PAYROLL MONTH IN REVIEW

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

Law of the Month: BC Lays Down Privacy Guidelines for Workplace Surveillance Cameras

Video surveillance can be a highly effective way to keep your workplace secure. But it can also get you into a heap of trouble under privacy laws. The key for employers is to steer a middle course between legitimate security and respect for the individual privacy of employees and third parties who may come under the camera’s lens. New government guidance explains how to keep video surveillance within privacy bounds. And while the Guidance comes from BC, the same principles apply in all parts of Canada.

OVERVIEW OF THE GUIDANCE

What the Law Says: Under privacy laws, you’re generally not allowed to collect or use   personal information about an individual without their consent. Footage captured by surveillance cameras is considered personal information protected by the law. Exception: Authorization is not required if the collection and use serve a legitimate purpose, such as maintaining workplace security. However, the exception applies only to collections and uses that are reasonably necessary to accomplish that legitimate purpose.

What the Guidance Does: The Guidance explains how these principles apply to use of surveillance cameras in the workplace.

What the Guidance Says: According to the Guidance, video surveillance is a highly intrusive technology and should be used in the workplace only as a measure of last resort. The Guidance instructs employers not to use video surveillance unless and until they make 3 determinations:

  • The problem is serious enough to warrant use of surveillance cameras;
  • Surveillance cameras will be effective in solving the problem; and
  • The problem can’t be resolved via use of alternatives that are less invasive of privacy.

10 THINGS TO DO

The Guidance lists 10 things employers should do to minimize the privacy-intrusive impact of workplace video surveillance.

  1. Implement a Surveillance Policy
    First you need a written video surveillance policy that explains, at a minimum:
  • The purpose of surveillance;
  • That you determined that surveillance was necessary to accomplish that purpose;
  • When and how monitoring and recording will take place;
  • How recordings will be used and how long they will be retained;
  • The procedures for secure disposal of the recordings; and
  • A process to follow in the event of an unauthorized disclosure.
  1. Limit Time of Surveillance
    Surveillance limited to particular times of the day or night is preferable to keeping the cameras on 24/7, according to the Guidance.
  1. Limit Time of Surveillance
    Take steps to minimize the risk of filming individuals who aren’t targets of surveillance, e.g., by positioning cameras in places where they won’t capture pedestrians and avoiding areas like bathrooms in which people have heightened expectations of privacy.
  1. Post Warning Signs
    Post a clear, understandable notice about the use of cameras before people enter the workplace and at entrances to areas that are under surveillance. Signs should indicate plainly which area is under video surveillance and for what purpose, for example: “This property is monitored by video surveillance for theft prevention.” They should also list contact information for individuals to go if they have questions.
  1. Securely Store Recordings
    Like any other confidential information, surveillance equipment should be securely stored to prevent unauthorized access and removal.
  1. Establish Secure Retention and Destruction Procedures
    Don’t keep recordings longer than necessary—the Guidance recommends a 30 days’ maximum. Make sure you destroy recordings in a secure manner when you no longer need them.
  1. Establish Access Limits
    Your surveillance policy should specify the individuals authorized to access recordings. Limit access to specific purposes, e.g., to investigate significant security or safety incidents. Use technological controls like password and user authentication to effectuate access limits and keep logs documenting access requests and usage.
  1. Provide Open Access to Your Surveillance Policy
    The Guidance recommends that you consider making your surveillance policy available to the public. “Your customers will appreciate your transparency and gain a better understanding of the purposes of the surveillance.”
  1. Respect Subjects’ Right to Access Footage
    Keep in mind that under privacy laws, you must grant individuals that you film access to the footage in which their images are captured, provided that they request it. When disclosing recordings, use masking technology to avoid inadvertently revealing identifying information about other individuals on the tapes.
  1. Periodically Re-Evaluate Your Need for Surveillance
    Regularly review your policy to verify that using video surveillance is still justifiable and needed for your original purpose.

Caveat: Open, Not Covert Surveillance
One last thing to keep in mind: The Guidance addresses overt surveillance where cameras are in the open, warnings are posted or subjects are otherwise made aware that they’re being recorded; rules governing covert or secret surveillance are much stricter.

FEDERAL

LAWS & ANNOUNCEMENTS

Immigration
Dec. 13:  Effective today, temporary foreign workers in Canada are no longer subject to the “four-in, four-out” rule that requires calculating duration of time in Canada on a cumulative basis.

Mental Stress
Dec. 6: An RCMP officer is suing the agency for post-traumatic stress disorder he allegedly suffered as a result of being exposed to a “significant volume” of child porn while working in a BC child abuse unit. It’s a novel case and we’ll keep you apprised of its progress.

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
Jan. 1: 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
  • Reduction in waiting period from 2 weeks to 1 week.

CRA Interest Rates
Jan. 1: CRA interest rates for the first quarter of 2017 are unchanged except for the rate on pertinent loans or indebtedness for corporate taxpayers (highlighted):

  • Overdue taxes, CPP contributions and EI premiums: 5%
  • Overpayments (non-corporate taxpayers): 3%
  • Overpayments (corporate taxpayers): 1%
  • Rate on taxable benefits for employees and shareholders from interest-free and low-interest loans: 1%
  • Rate for corporate taxpayers’ pertinent loans or indebtedness: 4.5%

Interest rates on overdue and overpaid remittances:

  • GST: 5%, 1% (corporate taxpayers), 3% (non-corporate)
  • HST: 5%, 1%, 3%
  • Air Traveler’s Security Charge: 5%, 1%, 3%
  • Excise Tax (Non GST): 5%, 1%, 3%
  • Excise Duty (except Brewer Licensees): 5%, 1%, 3%
  • Excise Duty (Brewer Licensees): 3%, N/A, N/A
  • Softwood Lumber Products Export Charge: 5%, 1%, 3%.

Tax Forms
Dec.: New CRA tax forms and publications issued this month:

ALBERTA

LAWS & ANNOUNCEMENTS

Employment Standards
Dec.: For many employees, winning an ESA case against their employer isn’t the end of the struggle. Now the employee must actually collect the judgment. The Employment Standards Division just issued new guidelines to help employees meet that challenge.

Human Rights
Dec. 30: The Alberta Human Rights Commission published its Annual Report for 2015-2016. Highlights:

  • New complaints: 1,390 (as compared to 1,395 in previous year)
  • Employment most litigated area accounting for 83% of complaints
  • Leading grounds for all complaints: physical disability 33%, gender 20%, mental disability 19%, ancestry/origin 7%, race/colour 7%, age 4%.

Workers’ Compensation
Jan. 1: The 2017 average workers’ comp assessment will remain $1.02 per $100 assessable payroll and yearly maximum insurable earnings will be $98,700.

Pensions
Dec. 20: For the second year in a row, the Superintendent of Pensions has pushed back the deadline for pension plan administrators to put a governance policy in place by a full year—from Dec. 31, 2016 to Dec. 31, 2017.

CASES

Ex-Employees Didn’t Violate Fiduciary Duty by Opening Competing Shop
The owner of a machine shop claimed that two longstanding employees violated their fiduciary duty by opening a competing operation, misappropriating confidential information and poaching customers. The court dismissed the case. Although they were key employees, they didn’t owe the shop a fiduciary duty, the court reasoned. They didn’t ask to be fiduciaries and whatever control they exercised was given to them willingly by the owner. Moreover, they had access to only some but not all of the shop’s confidential information and contact with only some but not all of its customers [HRC Tool & Die Mfg Ltd v Naderi, 2016 ABCA 334 (CanLII), Nov. 1, 2016].

BRITISH COLUMBIA

LAWS & ANNOUNCEMENTS

Jobs
Dec. 27: A new Canada-BC Job Fund Agreement provides nearly $10 million for skills training of up to 1,713 British Columbians. Training will be provided at 27 post-secondary institutions in urban areas with populations of over 25,000. On a related note, the government claims that in the past year over 1,200 Indigenous participants received community-based skills training through the Aboriginal Skills Training Development Fund.

Workplace Safety
Dec. 14: OHS regulatory changes affecting joint health and safety committees (JHSCs) were approved and will take effect on April 3, 2017:

  • Mandatory annual evaluation of JHSC effectiveness
  • Minimum training requirements for JHSC members and health and safety representatives
  • Clarification of JHSC’s role in incident investigations.

MANITOBA

LAWS & ANNOUNCEMENTS

Pensions
Dec.: Following the cue of several other provinces, Manitoba tabled legislation allowing—but not requiring—employers to offer employees a chance to participate in a pooled registered pension plan now that PRPPs have become legal under federal law.

NEW BRUNSWICK

LAWS & ANNOUNCEMENTS

Health Care
Dec. 22: New Brunswick became the first province to reach a federal health funding agreement with Ottawa. Highlights of the 10-year deal:

  • $230 million in additional funding for home care and mental health
  • Annual Canada Health Transfer payments to province will increase by rate of national GDP growth or 3%, whichever is higher
  • Most favoured nations treatment, i.e., if another province gets better financial terms from the feds, New Brunswick would also get those benefits.

Collective Bargaining
Dec. 9: New Brunswick and CUPE Local 1253 representing roughly 1,700 school employees inked a new 5-year collective agreement providing for annual wage increases of 1%.

NEWFOUNDLAND & LABRADOR

LAWS & ANNOUNCEMENTS

Labour Standards
Dec. 5: Newfoundland extended compassionate care leave from 8 to 28 weeks and the period during which leave can be taken from 26 to 52 weeks. The move brings the province into line with the recent extension of federal EI compassionate care benefits eligibility from 6 to 26 weeks.

 Wages and Salary
Dec. 20: The newly proposed Public Sector Compensation Transparency Act would require government departments, agencies, commissions and other bodies to publish an annual list of employees making over $100,000 during the year by June 30. The bill is modeled after legislation adopted in BC, Alberta, Manitoba, Ontario and Nova Scotia.

Workers’ Compensation
Dec. 12: Changes to workers’ comp law would establish the presumption that cancers suffered by firefighters are work-related, including breast, bladder, colorectal, esophageal, kidney, lung, testicular and ureter cancer and Non-Hodgkin Lymphoma.

NORTHWEST TERRITORIES

LAWS & ANNOUNCEMENTS

Mining
Dec. 12: Almod Diamonds Ltd. has secured official GNWT approval as a secondary Diamond Manufacturer and is expected to begin operations in Yellowknife, creating approximately 10 new full-time positions.

Workers’ Compensation
Jan. 1: The WHSCC is keeping NWT and Nunavut average workers’ comp rates at $2.00 per $100 assessable payroll for the third year in a row. However, the Year’s Maximum Insurable Remuneration is increasing from $88,600 to $90,600.

NOVA SCOTIA

LAWS & ANNOUNCEMENTS

Workers’ Compensation
Jan. 1: The average assessment rate for 2017 is $2.65 per $100 assessable payroll for the 13th year in a row but rates are going up 6% for long-term care and 13% for home care. The good news is that rates are going down for roughly 58% of employers, including a 16% decrease in the fishing industry group rate.

 CASES

Court Nixes Injured Worker’s “Misfeasance” Claim against WCB Officials
A worker denied workers’ comp benefits for a knee injury sued WCB officials for what he contended was their deliberate sabotaging of his claim. Although the case may have been mishandled, the WCB denied acting in bad faith and claimed immunity under (Sec. 167 of) the Workers’ Compensation Act which bars lawsuits against WCB officials over the way they carry out their duties as long as they act in good faith. The court agreed that the worker had no chance of winning his case and tossed the claim without a trial [McDougall v. Nova Scotia (Workers’ Compensation Board), 2016 NSSC 333 (CanLII), Dec. 8, 2016].

NUNAVUT

LAWS & ANNOUNCEMENTS

Jobs
Dec. 22: The fed’s newly announced indefinite moratorium on Arctic offshore oil and gas development by the government is a blow for Nunavut and the neighbouring Northwest Territories. The governments of both territories expressed disappointment in the decision and criticized Ottawa for failing to consult them before making it.

ONTARIO

LAWS & ANNOUNCEMENTS

Immigration
Dec. 16: A new information-sharing agreement between Ontario and the federal government will make it easier to monitor employer compliance with temporary foreign workers requirements and identify violations.

Pensions
Jan. 1: Key provisions of the pension advisory committee (PAC) rules taking effect:

  • Covers all Ontario plans except jointly sponsored plans, multi-employer plans created under a collective agreement and plans with fewer than 50 members
  • Rules triggered when administrator gets notice of intent to establish a PAC from a union representing at least 10 members
  • Upon getting notice, administrator must set up member vote on PAC by secret ballot
  • If PAC is voted in, it must comprise 4 to 15 representatives, including 1 from each class of employee in plan and 2 appointed by retired members
  • Pension fund must pay reasonable costs of establishing the PAC, including the costs of holding the vote.

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.

CASES

Court Okays Massive Overtime Class Action against Brokerage Firm
An analyst claimed his brokerage firm cheated him on overtime and filed a class action lawsuit purporting to represent the roughly 1,000 current or former non-management employees in the same position. The firm contended that the case couldn’t be brought as a class action and that each employee had to file his/her own complaint individually. But the court disagreed. There were enough common issues—employees all signed the same basic employment contract incorporating the same basic overtime rules—to let the case go forward as a class action [Bozsik v Livingston International Inc., 2016 ONSC 7168 (CanLII), Nov. 17, 2016].

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
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

QPP
Jan. 1: Here are the QPP rates for 2017:

QPP RATE 2017 2016
Maximum pensionable earnings $55,300 $54,900
Employer contribution rate 5.400% 5.325%
Employee contribution rate 5.400% 5.325%
Annual maximum contribution $2,797.20 $2,737.05
Self-employed maximum $5,594.40 $5,474.10


QPIP
Jan. 1: QPIP rates are unchanged from 2016 but maximum insurable earnings and contributions are higher:

RATE 2017 2016
Maximum insurable earnings $72,500 $71,500
Employee contribution rate 0.548% 0.548%
Employer contribution rate 0.767% 0.767%
Annual maximum employee contribution $397.30 $391.82
Annual maximum employer contribution $556.08 $548.41


Tax Forms
Dec.: New MRQ forms and publications this month:

LAWS & ANNOUNCEMENTS

Pensions
Jan. 4: Although the rules and procedures for unlocking money from a pension plan remain the same, the FCAA revised its Unlocking Pension Money bulletin to reflect the 2017 YMPE (Year’s Maximum Pensionable Earnings) of $55,300.

Workplace Safety
Dec.: It was an unusually busy month for OHS fines.

Company Fine Incident Offence
Apex Distribution Inc. $110,005 Steel rods transferred from one trailer to another fall on and seriously injure worker Failing to ensure that only trained workers operate powered mobile equipment
Prince Albert Co-operative Assoc. Ltd. $50,001 Worker’s hand makes contact with table saw Failing to safeguard workers from dangerous machine parts
Rest-Well Mattress Co. Ltd. $40,001 Worker injured after machine table he was repairing pinches his head Failing to safeguard workers from dangerous machine parts
SJLL Construction Ltd. $1,680 Worker hospitalized after suffering nail gun injury Failure to notify government of work injury resulting in hospitalization of a worker


Workers’ Compensation
Dec. 20:  Erstwhile Bill 39 took effect creating a presumption that post-traumatic stress disorder and other psychological injuries suffered by workers are work-related. The presumption, which can be rebutted, is triggered regardless of whether the psychological injury results from a single, discrete traumatic event or is suffered cumulatively as the result of smaller, minor stresses endured over time.

YUKON TERRITORY

LAWS & ANNOUNCEMENTS

Human Rights
Dec.: The new Liberal government said it plans to bring Yukon’s human rights laws into line with the rest of the country by adding transgender as a grounds protected from employment and other forms of discrimination. That would leave New Brunswick as the lone province without specific transgender protections in its human rights legislation. Also on the table: amending the Vital Statistics Act so that transgender persons can change their legal gender without having surgery.

CASES

Fired Employee Can’t Use OHS Bar on Retaliation to Sue for Money Damages
When extensive probation didn’t work, a government agency decided to part ways with an employee with a confrontational attitude. The employee contended that she was really fired for raising safety concerns and brought a retaliation lawsuit under the OHS Act claiming money damages for everything from wrongful dismissal to negligent supervision. But the court threw out the case. OHS protection from retaliation isn’t grounds for a civil lawsuit for money damages. So even if she could prove her charges, she had zero chance of winning the case, the court ruled [Wood v Yukon (Highways and Public Works), 2016 YKSC 68 (CanLII), Dec. 7, 2016].