PAYROLL MONTH IN REVIEW

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A roundup of new legislation, regulations, government announcements, court cases and arbitration rulings

Case of the Month: Québec Court Okays Manslaughter Charges against Company for Worker’s Death

‘Remember C-45, that scary law that was adopted after the Westray mine explosion and the miscarriage of justice that followed to ensure that  companies would be held criminally accountable for workplace deaths caused by their egregious safety offences. C-45 was expected to set off a wave of criminal prosecutions against corporate officers. “From pinstripes to prison stripes” was the mantra. But it never happened and the law once so feared has been largely forgotten. But now after a decade of dormancy, the threat of criminal prosecution for OHS violations resulting in death may be back in play–albeit in  a strange and unexpected way—thanks to a new case from Québec. Here’s the down and dirty.

THE CASE

What Happened: A worker doing sewer repair work was killed in a trench collapse. The Crown blamed the incident on the excavation company’s violation of OHS trench safety regulations. But it also considered the offence too egregious to treat as a routine OHS violation. So it charged the company with criminal negligence under C-45. That by itself made the case unusual. But the Crown took it a step further by charging the company with manslaughter as well. The company denied all of the allegations and asked the court to dismiss the manslaughter charge before trial began.

What the Court Decided: The Québec Superior Court ordered the company to stand trial on both charges—criminal negligence under C-45 and manslaughter.

How the Court Justified the Decision: The key to the case is the interplay between the two criminal laws involved:

C-45 Criminal Negligence: Still known by its bill number, C-45 added two provisions to the Criminal Code:

  • 217.1, which requires every person who controls work “to take reasonable steps to prevent bodily harm” arising from the work; and
  • 219(1), which makes the violation of the above duty criminal negligence if the violation “shows wanton or reckless disregard for the lives and safety of other persons.”

Manslaughter: Manslaughter means causing the death of a human being “by means of an unlawful act” (Sec. 222(5)(a) of the Code).

The Crown’s theory was that the company’s alleged trench safety violations, which caused the worker’s death, violated both its Sec. 217.1 duty to take reasonable steps constituting criminal negligence under Sec. 219(1) and an unlawful act constituting manslaughter under Sec. 222(5)(a).

The company conceded that OHS trenching violations, assuming it actually committed them, could be the basis for C-45 criminal negligence. But it claimed that such violations couldn’t trigger liability for manslaughter.

Manslaughter for an “unlawful act” had to be more than a routine OHS violation, the court acknowledged. However, an OHS offence may rise to that level when:

  • It causes death;
  • It represents a “marked departure” from the conduct of a “reasonable person” in the same situation as the accused; and
  • It was reasonably foreseeable that the violation would result in bodily harm.

So, did the company violate the Québec trenching rules?

And, if so, did the violation support a charge of manslaughter?

These are among the questions that the trial would have to determine, said the court.

Fournier c. R., 2016 QCCS 5456 (CanLII), Oct. 31, 2016

WHAT IT MEANS

The risk of criminal prosecution for egregious OHS violations resulting in workplace death is nothing new. That’s what C-45 is all about. But Fournier gives prosecutors a new card to play in addition to C-45 criminal negligence. And in adding manslaughter to the mix, the case seemingly increases the liability risks of corporations and corporate officials.

But as a practical matter, criminal prosecutions stemming from OHS violations—whether for criminal negligence, manslaughter or both—are likely to remain few and far between given the extra difficulty the Crown faces to win these cases.

Explanation: In a criminal case, the Crown must prove two things beyond a reasonable doubt: i. that the defendant did an act the law prohibited (or omitted to do an act it required); and ii. that it did so with the mental state the law requires, e.g., “wanton or reckless disregard” for safety in the case of C-45. In an OHS case, the Crown need only prove the act or omission. The defendant’s mental state is irrelevant.

The Bottom Line: Although it may seem scary, the Fournier case is a something of an anomaly. True, the case’s interpretation of the manslaughter law as covering OHS offences lays the groundwork for more criminal prosecutions in the future. But in reality, the same obstacles that have made prosecutors reluctant to bring charges under C-45 will probably have the same dampening effect on potential prosecutions for manslaughter.

 

FEDERAL

LAWS & ANNOUNCEMENTS

Human Rights

Nov. 15: The government called for passing a bill (S-201) that would create a new ground for protection under the human rights law: “genetic characteristics.” If the bill passes, employers would be banned from discriminating on the basis of genetic information, e.g., denying a job to an applicant because she tests positive for a genetic trait making her vulnerable to certain illnesses.

Collective Bargaining

Nov. 23: United Steelworkers voted 68% in favour of ratifying a new 6-year agreement with Telus that provides for lump-sum payments and 2% wage increases in each of Years 4, 5 and 6.

Canada Pension Plan

Nov. 1: The CRA published the 2017 CPP rates:

CPP RATE 2017 2016
Maximum pensionable earnings $55,300 $54,900
Basic exemption $3,500 $3,500
Employee contribution rate 4.95% 4.95%
Employer contribution rate 4.95% 4.95%
Self-employed contribution rate 9.9% 9.9%
Employee maximum contribution $2,564.10 $2,544.30
Employer maximum contribution $2,564.10 $2,544.30
Self-employed maximum contribution $5,128.80 $5,088.60


Employment Insurance

Oct.: The Canada Employment Insurance Commission announced the EI rates for 2017:

  • EI premium rate of $1.63 per $100 insurable earnings
  • Increase in Maximum Insurable Earnings from $50,800 to $51,300
  • Increase in self-employed annual earnings requirement for special benefits from $6,820 to $6,888
  • Decrease of 36¢ in QPIP premiums to $1.27 per $100 of insurable earnings.

 Immigration

Nov. 19: Changes to the Comprehensive Ranking System used to select immigrants under the Express Entry program took effect, e.g., reducing the number of points awarded for a qualifying job offer. On a related note, Canada announced that it will keep its 2017 immigration target at 300,000. The economic advisory council had recommended raising the target to 450,000. Although economic category immigrants will increase from 160,600 to 172,500 year-over-year, refugees admitted will fall from 55,800 to 40,000.

 Pensions

Oct. 26: Highlights of newly tabled Bill C-27:

  • Let federally regulated employers create both single employer and multi-employer target benefit plans
  • Target benefit plans must be established as new plans and not conversions from existing DB or DC plans
  • Individual plan members must consent to transfer of benefits from an existing DB or DC plan to a target plan.

 Tax Forms 

Nov.: New CRA tax forms and publications issued this month:

 

ALBERTA

LAWS & ANNOUNCEMENTS

 Employment Standards

Nov.: The government published new guidance on how minimum wage requirements apply to “domestic employees,” i.e., persons employed to work in the employer’s residence for the care, comfort and convenience of its members. Overtime and maximum work hour rules don’t apply to domestic employees, but rest period and days of rest requirements do, the guidance also explains.

Jobs

Nov. 8: Newly proposed Bill 30 would offer manufacturing, processing and tourism infrastructure companies a 10% non-refundable Capital Investment Tax Credit of up to $5 million. The CITC would spur up to $700 million in new investment and create thousands of jobs, the government claims.

Privacy

Nov. 21: Self-reported privacy breaches were up 22% from 255 to 311 during the past year, according to the OIPC’s newly published 2015-16 Annual Report. Types of breaches varied including everything from human error to highly sophisticated cyberattacks.

Pensions

Dec. 31: That’s the deadline for plan administrators to establish a governance policy. Such policy need not be filed with the Superintendent of Pensions, to Dec. 31, 2016. In addition, the Superintended recently extended the plan assessment deadline by one year. Result: Plans must complete their initial assessment within two years after the end of the second fiscal year following Sept. 1, 2014 (and periodically thereafter) rather than one year.

Workers’ Compensation

Nov. 9: The independent workers’ comp reform review panel issued a progress report. Key stakeholder concerns cited:

  • The claims process works well for simple claims but not complex ones
  • The WCB doesn’t let injured workers choose their own health professionals
  • The WCB push for return to work can be too aggressive and sometimes causes workers to return too early
  • Vocational rehab services need to be beefed up.

 

 BRITISH COLUMBIA

LAWS & ANNOUNCEMENTS

Human Rights

Nov.: The BC Human Rights Tribunal released its Annual Report for 2015-2016. Highlights:

  • Historic high for new complaints: 1,227
  • Employment most litigated area accounting for 664 (59%) of complaints
  • Leading grounds for all complaints: disability 44%, ethnicity 20%, sex 12%, family status 6%, religion 4%, marital status 2%, sexual orientation 2%.

Workers’ Compensation

Jan. 1: Average base rates for workers’ comp premiums in 2017 are going down from 1.70% to 1.65% per $100 of assessable payroll. The cut was made possible by positive return on investment and a reduction in claims.

CASES

Off-Duty Theft Not Grounds for Termination

A firefighter with 11 years of spotless service was fired after being convicted of criminal possession of stolen property. The union challenged the dismissal as unjust. The arbitrator agreed. The off-duty misconduct was an isolated incident and the employer didn’t meet its burden of proving that it had a negative impact on the firefighter’s ability to carry out his work duties, the arbitrator reasoned. But while ordering the firefighter to be reinstated, the arbitrator refused to award him wages, benefits and seniority lost [Re Prince George and Prince George Firefighters, Local 1372 (Williams), 2016 CarswellBC 2591 (B.C. Arb.)].

 

MANITOBA

LAWS & ANNOUNCEMENTS

Public Sector

Nov. 21: The government will introduce deficit-control legislation to restrict public sector wage increases and eliminate dozens of provincial boards and commissions.

Privacy

Nov. 14: An ex-employee of Manitoba Health, Seniors and Active Living broke into a provincial medical database and get access to nearly 200 people’s personal health information, including names, addresses and dates of birth. The department issued an apology and a promise to notify the individuals affected.

 Workers’ Compensation

Nov. 15: A government committee kicked off its full-scale review of Manitoba’s workers’ comp system. The law requires review every 10 years. The deadline to comment is Feb. 15, 2017. The committee is expected to issue its report by June 30.

CASES

Investment Firm Can Fire Advisor for Falsifying Statements

Allured by his $70 million client book, an investment firm hired an advisor under investigation by the Investment Industry Regulatory Organization of Canada (“IIROC”) for falsifying statements. But when more sordid details came to light, the firm had second thoughts. The court held that the firm had acted in good faith, termination without cause didn’t violate the employment contract and the firm didn’t wrongfully poach the advisor’s clients after termination [Warkentin v. BMO Nesbitt Burns Inc. et al., 2016 MBQB 216 (CanLII), Nov. 9, 2016].

To Read the Ful

 

NEW BRUNSWICK

LAWS & ANNOUNCEMENTS

Drugs & Alcohol

Nov. 17: New Brunswick added marijuana to the list of smoke-emitting products banned by the Smoke-Free Places Act. From now on, use of marijuana in public or the workplace will be subject to the same second-hand smoke restrictions as e-cigarettes and waterpipes.

Workers’ Compensation

Nov. 16: Newly proposed amendments to workers’ comp laws affect:

  • The appeal tribunal’s right to hear reconsiderations
  • The structure of the board of directors
  • WorkSafeNB’s authority to make deals with other jurisdictions on accepting and investing funds.

 

NEWFOUNDLAND & LABRADOR

LAWS & ANNOUNCEMENTS

Minimum Wage

Nov. 24: In 2017, there will be a pair of separate 25¢ increases to the minimum wage, currently $10.50 per hour: April 1: $10.75; and Oct. 1: $11.00. Consultations will be held on pegging future increases to the CPI.

Workers’ Compensation

Nov. 25: The 2017 average assessment will decrease 6% from $2.20 to $2.06 per $100 of assessable payroll. Assessments are staying the same or going down for agriculture, fishing and trapping, manufacturing and transportation and storage. The Maximum Compensable and Assessable Earnings cap for injured workers is going up from $62,540 to $63,420, highest in Atlantic Canada.

CASES

Contractor Charged in Fatal Rooftop Fall

A worker was killed after falling through the skylight of a roof during maintenance work.  The victim’s employer, a Trepassey construction company, has been charged with four OHS violations, including failure to ensure that workers were made aware of hazards and used proper fall protection [Southern Construction (1981) Ltd., Govt. News Release, Nov. 4, 2016].

 

NORTHWEST TERRITORIES

 LAWS & ANNOUNCEMENTS

Government Salaries

Nov. 18: Salary ranges of all GNWT have been posted on the government’s website for all the world to see. In the past, salaries had to be obtained by piecing together the information from job descriptions.

CASES

No Government Lawyer for Employee Suing for Discrimination

An employee with MS asked for a government lawyer to help her sue her employer for disability discrimination. The Legal Services Board refused citing lack of funding and expertise in pursuing discrimination complaints. The Human Rights Adjudicator ordered the Board to take the employee’s case and drop its blanket no-human-rights-complaints policy. The government appealed—and won. The NWT Supreme Court “stayed” the order, i.e., halted its enforcement. The Board didn’t have legal authority to represent the employee and wasn’t even a party to the court case. So making the Board take the case would cause “irreparable harm” that couldn’t be repaid by money damages later [GNWT v Portman, 2016 NWTSC 60 (CanLII), Oct. 3, 2016].

 

NOVA SCOTIA

LAWS & ANNOUNCEMENTS

Accessibility

Nov. 2: The government proposed broad legislation requiring communities and businesses to reduce physical barriers for persons with disabilities. The Act Respecting Accessibility in Nova Scotia would establish new agencies to develop, implement and monitor accessibility standards across the province.

Labour

Nov. 2: Newly tabled amendments to the Construction Projects Labour-Management Relations Act  give developers of multi-billion dollar liquefied natural gas projects in Richmond and Guysborough Counties the option to make project-specific agreements to ensure no work stoppages take place during the life of the project.

Public Pensions

Nov.1: A bill designed to make public sector pension benefits more sustainable over the long term received first reading. The Municipal and Other Authorities Pension Plan Transfer Act would allow municipalities and other public sector agencies to transfer their pension plans into the Public Service Superannuation Plan.

CASES

Is Limit on Termination Notice Clear Enough to Enforce?

Question: Is the following language clear and unequivocal enough to strip a wrongfully terminated employee of common law notice: If it becomes necessary for us to terminate your employment for any reason other than cause, your entitlement to advance working notice or pay in lieu of such notice, will be in accordance with the provincial employment standards legislation.” Answer: No.  Explanation: The language could be interpreted to mean either that notice would be the statutory minimum or that it would be consistent with the statute. “It would not be difficult for an employer to draft a termination clause” that wasn’t ambiguous and left no doubt as to the parties’ intention with regard to notice, the court reasoned [Bellini v. Ausenco Engineering Alberta Inc., 2016 NSSC 237 (CanLII), Sept. 10, 2016].

 

NUNAVUT

LAWS & ANNOUNCEMENTS

Collective Bargaining

Nov. 23: Key terms of the new collective agreement between the GN and Nunavut Employees Union:

  • Wage increases of 2% in Years 1 and 4, and 1% in Years 2 and 3, starting in Oct. 2014
  • Holiday Closure Days to replace Winter Bonus Days
  • Terms for 12-hour shifts clarified and made consistent
  • Standardized hours across all correctional facilities.

 

 ONTARIO

LAWS & ANNOUNCEMENTS

Gender Gap

Nov. 24: A newly created working group comprised of representatives of business, labour and women’s advocates will advise the government on shared parental leave, pay equity and other gender-gap workplace issues. The announcement comes on the 30th anniversary of the Ontario Pay Equity Act.

Pensions

Nov. 16: Highlights of newly tabled Bill 70:

  • Consolidate FSCO and other financial service regulatory agencies into a single new agency called the Financial Services Regulatory Authority
  • Allow plans to offer broader portability options
  • Allow for exemptions to pay-in obligations of employers and successor employers during plan wind-up
  • New administrative monetary penalties for pensions violations.

 Workplace Safety

Jan. 1: New industry-specific OHS requirements take effect:

  • Construction: new safety rules for operating suspended access equipment
  • Mining: mandatory hazard assessments for water and traffic management, recording of seismic events and other highly hazardous operations.

 Workers’ Compensation

Oct. 28: As previously reported, WSIB is lowering premiums for the first time in 16 years. But WSIB announced that it overstated past claims costs for certain groups in its 2017 Schedule 1 rate calculations. The corrected calculations yield an even deeper cut—average of 6.2%, from $2.59 to $2.43 per $100 of assessable payroll, as opposed to the 5% average from $2.59 to $2.46 per $100 first reported.

 CASES

Nurse Can’t Be Fired for Stealing Drugs Because She’s an Addict

The union didn’t deny that a nurse had stolen narcotics from her employer, worked under the influence of drugs and altered patient records; but it contended that she did all these things because she was an addict. And since addiction is a disability under human rights law, firing her was discriminatory. The arbitrator agreed. While it may be a disability, addiction isn’t an absolute exemption from discipline. But, the arbitrator explained, the nurse admitted her problem, was in remission and following her doctors’ treatment. So he ordered the nurse reinstated as long as she followed her doctor’s recommended employment conditions [Ontario Nurses’ Association v Sunnybrook Health Sciences Centre, 2016 CanLII 62577 (ON LA), Sept. 26, 2016].

Employee’s Refusal to Document Mom’s Care Needs Dooms Discrimination Claim

A store offered variable hours to accommodate an employee’s injury. The employee said no, complaining that variable hours would interfere with her obligation to prepare supper for her elderly mother. The store asked her to document her mom’s medical condition and verify that she was the only one who could provide the care her mom needed. The employee refused and was fired. No family status discrimination, the Tribunal ruled. The employee took an “intransigent position” and believed that all she had to do was assert her family status to get the accommodations she demanded. But she was wrong. The employee also had to provide information to substantiate her eldercare responsibilities. Since didn’t do this, she had no case [Misetich v. Value Village Stores Inc., 2016 HRTO 1229 (CanLII), Sept. 20, 2016].

Brazilian Mining Firm Fined $1 Million for Safety Violation

For the second time, the Canadian unit of Vale SA has agreed to pay a seven-figure fine to the Ontario MOL. The Brazilian firm pled guilty to four OHS violations stemming from the death of a smelter at its Vale Copper Cliff facility. Vale was also fined $1.05 million in a separate incident from Sept. 2013 in which two workers were crushed to death at the company’s Stobie Mine in Sudbury.

 

PRINCE EDWARD ISLAND

LAWS & ANNOUNCEMENTS

Employment Standards

Jan. 1: ESA changes require employers to begin keeping employment records for:

  • Paid holiday pay due or paid to an employee
  • Period and reason for a leave of absence
  • Dates of suspensions, dismissals or layoffs and dates employees were notified of such actions.

Workers’ Compensation—Rates

Oct. 28: The WCB is cutting rates for the seventh year in a row. The 2017 average assessment will go from $1.77 to $1.70 per $100 of assessable payroll.

Workers’ Compensation—Farms

Jan. 1: Mandatory workers’ comp coverage for farm workers, including full-, part-time, temporary and seasonal workers, takes effect. Coverage also extends to family members on the payroll unless those family members are full or part owners or shareholders in the farming operation.

 

QUÉBEC

LAWS & ANNOUNCEMENTS

Human Rights

Nov. 1: The Commission des droits de la personne et jeunesse stated its opposition to Bill 62 which would ban giving or receiving government services if a person’s face is covered. Ostensibly designed to impose “religious neutrality” in the civil service, the controversial bill effectively targets Muslim women who wear the traditional niqab or burka face veil. The Charter already provides for religious neutrality and Bill 62 represents an “erroneous interpretation” of those principles, the Commission warns.

Pay Equity

Dec. 31: That’s the deadline for businesses that had 10 or more salaried employees at any point during 2012 to complete their salary equity exercise and submit the results to CNESST.

QPP

Jan. 1: 2017 maximum pensionable QPP earnings will increase from $54,900 to $55,300 and the QPP contribution rate will go from 10.65% to 10.80%, which corresponds to a contribution rate of 5.4% for the employee and 5.4% for the employer. The maximum annual contribution to be withheld for any employee will increase from $2,737.05 to $2,797.20.

QPIP

Jan. 1: 2017 maximum insurable earnings for QPIP will increase from $71,500 to $72,500. The employee premium rate will remain at 0.548% and the employer premium rate at 0.767%. The maximum annual employee premium will be $397.30, as opposed to $391.82 in 2016, and the maximum annual employer premium will be $556.08 instead of $548.41.

Tax Forms

Nov.: New MRQ forms and publications this month:

  • TP-1015.F-V, Formulas to Calculate Source Deductions and Contributions
  • TP‑1015.G‑V, Guide for Employers: Source Deductions and Contributions
  • TP-1015.TA-V, Table for Québec Parental Insurance Plan Premiums
  • TP‑1015.TI‑V, Source Deduction Table for Québec Income Tax
  • TP-1015.TR.12-V, Source Deduction Tables for QPP Contributions: 12 Pay Periods
  • TP‑1015.TR‑V, Source Deduction Tables for QPP Contributions
  • IN‑251‑V, Questions About Tips: Employees
  • IN-309-V, Voluntary Disclosure: Rectifying Your Tax Situation
  • LM-15-V, Voluntary Disclosure
  • RD-1029.7-V, Tax Credit for Salaries and Wages (R&D)
  • TP‑1015.3‑V, Source Deductions Return
  • ED‑425‑V, Tax Preparers’ Guide: RL Slips
  • ED-430-V, Transmitter Registration Form
  • FP‑2500.E‑V, Request to Amend GST/HST and QST Returns Filed Online
  • RL-1.G-V, Guide to Filing the RL-1 Slip: Employment and Other Income
  • RL‑1‑T, Relevé 1 – Revenus d’emploi et revenus divers (English courtesy translation).

 

SASKATCHEWAN

LAWS & ANNOUNCEMENTS

Apprentices

Nov. 24: Important changes to apprenticeship system rules took effect, including elimination of the requirement that apprentices registered outside Sask. register with the Sask. Apprenticeship and Trade Certification Commission to work in the province. Another change gives workers in compulsory trades more time to meet educational requirements for registration.

Workers’ Compensation

Oct. 24:  The WCB is cutting average workers’ comp premiums 7.5% to a 30-year low of $1.24 per $100 of assessable payroll. The 10¢ cut could make Sask.’s premiums the third lowest in Canada, depending on where other provinces end up setting their 2017 rates. Maximum assessable earnings will be $76,086.

 

YUKON TERRITORY

LAWS & ANNOUNCEMENTS

Public Health

Nov. 24: Flu season is off to a nasty start with 70 cases reported already, as compared to the 5 cases reported by Dec. 1 in a normal year. Flu-related hospitalizations in Yukon have already reached 8, one more than the average total hospitalizations for a full year.

CASES

Workers’ Comp Doesn’t Bar Worker’s Lawsuit against Helicopter Owner

A pair of government workers who got hurt in a helicopter crash figured they could sue the vehicle’s owner for damages since the company wasn’t their employer and didn’t participate in workers’ comp. But (Sec. 50(4) of) the workers’ comp act bans lawsuits against other employers for work injuries involving “use or operation of a vehicle.” It defines “vehicle” as a mode of transportation protected by liability insurance. Since the owner had insurance, it argued that the lawsuit was barred.  But the court didn’t buy it. Adopting the owner’s interpretation would create a de facto cap on recoveries for vehicle injuries, an act of “lawmaking” in which the court refused to engage [Postma v. Horizon Helicopters Ltd., 2016 YKCA 12 (CanLII), Sept. 30, 2016].