Attention Shoppers: Employment Standards Audits Target the Retail Sector

The Ontario Ministry of Labour recently announced a push to conduct audits of retailers, including grocery stores, gas stations, and shopping malls, between October and December 2013 for compliance with the Employment Standards Act, 2000 (ESA). In particular, the audits will focus on compliance with:

  • Public Holiday Pay
  • Overtime Pay
  • Hours of Work
  • Vacation Pay
  • Poster placement

The Ministry of Labour has invested an additional $3 million in an effort to double the number of Employment Standards Officers performing audits.  As part of this blitz, Officers may proactively visit businesses even if no complaint has been filed.  Officers may – but are not required to - provide advance notice of their inspection.

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Rules and Regulations Governing the Hiring of Foreign Workers Tightening

Canada has always been a country characterized by immigration.  While there has been a consistently steady stream of individuals coming from all over the world, what have changed are the avenues available to enter the country.

Increasingly immigrants are likely to have first worked in Canada under a temporary work permit.  This is because the immigration system is becoming an increasingly employer-driven system aimed first and foremost at alleviating both cyclical and chronic labour shortages.    

Temporary foreign workers enter Canada through the country’s Temporary Foreign Worker Program (the “TFWP”).  As I have noted on several occasions, the TFWP has expanded exponentially over the last decade.  Specifically, the number of temporary foreign workers in Canada has increased from approximately 60,000 to over 250,000 per year.  The growth has been so significant that the number of temporary foreign workers has surpassed the number of economic permanent residents entering Canada per year. 

At the same time, the rules and regulations governing the entry of temporary workers in Canada have tightened significantly.  This has meant that employers are increasingly liable both for the process followed in hiring foreign workers and for the manner in which they are treated while in Canada. 

Human Resources and Skills Development Canada (“HRSDC”) has just announced new rules governing the recruitment of foreigners.  This includes lengthened recruitment times, a requirement for employers to broaden their search for workers, as well as the imposition of new government fees associated with a request for a Labour Market Opinion.

In addition to the regulatory changes, employers are also increasingly under scrutiny with respect to the manner in which they treat foreign workers, both in their hiring and employment.  This includes various factors including wages, hours of work, as well as workplace health and safety.  Not only are employers expected to promise to adhere to the conditions of employment agreed to at the time of the hiring of a foreigner, they will also be at risk of an audit by HRSDC and/or Immigration Canada.  

The new rules and regulations should not be discouraging to employers hoping to hire foreigners.  Rather, these changes are part of a natural evolution of a program which has grown by leaps and bounds.  Canada will continue to facilitate the entry of thousands of temporary foreign workers, if for no other reason than the fact that there continue to be chronic shortages of skilled labour in various aspects of the country. 

Given the changes, employers will be in an excellent position by implementing a formal process for the recruitment, hiring, as well as the employment of temporary foreign workers.  Doing so can go a long way to ensure that the hiring of foreign workers is carried out in a timely manner to reduce the chance of interference on the part of HRSDC or Immigration Canada.       

HRTO Takes More Measured Approach to Reinstatement and Lost Wages

In March of this year, we wrote about an alarming decision in which the Human Rights Tribunal of Ontario reinstated an employee of the Hamilton-Wentworth Disctrict School Board and ordered the employer to pay nine and a half years of back wages. Reinstatement is normally considered to be a particularly extraordinary remedy in human rights cases, and is rarely ordered. Furthermore, the unusually lengthy period of wage loss awarded was well out of line with the Tribunal’s normal practice with respect to lost wages.

In a more measured decision issued more recently, Macan v. Strongco, the Tribunal recognized that reinstatement is an extraordinary remedy that is “rarely requested or ordered in human rights cases.” The Tribunal narrowed the circumstances in which reinstatement should be ordered to where it is a unionized employee with a large employer, or where the individual was employed in an unskilled position. Similarly, the Tribunal said that where there were other, non-discriminatory reasons for the termination, reinstatement is not appropriate.

The Tribunal in Macon also took a more realistic approach to lost wages. It awarded the Applicant eight months of lost wages, ending at the point at which the Applicant started attending college following her termination.

The Tribunal’s comments about reinstatement are encouraging for employers in the wake of the Hamilton-Wentworth decision. Reinstatement is an extraordinary remedy that is only available under certain statutory schemes, and is rarely ordered because of the practical difficulties for employers in bringing back employee who have been out of the workplace for several years, possibly displacing another employee. The measured approach taken in Macon is the approach that should be taken in all cases.

Duty to Mitigate Includes Obligation to Accept Recall from Layoff

At the end of 2011, we wrote about the case of Maclean v. The Raywal Limited Partnership. In that case, the Superior Court confirmed that an temporary layoff by an employer constitutes a termination of employment under the common law. Although a recent Superior Court case has questioned this principle (which we will write about shortly), McLean confirmed a commonly held view in this regard.

One interesting issue in the McLean case, which was not really adequately dealt with in the trial level decision, is what is the effect of a recall notice, if the employment relationship was terminated by the start of the layoff. In McLean, the employee received a recall notice at the time of the layoff, effective some eight months after the layoff date. She did not return to work on the recall date, even though she received a letter after seven months confirming her recall date. This offer was confirmed verbally by the President of the company at a golf tournament one day before the mediation in the court action.

The employer argued that even if the original layoff constituted a termination, the employee had an obligation to return to work in order to mitigate the damages arising from the termination. 

The trial judge disagreed, and awarded 10 months of lost income. Curiously, although the trial judge said that refusing the job offer made at the golf tournament did not indicate a failure to mitigate, he did not deal at all with the fact that there was a recall date specifically set out at the time of termination, or explain why the employee should not have taken that offer.

The employer appealed, and the appeal was partially granted. In a very brief decision, the Ontario Court of Appeal said that the failure to answer the recall notice constituted a failure to mitigate her damages. Consequently, no lost income should be awarded for the period after the recall notice was effective.  In making this decision, the Court noted that there was no evidence of a poisoned workplace, and the mere fact that there was ongoing litigation did not mean the employee should not return to work.

There are a number of cases now dealing with when an employee has to mitigate their damages by returning to work for their previous employer, most notably the Supreme Court’s decision in Evans v. Teamsters Local Union No. 31. The decision in McLean is helpful to employers in extending the circumstances in which an employee should act reasonably and accept an offer to return to work from the employer who has terminated them.

Terminated Transgendered Employee Awarded $22,000 and 8 Months Back Pay by HRTO

The Ontario legislature added “gender identity” and “gender expression” as prohibited grounds of discrimination to the Human Rights Code (the “Code”) in the summer of 2012. The Human Rights Tribunal of Ontario (“HRTO”) had previously recognized discrimination against transgendered-people to be prohibited on the basis of “sex”, thus the Code amendments were seen by many to be largely symbolic – a formal acknowledgment of the challenges faced by one of the most marginalized groups in society. Now, one of the first decisions to consider accommodation of “gender identity” has been released.

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Potential Impact of the Ontario Budget on Pension Law

Last week Thursday, the Liberal government in Ontario released its proposed budget. While we’re still waiting to hear from the NDP as to whether their support will ensure its passage, we have prepared a brief summary on its potential impact on pension law in Ontario should it ultimately be passed.

Last November, we wrote about the case of Carrigan v. Carrigan Estate, in which the Court of Appeal overturned the commonly understood interpretation of the death-benefit entitlement provisions of the Pension Benefits Act, in a way that potentially disentitles many common law couples from their spouses’ pensions. In this budget, the government has committed to reviewing this case and its potential effects in order to determine whether amendments to the PBA would be appropriate.

In a significant shift from the position taken by the McGuinty government, this budget proposes that Ontario consult with interested parties about how Pooled Registered Pension Plans could be implemented in Ontario. Other provinces had previously committed to implementing these plans, which have been proposed by the federal government as a way to increase retirements savings. Under McGuinty, the position of the government had been that Ontario would not implement these plans, but it seems the Wynn government does not want to be left behind as other provinces do implement them. Even if the plans were implemented, participation would be voluntary.

Previous budgets have also committed the government to developing a framework for single employer Target Benefit Plans in collectively bargained workforces. These plans vary employer and employee contributions in an attempt to amass enough assets to pay out a target (but not guaranteed) benefit upon retirement. This budget reiterates the commitment to making rules and regulations to allow employers to introduce these plans, but does not comment on whether these plans may eventually be available for non-unionized workplaces.

Finally, the budget reiterates previous announcements relating to public sector pensions, but does not add nothing new in this area. It continues a previous commitment to move public sector pension plans away from fragmented Single Employer Pension Plans, and to move all existing SEPPs towards a 50% employee contribution ratio over the next 5 years.

If you have any questions on how this proposed budget may affect pension law in Ontario, please do not hesitate to contact me directly.

Human Rights and Temporary Foreign Workers: Tribunal Reviewing Death of Foreigner

The Ontario Human Rights Tribunal is in the midst of hearing a case involving a Jamaican citizen who died while working in Canada as a temporary agricultural worker.   

The worker died in August 2002 after a farm skid fell on him.  At the time of his death, he was working for a tobacco farm just outside of Brantford, Ontario.   

Although local police investigated the circumstances surrounding the worker's death, the family of the deceased worker believes that there remain many unanswered questions.  The family accordingly requested that a coroner’s inquest into his death be conducted.  This request was refused. 

The family claims that the refusal to conduct an inquest violates the Ontario Human Rights Code because it disproportionately discriminates against seasonal agricultural workers, a large number of whom are foreigners.  The family specifically argues that a coroner's inquest should be mandatory in deaths involving seasonsal agricultural workers.  Currently coroner inquests are only mandatory in cases involving deaths in construction, mining, or quarry work. 

The Toronto-based non-profit group Justice for Migrant Workers is representing the deceased worker’s family. They believe temporary foreign workers are not accorded the same protection as Canadians and permanent residents when it comes to employment standards and health and safety protection. They also claim that temporary foreign worker live in Canada in a precarious state with significantly less security than local workers.

According to Human Resources and Skills Development Canada 14 agricultural workers died at work between 1996 and 2002. 

We will provide updates to this case as the hearing continues and more information becomes available.

For further information please do not hesitate to contact the writer at or 416-7774175.

Can you get human rights damages when you haven't been discriminated against?

On April 18, 2013, the Human Rights Tribunal of Ontario released a decision that will be alarming to employers across the province. In Morgan v. Herman Miller Canada Inc., the applicant, Aldeen Morgan, filed an application against his previous employer, Herman Miller Canada Inc., and the President of Workplace Resources, Corrado Fermo, alleging discrimination and harassment based on colour, and reprisal.

The applicant had worked with Herman Miller Canada Inc. from July 3, 2007 to March 10, 2010 as an Installation Scheduler. His employment was terminated by the employer for a variety of work-related issues.

In his Application, the Applicant alleged that he was discriminated against in the following ways:

  • he was assigned menial and demeaning tasks such as breaking down boxes or taking the garbage to the basement;
  • he was inappropriately disciplined and subsequently ignored for having disseminated confidential information to contractors;
  • he was the subject of a client complaint that the applicant’s team looked “like they were picked up at the corner of Queen and Sherbourne;” and
  • he was terminated for complaining about the mistreatment he received in the workplace.

The Tribunal found that the applicant had failed to establish that he was discriminated against in any way. He was not allocated menial and demeaning job tasks, he was not disciplined, and he was not the subject of client complaints on the basis of his colour.

However, the Tribunal did conclude that Herman Miller had not diligently followed up on his (unfounded) complaint that he was being discriminated against in the workplace. It also found that the Applicant’s employment was terminated in part because he had raised issues of harassment and threatened to sue the company. This was said to be an act of reprisal against the Applicant.

The Tribunal awarded the applicant $55,799.70 in damages for lost wages (representing 14 months of lost wages) and $15,000 in general damages for injury to dignity, feelings and self-respect.

Herman Miller Canada Inc. was also ordered to retain a human rights expert to review and revise its human rights policies and train any employee with the rank of management or higher with respect to human rights. Finally, Mr. Fermo was ordered to complete the “Human Rights 101 eLearning Module” prepared by the Ontario Human Rights Commission, even though he was no longer employed by Herman Miller Canada Inc.

This decision is disturbing in that it awards significant human rights damages to an individual who was not discriminated against in any way. Employers will be surprised to learn that a failure to seriously investigate an unfounded allegation of discrimination could result in an award of almost a year and a half’s salary for an employee. The award of general damages seems to mean that the Tribunal accepted that a failure to investigate an unfounded complaint could somehow cause injury to the  complainant's "dignity, feelings and sef-respect."

This case should remind employers of their obligation to take complaints of discrimination seriously, investigate the complaint, and document the findings.  A failure to do so may have significant consequences, even where it turns out there was nothing to the complaint in the first place.

US Safety Manager Handed 6 Year + Jail Sentence

Several news agencies, including the World Nuclear News, reported last week that a 78 month jail sentence has been received by Walter Cardin, a former Safety Manager, for deliberately falsifying workplace injury records.  Cardin was previously employed by a subsidiary of Shaw Group, Stone and Webster Construction.  Stone and Webster had been contracted by the Tennessee Valley Authority (TVA), a US government corporation, to provide maintenance and repair services at two nuclear sites. Services included construction work for a restart of a facility.  Reportedly, Cardin provided false and misleading information about worker injuries at the facilities, which was then used by Stone and Webster to collect safety bonuses of over $2.5 million from the TVA. 

The corporation repaid the bonuses, and then some, to the US government as part of a civil settlement over the false claims and contract fraud in early 2009.  Cardin proceeded to trial. 

Cardin was convicted after a November 2012 jury trial of falsifying records. The court found that more than 80 injuries, involving broken bones, torn ligaments, and other injuries were not properly reported and employees were denied medical treatment or received delayed medical treatment as a result of the Safety Manager’s actions.  He reportedly denied intentionally misclassifying the injuries and said he did not know safety bonuses were tied to his injury reports.  Investigators found emails confirming the contrary.  The Safety Manger’s sentence took into account a finding that he had obstructed the course of justice in the trial by denying his actions, despite evidence ot the contrary.  Prosecutors commented after the sentencing that the Safety Manager’s practices:

  • affected the safety of the work environment of nuclear sites,
  • resulted in employees becoming more reluctant to report injuries, employers failing to address safety issues at work sites, and
  • employees working through medical conditions that created risks of additional injuries to themselves and others.


Canada's Temporary Foreign Worker Program: Not so temporary after all

Canada’s Temporary Foreign Worker Program (TFWP) has come under serious criticism during the past several weeks. 

The program is being charged with taking jobs away from Canadians and permanent residents, leaving locals unemployed while depressing the wage levels of those who are employed.   The criticism of the program has been both severe and swift.  The pressure has been so great that the federal government has just this week proposed various reforms to the program.   

Throughout the latest firestorm there has not been enough debate of substance. Rather, and unfortunately, the bulk of the discussion on this issue has consisted of overreaching claims regarding the apparent damage this program is doing to Canada’s labour market and the impact it has on foreigners. 

While this can be partly explained by the emotions that this topic has ignited, it is of paramount importance that policy relating to the Temporary Foreign Worker Program be formed in an atmosphere of reasoned and informed debate. 

What is the Temporary Foreign Worker Program? To read further please click here.

The Charter does not guarantee a right to strike

For several months, the Saskatchewan Court of Appeal has been deliberating over whether the right to freedom of association in the Charter of Rights and Freedoms guarantees public sector workers the right to strike. This is a question that the Supreme Court has pointedly declined to decide in its recent decisions on freedom of association and collective bargaining. Last Friday, the Saskatchewan Court of Appeal released its long-awaited decision.

We have written about the trial-level decision previously. In that case, the Saskatchewan Court of Queen’s Bench came to the surprising conclusion that the Charter does guarantee this right.

In this litigation the Saskatchewan labour movement, led by its umbrella organization, the Saskatchewan Federation of Labour, challenged certain provisions of essential services legislation that allowed the government to unilaterally deem particular public workers' services as "essential", thus prohibiting strike action at the end of the bargaining process.  The trial judge upheld this claim. In addition, the unions argued that various technical amendments to the Trade Union Act were also unconstitutional, because the amendments made it more difficult for unions to certify in the province. This claim was dismissed.

We noted previously that the trial court’s decision on the first question was unexpected, and the Court of Appeal has confirmed that view. It allowed the appeal, and agreed that the right to strike is not protected by the constitution.

The main underlying reason for the Court of Appeal’s decision was that the Supreme Court, in its 1987 decision in the Alberta Reference, had specifically confirmed that the right to freedom of association does not include a right to strike. As noted above, the Supreme Court has consistently specified in later years that it was not dealing with the right to strike, even in cases dealing with other associational rights such as collective bargaining. The Court of Appeal took the simple position that until the Supreme Court reverses its own precedent on this point, lower courts are bound by it. Since the unions will likely seek leave to appeal, this leaves the ball in the Supremes’ court to determine whether now is the time to answer this question.

The Court of Appeal went on to comment on the labour movement’s argument that lower courts could decline to apply the Alberta Reference precedent because in their view, “it appears that the higher court will overrule the precedent in question when and if it has the opportunity to do so.” The Court of Appeal declined to apply this novel argument, noting simply that it is up to the Supreme Court to reverse itself.  The Court of Appeal went on to state that contrary to the position of the unions, it is not certain at all that the Supreme Court will reverse this precedent.

I would go farther, and say that it seems highly unlikely, in light of the recent decision in Ontario (Attorney General) v. Fraser and the direction from the Supreme Court in that case regarding the interpretation of freedom of association, that the Supreme Court as currently composed will reverse its own precedent on the right to strike question.  In Fraser, the Supreme Court clearly confirmed that the protected right under s. 2(d) is the right to associate and make representations to an employer collectively, but is not a right to any particular model of collective bargaining, or to any substantive outcomes. While no one can fully predict future moves from the Supreme Court, it seems unlikely that a guaranteed right to strike flows from the Fraser decision.

The Court of Appeal also dispensed quickly with the union’s unprecedented suggestion that technical changes to the certification process in Saskatchewan were a breach of the Charter. The unions had even taken the startling position that requiring a democratic secret ballot among employees before certification could be granted is unconstitutional! The Court of Appeal confirmed that policy decisions about thresholds of support and secret ballots were matters within the discretion of the legislature. This part of the decision upheld the trial-level decision, and was a clear application of the precedent in Fraser.

This is a positive decision confirming the primacy of the legislatures in dealing with questions relating to the labour relations regimes in place in Canada. We will let you know the status of any future proceedings before the Supreme Court as soon as information becomes available.

Major Changes to Canada's Temporary Foreign Worker Program Announced

The federal government announced yesterday that it is overhauling the Temporary Foreign Worker Program (TFWP).  This follows recent criticism of the program, namely that it was taking away opportunities for Canadians and reducing general wage levels across the country.

The proposed changes include the following:

  • A requirement that employers have in place a plan to shift to hiring Canadian workers
  • Cancellation of a pilot project that allowed employers in certain circumstances to pay up to 15 percent below the prevailing wage rates to temporary foreign workers
  • Increased government authority to suspend and revoke work permits where employers are deemed to be abusing the program
  • A requirement for employers to pay new fees in requesting to hire a foreigner
  • An immediate suspension of the Accelarated Labour Market Opinion process, which allowed for expedited processing of temporary work permits
  • A rule that English and French can be the only languages required for job 

We will be both assessing and providing further analysis of these changes shortly.  We are also hosting a session at our Toronto offices on May 22nd on managing global mobility in the light of changing immigration and employment rules and regulations.  Do not hesitate to sign up for this free seminar at the following link.

For further questions, please do not hesitate to contact the writer at ssultan@heenan,ca or 416-777-4175.   

Arbitrator Upholds Cause Termination of 37-Year Employee due to Safety Violations

In the context of labour arbitrations, long service has often been a factor invoked by arbitrators to mitigate against serious disciplinary consequences – particularly against terminations of employment for just cause.

The employer in the case of Tonolli Canada Limited v. United Steelworkers, and its Local 9042 is in the business of recycling lead acid batteries.  Given that lead is a designated substance under Ontario’s Occupational Health and Safety Act, the company is required to have a Designated Substance Control Program in place.  Among other matters, the program requires employees to wear respirators to protect them from inhaling lead dust.  In order for the respirators to function properly, a clean seal is required such that employees must be sufficiently clean shaven to facilitate the skin seal of the mask.

The company terminated the employment of a 37-year employee, Frank Marsiglia, for just cause following two incidents in which Mr. Marsiglia failed to report to work clean shaven and failed to wear his hard hat, safety glasses and a respirator (“PPE”), despite prior warnings.  While the company conceded that these incidents alone would likely not suffice to establish just cause for termination, it pointed to Mr. Marsiglia’s rather extensive employment and disciplinary record to support its position.

Specifically, in the one year period prior to his termination of employment for just cause, Mr. Marsiglia had 7 instances of discipline on his record, including a number of warnings about his failure to wear PPE and a 25-day suspension following a number of serious safety incidents – including the unsafe operation of a loader, a failure to report a collision and sleeping in a Bobcat during work time.

The company took the position that Mr. Marsiglia’s repeated safety violations over the one year period amounted to just cause for termination, despite Mr. Marsiglia’s long service. It also pointed to the fact that Mr. Marsiglia was a certified member of the company’s Joint Health and Safety Committee, such that he was well aware of the specific health and safety standards relevant to his performance. The union took the position that while discipline was appropriate, termination for just cause was excessive in light of Mr. Marsiglia’s long service and various other factors.

After considering the evidence, the arbitrator upheld Mr. Marsiglia’s termination for just cause, despite his long service on the basis that Mr. Marsiglia had numerous opportunities to improve on his performance following various instances of discipline and failed to do so for what the arbitrator referred to as “one of the most patient employers I have seen in my more than 25 years as a labour relations adjudicator.”

This case makes it clear that the traditional arbitral approach to long service may give way when the employee misconduct in issue involves serious and repeated safety violations.

Tonolli Canada Limited v. United Steelworkers, and its Local 9042, 2013 CanLII 15108 (ON LA)

Unprecedented Fine For Criminal Negligence: Court of Appeal Reserves Judgment in Metron Sentence AppealĀ 

As regular readers will know, Metron Construction Corporation became the first corporation in Ontario to be convicted under the Criminal Code, as amended by Bill C-45 in 2004, after a June 15, 2012, guilty plea to a charge of criminal negligence causing death following a workplace accident. 

Yesterday, the Ontario Court of Appeal reserved judgment in the Crown’s appeal of the $200,000 sentence imposed on Metron in relation to that historic guilty plea. We will continue to monitor the case and report when the Court of Appeal renders its decision.

Charges Laid Against Engineer in Elliot Lake Mall Collapse

The professional engineer who last inspected and approved the roof and parking structure at the centre of last summer's Elliot Lake mall collapse has been charged under Ontario's Occupational Health and Safety Act (OHSA).

The Canadian Press is reporting that Ontario's Ministry of Labour has charged the Sault Ste Marie-based engineer with two counts under the OHSA: the first, under section 31(2), holds architects and engineers liable for advice or certification that is given negligently or incompetently. The second relates to working in a manner that could endanger workers.

The maximum penalty on conviction is a fine of up to $25,000 and/or up to 12 months imprisonment, per count.

In June 2012, the roof of the Algo Centre Mall in Elliot Lake - which doubled as the Mall's parking lot - collapsed, killing two women and causing dozens of injuries. A public inquiry into the case has been underway for several weeks, and media in attendance at those proceedings have reported that concerns about the structural integrity of the roof and parkade were raised prior to the accident.

Charges against architects and engineers under section 31(2) of the OHSA are rare, but not unheard of. Recent examples include:

  1. In R. v. EFCO Canada Co. (2010), an in-house engineer was convicted after the court concluded that he had provided design plans for falsework on a bridge support that were incapable of supporting the bridge’s load. The bridge, located over the 18 Mile River near the town of Lucknow, Ontario, collapsed, injuring six workers.
  2. In Ontario (Ministry of Labour) v. Nor Eng Construction & Engineering Inc. et al. (2008), two engineers were acquitted of OHSA charges after the collapse of a Sudbury overpass. The court found that the collapse itself was not proof of negligence in the overpass design.

Judicial Review of decision to hire Chinese Workers set to begin this week

A federal court this week will hear a challenge of the decision of Human Resources and Skills Development Canada (“HRSDC”) to allow 201 Chinese workers into Canada. 

The case involves HD Mining, a Vancouver-based mining company, which came under intense public scrutiny for its hiring of hundreds of Chinese nationals to work at its Murray River Coal project, a major coal mining project in northern British Columbia.  The company was initially granted approval by Human Resources and Skills Development Canada (“HRSDC”) to have over 200 Chinese workers enter Canada to work in developing the mine. 

Two prominent labour unions, the International Union of Operating Engineers (the “IUOE”) and the Construction and Specialized Workers' Union (the “CSWU”), charge that HD Mining did not follow the proper procedure in hiring foreigners.  The unions specifically argue that HD Mining did not make enough efforts to find Canadians for these jobs and that accordingly, the decision of HRSDC was improper. 

In securing permits for the Chinese workers, the company applied to HRSDC in British Columbia for positive Labour Market Opinions (“LMOs”). Approval from HRSDC is a necessary prerequisite to the entry of most foreign workers into Canada’s labour market. This process involves an assessment of the local labour market to determine whether allowing a foreigner to work in Canada is justifiable in the circumstances, such as where there is a shortage of skilled labour.

The unions argue that HD Mining was presented with several qualified Canadians who were more than capable of doing the jobs needed. The unions also accuse HD Mining of acting inappropriately in not interviewing or otherwise seriously considering local applicants. The unions specifically point to the fact that HD Mining received approximately 230 resumes from Canadians or Permanent Residents, but hired only 12 to support their claim that the company did not make sufficient efforts to hire locally.   

The federal court will now have an opportunity to weigh in on the matter.  The court’s decision will be closely followed as it will likely set an important precedent in the law applicable to the hiring of foreign workers.   

What does this mean for employers?

This case is important for any employer that has ever or may ever hire foreigners.  The number of temporary foreign workers has exploded in recent years, in part because of the prominent and growing skills labour shortage in Canada.  This decision could accordingly have serious implications for employers who are struggling to find practical strategies to secure the right skills for their labour force. 

We will continue to monitor this case and provide updates and analyses as more information becomes available.   

For more information please contact Sharaf Sultan ( or at (+1)416-777-4175. 

Far from Home, Not from Risk - OHS Laws and Canadian Workers Abroad

By:  Kevin MacNeill and Christina Hall

Just a few weeks ago, Islamic terrorists stormed a natural gas plant staffed by hundreds of Algerian workers and a number of foreign workers.  The Algerian military intervened, bringing an end to the crisis, but in its aftermath workers from the United States, Britain, France, Japan, Romania and other countries were counted among the deceased.[1]  Accounts from survivors revealed that that the terrorists had specifically targeted foreign workers for kidnapping.[2]

Following this tragedy it is worth pondering whether Canadian occupational health and safety (OHS) laws apply to Canadian employers who employ Canadian workers outside of Canada, and what measures employers can take to protect such workers.  These questions are particularly timely in an era of increased globalization and mobility of workers.

To best understand the legal context it is important to note that there is a general presumption against the extra-territorial application of Canadian labour and employment legislation.  That said, courts and adjudicators have held that this presumption can be rebutted if there is express language in a statute that illustrates an intention to address matters outside of Canada.  While it is limited, there is some authority to suggest that Canadian legislation can have extra-territorial application. 


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Canadian Government Launches World's First Start-Up Visa

On April 1, 2013 the Government of Canada officially launched the world’s first Start-Up Visa Program aimed at recruiting innovative immigrant entrepreneurs.  Announced on January 24, 2013, Citizenship and Immigration Canada’s (« CIC ») new Start-Up Visa Program will link immigrant entrepreneurs with private sector organizations in Canada that have experience working with start-ups and who can provide essential resources.

What it is?

The new visa is a bold new approach to attracting the world’s best and brightest start-up entrepreneurs to make Canada their destination of choice. The Program is unique because it will provide foreign entrepreneurs valuable assistance in navigating the Canadian business environment. For example, it will provide highly sought after entrepreneurs permanent residency and immediate access to Canadian business partners. This is expected to provide Canadian private sector organizations a powerful new tool which will allow them to attract global entrepreneurs who, it is hoped, will result in significant job creation.

How it works?

In order for an immigrant entrepreneur to qualify for the new Start-Up Visa Program, they will need to secure a minimum investment of $75,000 from a Canadian angel investor group or $200,000 from a Canadian venture capital fund. In addition to certain other program requirements, they will also have to possess certain educational qualifications and meet language proficiency standards.

At the outset, CIC will collaborate with Canada’s Venture Capital & Private Equity Association (CVCA) and the National Angel Capital Organization (NACO).  These groups will identify which members of their associations will be eligible to participate in the Program. CIC is also finalizing details of cooperation with the Canadian Association of Business Incubation (CABI) to include business incubators in the list of eligible organizations. A full list of designated venture capital funds and angel investor groups is now available on the Citizenship and Immigration Canada website.

The pilot program will run for five (5) years. Initially, the emphasis will be on the quality of the applicants and on achieving successful outcomes. The number of applicants accepted will therefore initially be highly limited. Assuming the Program is successful, CIC hopes to expand it to formally introduce a new economic class in the Immigration and Refugee Protection Regulations.

The Start-Up Visa Program represents CIC’s latest effort at meeting the new and evolving needs of the Canadian economy by building a faster and more flexible economic immigration system.

If you would like to know more about this new Program or are interested in other employment related immigration matters, please contact us.


For more information see:

News Release — Historic New Immigration Program to Attract Job Creators to Canada

Backgrounder — The new Start-Up Visa Program: An Innovative Approach to Economic Immigration

FireMe! Website Warns Twitter Users about Tweets that may get them Fired

Who wants to get fired?

This question is the tag line on the website FireMe! (Warning: language may be offensive to some readers).  FireMe! tracks, categorizes, and estimates the likelihood that a tweet (the 140 character micro-blogs that users publish on Twitter) could get the tweeter fired if his or her boss reads the tweet.  The tweets that are most likely to get a user fired are published on the leader board, which includes such bon mots as “I already hate my job” and “please fire me”.

FireMe! also allows users to enter their own Twitter username to check how likely they are to get fired based on their tweets.  I used that tool to check the Twitter accounts of John Craig (@JDRCLabour) and Kevin MacNeill (@kdmacneill), who are partners and tweeters in our Toronto labour and employment law group.  With a 0% likelihood, both have clearly mastered the art of the appropriate tweet.

According to the developer, the dangers of negative tweets remain abstract, and young and inexperienced users, in particular, could benefit from after-the-fact privacy warnings from websites like FireMe!  To test this theory, FireMe! sent out 4,304 warnings to users who tweeted something that could get them fired.  249 users deleted the offending tweet within two hours of receiving the warning.

Tweets like those featured on FireMe! raise questions about whether employers can and should monitor employee use of social media, and whether employees can be disciplined for the inappropriate use of social media at and away from work.  For answers to these and other questions about social media in the workplace, please watch Rhonda, Christina, Andrew, and me discuss social media in the workplace during last year’s Managing the Workplace seminar series.

Federal Government tightening rules surrounding hiring of Temporary Foreign Workers: A quiet revolution of Canada's immigration program comes into the national spotlight

Canada has taken in increasingly higher numbers of temporary foreign workers.  The growth has been so significant in recent years that the annual intake of temporary foreign workers in Canada now consistently surpasses the number of permanent resident arrivals.

There are widely differing opinions as to whether this is a positive, negative or neutral development.   Setting aside the often inflammatory and populist commentary on this issue, the reality of Canada's economy and labour market means that the country will almost certaintly continue to accept high numbers of temporary foreign workers. 

This is primarily because of the simple fact that there is an immense and growing skills gap in Canada's labour market.  Specifically, employers across the country continue to struggle to find applicants with the right skills to fill job vacancies.  This issue is only likely to become more pronounced in the future.  By some accounts, by 2020, there will be over a million unfilled jobs in Canada as a direct result of needed skills. 

While domestic job retraining programs may partially address the problem, this at best presents a partial solution to what is a large and chronic national issue.    Given this, Canada faces two options: (1) to significantly increase the annual intake of permanent residents from  approximately 250,000 to at least 400,000 or (2) to maintain or grow the number of temporary foreign workers granted access to Canada each year.  Given current public opinion, it is much more likely that Canada will choose temporary workers over a significant increase in the intake of permanent residents. 

Coming changes to the Temporary Foreign Worker Program

At the same time that the number of temporary foreign workers in Canada has increased, so has criticism aimed at the Temporary Foreign Worker Program (the “TFWP”) – the set of rules and regulations governing the employment of temporary workers. 

The Federal Government has been the target of a sustained campaign of harsh criticism for its management of the TFWP.  Specifically, prominent labour groups across Canada charge that the program has acted as a drag on local labour standards, depressing local wages and reducing the number of work opportunities available to Canadians.  The criticism is forcing a national conversation about a program that has to date received astonishingly little attention.

The Federal Government has responded to the criticism through a set of proposed changes to the TFWP, presented as part of the 2013 Federal Budget.  These include the following initiatives:  

  • The Federal Government will work with employers to ensure that temporary foreign workers are relied upon only when Canadians genuinely cannot fill those jobs
  • Employers will be expected to make greater efforts to hire Canadians before they will be eligible to hire temporary foreign workers
  • The Federal Government will actively assist employers who rely heavily on temporary foreign workers to find local employees
  • The Federal Government will amend the Immigration and Refugee Protection Act and Regulations to restrict non English or French job language requirements
  • The Federal Government will introduce user fees for ministerial reviews of whether a foreigner should be allowed into Canada on a temporary basis  

What does this mean for employers?

The TFWP is still a largely positive program, providing employers with tools to secure skills needed from abroad which cannot be found locally.  The recent high profile criticism of the TFWP and the government’s response is important however because it serves as a warning to employers that they will be expected to adhere to what are likely to become increasingly strict rules and regulations surrounding the hiring of foreign workers on a temporary basis. 

Employers would accordingly be wise to treat the hiring of foreigners with the same importance as any other human resource matter, including through advanced planning and organized execution.  Such an approach can help to ensure that employers are in the best position to take advantage of the TFWP while avoiding potential associated liabilities. 

For more information, contact the writer at or at (+1)416-777-4175