Many important changes to
employment standards laws were made during the
period under review. In British Columbia, the
Employment Standards Act was amended to
provide for the right to compassionate care leave
for qualifying employees. In the federal
jurisdiction, a regulation under the
Employment Insurance Act has expanded the
list of persons in respect of whom an employee can
claim compassionate care benefits. In addition,
the legislative assembly of Ontario amended the
Employment Standards Act, 2000 in order
to provide employees with the right to take unpaid
leave during a declared state of emergency.
Other significant developments
include: the adoption of regulations in five
jurisdictions (Manitoba, New Brunswick, Prince
Edward Island, Quebec and Yukon) to increase
minimum wage rates; changes to administration and
enforcement provisions in Saskatchewan, British
Columbia and Ontario; and the enactment of
legislation in the federal jurisdiction intended
to guarantee workers quick payment of unpaid wages
where their employer has become bankrupt or
subject to a receivership. It should also be
mentioned that Nova Scotia made numerous
amendments to provisions concerning workers who
are employed in retail businesses.
With respect to human rights,
two provinces (Ontario and Newfoundland and
Labrador) adopted legislation with a view to
eliminating mandatory retirement at the age of 65
years. In the field of pay equity, Quebec made
changes to its legislation in order to facilitate
its application to the public sector. Finally,
legislation was introduced in both the federal
jurisdiction and Manitoba to protect
whistleblowers.
There were several developments
in the area of labour relations legislation. Nova
Scotia passed legislation to amend the Trade
Union Act, in order to establish an expedited
grievance arbitration procedure (that will also be
applicable under other collective bargaining laws
in the province) and to add new provisions
regarding unions’ duty of fair representation. In
the broader public sector, the federal Public
Service Labour Relations Act was proclaimed
into force and Ontario made changes to the scope
of the Public Sector Labour Relations
Transition Act, 1997. The Parliament of
Canada passed legislation to amend the
Bankruptcy and Insolvency Act and the
Companies’ Creditors Arrangement Act, in
order to provide procedures to facilitate the
renegotiation of collective agreements under
defined circumstances. Moreover, two emergency
legislative measures were adopted in the past
year: in British Columbia, to settle a dispute in
the education sector and, in Quebec, to forestall
a potential labour dispute in the public service.
Quebec also amended the Act respecting labour
relations, vocational training and manpower
management in the construction industry,
primarily to help prevent the use of intimidation,
discrimination and coercion by certain elements in
the construction sector. Also worth mentioning is
the signing of an agreement on labour mobility in
the construction industry by the Quebec and
Ontario governments, which has led to regulatory
adjustments in each province. Finally,
Newfoundland and Labrador made significant
amendments to the Fishing Industry Collective
Bargaining Act to establish new collective
bargaining procedures for fishers and processors.
In addition, several
jurisdictions made legislative and regulatory
amendments to their occupational health and safety
legislation during the past year, including
Newfoundland and Labrador (extending certain
legislative provisions to health and safety
designates, changing the limitation period for
prosecutions); the federal jurisdiction (requiring
the development, implementation and monitoring of
a hazards prevention program in the workplace);
Ontario (adopting a new Confined Spaces
Regulation, providing for the publication of
the name of convicted offenders); Prince Edward
Island (setting new safety requirements,
increasing the maximum amount of fines); and
British Columbia (making various changes to health
and safety requirements).
Other legislative changes in the
area of occupational health and safety have dealt
with more specific issues. Three
jurisdictions—Alberta, Nova Scotia and the
Northwest Territories—have proclaimed or enacted
new legislation to prohibit smoking in indoor
workplaces and public places. Prince Edward Island
adopted new regulatory provisions to deal with
violence in the workplace and to improve the
safety of persons working alone. Ontario also
adopted new or revised occupational exposure
limits for 23 workplace hazardous substances. In
addition, to deal with certain biological risks,
legislation regarding the mandatory testing of
bodily substances in defined circumstances was
proclaimed in Saskatchewan. Similar legislation
was passed (but not yet proclaimed) in Alberta and
introduced in Ontario’s legislature. Saskatchewan
also revised provisions of the Occupational
Health and Safety Regulations, 1996 dealing
with exposure to infectious materials or
organisms. This includes new requirements to use
safe needles in health care and other defined
workplaces. Nova Scotia also enacted legislation
to reduce the risk of needlestick injuries.
Lastly, amendments were also
made to regulations pertaining to pressure
equipment safety (in Alberta), first aid (in
Newfoundland and Labrador), hours of service for
commercial vehicle drivers (in the federal
jurisdiction), mine safety (in Quebec,
Newfoundland and Labrador and the federal
jurisdiction), construction safety (in Ontario),
and safety in diving operations (in Nova Scotia
and Newfoundland and Labrador).
I. EMPLOYMENT
STANDARDS
A. Compassionate Care Leave and Benefits
British Columbia
has amended the Employment Standards Act
to provide for the right to compassionate care
leave for qualifying employees. The Employment
Standards (Compassionate Care Leave) Amendment
Act, 2006 (Bill 8) was assented to on
April 8, 2006. Under this Act, an employee has the
right to take up to eight weeks of unpaid leave to
provide care or support to a family member if a
medical practitioner issues a certificate stating
that the family member has a serious medical
condition with a significant risk of death within
26 weeks (or another period prescribed by
regulation). A "family member" is defined as a
member of the employee’s immediate family and any
other prescribed individual. The "immediate
family" of an employee has the same definition as
that which applies to family responsibility and
bereavement leave (i.e., the spouse, child,
parent, guardian, brother, sister, grandchild and
grandparent of the employee or a person who lives
with the employee as a member of his/her family).
There are no length-of-service
or other eligibility conditions under this Act in
order to qualify for compassionate care leave.
However, an employee is required to provide a copy
of the medical certificate to his/her employer as
soon as practicable. Where two or more employees
provide care or support to the same person, they
are not required to share the leave.
Although the eight weeks of
leave can be broken up, each period of leave must
have a minimum duration of one week. Moreover, an
employee can only exercise his/her right to leave
during the period that begins on the first day of
the week in which the medical certificate is
issued (or the first day of the week in which the
employee begins leave) and ends on the last day of
the week in which a period of 26 weeks (or another
period prescribed by regulation) has elapsed since
the date that the employee began his/her leave.
However, if the family member dies before the end
of this period, the right to leave ends on the
last day of the week in which the death occurs.
It should be noted that if the
family member survives beyond the end of the
period referred to in the medical certificate, the
employee has the right to take further
compassionate care leave, provided he/she gives
his/her employer a new medical certificate.
The job protection measures
(including the protection of seniority and
benefits) that apply with respect to maternity,
parental, family responsibility, bereavement and
jury duty leave also apply to an employee taking
compassionate care leave. Moreover, the periods of
employment preceding and following the leave are
deemed to be continuous for the purposes of
pensions, medical plans and other benefits, as
well as for vacation entitlement and length of
service when calculating notice of termination.
Finally, the employee can opt to continue to
contribute his or her share of any benefit plan
during the leave, in which case the employer must
also continue to contribute. If the employer pays
the total cost of a plan, he/she must continue to
make the payments as if the employee were not on
leave.
The Act was proclaimed into
force on April 27, 2006.
It is worth mentioning that
legislative provisions for compassionate care
leave now exist in all Canadian jurisdictions,
with the exception of Alberta and the Northwest
Territories. Such provisions first came into force
in Saskatchewan in 1995, in Quebec and Prince
Edward Island in 2003, and the federal
jurisdiction, Manitoba, New Brunswick,
Newfoundland and Labrador, Nova Scotia, Nunavut,
Ontario and Yukon in 2004. However, there are
noticeable differences across the country with
respect to the maximum duration of leave,
eligibility requirements (i.e., required length of
service and minimum notice periods), the
definition of "family member" (i.e., the persons
in respect of whom an employee may take leave) and
the manner in which leave may be taken (i.e.,
sharing and/or fractioning of leave), as well as
the protection of benefits and seniority during
leave. Comparative information regarding
compassionate care leave is available on the Human
Resources and Social Development Canada website.1
Finally, in the federal
jurisdiction, a new regulation adopted
under the Employment Insurance Act has
expanded the list of persons in respect of whom an
employee can claim compassionate care benefits.
Note that eligibility to take compassionate care
leave under employment standards
legislation is distinct from eligibility to claim
compassionate care benefits under
Employment Insurance (EI).
Under the Employment
Insurance Act and Regulations, claimants who
meet eligibility requirements2
can take up to six weeks of compassionate care
benefits within a 26-week period (or such shorter
period as may be prescribed) to provide care or
support to a "family member", as defined, where
the latter, as attested by a medical certificate,
has a serious medical condition with a significant
risk of death within that period. When these
provisions were first enacted, a "family member"
included only the claimant’s spouse or common-law
partner, child (including the child of a spouse or
common-law partner), or parent (including the
spouse or common-law partner of the claimant’s
parent). Under the Regulations Amendingthe Employment Insurance Regulations (SOR/2006-135),
the definition of "family member" has been amended
to also include siblings, grandparents,
grandchildren, in-laws, aunts, uncles, nieces,
nephews, foster parents, guardians, wards and
gravely ill persons who consider the claimant to
be like a close relative.
This Regulation came into force
on July 14, 2006.
B. Parental
Insurance
In Quebec,
Order-in-Council 984-2005 of October 19, 2005
fixed January 1, 2006 as the date of coming into
force of any section not yet in force of the
Act respecting parental insurance and of the
Act to amend the Act respecting parental
insurance and other legislative provisions.
A summary of the Act
respecting parental insurance is available in
pp. 14-16 of the Highlights of Major
Developments of Labour Legislation, 2000-2001.
The Act to amend the Act respecting parental
insurance and other legislative provisions is
described in p. 4 of the Highlights of Major
Developments of Labour Legislation, 2004-2005.3
It should also be mentioned that
the Regulation under the Act respecting
parental insurance (O.C. 986-2005) took
effect on January 1, 2006.
To determine eligibility under
the parental insurance plan established under the
Act respecting parental insurance, this
Regulation specifies, among other things, the
extent to which a person must contribute under the
plan established under the Employment
Insurance Act, defines an interruption in
earnings and determines the work that comes within
the scope of the Act and the work that is
excluded.
In addition, this Regulation
determines the rules for allocating benefit weeks
if both parents take the weeks concurrently, do
not agree on how they should be allocated, or do
not reside in the same province.
This Regulation provides for the
cases in which a person’s qualifying period may be
extended or differed from the period set out in
the Act respecting parental insurance.
This Regulation also specifies, in relation to the
benefit period, the time when the qualifying
period ends and the reasons that may justify an
extension of the qualifying period.
C. Emergency Leave and Related Matters
In Ontario, the
Emergency Management Statute Law Amendment
Act, 2006 (Bill 56) brought significant
amendments to the Emergency Management Act,
including a change in the title of the Act to the
Emergency Management and Civil Protection Act.
In addition, the Act has been amended to include a
"disease or other health risk" as a recognized
cause of an emergency for which a state of
emergency can be declared in the province (the
other recognized causes of an emergency are the
forces of nature, an accident, or an act that is
intentional or otherwise).
Notably, Bill 56 allows
emergency orders to be made during a declared
state of emergency, including an order authorizing
any person, or class of persons, to render
services that they are reasonably qualified to
provide. Such an order can also stipulate the
terms and conditions of service of those providing
and receiving services, including the payment of
compensation to those providing services. Bill 56
further prohibits the termination of employment of
a person for the reason that he/she is providing
services under an emergency order.
The contravention of an
emergency order can be restrained by the order of
a judge of the Superior Court of Justice.
Moreover, Bill 56 makes it an offence to fail to
comply with an emergency order or to interfere
with or obstruct any person in the exercise of a
power or the performance of a duty conferred by an
emergency order. Unless specifically provided
otherwise, an emergency order prevails over any
other order, statute, regulation rule or bylaw in
case of conflict; however, the Occupational
Health and Safety Act, or any regulation made
under that Act, prevails over an emergency order
and the Emergency Management and Civil
Protection Act.
In addition, Bill 56 has amended
the Employment Standards Act, 2000 (ESA)
to provide for the right to an unpaid leave of
absence from work due to a declared state of
emergency (referred to as "emergency leave").
Accompanying this change, the unpaid emergency
leave of 10 days per year that is also provided
under the ESA has been renamed "personal emergency
leave".
An employee is entitled to take
emergency leave for as long as he/she is not
performing the duties of his/her position because
of the declared state of emergency and
an order made under the
Health Protection and Promotion Act that
applies to him/her;
he/she is needed to provide
care or assistance to one of the following
individuals: his/her spouse;5
a parent,6
step-parent or foster parent of the employee or
his/her spouse; a child, step-child or foster
child of the employee or his/her spouse; a
grandparent, step-grandparent, grandchild or
step-grandchild of the employee or of his/her
spouse; the spouse of a child of the employee;
the employee’s brother or sister; or a relative
of the employee who is dependent on him/her for
care and assistance; or
another prescribed reason.
The entitlement to leave ends on
the day that the declared state of emergency is
terminated or disallowed by the Legislative
Assembly—unless the employee is absent due to an
emergency order that has been extended under the
Emergency Management and Civil Protection Act,
in which case the entitlement to leave continues
during the period of extension.
An employee who takes such leave
is required to advise his/her employer.
Furthermore, the employer can require the employee
to provide reasonable evidence of his/her
entitlement to take leave. The job protection
measures that apply with respect to maternity
leave, parental leave, family medical leave, and
personal emergency leave also apply to an employee
taking emergency leave during a declared state of
emergency.
Finally, an employer must retain
all notices, certificates, correspondence and
other documents given to or produced by him/her
that relate to an employee taking emergency leave
or family medical leave until three years after
the date on which the leave expires. As was the
case before, this provision also applies with
respect to an employee taking personal emergency
leave, pregnancy leave or parental leave under the
ESA.
Bill 56 was assented to on
June 20, 2006. The amendments mentioned above came
into force by proclamation on June 30, 2006.
D. Minimum Wages
Since September 2005, five
Canadian jurisdictions have issued regulations to
amend minimum wage rates.
In Manitoba,
the Minimum Wages and Working Conditions
Regulation (amendment) (Reg. 80/2006) under
the Employment Standards Code increased
the general minimum wage rate from $7.25 an hour
to $7.60 an hour, effective April 1, 2006. This
rate will increase to $8.00 an hour on
April 1, 2007.
In New Brunswick,
the Minimum Wage Regulation
(Reg. 2005-154) under the Employment Standards
Act repealed and replaced the previous
Minimum Wage Regulation, which was issued in
2004.7
This Regulation increased New Brunswick’s minimum
wage rate, which applies for the first 44 hours
worked in a week, from $6.30 to $6.50 an hour. In
addition, for each additional hour worked in the
same week, the minimum rate was increased from
$9.45 to $9.75 an hour (reflecting the overtime
rate). Furthermore, the minimum wage for employees
whose hours of work are unverifiable and who are
not strictly employed on a commission basis was
also raised from $277.20 to $286.00 per week.
These rates came into effect on January 1, 2006.
Additional increases took effect
on July 1, 2006, under the Minimum Wage
Regulation – Employment Standards Act
(Reg. 2006-40). This Regulation repealed and
replaced Regulation 2005-154. Under the new
Regulation, the general minimum wage rate
increased from $6.50 to $6.70 an hour (applying
for the first 44 hours worked in a week).
Moreover, for each additional hour worked in the
same week, the minimum hourly wage was increased
from $9.75 to $10.05. In addition, the minimum
wage for employees whose hours of work are
unverifiable and who are not strictly employed on
a commission basis was also raised from $286 to
$294.80 per week.
As was the case before, an
employer is prohibited from deducting, from the
minimum wage, an amount for board or lodging where
the employee has not received this service.
Moreover, in Prince
Edward Island, the Minimum Wage Order
Amendment (EC2005-518) under the
Employment StandardsAct increased
the minimum wage rate from $6.80 an hour to $7.15
an hour, effective April 1, 2006. This rate will
increase to $7.50 an hour on April 1, 2007,
pursuant to the Minimum Wage Order Amendment
(EC2006-361).
Effective May 1, 2006, under
Quebec’sRegulation to amend
the Regulation respecting labour standards (O.C. 306-2006),
the general minimum wage rate increased from $7.60
an hour to $7.75 an hour, while the rate for
employees who receive gratuities or tips increased
from $6.85 an hour to $7.00 an hour. In addition,
this Regulation increased the rates for employees
assigned mainly to non-mechanized operations
relating to the picking of raspberries,
strawberries or apples. As was the case before,
these rates are established on the basis of yield
(for example, the rate for an employee assigned to
the picking of raspberries increased from $0.467
to $0.476 per 250 ml container).
Finally, in Yukon,
the general minimum wage rate increased from $7.20
an hour to $8.25 an hour on May 1, 2006, pursuant
to a decision of the Employment Standards Board
under the Employment Standards Act.
Furthermore, effective April 1, 2007, and on
April 1 of each subsequent year, this rate will
increase by an amount corresponding to the annual
increase for the preceding year in the Consumer
Price Index (CPI) for the city of Whitehorse. To
date, Yukon is the only jurisdiction in Canada to
tie wage increases to the CPI.
E.
Prohibited Wage Deductions
Under the Employment
Standards Act Regulations of Prince
Edward Island, an employer is prohibited
from making deductions from an employee’s pay,
except for the reasons specified by the
Regulations (e.g. where the deduction is
required or authorized by statute or it is
mutually agreed upon by the employer and
employee). Effective March 25, 2006, Regulation
EC2006-137 has amended the Employment
Standards Act Regulations to specify that
tips and gratuities are the property of the
employee for whom they are intended.
Under this Regulation,
where an employee’s tips or gratuities are based
on the employer’s bills in respect of banquets,
bus tours or other similar events, the employer
must pay the tips and gratuities to the employee
within 60 days of the date of the event. In
addition, where an employer imposes a surcharge or
other charge on a customer in lieu of the payment
of tips or gratuities to an employee, all of the
amounts collected in this respect are deemed to be
the property of the employee and must be
distributed to him/her no later than the time of
the next pay period. An employer cannot pass on
any of its administrative charges, including
credit card or debit card charges, to an employee.
Furthermore, an employer is
prohibited from withholding, or treating as the
wages or partial wages of an employee, the tips or
gratuities intended for the latter (or the amounts
collected as a surcharge or other charge on a
customer in lieu of such tips or gratuities),
unless the employee agrees that they are to be
calculated as additional wages. Moreover, an
employee cannot be required to share a tip or
gratuity with the employer or owner of a work
establishment.
Finally, an employer can pool
tips and gratuities for the benefit of all or some
of its employees; however, this does not give the
employer a proprietary interest in the tips and
gratuities that are pooled. Moreover, an employer
must advise an employee in writing of any policy
of pooling tips and gratuities that is in effect
at the workplace at the time that the latter is
hired.
F. Banking Industry
In the federal
jurisdiction, the Banking Industry
Commission-paid Salespeople Hours of Work
Regulations (SOR/2006-92) under the
Canada Labour Code came into force on
May 11, 2006. Under this Regulation, employees who
work as commission-paid salespeople in the banking
industry in Canada are exempt from the application
of the provisions of the Code concerning
standard and maximum hours of work and the
overtime rate.
G.
Construction Industry
During the period of time
covered by this document, three Canadian
jurisdictions amended regulations that apply to
workers in the construction industry.
First, in Manitoba,
the Construction Industry Minimum Wage
Regulation (119/2006) under the
Construction Industry Wages Act came into
force on June 1, 2006. This Regulation repealed
and replaced the Heavy Construction Minimum
Wage Regulation, the Building
Construction (Rural) Minimum Wage Regulation
and the Building Construction (Winnipeg)
Minimum Wage Regulation under the
Construction Industry Wages Act.
Employees who work in the
heavy construction sector
Under this Regulation, the
occupational classifications for employees working
in the heavy construction sector have been
amended, and their number increased from seven to
ten, to reflect changes in this sector.
Accompanying these amendments, new minimum wage
rates apply to all classifications as of
June 1, 2006. Furthermore, these rates will
increase on January 1, 2007 (e.g. the minimum rate
for a mobile crane operator is $16.75 an hour as
of June 1, 2006 and will increase to $17.70 an
hour on January 1, 2007).
As was the case before, standard
working hours for employees in this sector working
in Winnipeg are 48 per week, from November 1 of
each year to March 31 of the following year. This
Regulation specifies that the standard working
hours from April 1 to October 31 of each year are
50 per week. Moreover, with respect to employees
in this sector working outside of Winnipeg,
standard working hours are 50 per week, regardless
of the time of year.
Employees who work in the
industrial, commercial or institutional (ICI)
sector of the construction industry
Minimum wage rates for employees
working in the industrial, commercial or
institutional (ICI) sectors of the construction
industry are established in accordance with
occupational classification and location of
employment. Previously, four different rates could
apply to one classification, depending on the
location of employment (i.e., one rate for
Winnipeg and one for each of three areas outside
of Winnipeg). Under this Regulation, only two
rates now apply to each occupational
classification, depending on the location of
employment (inside or outside of Winnipeg).
Moreover, the occupational classifications for
employees in these sectors have been amended to
reflect changes to the apprenticeship system in
the province. Accompanying these amendments, new
minimum wage rates apply to all classifications as
of June 1, 2006. Furthermore, these rates will
increase on October 1, 2006.
As was the case before, a person
who works on a "major building construction
project" (as defined), regardless of the place of
his/her employment, must be paid the minimum wage
rate that applies to an employee in the same
occupational classification who is employed in
Winnipeg. However, the definition of a "major
construction project" has been amended to include
a project of at least 25,000 square feet (rather
than 50,000 square feet, as was previously the
case).
Finally, all employees in the
ICI sectors have the same standard hours of work
(i.e. ten hours a day and 40 hours a week).
Previously, standard hours of work were based on
occupational classification and location of
employment.
The Employment Standards Act
of Yukon provides that an
employer who has a contract with the government of
Yukon, even indirectly, for heavy construction or
for the construction of buildings, roads, sewers
or water mains, must pay an employee hired to
fulfil the contract at least the applicable
minimum rate set by the Fair Wage Schedule
(Schedule) under the Act. Under the
Order Amending the Fair Wage Schedule (2005)
(O.I.C. 2005/193), the wage rates provided in the
Schedule for these employees have
increased, effective December 1, 2005, as follows:
from $23.50 per hour to
$26.06 per hour, for an employee whose position
is included in category "A" of the Schedule
(e.g. an electrician or a heavy equipment
mechanic);
from $21.06 per hour to
$23.36 per hour, for an employee whose position
is included in category "B" (e.g. a blaster or a
driller);
from $18.68 per hour to
$20.72 per hour, for an employee whose position
is included in category "C" (e.g. a surveyor’s
helper or a blaster’s helper); and
from $16.95 per hour to
$18.80 per hour, for an employee whose position
is included in category "D" (e.g. a driller’s
helper or a flagperson).
Furthermore, this Order provides
for an annual increase to the rates in the
Schedule, effective April 1, 2006, and again on
April 1 of each subsequent year, by an amount
corresponding to the annual increase for the
preceding year in the Consumer Price Index for the
city of Whitehorse.
It should be mentioned that in
Nova Scotia, Regulation 172/2005
brought amendments to the Minimum Wage Order
(Construction and Property Maintenance) under
the Labour Standards Code.
Among other things, the
Minimum Wage Order (Construction and Property
Maintenance) provides the minimum wage and
overtime rates that are applicable to persons
employed in construction, property maintenance
work and related activities.8
Under Regulation 172/2005, the following persons
are excluded from the application of this Order:
duly qualified practitioners or students of
specified professions;9
supervisors and managers; and employees who hold
confidential positions. The other exclusions
provided under the Order remain in force (e.g.
apprentices subject to an apprenticeship agreement
in accordance with the Apprenticeship and
Trades Qualifications Act).
Regulation 172/2005 came into
force on August 26, 2005.
H. Garment Industry
Under Quebec’sRegulation to amend the Regulation respecting
labour standards specific to certain sectors of
the clothing industry (O.C. 307-2006), the
minimum wage payable to employees who are subject
to the Regulation respecting labour standards
specific to the clothing industry increased
from $8.10 an hour to $8.25 an hour, effective
May 1, 2006.
I. Recorded Visual and Audio-visual
Entertainment Production Industry
Two regulations issued under the
Employment Standards Act, 2000 of
Ontario (O. Regs. 550/05 and 552/05) have
amended certain provisions applicable to workers
in the recorded visual and audio-visual
entertainment production industry.
Under these Regulations, the
Exemptions, Special Rules and Establishment of
Minimum Wage Regulation was amended to
provide that an employee in the recorded visual
and audio-visual entertainment production industry
is exempted from Part VII of the Act, which
governs hours of work and eating periods. The
"recorded visual and audio-visual entertainment
production industry" includes the industry of
producing visual or audio-visual recorded
entertainment intended to be replayed in cinemas
or on the Internet, as part of a television
broadcast, or on a VCR or DVD player or similar
device, but does not include the industry of
producing commercials (other than trailers), video
games or educational materials.
Accompanying these changes, the
Terms and Conditions in Defined Industries –
Production of Recorded Visual or Audio-Visual
EntertainmentRegulation was
revoked. This Regulation provided that an employer
and employee in this industry could agree to
substitute an eight-hour daily "hours free from
work" period for the 11-hour daily period that is
required under the Act.
Regulations 550/05 and 552/05
came into force on October 28, 2005.
J.
Apprentices of Defined Trades
In Manitoba,
Regulations 106/2006 and 107/2006 under the
Apprenticeship and Trades Qualification Act
provide for increases to the minimum wage rates
applicable to apprentices who are subject to the
Trade of Ironworker Regulation or the
Trade of Agricultural Equipment Technician
Regulation.
Effective May 1, 2007, the
increases will apply to apprentices whose
apprenticeship agreements were registered by the
Director of Apprenticeship and Trades
Qualifications appointed under the Act (hereafter
the Director) on or before May 1, 2006. In
addition, as of May 2, 2006, the increased rates
apply to apprentices whose apprenticeship
agreements are registered by the Director after
May 1, 2006.
The minimum wage rates for
apprentices in the above-mentioned trades are
expressed as percentages of the provincial minimum
wage and apply based on the level of
apprenticeship, as follows:
Apprentice of the trade
of ironworker
1st Level
2nd Level
3rd Level
Contract registered on or
before
May 1, 2006
100%
150%
210%
Above-mentioned contract, as of
May 1, 2007
200%
225%
275%
Contract registered after
May 1, 2006
200%
225%
275%
Apprentice of the trade
of agricultural equipment technician
1st Level
2nd Level
3rd Level
4th Level
Contract registered on or
before
May 1, 2006
120%
140%
160%
180%
Above-mentioned contract, as of
May 1, 2007
150%
170%
190%
200%
Contract registered after
May 1, 2006
150%
170%
190%
200%
K. Retail
Establishments
In Nova Scotia,
retail business establishments must generally be
closed to the public on a uniform closing day.
Uniform closing days are defined in the Retail
Business Uniform Closing Day Act as Sundays,10
Christmas Day, Boxing Day, New Year’s Day, Good
Friday, Canada Day, Labour Day and Thanksgiving
Day.11
However, many retail businesses are exempted from
the obligation to close on a uniform closing day.12
The Retail Business Uniform
Closing Day Regulations (N.S. Reg. 98/2006)
came into force on June 28, 2006. This Regulation
repealed and replaced the Retail Business
Uniform Closing Day Regulations 301/86 and
the Definitions Regulations 271/92. Among
other things, this Regulation repeats the list of
retail businesses that was in the Retail
Business Uniform Closing Day Regulations 301/86,
but also adds vegetable stands whose principal
business is selling local produce and retail
establishments offering the rental of video
cassettes, video discs or similar media and
related devices. These businesses are exempt from
the requirement to close on a uniform closing day.
Secondly, under a new rule, an
establishment that is subdivided into several
parts or departments will be considered as one
entity. This Regulation provides that where two or
more stores are owned, occupied or operated by
related persons, they are deemed to be one store
if they are in the same building or adjacent or in
close proximity to each other. This new rule aims
to remove a loophole that allowed grocery stores
operating a retail sales area greater than 4,000
square feet to avoid the obligation to close on
uniform closing days. However this rule does not
apply to a store that was regularly open to the
public on Sunday before June 1, 2006. The
definition of "related persons" can be found in
paragraph 251(2)(b)13
of the Income Tax Act (Canada).14
In addition to these amendments,
Nova Scotia also made important changes to its
Labour Standards Code under Bill 45, the
Labour Standards Code (amendment). Among
other things, this new Act provides employees
working in retail establishments with the right to
refuse to work on a uniform closing day. However,
a new regulation adopted on the same day Bill 45
came into force has severely curtailed this right.
These recent developments are summarized below.
Bill 45, the
Labour Standards Code (amended)
The Labour Standards Code
(amended) was assented to on July 14, 2006.
This Act has amended the Code to provide
retail employees with the right to refuse to work
on a uniform closing day and to refuse to sign a
contract of employment or agreement that requires
them to work on a uniform closing day. Moreover,
where an employee has agreed to work on uniform
closing days, the amended legislation provides
that the employee has the right to refuse to work
on one of those days if he/she gives the employer
at least seven days’ notice or, where the employee
receives his/her schedule less than seven days
before that day, within two days of receiving the
schedule.
In addition, this Act gives to
the Governor in Council the power to make
regulations listing classes of retail businesses
in which employees do not have the right to refuse
to work on a uniform closing day.15
Finally, an employer cannot
discharge, lay off, suspend, intimidate, penalize
or discipline an employee, or discriminate in any
other manner against him/her, because the latter
has refused to work on a uniform closing day or
has refused to sign a contract or agreement that
would require him/her to work on one of those
days.
This Act also amends the
Summary Proceedings Act to allow the Governor
in Council to make regulations adding enactments
to or deleting enactments from Schedule B of that
Act. Schedule B provides a list of provincial
statutes under which it is possible to obtain
investigative warrants when an offence against one
of those statutes has been, is being or will be
committed. The Retail Business Uniform Closing
Day Act has been included in that list with
the coming into force of the Investigative
Warrant Enactment Regulations 118/2006 on
July 19, 2006.
In addition, this Act amends the
Tenancies and Distress for Rent Act (TDRA)
to protect businesses from being forced to operate
on a uniform closing day by the terms of their
lease or other agreement. Moreover, the TDRA now
prohibits discrimination or retaliation (e.g., by
refusing to renew a lease) against a person who
refuses to operate a retail establishment on a
Sunday.
The amendments described above
came into force by proclamation on July 19, 2006.
General Labour Standards
Code Regulations (N.S.
Reg. 117/2006)
As has already been mentioned,
the Labour Standards Code was amended to
provide that an employee cannot be required to
work in a retail business on a uniform closing day
or to sign a contract of employment or agreement
that requires him/her to do so. However,
General Labour Standards Code Regulations (N.S. Reg. 117/2006)
creates two exceptions to that general principle.
First, employees who are subject
to a collective agreement are excluded from the
right to refuse to work on a uniform closing day.
In addition, this Regulation specifies classes of
retail businesses in which employees also do not
have the statutory right to refuse to work.
It is important to note that the
classes of retail businesses listed in this
Regulation are the same as the classes of retail
businesses exempted from the obligation to close
on a uniform closing day.16
Therefore, employees who could have exercised the
right to refuse pursuant to the Labour
Standards Code (because they work in an
establishment that is allowed to open on a uniform
closing day) are, in effect, excluded from this
right under the General
Labour Standards Code Regulations.
This Regulation came into force
on July 19, 2006.
L.
Administration and Enforcement
In British Columbia,
some changes were made to the Employment
Standards Regulation (ESR) under the
Employment Standards Act.
Among other things, the
Employment Standards Regulation (ESR) fixes
the administrative penalties that an employer is
required to pay where the Director of Employment
Standards ("Director") determines that he/she
contravened a requirement under the Act. The
minimum administrative penalties are presently
$500 for a first contravention, $2,500 for a
second contravention and $10,000 for a third
contravention. The higher penalties (i.e., $2,500
and $10,000) only apply where an employer
contravenes the same requirement under the Act, at
the same location, within three years after the
first or second contravention (whichever is
applicable).
Regulation 64/2006 has amended
the ESR to further specify that the higher
penalties do not apply unless: the Director has
previously made a determination that the
employer contravened the requirement in question
for the first (or second) time; and the second (or
third) contravention occurred after the date of
that determination.
In addition, the ESR has been
amended to provide that, with respect to the
provisions regarding administrative penalties, an
employer’s contravention of a requirement under
the Act is deemed to be a single contravention,
regardless of the number of employees affected.
As was the case before, the
provisions concerning administrative penalties are
subject to any right to appeal a determination of
the Director under the Act. The Director is also
required to give appropriate notice of his/her
determination in accordance with the Act.
Regulation 64/2006 came into
force on March 31, 2006.
In Ontario, the
Good Government Act, 2006 (Bill 190)
received Royal Assent on June 22, 2006. Among
other things, this Act has amended the
Employment Standards Act, 2000 (ESA) to allow
the Director of Employment Standards to terminate
the assignment of an employment standards officer
("officer") to the investigation of a complaint
filed under the Act and assign the investigation
to another officer. An officer whose assignment is
so terminated does not have any powers or duties
with respect to the investigation of the complaint
or the discovery during the investigation of any
similar potential entitlement of another employee
of the employer related to the complaint. The new
officer assigned to the investigation can rely on
evidence collected by the first officer and any
findings of fact made by him/her.
It should be noted that the
amendments described above also apply where an
officer conducts an inspection of an employer
under the ESA.
Finally, this Act has amended
the section of the ESA which provides that an
officer conducting an investigation or inspection
has the power to examine a record or other thing
that is relevant to the investigation or
inspection. This section now specifies that an
officer has the power to examine a record or other
thing which he/she thinks may be relevant
to his/her investigation or inspection.
These amendments came into force
on June 22, 2006.
Furthermore, in
Saskatchewan, the Labour Standards
Amendment Regulations, 2005 (Reg. 134/2005)
under the Labour Standards Act came into
force on December 7, 2005.
This Regulation amends the
Labour Standards Regulations, 1995 to
prescribe the amount of the deposit that an
employer is required to make in order to appeal a
decision of the Director of Labour Standards
regarding the employer’s compliance with the
"whistleblower protection" provisions of the Act.
Prior to this Regulation, the amount was not
prescribed. It is now set at $500.
As was the case before, an
employer or corporate director who wishes to
appeal a wage assessment must make a deposit
equivalent to the amount set out in the wage
assessment, up to a maximum of $500.
Finally, in Yukon,
pursuant to Order in Council 2005/116 under the
Employment Standards Act, the Province of
Newfoundland and Labrador was declared a
reciprocating jurisdiction and the Director of
Labour Standards was designated as the enforcement
authority, effective July 11, 2005.17
M. Wage-Earner Protection Program (WEPP)
On November 25, 2005, the
federal government‘sAct to
establish the Wage Earner Protection Program Act,
to amend the Bankruptcy and Insolvency Act and the
Companies’ Creditors Arrangement Act and to make
consequential amendments to other Acts
(Bill C-55) received Royal Assent.
Once it comes into force, this
Act will, among other things, create the
legislative basis for a Wage Earner Protection
Program (WEPP) that will guarantee workers quick
payment of unpaid wages where their employer has
become bankrupt or subject to a receivership.
To be eligible to make a claim,
a worker will have to be employed by the former
employer for more than three months. Wages
recoverable will be those earned during the six
months immediately before the bankruptcy or the
first day on which there was a receiver in
relation to the former employer, less any
applicable provincial or federal deductions, to a
maximum equal to the greater of $3,000 or four
times the maximum weekly insurable earnings under
the Employment Insurance Act.
The term "wages" will include
salaries, commissions, compensation for services
rendered, vacation pay, and any other amounts that
may be prescribed by regulation, but will not
include severance or termination pay. However,
severance and termination pay can still be claimed
through the regular bankruptcy process and will be
treated as an unsecured claim.
The payments will be made out of
the Consolidated Revenue Fund. Consequently, a
worker will be required to sign over his/her claim
against the employer under the Bankruptcy and
Insolvency Act to the Crown, up to the amount
of payment. The Government will then seek to
recover the amounts paid under the WEPP, up to a
maximum of $2,000, as a creditor to the former
employer in the bankruptcy proceeding.
This Act will also amend the
Bankruptcy and Insolvency Act to provide for
a limited "super priority" (above secured
creditors) for unpaid wage claims over bankrupt
employers’ "current assets" (including cash on
hand, accounts receivable, and inventory), up to a
maximum of $2,000. This "super priority" will
either be acted upon by the government in
exercising the rights of the employee in the
bankruptcy proceeding or by individuals who do not
qualify for payment under the WEPP and can pursue
wage claims directly in the bankruptcy process. If
there are insufficient "current assets" to satisfy
the wage claims under the limited "super
priority", any amount outstanding, up to the
maximum of $2,000, can be claimed through the
existing preferred creditor status.
Finally, for any wage claim in
excess of $3,000 or other employee’s claim (e.g.,
severance and termination pay) due, the worker can
continue to submit an unsecured claim under the
bankruptcy proceedings.
These amendments will come into
force on a date to be fixed by the government.
(The summary of this Act is also
available on page 5 in Highlights of Major
Developments in Labour Legislation 2004-2005).18
N.
Human Rights in the Workplace
Following a 2005 decision of the
Ontario Court of Appeal concerning the equality
rights of disabled persons under the Canadian
Charter of Rights and Freedoms,19
Regulation 549/05 was issued under the
Employment Standards Act, 2000 of
Ontario. This Regulation, which came into
force on October 28, 2005, made amendments to the
Termination and Severance of Employment
Regulation (TSER) under the Act.
Subject to certain exceptions,
the TSER excludes workers from the sections of the
Act regarding minimum notice of termination,
termination pay and severance pay if their
contract of employment has become impossible to
perform or has been frustrated by a fortuitous
event or circumstance.
Prior to Regulation 549/05, the
exclusion of these workers from the notice of
termination and termination pay provisions of the
Act was subject to the application of the
Human Rights Code. This reference to the
Code has been deleted. In addition, the TSER
has been amended to provide that the exclusion
does not apply where the frustration or
impossibility results from the worker’s illness or
injury.
This Regulation has also amended
the provisions of the TESR excluding such workers
from the severance pay provisions of the Act.
Before the amendments, the exclusion did not apply
where in a case where
The frustration or
impossibility resulted from the worker’s illness
or injury; and
The Human Rights Code
did not prohibit the severance of employment.
The second requirement has been
deleted. Therefore, the TESR now provides that the
exclusion does not apply where the frustration or
impossibility results from the worker’s illness or
injury.
As a result of the amendments
described above, where the frustration of or
impossibility to perform the contract is due to
the employee’s illness or injury, the employee is
entitled to notice of termination (and/or
termination pay) as well as severance pay in
accordance with the Act (provided that he/she
otherwise meets the eligibility conditions).
Finally, in Newfoundland
and Labrador, An Act to amend the
Human Rights Code was assented to on
May 26, 2006. Among other things, this Act has
amended the Code to add "family status"
as a prohibited ground of discrimination with
respect to employment. "Family status" is defined
as the status of being in a parent and child
relationship, including that of an adoptive parent
and child.
In addition, the time limit to
file a complaint under the Code has been
extended from six to 12 months.
These amendments came into force
on May 26, 2006. (Note: this Act will also bring
other changes to the Code in view of
ending mandatory retirement; these changes are
summarized below).
O. Mandatory
Retirement
In the period covered by this
report, two provinces (Ontario and Newfoundland
and Labrador) enacted legislation with a view to
ending mandatory retirement at the age of 65
years.
In Ontario, the
Ending Mandatory Retirement Statute Law
Amendment Act, 2005 (Bill 211) was assented
to on December 12, 2005.
Among other things, this Act
will amend the definition of "age" provided in the
Human Rights Code, to remove the age
limit on the prohibition of discrimination in
employment. The current definition does not
prohibit discrimination in employment because of
age, including mandatory retirement, where an
individual’s age is 65 years or more. However, the
mandatory retirement ages for judges, masters,
case management masters and justices of the peace
will not be affected by the changes.
Moreover, this Act will amend or
repeal provisions of other Acts that require
persons to retire at a certain age. These are the
Coroners Act, the Election Act,
the Health Protection and Promotion Act,
the Ombudsman Act, and the Public
Service Act. However, a distinction because
of age that is required or authorized under the
Workplace Safety and Insurance Act, 1997
and its regulations continues to apply.
This Act will come into force
one year after Royal Assent (i.e., on
December 12, 2006), with the exception of the
amendments brought to the Workplace Safety and
Insurance Act, 1997, which took effect on
Royal Assent.
In Newfoundland and
Labrador, An Act to Amend the Human
Rights Code (Bill 25) was assented to on
May 26, 2006. This Act will amend certain
provisions of the Human Rights Code,
notably in view of ending mandatory retirement at
the age of 65 years.
Currently, the Code
prohibits an employer, or person acting on behalf
of him/her, from refusing to employ, continuing to
employ, or otherwise discriminating against a
person because of his/her age, unless he/she is
aged 65 or older (among other exemptions).
Effective May 26, 2007, this exemption will be
repealed. As is presently the case, discrimination
in employment on the basis of age will not be
prohibited where the person is under the age of 19
years. Moreover, other exceptions in the Code
that currently allow discrimination in employment
on the basis of age will continue to apply (e.g.
where a limitation, specification or preference is
based on a bona fide occupational
qualification or where termination of employment
is due to the terms or conditions of a good-faith
retirement or pension plan).
In addition, this Act introduced
a number of other amendments to the Code
that came into force on May 26, 2006. Among other
things, this Act has amended the provision that
prohibits an employer, or person acting on its
behalf, from using, in hiring or recruitment, an
employment agency that discriminates against
persons seeking employment on the basis of a
prohibited ground (e.g. race, religion or sex).
Age (where the person has reached the age of 19
years) and family status have been added to the
list of prohibited grounds in this provision.
Finally, the Workplace
Health, Safety and Compensation Act has been
amended to provide that a distinction on the basis
of age that is required or authorized under that
Act or its regulations continues to apply, despite
the provisions of the Code that prohibit
age-based discrimination.
P.
Pay Equity
In Quebec,
An Act to amend the Pay Equity Act (Bill 28)
was assented to on May 25, 2006. This Act has
brought a number of changes to the Pay Equity
Act (PEA) to facilitate its application to
the public sector. The most important of these
changes are described below.
This Act has replaced the single
governmental entity covered by the PEA with two
entities: the public service enterprise and the
parapublic sector enterprise. The public service
enterprise includes government departments and
bodies and persons whose employees are appointed
in accordance with the Public Service Act
(other than the National Assembly). The parapublic
sector enterprise includes colleges, school boards
and institutions to which the Act respecting
the process of negotiation of the collective
agreements in the public and parapublic sectors
applies.
The PEA also provides that an
employer and a certified association representing
employees of the enterprise can agree to establish
one or more separate pay equity plans applicable
to those employees in one or more establishments
of the enterprise. However, this Act stipulates
that in the parapublic sector enterprise there can
only be one pay equity plan for all employees
represented by certified associations. As was the
case before, an employer can apply to the
Commission de l’équité salariale established
under the PEA (hereafter the Commission) for
authorization to establish a separate plan
applicable to one or more establishments, if
warranted by regional disparities.
In addition, this Act
establishes special rules for the representation
of employees on pay equity committees where they
are not represented by a certified association.
Under the PEA, an employer whose enterprise
employs 100 or more employees must, in order to
enable his/her employees to take part in the
establishment of a pay equity plan, set up a pay
equity committee on which they are represented.
The PEA allows employees who are not represented
by a certified association to designate members of
the committee (in accordance with the provisions
of the PEA). However, with respect to the
enterprises mentioned above, a new provision now
stipulates that a certified association (or a
group of employees’ associations) that represents
employees in a job class to which a pay equity
plan applies also represents, for the purposes of
that plan and until it has been completed, all the
employees in that job class who are not covered by
a certification. It further provides that the
adjustments in compensation and the terms and
conditions of payment of compensation adjustments
set out in the plan are the only ones applicable
to all such employees.
It should be noted that this Act
empowers the Commission to authorize another mode
of designation of the representatives of employees
who are not represented by a certified
association.
Accompanying these changes,
where a pay equity committee in the public service
enterprise has made the postings concerning the
results of its pay equity plan, as required under
the PEA, prior to May 25, 2006, it must again make
the postings. This provision is intended to allow
employees who are not covered by a certified
association, but who are in a job class to which a
pay equity plan applies, to request additional
information from, and make observations to, the
committee in accordance with the PEA.
This Act came into force on
May 25, 2006.
Q.
Whistleblower Protection
New legislation to protect
"whistleblowers" in the public service was
introduced in the federal jurisdiction and
Manitoba.
In the federal
jurisdiction, the Public Servants
Disclosure Protection Act (Bill C-11) was
assented to by the previous Parliament on
November 25, 2005. However, this Act has not been
proclaimed into force. After the new Parliament
was formed in April 2006, the government tabled
Bill C-2, the Federal Accountability Act.
This Act, which received third reading on June 21,
2006, will bring a number of significant changes
to the Public Servants Disclosure Protection
Act. The two Acts are summarized below.
(Note: in the summary, the Public Servants
Disclosure Protection Act is referred to as "the
Act" and the Federal Accountability Act
as "Bill C-2").
Purpose of the Act
The purpose of the Public
Servants Disclosure Protection Act is to
create a mechanism for the disclosure of
wrongdoings in the public sector. It also includes
provisions to protect "whistleblowers".
Scope of the Act
When it comes into effect, the
Act will apply to the federal public sector
including agencies, Crown corporations and other
public bodies. However, the Canadian Forces, the
Canadian Security Intelligence Service and the
Communications Security Establishment20
will be excluded from the definition of "public
sector" for the purpose of this Act. "Public
servant" will be defined as every person employed
in the public sector, every member of the Royal
Canadian Mounted Police and every chief executive.
The Act will apply with respect
to the disclosure of the following wrongdoings in
or relating to the public sector: a contravention
of a federal or provincial Act or regulation;21
a misuse of public funds or assets; a gross
mismanagement in the public sector; an act or
omission that creates a substantial and specific
danger to the environment or to the life, health
or safety of persons other than a danger that is
inherent in the performance of the duties or
functions of a public servant; a serious breach of
a code of conduct established under the Act; or
knowingly directing or counselling a person to
commit any of the above mentioned wrongdoings.
Obligation to Establish a
Code of Conduct
The Treasury Board will be
required to establish a code of conduct applicable
to the public sector covered by the Act. Chief
executives will also be required to establish a
code of conduct applicable to the portion of the
public sector for which they are responsible, as
long as it is consistent with the code established
by the Treasury Board.
In addition, the Minister
responsible for the Act will be required to
promote ethical practices in the public sector and
a positive environment for the disclosure of
wrongdoings. This will be done through the
dissemination of information about the Act and
other means the Minister considers appropriate.
Disclosure of Wrongdoings
The Act provides that each chief
executive must establish internal disclosure
procedures for the portion of the public sector
for which he/she is responsible, and designate a
senior officer to be responsible for receiving and
acting on disclosures of wrongdoings. It will be
possible for a chief executive to be exempted from
these requirements if he/she declares, after
notifying the Public Service Human Resources
Management Agency of Canada, that it is not
practical to apply them due to the size of the
portion of the public sector for which he/she is
responsible.
A public servant will be able to
disclose to his/her supervisor or to the
designated senior officer any information that
he/she believes could show that a wrongdoing has
been or is about to be committed or that he/she
was asked to commit a wrongdoing.
The Act provides that a public
servant can only make such a disclosure to the
Public Sector Integrity Commissioner appointed
under the Act (hereafter the Commissioner) if
certain conditions are met.22
However, Bill C-2 will repeal these conditions.
Therefore, a public servant will be authorized to
make a disclosure to his/her supervisor, the
designated senior officer, or the Commissioner.
A public servant will not be
authorized to disclose to the Commissioner a
confidence of the Queen’s Privy Council of Canada
or information protected under solicitor-client
privilege. Moreover, when making a disclosure
under the Act, a public servant will be required
to provide no more information than is reasonably
necessary to make the disclosure and follow
established procedures or practices for the secure
handling, storage, transportation and transmission
of information or documents.
Finally, a public servant will
allowed to make a disclosure to the public without
following the above procedures if he/she believes,
on reasonable grounds, that there is not enough
time to make the disclosure under the Act and that
another public servant, in the purported
performance of his/her duties, is committing or is
about to commit a serious offence under federal or
provincial legislation or is doing or omitting to
do anything that "constitutes an imminent risk of
a substantial and specific danger to the life,
health or safety of persons, or to the
environment". A public servant will not, however,
be permitted to make such a disclosure if it is
subject to restrictions created by or under any
federal Act.
Disclosure provisions will not
apply in respect of special operational
information within the meaning of the Security
of Information Act.
Procedure for the
Investigation of Disclosures by the Commissioner
The Commissioner will have the
following duties with respect to the investigation
of disclosures:
receiving, recording and
reviewing disclosures of wrongdoing to establish
whether further action is warranted;
investigating disclosures of
wrongdoing received by the Commissioner from a
public servant, reviewing the results of the
investigations, reporting findings to the
whistleblower and the appropriate chief
executives, and making recommendations regarding
corrective measures to the chief executives;
reviewing reports on
corrective measures taken by chief executives in
response to the Commissioner’s recommendations;
ensuring respect for the
right to procedural fairness and natural justice
of all persons involved in investigations;
protecting, to the extent
possible in accordance with the law, the
identity of persons involved in the disclosure
process (subject to any other federal Act); and
establishing procedures for
processing disclosures and ensuring the
confidentiality of information collected in
relation to disclosures and investigations.
In addition, under Bill C-2, the
Commissioner will also be responsible for
providing information and advice regarding
disclosures under the Act as well as his/her
conduct of investigations.
The Act provides that the
Commissioner can refuse to deal with a disclosure
or cease an investigation if he/she is of the
opinion that the subject-matter of the disclosure
can be more appropriately dealt with under another
federal Act, that the subject-matter of the
disclosure is not made in good faith or is not
sufficiently important, that dealing with the
disclosure would serve no useful purpose due to
the time that has elapsed between the date when
the subject-matter arose and the date when the
disclosure was made, that the disclosure relates
to a matter that results from a balanced and
informed decision-making process on a public
policy issue, or that there is another valid
reason not to deal with the disclosure.
Furthermore, the Commissioner will not be allowed
to deal with a disclosure or commence an
investigation if its subject-matter is already
being dealt with by a person or body acting under
another federal Act, other than as a
law-enforcement authority.23
Chief executives and public
servants will be required to provide any
facilities, assistance, information and access to
offices under their control requested by the
Commissioner to perform his/her duties. No public
servant will be excused from cooperating with the
Commissioner out of a concern that this may lead
to self-incrimination.24
The only information which the Commissioner will
not be authorized to require from a public servant
are a confidence of the Queen’s Privy Council for
Canada or information protected by
solicitor-client privilege. The Commissioner will
not be allowed to use the confidence or
information if it is nevertheless received.
Subject to certain conditions,
the Commissioner will be empowered to investigate
other wrongdoings found in the course of
investigating a disclosure or as a result of any
information provided to him/her by a person who is
not a public servant.25
Where the Commissioner believes that a matter
under investigation involves obtaining information
outside the public sector, he/she will be required
to cease that part of the investigation, although
he/she may refer the matter to any authority
he/she deems competent to deal with it. Except in
some specified situations, the Commissioner will
be prohibited from disclosing any information that
the Government of Canada or any portion of the
public sector is taking measures to protect,
including the following: a confidence of the
Queen’s Privy Council of Canada; solicitor-client
privileged information; special operational
information under the Security of Information
Act; information subject to any restriction
on disclosure created by or under any other
federal Act; or information that could reasonably
be expected to cause injury to international
relations, national defence or security, to the
detection, prevention or suppression of criminal,
subversive or hostile activities, to commercial
interests or to the privacy interests of an
individual.
The Act also provides that
information obtained in the course of an
investigation which may be used in the
investigation or prosecution of an alleged
contravention of any federal or provincial Act can
be remitted to a peace officer or the Attorney
General of Canada. If the information relates to
the Royal Canadian Mounted Police, the Act
provides that it may be remitted only to the
Attorney General of Canada. However, to maintain
the separation of investigations, the Commissioner
will not be allowed to remit any further
information obtained afterwards in the course of
his/her investigation of the matter.
Finally, the Commissioner will
be permitted to report a matter to the appropriate
Minister or, in the case of a Crown corporation,
to the appropriate board or governing council, if
he/she is of the opinion that, among other things,
action has not been taken within a reasonable time
with respect to one of his/her recommendations or
if a situation constituting an imminent risk of a
substantial and specific danger to the life,
health or safety of the public, or to the
environment, has come to his/her attention while
carrying out his/her duties.
Reports to Parliament
The Commissioner will be
responsible for submitting an annual report to
Parliament. This report must include certain
information required under the Act, including the
following: the number of inquiries and disclosures
received, disclosures acted on, investigations
commenced and recommendations made; any systemic
problems giving rise to wrongdoings; and any
recommendations for improvements. The Commissioner
will also be allowed to submit at any time a
special report to Parliament if, in his/her
opinion, a matter needs to be brought to its
attention before the submission of the next annual
report.26
Under Bill C-2, the Commissioner
will also be required to submit a case report to
Parliament if he/she concludes in a report to a
chief executive that a wrongdoing has been
committed. The Commissioner will be required to
submit a case report within 60 days of the date of
the report to the chief executive, and to provide
certain information in the case report, including
the following: the finding of wrongdoing; the
recommendations, if any, that the Commissioner
made in the report to the chief executive; and the
Commissioner’s opinion as to whether the chief
executive’s response to the report was
satisfactory.
Furthermore, Bill C-2 will
require each chief executive to prepare and submit
an annual report to the Public Service Human
Resources Management Agency of Canada (hereafter
the Agency). The annual report will cover the
activities (in the portion of the public sector
for which the chief executive is responsible)
concerning disclosures made by public servants in
accordance with the Act. Finally, the President of
the Agency will also be required to submit an
annual report to Parliament, containing the
information required under Bill C-2.
Public Information
Where wrongdoing is found as a
result of a public servant’s disclosure under the
Act, Bill C-2 will require each chief executive to
promptly provide the public with access to the
following information: a description of the
wrongdoing (including information that could
identify the person found to have committed it if
it is necessary to identify the person in order to
adequately describe the wrongdoing); the
recommendations contained in any report to the
chief executive (such as a report of the
Commissioner); and the corrective action taken by
the chief executive or the reasons why no action
was taken.
Subject to the provisions
mentioned above, any other federal act and the
principles of procedural fairness and natural
justice, chief executives will be required to
protect the identity of persons involved in the
disclosure process. They will also be required to
establish procedures to ensure the confidentiality
of information collected with respect to
disclosures. Moreover, a chief executive will not
be obliged to provide public access to information
in a case where such disclosure is restricted
under an Act of Parliament.27
Disciplinary Action against
Public Servant
The Act provides that apart from
any penalty provided by law, disciplinary action,
including termination, can be taken against a
public servant who commits a wrongdoing.
Prohibition against Reprisal
The Act will prohibit the taking
of any reprisal against a public servant who has
made a protected disclosure or who has, in good
faith, cooperated in an investigation under the
Act. "Reprisal" will mean a disciplinary measure,
a demotion, a termination of employment, including
a discharge or dismissal in the case of a member
of the Royal Canadian Mounted Police, a measure
having an adverse effect on employment or working
conditions, or a threat to take any of these
measures. Moreover, Bill C-2 will amend the Act to
further prohibit a person from directing
that a reprisal be taken against a public servant.
The Act provides that a public
servant or a former public servant (or their
representative) who alleges to have been the
victim of a reprisal, may make a complaint in
writing to the Board.29
The Act also contains detailed provisions
regarding complaints to the Board. However, Bill
C-2 will repeal and replace these provisions.
Under Bill C-2, a public servant
or former public servant who has reasonable
grounds to believe that a reprisal has been taken
against him/her will be allowed to file a
complaint with the Commissioner.30
This Bill also provides that a complaint must be
filed within 60 days after the day on which the
complainant knew, or in the Commissioner’s
opinion, ought to have known, that the reprisal
was taken. However, an extension of time will be
possible if the Commissioner feels it is
appropriate considering the circumstances of the
complaint.
The Commissioner will be allowed
to refuse to deal with a complaint for one of the
reasons specified in this Bill (e.g. the complaint
was not made in good faith). Moreover, he/she will
not have the authority to deal with a complaint
where, among other things, a person or body31
acting under another Act of Parliament or a
collective agreement is dealing with the subject
matter of the complaint.32
If the Commissioner decides to
deal with a complaint, he/she will be required to
send a written notice of his/her decision to the
complainant and to the person or entity that has
the authority to take disciplinary action against
each person who participated in the taking of a
measure alleged by the complainant to constitute
the taking of a reprisal. In general, it will be
prohibited to take disciplinary action against the
latter person(s) during the period beginning with
the day on which the Commissioner sends his/her
decision and ending on the day on which one of the
following occurs: the complaint is withdrawn or
dismissed; the Commissioner makes an application
to the Public Servants Disclosure Protection
Tribunal (hereafter the Tribunal), which will be
established under this Bill, for an order
respecting a remedy in favour of the complainant;
or, where the Commissioner applies for such an
order and an order respecting the taking of
disciplinary measures, the Tribunal makes a
determination that the complainant was not subject
to a reprisal taken by the person(s) in question.
Moreover, where disciplinary action has already
been taken against a person,33
its implementation will be suspended during this
period or until the date on which disciplinary
action is taken as a result of a settlement
approved by the Commissioner or an order of the
Tribunal.
The Commissioner will be allowed
to designate a person as an investigator to
investigate the complaint. Chief executives and
public servants will be required to provide the
investigator, upon his/her request, with any
facilities, assistance, information and access to
their respective offices that he/she may require
for the purpose of the investigation. Moreover, at
any time during the course of an investigation,
the investigator will be allowed to recommend to
the Commissioner that a conciliator be appointed
to attempt to bring about a settlement of the
complaint. It should be noted that the terms of
any such settlement will be subject to the
approval of the Commissioner.
The investigator will be
required to submit a report of his/her findings to
the Commissioner as soon as possible after the
conclusion of his/her investigation. If the
Commissioner is of the opinion that an application
to the Tribunal is warranted,34
he/she will be allowed to apply to the Tribunal
for a determination of whether a reprisal was
taken against the complainant and, if so, for an
order respecting a remedy in favour of the
complainant and, in certain cases, an order
respecting disciplinary action against any
person(s) identified in the application as being
those who took the reprisal.
If the Tribunal determines that
the complainant was subject to a reprisal, it will
be empowered to make an order for a remedy in
favour of the complainant. In this respect, the
Tribunal will be allowed to require the employer,
the appropriate chief executive or any person
acting on their behalf to take all the necessary
measures to
Permit the complainant to
return to his/her duties;
Reinstate the complainant or
pay compensation to him/her in lieu of
reinstatement if, in the Tribunal’s opinion, the
relationship of trust between the parties cannot
be restored;
Pay to the complainant
compensation in an amount not greater than the
amount that, in the Tribunal’s opinion, is
equivalent to the remuneration that would, but
for the reprisal, have been paid to the
complainant;
Rescind any measure or action
taken, including disciplinary action, and pay
compensation to the complainant in an amount not
greater than the amount that, in the Tribunal’s
opinion, is equivalent to any financial or other
penalty imposed on the complainant;
Pay to the complainant an
amount equal to any expenses and any other
financial losses he/she incurred as a direct
result of the reprisal; or
Compensate the complainant,
up to a maximum of $10,000, for any pain and
suffering he/she experienced as a result of the
reprisal.
If so requested by the
Commissioner in his/her application, the Tribunal
will also be empowered to make an order requiring
that any disciplinary action it
specifies—including termination of employment or
revocation of appointment—be taken against any
person named in the application who is determined
by the Tribunal to have taken the reprisal. A
person against whom disciplinary action is taken
as a result of an order will not be permitted to
initiate a grievance or other similar procedure in
respect of it under an Act of Parliament or a
collective agreement.
Temporary Assignment
The Act provides that a chief
executive may, with written consent35,
temporarily assign the public servant to other
comparable duties, if the executive believes (on
reasonable grounds) that a public servant’s
involvement in a disclosure or a complaint in
respect of a reprisal has become known in his/her
workplace and that a temporary assignment is
necessary to maintain the effective operation of
the workplace. The assignment may be for a period
of up to three months, but may be renewed one or
more times if the chief executive believes that
the conditions giving rise to it continue to
exist.
Legal Advice
Subject to certain conditions,
under Bill C-2 the Commissioner will be allowed to
provide access to legal advice to the following
persons:
A public servant who is
considering making a disclosure of wrongdoing
(or a person who is not a public servant who is
considering providing information to the
Commissioner in relation to any act or omission
that may constitute a wrongdoing), provided that
the Commissioner is of the opinion that the act
or omission to which the disclosure (or the
information) relates likely constitutes a
wrongdoing and is likely to lead to an
investigation under the Act;
A public servant who has made
a disclosure;
A person who is or has been
involved in an investigation conducted under the
Act;
A public servant who is
considering making a complaint regarding an
alleged reprisal taken against him/her; or
Any person who is or has been
involved in a proceeding under the Act regarding
an alleged reprisal.
However, the Commissioner will
not be allowed to provide legal advice to a person
unless convinced that the person did not otherwise
have access to legal advice without cost to
him/her. Bill C-2 further stipulates that no more
than $1,500 can be expended for legal advice
provided to a person in relation to a particular
act or omission that may constitute a wrongdoing,
unless the Commissioner is of the opinion that
exceptional circumstances exist (in which case the
maximum amount will be deemed to be $3,000).
Prohibitions
The Act will specifically
prohibit a person from doing any of the following:
knowingly make a false or
misleading statement in the disclosure or in the
course of the investigation of a wrongdoing;
wilfully obstruct a senior
officer, the Commissioner or any other person
acting on their behalf or under their direction,
in the performance of their duties under the
Act; and
destroy, mutilate, alter,
falsify or conceal a document or thing that is
likely to be relevant for an investigation under
the Act, or in any manner direct, counsel or
cause another person to do so.
In addition to these
prohibitions, Bill C-2 will prohibit an employer
that is not part of the public sector from taking
disciplinary measures36
against an employee for the sole reason that the
latter has, in good faith and on the basis of
reasonable belief, provided information concerning
an alleged wrongdoing in the public sector (or for
the sole reason that the employer believes that
the employee will do so).
Offences
Bill C-2 provides that a person
who knowingly contravenes one of the prohibitions
created by the Act, including those described
above, or the provision which prohibits the taking
of reprisals against a public servant, commits an
offence and is liable to a fine of up to $10,000
and/or up to two years’ imprisonment.37
Obligations of Excluded
Organizations
The Act provides that the person
responsible for each organization excluded from
the definition of "public sector" (i.e., the
Canadian Forces, the Canadian Security
Intelligence Service and the Communications
Security Establishment) must establish procedures
for the disclosure of wrongdoings and the
protection of whistleblowers. It also provides
that these procedures must be, in the opinion of
the Treasury Board, similar to those set out in
the Act.
Coming into Force
The provisions of the Act will,
with the exception of certain coordinating
amendments, come into force on a date or dates to
be fixed by a government order. The amendments
that will be made by Bill C-2 will come into force
on the date that the Bill receives Royal Assent.
Finally, in Manitoba,
the Public Interest Disclosure (Whistleblower
Protection) Act (Bill 34) received second
reading on June 7, 2006. The purpose of this Bill
is to create a mechanism for the disclosure of
wrongdoings in the public service. It also
includes provisions to protect "whistleblowers".
Scope of the Act
This Act would cover the public
service of Manitoba, including departments,
government bodies38
and certain specified offices.39
It would apply to the disclosure of the following
wrongdoings in or relating to the public service:
An act or omission
constituting an offence under a Manitoba or
federal Act or regulation;
An act or omission that
creates a substantial and specific danger to the
life, health or safety of persons, or to the
environment, other than a danger that is
inherent in the performance of the duties or
functions of an employee;
Gross mismanagement,
including of public funds or a public asset; and
Knowingly directing or
counselling a person to commit any of the
above-mentioned wrongdoings.
Although this Act would
establish procedures allowing an individual
outside of the public service to communicate
information relating to one of the wrongdoings
described above, it would apply primarily to
disclosures made by employees and officers of the
public service.
Obligation to establish
procedures to manage disclosures
Each chief executive40
would be required to establish procedures to
manage disclosures by employees of the portion of
the public service for which he/she is
responsible, including procedures concerning the
following matters:
Receiving and reviewing
disclosures, including setting time periods for
action;
Investigating disclosures in
accordance with the principles of procedural
fairness and natural justice;
The confidentiality of
information collected in relation to disclosures
and investigations;
Protecting the identity of
persons involved in the disclosure process,
subject to any other Act and to the principles
of procedural fairness and natural justice;
Reporting the outcomes of
investigations; and
Respecting any other matter
specified in the regulations.
Moreover, each chief executive
would be required to designate a senior official
to be the designated officer for the purposes of
the Act. The designated officer would be
responsible for receiving and dealing with
disclosures by employees in the portion of the
public service for which the chief executive is
responsible.
A chief executive could be
exempted from the requirements described above if
he/she determines, in consultation with the
Ombudsman appointed under the Ombudsman Act,
that it is not practicable to apply them due to
the size of the portion of the public service for
which he/she is responsible.
Finally, each chief executive
would be required to ensure that information about
the proposed law and disclosure procedures is
widely communicated to employees of the portion of
the public service for which he/she is
responsible.
Disclosure of Wrongdoings
Under this Act, an employee who
reasonably believes that he/she has information
that could show that a wrongdoing has been
committed or is about to be committed could make a
disclosure to his/her supervisor or designated
officer or to the Ombudsman.41
A disclosure would have to be in writing and
contain certain information required by the Act.
Moreover, an employee would be
allowed to make a public disclosure without
following the above procedures if he/she
reasonably believes that a matter constitutes an
imminent risk of a substantial and specific danger
to the life, health or safety of persons, or to
the environment and that there is insufficient
time to make a disclosure in accordance with the
requirements of this Act. However, he/she would be
required to first make the disclosure to an
appropriate law enforcement agency or, in the case
of a health-related matter, to the chief medical
officer of health. Immediately thereafter, he/she
would also be required to make the disclosure to
his/her supervisor or designated officer. Finally,
the provisions allowing an employee to make a
public disclosure would be subject to any
direction that the appropriate law enforcement
agency or chief medical officer (as applicable)
considers necessary in the public interest, if
any.
Restrictions on Disclosure
In making a disclosure under
this Act, an employee could not relate any Cabinet
confidences protected under the Freedom of
Information and Protection of Privacy Act or
any information protected by solicitor-client
privilege. Moreover, if the disclosure involves
personal or confidential information, he/she would
be required to take reasonable precautions to
ensure that no more information is communicated
than is necessary to make the disclosure.
In addition to these
restrictions on the communication of information,
a public disclosure concerning an urgent matter
could not take place when prevented by or under a
Manitoba or federal Act or regulation.
Request for Advice
An employee who is considering
making a disclosure could request advice from the
designated officer or the Ombudsman. If they
required it, the request would have to be in
writing.
Procedure for the
investigation of disclosures by the Ombudsman
The Ombudsman would be
responsible for investigating disclosures that
he/she receives under this Act.42
However, he/she would not be required to
investigate a disclosure—and could cease an
investigation—in the circumstances specified by
this Act (e.g. he/she is of the opinion that the
disclosure is frivolous or vexatious, has not been
made in good faith or does not deal with a
sufficiently serious subject matter).
Upon completing an
investigation, the Ombudsman would be required to
prepare a report containing his/her findings and
any recommendations about the disclosure and the
wrongdoing. He/she would have to give a copy of
the report to the employee and the appropriate
chief executive.43
When making any recommendations, the Ombudsman
could request the department, government body or
office to notify him/her, within a specified
period of time, of the steps it has taken or
proposes to take to give effect to them.
Furthermore, if he/she believes that the part of
the public service in question has not
appropriately followed up on his/her
recommendations or did not cooperate in his/her
investigation, he/she could make a report on the
matter to the responsible minister (in the case of
a department), to the board of directors and the
responsible minister (in the case of a government
body), or to the Speaker of the Legislative
Assembly (in the case of an office).
Finally, where the Ombudsman, in
the course of an investigation, has reason to
believe that another wrongdoing has been
committed, he/she could investigate the wrongdoing
in question.
It should be noted that this Act
would provide that when an employee makes a
disclosure to the Ombudsman, the latter can take
any steps he/she considers appropriate to help
resolve the matter within the department,
government body or office concerned.
Disciplinary action against
an employee
This Act would stipulate that an
employee who commits a wrongdoing is subject to
appropriate disciplinary action, including
termination of employment, in addition to and
apart from any penalty provided for by law.
Protection from Reprisal
A person would be prohibited
from taking a reprisal against an employee, or
directing that one be taken, because the employee
has, in good faith, sought advice about making a
disclosure in accordance with the proposed law,
made a protected disclosure or cooperated in an
investigation under the proposed law. "Reprisal"
would be defined as any of the following measures
taken against an employee: a disciplinary measure;
a demotion; termination of employment; or any
measure that adversely affects the employment or
working conditions of the employee. A threat to
take any of these measures would also constitute a
reprisal.
An employee or former employee
who alleges that a reprisal has been taken against
him/her could file a complaint with the Manitoba
Labour Board appointed under the Labour
Relations Act. If the Board determines that a
reprisal has been taken against the complainant,
it could make an order requiring a person to take
all necessary measures to:
Permit the complainant to
return to his/her duties;
Reinstate the complainant or,
if in the Board’s opinion the relationship of
trust between the parties cannot be restored,
pay damages to him/her;
Pay compensation to the
complainant equivalent to what he/she would have
received if, in the Board’s opinion, the
reprisal had not occurred;
Pay an amount to the
complainant equal to any expenses and any other
financial losses that he/she has incurred as
direct result of the reprisal;
Cease an activity that
constitutes the reprisal;
Rectify a situation resulting
from the reprisal; and/or
Do or refrain from doing
anything in order to remedy any consequence of
the reprisal.
Protection for
private-sector employees who provide information
A person other than an employee
of the public service could make a disclosure to
the Ombudsman where he/she reasonably believes
that he/she has information that could show that a
wrongdoing has been or is about to be committed in
the public service—provided that the information
is in writing and contains certain details
required by this Act (e.g. a description of the
wrongdoing). If, as a result of the information,
the Ombudsman has reason to believe that a
wrongdoing has been or is about to be committed,
he/she could investigate the wrongdoing.
A private-sector employer would
be prohibited from taking one of the "prohibited
measures" specified in the Act against an employee
for the sole reason that the latter has, in good
faith, provided information to the Ombudsman about
an alleged wrongdoing An employer would also be
prohibited from taking such measures for the sole
reason that he/she believes that an employee will
provide information. Under the Act, "prohibited
measures" would be defined as follows: any
disciplinary measure; a demotion; termination of
employment; any measure that adversely affects the
employment or working conditions of an employee;
or a threat to take any of these measures.
Legal Advice
If a designated officer or the
Ombudsman is of the opinion that it is necessary
to further the purposes of the Act, he/she could,
subject to any conditions prescribed by
regulation, arrange for legal advice to be
provided to an employee or any other person
involved in any process or proceeding under the
proposed law.
Prohibitions
The Act would specifically
prohibit a person from doing any of the following:
Knowingly making a false or
misleading statement while seeking advice about
making a disclosure or making a disclosure or
during an investigation;
Wilfully obstructing a
supervisor, designated officer or chief
executive, or any person acting on their behalf
or under their direction, in the performance of
a duty under the Act; or
Destroying, mutilating,
altering, falsifying or concealing a document or
thing that he/she knows is likely to be relevant
to an investigation under the Act, or directing,
counselling or causing another person to do so.
A person who contravenes one of
the prohibitions mentioned above or the provisions
that prohibit the taking of reprisals (or
prohibited measures) against a public service
employee (or private-sector employee) would be
guilty of an offence and would be liable, on
summary conviction, to a maximum fine of $10,000.
Coming into force
If this Bill is passed, the
provisions described above will come into force on
a date to be announced by proclamation.
II. INDUSTRIAL
RELATIONS
A. Legislation of General Application
Nova Scotia’s
legislature passed An Act to Amend Chapter 475
of the Revised Statutes, 1989, the Trade Union Act
(Bill 219). Bill 219, which was assented to on
December 8, 2005, will make a number of amendments
to the Trade Union Act. Unless otherwise
indicated, these amendments are slated to come
into force on October 1, 2006.
The most important amendments
include the following measures:
To establish an expedited
grievance arbitration procedure that will be
applicable not only to disputes between the
parties to collective agreements under the
Trade Union Act, but also to rights
disputes under the Civil Service Collective
Bargaining Act, the Corrections Act,
or the Highway Workers Collective Bargaining
Act.
To provide that an
application for expedited arbitration with
respect to a dispute arising out of a collective
agreement may be made by either party when the
grievance procedure under the collective
agreement has been exhausted, five months or
more have passed since the dispute was referred
to arbitration, and no hearings have commenced.
To add a provision respecting
a duty of fair representation for trade unions
and persons acting on their behalf, whose
bargaining rights have been acquired under the
Trade Union Act, the Civil Service
Collective Bargaining Act, the
Corrections Act or the Highway Workers
Collective Bargaining Act with respect to
an employee's rights under a collective
agreement.
To allow complaints to the
Labour Relations Board respecting alleged
breaches of the duty of fair representation and
to make applicable certain conditions for
presenting a complaint (e.g., using any
available internal grievance/appeal procedure of
the trade union and presenting the complaint
within certain time limits).
To provide that the Board may
refuse to hear complaints about alleged breaches
of the duty of fair representation if it
considers them frivolous or otherwise not worthy
of a hearing.
To establish a procedure for
appointing a review officer to inquire into a
complaint concerning a trade union’s duty of
fair representation. The review officer will
have the power to dismiss the complaint or
attempt to effect a settlement. In the latter
case, if a settlement is not possible, he/she
will refer the complaint to the Board.
To allow the Board to order a
trade union to rectify a breach of the duty of
fair representation.
To provide that the sections
of the Act dealing with the trade unions’ duty
of fair representation of employees and the
expedited grievance arbitration procedure do not
apply in the construction industry.
To permit the appointment of
more than one Vice-chairman of the Board.
To authorize the Chairman of
the Board or a Vice-chairman to sit alone to
hear a matter with respect to an uncontested
application or question, or a complaint
concerning a trade union’s duty of fair
representation. When doing so, the Chairman or a
Vice-chairman may exercise all the powers of the
Board. (This amendment will come into force on
October 1, 2007, upon proclamation by the
government.)
B.
Public and Parapublic Sectors
In the federal
jurisdiction, the Public Service
Labour Relations Act was proclaimed into
force on April 1, 2005,44
except for a few provisions dealing with the
adjudication of individual grievances related to
deployment without the employee’s consent under
the Public Service Employment Act. The
latter provisions were brought into force by
government order on December 31, 2005.
In British Columbia,
the Health Statutes Amendment Act, 2005
(Bill 15) came into force on November 24, 2005,
the day it received Royal Assent. Among other
things, it has amended the Health Authorities
Act to specifically exclude "nurse
practitioners" from the "nurses" bargaining unit
established by the Act. It is worth noting that
the Minister responsible for the administration of
the Labour Relations Code continues to
have the power to direct that the Labour Relations
Board add a bargaining unit as an appropriate
bargaining unit in the health sector and/or
consolidate bargaining units.
In Ontario, the
Local Health System Integration Act, 2006
(Bill 36) has amended, among other things, the
Public Sector Labour Relations Transition Act,
1997, effective March 28, 2006. The latter
Act applies to integrations that occur in certain
sectors and within a prescribed transitional
period.
Bill 36 made the following
amendments to the scope of the Public Sector
Labour Relations Transition Act, 1997:
The Act no longer applies
only within the prescribed transitional period,
but applies indefinitely to integrations in
certain sectors, such as the municipal sector
and the school sector.
Upon the request of an
employer that is or will be subject to a health
services integration or a bargaining agent that
represents employees of such an employer, the
Ontario Labour Relations Board may issue an
order declaring that the Act applies to the
health services integration in question.
However, this does not apply with respect to an
employer that is the Crown.
In cases of partial
integration when a predecessor employer
continues to operate on and after the changeover
date, new sections clarify how provisions that
govern issues such as the status of bargaining
rights and collective agreements on the
changeover date are to be modified to apply in
such cases.
Another piece of legislation in
Ontario —the Good Government Act, 2006
(Bill 190)—has, among other things, amended the
Fire Protection and Prevention Act, 1997.
Under the amendments, the non-disclosure and
non-compellability provisions that apply to
conciliators under the Labour Relations Act,
1995 also apply to conciliators who are
appointed under the Fire Protection and
Prevention Act, 1997 to assist in the
settlement of labour disputes involving
firefighters employed in a fire department. This
amendment took effect on June 22, 2006, on the day
Bill 190 received Royal Assent.
C.
Bankruptcy and Insolvency
As indicated in the previous
chapter of this report, the Parliament of
Canada passed Bill C-55, the Act to
establish the Wage Earner Protection Program Act,
to amend the Bankruptcy and Insolvency Act and the
Companies’ Creditors Arrangement Act and to make
consequential amendments to other Acts.
This legislation, in addition to
creating the legislative basis for a Wage Earner
Protection Program and providing for a limited
"super priority" for unpaid wage claims in case of
bankruptcy or insolvency, will further amend the
Bankruptcy and Insolvency Act and the
Companies’ Creditors Arrangement Act, as
regards collective bargaining issues.
These amendments, which will
come into force on a date to be set by the
government, stipulate that an insolvent person or
a debtor company can seek a Court order
authorizing it to serve a notice to bargain to the
bargaining agent representing its employees. Such
a notice will trigger a renegotiation of the
collective agreement under the laws of the
jurisdiction governing collective bargaining
between the parties. In these circumstances, the
insolvent person or debtor company will have to
satisfy the Court that
such an order is necessary
for the making of a viable proposal, compromise
or arrangement (as the case may be), taking into
account the terms of the collective agreement;
it has made legitimate
efforts to renegotiate the collective agreement
with the bargaining agent; and
a failure to issue an order
is likely to result in irreparable damage to the
employer.
The insolvent person or debtor
company will have to provide the bargaining agent
with at least five business days’ notice before it
applies to the Court for such an order. The
existing collective agreement will remain in force
unless it is changed by agreement between the
parties. Where a collective agreement is revised
under these provisions, the bargaining agent will
have a claim, as an unsecured creditor, for an
amount equal to the value of the concessions
granted with respect to the remaining term of the
agreement. If there is no agreement to change the
collective agreement, the Court will not be
authorized to modify its terms.
D. Emergency
Legislation
In the past year, emergency
legislation was adopted in two provinces: in
British Columbia, to settle a dispute in the
education section; and in Quebec, to ensure
continuity of services in public sector bodies.
British Columbia
enacted the Teachers’ Collective Agreement Act
(Bill 12) on October 7, 2005. The purpose of this
Act was to settle a labour dispute between the
British Columbia Teachers' Federation and the
British Columbia Public School Employers'
Association.
The collective agreement between
the parties that expired on June 30, 2004 was
deemed to constitute a collective agreement
between them expiring on June 30, 2006.
Subject to certain limits set
out in the School Act, the parties could
agree to modify the collective agreement
constituted under the legislation. However, a
provision of the collective agreement that created
an obligation for the government could not be
modified without the approval of the Minister of
Finance.
In Quebec,
An Act respecting conditions of employment in the
public sector (Bill 142) was passed and was
assented to on December 16, 2005.
The purpose of this Act is to
ensure the continuity of public services and
provide for the conditions of employment of
employees of public sector bodies.45
To that end, it provides for the general renewal
of the latest collective agreements and specifies
that they are binding on the parties until
March 31, 2010. However, under the Act, the
conditions of employment stipulated in those
collective agreements are modified, in particular
to increase wage rates and scales and to ensure
the implementation of agreements reached with
associations of employees.
The Act stipulates that
employees must, as of 00:01 a.m. on December 16,
2005, report for work according to their regular
work schedule and other applicable conditions of
employment, and perform all the duties attached to
their respective functions, without any stoppage,
slowdown, reduction or degradation of their normal
activities. However, this obligation does not
apply to employees not reporting for work because
they have tendered their resignation (unless they
have done so as part of concerted action), or
because they have been fired or suspended or have
exercised their right to retire.
For the period of application of
the provisions of the Act regarding the continuity
of public services, no association of employees
may declare a strike or participate in concerted
action if the strike or concerted action involves
a contravention of the provisions ensuring the
delivery of normal services by employees.
Similarly, no public sector body may declare a
lockout if this involves such a contravention.
The Act provides for
administrative measures if these obligations are
not fulfilled. The most important of these
measures are described below.
On noting that its employees are
not complying with the obligations specified in
the Act in sufficient number to ensure that normal
services are provided, a public sector body must
suspend withholding any union assessment or dues
(or an amount in lieu thereof) from the wages paid
to the employees represented by an association of
employees. The suspension is effective for a
period equal to 12 weeks per day or part of a day
during which this violation of the Act is noted by
the public sector body. Despite any clause of a
collective agreement or of an agreement, employees
represented by the association of employees
concerned are not required to pay to it any
assessment, dues, contribution or other amount in
lieu thereof for the duration of the suspension.
No employee who fails to comply
with the obligation to perform all the duties
attached to his/her functions, as mentioned
previously, may receive remuneration for the
contravention period. In addition, if the
contravention of the Act consists of an absence
from work or participation in a work stoppage, the
salary to be paid to the employee under the
applicable collective agreement for work performed
is subsequently reduced by an amount equal to the
salary the employee would have received for each
period of absence or work stoppage.
If the employees of a public
sector body do not comply with the obligation to
perform all the duties attached to their functions
in sufficient number to ensure that normal
services are provided, the government may, by
order, from that date, for the period and on the
conditions it specifies—but exclusively for the
purpose of ensuring the provision of services by
the body—replace, amend or strike out any clause
of the collective agreement between that body and
the association representing the employees in
order to determine how the body is to fill a
position, hire new employees and handle any matter
related to work organization.
The Act also contains provisions
relating to civil liability. It stipulates that an
association of employees is liable for any damage
caused during a failure by employees it represents
to comply with the obligation to perform all the
duties attached to their functions, unless it
shows that the damage is not a result of the
contravention of the Act or that the contravention
is not part of a concerted action. The same
applies to a group to which the association of
employees belongs, with which it is affiliated or
to which it is bound by contract, if the group has
not taken the appropriate measures to induce the
association of employees to comply with the
obligations it has under the Act.
With respect to penal
proceedings, fines are provided for various
offences under the Act. These fines range from
$7,000 to $35,000 if the person is an executive,
employee or representative of an association of
employees or a group of such associations, or if
the person is an executive or representative of a
public sector body, or from $100 to $500 if the
person is an employee or an individual other those
just mentioned; and from $25,000 to $125,000 in
the case of an association of employees, a group
of such associations or a public sector body.
These fines apply to each day or part of a day
during which the offence continues.
E.
Construction Industry
In Quebec, Bill
13546
was adopted to amend various provisions of the
Act respecting labour relations, vocational
training and manpower management in the
construction industry. Unless otherwise
indicated, these amendments came into force on
December 13, 2005.
Among other things, Bill 135 has
extended to anyone the application of prohibitions
against intimidation, discrimination and coercion
when the right to freedom of association is
exercised, and it states that an employee
association is prohibited from acting in an
arbitrary or discriminatory manner when making
employment references with respect to employees it
represents.
Bill 135 also provides that any
interested person may file a complaint with the
Commission des relations du travail (Labour
Relations Commission – CRT), within certain time
limits, about an infringement with respect to
freedom of association. If the complainant
establishes to the satisfaction of the CRT that
he/she is exercising a right related to freedom of
association, it is up to the person or association
of employees complained against to prove that
there was good and sufficient reason for the act
complained about. These provisions took effect on
March 1, 2006.
In another vein, amendments have
been made to the provisions of the Act that deal
with the election and functions of job-site
stewards. First, for the purposes of those
provisions, the term "union" is now defined as any
union or association of employees affiliated with
a representative association, or any
representative association that does not include
such affiliated unions or associations. In
addition, the amendments provide that the person
elected as job-site steward must give his/her
union a declaration that his/her election does not
contravene section 26 of the Act (which specifies
instances, related to a criminal offence, whereby
a person is disqualified from holding certain
positions). The union must immediately forward the
declaration to the Commission de la construction
du Québec (Quebec Construction Commission – CCQ).
A new provision also specifies that on the job
site, the job-site steward must limit
himself/herself to doing work for the employer and
carrying out the functions of job-site steward
determined by the Act. These provisions took
effect on March 1, 2006.
In addition, an amendment
provides that the decision of a jurisdictional
conflict resolution committee, created under a
collective agreement, is binding until such time
as the construction industry commissioner renders
a decision on the jurisdictional conflict (if
called upon to do so). Furthermore, Bill 135
provides that the commissioner’s decision also
binds the associations of employees that are party
to the conflict for the purposes of the future
assignment of similar work on other job sites.
Other amendments contained in
Bill 135 exclude from the scope of the Act
construction work on greenhouses to be used for
agricultural production when the work is carried
out by the regular employees of the greenhouse
operator or by employees assigned by the
greenhouse manufacturer, and confirm that the Act
does not apply to work on tailings facilities.
Further amendments have added "psychological
harassment in the workplace" to the list of
grounds on which a grievance may be filed and
require the CCQ to conduct an inquiry into all
written complaints that bring an infringement of
the Act to its attention.
Bill 135 also recognizes the
Conseil provincial du Québec des métiers de la
construction (International) and the Fédération
des travailleurs et travailleuses du Québec (FTQ-Construction)
as representative associations of employees in the
construction industry, in replacement of their
former joint council.
Lastly, Bill 135 has amended
certain penal provisions of the Act. Among other
things, for a contravention of the provisions of
the Act dealing with intimidation, discrimination
and coercion used against an employee, or
discrimination in hiring, the minimum fine has
been raised from $350 to $700 and the maximum fine
has been increased from $700 to $13,975.
Furthermore, if the offence has been committed by
an employer’s representative, a union
representative, a business agent or a job-site
steward, the Court must declare such person
disqualified to represent, in any capacity
whatsoever, an employer or an association of
employees for five years from the day sentence is
rendered.
In New Brunswick,
Regulation 2006-5247
amended the Major Projects Regulations 90-51
under the Industrial Relations Act.
Regulation 2006-52 designates as a "major
project", pursuant to section 51.1 of the
Industrial Relations Act, the refurbishment
of the Point Lepreau Generating Station.48
A new Schedule F added to the Major Projects
Regulations demarcates the geographic area
where this major project is situated.
However, a provision also
specifies that work carried out by the New
Brunswick Power Nuclear Corporation and work
carried out within the geographic area described
in schedule F that is not related to the
refurbishment of the generating station does not
fall under the definition of "major project" under
the Act.
Regulation 2006-52 came into
force on July 27, 2006.
Inter-provincial Labour
Mobility in the Construction Industry
On June 2, 2006, the governments
of Quebec and Ontario
signed the Ontario-Quebec Agreement on Labour
Mobility and Recognition of Qualifications, Skills
and Work Experience in the Construction Industry
(2006). From Ontario’s perspective, this
agreement is aimed at improving access to
construction contracts and construction jobs in
Quebec for Ontario residents. Further to the
agreement, the Quebec government adopted two
regulations, both of which came into force on
June 30, 2006: the Regulation to amend the
Regulation respecting the application of the
Building Act (O.C. 676-2006) and the
Regulation to amend the Regulation respecting
certain exemptions from the requirement of holding
a competency certificate or an exemption issued by
the Commission de la construction du Québec (O.C.
677-2006).
In exchange, the Ontario
government agreed to repeal the Fairness is a
Two-Way Street Act (Construction Labour Mobility),
1999, whose purpose was in part to restrict
access to construction workers residing in any
jurisdiction designated by regulation. It was
repealed on June 30, 2006, by proclamation.
F. Fishing Industry
Newfoundland and
Labrador enacted
Bill 73, An Act to Amend the Fishing Industry
Collective Bargaining Act, which came into
force on February 24, 2006. The most significant
amendments to the Fishing Industry Collective
Bargaining Act are outlined below.
Bill 73 has introduced new
procedures for arriving at a collective agreement
between a certified bargaining agent representing
fishers and a processors’ organization accredited
to bargaining collectively for all processors in
the province of a species of fish.
In substitution for the possible
involvement of a conciliation board, a new
Standing Fish Price-Setting Panel has been
established, consisting of three members appointed
by the government. The Panel has the duty, among
other things, to facilitate collective bargaining
under the Act. The Panel also has the power to
impose a collective agreement where the parties
are unable to achieve one through negotiation. It
is prohibited for fishers to cease business
dealings or for processors or processors’
organizations to engage in a lockout.
Provisions of the Labour
Relations Act regarding the possible
appointment of conciliation officers continue to
apply to matters within the scope of the
Fishing Industry Collective
Bargaining Act.
Bill 73 also provides that
where, in the absence of an accredited processors'
organization, a certified bargaining agent
negotiates a collective agreement for a fish
species and that collective agreement is binding
on the processors who process more than 50% of
that fish species, then the terms of that
collective agreement are binding on all processors
in the province who process that fish species.
In addition, Bill 73 provides
for increased fines in the event of an illegal
lockout or cessation of business dealings.
G. Collective Agreement Expiry Date Exception
In Saskatchewan,
the Collective Bargaining Agreement Expiry
Date Exception Act (Bill 20) came into force
on December 2, 2005, the date it received Royal
Assent.
This Act provides that the
expiry dates of certain collective bargaining
agreements between IPSCO Saskatchewan Inc. and
United Steelworkers of America, Local 5890 and
between Shaw Pipe Protection Limited and
Construction and General Workers’ Union, Local
180, are the expiry dates specified in these
agreements. These dates apply regardless of the
provision of the Trade Union Act which
deems that a collective bargaining agreement
expires three years from its effective date if it
provides for a longer term of operation.
III.
OCCUPATIONAL HEALTH AND SAFETY
A. Legislation of General Application
In Newfoundland and
Labrador, the Occupational Health and
Safety Regulations and the Workplace
Hazardous Materials Information System (WHMIS)
Regulations under the Occupational Health
and Safety Act were amended by Regulations
71/05 and 72/05 (gazetted September 16, 2005). As
a result, provisions that apply to worker health
and safety representatives also became applicable
to workplace health and safety designates,
effective September 16, 2005. (On December 16,
2004, amendments were made to the Occupational
Health and Safety Act concerning the
appointment, in certain circumstances, of a
workplace health and safety designate.)
The legislature of Newfoundland
and Labrador also passed Bill 9, An Act to
Amend the Occupational Health and Safety Act,
which came into force on May 26, 2006, the day it
received Royal Assent. Among other things, this
legislation amended the Occupational Health
and Safety Act by changing the limitation
period during which offences under the Act or
regulations may be prosecuted. Under the amended
Act, any prosecution must be started within 2
years of the date on which the offence is alleged
to have been committed (as previously), or within
two years of the date on which an assistant deputy
minister or an officer of the Occupational Health
and Safety Division becomes aware of the alleged
offence (as provided in the amendment).
In the federal
jurisdiction, a regulatory amendment (SOR/2005-401,
gazetted December 14, 2005) added a new Part XIX
(Hazard Prevention Program) to the Canada
Occupational Health and Safety Regulations (COHS
Regulations) under Part II of the Canada
Labour Code on November 28, 2005.
These new provisions require
that the employer, in conjunction with the policy
committee, or, if there is no such committee, the
workplace committee or the health and safety
representative, develop, implement and monitor a
program for the prevention of hazards in the
workplace that is appropriate to its size and the
nature of the hazards. This program must include
an implementation plan, hazard identification and
assessment (including the methodology used),
preventive measures, employee education, and a
program evaluation. Various requirements are
specified with respect to each component of the
program. The obligation to develop, implement and
monitor a hazard prevention program applies in
respect of every workplace controlled by the
employer, and in respect of workplaces not under
its control, to the extent that the employer
controls the work activity carried out by one or
more employees.
If a program evaluation has been
conducted as mentioned above, the employer must
prepare a program evaluation report and submit a
copy to the Minister of Labour as part of the
employer's annual hazardous occurrence report
referred to in Part XV of the COSH Regulations.
The employer must keep readily available every
program evaluation report for a period of six
years.
A series of regulations were
adopted under Ontario’s
Occupational Health and Safety Act
(Regulations 628/05 to 632/05, gazetted
December 24, 2005).
A new comprehensive Confined
Spaces Regulation will come into force on
September 30, 2006. It will apply to all
workplaces covered by the Act, except farming
operations, work performed underwater during a
diving operation, as defined in the Diving
Operations Regulation, as well as work and
workplaces governed by the Industrial
Establishments Regulation, the Mines and
Mining Plants Regulation, the
Construction Projects Regulation, or the
Health Care and Residential Facilities Regulation.
Amendments have been made to the last four
Regulations just mentioned to revise their
confined spaces provisions. These amendments will
also take effect on September 30, 2006. In
addition, certain sections of the Confined
Spaces Regulation will not apply to emergency
work performed by firefighters or certified gas
technicians working under the direction of a fire
department.
In Prince Edward Island,
amendments to the General Regulations
under the Occupational Health and Safety Act
(EC2006-43 and EC2006-44, gazetted February 4,
2006) came into force on May 1, 2006.
These amendments set safety
standards for the operation, inspection and
maintenance of automotive lifts. As discussed
later in this report, they have also introduced
new provisions dealing with violence in the
workplace and working alone. In addition, Part 24
of the Regulations (Scaffolds) was repealed and
replaced by revised safety requirements contained
in new separate regulations, the
Scaffolding Regulations.
In a separate development,
effective May 24, 2006, the Act to Amend the
Occupational Health and Safety Act (Bill 25)
increased from $50,000 to $250,000 the maximum
fine payable for contravening the Occupational
Health and Safety Act, regulations, or an
order or requirement of an occupational health and
safety officer or the Director of Occupational
Health and Safety.
A provision of the Act that
restricts the release of information obtained by
occupational health and safety officers or other
persons in the course of their duties or functions
under the Act or regulations was also amended. The
amendment allows for the disclosure of such
information where that disclosure facilitates the
administration of other legislation administered
by the Workers Compensation Board.
A series of amendments to
British Columbia’s
Occupational Health and Safety Regulation
(under the Workers Compensation Act) came
into effect on May 17, 2006 (B.C. Regs. 17/2006 to
21/2006, gazetted March 21, 2006).
In the case where an employer is
required to initiate and maintain an occupational
health and safety program (i.e., when it has a
workforce of 20 or more workers and at least one
workplace that is not determined to have a low
risk of injury, or when it has a workforce of 50
or more workers), an amendment specifies that the
program applies to the whole of the employer’s
operations.
Other amendments deal with
health and safety requirements relating to such
topics as the protective barrier at the back of
logging trucks’ cabs, work platforms, respirators,
self-contained breathing apparatuses and
occupational exposure to cytotoxic drugs.
In addition, on August 15, 2006,
amendments were made to the Regulation with
respect to the safety of automotive lifting
devices.
Finally, in Ontario,
the Good Government Act, 2006 (Bill 190)
received Royal Assent and came into force on
June 22, 2006.
This legislation has, among
other things, amended the Occupational Health
and Safety Act to allow a Director appointed
under the Act to publish or otherwise publicly
disclose the name of a person convicted of an
offence under the Act, a description of the
offence, the date of the conviction and the
person’s sentence.
It is also worth noting that
legislation introduced in New Brunswick
to amend the Occupational Health and Safety
Act (Bill 61), summarized in the 2004-2005
issue of Highlights of Major Developments in
Labour Legislation,49
died on the order paper. The bill was reintroduced
in the following session of the legislature (as
Bill 13). It received second reading on
December 13, 2005. However, it also died on the
order paper when the Legislature was dissolved on
August 18, 2006, following an election call. Among
other amendments, this Bill would have added new
provisions to the Occupational Health and
Safety Act as regards new duties for
employers (with respect to workplace inspections),
the training of members of joint health and safety
committees, as well as the establishment of joint
health and safety committees and the designation
of health and safety representatives on
construction sites.
B.
Protection from Tobacco Smoke
The Alberta
Smoke-Free Places Act, which was described in
the Highlights of Major Developments in Labour
Legislation (2004-2005),50
was proclaimed in force on January 1, 2006.51
A Regulation under the Act, the Smoke-Free
Places Signs Regulation, took effect on the
same date.
In Nova Scotia,
Bill 225, An Act to Amend Chapter 12 of the
Acts of 2002, the Smoke-free Places Act,
received Royal Assent on December 8, 2005. This
Bill brings amendments to the Smoke-free
Places Act. It will require all indoor
workplaces and public places to be smoke-free52,
with the exception of designated smoking rooms in
health-care facilities for the acute or long-term
care of veterans, in licensed nursing homes and
residential care facilities, and in homes for aged
and disabled persons. It will also prohibit
smoking in outdoor areas of restaurants or places
licensed to serve alcoholic beverages if these
areas are used for the serving or consumption of
food or beverages.
These amendments will take
effect on December 1, 2006, upon the government so
ordering by proclamation.
In the Northwest
Territories, Bill 16—the Tobacco
Control Act—was assented to on March 2, 2006.
Once proclaimed into force, the
Tobacco Control Act will prohibit the
smoking of tobacco, subject to certain exceptions,
in buildings, structures and vehicles to which the
public has access53,
and in other prescribed public places. The
exceptions will notably include certain public
places used for traditional Aboriginal spiritual
or cultural practices or ceremonies requiring the
use of tobacco; parts of nursing homes, group
homes or other residential facilities that meet
the prescribed requirements; and parts of
workplaces to which the public is not admitted
that are used for private residential
accommodation or that meet prescribed
requirements.
An employer or his/her
representative will be prohibited from dismissing,
disciplining or suspending an employee, or
threatening to do so, imposing a penalty on an
employee or intimidating or coercing him/her
because the employee has acted in compliance with
or has sought the enforcement of this legislation.
Proprietors of public places in
which smoking is prohibited will have to ensure
that no ashtrays54,
matches, lighters or other things designed to
facilitate smoking are provided in those public
places, except as may be permitted by the
regulations, and that no-smoking signs are
displayed in the prescribed form, manner and
location.
Proprietors of public places
where smoking is prohibited will have to refuse
service to persons who contravene the prohibition
on smoking, and may use reasonable means to remove
a person who refuses to stop smoking.
If a provision described above
is inconsistent or in conflict with another Act, a
regulation or a municipal bylaw, the provision
that is more restrictive with regard to smoking
will prevail.
Inspectors appointed or
designated under the Act will enforce and
administer the new legislation, and there will be
fines for contravening its provisions.
Bill 16 will come into force on
a date or dates set by order of the N.W.T.
Commissioner.
C. Violence in the Workplace and Persons
Working Alone
As previously mentioned,
Prince Edward Island made amendments to
the General Regulations under the
Occupational Health and Safety Act. These
amendments, which came into force on May 1, 2006,
include new provisions dealing with violence in
the workplace and working alone.
The new provisions define
"violence" as the threatened, attempted or actual
exercise by a person, other than a worker, of any
physical force that causes or can cause injury to
a worker, and includes any threatening statement
or behaviour that gives a worker reasonable cause
to believe that he/she is at risk of injury.
These provisions require that
the employer conduct a risk assessment of the
workplace to determine whether a risk of injury
from violence may be present. The risk assessment
must take into consideration the previous
experience of violence in that workplace,
occupational experience of violence in similar
workplaces, and the location and circumstances in
which the work takes place. If a risk of injury is
identified, the employer must establish
procedures, policies and work environment
arrangements to eliminate the risk of violence to
workers or, where this is not possible, to
minimize that risk. The employer must also
establish procedures for reporting, investigating
and documenting incidents of violence in the
workplace.
In addition, the employer is
required to inform workers, who may be exposed to
the risk of violence in the workplace, of the
nature and extent of that risk. This includes
warning workers about particular persons that have
a history of violent behaviour whom they may
encounter in the course of their work. The
employer must instruct these workers on how to
recognize the potential for violence, the
procedures, policies, and work environment
arrangements which have been developed with
respect to violence to workers in accordance with
the Regulations, and the appropriate response to
incidents of violence, including how to obtain
assistance.
The employer must also ensure
that a worker reporting an injury or adverse
symptom as a result of an incident of violence in
the workplace is advised to consult a physician
for treatment or referral.
With respect to the provisions
dealing with working alone55,
an employer must develop and implement written
procedures to ensure, so far as is reasonably
practicable, the health and safety of a worker who
works alone from risks associated with the work
assigned. Among the information that the
procedures must contain are the identification of
possible risks to each worker working alone, the
steps to be followed to minimize those risks
(including contacting the worker at specified time
intervals) and details on how to obtain assistance
in the event of injury or other circumstances that
may endanger the health or safety of the worker.
An employer must also implement a training program
in respect of these procedures for persons working
alone and their supervisors.
D. Hazardous
Substances
Ontario
has amended the Regulation respecting Control
of Exposure to Biological or Chemical Agents
under the Occupational Health and Safety Act
(through Regulation 607/05, gazetted December 17,
2005) in order to adopt new or revised
occupational exposure limits (OELs) for 23
workplace hazardous substances. Most of the
changes to the OELs came into force on
November 28, 2005, while changes to the OELs for a
hazardous substance (i.e., styrene) came into
force on March 1, 2006, and revised OELs for
styrene and another hazardous substance (i.e.
formaldehyde) will take effect on December 31,
2007.
E. Biological
Hazards
Saskatchewan’sMandatory Testing and Disclosure (Bodily
Substances) Act, which was described in the
Highlights of Major Developments in Labour
Legislation (2004-2005)56,
was proclaimed in force on October 17, 2005.57
In addition, Saskatchewan
adopted The Occupational Health and Safety
Amendment Regulations, 2005 under the
Occupational Health and Safety Act, 1993
(Regulation 112/200558).
Effective October 19, 2005,
these Regulations have revised provisions of the
Occupational Health and Safety Regulations,
1996 dealing with exposure to infectious
materials or organisms, and have improved
protection for health care and other workers.
Under the new provisions, if
workers are required to handle, use or produce an
infectious material or organism or are likely to
be exposed at a place of employment, an employer,
in consultation with the occupational health
committee, must develop and implement a written
exposure control plan to eliminate or minimize
worker exposure. Such an employer had, no later
than January 1, 2006, to describe in his/her
exposure control plan the steps to be taken as of
July 1, 2006 to ensure compliance with these
provisions and, if applicable, those dealing with
the risk of injury from a contaminated hollow bore
needle, as described below.
No employer may allow a worker
to undertake any tasks or procedures that may put
workers at risk of exposure to an infectious
material or organism unless the worker has been
trained with respect to the exposure control plan
and the use of control measures appropriate for
the task or procedure undertaken.
An employer, in consultation
with the occupational health committee, must
review the adequacy of the exposure control plan,
and amend it if necessary, at least every two
years or as required to reflect advances in
infection control measures, including engineering
controls.
In addition, effective July 1,
2006, in health care facilities (except medical or
dental offices/clinics), correctional facilities
and youth custody facilities, new duties are
specified for employers and contractors when there
are tasks or procedures in which it is reasonably
anticipated that a worker or self-employed person
may incur a percutaneous injury from a
contaminated hollow bore needle. In such
circumstances, an employer or a contractor must
identify, evaluate and select needles with
engineered sharps injury protections or needleless
systems, in consultation with representatives of
those workers or self-employed persons who will
use the selected device, and must ensure that the
selected safe needles are used. The employer or
contractor is not required to fulfill those duties
in certain circumstances, such as when he/she can
demonstrate that needles with engineered sharps
injury protections or needleless systems pose an
additional risk to the patient, worker or
self-employed person. Lastly, the employer or
contractor must maintain an injury log for all
exposures involving a percutaneous injury with a
sharp that may be contaminated; entries in the
injury log must contain specified information and
protect the confidentiality of the exposed worker
or self-employed person.
Legislation was also passed in
Nova Scotia to reduce the risk of
needlestick injuries from hollow-bore or
intravenous needles, and thus to decrease the
concomitant risk of contracting various diseases
such as hepatitis B, hepatitis C, and HIV. The
Safer Needles in Healthcare Workplaces Act
(Bill 13) received Royal Assent on July 14, 2006
and will come into effect on January 1, 2007.
This Act mandates the use of
safety-engineered needles in most healthcare
workplaces, including nursing homes and licensed
residential care facilities. Under the Act, every
employer, including contractors and
subcontractors, must ensure that employees and
dependent contractors in a healthcare workplace
use only safety-engineered needles. These are
defined as a shielded needle device, a retractable
needle system, a needleless device or a needle
reduced device that is commercially available and
approved as a medical device by Health Canada.
The Act does list some
exceptions to this rule, however. It stipulates
that an employer may allow an employee to use a
needle that is not a safety-engineered needle
where:
the employer, in consultation
with the joint health and safety committee or
the health and safety representative, if any,
can demonstrate that a safety-engineered needle
either poses a greater risk than another needle
to a patient, client, resident or employee, or
may impair the effectiveness of a treatment;
a needle device is pre-filled
with a biological or antibiotic product that is
present in the province on January 1, 2007
(i.e., the day that the Act comes into force);
there is a public health
emergency under the Health Protection Act
or a state of emergency or state of local
emergency under the Emergency Measures Act;
a needle is stockpiled for
use in a public health emergency or a state of
emergency and is present in the province on
January 1, 2007; or
a national program (such as a
blood-collection program or vaccination program)
has not yet received Health Canada’s approval to
use a safety-engineered needle.
The Governor in Council may also
make regulations exempting an employer from the
requirement to use safety-engineered needles, or
exempting a workplace or class of workplace from
the definition of a "healthcare workplace",
thereby excluding it from the application of the
Act.
Once the Act comes into force,
employers subject to it will have to develop and
implement a compliance plan within one year,
unless an exemption is granted by the Governor in
Council. The Act provides that such a plan must be
developed in consultation with the applicable
joint health and safety committee or health and
safety representative, if any.
Employers subject to the Act
will also have to provide instruction and training
to employees who are required to use a
safety-engineered needle, or who might
accidentally come into contact with such a device.
This instruction and training will have to be
reviewed at least once per year, in consultation
with any relevant health and safety
representative.
An individual who fails to
comply with the Act will be liable, upon summary
conviction, to a fine of up to $25,000 and/or
imprisonment for up to twelve months. In the case
of a corporation, the Act provides for a maximum
fine of $250,000.
In Alberta, the
Mandatory Testing and Disclosure Act
(Bill 26) received Royal Assent on May 24, 2006.
Effective on a date to be
announced by proclamation, Bill 26 will replace
the Blood Samples Act, which was assented
to on May 11, 2004, but was not proclaimed in
force. The new Act will allow an individual to
apply to the Provincial Court for a testing order
in the following circumstances: he/she has come
into contact with a bodily substance of another
individual (called the "source individual") while
providing emergency assistance to that individual
or performing duties as a firefighter, paramedic
or peace officer, or while the individual is
involved in a circumstance or activity or belongs
to a class of individuals described in the
regulations.
An application for a testing
order will have to set out the circumstances in
which the applicant came into contact with a
bodily substance of the source individual, state
any attempts that have been made to determine if
the source individual is infected with a pathogen
that causes a communicable disease, be submitted
with a physician’s report, and meet any other
prescribed requirements. Such an application will
have to be made within 30 days of the applicant’s
coming into contact with a bodily substance of the
source individual, unless otherwise provided by
regulation.
If the court issues a testing
order and it is necessary to take a sample of a
bodily substance from the source individual, one
or more qualified analysts designated by a medical
officer of health will conduct tests on the sample
obtained under the legislation. As soon as
possible after receiving the results of an
analysis, a medical officer of health will have to
make reasonable efforts to forward a copy of the
results to the physicians of the applicant and the
source individual. The results of an analysis will
not be admissible in evidence in any criminal or
civil proceeding other than in accordance with the
Act (i.e., the Mandatory Testing and
Disclosure Act) or the Public Health Act.
Information concerning an
applicant or a source individual that comes to a
person’s knowledge in the course of carrying out
any responsibility under the Mandatory Testing
and Disclosure Act or the regulations may not
be used or disclosed, except in limited
circumstances spelled out in the new legislation.
The Minister responsible for the
legislation will not have to defray any cost of
the applicant or the source individual, unless
otherwise provided for by the regulations.
A person who contravenes the
Mandatory Testing and Disclosure Act or the
regulations will be guilty of an offence and be
liable to a fine not exceeding $2,000 for a first
offence or $5,000 for a second or subsequent
offence.
Finally, a bill was introduced
in Ontario to replace section
22.1 of the Health Protection and Promotion
Act. This section deals with applications for
orders to provide blood samples and the analysis
of those samples. Bill 28, the Mandatory Blood
Testing Act, 2006, received second reading on
June 13, 2006.
Under the Health Protection
and Promotion Act, a person who has come into
contact with a bodily substance of another person
in certain situations set out in or prescribed
under the Act (e.g., while providing emergency
health care or first aid services) may apply to a
medical officer of health to have the blood of the
other person analysed for viruses that cause
certain communicable diseases. Under the current
regulations, the medical officer of health may
take seven days in attempting to get a blood
sample or other evidence of seropositivity
voluntarily from the person. If the medical
officer of health fails to obtain a blood sample
voluntarily, he/she may order that person to
provide a blood sample for analysis, with or
without first holding a hearing, and without
notice to the person who will be subject to the
order. If the medical officer of health refuses to
grant the application for an order, his/her
decision may be appealed to the Chief Medical
Officer of Health or the Health Services Appeal
and Review Board.
Bill 28 would shorten the length
of time the process takes from the receipt of an
application to the issuing of an order, if any,
and it would transfer the power to make an order
from a medical officer of health to the Consent
and Capacity Board. Under the Bill, a person could
still apply to a medical officer of health to have
the blood of another person analysed for viruses
in circumstances similar to those mentioned in the
Health Protection and Promotion Act. The
medical officer of health would have to attempt to
contact the other person and request a blood
sample for analysis or other evidence of
seropositivity. If the person who is requested to
provide a blood sample or other evidence does not
provide it voluntarily within two days59
after the receipt of the application, the medical
officer of health would have to refer the
application to the Consent and Capacity Board.
The Consent and Capacity Board
would be required to hold and conclude a hearing
into the application within seven days after the
application is referred to it, and it would be
empowered, in specific situations, to order the
person to provide a blood sample for analysis. The
Board would have to give its decision within one
day after concluding a hearing. There would be no
appeal from the Board's decision.
Most provisions of Bill 28,
including the legislative changes mentioned above,
would come into force on a date to be announced by
proclamation.
F.
Boilers and Pressure Vessels
On March 1, 2006,
Alberta adopted a new Pressure
Equipment Safety Regulation (Regulation
49/2006), which replaced the previous Boilers
and Pressure Vessels Regulation and the
Design, Construction and Installation of Boilers
and Pressure Vessels Regulations. Shortly
afterwards, on March 9, 2006, the province issued
a Pressure Equipment Exemption Order
(Regulation 56/2006) that contains a list of
apparatuses to which the Safety Codes Act
and the Pressure Equipment Safety Regulation
do not apply. Both regulations came into force on
April 1, 2006.60
For the purpose of ensuring that
they are reviewed for ongoing relevancy and
necessity, this Regulation is scheduled to expire
on January 31, 2015 and the Exemption Order is
scheduled to expire on August 1, 2014.
G.
First Aid
Effective June 1, 2006,
amendments have been made to Newfoundland
and Labrador’sOccupational Health
and Safety First Aid Regulations (by means of
Regulation 45/0661
under the Occupational Health and Safety Act)
to provide that the Workplace Health, Safety and
Compensation Commission must establish the
education, practical training and other criteria
required for obtaining first aid certificates
(i.e., advanced first aid, emergency first aid or
standard first aid). Previously, the Regulations
required the successful completion of a specified
St. John Ambulance safety course.
The Commission may designate as
acceptable a course or program offered by a person
or organization, which provides the training
mentioned above, if it considers it to be
equivalent to what is required by the Regulations.
H.
Road Transport (Hours of Service)
In the federal
jurisdiction, a new Commercial
Vehicle Drivers Hours of Service Regulations
(SOR/2005-313)—under the Motor Vehicle
Transport Act—was published in the Canada
Gazette, Part II, of November 16, 2005.
The Commercial Vehicle
Drivers Hours of Service Regulations govern
the maximum driving hours and minimum off-duty
hours of commercial vehicle (bus and truck)
drivers employed or otherwise engaged in
extra-provincial transportation. These Regulations
require drivers to keep a record of their daily
driving and other work activities in a prescribed
format and to make these records available to
designated enforcement officials upon request.
On January 1, 2007, the
Commercial Vehicle Drivers Hours of Service
Regulations will repeal and replace the
Commercial Vehicle Drivers Hours of Service
Regulations, 1994. The main objective of the
new Regulations is to reduce the risk of
fatigue-related commercial vehicle collisions by
providing drivers with the opportunity to obtain
additional rest. The most important changes
featured in the new Regulations include the
following:
introducing a new daily
requirement for a minimum of 10 hours off-duty.
The current Regulations do not contain a
specific daily requirement;
reducing the daily maximum
driving time by 18.8% from 16 hours to 13 hours;
reducing the daily maximum
on-duty time by 12.5% from 16 hours to 14 hours;
introducing a new elapsed
time limit of 16 hours from the last off-duty
period of 8 consecutive hours or greater to the
beginning of the next such period;
requiring that upon reaching
the on-duty, driving or elapsed time limit, a
minimum of 8 consecutive hours of off-duty time
is taken before re-commencing driving;
eliminating an option that
permits a driver, on a limited basis, to reduce
the minimum off-duty time from 8 hours to 4
hours;
increasing the minimum rest
period for team drivers using a vehicle equipped
with sleeper berth accommodations from 2 to 4
consecutive hours (under certain conditions,
resting time in the sleeper berth can be
accumulated as off-duty time);
providing reasonable
flexibility by permitting, within defined
parameters, the averaging of on-duty and
off-duty time over a 48-hour period;
simplifying the rules by
reducing the number of available work/rest
cycles from three to two: a maximum 70-hour
cycle over 7 days and a maximum 120-hour cycle
over 14 days;
requiring drivers who wish to
switch or reset the cycle (cumulative time)
under which they are operating to obtain a
minimum of 36 consecutive hours off-duty for
Cycle 1 (70 hours/7 days) and a minimum of 72
consecutive hours off-duty for Cycle 2 (120
hours/14 days); and
requiring a minimum of 24
consecutive hours off-duty, at least once every
14 days for all drivers.
I. Mine Safety
Quebec
adopted the Regulation to amend the Regulation
respecting occupational health and safety in mines
under the Act respecting occupational health
and safety (O.C. 119-2006, gazetted March 8,
2006); it came into force on March 23, 2006.
This Regulation has added new
definitions to the Regulation respecting
occupational health and safety in mines
relating to explosives, in particular regarding
the place of loading, the loading area and the
blasting area. In addition, it has amended certain
provisions relating to air quality and equipment
(e.g. diesel engines and hoists). Safety measures
have also been increased as regards fire
prevention, the transportation, storing and
loading of explosives, the storing of fuel and
other combustible materials, and electrical
equipment. Lastly, other amendments include adding
two additional modules to the training course for
underground mine workers.
Effective June 15, 2006, the
federal government amended the
Coal Mining Occupational Health and Safety
Regulations under the Canada Labour Code
to include provisions applying to employers who
propose to enter a mine that has been closed
without the intent to significantly disturb the
ground (for example, to assess its economic
potential).62
Under the new provisions, such employers must,
before entering a closed mine, adopt and implement
a safety code approved by the Senior Director,
Occupational Health and Safety and Injury
Compensation. The safety code must contain
provisions having substantially the same purpose
and effect as the Regulations, and it must notably
include the following information: the name and
geographical location of the proposed entry, a
description of the work to be done and its
duration, a description of safety and control
measures that will be used when entering the mine,
a list of equipment to be used, a description of
the health and safety responsibilities of the
employer and the employees, a list of individuals
who will be entering the mine, and a description
of how the mine will be sealed.
Other safety requirements
contained in the Regulations do not apply to
employment in a mine that is entered after having
been closed if the employer has adopted and
implemented a safety code approved by the Senior
Director, and this applies as long as the employer
does not significantly disturb the ground.
Finally, Newfoundland
and Labrador adopted a regulation63
to amend section 111 of the Mines Safety of
Workers Regulations, which deals with
training for rescue equipment. As a result, the
power to determine training needs as regards the
use and maintenance of mine rescue equipment, to
approve required training courses, and to issue
certificates of mine rescue training has been
transferred from the chief inspector to the
Workplace Health, Safety and Compensation
Commission. This amendment came into force on
August 11, 2006.
J. Construction
Safety
In Ontario,
Regulation 627/05 (gazetted December 24, 2005)
made a number of amendments to the
Construction Projects Regulation under the
Occupational Health and Safety Act,
notably to revise the electrical hazards
provisions and to add safety requirements
regarding multi-tiered load hoisting operations.
The amendments introduced by this Regulation took
effect on January 1, 2006, except for most of the
revised electrical hazards provisions, which came
into force on April 1, 2006.
K.
Safety in Diving Operations
Two provinces have adopted
regulations regarding diving safety under their
occupational health and safety legislation.
Comprehensive new
Occupational Diving Regulations (N. S. Reg.
174/2005, gazetted September 30, 2005) have been
adopted in Nova Scotia. They
apply to all dives conducted at a workplace,
except dives where only a snorkel is used and
scientific dives conducted by an organization that
is a member of the Canadian Association for
Underwater Science (CAUS) in accordance with
specified standards of practice published by CAUS.
These Regulations came into force on May 1, 2006.
In Newfoundland and
Labrador, Regulation 110/05 amended the
Occupational Health and Safety Regulations
on December 9, 2005 to update standards respecting
diving operations, and to revise those applying
specifically to seafood harvesting and aquaculture
diving operations.
L. Trades
Qualification
In Ontario, the
Trades Qualification and Apprenticeship Act
sets out certification requirements for certain
trades and apprenticeship training requirements,
including hazard recognition and health and safety
training. Ministry of Labour health and safety
inspectors enforce the Act’s certification
requirements for the following trades:
electricians, hoisting engineers, plumbers,
refrigeration and air conditioning mechanics,
sheet metal workers and steamfitters. Upon
request, employers and these trade workers are
required to provide written proof of trades
qualifications, such as a certificate of
qualification or apprenticeship contract, to
Ministry inspectors.
Until April 3, 2006,
occupational health and safety inspectors had
generally issued orders to comply if such written
proof could not be provided immediately. As a
result of amendments brought by Regulation 53/0664
to Regulation 950 under the Provincial
Offences Act, inspectors now have the power
to issue tickets to employers, supervisors and
workers in specified trades if written proof of
trades qualifications is not provided.
[2] To be
eligible for compassionate care benefits, a
claimant must have contributed to the EI fund and
worked at least 600 insurable hours in the
previous 52 weeks or since the start of the last
claim, whichever is shorter. In addition, he/she
must demonstrate that his/her regular weekly
earnings from work have decreased by more than
40%.
[4] It
should be noted that where the order is made
retroactive pursuant to the Emergency Management
and Civil Protection Act, the employee is deemed
to have been on leave beginning on the first day
he/she did not perform the duties of his/her
position on or after the date to which the order
is made retroactive.
[5]
"Spouse" includes either of two persons who live
together in a conjugal relationship outside of
marriage.
[6]
"Parent" includes a person with whom a child is
placed for adoption and a person who is in a
relationship of some permanence with a parent of a
child and who intends to treat the child as
his/her own. The term "child" has a corresponding
meaning.
[7] It
should be noted that the previous regulation (Reg.
2004-136) would have increased the minimum wage
rate (applying for the first 44 hours in a week)
from $6.30 to $6.40 an hour on January 1, 2006 and
to $6.60 on January 1, 2007. For each additional
hour worked in the same week, the minimum hourly
wage would have been increased from $9.45 to $9.60
on January 1, 2006 and to $9.90 on January 1,
2007. The minimum wage for employees whose hours
of work are unverifiable and who are not strictly
employed on a commission basis would also have
been raised from $277.20 per week to $281.60 per
week on January 1, 2006 and to $290.40 per week on
January 1, 2007.
[8] Under
the Order, "related activities" includes: the
construction, restoration or maintenance of roads,
streets, sidewalks, structures or bridges, water
and sewer installations and paving of all sorts;
earth and rock-moving or related works; snow
removal; primary production of raw construction
materials, including in a saw mill; work in a
machine shop; and metal fabrication.
[9]
Students and duly qualified practitioners of the
following professions are excluded: architecture,
dentistry, law, medicine, chiropody, professional
engineering, public or chartered accounting,
psychology, surveying and veterinary science.
Information technology professionals are also
exempted.
[10] The
closing of retail establishments on Sundays
constitutes a special case. Indeed, temporary
experiments with deregulation from October 1 to
December 31, 1993 and from November 16 to December
21, 2003 had allowed all retail business to open
on Sundays. However, the majority of Nova Scotians
voted against allowing Sunday shopping in a
plebiscite held in October 2004. As a consequence,
Sunday has remained a uniform closing day with
limited exemptions. For more information, please
see the Highlights of Major Developments in
Labour Legislation, 2003-2004 under the
heading "Retail Establishments."
[11] And
any other day the Governor in Council orders and
declares by proclamation to be a uniform closing
day (s. 2(e) of the Retail business Uniform
Closing Day Act).
[12]
Including the following establishments: drug
stores (except if located in a department store);
motor vehicle service stations; restaurants and
facilities providing accommodation, camping, food,
beverage, recreation, related services or tourist
information; broadcasting and telecommunication
services; the provision of goods and services on
an emergency basis; stores in which the principal
business is the sale of handcrafts, souvenirs and
similar articles, principally to tourists or
travelers; and stores primarily selling books,
newspapers and magazines (s. 3(2) of the
Retail Business Uniform Closing Day Act).
[13] The
Regulations adopted on June 28, 2006 actually
stated that the definition of "related person’’
was found in paragraph 25(2)(b) of the Act but
this error was corrected on June 30, 2006 with the
adoption of the Retail
Business Uniform Closing Day Regulations 100/2006.
[14]
"Related persons", or persons related to each
other, are (a) individuals connected by
blood relationship, marriage or common-law
partnership or adoption; (b) a
corporation and (i) a person who controls the
corporation, if it is controlled by one person,
(ii) a person who is a member of a related group
that controls the corporation, or (iii) any person
related to a person described in subparagraph
251(2)(b)(i) or 251(2)(b)(ii); and (c)
any two corporations (i) if they are controlled by
the same person or group of persons, (ii) if each
of the corporations is controlled by one person
and the person who controls one of the
corporations is related to the person who controls
the other corporation, (iii) if one of the
corporations is controlled by one person and that
person is related to any member of a related group
that controls the other corporation, (iv) if one
of the corporations is controlled by one person
and that person is related to each member of an
unrelated group that controls the other
corporation, (v) if any member of a related group
that controls one of the corporations is related
to each member of an unrelated group that controls
the other corporation, or (vi) if each member of
an unrelated group that controls one of the
corporations is related to at least one member of
an unrelated group that controls the other
corporation.
[15]
Please refer to the General Labour Standards
Code Regulations 117/2006, summarized below.
[16] See
section 3(2) of the Retail Business Uniform
Closing Day Act and the Retail Business
Uniform Closing Day Regulations.
[17]
Information about Order in Council 2005/116 is
included in this issue (2005-2006) of the
Highlights of Major Developments of Labour
Legislation since it was not received in time
for publication in the 2004-2005 issue.
[19]
OntarioNurses’ Association v.
Mount SinaiHospital, 2005 CanLII
14437 (ON C.A.).
[20]
However, as explained later, the persons
responsible for these organizations will also have
certain obligations under the Act.
[21]
Under Bill C-2, the Act does not apply to a
disclosure that one of the prohibitions on taking
reprisals against whistleblowers has been
contravened.
[22] The
Act provides that a public servant can only make a
disclosure to the Commissioner in the following
circumstances: the public servant has already
disclosed the information to his/her supervisor or
the appropriate senior officer but believes it has
not been appropriately addressed; the public
servant believes on reasonable grounds that
disclosing the information to his/her supervisor
or the appropriate senior officer would be
inappropriate due to the subject-matter of the
wrongdoing or due to the person alleged to have
committed it; or the portion of the public sector
in which the public servant is employed has been
declared by its chief executive to be exempt from
the obligation to establish internal disclosure
procedures.
[23] A
person or body dealing with a matter in the course
of an investigation or proceeding under Part IV
(discipline) and Part V (discharge and demotion)
of the Royal Canadian Mounted Police Act
is deemed not to be dealing with the matter as a
law enforcement authority.
[24]
However, the Act provides that information given
by a public servant, or evidence derived from that
information, cannot be used or received to
incriminate him/her in any criminal proceeding
other than under sections 132 or 136 of the
Criminal Code (committing perjury or being a
witness and giving contradictory evidence in a
judicial proceeding).
[25]
However, the Commissioner will not be permitted to
use, in the course of this investigation, a
confidence of the Queen’s Privy Council of Canada
or solicitor-client privileged information, if the
confidence or information is disclosed to him/her.
[26]
However, except in some specified situations, the
Commissioner will not be allowed to disclose in
any annual or special report any information that
the Government of Canada or any portion of the
public sector is taking measures to protect,
including information that: is a confidence of the
Queen’s Privy Council of Canada; is lawyer-client
privileged information; is special operational
information under the Security of Information
Act; is subject to any restriction on
disclosure created by or under any other federal
Act; could reasonably be expected to cause injury
to international relations, national defence or
security, to the detection, prevention or
suppression of criminal, subversive or hostile
activities, to commercial interests or to the
privacy interests of an individual.
[27] It
should be mentioned that Bill C-2 will also amend
the Access to Information Act to provide
that the head of a government institution and the
Commissioner must refuse to disclose any record
containing information created for the purpose of
making a disclosure or obtained in the course of
an investigation into a disclosure under the
Public Servants Disclosure Protection Act.
The Commissioner will also be required to refuse
to disclose any record containing information
received by a conciliator in the course of
attempting to reach a settlement of a complaint
filed by a public servant or former public servant
alleging that he/she was the victim of a reprisal
as defined by the Act. Finally, Bill C-2 will also
bring similar amendments to the Privacy Act.
[28] In
general, these provisions of Bill C-2 will apply
retroactively to a public servant who alleges that
a reprisal was taken against him/her because of a
disclosure that he/she made in good faith after
February 10, 2004, but before the date that s.
19.1 comes into force (which sets out the
procedure to file a complaint), in the course of a
parliamentary proceeding or an inquiry under Part
I of the Inquiries Act. However, the
Commissioner will not be allowed to apply to the
Public Servants Disclosure Protection Tribunal for
an order respecting disciplinary action against
the person(s) who took the reprisal against the
public servant.
[29]
"Board" means, for a public servant employed in
the Public Service Labour Relations Board, the
Canadian Industrial Relations Board; for any other
public servant employed in any portion of the
public sector covered by the Public Service
Labour Relations Act, the Public Service
Labour Relations Board; and for any other public
servant, the Canada Industrial Relations Board.
[30] It
should be noted that a number of exceptions will
apply with respect to members and former members
of the Royal Canadian Mounted Police.
[31] With
the exception of a law enforcement authority.
[32] It
should be noted that a public servant or former
public servant who files a complaint in accordance
with Bill C-2 will be precluded from commencing
any procedure under an Act of Parliament or
collective agreement in respect of the measure
alleged to constitute a reprisal (unless the
Commissioner decides not to deal with the
complaint for a reason other than that it was not
made in good faith).
[33] With
the exception of disciplinary action that has been
the subject of a decision of a court, tribunal or
arbitrator dealing with it on the merits. (In such
a case, the Commissioner and the Tribunal will not
have the authority to deal with the issue of
disciplinary action).
[34] If
it is not warranted, he/she will be required to
dismiss the complaint.
[35] The
assignment cannot be deemed to be a reprisal if
the public servant’s consent is given.
[36]
"Disciplinary measures" would be defined as
taking, or threatening to take, any of the
following measures against the employee:
disciplinary action; demotion; termination of
employment; or any measure that adversely affects
the employment or working conditions of the
employee.
[37] On
summary conviction, the person will liable to a
maximum fine of $5,000 and/or a maximum of six
months’ imprisonment.
[38] The
term "government bodies" would include the
following entities: a government agency as defined
in the Financial Administration Act; a
regional health authority subject to The
Regional Health Authorities Act; a child and
family services agency or authority established
under the Child and Family Services Act
or the Child and Family Services Authorities
Act; and any other body so designated in the
regulations.
[39] The
term "office" would include the offices of the
Auditor General, the Chief Electoral Officer, the
Children’s Advocate and the Ombudsman.
[40] The
term "chief executive" would include the following
persons: the deputy minister of a department, the
chief executive officer of a government body and
the officer of the Legislative Assembly in charge
of an office.
[41] It
should be noted that an employee of the office of
the Ombudsman could seek advice or make a
disclosure regarding that office to the Auditor
General. If disclosures are made, the Auditor
General would be required to carry out the
responsibilities that this Act would confer on the
Ombudsman with respect to disclosures.
[42]
However, if he/she believes that a disclosure made
to him/her would be dealt with more appropriately
by the Auditor General, he/she could refer the
matter to the latter to be dealt with in
accordance with the
Auditor General Act.
[43] When
the matter being investigated involves the chief
executive, the Ombudsman would also be required to
give a copy of the report to the responsible
minister (in the case of a department), to the
board of directors and the responsible minister
(in the case of a government body), or to the
Speaker of the Legislative Assembly (in the case
of an office).
[44] This
proclamation (SI/2005-123) was published in the
Canada Gazette, Part II, of December 14, 2005.
[45] For
the purposes of the Act, public sector bodies
include the Government, government departments and
bodies whose personnel is appointed in accordance
with the Public Service Act, school
boards, general and vocational colleges, and
institutions in the health and social services
sector. There are, however, some exceptions to the
application of the Act, such as the employees
represented by the Professional Union of
Government of Quebec Physicians.
[46]
An Act to amend the Act respecting labour
relations, vocational training and manpower
management in the construction industry
received Royal Assent on December 13, 2005.
[47] This
regulation was gazetted on August 9, 2006.
[48] The
refurbishment of the Point Lepreau Generating
Station has been added to the works already
designated as major projects under the Major
Project Regulation (i.e., the Dalhousie
Generating Station Orimulsion Conversion and Flue
Gas Desulphurization Installation and the
refurbishment of the Coleson Cove Generating
Station).
[49] This
document is available at the following
website.
[51] The
Proclamation of the Smoke-Free Places Act
was published in the Alberta Gazette, Part 1, of
November 15, 2005.
[52] The
Smoke-free Places Act currently permits
smoking in rooms and areas that are enclosed and
separately ventilated, where no person under the
age of 19 may enter.
[53] The
term "workplace" is defined as all or any part of
a building, structure, vehicle or conveyance in
which one or more employees work, and includes any
other area provided by the employer for the use of
the employees. It is worth noting that in 2004,
the Environmental Tobacco Smoke Work Site
Regulations were adopted under the Safety
Act and the Mine Health and Safety Act.
[54] This
prohibition will not apply to ashtrays and
lighters installed in a vehicle by the
manufacturer.
[55] This
refers to the situation of a person who is the
only worker of the employer at a workplace where
assistance is not readily available in the event
of injury, ill health or emergency.
[56] This
document is available at the following
website.
[57] The
proclamation was published in the Saskatchewan
Gazette, Part I, of October 21, 2005.
[58] This
regulation was gazetted November 4, 2005.
[59] The
deadline would be extended by one day if it falls
on a weekend or other holiday.
[60] Both
of these regulations were published in the Alberta
Gazette, Part II, of March 31, 2006.
[62] The
Regulations Amending the Coal Mining
Occupational Health and Safety Regulations (SOR/2006-138)
were published in the Canada Gazette, Part II, of
June 28, 2006.
[63]
Mines Safety of Workers Regulation (Amendment)
under the Occupational Health and Safety Act
(Regulation 60/06), published in the Newfoundland
and Labrador Gazette, Part II, of August 11, 2006.
