safe, but also of sufficient quality to satisfy client and company needs: Concerns Related to Health and Safety while at Work The employer’s obligations in terms of health and safety and its responsibility to take preventive measures continue during this period of telework; The idea that the workplace can include the employee’s home must be taken into account, as well as associated workstation ergonomics Concerns Related to Psychological and Sexual Harassment The need to preserve civility while using new methods of communication; The feeling of familiarity engendered by these new methods of communication can be fertile ground for misconduct or a failure to engage in proper teamwork; The employer’s legal responsibility to prevent and address psychological and sexual harassment situations; Events that occur outside the usual workplace and are related to work; The application and adaptation of administrative policies and codes of conduct; Reviewing complaint and inquiry procedures so that they can take place outside of the usual workplace. Concerns related to the Act Respecting Labour Standards1 Respecting and modifying work schedules; Managing overtime; Costs associated with working from home; Concerns related to Privacy and Confidentiality The contractual performance of work in the employee's home; Transporting and storing work documents; Setting up a workspace to ensure that documents are kept confidential and ethical obligations are respected ; Our Labour and Employment team will be happy to help you implement best practices for telework.   Act respecting labour standards, chapter N-1.1.

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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 employees could lead to companies experiencing a major loss of expertise and skill. This expertise will be essential to rebuilding after the end of the crisis, a time that for many will be the greatest challenge in the history of their organization. Organizations recognize that employees have value over and above their skills. They have acquired an in-depth understanding of the company’s goals and operations. They have established a relationship of trust with the company, a network of contacts, and a certain degree of autonomy, to name only a few examples. These make all the difference. We are working with many employers to identify solutions designed to protect this invaluable asset during this unprecedented crisis. The latest government announcements, which include provisions for increased wage subsidies for some companies, are certainly a positive response to current concerns and realities. Other programs with solutions that might be of interest include: New Flexibility in the Federal Work-Sharing Program The federal government has recently established measures to increase the flexibility of the Work-Sharing program (“WS”), which has been the subject of many questions from both employers and employees. Considering the frequent changes made to various government programs, it is possible that by the time you read this, some information may no longer be up to date. We therefore invite you to visit the Employment and Social Development Canada1 (“ESDC”) website or consult our labour and employment law professionals for more information. What is the Work-Sharing program (“WS”)? The goal of the program is to allow employers to keep all of their workers by reducing hours rather than laying off part of their workforce. This program may be a good option for employers who are facing a decrease in their normal level of operations due to COVID-19, but who still have some work for their employees in a reduced capacity.  During the program’s implementation period, available work is redistributed equally among employees in one or more work units.  The employer submits an application and fills out the form outlining the agreement between the employer, the affected employees and their representative, through which the employees voluntarily accept a reduction in their work hours and the sharing of available work. In order to compensate for this reduction in income, the program allows workers who are part of the agreement to receive employment insurance benefits. Under the Employment Insurance Regulations2, remuneration received for a given week of work-sharing is not deducted from the benefits payable under the Employment Insurance Act3. For companies that are directly or indirectly affected by the decline in business due to the current situation, the program’s duration is a minimum of six weeks and a maximum of 76 weeks. The reduction in employees’ regular work schedules must be between a minimum of 10% and a maximum of 60% on average during the period of the agreement. We invite you to visit the ESDC website or consult with our professionals to obtain more information about the eligibility criteria and the general requirements of the program. What Are the New Measures Related to COVID-19? On March 25, due to the downturn caused by COVID-19, the federal government updated its temporary special measures regarding the WS program, including the following, which: Reduce the requirements associated with preparing the application and the attachments. Starting now and until further notice, employers are no longer required to submit: The recovery plan, Attachment B, which used to be required, has been removed and replaced with a single line in the text of the application; Sales and/or production data from the last two years; Broaden program eligibility to include companies that have only been operating for a year, instead of the usual two years; Remove the required waiting period in between WS applications. How to Submit an Application and the Expected Processing Times Following the recent changes made to the program, there is now a simplified way to submit the application. Employers must fill out the following forms, which have been revised by the federal government: Revised form: Application for a Work-Sharing Agreement (EMP5100) Form - Attachment A (revised): Work-Sharing Unit (EMP5101) For businesses located in Quebec, the application must be sent to the following email address: [email protected] As of the date this bulletin was written, the ESDC website that provides information on the special measures implemented due to COVID-19 does not specify the amount of time it will take to process applications. However, it does indicate that employers are now asked to submit their applications 10 calendar days before the requested program start date, and that Service Canada will endeavour to reduce processing time to 10 calendar days. Before COVID-19, employers had to send their Work-Sharing application (and the supporting documents) 30 calendar days before the requested start date. Due to the major increase in applications, the federal government now has nine (9) processing centres in Canada for the purpose of processing WS applications and has the additional capacity to further support employers who have questions. A new email address has been created for the purpose of handling requests for information about the WS program: [email protected] Conclusion Considering the constant changes, we invite you to consult our labour and employment law professionals to ensure that your decisions are in conformity with the various government programs. The federal government may further increase the flexibility of the program’s conditions and wait times. If necessary, we will keep you informed of any changes to the program with future updates. It is also important to note that there are other kinds of programs that could be of interest in the current situation, such as the Supplemental Unemployment Benefit Program, which allows employers to increase their employees’ weekly earnings when they are unemployed due to a temporary stoppage of work or quarantine. If the conditions are met and the plan is registered with Service Canada, the amounts paid by the employer are not deducted from employees’ employment insurance benefits4. The Lavery team is available to help you implement measures and determine the best way to endure this crisis, protect your organization and prepare to return to normal.   See also https://www.canada.ca/en/employment-social-development/corporate/notices/coronavirus.html#h4.01. Employment Insurance Regulations, DORS/96-332, subsection 47(1) and section 49. Employment Insurance Act, S.C. 1996, c. 23. Employment Insurance Regulations, supra note 1, subsection 37(1).

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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 this information into account when deciding how to meet your obligations to employees while maintaining operations. With the stated objective of containing the spread of the coronavirus, each of us is responsible for adapting our behaviours to an evolving set of circumstances, particularly in the workplace. This new reality impacts the responsibilities of employers. New Directives from The Government of Quebec On March 12, 2020, the province declared a state of emergency and the Quebec government announced the following: All persons returning from abroad or having flu- or cold-like symptoms must voluntarily self-isolate for 14 days; Self-isolation is mandatory and paid for all public service employees and all private and public healthcare, education and daycare workers returning from abroad; Organizations must cancel all indoor gatherings of more than 250 people and any unnecessary gatherings for the next 30 days1. At his press conference, the Premier of Quebec invited private sector employers to take the particular situation facing our society into consideration and to be understanding with employees who must take time off work2. With these measures aimed particularly at establishing social distance to slow the spread of the virus, guidelines have been clarified and may serve as a basis for the needs and requirements of both employers and their employees, taking into account the particularities of each workplace. Obligations in the Workplace Employers must take the measures necessary to protect the health, safety and physical well-being of their employees, their clients and the public. Employees are held to the same standards; that is, to preserve their own health as well as that of their colleagues and any third parties they may be in contact with in the course of or in connection with their work. The Charter of Human Rights and Freedoms, the Act Respecting Occupational Health and Safety, the Canada Labour Code and fundamental principles such as those set out in the Civil Code of Québec provide that individuals must not behave in a way that would cause increased harm to others. They must also act in such a way as not to harm their own health, and, by the same token, that of the people in their workplace. These principles are well known to human resource managers and are foundational to establishing workplace policies and guidelines. Policies and Guidelines for Employees In order to encourage employees to contribute to maintaining a healthy work environment free from contamination risks, employers should diligently inform their employees of their intention to follow government guidelines. Internal guidelines could include the following: Cancelling meetings or other non-essential work events that may promote the spread of the virus; Reminding employees of their obligation to report any situation that may require them to self-isolate; Establishing and informing employees of necessary arrangements should isolation become necessary and telework not be possible; Explaining the steps to follow to plan telework and reminding people of the applicable rules under existing policies and employment contracts regarding the confidentiality of business or personal information used in the workplace; Informing employees about of a contingency plan to define, among other things, emergency contact persons and information transmission protocols; and instructing employees on how to access workplace premises or organize their work in the event of a containment situation. Employee Travel and Professional Activities An employer may cancel any professional activity that could reasonably be expected to pose a risk to the health of its employees, clients or the public. In so doing, an organization modifies its expectations as to workplace deliverables. In the current context and further to the government guidelines issued on March 12, 2020, an employer should: Prohibit all business travel both to affected or unaffected areas; Ask its employees to hold essential meetings by videoconference or other technological means; Provide that any other meeting or professional activity in its offices or elsewhere be held in such a way as to reduce the risk of contagion (e.g., videoconferencing, conference calls, observance of hygiene measures and reasonable distances between people). Isolation of Diagnosed Employees or Preventive Isolation Further to the recommendations of public health authorities and on the basis of the government guidelines issued on March 12, 2020, an employer should require that any employee returning from abroad proceed to self-isolate for 14 days. If the employee shows symptoms before the end of the 14-day isolation period, he or she should contact the services set up by the Ministère de la Santé (1-877-644-4545). A nurse may then refer the employee to a designated COVID-19 clinic if necessary. Prior to permitting such an employee to return to work, an employer should be informed of the outcome of these steps and be satisfied that the employee will not pose a risk to colleagues and clients, which may include requesting a medical certificate from the designated COVID-19 clinic if the employee was referred to one. In the case of business travel at an employer’s request prior to the government directives issued on March 12, 2020, any self-isolation period should be paid. If the travel was personal, the payment and form of remuneration during the self-isolation period depends on certain factors, including: At what moment the decision to maintain the departure was made: before or after the government’s instructions were issued or an explicit employer policy was implemented; Positive or negative diagnosis further to a test; Capacity for telework while in isolation. Should employees be unable to report to work (due to their return from abroad, other reasonable grounds to believe that they may be a carrier, or if they or one of their relatives has tested positive), their employer should consider possible avenues under the employment conditions applicable to each particular employee: Paid leave or other conditions available under the Act respecting labour standards and working conditions or collective agreements in the organization, which must then be agreed upon with the employee in question and with the union’s cooperation, if applicable3; Group disability insurance benefits; Record of Employment for sickness and employment insurance sickness benefits; Quarantine and employment insurance benefits as a result of forced leave from work4; Record of Employment for leave and caregiving benefits; Telework if the employee’s tasks can be performed remotely or adapted to do so. Refusal to work The Act Respecting Occupational Health and Safety allows employees to refuse to perform work if they have reasonable grounds to believe that the performance of said work would expose them to danger for their health, safety or physical wellbeing, or would expose another person to similar danger. This Act also provides for the process by which such refusal must be dealt with. However, the prevention and management of work refusal situations could likely be greatly facilitated if employees are aware of the actions taken by the employer to prevent contamination and other health risks to those present in the workplace. For the protection of employees, suppliers and customers, employers must implement the sanitation measures prescribed by government authorities and make any necessary materials available. It must also encourage its employees to follow sanitation instructions and do the following: Provide access to dispensers for alcohol-based antiseptics, tissues and waste bins; Regularly clean common areas (e.g. meeting rooms, cafeteria, etc.); Provide contact information for Info-Santé and the Ministère de la Santé for additional information or screening. According to the government guidelines issued on March 12, 2020, for work premises that can accommodate 250 or more people, the premises must be prepared, or the number of people limited, or those present must be instructed to remain at least two metres away from each other. Work reorganization In order to maintain their activities and provide service to their clientele, some businesses may find it advantageous to alter the way in which their employees work. In addition to resorting to telework, employers may consider alternative working arrangements to maintain adequate staffing while reducing the risk of spreading the virus: Flexible or modified work schedules or staggered working hours (in accordance with the conditions set out in section 53 of the Act respecting labour standards); Rotating schedules to reduce the number of employees in the workplace at the same time; Solicitation of retirees who can fill absences owing to sickness. Immigration Currently, Canadian immigration authorities have put in place emergency measures for foreign nationals in Canada or abroad whose applications for temporary residence have been delayed because of the closure of Canadian visa application centres in mainland China (among other locations). Extensions have been granted to help applicants to obtain now hard-to-get documents. All other applications and all other components of the Canadian program are not affected at this time. No new medical tests for newcomers have been announced and no specific travel restrictions have yet been adopted, with the exception of self-isolation measures for all those arriving from abroad. Health Canada screening officers are present at some Canadian air and land ports of entry, but this measure is still minimally applied at this time. We expect further restrictions at Canadian ports of entry to be implemented in the coming days as the situation progresses. The Key: Keep your Information Up to Date It is important to make sure that the information that you rely on as an employer to make decisions in the current environment is reliable so that your employees can perform their work safely, and for you to continue offering service to your clients. Prudent HR managers should visit the websites of the competent government authorities to confirm the exact terms of the requirements and guidance that these provide. Each workplace operates in its own context, and employers would do well to plan for various possible solutions depending on their circumstances and considering their specific workforce and the needs of their clientele. The events of the last few days have shown that guidelines can change rapidly (even in the course of a day), especially when the spread of the coronavirus suddenly gains speed or following the directives issued by governments to promote “social distancing” as counter the impacts of a possible mass contamination. The diligent implementation of preventive measures and appropriate action as the situation evolves will help ensure, employers are being responsible while, effectively guarding against future civil or criminal claims. The members of our Labour and Employment and Business Immigration teams are available to answer any questions you may have about measures you are considering or the solutions you are seeking given the realities of your organization and its activities.   Press release on March 12, 2020. See the same Government of Quebec press release. Employee and union cooperation may be necessary if working conditions need to be adjusted at the employer’s request, which may wish to offer paid leave to cover part of the isolation period. The federal government recently amended the conditions applicable to quarantine to suspend the one-week waiting period before Employment Insurance benefits are paid..

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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 (also known as pauses jumelées or pauses autogérées). This widespread practice consists of having a single childcare staff member, usually an educator, temporarily supervise two groups of napping children to allow another childcare staff member to go on a break. The court took advantage of the opportunity to delimit the obligation of constant supervision set out in section 100 of the Educational Childcare Regulation2 (The “Regulation”), awhich applies indiscriminately to all childcare providers: the centres de la petite enfance (CPEs), daycare centres and home childcare providers. Finally, the court made some interesting comments on the calculation of the ratios, although this was not a central issue in the dispute. The court’s reasons and comments will likely lead childcare providers to question the organization of their work, their practices, directives and even their individual or collective work agreements. Decision Facts In April 2018, an inspector from the Ministère de la Famille visited a CPE to conduct a full inspection for the renewal of its permit, and to deal with a complaint about child supervision during naps. In the afternoon, the inspector entered a room and found seven children lying on small mats scattered on the floor. Some of them were not sleeping and no educator was present. However, in an adjacent room, an educator was sitting along the back wall. This second room had ten other children, also lying down for a nap. The evidence showed that an observation window separated the two rooms, which were also connected by a shared bathroom. The court noted that it was impossible at that time for the educator to get a full view of the adjacent room, in particular, because of the furniture that was dispersed about the room and partially obstructed the view. A statement of offence for failure to maintain constant supervision was issued to the CPE, although the practice of placing two groups under the supervision of a single educator at nap time, to allow a colleague to take a break, is a well-known practice. The concept of constant supervision To date, there are very few decisions dealing with the concept of constant supervision in a childcare context. The court, therefore, used this opportunity to consider this concept in greater detail [translation]: « [23] The CPE [...] must ensure that the children to whom childcare is provided are constantly supervised for their safety; [24] The French adjective constante [constant] is defined in the Larousse dictionary as follows: [translation] that which is uninterrupted, continuous; durable. [25] Le Petit Druide des synonymes et des antonymes has the following synonyms for the adjective constante: [translation] continual, continuous, at every moment, unceasing, uninterrupted, perpetual, without end. The antonyms are: [translation] discontinuous, intermittent, irregular. [26] The Larousse dictionary defines the French word surveiller [to supervise] as the act of observing attentively. In the decision in Directeur des poursuites criminelles et pénales c. Centre de la petite enfance (CPE) Le petit sentier, Judge Rivest noted that it is the action of watching over someone in one’s care and/or for whom one is responsible, taking care of them, being attentive. [27] There are few reported decisions dealing with this issue. Based on the decisions filed with the pleadings, the Court finds that the adequacy of the supervision depends on the specific facts of each case. [28] Since young children are involved in this case, the Court finds that this supervision must be visual and auditory to be effective. (References omitted) Applying this reasoning to the facts in this case, the court found, beyond any reasonable doubt, that the children in the group for which there was momentarily no educator were not under constant, but rather “intermittent", supervision. Due diligence and the auto-pause concept At trial, the CPE presented a so-called "due diligence" defence, arguing that all reasonable precautions were taken to avoid committing the offence. In particular, it referred to an internal memo sent to all the employees on how to proceed during an auto-pause. According to the memo, educators must be near the observation window and walk regularly between the two rooms to verify the children’s status. In the event that a child wakes up, the instruction is then to respond to his or her needs promptly and engage in a quiet game with the child in order to respect the other children’s nap time. The CPE demonstrated that this directive had been communicated to all the staff and that it was regularly discussed at meetings. In addition, a pedagogical adviser ensured that this rule was respected. The failure to comply with this obligation could result in disciplinary sanctions up to and including dismissal. Despite the foregoing, the court rejected the CPE’s due diligence defence. It stated that in the context of an auto-pause, the directive was not able to bring the CPE into compliance with the Educational Childcare Act3 (the “Act”). It was in fact inevitable, in the court's view, that the educator would have to attend to a specific child at some point in time and would no longer be able to see what was happening in the other room. The court concluded by adding that a reasonable person placed in the same circumstances should provide for a sufficient quantity of staff to replace the educators during their breaks. On this point, it noted that [translation] “the children's safety must take precedence over the economic interests of the [childcare] service providers”4. Furthermore, it stated that, despite the CPE's efforts to ensure compliance with its directives, it was the auto-pause concept itself that was problematic and, in the court’s words, [translation] “completely inappropriate”5. Thus, the CPE was convicted of breaching the obligation of constant supervision of the children and ordered to pay a fine. What is the impact with respect to the organization of work for childcare providers? The court’s decision will likely raise doubts about the organization of work for many childcare service providers, particularly permit holders who make use of the auto-pause concept. However, the ramifications could be much more far-reaching. Level of supervision We can easily imagine that the issue of adequate supervision could give rise to many challenges on a daily basis. The court indicated that such supervision must be auditory and visual, but may also vary depending on the circumstances. The analysis of a situation could therefore be influenced by various things, such as the premises (private residence, facility, park, etc.), their layout (presence of furniture, size of openings, etc.), the location of the workers and children while services are being provided, and the nature of the activities conducted. Given the court’s requirement that the supervision must be both visual and auditory, the assessment of its adequacy would seem to be all the more likely to raise questions for home childcare providers and compliance officers in coordinating offices who conduct visits to monitor these providers. Calculating ratios It should be noted that the offence with which the CPE was charged in this case did not concern compliance with the ratios provided for under the Act for the number of children to childcare staff that are required to be present on the premises during the provision of services. The issue before the court was strictly to determine whether the CPE was providing constant supervision of the two groups of children at the time of the inspection. While the court stated that it would reserve its comments on the question of the ratio, it nevertheless clearly added that it did not agree with the CPE’s interpretation of the number of childcare staff that were needed to care for the children in its facility. Thus, despite the fact that the educators could not leave the facility during their breaks, the court noted that by ordering the educators to split their time between two rooms, the CPE was disregarding the ratios provided for in the Act. Thus, the court's view was evidently that the ratios set out in section 21 of the Act would apply to each group of children, and could not be calculated as a whole, across the entire facility. The auto-pause concept In light of the specific facts submitted as evidence, the court found that the very concept of auto-pause is inappropriate. While some might therefore be tempted to conclude that all auto-pauses should be abolished, or that they are necessarily illegal, it should be remembered that each situation must be analyzed separately, based on its specific circumstances. Thus, a permit holder may still be able to show that they are in compliance with their obligation of constant supervision, for example, through a combination of adequate premises, resources, work instructions and protocols. This being said, the fact that the court has raised doubts about the very concept of the auto-pause will necessarily lead permit holders to question the organization of their work. In a context in which the court relies, inter alia, on its own calculation of the ratios applicable to the group of children, it could be even more complex for permit holders to determine the scope of their obligations. The same thing can be said for the manner in which they will be able to meet their obligations taking into account their mission, budget, human and material resources, individual or collective work agreements, and the specific needs of the children in their care. Conclusion The decision rendered by the Court of Québec on January 15, 2020 sheds light on the notion of constant supervision in the context of the provision of childcare services. Thus, to ensure that they are in compliance with their obligations and avoid penal or administrative penalties, it may be appropriate for childcare providers to review the organization of their work. A notice of appeal of this decision was filed on February 14, 2020 by the CPE. We will keep you informed of further developments. Should you wish to obtain further information on this topic, or discuss possible solutions for your own situation, please do not hesitate to contact our team of professionals.   Directeur des poursuites criminelles et pénales c. Centre de la petite enfance Soulanges (CPE Soulanges), C.Q. Beauharnois, 760-61-124110-199, January 15, 2020 (hereinafter DPCP c. CPE Soulanges). CQLR, c. S-4.1.1, r. 2. CQLR, c. S-4.1.1. DPCP c. CPE Soulanges, para. 42. Idem, para. 45.

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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 provided as to how the standard of reasonableness should be applied. The objective was a more easily identifiable standard and diminished debate on the standard of review applicable to a given administrative matter. On December 19 and 20, 2019, the Supreme Court of Canada published three administrative judicial review decisions in the cases of Vavilov1, Bell Canada2 and Canada Post Corporation3. In the first case, which dealt with espionage, the majority set out a new approach to the judicial review of administrative decisions, with particular regard to the application of the reasonableness standard. The other two decisions similarly illustrate the application of these new principles. Determining the appropriate standard of review Presumption of reasonableness The new analytical framework includes a presumption that reasonableness is the applicable standard in all cases. Going forward, whenever a court reviews the merits of an administrative decision, it should begin with the presumption that the applicable standard of review for all aspects of that decision will be reasonableness. As a result, it is not necessary for courts to engage in a contextual analysis as there are no longer categories of questions for which the standard of review is not identified at the outset. Categories of questions subject to the correctness standard The categories of questions to which the standard of correctness applies remain essentially the same: Constitutional questions; Questions regarding the respective jurisdictional boundaries of the specialized tribunals; Questions of law of central importance to the legal system as a whole; more specifically, it is no longer necessary for the question submitted to be outside the area of expertise of the decision-maker; rather, it is sufficient that it is of central importance to the legal system as a whole. Category of jurisdictional questions “Jurisdictional questions”or “true questions of jurisdiction” are no longer questions for which the correctness standard must be applied. Although this is not a major change in itself, the Supreme Court has often stated that this type of question is exceptional. Now that the fate of these questions has been clarified, the standard of reasonableness applies. Cases where the law provides for a statutory appeal mechanism In cases where the law provides for an appeal of an administrative decision to a court of law4, counsel must now defer to the appellate standards of review, keeping in mind the nature of the question at hand (question of law, question of fact or question of mixed fact and law) as opposed to the standards of judicial review. Cases where the law specifies the applicable standard of review The presumption of reasonableness review can be rebutted where a legislature expressly outlines the standard of review applicable to a given administrative decision. In such cases, the standard determined by the legislature applies. Important Take Aways The Vavilov judgment marks a major shift in the state of the law of judicial review. For this reason, prior case law should be treated with caution. The situations in which the presumption of reasonableness review can be rebutted are limited to the five listed above: the three categories of questions where the application of the correctness standard is required, cases of appeal provided for by law, and cases in which the legislature has expressly specified the applicable standard. Nevertheless, the Supreme Court appears to have opened the door to subsequent recognition of new exceptions, albeit on an exceptional basis and in accordance with the analytical framework and principles set out in the decision. Applying the reasonableness standard – Moving forward In addition to revising the analytical framework for determining the applicable standard of review, the majority provides a series of clarifications and indications on how the standard of reasonableness should be applied, and refers to a “more robust form of reasonableness review.” It is important to follow future judgments of the Supreme Court (in addition to other lower courts) in order to accurately measure the impact of this new framework for applying the reasonableness standard. Our colleagues specialized in administrative law, labour law and litigation remain at your disposal for any questions that may arise.   Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. Bell Canada v. Canada (Attorney General), 2019 SCC 66. Canada Post Corporation v. Canadian Union of Postal Workers For example, the appeal of certain decisions of the Administrative Tribunal of Québec to the Court of Québec.

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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 from their employers even if they were already offering such leave before the amendments came into force. Two recent decisions confirmed that the government’s intention was to grant two days of paid leave to employees who did not benefit from a paid leave and not to give two additional days to employees who already had such benefits1. Amendments to the Labour Standards Act Since January 1, 2019, employees may take leave without pay for the following reasons: Family reasons: absences related to the care, health or education of their child or their spouse’s child, the state of health of their spouse or a close relative; Health reasons: absence owing to sickness, an organ or tissue donation, an accident, domestic violence, sexual violence or a crime. The duration of such authorized absence without pay depends on the reason for the absence. However, according to the latest amendments to the LSA, the first two days of absence per year taken for such reasons are now paid to employees who have three months of continuous service. The LSA stipulates that employees must notify their employer of their absence and the reason for it as soon as possible and, at the employer’s request, provide documentation attesting to this reason. You can refer to the 6 main amendments to the Act respecting labour standards in our guide for employers. Extra paid leave? Many employers, with or without unionized employees, already offer their employees various types of leave in addition to annual vacations: personal leave, flexible leave, sick leave, family leave, special leave, etc. The working conditions of employees were analyzed in two recent arbitration awards and additional paid leave on the basis of the new provisions of the LSA was denied to them. In these cases, the employers involved already offered flexible leave to their employees, which could be used at the employees’ discretion, and in particular for absences authorized by the Labour Standards Act (“LSA”) for the aforementioned family and health reasons. The arbitrators thus refused to grant these employees two additional paid days of leave for family or health reasons, given that the flexible leave days they already benefited from were equivalent to those the LSA provides for. The fact is that these employers already paid for the first two days of absence as soon as employees had three months of continuous service, even though the requirements set out in their collective agreements were stricter in this regard. It was also demonstrated that these employers were not strictly applying the provisions set out in their collective agreements in respect of required absence notices and were thus complying with the Labour Standards Act (“LSA”), which only requires that employees indicate that they will be absent as soon as possible. As long as the working conditions applied comply with the minimum provided for in the LSA, employers are not required to add to them. In conclusion: Before granting additional paid leave to comply with the latest amendments to the Labour Standards Act (“LSA”), managers should check whether, in practice, the paid leave they already offer to employees meets the LSA’s requirements. Our Labour and Employment Law team is available to provide you with advices and solutions related to the new labour standards.   Syndicat des travailleurs spécialisés de Sintra (CSD) et Sintra inc. (Région Estrie), 2019 QCTA 502 and Union des employés et employées de services, section locale 800 et CANMEC Industriel inc., 2019 QCTA 411

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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 work in Canada, foreign employees must first obtain the necessary authorizations. Employers planning to hire a foreign worker must ensure that an assessment of the candidate's profile is conducted to determine if the candidate is eligible for an immigration program. If so, it will be important to determine which program is most effective and appropriate. To guide you through this process, here are the answers to certain frequently asked questions. True or False: An employer must obtain a Labour Market Impact Assessment (LMIA) before a foreign worker can apply for a Canadian work permit False. Although a Labour Market Impact Assessment (LMIA) is normally required to obtain a work permit, an LMIA exemption may apply in some cases. Remember: a positive Labour Market Impact Assessment (LMIA) confirms the need to hire a foreign worker to perform a particular job and that no Canadian worker is available to fill this position. If the LMIA application is approved, the foreign applicant may subsequently apply for a work permit. There are however Labour Market Impact Assessment (LMIA) exemptions, of which the following are frequently used: Work permits issued under an international agreement, such as North American Free Trade Agreement (NAFTA) or Comprehensive Economic and Trade Agreement (CETA); Intra-company transferees; Youth exchange programs; Spouses or common-law partners of skilled workers or students; Work permits issued to certain holders of a Quebec Selection Certificate (“Certificat de selection du Québec – CSQ”) who reside in Québec. For a complete list of exemptions, click here. Before starting the complex process of obtaining an LMIA, we strongly suggest that you confirm that no exemption applies in that foreign worker’s case. True or false: Filing an application for permanent residence grants temporary Canadian residence status to the applicant False. Once a temporary resident has obtained a permit to remain in Canada, whether to visit, study or work, they must ensure that they maintain valid temporary resident status. To do so, the applicant must submit an application for extension or modification of their status before the expiry of their immigration documents. Applying for permanent residence does not have the direct effect of extending temporary residence status in Canada. In Quebec, temporary residents wishing to apply for permanent resident status must first obtain a CSQ, issued by the Ministère de l'Immigration, de la Francisation et de l'Intégration (MIFI). Once they obtain a CSQ, temporary residents can apply for permanent residence. Note: Holding a CSQ has no direct impact on the applicant's temporary resident status. They may be required to extend their temporary status in Canada if their permanent residence is not finalized before the expiry of their temporary status. In all cases, temporary residents are therefore required to extend their temporary status in Canada until they become permanent residents, if that is their objective. Your strategies for future recruitment Whether or not the staffing process for a vacant position has proven difficult, HR managers may find it beneficial to consider recruiting foreign candidates. A key factor not to be overlooked: verify whether an LMIA exemption applies. Foreign candidates may be responsible for obtaining their work permit and maintaining valid status in Canada, but HR managers can maximize candidates’ efforts if they are familiar with existing immigration programs. The professionals of our Business Immigration team are available to provide you with all necessary information and assist you in obtaining the necessary documents and permits.-->

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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. Progressive disciplinary measures do not apply to managers, who are rarely, if ever, suspended. HR Manager : Guidelines In a situation involving an executive, an HR manager will have to assess whether or not there is a “serious reason” for dismissal in light of the duties assigned to the executive and his or her responsibilities with respect to alleged actions or situation. For example, an executive who does not take into account the requests of the Board of Directors or his or her supervisor would be guilty of insubordination, which is a serious reason for dismissal, as is the inability to put into place an effective team. Given that executives have a high degree of discretion in how they carry out their duties and responsibilities, it is up to them to find ways to meet the company’s expectations and objectives, unless these are unrealistic or unreasonable in the circumstances. Nevertheless, executives must be notified of any dissatisfaction on the part of their employer when their conduct is inappropriate or does not meet stated expectations and objectives. It will then be up to them to make the necessary adjustments. The courts recognize these special rules for executives. The employer’s power to sanction Section 2094 of the Civil Code of Québec (C.C.Q.) provides that an employer may unilaterally resiliate an employee’s employment contract without notice for a “serious reason.” The courts consider that a serious reason is synonymous with dismissal for “good and sufficient cause,” as defined in jurisprudence or in section 124 of the Act respecting labour standards. Taking into account the specific context of executives is necessary. They have considerable latitude in the performance of their duties, they exercise control over many company employees, their responsibilities may influence the future of the company, and they generally have better working conditions. As a result, employers may be more demanding of executives, who [translation] “should not be treated as subordinate employees in disciplinary matters1.” Thus, the courts have recognized the following principles: Executives cannot “benefit” from so-called progressive discipline like other company employees, as a suspension would be illogical given the nature of their position. Disciplinary measures are intended to help employees understand the seriousness of a situation in order to be able to remedy it. This cannot reasonably be achieved because a suspended manager would suffer a loss of credibility with the teams that he or she supervises2. An employer must inform an executive of any dissatisfaction in terms of conduct or performance. “When the executive in question knows the reasons for the dissatisfaction, it is up to him or her to review his or her ways of doing things and meet senior management’s expectations. Senior management is not required to explain what needs to be changed, even more so when the executive has many years of experience.”3 A “serious reason” refers to an employee’s violation of one or more essential conditions of his or her employment contract, or improper conduct on his or her part. In Sirois c. O'Neil, the Court of Appeal considered that the dismissal of Microcell’s President and Chief Executive Officer was justified because, by his conduct, he had alienated the majority of the senior managers that he was responsible for. The Court considered that he had failed to fulfil the obligations inherent to the task entrusted to him, which involved direction, management and organization: [Translation] “He had been given a command position. It was his obligation to form a united, motivated and efficient team.  That was his main role.  He failed in his task. To illustrate the situation, the locomotive was unable to pull the cars4.” In order to determine whether the employer’s reasons for dismissal are “serious,” the various factors are assessed according to the circumstances, including the importance of the executive’s position, the nature of his or her employment and the seriousness of the complaints.  In Marc Van Den Bulcke c. Far-WicSystèmesLtée et GroupeSécuritéC.M. inc. the Superior Court held that: [Translation] [61] “Depending on the circumstances, negligence in the performance of duties, lack of self-discipline and performance below that agreed upon with the employer constitute serious reasons for dismissal without notice or compensation in lieu of notice5.” The Tribunal administratif du travail essentially applies the same principles as the courts. As an illustration, the Commission des relations du travail pointed out that it is up to an executive to know what conduct is incompatible with his or her obligations under the employment contract in Mommaerts c. Élopak Canada Inc.6: [Translation] [122] “(...) Moreover, when the latter is given considerable responsibilities, it becomes clear that he or she cannot be treated in the same way as an employee.  Indeed, the greater a person’s responsibilities in a company, the less need there is to warn them of the consequences of the actions that they take or fail to take. This is implicit to the function. [Translation] [123] “How can we believe that a suspended executive would have the same credibility with employees, fellow executives, suppliers and customers? The answer is obvious and favours a different application of the principle of gradation of sanctions.” Conclusion Although executives have privileges over other employees in an organization due to their status, this status can quickly render them vulnerable if they fail to live up to their responsibilities.   Valcourt c. Maison l'Intervalle, D.T.E. 95T-322 (S.C.), page 12 Yersh c. CRT et FCA Canada inc. (Chrysler), 2019 QCSC 740, para. 111-113 Bélanger c. Opéra de Québec, D.T.E. 98T-197 (S.C.), page 23. See also Laramée c. Poly-Actions Inc., D.T.E. 90T-923 (S.C.) and Houle et Fédération de l’U.P.A. de Sherbrooke, D.T.E. 84T-303 (A.T.) J.E.99-1343 (C.A.), page 29 2010 QCSC 6654, para. 61 2011 QCCRT 0375, para.122 and 123

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