2010 Labour and Employment Law

Transcription

1 2010 Labour and Employment Law Client Conference Ontario Region McCarthy Tétrault LLP mccarthy.ca

2 Labour and Employment Conference Friday, October 15, 2010 Table of Contents - Plenary 1. Agenda 2. Presenters Profiles Guest Speakers Barry Fisher, Barry Fisher Arbitration & Mediation Johan Lubbe, Jackson Lewis LLP McCarthy Tétrault Ben Ratelband, Chair Randy Bauslaugh Paul Boniferro Nathalie Gagnon Tina Giesbrecht Gerald Griffiths Fazilah Hussain Sunil Kapur Trevor Lawson Naseem Malik Robb Macpherson Chris McHardy Kate McNeill Dean Palmer Daniel Pugen Brian Wasyliw 3. An Update on Significant Legislative Developments Paper

3 4. An Update on Significant Case-Law Developments Paper 5. Issues in the Recruitment and Hiring Process Paper 6. Immigration Audits Article 7. Issues in Executive Compensation A. Issues in Executive Compensation Paper B. CCGG Say-on-Pay Article 8. The Top 5 Labour and Employment Issues for 2011 Paper Table of Contents - Workshops 9. Workshop A: How to Respond to Departing Employees and Fiduciaries Paper 10. Workshop B: How to Use Mediation Effectively A. Paper Trevor Lawson and Kate McNeill B. Paper 1 Barry Fisher C. Paper 2 Barry Fisher 11. Workshop C: Dealing with Workplace Harassment and Violence PowerPoint Page 2 Labour and Employment Client Conference 2010

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5 Labour and Employment Conference Friday, October 15, 2010 Agenda Introduction 8:00 a.m. Continental Breakfast and Registration 8:30 a.m. Greetings from the CEO, Marc-André Blanchard 8:40 a.m. Welcome and Introduction by the Chair, Ben Ratelband Plenary Session 8:45 a.m. An Update on Significant Legislative Developments Dean Palmer and Daniel Pugen Dean and Dan will discuss significant legislative developments that employers need to know such as: Bill 168's workplace violence and harassment amendments to the Occupational Health and Safety Act. The new Human Rights Tribunal summary hearing process. An update on the status of the Accessibility for Ontarians with Disabilities Act, :00 a.m. An Update on Significant Case-Law Developments Tina Giesbrecht and Trevor Lawson Trevor and Tina will discuss significant labour and employment case-law from the past year, including: Tort claims against employers after the Court of Appeal's ruling in Piresferreira v. Ayotte. Independent contractors, dependent contractors and employees after Reid Heritage Homes. Bad faith dismissal damages in the unionized context - GTAA.

6 Departing employees' plans to compete - Aquafor. 9:25 a.m. Issues in the Recruitment and Hiring Process Sunil Kapur and Gerald Griffiths Sunil and Gerald will discuss important issues and considerations employers should keep in mind during the recruitment and hiring process, including human rights considerations, job advertisements, criminal background checks, and offers of employment. 9:45 a.m. Immigration Audits Naseem Malik Naseem will describe an immigration audit and its importance to an organization's overall risk management and personnel retention. Naseem will also provide an overview of major changes to immigration to take effect in early :00 a.m. Issues in Executive Compensation Robb Macpherson and Randy Bauslaugh Robb Macpherson along with Randy Bauslaugh, one of our pension and benefits specialists, will discuss current issues in executive compensation including different compensation plans, "say on pay" in Canada and specific issues in wrongful dismissal case-law relating to executives. 10:20 a.m. Break 10: 40 a.m. Recent Developments in U.S. Labour Law Johan Lubbe (Partner, Jackson Lewis LLP) Our special guest speaker, U.S. labour & employment lawyer Johan Lubbe, will talk about interesting new developments in U.S. Labour law and how these changes will impact U.S. organizations and employers. 11:05 a.m. The Top 5 L & E Issues for 2011 Paul Boniferro and Brian Wasyliw It's our annual top 5 list! Paul Boniferro and Brian Wasyliw will outline five important issues that we will be keeping our eye on in the upcoming year: How will collective bargaining be impacted by the two year wage freeze that the Government of Ontario has declared in respect of public sector employees? Page 2 Labour and Employment Client Conference 2010

7 The law regarding the accommodation of 'family status' as a ground of discrimination continues to develop. How has the Ministry of Labour reacted to the implementation of Bill 168? The new procedural rule regarding summary judgment has impacted the way that wrongful dismissal actions are litigated. An update regarding the impact of the new structure of the Ontario Human Rights system. 11:30 a.m. Question Period 12:00 p.m. Lunch 1:00 p.m. Labour and Employment Game Show Sunil Kapur, Robb Macpherson and Dean Palmer Host - Ben Ratelband Contestants - Robb Macpherson, Dean Palmer and Sunil Kapur In this interactive presentation, Robb, Dean and Sunil will compete to see who can come out on top and correctly answer a number of questions arising from a hypothetical fact scenario containing labour and employment law obstacles to be avoided. You, the audience, will get a chance to participate by voting on the answers and engaging in an interactive question and answer session. Workshops (choose one of A to C) 2:00 p.m. A: How to Respond to Departing Employees and Fiduciaries Fazilah Hussain, Chris McHardy and Brian Wasyliw Employers are often rightly concerned about departing employees and the impact on business and customers. As such, many employers have put into place agreements that restrict an employee's activities post-employment. In this workshop, Chris, Brian and Fazilah will discuss the general duties of a departing employee and fiduciary as well as post-employment obligations of confidentiality, non-solicitation and non-competition. Although the enforceability of written agreements addressing these issues can be difficult, the importance of properly drafted agreements is more important than ever given recent developments in the case-law. Our presenters will discuss strategies for ensuring properly formed and enforceable agreements as well as new case-law that employers need to know. Page 3 Labour and Employment Client Conference 2010

8 B: How to use Mediation Effectively Barry Fisher (Mediator and Arbitrator), Trevor Lawson and Kate McNeill Whether its grievance arbitration, labour board matters, human rights applications, wrongful/constructive dismissal litigation in the Courts or other matters, mediation is an important, and sometimes mandatory, part of the litigation process and should be strategically approached. In this interactive workshop, special guest arbitrator and mediator Barry Fisher, along with Trevor Lawson and Kate McNeill, will discuss effective strategies at mediation to ensure a successful outcome. Our speakers will discuss practical points such as preparing for mediation, selecting a mediator, determining your mediation strategy as well as address what happens in a "real life" mediation. C: Dealing with Workplace Harassment and Violence Nathalie Gagnon, Daniel Pugen and Ben Ratelband Workplace harassment and violence has become a "hot" topic lately, and with good reason. With the introduction of Bill 168, employers have specific new, broad and proactive duties with respect to workplace harassment and violence. Further, in addition to occupational health and safety, workplace harassment and violence can weave its way into the law of constructive dismissal, workers' compensation, human rights and the rights of unionized employees under a collective agreement. In this interactive workshop, Ben, Nathalie and Daniel will address the legal framework of workplace harassment and violence and will also examine what is really meant by the terms "harassment" and "violence", including the subject of "psychological harassment". Our presenters will discuss disciplining employees for workplace harassment and violence, workplace investigations and the specific requirements under Bill 168. Finally, Ben, Nathalie and Daniel will lead an interactive examination of two hypothetical fact situations dealing with workplace harassment and violence. 3:00 p.m. Reception All Welcome Page 4 Labour and Employment Client Conference 2010

9 Barry Fisher Biography Barry B. Fisher LL.B. is a mediator and arbitrator in Toronto. His practice focuses on both labour and employment law matters. He is the author of the Wrongful Dismissal Database, an online database published by Carswell, designed to assist lawyers and human resource professionals in determining reasonable notice. Barry is a frequent presenter at seminars and educational courses on issues relating to employment law, labour law, and ADR. He is listed in The Best Lawyers in Canada (2008 and 2009 editions) in the category of Alternative Dispute Resolution. Barry has also been referred to as a leading member of the employment bar in the 2008 Canadian Legal Lexpert Directory and prior editions.

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11 Johan Lubbe Biography Johan Lubbe is a Partner in the White Plains, New York, office of Jackson Lewis LLP. He coordinates the firm s International Employment Law Practice Group, which assists U.S. corporations with their challenges in managing their global workforce. Mr. Lubbe has been practicing law for the past 25 years in South Africa (inactive) and in the U.S. He advises corporations on cross-border employment and expatriate issues. He frequently defends American employers in employment discrimination lawsuits, executive terminations, and trade union matters. He has tried cases to verdict and successfully argued appeals to the various appellate courts. He further represents many foreign corporations in the U.S. on their day-to-day employment, wage-and-hour and other workplace matters. Mr. Lubbe frequently speaks at international employment law conferences, such as at the annual conferences of the European Employment Lawyers Association (EELA) on topics such as Employment Laws and the Investment Decisions of International Companies and on Crossborder Enforcement of Covenants Not to Compete; and at the International Bar Association (IBA) on topics such as Employment Issues in International Mergers and Acquisitions and on Compensation for Management and Directors in M & A Transactions. Mr. Lubbe is also a frequent speaker on international employment law issues in the U.S. Recent presentations include Employment Law Issues and Developments in China (U.S. Chamber of Commerce); Employment Issues of Global Offshoring (annual Global Forum conference of Society of Human Resource Management (SHRM)); Terminating Foreign-Based Employees (annual conference of Personnel Coop); Employment Law Developments in Latin America (National Foreign Trade Council); and Managing Employee Mobility in the Global Market Place (annual conference of American Corporate Counsel Association (ACC)).

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13 Ben Ratelband Lawyer Profile TITLE Partner OFFICE Toronto DIRECT LINE LAW SCHOOL University of Toronto, LLB, 1996 BAR ADMISSIONS Ontario, 1998 Biography Ben Ratelband is a partner at McCarthy Tétrault s Labour and Employment Group in Toronto and is a member of the firm s Environment Health and Safety Group. Mr. Ratelband s practice is focused exclusively on management-side labour, employment and health and safety law. He has advised and represented employers in the sectors of manufacturing, security, energy, trucking, health care, education, information technology, correctional services, hospitality, public service, water supply and finance and investment. Mr. Ratelband has also advised and represented those employers in collective bargaining, labour board proceedings, labour arbitration, mediation, employment litigation, judicial review and civil appeals, employment standards, privacy, human rights, occupational health and safety and workplace safety and insurance proceedings. He regularly provides training for clients managers and other staff to assist them in meeting their legal duties. Mr. Ratelband has spoken on various labour, employment and health and safety topics for such organizations as the Canadian Institute, Rotman School of Business at the University of Toronto, the Human Resources Professionals Association of Ontario, and the Ontario Bar Association. He has also written on a number of labour and employment law topics for various legal publications. Prior to joining McCarthy s, Mr. Ratelband worked in the field of management-side labour relations in private and public sector settings in both Ontario and the Yukon. He was legal counsel to the Management Board Secretariat of the Ontario Ministry of the Attorney General, where he represented the Crown as an employer in a variety of forums, including the Divisional Court and the Court of Appeal. Mr. Ratelband received his B.A. (Hons.) from York University, where he graduated cum laude in 1992, and he received his LLB from the University of Toronto in He was called to the Ontario bar in McCarthy Tétrault LLP mccarthy.ca

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15 Randy Bauslaugh Lawyer Profile TITLE Partner OFFICE Toronto DIRECT LINE LAW SCHOOL Osgoode Hall, LLB, 1981 BAR ADMISSIONS Ontario, Biography Randy Bauslaugh is a partner in our Pensions, Benefits and Executive compensation Group in Toronto. His practice is focussed on pensions, benefits, executive compensation and related investment arrangements. Mr. Bauslaugh has advised on numerous pension plan restructurings, wind-ups and surplus distributions. His clients include corporations, boards of trustees of multi-employer plans, individuals and Canadian and foreign governments. Mr. Bauslaugh is chairperson of the International Pension and Employee Benefits Lawyers Association and a member of the editorial advisory board of Benefits and Pensions Monitor. He is also a member of the MEPP (multi-employer pension plan) Consultation Committee of the Financial Services Commission of Ontario, Canadian Bar Association, Ontario Bar Association, Canadian Pension and Benefits Institute and the Association of Canadian Pension Management. Randy is listed in the Canadian Who's Who, and cited in Chambers Global: The World's Leading Lawyers for Business, The Lexpert/American Lawyer Guide to the Leading 500 Lawyers in Canada, and The Best Lawyers in Canada in the area of pensions and benefits law. He is also cited in The Canadian Lexpert Legal Directory as a "most frequently recommended" practitioner in pensions and employee benefits and in the Federated Press Directory of Professionals as a "distinguished contributor." He enjoys the highest rating granted to lawyers for professional competence and integrity in the Martindale-Hubbell legal directory His speaking engagements have included Legal Issues and Outcomes in Pensions at the federal-provincial pension conference in November of 2009, and Investing in Alternative Energy, The Road to Recovery: Caribbean's Economic Development & Pension Funds, 5th Annual Economic & Financial Development Conference, Miami, Florida, July 15, Mr. Bauslaugh obtained a BA from the University of Waterloo in 1977 and his LLB from Osgoode Hall Law School in He was called to the Ontario bar in McCarthy Tétrault LLP mccarthy.ca

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17 Paul Boniferro Lawyer Profile TITLE Partner OFFICE Calgary DIRECT LINE LAW SCHOOL Osgoode Hall Law School, LLB, 1991 BAR ADMISSIONS Ontario, 1993 Alberta, 2007 Biography Paul Boniferro is the National Leader, Practices and People at McCarthy Tétrault and a partner in the firm s National Labour and Employment Group, practising in both Toronto and Calgary. As National Leader, Practices and People, Mr. Boniferro is a member of the firm s senior leadership team. His responsibilities include overseeing all practice groups, partner admissions, recruiting, talent development, professional development and training, compensation and all personnel matters. As a practising Labour and Employment lawyer, he uses his unique combination of experience gained in the private and government/political sectors to advise federally and provincially regulated clients on a wide spectrum of employment issues, including executive compensation, terminations, wrongful dismissals, grievance arbitration, collective agreement negotiations, human rights complaints, government relations, occupational health and safety issues, and WSIB claims. Governments of all stripes have sought Mr. Boniferro's advice and assistance in developing policy and legislation in labour and employment law. He is a biannual presenter at Retail Roundtable Compensation Survey Group meetings, where he updates all major Canadian retailers on developments in the area of labour and employment law. He recently acted as Chief Spokesperson for the Government of Ontario (Ministry of Correctional Services) in collective bargaining with the Ontario Public Service Employees Union. In addition, Mr. Boniferro assisted the Liquor Control Board of Ontario in averting a strike with its unionized employees. He is a past member of McCarthy Tétrault s Board of Partners and was National Practice Group Leader for the firm s Labour and Employment Group. Prior to joining McCarthy Tétrault, Mr. Boniferro was a Senior Policy Advisor to the Ontario Minister of Labour during one of the province s most significant periods of labour relations reform. There, he advised the government on changes to the Labour Relations Act, the Workers Compensation Act, the Employment Standards Act and the Pay Equity Act. Since joining McCarthy Tétrault in 1996, he has been retained by the government on a number of occasions to provide advice on labour relations and employment issues. In 2004, McCarthy Tétrault LLP mccarthy.ca

18 McCarthy Tétrault LLP 2 mccarthy.ca Paul Boniferro Lawyer Profile Mr. Boniferro was appointed to the Minister of Labour s Employment Standards Action Group, and prior to that, was appointed by the Premier of Ontario to act as Special Negotiator with Québec on construction labour mobility. He represents a wide number of private and public sector employers, both unionized and non-unionized, including those in manufacturing, energy, property management services, steel and hospitality. Mr. Boniferro appears in the 2003 Canadian Legal Lexpert Directory, a guide to the leading lawyers in the area of labour, and was selected as one of Lexpert s Top 40 Under 40 in September A much-requested presenter at labour and employment conferences, he is also an instructor for the Human Resources Professionals Association of Ontario (HRPAO) and is the past-chair of the HRPAO Government Affairs Committee. He is also a member of the Human Resources Association of Calgary and the Canadian and Calgary Bar Association, Labour and Employment Subsection. Mr. Boniferro received his BA (Political Science) from the University of Western Ontario in 1987 and his LLB from Osgoode Hall Law School in He was called to the Ontario bar in 1993 and the Alberta bar in Mr. Boniferro has also studied in the MBA program at Lake Superior State University in Michigan.

19 Nathalie Gagnon Lawyer Profile TITLE Partner OFFICE Montréal DIRECT LINE LAW SCHOOL Université de Montréal, LLB, 1993 BAR ADMISSIONS Québec, Biography Nathalie Gagnon is a partner in our Labour and Employment Group in Montréal. Ms. Gagnon's practice is focused exclusively on management-side labour and employment law in sectors such as manufacturing, services, pharmaceuticals, financial institutions and universities. She developed an expertise in a variety of employment-related matters at both the provincial and federal level, including labour standards, employment agreements, employment policies, wrongful dismissal actions, employee terminations, human rights, privacy as well as access to information. Ms. Gagnon regularly represents both provincially and federally regulated employers before various administrative tribunals as well as before the civil courts and labour arbitrators. She is also regularly involved in mediation, conciliation and other alternate dispute resolution processes. Ms. Gagnon is a frequent lecturer at seminars and conferences relating to employment and labour law. She received her bachelor of civil law from Université de Montréal in She was admitted to the Québec bar in McCarthy Tétrault LLP mccarthy.ca

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21 Tina Giesbrecht Lawyer Profile TITLE Partner OFFICE Calgary DIRECT LINE LAW SCHOOL University of Manitoba, LLB, 1993 BAR ADMISSIONS Manitoba, 1994 Alberta, 2001 Biography Tina Giesbrecht is a partner in our Labour and Employment Group in Calgary. Ms. Giesbrecht advises a wide spectrum of both federally and provincially regulated clients on labour and employment matters including grievance arbitration, human rights complaints, executive compensation employment contracts, personnel policies, fiduciary obligations, non-competition and non-solicitation agreements. She also advises clients on employment issues arising from the purchase and sale of businesses including group terminations and successorship rights. In addition, Ms. Giesbrecht advises employers on privacy, workers compensation, occupational health and safety matters and termination of employment. Prior to joining McCarthy Tétrault, Ms. Giesbrecht practised in Winnipeg and taught employment law at the University of Manitoba. She regularly writes articles and presents seminars on a variety of labour and employment law issues. Ms. Giesbrecht is past Chair of the CBA Labour and Employment Subsection, Alberta Bar Association and a member of the Canadian Bar Association, the Law Society of Alberta, the Law Society of Manitoba, the Manitoba Bar Association, the Canadian Association of Counsel to Employers and the Human Resource Association of Calgary. She received her BA in 1990 and her LLB in 1993 from the University of Manitoba. Ms. Giesbrecht was called to the Manitoba bar in 1994 and to the Alberta bar in McCarthy Tétrault LLP mccarthy.ca

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23 Gerald Griffiths Lawyer Profile TITLE Associate OFFICE Toronto DIRECT LINE LAW SCHOOL University of Ottawa, LLB, 2007 BAR ADMISSIONS Ontario, 2008 Biography Gerald Griffiths is an associate in our Labour and Employment Group in Toronto. Mr. Griffiths represents management in a variety of labour and employment issues including employment standards, wrongful dismissal, labour arbitrations, occupational health and safety, human rights, and labour and employment issues arising in corporate transactions. Mr. Griffiths obtained his B.Comm from Queen's University in 2004 and received his LLB (cum laude) from the University of Ottawa in Mr. Griffiths received the University of Ottawa Common Law Students' Society Award for Excellence for his mooting competition successes and other contributions to the school. Mr. Griffiths is a member of the Law Society of Upper Canada, the Ontario Bar Association, and the Canadian Bar Association, and was called to the Ontario bar in McCarthy Tétrault LLP mccarthy.ca

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25 Fazilah Hussain Lawyer Profile TITLE Associate OFFICE Toronto DIRECT LINE LAW SCHOOL Queen s University, JD, 2008 BAR ADMISSIONS Ontario, 2009 Biography Fazilah Hussain is an associate in our Labour and Employment Group. Ms. Hussain represents management in a variety of labour and employment issues including employment standards, wrongful dismissal, labour arbitrations, occupational health and safety, human rights and labour and employment issues arising in corporate transactions. Ms. Hussain received her B.Sc. (Hons) from the University of Waterloo in 2004, and her JD from Queen's University in During the summer of 2006, Ms. Hussain completed the Public International Law program at the Queen's International Study Centre at Herstmonceux Castle, England. In the summer of 2007, Ms. Hussain interned at the United Nations Secretariat, in its Department of Political Affairs, in New York City. Ms. Hussain is a member of the Law Society of Upper Canada, the Canadian Bar Association, and the Ontario Bar Association. She was called to the Ontario bar in McCarthy Tétrault LLP mccarthy.ca

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27 Sunil Kapur Lawyer Profile TITLE Partner OFFICE Toronto DIRECT LINE LAW SCHOOL Osgoode Hall Law School, LLB, 1995 BAR ADMISSIONS Ontario, 1997 Biography Sunil Kapur is a partner and the Practice Lead of our Labour and Employment Group in Toronto. Mr. Kapur has advised and represented employers in the sectors of financial services, manufacturing, transportation, education, health care, security, information technology, resources and public service. Mr. Kapur has advised and represented those employers in labour board proceedings, arbitration, mediation, collective bargaining, employment litigation, judicial reviews, civil appeals and human rights. Mr. Kapur has advised numerous fortune 500 companies on labour and employment matters arising from mergers and acquisitions. He regularly provides training for clients on a wide range of issues. Mr. Kapur is a part-time member of the Ontario Human Rights Tribunal. Mr. Kapur was a founding member of the Advisory Committee to the Ontario Labour Relations Board. Mr. Kapur is a regular speaker on labour, employment and human rights matters. He is a member of the business committee of the Toronto Board of Trade, the business and employment sections of the American Bar Association, the Ontario and Canadian Bar Associations and the Canadian Association of Counsel to Employers. Mr. Kapur received his B.Sc. from the University of Toronto in He was an Ontario Graduate Scholar and has won several academic awards from the University of Toronto. Mr. Kapur received his LLB from Osgoode Hall Law School in 1995 and was called to the Ontario bar in McCarthy Tétrault LLP mccarthy.ca

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29 Trevor Lawson Lawyer Profile TITLE Partner OFFICE Toronto DIRECT LINE LAW SCHOOL Dalhousie University, LLB, 1998 BAR ADMISSIONS Ontario, 2000 Biography Trevor Lawson is a partner in our Labour and Employment Group in Toronto. He regularly advises federally and provincially regulated employers concerning all aspects of labour and employment law, including collective bargaining and collective agreement administration, labour arbitration, mergers and acquisitions, outsourcing, employment agreements, compensation plans and restrictive covenants, employment policies, employment standards, discrimination and harassment, wrongful dismissal and privacy. Mr. Lawson represents employers in all aspects of labour and employment law litigation, and has appeared in proceedings before the Ontario Superior Court of Justice, Court of Appeal for Ontario, Ontario Labour Relations Board, human rights tribunals, boards of arbitration, coroner s inquests and other administrative tribunals. Mr. Lawson s clients carry on business in a variety of sectors, including manufacturing, energy, technology, hospitality, property management, transportation, pharmaceuticals, banking and finance. Mr. Lawson regularly makes presentations to management groups on a wide range of employment-related subjects. Mr. Lawson received his BA (Hons.) in Political Science from McMaster University in 1995, and his LLB from Dalhousie University in He was called to the Ontario bar in McCarthy Tétrault LLP mccarthy.ca

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31 Naseem Malik Lawyer Profile TITLE Counsel OFFICE Toronto DIRECT LINE LAW SCHOOL University of Saskatchewan, LLB, 1994 BAR ADMISSIONS Ontario, 1996 Biography Naseem Malik is counsel in the firm s Labour and Employment Group in Toronto. His practice focuses on business immigration law. Previously, Mr. Malik was employed by the Department of Citizenship and Immigration. He worked as an Immigration Examining Officer at Pearson International Airport. Mr. Malik assists his clients, which range from large multinational corporations, financial institutions, industrial and high-tech companies to musicians and entertainment groups, in order to facilitate their entry into Canada for business-related purposes. He assists clients with a wide range of business immigration matters, including: Temporary Resident Visas for persons who require such visas prior to entering Canada; Work Permit applications pursuant to the North American Free Trade Agreement (NAFTA), General Agreement on Trade and Services (GATS) and the Immigration and Refugee Protection Act; Service Canada positive labour market opinion applications; Permanent Residence applications; Citizenship applications; Study Permit applications; extension applications for work permits, study permits and visitor records; obtaining permission for the spouse of a temporary foreign worker to obtain a work permit permitting them to work in Canada; Temporary Resident Permits/Rehabilitation applications relating to criminal inadmissibility; analyzing Criminal Code provisions and foreign statutes to assess whether a person is inadmissible to Canada based on prior criminal convictions; and McCarthy Tétrault LLP mccarthy.ca

32 McCarthy Tétrault LLP 2 mccarthy.ca Naseem Malik Lawyer Profile analyzing and dealing with medical inadmissibility issues. In addition to his legal skills, Mr. Malik also provides practical advice relating to logistical issues that arise when foreign nationals travel to Canada for business purposes. He has spoken at the McCarthy Tétrault Labour and Employment Law Client Conference in Toronto on the topic of business immigration in 2002, 2003, and from 2005 to In May 2003, Mr. Malik spoke at the Canadian Bar Association's Annual Conference in Montréal on immigration-related issues. Mr. Malik has had immigration-related articles published in 2004 and 2005 in Law Times and 2004, 2005, 2007 Lawyers Weekly. He was a featured contributor to a 2008 corporate immigration article in Canadian Lawyer magazine. He was also recently quoted extensively in a 2010 Law Times article on business immigration. He contributed to a cross-border manual on immigration and customs issues for Carswell in In 2005, he participated as seminar leader at a one-day intensive course on business immigration at the Law Society of Upper Canada. Mr. Malik participated in the 2008 "Mastering Immigration Applications for Foreign Workers" conference held by the Canadian Institute and was a featured speaker at the 2009 and 2010 Ontario Bar Association's Institute CLE.From , Mr. Malik was a member of the OBA Immigration and Citizenship subsections Executive, and has been recognized by Lexpert since 2003 as having a significant practice in the field of business immigration. He received his BA (Psychology) in 1991 from the University of Saskatchewan and his LLB from the University of Saskatchewan Law School. Mr. Malik was called to the Ontario bar in He is a member of the Law Society of Upper Canada and the Citizenship and Immigration section of the Canadian Bar Association.

33 Robb Macpherson Lawyer Profile TITLE Partner OFFICE Toronto DIRECT LINE LAW SCHOOL Osgoode Hall Law School, LLB, 1979 BAR ADMISSIONS Ontario, 1981 Biography Robb Macpherson is a partner and a member of the Labour and Employment Group in Toronto. He advises employers concerning all aspects of labour and employment law, including collective bargaining, collective agreement administration, executive compensation, mergers and acquisitions, restructuring and insolvency, wrongful dismissal, employment agreements, employment policies, employment standards, health and safety, workplace discrimination and harassment, employee benefits, privacy, pay equity and plant closures. Mr. Macpherson acts as counsel to employers in all aspects of labour and employment law litigation, including acting as counsel before the Ontario Labour Relations Board, the Canada Labour Relations Board, boards of arbitration, the Human Rights Tribunal of Ontario, and other boards and tribunals. He also regularly conducts collective bargaining on behalf of employers and represents employers in mediation and alternative dispute resolution of disputes. Mr. Macpherson acts for clients in a number of sectors, including financial institutions, insurance, manufacturing, energy, automotive, logistics, technology, transportation, and universities. Mr. Macpherson has made frequent presentations and has written papers on a wide range of employmentrelated subjects, including executive compensation, collective bargaining, human rights, drug testing, workplace harassment and progressive discipline. Mr. Macpherson is listed in the 2010 edition of Chambers Global: The World s Leading Lawyers for Business, as a leading lawyer in the area of employment and labour. He received his BA from Queen s University in 1974 and his LLB in 1979 from Osgoode Hall Law School. Mr. Macpherson articled with our predecessor firm of McCarthy & McCarthy in Toronto and was called to the Ontario bar in McCarthy Tétrault LLP mccarthy.ca

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35 Christopher McHardy Lawyer Profile TITLE Partner OFFICE Vancouver DIRECT LINE LAW SCHOOL University of British Columbia, LLB, 2000 BAR ADMISSIONS British Columbia, 2001 Biography Christopher McHardy* is a partner in the Vancouver Labour & Employment Group. He advises employers on a broad range of issues relating to labour, employment, human rights, privacy and immigration law. His experience includes: advising US clients on labour, employment, privacy and immigration laws in connection with establishing business operations in British Columbia; advising employers on, and preparing and negotiating, employment and consulting agreements, restrictive covenants; workplace policies, employee handbooks and other employment-related documents; advising on labour and employment issues in corporate mergers, acquisitions and outsourcing; advising employers on union certification drives and applications, decertification applications, unfair labour practices and collective bargaining; and representing employers in collective bargaining; defending employers against employee claims in provincial and superior courts, the Human Rights Tribunal, the Employment Standards Tribunal, the Labour Relations Board, labour arbitration boards, the Workers Compensation Board and its Appeal Tribunal, the Privacy Commissioner and other administrative bodies; representing employers in mediation and other alternative dispute resolution processes; advising employers on human resource management practices, privacy laws, union avoidance, and employee hiring, layoffs and terminations; and advising and assisting organizations and individuals with immigration matters, particularly work permits, Provincial Nominee Program applications and permanent residence. McCarthy Tétrault LLP mccarthy.ca

36 McCarthy Tétrault LLP 2 mccarthy.ca Christopher McHardy Lawyer Profile Mr. McHardy received his B.Comm. (1997 Honours) and his LLB (2000) from the University of British Columbia. Mr. McHardy has focused his practice on labour and employment matters since his call to the BC bar in *denotes Law Corporation

37 Kate McNeill Lawyer Profile TITLE Associate OFFICE Region DIRECT LINE LAW SCHOOL University of Ottawa, 2006 BAR ADMISSIONS New York, 2006; Ontario, 2007 Biography Kate McNeill is an associate in the firm s Labour and Employment Group in Toronto. Ms. McNeill represents management in a variety of labour and employment issues including employment standards, wrongful dismissal, labour arbitrations, occupational health and safety, human rights and labour and employment issues arising in corporate transactions. Ms. McNeill is a member of the Law Society of Upper Canada, the New York State Bar Association, the Ontario Bar Association, and the Canadian Bar Association. Ms. McNeill received her BA (Hon.) in Sociology from Queen's University in As a participant in the Joint JD/LLB Program, she received her JD from Michigan State University College of Law in 2005 and her LLB from the University of Ottawa Law School in She was called to the New York State Bar in 2006 and the Ontario Bar in McCarthy Tétrault LLP mccarthy.ca

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39 Dean Palmer Lawyer Profile TITLE Partner OFFICE Toronto DIRECT LINE LAW SCHOOL University of Toronto, LLB, 1983 BAR ADMISSIONS Ontario, 1985 Biography Dean Palmer is a partner in our Labour & Employment Group in Toronto. He represents employers in all areas of employment and labour law. Mr. Palmer regularly assists employers with wrongful dismissal actions, employee terminations, employment standards claims, human rights complaints, grievances, arbitrations, collective agreement negotiations, employment contracts, workers compensation claims and employment issues arising from the purchase and sale of a business. He regularly appears before the Ontario Labour Relations Board, boards of arbitration, workers compensation tribunals and various other tribunals dealing with labour and employment matters. Mr. Palmer is a frequent lecturer at seminars and conferences relating to employment and labour law. He attended the Faculty of Commerce and Business Administration at the University of British Columbia and then attended the University of Toronto Law School, where he received his LLB in Mr. Palmer was called to the Ontario bar in McCarthy Tétrault LLP mccarthy.ca

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41 Daniel Pugen Lawyer Profile TITLE Associate OFFICE Toronto DIRECT LINE LAW SCHOOL Osgoode Hall Law School, LLB, 2004 BAR ADMISSIONS Ontario, 2005 Biography Daniel Pugen is an associate in the firm s Labour and Employment Group in Toronto. He represents and advises management on a variety of labour and employment issues including employment standards, terminations of employment, employment contracts, labour arbitrations, collective bargaining, labour board proceedings, privacy, human rights, workers compensation, occupational health and safety, and labour and employment issues arising in corporate transactions. Mr. Pugen has represented clients before Labour Arbitrators, the Ontario Human Rights Tribunal, the Ontario Labour Relations Board, the Workplace Safety and Insurance Appeals Tribunal, the Financial Services Tribunal of Ontario, the Ministry of Labour and the Ontario Superior Court of Justice. He regularly speaks at conferences and writes on a variety of labour and employment issues. Mr. Pugen received his BA in Political Science from York University in 2001, where he graduated with Distinction and was a member of the Dean s Honour Roll. He received his LLB from Osgoode Hall Law School in Mr. Pugen was called to the Ontario Bar in 2005 and is a member of the Law Society of Upper Canada, the Ontario Bar Association and the Canadian Bar Association. McCarthy Tétrault LLP mccarthy.ca

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43 Brian Wasyliw Lawyer Profile TITLE Associate OFFICE Toronto DIRECT LINE LAW SCHOOL Dalhousie University, LLB, 2002 BAR ADMISSIONS Ontario, 2003 Biography Brian Wasyliw is an associate in our Labour and Employment Group in Toronto. Mr. Wasyliw maintains a litigation practice with a focus on labour and employment related disputes. He represents management in a variety of labour and employment issues including employment standards, wrongful dismissal, labour arbitrations, occupational health and safety and labour and employment issues arising in corporate transactions. Prior to joining the Labour and Employment group, he spent five years in the firm s litigation department, focusing on commercial litigation, class actions, medical malpractice and professional discipline. Since joining McCarthy Tétrault LLP after law school in 2002, Mr. Wasyliw has appeared as counsel at all levels of court in Ontario and before many administrative tribunals. Mr. Wasyliw is also actively involved in the firm s pro bono initiatives. Mr. Wasyliw has published several papers and case commentaries and has appeared on live television to discuss current issues in labour and employment law. Mr. Wasyliw received his BA (Criminology/Psychology) from Simon Fraser University in He received his LLB from Dalhousie University in Mr. Wasyliw was called to the Ontario bar in McCarthy Tétrault LLP mccarthy.ca

44 Ontario Update: The Year in Review Significant Changes to Labour & Employment Legislation Dean T. Palmer and Daniel M. Pugen This paper summarizes the following notable legislative changes over the past year: 1. Bill 168: Workplace violence and harassment amendments to the Ontario Occupational Health and Safety Act ( OHSA ) 2. Changes to the Human Rights Tribunal Rules of Procedure - Summary hearings 3. The introduction of the Integrated Accessibility Regulation under the Accessibility for Ontarians with Disabilities Act, Bill 168: Workplace Violence & Harassment On June 15, 2010, Bill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace) 2009 came into force. Bill 168 amends the Occupational Health and Safety Act (the OHSA ) by imposing new obligations on employers with respect to workplace violence and harassment. The main features of Bill 168 are summarized below: Definitions of Workplace Violence and Harassment Bill 168 defines "workplace violence" and "workplace harassment" as follows: "Workplace harassment" means engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome. "Workplace violence" means (a) the exercise of physical force by a person against a worker, in a workplace, that causes, or could cause, physical injury to the worker; (b) an attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker; or (c) a statement or

45 behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker. It is important to note that the definition of workplace violence applies to actual and attempted violence as well as threats of violence. Moreover, the violence may be committed by any person against a worker (such as coworkers, customers, public). The definition of "workplace harassment" is very broad. Unlike "harassment" as defined in the Human Rights Code, the definition of "workplace harassment" under Bill 168 may include conduct that is not related to a prohibited ground of discrimination (such as sex, age, ethnicity, religion). Case-law from other jurisdictions has broadly interpreted what constitutes workplace violence and workplace harassment. Such case-law has found that good faith performance management and normal supervision and direction of employees is not harassment. It remains to be seen if this approach will be followed in Ontario. Workplace Violence and Harassment Policies Bill 168 requires employers to prepare written policies dealing with workplace violence and harassment. Workers must be trained on these policies, which must be posted in workplaces with more than five workers and reviewed by the employer annually. A Program to Implement the Policies Under Bill 168, employers are required to develop and maintain a program to implement workplace violence and harassment policies. The workplace violence program must include measures and procedures to: control the risks identified in the workplace violence assessment (see below); call for immediate assistance when workplace violence occurs or is likely to occur, or when a threat of workplace violence is made; report incidents or threats of workplace violence to the employer or supervisor; and establish how the employer investigates and manages incidents, complaints or threats of workplace violence. The workplace harassment program must include procedures for reporting and investigating incidents of workplace harassment. Page 2 Labour and Employment Client Conference 2010

46 Employee Training Employers are required to provide information and instruction on the contents of the workplace violence and workplace harassment policy and program. The information and instruction must be appropriate for the individual worker. Workplace Violence Assessments and Reassessments Bill 168 also requires employers to assess the risk of workplace violence that may arise. In addition to taking into account its own workplace conditions, an employer s assessments must also take into account the conditions of other similar workplaces. The employer must advise the joint health and safety committee (or the health and safety representative in smaller workplaces) of the results of the assessment. If the assessment is in writing, a copy must be provided. If the workplace does not have a joint health and safety committee or a health and safety representative, the workers must be advised of the results of the assessments and of how to obtain a copy of the assessment (if the assessment is in writing). Bill 168 requires that employers reassess the workplace for workplace violence risks "as often as is necessary" to ensure the workplace violence policy and program protects workers. The assessments should be well-documented and conducted by competent individuals who have broad experience and understanding of the workplace. Although the nature of the organization will determine what type of assessment to conduct, it is imperative that an employer, at the very least, review all relevant documentation and speaks with its employees (or a representative sample) with a view to (i) identifying any workplace hazards; (ii) evaluating the risk that any hazards will cause harm; and (iii) creating possible controls to eliminate or reduce the hazards. Domestic Violence Bill 168 specifically addresses the issue of domestic violence in the workplace by requiring employers to "take every precaution reasonable in the circumstances" to protect workers from domestic violence that would likely cause physical injury to workers in the workplace. This obligation on the employer arises only if the employer is aware, or ought reasonably to be aware, of the situation. What constitutes "domestic violence" is not defined. Further, this obligation only relates to domestic violence in the workplace, not an employee s home. Disclosure of Persons with a Violent History One aspect of Bill 168 that may prove contentious is the obligation on employers and supervisors to provide information, including personal information, to a worker about a person with "a history of violent behaviour" if: the worker could be expected to encounter that person in the course of his/her work; and there is a risk of workplace violence likely to expose the worker to physical injury Page 3 Labour and Employment Client Conference 2010

47 Bill 168 contains no guidance on who would be a person with a "history of violent behaviour." However, it is interesting to note that the person must have a history of "violent" behaviour (and not necessarily "harassing" behaviour) in order for the disclosure obligation to be triggered. Moreover, the violent behaviour does not have to be behaviour for which the individual was criminally charged. Work Refusals Bill 168 clarifies that a worker may refuse to work where the worker has reason to believe that the worker is in danger of being a victim of workplace violence. The normal OHSA work refusal process would be triggered (the employer would investigate the refusal, followed by a Ministry of Labour inspector if necessary). There is no corresponding right to refuse work where harassment is believed likely to endanger the health and safety of a worker. Further, OHSA will continue to prohibit workers in certain public and broader public sector workplaces from refusing work where the unsafe condition is inherent in the work or is a normal condition of employment. What Should Employers Do? Employers are required to ensure compliance with Bill 168 and address the risk of workplace violence and harassment in the workplace. As such, employers should: Create written workplace violence and harassment policies and programs that: (a) are brief and simple; (b) convey that all employees are responsible for maintaining a safe workplace; (c) provide clear definitions and examples of prohibited conduct; (d) cover incidents involving co-workers as well as incidents involving outside individuals; (e) send a strong message that workplace violence and harassment is not tolerated; and (f) provide a reporting and complaint procedure as well as the steps to e taken to deal with or investigate any complaint. Train employees on the policies and programs; Undertake risk assessments to determine the possibility or prevalence of workplace violence and appropriately document the process. It may be appropriate for the assessment process to include: (a) individual interviews with a sample of workers; (b) a review of the physical workplace; (c) a comparison of similar workplaces; (d) a review of any previous incidents; and (e) the likelihood of interactions with the public that could lead to danger or confrontation. Re-asses the workplace annually, post-incident or if significant changes occur in the workplace (whichever occurs first). Disclose incidents of workplace violence and harassment with the joint health and safety committee and any risk assessments undertaken. Provide ways for employees to report instances or risks of workplace violence and harassment. Page 4 Labour and Employment Client Conference 2010

48 Discipline employees for not following workplace violence and harassment policies or for committing workplace violence or harassment. Offer a confidential employee assistance program to allow employees subject to workplace violence or harassment, or those with personal problems, to seek help. Review the hiring process and any criminal background check policies Ensure that proper security measures are in place at the workplace to protect workers from members of the public or customers; and Keep detailed records of any workplace violence or harassment, investigation or work refusal. 2. Summary Hearings at the Human Rights Tribunal Since the 2008 changes to the Ontario human rights system which created the direct access model, those wishing to file human rights applications could file directly to the Human Rights Tribunal (the Tribunal ). The Human Rights Commission no longer investigates claims or fulfills the gate keeping function of choosing whether or not to refer a claim to the Tribunal for a hearing. As a result of the 2008 changes, the number of cases going to a full hearing has increased significantly. Further, some commentators have noted that, under the new system, all cases (even frivolous ones) must go to a full hearing before disposition. To address some of these challenges, the Tribunal introduced changes to its rules of procedure effective July 1, 2010 in order to more efficiently deal with certain types of complaints. Of particular note is the new availability of a Summary Hearing (Rule 19A) as a further power of the Tribunal to address frivolous claims, prevent abuse of processes and quickly adjudicate matters prior to a full hearing. Standard Human Rights Tribunal Procedure In the standard course, an Application filed with the Tribunal can proceed through the following procedural steps: An Applicant files an Application with the Tribunal The employer files a Response The Applicant might file a Reply Parties may participate in a voluntary mediation process Parties disclose and exchange relevant documents and witness statements The Tribunal will conduct a hearing on the issues in dispute Page 5 Labour and Employment Client Conference 2010