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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  • 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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  • 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 - 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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  • 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 be recalled that the SCC, in its decision of May 10, 2018, essentially declared certain provisions of the Pay Equity Act unconstitutional, stating that: Compensation adjustment, in the context of a pay equity audit conducted every five years, must be retroactive; The information to be included in the posting of the audit results was insufficient to allow employees to properly understand the process followed by the employer during the audit and did not include the date on which inequity manifested itself. In fact, the amendments to the Pay Equity Act go much further than most of the adjustments required by the Supreme Court of Canada, despite public consultations and numerous comments from employer groups in this regard. The following is a brief summary of the most significant amendments to the Pay Equity Act that your organization should review in order to quickly ascertain their repercussions: 1. Pay equity audit: Events leading to adjustments Compensation adjustments, following the pay equity audit process, will now have to be paid retroactively, back to the date of the event leading to the adjustment. The Pay Equity Act does not provide any clarification as to the notion of the event leading to the adjustment. In practice, the employer will therefore have to examine the events that have affected pay equity on a case-by-case basis. One can imagine that this amendment will not be easy to apply and that in the case of several events and adjustments, retroactivity will have to be applied on different dates. The retroactive payment required as a result of the pay equity audit will be payable in a lump sum. However, in some cases, for persons still employed by the employer, this lump sum may be spread over several payments, after consultation with the pay equity audit committee or the certified union representing employees, as the case may be. In addition, the employer must indicate the date of the event on the posting of the audit results. With respect to the date on which an employer must perform the pay equity audit, the Pay Equity Act now provides that the five (5) year time limit is established from the first posting and not the second posting, whether for an initial pay equity exercise (through a program or not) or a previous audit. 2. Pay equity audit: Participation of employees and certified associations Another major change is the introduction of an employee participation process in cases where the initial exercise was conducted by a committee or where there is at least one certified union representing employees. One of the consequences of this participation process is that the employer is obliged to provide information about the audit work, including written documents. The Pay Equity Act provides that persons with access to this information are required to maintain its confidentiality. The employer must also institute consultation measures so that the certified union or employees can ask questions and submit comments. The employer also has an obligation to allow employees to meet at the workplace to determine who will be designated in the participation process. In any event, employees are deemed to be at work for the purposes of this process. Finally, the employer will have to include questions or comments submitted as part of the participation process in the posting and show how they were considered in the audit. 3. Retention of documents Documents used to achieve pay equity or to perform the pay equity audit must now be kept for a period of six (6) years instead of five (5). In the case of a complaint or investigation, the employer is required to keep these documents until a final decision is made or until the investigation is closed. 4. End of posting notices Good news: In order to somewhat streamline the posting process, it will no longer be necessary for employers to issue a notice stating that a pay equity posting is in progress. 5. Creation of a complaint form The Commission des normes, de l'équité, de la santé et de la sécurité du travail ("CNESST") has created a complaint form that employees will have to use to file a complaint. This complaint must briefly state the reasons for which it is being filed. 6. Grouping complaints and conciliation The Pay Equity Act now provides the possibility for the CNESST to group complaints if they have the same juridical basis, are based on the same facts or raise the same points of law, or if circumstances permit. In addition, when more than one certified union represents employees in the same job class and one of these unions files a complaint, the process requires the appointment of a conciliator. In the case of a group of complaints or a complaint filed by a certified union in an enterprise, an employee who has also filed a complaint must receive a copy of the agreement that has been reached, and this employee may refuse to be bound by this agreement. In the event that no agreement has been reached, the Commission des normes, de l'équité, de la santé et de la sécurité du travail ("CNESST") must then determine the measures that must be taken to ensure that pay equity is achieved or maintained. Transitional measures Second postings related to a pay equity audit made prior to April 10, 2019, continue to be governed by the previous provisions of the Pay Equity Act. However, in the case of a first posting made before April 10, 2019, the second posting must include the date of each event leading to an adjustment, in accordance with the changes made: A period of 90 days (until July 9, 2019) is allowed to make this second posting. Note: Adjustments resulting from this second posting will be due as of the date of the event that generated these adjustments and will therefore be retroactive according to the ministère du Travail, de l’Emploi et de la Solidarité sociale. An employer that must issue a posting related to the pay equity audit by July 9, 2019, is not required to implement a participation process under the new provisions of the Pay Equity Act, even if a pay equity committee had been formed when pay equity was achieved or if a certified union represents all or some of the employees concerned. If an employer was authorized by the CNESST before February 12, 2019, to conduct its pay equity audit after April 10, 2019, and, if not for that authorization, the posting of the audit would have been done before April 10, 2019, then the previous provisions of the Pay Equity Act will apply. For pay equity audits to be completed by April 10, 2020, the new reference dates for calculating audit periods will only apply as of the next pay equity audit. What employers should do Right now? The Quebec government had to amend the Pay Equity Act to reflect the SCC's decision. These amendments will give rise to a number of practical difficulties that employers will have to anticipate. Pay equity audit Although the maintenance of pay equity must be audited every five years, we believe that employers will have to institute a mechanism to periodically identify major changes within the company that could lead to pay inequities for predominantly female job classes. It will be necessary to keep a history of these events in order to be able to determine which ones have led to adjustments, if any, when posting the audit results. In any case, a history of the work should be kept, whether or not it was done by a committee, in order to ensure a certain continuity within the enterprise in the event of a change of manager. Since it requires continuous monitoring of the payline to comply with legal requirements, the audit process itself will become less onerous. Employee participation With respect to employers now required to institute an employee participation process, it will also be prudent to have employees who participate in the audit process sign a confidentiality agreement and make them aware of the sensitive nature of the information to which they have access. Posting Employers will have to ensure adequate disclosure of information in the postings, which will enable better understanding of the audit results and potentially minimize the risk of complaints. Training and communication It will be essential to train managers on pay equity in order to ensure a good understanding of the legislation and avoid inconsistencies in the implementation of the audit process. In short, although pay equity is a value that has reached a point of consensus in our society, the fact remains that the law imposes a restrictive and formal framework that will have to be put in place. Our Labour and Employment team can provide you with valuable support in this exercise and we invite you to contact us.   Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17

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  • Changes in the workplace environment in Québec : What you need to know!

    On June 12, the Act respecting labour standards was amended to provide employees with more flexibility to favour a greater work-family/personal life balance. Among the changes that should be noted, requiring more or less significant adjustment by employers: Psychological and sexual harassment Family and annual leave Work hours 1. New requirement: adopting a policy for preventing psychological harassment and handling complaints  While a number of companies already have policies in place, beginning on January 1st , 2019, every employer will have to adopt and implement a policy for prevention of psychological harassment and the handling of such complaints. In addition, from now on a person who believes they are a victim of harassment has two years (unlike the former 90 days) from the last incident of harassment, to file a complaint with the Commission des normes, de l’équité, de la santé et de la sécurité du travail (“CNESST”) or to file a grievance under a collective agreement. 2. Increase in family and annual leave for employees As of January 1st , 2019, employees with three years of continuous service (instead of 5 years) will be eligible for three weeks of annual vacation. It should be noted that although this amendment is effective as of January 1, 2019, an employee will have to complete the reference year in which he/she will have accumulated three years of continuous service to benefit from a third week of annual vacation. In addition, as of January 1st, employees with 3 months of continuous service will be eligible for 2 days paid leave per year for family reasons or for illness. In all cases, notwithstanding the accumulated months of service, employees will continue to have 10 days of leave available per year for family reasons or for illness. 3. Work hours: reviewing the organization of work As of January 1st, 2019, employees will also be able to refuse to work when they have not been informed at least five days in advance of being required to do so, unless it is an extension of at most two hours of their shift or if the nature of their duties require them to be available on call. In order to allow employers some flexibility, the Act respecting labour standards now also allows for an agreement to be made in writing with an employee (non-unionized) for spreading work hours over more than one week, but at most four weeks, for the purposes of calculating overtime, without CNESST’s authorization being necessary. In a context of labour shortages, these changes in the workplace environment present an opportunity to increase the mobilization and retention of employees.

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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 it defines, but remains of interest to any Quebecois employer called upon to process a request for accommodation since it establishes a general framework for analyzing such requests on the basis of principles generally adopted by the courts. For almost three decades, Canadian and Quebecois courts have heard many disputes over the processing of requests for accommodations on religious grounds made by employees to their employers. The decisions rendered, in particular by the Supreme Court of Canada, have identified the main guidelines that must be observed when analyzing these requests.  However, these guidelines are established on fluid concepts like the existence of a sincere religious belief, the discriminatory effect of a measure, or the qualification of the constraint imposed by the accommodation. Debates surrounding the adoption of the Act, in October 2017, mainly focused on the issues of the religious neutrality of the State, such as the issue of openly providing and receiving services from any body associated with the State in any way. There has been much less focus on the utmost important provisions that require a method of analyzing accommodation requests made by staff members of these bodies. The Act implicitly codifies that guidelines adopted by the courts, not only in religious matters, but also regarding other grounds that may constitute an infringement of the right to equality recognized, in particular, by the Charter of Human Rights and Freedoms, RLRQ, c. C-12 (“Charter”). In this respect, the Act does not modify the state of the law, but specifies the terms of its application, although only in the area of the freedom of religion and its exercise.  On the other hand, the criteria adopted by it are sufficiently generic enough to be extended, by simple analogy, to different grounds, such as those for people with disabilities. Article 11 of the Act lists four criteria that should be considered when processing a request for accommodation: 1. that the request is serious; 2. that the accommodation is consistent with the right to equality of women and men and the right of every person to be treated without discrimination; 3. that the requested accommodation respects the principle of State religious neutrality; and    4. that the accommodation is reasonable in that it does not impose undue hardship with regard to, among other considerations, the   rights of others, public health and safety  , the proper operation of the body and the costs involved. By an unusual legislative process, Article 12 of the Act provides that the Minister of Justice must establish guidelines “in order to support bodies in their application of Article 11.” These guidelines were published on May 9, 20181 and provide a guide for the application of Article 11 of the Act as well as Article 13, which specifically addresses requests that involve an absence from work. They propose several definitions of notions and concepts involved. In particular, they illustrate several situations in which the requests may be made, as well as the circumstances that make it possible to assess whether the resulting constraints are excessive and justify not proceeding. They clearly state that any request for accommodation on religious grounds requires a contextual and personal evaluation, confirming that in this respect, it is essential to proceed on a case-by-case basis, despite the criticisms that this approach raises in some areas. It should be noted that the Act and its guidelines are explicit on the obligation of cooperation on the part of the person making the request for accommodation: failing that, this request may be dismissed. The Act does not contain, in a strict sense, penalty measures for non-compliance with its provisions.  However, since it is closely linked to the application of the Charter, the mechanisms provided by the Charter are accessible to those who feel dissatisfied by the decisions made by a reporting body, as will remain the arbitration process, as the case may be. The Act applies to public bodies, which it defines in a very broad manner in order to include, for example 2, public transit companies, early childhood centers, government regulated private institutions and intermediary resources in the health sector. One would think, however, that it will provide an informal reference on how to process accommodation requests, regardless of the work place. It would therefore be useful for managers of other entities to draw on the guidelines adopted when they must process accommodation requests and it would also be appropriate to consider the approaches proposed in the guidelines. The goal that fundamental rights be exercised equally is not just a State matter ; it is, above all, a social matter.   https://www.justice.gouv.qc.ca/fileadmin/user_upload/contenu/documents/Fr__francais_/centredoc/publications/ministere/dossiers/neutralite/PL62-lignes-FR.pdf (accessed June 21, 2018). A directory of the organizations concerned is available at: https://www.justice.gouv.qc.ca/fileadmin/user_upload/contenu/documents/Fr__francais_/centredoc/publications/ministere/dossiers/neutralite/Liste_organismes_PL62.pdf (accessed June 21, 2018).

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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 amend the Act respecting labour standards and other legislative provisions mainly to facilitate family-work balance], an important and relevant subject for a number of employers in Quebec. A number of employer groups, unions, and community groups were consulted regarding the improvements to be made to the Loi sur les normes du travail [Act respecting labour standards] (the “LNT”). However, this bill will potentially be the subject of revision and amendment before its adoption, if it is indeed adopted. Here are some of the key points from the major legislative amendments proposed by this bill: Liability of the director or officer of a corporation: In the context of a legal proceeding for violation of the LNT by a corporation or its representatives, the director or the officer of the corporation will be presumed to have personally committed the offence, unless proof of due diligence is established. This will furthermore be consistent with the legislative amendments regarding directors’ liability for health and safety at work. New developments regarding psychological harassment: Requirement to adopt a policy for preventing psychological harassment (“PH”) and handling complaints; With the goal of increased prevention, the LNT will explicitly state that words, actions or gestures of a sexual nature constitute psychological harassment, in accordance with the current interpretation of the courts; In cases of complaints of sexual misconduct, the Commission des normes, de l’équité, de la santé et de la sécurité du travail (“CNESST”) [Labour standards, pay equity and occupational health and safety commission] will be required to notify the Commission des droits de la personne et des droits de la jeunesse (“CDPDJ”) [Quebec human rights and youth commission] without delay. Intergenerational equity:  Improvements to existing protections against disparity in working conditions based on the hiring date of employees who carry out the same duties at the same institution: in addition to equity in salaries and distribution of annual leave, retirement plans and other social benefits are added to the list of working conditions that may not be the subject of disparity; - Note: employers having already instituted different social benefit and retirement plans according to the hiring date of employees (for example, defined benefit plans for older employees, and defined contribution plans for newer employees) will not be required to change those plans; Certain enhanced leave provisions, including: 3 weeks of annual vacation for employees with 3 years of continuous service instead of the 5 years currently provided for in the LNT; 26 weeks of absence in a twelve-month period protected by the LNT for employees who are victims of domestic violence; Compensation for the first two days of the absence of an employee with three months of continuous service due to organ or tissue donation, accident or being the victim of domestic violence or criminal offences: Possibly inspired by the Ontario law, all employees will be allowed ten days of absence per year to fulfill family obligations. The first two annual leave days that are taken will be paid; The 12-week period of absence already allowed will be expanded to 16 weeks over a period of 12 months, during which an employee’s absence is necessary to attend to a relative with health issues. This leave is increased to 36 weeks when the relative is an underage child; The bill proposes that an employee be allowed two paid days’ absence for a death or funeral (instead of one day), but provides that employees will only be entitled to three additional unpaid days (instead of four). We emphasize that the bill reformulates certain leave entitlements to ensure that an employee acting on behalf of a parent or as a “family caregiver” will be able to benefit from such entitlements and to be provided with employment protection for a longer period, in the event of an absence. Provisions regarding working hours: Employees will be allowed to refuse to work more than two hours beyond their typical daily work hours (instead of four hours); An employee will have the right to refuse to work if not informed five days in advance of the requirement to work, except when the nature of the employee’s duties requires him or her to remain available; Section 53 of the LNT will be amended so as to allow employers and employees to agree to staggered work hours for the purpose of calculating overtime without CNESST authorization being necessary; For placement agencies, specifically: Increased protection for workers hired through personnel placement agencies and foreign temporary workers. From now on, such agencies must hold a license in order to conduct their business activities; In addition, a personnel placement agency may not offer an employee a salary less than that accorded to employees of the client company who carry out the same duties solely because of that person’s employment status; The placement agency and client company will be jointly and severally liable for monetary obligations arising from the LNT. We will closely follow further developments of this bill and measures taken to adopt it, which, we reiterate, could be the subject of a several amendments. We anticipate that the provisions regarding intergenerational equity, as well as those regarding placement agencies will be the subject of lively parliamentary debate, given the major social issues which they are attempting to define. For the full version of the bill, click here.

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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”) governing pay equity audits and the payment of salary adjustments. In fact, since 2009, the Act requires that employers review their pay equity programs once every five years. However, it does not provide for retroactive payments if salary adjustments would otherwise be payable following such a review. Accordingly, employers do not compensate differences in wages that individuals who occupy positions in predominantly female job classes may have experienced during the five years preceding the audit. Furthermore, the posting of the results of the audit do not include the information necessary for employees to enforce their rights. The Court of Appeal ruled that these provisions of the Act are discriminatory and in violation of the Canadian Charter of Rights and Freedoms and the Charter of Human Rights and Freedoms given that they allow for the perpetuation of the inequality women in the workplace may have suffered prior to the audit by not retroactively compensating such inequality. Indeed, according to the Court of Appeal, the Act in its current form essentially permits the discrimination of employees in respect of their salary for a period of up to five years. In accordance with this decision, the Québec Government is required to make legislative amendments no later than next year and during that year long period, the existing provisions will continue to apply. Should the Government fail to amend the legislation in time, sections 76.3 and 76.5 will become inoperative. The Québec Government has 60 days to seek leave to appeal this decision before the Supreme Court of Canada. It will undoubtedly be important to closely follow this matter. Québec (Procureure générale) c. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2016 QCCA 1659. CQLR, c. E-12.001.

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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 regarding the grievance arbitrator’s jurisdiction in disputes regarding the interpretation and application of the provisions of collective agreements as they pertain to an employee’s return to work following an industrial accident or occupational disease, within the meaning of the Act Respecting Industrial Accidents and Occupational Diseases (“AIAOD”).2 In this case, the Court had to consider the following issues: can the parties to a collective agreement provide employees with more beneficial conditions than those contained in the AIAOD? And if so, who has jurisdiction to hear and render decisions regarding disagreements arising from such contractual provisions? Finally, the Court had to determine whether the collective agreement between the parties in this case contained a provision which offers greater protection than the statute. CONTEXT OF THE McGILL CASE An employee suffered from a permanent functional disability following an employment injury. The Commission de la santé et de la sécurité du travail3 (“CSST”) found that that disability prevented him from continuing to work in the same position he held prior to the injury, and therefore identified suitable alternative employment elsewhere in the labour market, since such employment was not available with his employer. After temporarily assigning the employee to light work, the employer terminated his employment nearly five years after the CSST had identified suitable alternative employment on the grounds that such employment still did not exist within the employer’s organization. The collective agreement between the parties also provided that [TRANSLATION] “where an employee becomes able to carry on his employment again, but has a permanent functional disability that prevents him from continuing to hold his previous employment, he shall be reassigned, without a posting, to another position suitable for his health condition, based on the available positions needing to be filled.” The employee filed grievances contesting the employer’s decision to terminate his employment claiming that, notwithstanding the CSST’s finding that suitable employment did not exist within the employer’s organization, he should be offered another position. The employer raised an objection to the arbitrator’s jurisdiction, arguing that [TRANSLATION] “where the worker was the victim of an industrial accident leading to a permanent functional disability, the arbitrator does not have jurisdiction over the worker’s ability to carry on employment with his employer.”4 The parties agreed to deal with this issue as a preliminary matter and the arbitrator held that the jurisdiction conferred on him by section 244 of the AIAOD to resolve the terms of the return to work [TRANSLATION] “does not include the jurisdiction to decide on the employee’s ability to carry on employment following an employment injury — an issue that is reserved for the CSST and the Commission des lésions professionnelles (“CLP”) on appeal.”5 Therefore, he allowed the employer’s objection and declined jurisdiction, without ruling on the merits of the grievances which, among other things, contested the employee’s termination. The union sought judicial review of this decision to the Superior Court, which quashed the arbitrator’s award and referred the grievances back to him for a ruling on the merits.6 The employer appealed this judgment to the Québec Court of Appeal, which affirmed the decision of the Superior Court and dismissed the employer’s appeal. DECISION OF THE COURT OF APPEAL Like the Superior Court, the Court of Appeal found that section 4 of the AIAOD permits the parties to a collective agreement to provide more beneficial provisions for employees than those set out in statute. Section 244 of the AIAOD does not limit the possibility of doing so. Therefore, the grievance arbitrator has exclusive jurisdiction to determine whether an agreement contains a clause which confers greater benefits than those set out in the AIAOD and, if so, to interpret and apply such a clause.7 For instance, the Court noted that a collective agreement could provide for more beneficial provisions which would: Extend the time period for exercising the right to return to work set out at section 240 of the AIAOD, thereby requiring the employer to reinstate the employee to his pre-injury employment or suitable employment, beyond the period prescribed by statute;8; Require the employer to offer or create suitable employment within its organization, if no such employment exists or is available; Require the employer to offer an employee who is incapable of resuming his pre-injury employment another position which is consistent with his residual abilities, even if such a position does not constitute “suitable employment” within the meaning of the AIAOD.9 The Court noted however that in exercising his jurisdiction the arbitrator remains bound by the findings made by the CSST or the CLP, where applicable, particularly as they pertain to the existence of an employment injury, the employee’s ability to resume his pre-injury employment, his functional disability, and what constitutes suitable employment.10 These findings are the background against which the arbitration award must be made. On the other hand, if the arbitrator concludes that the collective agreement does not provide for any additional benefits to the regime created by the AIAOD, he cannot claim jurisdiction to impose additional obligations on the employer, nor can an employee who is exercising the rights conferred on him by statute demand any greater rights. In such a case, the parties are and remain bound by the findings of the CSST and the CLP, where applicable.11 COMMENTS To summarize, according to the McGill decision, the grievance arbitrator has exclusive jurisdiction, first to determine whether a collective agreement confers more benefits on an employee than those provided for in the AIAOD and, if that is the case, to interpret and apply those provisions. In exercising this jurisdiction, the grievance arbitrator cannot reject, refute or dispute the findings made by the CSST or the CLP, and his intervention must be within the boundaries of the framework created by these organizations in accordance with the AIAOD. This decision therefore dispels the ambiguity12 which could have previously arisen, particularly from such decisions as Société des établissements de plein air du Québec v. Syndicat de la fonction publique du Québec13 and Syndicat canadien des communications, de l’énergie et du papier, section locale 427 v. Tembec, usine de Matane14, in which the courts upheld the decisions of grievance arbitrators granting the employer’s preliminary objections on the grounds that the arbitrators lacked the jurisdiction to call into question the decisions rendered by the CSST and the CLP in accordance with their exclusive jurisdiction. We note that the collective agreements in these two cases did not contain more beneficial provisions than the AIAOD on the right to return to work.15 Time will tell whether the Court of Appeal’s judgment in the McGill case has an impact on the negotiation of clauses in collective agreements providing for more beneficial terms and conditions than those contained in the AIAOD. However, in our view, disputes over the return to work of employees following an industrial accident or occupational disease must also be assessed from the perspective of the Court of Appeal’s judgment in the case of Commission de la santé et de la sécurité du travail v. Caron,16 which held that where an employee exercises his right to return to work and seeks suitable employment, the employer must engage in a process of reasonable accommodation in accordance with the Charter of Human Rights and Freedoms,17 up to the point of undue hardship.   2015 QCCA 1943. As of January 4, 2016, no application for leave to appeal to the Supreme Court of Canada had been filed. We would also like to draw your attention to the following decisions rendered by the Court of Appeal on the same subject: Syndicat des cols bleus regroupés de Montréal, section locale 301 v. Beaconsfield (Ville de), 2015 QCCA 1958, and Montréal-Est (Ville de) v. Syndicat des cols bleus regroupés de Montréal, section locale 301, 2015 QCCA 1957. CQLR c A-3.001. Since the coming into force of the 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 Tribunal, S.Q. 2015, c. 15, on January 1, 2016, the CSST has been replaced by the “Commission des normes, de l’équité, de la santé et de la sécurité du travail” (“CNESST”) and the CLP has been replaced by the “Tribunal administratif du travail” (“TAT”). Comments at para 56 of the arbitration award (D.T.E. 2011T-582), reproduced by the Court of Appeal in the McGill decision, at para 10. Para 103 of the arbitration award, reproduced by the Court of Appeal at para 15. 2013 QCCS 1175. McGill decision, para 95. The time period provided for at section 240 of the AIAOD is either one or two years, depending on the circumstances. See, in particular, para 51. McGill decision, paras 73 and 74. Ibid., para 78. Ibid., para. 20. 2009 QCCA 329. 2012 QCCA 179. As noted by the Court of Appeal in the McGill decision, para 60. 2015 QCCA 1048. In this regard, we refer you to our previous publication on this decision, which you can consult by clicking here. CQLR c C-12.

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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 competition which are contained in an agreement providing for the sale of assets but which, incidentally, includes an employment contract.Following a detailed analysis of the wording of the asset sale agreement and the circumstances surrounding its negotiation, the Supreme Court confirms that the clauses in dispute are not related to an employment contract but rather to a sale agreement. According to the Court, the essence of the principal obligations set out in the primary contract do not relate to an employment relationship insofar as such a relationship is merely incidental to the sale agreement.But that is not all: Justice Wagner, writing for the Court, confirms that in order for a non-solicitation clause negotiated as part as an asset sale agreement to be valid, it does not need to be limited in its territorial application.Here are his reasons:  The object of a non-solicitation clause is narrower than that of a non-competition clause. The non-solicitation clause creates obligations which are less restrictive than those created by a non-competition clause. While not specified, the territorial scope of the clause can easily be circumscribed by conducting an analysis of the target customers. The modern economy and new technologies no longer allow for the geographic limitation of a customer base.Accordingly, a non-solicitation clause contained in an asset sale agreement cannot be automatically invalidated due to the absence of a territorial limitation.This decision will be assessed further in an upcoming publication._________________________________________  1 2013 S.C.R. 45.

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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 around which the employer must tailor its actions, establishing a balance between the necessity of collecting some of the applicant’s personal information and the applicant’s right not to be discriminated against in the course of his or her employment.In Syndicat des infirmières, inhalothérapeutes, infirmières auxiliaires du Coeur du Québec (SIIIAC Q) v. Centre hospitalier régional de Trois-Rivières2, the Court of Appeal addresses this issue by upholding the decision of arbitrator Michel Bolduc3. This decision of the Court of Appeal reiterates the principles which must guide both applicants and employers with regards to the collection of personal information during the pre-hiring process.THE FACTSThe employee previously held a position as a practical nurse at the Centre hospitalier régional de Trois-Rivières ( CHRTR ) from 1987 to 1994. He left his position in 1994 to continue his studies. It is at this time that he struggled with depression and alcohol and gambling addictions. In February 2005, after undergoing treatment to address his problems, he applied for a position as a practical nurse at the CHRTR. While completing the pre-hiring medical questionnaire, he failed to answer a question relating to his psychiatric history.A little over a year after being hired by the CHRTR, the employee was placed on leave to undergo examinations for chronic enteritis. He filed a claim to obtain wage loss insurance benefits in order to extend his leave, this time, for depression and physical illness. The employer subsequently required the employee to undergo an examination by a physician from its occupational health and safety department. After concluding the medical assessment and reviewing the employee’s past medical history, the designated physician suspected bipolar disorder and extended the employee’s leave by six weeks. In the circumstances, the physician determined it would be appropriate to obtain the psychiatric medical file of the employee.The employee’s psychiatric medical file revealed a history of depression and adaptation disorder with depressed moods for which the employee had been prescribed medication prior to February 2005. At the time the employee applied for employment as a practical nurse, he was in the midst of withdrawal from his medication. In February 2007, in light of the full extent of the employee’s medical history, the physician designated by the employer concluded that the employee presented a high risk of absenteeism and was not “medically stable” at the time of hiring 4. Noting that none of the employee’s medical history had been disclosed in the pre-hiring questionnaire, the employer dismissed the employee on March 12, 2007, on the grounds that he made false declarations.The union contested the dismissal on the grounds that the pre-hiring questionnaire violated the employee’s fundamental rights under the Charter of Human Rights and Freedoms5 (the “Charter”). According to the union, the employee should not be sanctioned for failing to answer discriminatory questions6.The employer’s principle submissions were: (i) the questions asked of the employee were justified in light of the nature of the position sought; (ii) the union had not proved an abusive use of the questionnaire; (iii) it had the right and the duty to verify that applicants possess the qualifications necessary to safely perform the tasks entrusted to them.According to the employer, the very nature of its mission requires it to be aware of the health of its employees in order to ensure the health of patients. The employer’s informed consent which was necessary for the formation of the employment contract had been vitiated by the employee’s false declarations.Arbitrator Bolduc concluded that as a result of his false declarations, the employee misled the employer. The employer’s consent had been vitiated because when hiring an employee, the employer must be in a position to establish that the applicant is able to perform his duties in an adequate and consistent manner. He therefore dismissed the grievance. The Superior Court, sitting in judicial review of this decision, concluded that the arbitrator’s decision was reasonable7.ANALYSIS OF COURT OF APPEAL'S DECISIONIn any contract, the parties each have an obligation to disclose all relevant information in order to ensure the exchange of free and informed consent in the context of their contractual relationship. For the Court of Appeal, the employee had the obligation to act in good faith in answering the pre-hiring questionnaire.However, an employee’s false declaration does not automatically result in the capital punishment that is dismissal. The justification of one’s dismissal for having made false declarations remains subject to the following , criteria developed by arbitral case law and confirmed by the Court of Appeal:1) the subject of the false declaration;2) the relation between the withheld information and the employee’s position;3) the effect of the false declaration on the employer’s consent;4) the voluntary nature of the false declaration8.These criteria are not cumulative and any one of them may be enough to justify dismissal. However, for a false declaration in a pre-hiring medical questionnaire to serve as a basis for dismissal, the questions which the employee failed to answer must be compliant with the Charter.In fact, section 18.1 of the Charter prohibits, at the pre-hiring stage, any attempt to gain information regarding any ground mentioned in section 10, including one’s race, colour, sex, pregnancy, sexual orientation, disability or the use of any means to mitigate the effects of one’s disability.Indeed, a person’s health is linked to the concept of disability set out at section 10 of the Charter. Incidentally, any question on this subject will, at first glance, constitute a discriminatory practice.However, this does not mean that an employer is not justified in collecting information on this subject. In this judgment, the Court of Appeal clarifies this position, reminding us that in such circumstances, one must demonstrate on a preponderance of probabilities that the information sought regarding the applicant’s health creates a distinction or preference based on the qualifications or skills required for the employment sought9, as permitted under section 20 of the Charter.In relying on the criteria developed by the Supreme Court10 with respect to “justified professional requirements”, the Court of Appeal teaches us that to determine whether a given qualification or skill is required by the position in accordance with section 20 of the Charter, it is necessary to evaluate the goals and objectives sought by the employer and the rational relationship they bear with the objective requirements of the position11.This is why, in the words of the Court of Appeal, [translation] “[...] the right of the employer to obtain information from the applicant must be assessed on the basis of the position sought and the tasks to be accomplished.”In the case under review, the employee had proved prima facie discrimination under section 18.1 of the Charter, but the employer succeeded in establishing the direct relationship between the questions asked and the position of practical nurse. In the absence of truthful answers to the questions asked of the employee, the employer could not adequately assess the applicant’s qualifications.Therefore, , to the extent that the collection of information is legitimate, a false declaration by an applicant on this subject may result in dismissal without it constituting a discriminatory measure.RECENT APPLICATION OF THIS DECISION IN ARBITRAL CASE LAWWithout referring directly to it, arbitrator Mtre Maureen Flynn followed the Court of Appeal’s approach in Syndicat des chauffeurs d’autobus, opérateurs de métro et employés des services connexes au transport de la STM, section locale 1983- S.C.F.P. et La STM12, rendered on April 17th, 2013.The arbitrator had to determine whether the withholding of information by the employee regarding the fact that he had, in the past, been the victim of an industrial accident and had had a herniated disk, had the effect of vitiating the employer’s consent at the hiring stage. She placed much emphasis on the fact that, by failing to disclose this information which was: 1 ) directly related to the employment, and: 2 ) of sufficient importance that it may have had an effect on the decision to hire him. The employee made a false declaration while fully aware of the consequences.CONCLUSION AND COMMENTSAlthough an employer is entitled to ask the questions necessary to guide its assessment of an applicant’s ability to perform the duties of his or her employment and to make an informed hiring decision13, the applicant is entitled to a hiring process free from discrimination.The collection of information pertaining to the health and history of an applicant must not be used to automatically exclude anyone who is not in a state of perfect health nor should it be used to discriminate in the hiring process. This collection of information must be carried out by the employer for legitimate purposes.However, an applicant must demonstrate good faith when responding to the employer’s questions. He or she cannot, when in doubt, hide information which may harm his or her application in order to claim the protection afforded to him or her by the Charter, once the subterfuge is discovered, to justify his or her false statements14.An applicant must rely on the good faith of the employer. Remedies under the Charter remain available in cases of abuse, but the Charter is not a cure-all which an applicant may subsequently rely on to justify false statements regarding things the employer had a right to know.The employer must restrict its collection of information to what is necessary to proceed with an informed assessment of the individual’s application, without abusing the process. It must rely on the applicant’s good faith, keeping in mind that any false statements pertaining to an essential part of the assessment of the required qualifications for the position being filled can ultimately be sanctioned by a justified dismissal._________________________________________1 Quote from Mr. Bernard Tapie from his hearing.2 Syndicat des infirmières, inhalothérapeutes, infirmières auxiliaires du Coeur du Québec (SIIIACQ) v. Centre hospitalier régional de Trois-Rivières, 2012 QCCA 1867 (C.A.) (application for leave to appeal to the Supreme Court of Canada denied on March 21, 2013, 2013 CanLII 14333 (S.C.C.)).3 Syndicat des infirmières, inhalothérapeutes, infirmières auxiliaires du Coeur du Québec (SIIIACQ) et Centre hospitalier régional de Trois-Rivières, AZ 50665143 (T.A.).4 Id., at par. 9.5 R.S.Q., c. C-12.6 Supra, note 2, at par. 36.7 Syndicat des infirmières, inhalothérapeutes, infirmières auxiliaires du Coeur du Québec (SIIIACQ) v. Centre hospitalier régional de Trois-Rivières, 2010 QCCS 5311 (C.S.).8 Id., at par. 60.9 Id., at par. 67.10 British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3.11 Id.; also see: Hôpital général juif Sir Mortimer B. Davis v. Commission des droits de la personne et des droits de la jeunesse, 2010 QCCA 172 (C.A.) (application for leave to appeal to the Supreme Court of Canada denied on July 8, 2010 (no 33631)); Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R.. 279.12 2013 CanLII 26264 (QC SA T).13 Syndicat des infirmières, inhalothérapeutes, infirmières auxiliaires du Coeur du Québec ( SIIIACQ) v. Centre hospitalier régional de Trois-Rivières, supra., note 3, at par. 77.14 Id., at par. 78.

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