Overview of hot topics in employment law including Bill 100 re consolidation of Labour Relations Board with other boards in Nova Scotia

1. McInnes Cooper
Employment Group Seminar
November 19, 2010

2. • What is the current state of the law on:
– Pre-employment Testing;
– Site Access Testing;
– Reasonable Grounds Testing;
– Post-Incident Testing;
– Random Testing;
– Return to Work Testing.
• Differences between Drug vs. Alcohol Testing:
– Dennis v. Eskasoni Band Council, [2008] C.H.R.D. No. 38
– Imperial Oil v. CEP, Local 900, [2009] O.J. No. 2037 (CA)
– Petro-Canada Lubricants Centre (Mississauga) v. CEP, Local 593, (Unreported,
August 27, 2009)
– Sterling Crane v. OE’s, Local 793, 2009 CarswellOnt. 8416
– Irving Pulp and Paper, Ltd. v. CEP, Local 30, 2010 NBQB 294
– Leonard v. Noble Drilling (Canada) Ltd., [2010] N.L.H.R.B.I.D. No. 1
Development in Workplace Substance Abuse
Prevention

3. • Duty to preserve (Rule 16.02)
– Readily identifiable electronic information
• Duty to Disclose
– By agreement
– Or, if not by agreement, in accordance with the default
provisions of the Rules
• Default Disclosure Obligations
– Can be very onerous on Employer in a wrongful
dismissal matter
Electronic Disclosure Obligations

4. The Duty to Accommodate
• Obligation to modify workplace to avoid discrimination based on any enumerated ground
• Where conflict arises between abilities and workplace standards, employer to adapt standards
• Exception if employer can show BFOR
• Only required to accommodate to the point of Undue Hardship
When Accommodations do not Work
1. Frustration of Contract
• How long has the employee been off work (at the time of dismissal) due to the disability?
• Is it unlikely the employee will be able to return to work in the foreseeable future?
2. Employee Fails to meet Obligations
• Obligation to facilitate employer’s access to relevant and necessary medical information
• Obligation to accept reasonable offers of accommodation
When Accommodations Don’t Work

5. What is the scope of the duty to accommodate
family caregiver responsibilities?
• The threshold test debate
– Campbell River
– Johnstone and new CNR cases
• Special consideration for split custody parents
• Tips for employers
Family Status Update

6. Pension Law Update: Bill C-501
• This enactment amends the Bankruptcy and Insolvency Act and the
Companies’ Creditors Arrangement Act to ensure that unfunded
pension plan liabilities are accorded the status of secure debts in
the event of bankruptcy proceedings.
• The enactment also amends the Canada Business Corporations
Act to provide an efficacious procedure by which former employees
of a bankrupt corporation who are owed amounts by the
corporation can proceed with claims against its directors.
• May 26, 2010 - 2nd reading of Bill C-501:
– Yeas: 144 - Nays: 111 - Total Votes: 255 - Paired: 0
• Referred to the Standing Committee on Industry, Science and
Technology — May 26, 2010.

7. Why Employers should be concerned
• loss of productivity
• damage to employer’s business interests
• insubordination
• harm to employer’s product
• liability for harm to others (vicarious liability)
• harassment (on duty/off duty)
Responsible use of social media in Employer investigations
• 100% permissible if employee allows you to be their ―friend‖
• Social networking sites can be used to:
– screen job candidates
– monitor an employer’s reputation
– discipline employees
– gather evidence/impeach witnesses
• Have a comprehensive social media policy
Social Media Issues in the Workplace

8. • Effective Date – January 15, 2010
• Graduated Penalties
– Employee/supervisor/employer
– Injury/no injury
• Range - $100 to $4,000
• Appeal Provisions
Occupational Health & Safety Administrative
Penalties

9. • Bill expected to be introduced in the House today!
• Labour Relations and Employment Board Act expected to consolidate: Labour
Standards Tribunal, Labour Relations Board, Construction Industry Panel, Civil
Service Employee Relations Board, Highway Workers’ Employee Relations Board,
Correctional Facilities Employee Relations Board, OH&S Appeal Panel, some
Teachers Collective Bargaining Act issues
• New Full-Time Chair – selection process underway. Likely not be current Chair of
Labour Board Peter Darby or Vice-Chair Bruce Archibald. 5 year term.
• NDP Government has said it is considering discretion re no panel
• Advantages: may be more efficient, Disadvantages of new board: depends on
Chair chosen. Also, will likely be less expertise in some matters, i.e. OH&S
• Alert – more substantive changes may be coming from NDP re Trade Union Act.
Employers need to be alert to implications. We will keep you informed.
New Labour and Employment Board

10. • Always consider tax implications early
• 2 key questions
 taxable vs. non-taxable to employee
 deductible vs. non-deductible to employer
• Personal damages generally not taxable
• Withholding rate vs. ultimate rate on filing tax return
• Deductibility of payments by employer
 must be for purpose of earning income (s. 9)
 must be reasonable in circumstances (s. 67)
Tax Treatment in Employment Law Settlements

11. Cross-Canada Labour & Employment Law Update