Payroll Month in Review – July 2017

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

Case of the Month: Supreme Court Nixes Employee’s Drug Addiction Excuse for Safety Violations

Dealing with drug addiction is a thorny legal issue for HR managers, especially at dangerous work sites like mines and construction projects. Addiction can create significant safety risks for not just the addicted employee but his/her co-workers. By the same token, drug addiction is also considered a disability under human rights laws. And this begs a crucial question that the Supreme Court of Canada has just addressed: Does a drug addict’s protection against employment discrimination constitute an excuse for violating workplace safety rules?

THE CASE

What Happened: An Alberta coal mine operator’s “no free accident” policy required employees to disclose whether they had any drug addictions or dependencies. Those who came forward would be offered treatment; but if they failed to disclose and later got into an accident and tested positive for drugs, they’d be terminated. A loader driver addicted to cocaine chose the latter option. Sure enough, he got into an accident, tested positive and got fired. He claimed disability discrimination but the Alberta Human Rights Tribunal threw out his case.

What the Court Decided: The Supreme Court of Canada said the Tribunal’s ruling was reasonable and refused to overturn it.

How the Court Justified the Decision: Although the majority agreed that firing the driver wasn’t discrimination, they did so for different reasons:

Theory 1: He Was Fired for Violating Policy, Not Being an Addict: The “no free accident” policy was a legitimate safety measure. The driver acknowledged that he knew about the policy but contended that the self-denial associated with his addiction made it impossible for him to come forward and disclose it. But the Court didn’t buy it. He knew that using drugs outside work was dangerous and was perfectly capable of following the policy. The reason he was fired was that he deliberately chose not to, not because he was an addict.

Theory 2: He Was Fired for Being an Addict but Legally So: Another group of Justices found that addiction was at least one factor in the driver’s termination. But while that was enough to taint the decision, it wasn’t enough to prove discrimination. The driver also had to show that the employer failed to accommodate him to the point of undue hardship. The reason he should lose the case was that he couldn’t clear that hurdle. Drug use in a coal mine could have disastrous consequences. The threat of serious and immediate termination was crucial to deter such use. Imposing a lesser penalty on the driver would have undermined the deterrent effect of the policy and imposed undue hardship on the employer, the Justices reasoned.

Stewart v. Elk Valley Coal Corp., 2017 SCC 30 (CanLII), June 15, 2017

TAKEAWAY

Stewart comes just two months after an Ontario court upheld the Toronto Transit Commission’s random drug and alcohol testing policy in the Amalgamated Transit Union, Local 113 case. Once again, the message seems to be that the employer’s interest in ensuring workplace safety trumps personal privacy and disability discrimination rights. Of course, it’s a lot more subtle than that.  Thus, while the Stewart case continues the recent judicial momentum in favour of highly restrictive drug policies, we need to be careful not to overblow its significance for future cases. Some caveats to keep in mind:

  • Like Amalgamated Transit, Stewart took place in a highly dangerous work setting for which unusually severe health and safety measures were easy to justify;
  • The non-punitive treatment offered to voluntary disclosers made the harsh disciplinary provisions for non-disclosers much easier to justify as a safety measure to deter drug use;
  • The crucial finding in Stewart that the driver’s addiction had no relation to his decision not to obey the “no free accident” policy is highly questionable (the concurring Justices did, in fact, question it) and doesn’t preclude other courts from finding that addiction did play a role in an employee’s violations in future cases.

FEDERAL

LAWS & ANNOUNCEMENTS

Human Rights
June 19: Bill C-16, adding gender identity and gender expression to the list of human rights act grounds protected from employment discrimination received Royal assent and is now officially law. C-16 also protects the trans-gendered against hate crimes.

Diversity
Aug. 4: That’s the deadline to apply for a grant under the new federal Workplace Opportunities: Removing Barriers to Equity program designed to promote hiring of women, indigenous people and the disabled. The program is open to federally-regulated organizations in the private sector and requires submission of a project proposal for deploying minority hires.    

Labour Law
June 17: Newly adopted Bill C-4 rolls back the tory government’s controversial labour reforms and restores the union certification rules as they were before June 2015:

  • Removal of workers’ guarantee of anonymity in certification voting
  • Secret ballot required only in limited circumstances
  • Unions automatically certified upon providing Board evidence of support by 50% of workers +1
  • Unions automatically decertified if workers show Board 50%+1 support for decertification (as opposed to 40% under current rules)
  • Elimination of union financial disclosure to member obligations.

Immigration
June 19: Effective today, applicants don’t have to continue living in Canada once they’re granted Canadian citizenship. Dual citizens living in Canada convicted of crimes against the national interest will no longer automatically lose Canadian citizenship. This is just the first wave in a series of changes in citizenship rules taking effect under newly adopted Bill C-6.

Pensions
June 28: OSFI revised its Instruction Guide for completing the OSFI 49 Annual Information Return and OSFI 49A Schedule A—CRA Information Requirements. The good news is that most of the changes are minor and cosmetic. 

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

CASES 

Overtime or Standby Pay for Monitoring Flight Data Every 30 Minutes?
Employees monitor aircraft over the Atlantic by checking a computer-generated email report. Although they can do the checks on their smartphone, they also need to be available to respond in case of emergencies. They receive standby pay for the shift plus overtime for the time they actually spend checking and, if necessary, responding to emails. No dice, said the Board. They should get overtime for the entire shift, including downtime. They weren’t really on standby because they had to work every 30 minutes, the Board reasoned. The employer appealed but to no avail [Canada (Attorney General) v. Canadian Federal Pilots Association, 2017 FCA 100 (CanLII), May 10, 2017].

ALBERTA

LAWS & ANNOUNCEMENTS

Human Rights
June: The Human Rights Commission updated its information sheet on grounds protected from discrimination to add definitions of “gender identity” and “gender expression.” 

Drugs & Alcohol
July 31: That’s the deadline for Albertans to weigh in on how the province should manage cannabis once the feds legalize it by July 2018. Although legalization will be federally mandated, each province must adopt its own regulatory framework addressing workplace safety and other issues associated with legal cannabis.   

Pensions
June 30: Last call to comment on a trio of draft pension-related Interpretive Guidelines from the Superintendent:

CASES

Is $15K Too High a Penalty for Sexually Harassing a Waitress?
The restaurant owners said it was and cited about a half dozen other cases where sexually harassed waitresses got between $1.5K and $5K in damages. But the Human Rights Commission upheld the $15K award. This case was more serious. It involved 3 instances of unwelcome touching, including a pair of buttocks-gropes, over a 4-month period. Adding insult to injury, sex harassment was also a factor in the waitress’s termination [Mandziak v Taste of Tuscany Ltd., 2017 AHRC 10 (CanLII), May 17, 2017].

BRITISH COLUMBIA

LAWS & ANNOUNCEMENTS

Minimum Wage
Sept. 15: The BC general minimum wage is going up 50¢ to $11.35 on that date. An identical increase will send the minimum wage for liquor servers to $10.10 per hour.

Pensions
June 16: Responding to reported irregularities, the Superintendent issued a new bulletin (PENS 17-002) setting out its expectations on how plans should list termination expenses in their actuarial reports. The solvency valuation should provide for expenses that may reasonably be expected to be paid by the pension fund under the termination scenario between the valuation date and wind-up of the plan, i.e., date when all plan benefits are settled and assets are distributed, according to the Bulletin.

Workers’ Compensation
Sept. 15: That’s the deadline to comment on a new WorkSafeBC proposal to stop using the projected total cost of permanent disability awards to calculate employers’ experience rating (ER). Instead, of capitalized value, award amounts would be included as they’re paid out to workers over time.

CASES

High Court: No Negligence Suits against WorkSafeBC for Workers’ Comp Denials
A helicopter factory technician collected workers comp after hurting his back at work. But WorkSafeBC (the Board) cut off his benefits after finding his degenerative disc to be a preexisting condition that the work incident didn’t aggravate. Having exhausted his appeals options, the technician sued the Board for negligently mishandling his claim. But while the strategy was creative, it was also a legal non-starter. The Board has exclusive jurisdiction to determine if injuries are work-related under workers’ comp and are immune from civil lawsuits for money damages, ruled the BC Court of Appeal [Gill v. WorkSafeBC, 2017 BCCA 239 (CanLII), June 15, 2017].

MANITOBA

LAWS & ANNOUNCEMENTS

Pharmacare
June 26: In a move designed to help Manitobans recover from opioid addictions, Pharmacare has removed coverage criteria for suboxone, a drug often used as an opioid replacement option.

Collective Bargaining
May 25: Highlights of the newly ratified 3-year collective agreement between Aramark Restaurants and UFCW Local 832:

  • Annual 2.5% wage increases, starting retroactively from Oct. 1,2016
  • Increased footwear allowance and dental benefits
  • Higher employer pension contributions.

Workplace Safety
June 19: Highlights of Manitoba WCB’s newly published 2016 Annual Report:

Metric 2016 Result 2016 Target 2015 Result
Lost time injury rate (per 100 workers) 2.9 2.9 3.0
Days lost to injury rate (per 100) 1.67 1.67 1.68
Total work injuries 28,960 28,100 28,969
Total time loss injury claims 14,167 14,442
Severe injuries 2,548 2,450 2,524

 

NEW BRUNSWICK

LAWS & ANNOUNCEMENTS

Pay Equity
June 27: New Brunswick has agreed to make $8.4 million in equity adjustment payments over the next 10 years to compensate government union employees who weren’t paid value commensurate with their work. The money will go to 3 groups heavily represented by women   including professional support workers in schools, specialized health care professionals and medical professionals.

Drugs & Alcohol
July 31: That’s the last day to weigh in how you think cannabis legalization should be implemented in New Brunswick, including with regard to employment and workplace safety issues.

Collective Bargaining
June 22: The New Brunswick Medical Society officially ratified a new 4-year physician services master agreement with the province. Highlights:

  • Covers both salaried and fee for service physicians
  • Annual 1% salary increases, starting retroactive to April 1, 2016
  • Review of existing fee codes affected by recent technological changes
  • Creation of Family Medicine New Brunswick agency to recruit primary care physicians to the province. 

Workplace Safety
June 1: WorkSafeNB ran up a $114.8 million operating deficit in 2016 thanks to higher than expected claim costs. Key safety from the newly published 2016 Annual Report:

  • Fatalities: 18
  • Accident frequency (per 100 FTE): 3.06 (vs. 3.05 in 2015)
  • Lost-time workplace injury rate: 1.15 (same as 2015)
  • Employers with at least one day lost-time claims: 5,698
  • Employers with no lost-time claims: 4,769.

CASES

Failure to Renew Fixed Employment Contract Wrongful Dismissal
After 38 years of signing an administrator to a one-year contract, a university finally decided not to renew. The administrator claimed wrongful dismissal but the court disagreed. The arrangement was a series of fixed deals for which renewal wasn’t guaranteed. Each contract was different and there were gaps in between contracts. Accordingly, the university was free to walk away after each deal expired without paying the administrator termination notice [Burns v. UNB, 2017 NBQB 104 (CanLII), June 7, 2017].

NEWFOUNDLAND & LABRADOR

LAWS & ANNOUNCEMENTS

Minimum Wage
June 12: The government released a report summarizing public feedback on how future minimum wage increases should be made and recommending a transparent mechanism tied to the cost of living index. Meanwhile, the next increase is slated for Oct. 1 when the minimum wage goes up 25¢ to $11.00 per hour.

Drugs & Alcohol
June 30: That’s the last day to fill out a survey letting the government know what you think about how cannabis legalization should be implemented in the province, including with regard to employment and workplace safety issues.

Workplace Safety
June: In 2016, Newfoundland’s lost-time injury/illness rate fell to an all-time low of 1.5 per 100 workers. The bad news is that the rate has dropped only 0.1% over the past 5 years. On the other hand, back in 1989 the rate was 5.2(!) per 100 workers. Work fatalities fell nearly 50% from 24 to 13 year-over-year.

NORTHWEST TERRITORIES 

LAWS & ANNOUNCEMENTS

Apprentices
May 31: The GNWT outlined a new strategy to promote growth of the apprentice and skilled trades sectors via education, targeted business incentives and collaboration with private industry.

NOVA SCOTIA

LAWS & ANNOUNCEMENTS 

Workplace Safety
June 12: New OHS laws (erstwhile Bill 165) took effect clarifying which work injuries and illnesses must be reported and giving government safety inspectors broad new powers to crack down on repeat offenders including authority to:

  • Issue stop-work orders at all sites of a repeat offender
  • Seek a court order barring repeat offenders from working in an industry
  • Require repeat offenders to provide notification of their future work locations and activities.

Workers’ Compensation
June 15: An all-time low time-loss injury rate of 1.74 and a robust solvency ratio of 84.1% are the headliners of the WCB’s newly published 2016 Annual Report.

Metric 2016 2015 2014
Time-loss claims 5,847 6,014 5,953
Lost time injury rate (per 100 workers) 1.74 1.84 1.82
Total claims 24,311 23,933 24,505
Acute workplace fatalities 2 8 5
Chronic fatalities 18 19 14
Leading cause of injury Sprains/strains: 63.5% Sprains/strains: 64% Sprains/strains

Solvency ratio 84.1% 80.4% 76.99%


NUNAVUT

LAWS & ANNOUNCEMENTS

Workers’ Compensation
June 14: WSCC issued a warning to seasonal morel mushroom workers: If you want workers’ comp coverage, you won’t get it through your employer; instead, you need to buy Personal Optional Coverage from the WSCC.

ONTARIO

LAWS & ANNOUNCEMENTS

Minimum Wage
June 1: Newly proposed Bill 148 (Fair Workplaces, Better Jobs Act, 2017) would raise Ontario’s minimum wage to $15 per hour, effective Jan. 1, 2019. Meanwhile, the following minimum wage hikes will take effect this October:

Minimum Wage Current Hourly Rate Rate as of Oct. 1, 2017
General $11.40 $11.60
Student $10.70 $10.90
Liquor Servers $9.90 $10.10
Hunting & Fishing Guides $56.95 for less than 5 consecutive hours in a day

 

$113.95 for 5 or more hours in a day (whether or not hours are consecutive)

$58 for less than 5 consecutive hours in a day

 

$116 for 5 or more hours in a day (whether or not hours are consecutive)

Homeworkers $12.55 $12.80

 

Labour Laws
June 1: Although the ESA proposals are getting most of the attention, Bill 148 also includes significant changes to labour laws:

  • Allow card-based union certification for building services, home care and community services and temp agencies
  • Unions’ right to access complete list of an organization’s employees and contact info upon demonstrating support of 20% of workforce
  • Certification votes could be held outside workplace or electronically
  • OLRB right to consolidate separate bargaining units into one
  • Elimination of 6-month limit on when employees can return to work after starting a legal strike
  • Increase maximum fines to $5K for individuals and $100K for organizations.

Human Rights
June 19: The Ontario Human Rights Commission issued a new policy statement explaining the interplay between the Human Rights Code and French-language minority rights. Punchline: Even though language isn’t a protected ground under the Code, treating people differently because they’re Francophones is discriminatory if it’s based on prejudices or stereotypes. But such treatment is okay if it’s not tied to nationality, race, creed or other Code ground, e.g., where proficiency in a language other than French is a legitimate requirement for job performance.

Collective Bargaining
June 12: Ontario offered the roughly 35,000 public workers represented by the OPSEU a 4-year contract extension with a 7.5% salary increase. That’s a significant step-up from the previous deal which featured no raise in 2015 or 2016, a 1.4% lump sum payment in 2016 and 1.4% raise in 2017.

Trades
July 30: That’s the deadline to comment on an MOL proposal to revise the trade classification panels criteria under the Ontario College of Trades and Apprenticeship Act, 2009. Under changes that took effect last December, classifications reviews will be carried out by a newly created agency called the College of Trades Appointments Council and Classification Roster.

Pensions
May: FSCO reported strong DB pension numbers for the quarter ended March 31, 2017. The median solvency ratio was 93%, vs. 91% as of Dec. 31, 2016.  63% of plans had a solvency ratio between 85% and 100%, and 22% had ratios above 100%.

Workplace Safety
Oct. 1: That’s the new deadline to provide fall protection training to workers working at heights on a “construction project.”

Workers’ Compensation
July 7: That’s the deadline to comment on the WSIB’s proposed coverage rules for work-related chronic mental stress. The operable word is “chronic,” which means that workers will be covered not just for traumatic stress but “mental stress caused by a substantial work-related stressor, including bullying or harassment.” Decisions or actions affecting the worker’s job duties, work conditions and/or discipline would not be deemed due to work-related chronic stress, according to the WSIB.

CASES

Employee Socked with Legal Bill after Losing Constructive Dismissal Case
Two days after her longtime friend and mentor resigned, a telecom employee did likewise. She then sued the company for constructive dismissal claiming she was forced out by longer hours and a poison work environment. She also asserted emotional distress and other claims. But the court didn’t buy any of it. The real reason she left was because she was unhappy with management and the company’s direction, it found. Finding no cause to second-guess the lower court, the Court of Appeal upheld the ruling but ordered the employee to pay $15K to cover the company’s legal costs [Persaud v. Telus Corporation, 2017 ONCA 479 (CanLII), June 9, 2017].

PRINCE EDWARD ISLAND

LAWS & ANNOUNCEMENTS

Privacy
July 1: A new medical privacy law called the Health Information Act takes effect. In addition to limiting collection, use and disclosure of an individual’s protected health information, the law gives patients the right to access their own health records.

Workplace Safety
June 26: The WCB 2016 Annual Report is out. Key takeaway: A modest dip in time-loss injury rates failed to offset sharp rises in claims numbers. Of course, the relatively small numbers add a relative degree of volatility to trends and year-to-year to differences in PEI.

Metric 2016 2015
Time-loss claims 942 866
Total claims adjudicated 1,884 1,776
Lost time injury rate (per 100 workers) 1.77 1.79

 

QUÉBEC

LAWS & ANNOUNCEMENTS 

Young Workers
June 1: With the arrival of summer, CNEST is calling on employers to pay special attention to keeping young workers safe. Every day, 28 workers under age 24 suffer work accidents, notes the CNEST bulletin.

Pensions
Dec. 31: That’s the deadline to provide employees access to a voluntary retirement savings plan if you had at least:

  • 5 eligible employees on Dec. 31, 2016; and
  • 10 or more eligible employees on June 30, 2017.

Tax Forms
June: New MRQ forms and publications issued this month:

  • TP-41.C-V, Calculation of an Automobile Benefit
  • TP‑1‑V, Income Tax Return, Schedules and Guide
  • RD-1029.7-V, Tax Credit for Salaries and Wages (R&D
  • FP‑2116‑V, Authorization for a Qualifying Institution to Use Particular Methods: Application, Renewal or Revocation
  • FP-4618-V, Election or Revocation of an Election to Have a Pension Entity Be the Designated Pension Entity in Respect of a Master Pension Entity for GST/HST and QST Purposes
  • IN‑294‑T, Attestation de Revenu Québec – Information destinée aux agences de placement de personnel, aux clients de ces agences et aux entrepreneurs en construction (English courtesy translation)
  • LM‑1.AD‑V, Notice of Change of Address
  • ADM-597-V, Charter of Taxpayers’ and Mandataries’ Rights.

SASKATCHEWAN

LAWS & ANNOUNCEMENTS

Minimum Wage
June 26: A 24¢ increase will send the Saskatchewan minimum wage to $10.96 per hour on October 1, the government announced.

Pensions
June 30: That’s the deadline to comment on a Financial and Consumer Affairs Authority proposal to increase registration and filing fees for pension plans:

OHS Scorecard
June: Saskatchewan OHS fines issued this month (listed by recency): 

Fine Offender Offence(s)
$60,000 Meridian Development Corp. Failure to ensure competent supervision after worker suffers severe leg injury when glass panel falls on top of him
$10,500 Worker named Justin Cox Worker’s failure to lock out machine exposes 2 co-workers to arc flash causing second degree burns to their hands, arms and faces
$5,250 Dalton Parisian No fall protection for workers 3 metres or more high after roofer suffers serious head injuries in fall to concrete driveway
$1,400 Aesthetic Developments Inc. OHS inspector spots workers not wearing proper fall protection on roof of two-storey home

 

Workers’ Compensation
June 30: That’s the deadline to comment on proposed changes designed to modernize the Workers’ Compensation Board structure and speed up the processing and appeal of benefits decisions.

CASES 

No Causal Connection between Employee’s Safety Concerns & His Firing
An equipment operator was fired 2 months into his probationary employment. He claimed that the firing was in retaliation for his complaining about waste disposal bins being too close to overhead electrical wires. Protection against retaliation applies to probationary employees, the arbitrator acknowledged. But the evidence showed that while the operator complained to co-workers, he didn’t express his safety concerns to management until after he was terminated. So the firing wasn’t retaliatory. The Board found the arbitrator’s ruling reasonable and refused to overturn it [Lund v West Yellowhead Waste Resource Authority Inc., 2017 CanLII 30151 (SK LRB), May 8, 2017].

YUKON TERRITORY

LAWS & ANNOUNCEMENTS

Human Rights
June 14: Add Yukon to the list of jurisdictions to officially make gender identity and gender expression grounds protected from discrimination under human rights laws. The newly passed legislation also changes the Vital Statistics Act by removing the requirement that individuals have sex change surgery to change the gender listed on their birth certificate.