Submission

INTRODUCTION

In December 2004, the Minister of Labour and Housing launched the Commission on the Review of Federal Labour Standards (the “Commission”). The mandate of the Commission is to conduct a comprehensive review of Part III of the Canada Labour Code¹ (the “Code”). The Commission has invited written submissions from all interested parties. What follows are the submissions and recommendations of the Canadian Association of Counsel to Employers.

Who is the Canadian Association of Counsel to Employers?

The Canadian Association of Counsel to Employers (“CACE”) is a newly-incorporated association of practicing lawyers devoted to representing employersin labour and employment law matters. CACE is designed to provide a forum for counsel to share information and to express their views on matters of importance. CACE's current membership is well in excess of 200 lawyers, who collectively represent the majority of the employers in Canada.

As a result of its members’ experience and expertise, CACE feels it is well situated to provide practical and useful recommendations to the Commission.

ISSUES

The Commission has presented a variety of topics and questions for consultation. In its submissions to the Commission, CACE will focus on the following issues pertaining to Part III of the Canada Labour Code and their relationship to the stated topics and questions for consultation:

Following the discussion of each issue are recommendations for the future of Part III of the Code.

Overall, CACE submits that Part III of the Code must be guided and governed by the interrelated principles of flexibility, certainty, cohesiveness and clarity. With such principles in mind, the proper and fair balance can be struck between the interests of employees and employers.

I. Objectives of Part III of The Code

In 1900 the Department of Labour was brought into existence by the Laurier government, as Canadians became cognizant of the need for safety and fairness in the federal workplace.² In addition to occupational health and safety,³ early labour-related statutes addressed issues such as minimum wage, wage protection, hours of work and overtime.⁴ Subsequent additions to labour standards included provisions on vacations and holidays, as well as rules relating to the termination of employment.⁵

Currently, Part III of the Canada Labour Code encompasses a broad spectrum of legislative Divisions. The subject matter covered by the Code includes: hours of work; minimum wages; equal wages; annual vacations; general holidays; multi-employer employment; maternity and parental leave and related provisions; individual and group terminations; severance pay; garnishment; sick leave; work-related illness and injury; unjust dismissal and sexual harassment, among others.

While the working conditions in federally regulated undertakings today are vastly different from those at the turn of the last century, the core objectives of Part III of the Canada Labour Code have remained constant. The Code as consistently provided a statutory minimum for labour standards below which parties cannot contract.⁶ Furthermore, the Code, historically and today,seeks to protect the most vulnerable employees to ensure the well-being of federal workers as a whole.

These objectives are consistent with the employment standards legislation of each of the Provinces and the United States. Inter-jurisdictional uniformity in employment standards, particularly with the United States, creates parity in the marketplace; minimum standards enable employers to compete on equal footing. If the federal sector alone were to operate on a different basis, adopting innovative practices not reflected in other jurisdictions, many of Canada’s federal industries would be priced out of the already fiercely competitive markets in which they operate. Care must be taken to consider the viability of federal sector employers when undertaking legislative review of the Canada Labour Code.

II. Who is an Employee?

CACE submits that Part III of the Code should not be amended to include explicit definitions of “employer” and “employee”. There is a great wealth of common law and Quebec civil law jurisprudence on defining employment relationships. Currently, the common law and civil law are used to identify employment relationships and analyze the entitlements of workers under Part III of the Code. This extensive jurisprudence is highly nuanced and calls for a flexible and contextual analysis that addresses the tremendous diversity in workplace relationships.

This jurisprudence is applied not only to determinations of employee status under the Code, but also under provincial employment standards and workers’ compensation legislation, the Canada Pension Plan,⁷ the Employment Insurance Act⁸ and the Income Tax Act.⁹ Since these various statutes frequently apply simultaneously to the same individual worker, it is important to preserve the high degree of consistency and predictability that reliance on the common and civil law jurisprudence currently provides. Introducing a definition of “employee” into Part III of the Code would undermine the flexibility that has developed in the jurisprudence and create inconsistency between federal employment and taxation statutes and also between federal and provincial employment standards jurisprudence.

CACE further submits that the Code’s protections should not be expressly extended to independent contractors and self-employed workers, or to agency employees. To the extent that any of these workers have an employment relationship with a federal employer, they are currently covered by the Code.

Significantly, the logic underlying the inclusion of dependent contractors under Part I of the Code does not apply in the context of the Code’s employment standards protections. Part I of the Code defines “employee” to include dependent contractors, enabling workers who fit the Code’s restrictive definition of “dependent contractor” to act collectively to gain improvements in their working conditions. The inclusion of dependent contractors in Part I of the Code originated at a time when the struggle was as much between trades and business as it was between industrial unions and enterprises. Early forms of collective bargaining regulation were designed to address the need to enable collective action by employees and trades, the latter often being a collection of independent contractors. The rationale for including these workers in Part I of the Code, which was to grant them the capacity to act collectively, does not extend to their inclusion in Part III of the Code. There is no corresponding rationale for providing independent contractors with employment standards protections. Moreover, owner-operator agreements in the transportation industry under Part I of the Code are typically very sparse so as not to impinge on the workers’ tax status as independent contractors. Including independent contractors under Part III of the Code would upset the delicate balance achieved by these agreements.

In the case of agency employees, extending the Code’s protections to employees of provincial personnel agencies raises important constitutional questions. Each of these concerns is addressed below in greater detail.

(a) Definition of “Employee”

Part III of the Code applies only to those employees who are employed “in connection with the operation of any federal work, undertaking or business ...”¹⁰ There is no definition of “employee” in Part III. Rather, the determination of whether an individual worker is an “employee” is contextual. Guidance is found in the common and civil law approach which is often applied to the determination of whether an employment relationship exists.

The common law has traditionally looked to four factors in defining an employment relationship: the degree of control exercised by the alleged employer, ownership of tools, chance of profit and risk of loss.¹¹ More recently, the Supreme Court of Canada has stressed the role of factual context. In 671122 Ontario Ltd. v. Sagaz Industries Canada Inc.¹² Justice Major held that:

The central question is whether the person who has been engaged to perform the services is performing them as a person in business on his own account. In making this determination, the level of control the employer has over the worker’s activities will always be a factor. However, other factors to consider include whether the worker provides his or her own equipment, whether the worker hires his own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker’s opportunity for profit in the performance of his or her tasks.¹³

This case underscores the fact that “no single test seems to yield an invariably clear and acceptable answer to the many variables of ever changing employment relations ...”.¹⁴ A legislated definition “employee” in Part III of the Code would similarly fail to account for the many variations in workplace relationships.

Quebec’s civil law jurisprudence echoes the common law analysis for identifying employment relationships. As at common law, under the Civil Code of Quebec,¹⁵ an employment relationship is identified according to the degree of control exercised over the worker, the ownership of tools, allocation of the chance of profit and risk of loss, and the worker’s overall integration into the workplace.

The sophisticated analysis that the common and civil law courts have developed for identifying employment relationships has been adopted in employment standards jurisprudence at the federal and provincial levels. This approach allows courts, tribunals and arbitrators to identify those workers who have retained so little independence that they ought to be afforded the protections of the Code, while preserving the ability of self-employed workers or independent contractors to choose to operate outside of the Code and enjoy the tax-related benefits of being self-employed.

As Justice Major noted in Sagaz, the contextual analysis for employment relationships is consistently applied across various facets of the law:

The distinction between an employee and an independent contractor applies not only in vicarious liability, but also to the application of various forms of employment legislation, the availability of an action for wrongful dismissal, the assessment of business and income taxes, the priority taken upon an employer's insolvency and the application of contractual rights...¹⁶

The four-fold analysis has also been adopted by courts and tribunals to identify rights and obligations under the Canada Pension Plan,¹⁷ the Employment Insurance Act¹⁸ and the Income Tax Act.¹⁹ The extension of employee status to independent contractors under the Code would need to be reflected in concurrent amendments to a number of other statutes, such as the Income Tax Act. A failure to do so would result in confusion and uncertainty between interconnected federal employment legislation.

For example, the common law and civil law definitions of employee are used in determining an employer’s obligation to make Employment Insurance and Canada Pension Plan contributions.²⁰ The current approach to defining employees is also applied with regard to the allowance of certain deductions under the Income Tax Act,²¹ as well as deductions under other provincial statutes.²² Finally, the common law and civil law approach to defining employees is necessary for the interpretation of international conventions such as the Canada-U.S. Income Tax Convention.²³ Certain key sectors and thousands of individuals would be unnecessarily adversely impacted by the introduction of a “dependent contractor” status under Part III of the Code. For the trucking industry, such an upheaval would be especially devastating, particularly if it were introduced at the same time as gasoline prices are sky-rocketing.

In brief, it would be harmful, if not impossible, to impose definitional constraints on employees under the Code. The determination of employee status is inherently contextual, and requires an analysis that allows adjudicators the flexibility to assess diverse and ever-developing workplace relationships. Further, altering the current definition in the Code would create a significant disjunction between the Code and other federal employment legislation and would have an adverse impact on many individuals and business in the inter-provincial trucking sector.

(b) Agency Employees

Part III of the Code should not be amended to expressly apply to agency employees. Just as there exists a wealth of jurisprudence to guide the determination of whether a worker is an employee or an independent contractor, courts and employment standards tribunals apply a sophisticated analysis to ascertain who, as between a personnel agency and the business where the work is performed, is the true employer. The common law analysis, which applies to determine entitlements under the Code, extends protections to agency-supplied employees working in federal undertakings when the requisite employment relationship exists.

In Pointe-Claire (City) v. Quebec (Labour Court)²⁴, the Supreme Court of Canada held that the test for identifying an employer-employee relationship in a tripartite context is that of “fundamental control over working conditions”.²⁵ This test requires consideration of which party has control over the selection, hiring, remuneration, discipline, training, evaluation, assignment of duties and working conditions of the employee, the degree to which the worker is integrated into the business, and the worker’s length of service.²⁶ Each of these factors is reviewed in depth to determine whether the personnel agency “is merely a disguised employment office, a kind of clearing house,”²⁷ with the true incidents of the employment relationship lying with the organization to whom the personnel agency supplied workers. In Pointe-Claire, the Supreme Court of Canada emphasized the need for a comprehensive, fact-dependent analysis. Chief Justice Lamer stated:

[W]hen there is a certain splitting of the employer's identity in the context of a tripartite relationship, the more comprehensive and more flexible approach has the advantage of allowing for a consideration of which party has the most control over all aspects of the work on the specific facts of each case.²⁸

Pointe-Claire has been adopted by the Canada Industrial Relations Board (CIRB) as the most comprehensive and nuanced approach to analyzing a tripartite employment relationship.²⁹ For instance, in Re Royal Canadian Mint, the CIRB stated that the Court's analysis applies generally to situations “where an employee has a relationship with two employers, which allows the true employer to be identified”.³⁰ In short, the Pointe-Claire approach allows for “a complete examination of [the relevant individuals’] working situation and relationship”, which facilitates a determination of whether or not the individuals “fall within the definition of ‘employee’ within the Code”.³¹ The CIRB has recognized that, in each case, it must “take a balanced, comprehensive view of the issue in its consideration of who is the employer with fundamental control and carefully weigh all relevant factors in determining who is the employer for the purposes of the Code.”³² Provincial Boards have similarly emphasized that identifying an employee's proper employer cannot be a mechanical exercise.³³

Using this well-developed approach to analysing the employment relationships of agency employees, agency employees have been afforded the protections of the Code, even in the absence of an express inclusion in the legislation. In other words, employees whose true employment is with a federal employer do benefit from the Code’s protections, even if the employment relationship was initially established through a personnel agency. In cases where the agency employee is not integrated into a federal operation, but continues to be directed and controlled from within the personnel agency, the Code ought not to apply. Extending the Code’s protections to these workers raises constitutional concerns because Parliament does not have the constitutional authority to govern the affairs of such employees.

Personnel agencies are provincially-regulated; employment contracts, labour relations and regulation of work relationships are within the provinces’ jurisdiction over property and civil rights.³⁴ Federal jurisdiction over labour relations and employment standards is limited to regulation of federal works and undertakings.³⁵ If Part III of the Code were extended to all agency-supplied employees working at federal undertakings, this would likely constitute an unjustified intrusion by Parliament into provincial jurisdiction and be ultra vires the federal power.³⁶

Recommendations

As a result of the foregoing discussion, CACE submits the following recommendations to the Commission:

• Part III of the Code should not include a statutory definition of “employee”.
• Part III of the Code should not apply to independent contractors or self-employed persons.
• Part III of the Code should not be amended to expressly include agency employees.

III. Hours of Work

The provisions for hours of work in the Code are excessively complex and difficult to apply. CACE submits that drafting clear, flexible provisions for hours of work and the wages associated with those hours would eliminate the unnecessary bureaucracy and confusion that currently arises under these sections of the Code. There are equally compelling policy reasons for substantially amending the hours of work provisions.

The Code's regulation of work schedules is not only complex and confusing, it also fails to reflect the reality of many federal undertakings such as telecommunications, airlines and inter-provincial transportation. As the Commission notes on its website, “only about 33% of the work force now works standard hours (Monday to Friday, 9 to 5) in a standard job at the employer's workplace.”³⁷ The current system fails to address this reality and subjects federal employers to the time, expense and bureaucracy of negotiating agreements, holding votes, or obtaining permits in order to devise work schedules that address the imperatives of their businesses. Simply stated, the provisions for hours of work are founded on an antiquated “standard work week” that does not reflect the reality of contemporary federally-regulated workplaces.

(a) Unclear Drafting

Section 169(1) of the Code provides that the standard hours of work of an employee shall not exceed 8 hours in a day and 40 hours in a week. This section states that no employer shall “cause or permit” an employee to work hours in excess of the standard hours. While the Code provides exceptions to the 8-hour day and 40-hour week, these exceptions to the standard work week are poorly drafted and their requirements are difficult to understand. For example, while section 169 sets out “standard” hours of work, section 171(1) articulates the Code’s “maximum” hours of work. Section 171(1) provides that an employee may work up to 48 hours in a week:

171(1) An employee may be employed in excess of the standard hours of work but, subject to sections 172, 176 and 177, and to any regulations made pursuant to section 175, the total hours that may be worked by any employee in any week shall not exceed forty-eight hours in a week or such fewer total number of hours as may be prescribed by the regulations as maximum working hours in the industrial establishment in or in connection with the operation of which the employee is employed.

It is unclear whether this section, taken alone, enables an employer to require an employee to work in excess of the standard hours. Arbitral jurisprudence suggests that this provision does not allow for mandatory overtime and that some other prerequisite, such as an averaging agreement or a ministerial permit, is required. In Atomic Energy of Canada Ltd. v. Canadian Union of Public Employees, Local 1000 (Chalk River Nuclear Operators Powerworkers' Union),³⁸ the arbitrator held that section 171 did not permit the employer to require mandatory overtime in excess of the standard hours. On the arbitrator’s interpretation of the statute, section 171(1) applies to permit an employee to exceed the standard hours only when one of the Code’s exceptions applies. In the arbitrator’s view, the Code provides no more than three exceptions to the 8-hour day and 40-hour week. First, the Code allows for averaging of an employee’s hours over a period of two or more weeks pursuant to sections 169(2), 170 and 172. Second, section 175(1) empowers the Governor in Council to make regulations modifying the work week. Finally, a ministerial permit may be obtained under section 176(1) of the Code, authorizing hours of work in excess of the maximum hours of work prescribed by sections 171 and 172 or by regulations made under section 175.

The above provisions may equally be interpreted to allow for mandatory overtime up to 48 hours in a week without a permit, so long as all hours worked in excess of the 40-hour standard week are paid at the overtime rate of time and a half pursuant to section 174 of the Code. Since section 176(1) empowers the Minister to grant a permit for hours worked in excess of the 48 hour maximum, it follows that an employer may require an employee to work up to the maximum without a permit. Because the Code only provides for the parties to agree to excess weekly hours in the context of averaging, and because a ministerial permit is only available for hours of work in excess of 48, the analysis in the Atomic Energy of Canada Ltd. case leads to the impractical result that an employer cannot impose mandatory overtime and is not able to obtain either a permit or the consent of its employees to work from 40 to 48 hours in a week in the absence of an averaging agreement.

Section 169(1)(b) provides that an employer may not “cause or permit” an employee to work more than the standard hours. If it is correct that it is only possible to deviate from this standard based on a ministerial permit, an averaging agreement, or an applicable regulation, then the prohibition on mandatory overtime (“causing” an employee to work), enunciated in the Atomic Energy of Canada Ltd. case, must equally apply to prohibit voluntary overtime (“permitting” an employee to work).

Additionally, the current provisions in sections 169(2), (2.1), 170 and 172 of the Code and sections 4 - 6 of the Canada Labour Standards Regulations are exceedingly complex and difficult to apply; it is often unclear whether section 169 or 170 applies and which provisions of the Regulations are applicable.

CACE submits that the language of the Code as it is currently drafted is susceptible to conflicting interpretations and allows for incongruous results which ought to be remedied by improvements to the drafting of these provisions. In particular, the amended Code should clarify that both voluntary and mandatory overtime are permitted outside of an averaging agreement, at least to a maximum of 48 hours per week, and the requirements for averaging should be clarified and simplified.

(b) Unnecessary Bureaucracy

CACE submits that the current scheme for averaging hours of work is cumbersome and overly bureaucratic. There is no reason in principle why different requirements should apply depending on whether hours of work are irregular due to the “nature of the work” in a particular business as opposed to the manner in which work schedules are organized.

Under the current provisions in the Code, in some instances, employers may average hours of work over any period chosen and agreed to, as of right, where the “nature of work in [the] industrial establishment necessitates an irregular distribution of hours”. Where this is so, the rules governing averaging are set out in sections 6 and 7 and Schedule IV of the Labour Standards Regulation.³⁹ In such circumstances, the Code recognizes the possibility of an agreement between the employer and the trade union with respect to averaging, but does not require such an agreement as a condition precedent to the averaging.⁴⁰ In other circumstances, however, section 170 of the Code permits averaging, but only with a union’s or 70% of the affected employees’ consent. And, where this path is chosen for averaging, different rules pertain to the manner in which averaging is to be conducted.⁴¹

Complex bureaucratic processes and unclear drafting in the Code also create discord surrounding the current requirement that, where employees are subject to a collective agreement, an averaging schedule must be “agreed to in writing by the employer and the trade union.” This requirement appears in section 170(1) of the Code and is echoed in the provisions of section 172(1):

172.(1) An employer may, in respect of employees subject to a collective agreement, establish, modify or cancel a work schedule under which the hours exceed the maximum set out in section 171 or in regulations made under section 175 if

(a)	the average hours of work for a period of two or more weeks does not exceed forty-eight hours a week; and
(b)	the schedule, or its modification or cancellation, is agreed to in writing by the employer and the trade union.

Arbitral jurisprudence suggests that provisions for averaging negotiated in a collective agreement do not necessarily satisfy the Code’s requirement for an averaging agreement to be in writing. Indeed, section 6(5) of Canada Labour Standards Regulations⁴² provides that the agreement in writing must contain the detailed information set out in Schedule IV of the Regulations. This is an unnecessary requirement that undermines averaging arrangements agreed to in collective bargaining.

It has been the collective experience of CACE members that issues surrounding the Code’s provisions respecting modifications to the standard hours of work are frequently raised when parties are nearing an impasse in collective bargaining. Because the Code’s requirements are overly complex and because the legislative drafting is unclear, the provisions for hours of work are easily manipulated and may be used to gain leverage in labour relations. The Code should not be used to defeat arrangements that the parties have negotiated and practiced under, in some cases for many for years. To this end, the Code should be redrafted with clear language and simplified processes that honour collectively bargained scheduling arrangements.

CACE submits that there is simply no reason for the degree of complexity that is contained in the current averaging provisions in the Code. The same rules and provisions should apply to all types of averaging for the purposes of determining what hours may be worked without a permit: an employer should be entitled to have employees work to a maximum of 48 average hours per week (or longer as provided for in various regulations) without there being any necessity for a vote, agreement or a permit. Overtime, however, should be payable after an average of 40 hours per week is worked during the averaging period.

(c) Additional Policy Concerns

CACE submits that the hours of work provisions ought to be amended for other policy reasons. The current provisions limit employees’ personal choice with respect to hours of work, deprive employees and employers of flexibility, and introduce unnecessary bureaucracy into workplaces.

The restrictive hours of work provisions do not contemplate flex hours and other flexible work arrangements that employees may wish to adopt. Many modern workplaces use flex hours to enable employees to vary the allocation of their weekly hours from day to day or week to week. These scheduling arrangements afford employees the flexibility and spontaneity to meet the demands of their personal and family lives. Flexible arrangements are adopted in many workplaces because they promote work/life balance for employees and are often good for business. As a matter of policy, Part III of the Code should promote these objectives. Increased flexibility in the new provisions of Part III of the Code is necessary to reflect the reality of flex hours in many federally-regulated workplaces.

CACE submits that, in addition to calculating maximum hours on a weekly basis, the federal Code should provide for weekly but not daily overtime. Examples of this approach can be found in provincial employment standards legislation. For example, Ontario’s Employment Standards Act, 2000⁴³ enables parties to agree to a regular work day of more than 8 hours:

Limit on hours of work

17(1) Subject to subsections (2) and (3), no employer shall require or permit an employee to work more than,

(a)	eight hours in a day or, if the employer establishes a regular work day of more than eight hours for the employee, the number of hours in his or her regular work day; and
(b)	48 hours in a work week.

Exception: hours in a day

(2) An employee’s hours of work may exceed the limit set out in clause (1) (a) if the employee has made an agreement with the employer that he or she will work up to a specified number of hours in a day in excess of the limit and his or her hours of work in a day do not exceed the number specified in the agreement.

Quebec’s Act respecting Labour Standards⁴⁴ and Prince Edward Island’s Employment Standards Act⁴⁵ provide for a standard work week but do not contain provisions for daily overtime. The New Brunswick Employment Standards Act and its regulations contain no limit on the number of hours an employee may work during any daily, weekly or monthly period.⁴⁶

Moreover, in the federal sector, many collective agreements provide for 12-hour days with no entitlement to overtime pay unless the employee works in excess of his or her regularly scheduled hours. This arrangement finds favour with many employees who, as a result of working 12-hour shifts, are able to gain the advantage of having more days off work.

CACE submits that overtime should be payable after 40 hours in a week, averaged over any period selected, and that the Code should clearly allow for weekly overtime of up to 48 hours on average per week (or such longer period as may apply by regulation to various industries) without a permit. An overtime permit ought only to be required for hours in excess of the 48 weekly hours averaged over the selected period. The Code currently does not impose restrictions on the number of weeks in any averaging period. The Code’s current flexibility in this regard should be preserved. As under the current provisions of the Code, the employer could be required to provide 30 days’ notice of any changes to the averaging period.

CACE further submits that the voting requirements applicable to employees who are not subject to a collective agreement ought to be removed from the Code. For non-unionized employees, section 170(2) provides for modification of the standard hours of work where the average hours for a period of two or more weeks does not exceed forty hours a week. Pursuant to section 170(2)(b), the modified schedule must be approved by at least 70% of affected employees. Section 172(2) is an equivalent provision which allows non-unionized employees to agree to a modified schedule based on averaging a 48-hour week. Again, the provision calls for the approval of at least 70% of affected employees. Additionally, even where a modified schedule has the approval of 70% of the affected workforce, section 172.1 provides for the possibility of a vote on the matter, which may be conducted by an inspector at the request of any affected employee.

There are simply no sound policy reasons for placing the decision to modify a work schedule in the hands of the majority of employees at a worksite, rather than permitting individual employees to agree or refuse to deviate from the standard.

CACE submits that the above concerns would be eliminated, thereby easing the scheduling burden on federal employers and employees, providing employers and employees with greater certainty and responding to the reality of their workplaces, if employers in the federal sector were granted greater scheduling flexibility. As the above discussion reveals, increased flexibility must entail a new approach to standard hours of work and a redefinition of overtime to calculate both on a weekly basis, with the possibility of averaging hours of work over whatever period may be selected. In addition, the new model should confirm that mandatory overtime (to the allowable weekly maximum number of hours) is permissible.

Recommendations

As a result of the foregoing discussion, CACE submits the following recommendations to the Commission:

• Part III should be redrafted to provide for a clear, predictable and flexible approach to hours of work. This approach should reflect the "non-standard" nature of federal works and undertakings and should eliminate daily overtime to allow for flexible arrangements.
• Part III should be amended to allow for averaging of hours by all employers, without votes or the requirement for consent, and a single set of requirements should apply to averaging. Current flexibility regarding the length of the averaging period should be maintained.
• Part III should be amended to clarify that overtime is payable on a weekly but not a daily basis.
• If Part III continues to contain provisions that require consent to averaging in some circumstances, the Code should clearly state that a collective agreement containing averaging provisions or agreed work schedules satisfies the requirement for union agreement.
• If Part III continues to contain provisions that require consent to averaging in some circumstances, in the case of employees who are not subject to a collective agreement, the Code’s requirement that an averaging agreement must have the approval of a majority of affecting employees should be abandoned in favour of individual agreements. Similarly, the Code’s voting provisions should be eliminated.
• Part III should be redrafted to explicitly confirm mandatory and voluntary overtime are legally possible (to the threshold for a permit) in the absence of an averaging agreement.

IV. General Holidays

The General Holidays provisions in Part III of the Code are similarly poorly drafted. In particular, the provisions relating to employees in continuous operations have caused interpretational difficulties for employers, employees, inspectors, lawyers and adjudicators alike. Confusion is particularly prevalent in the context of non-standard work schedules that deviate from the 8-hour day and 40-hour week. As noted above, federally regulated industries are especially prone to this problem. A look at difficulties faced by the airline industry in interpreting and applying Part III of the Canada Labour Code is illustrative.

In the early 1970s, the case of James v. Pacific Western Airlines⁴⁷ was litigated at both the trial and appellate levels of British Columbia Courts. In James, the employer airline was found to be in breach of the Code for failing to properly provide its employees with paid leave to replace general holidays falling on workers’ days off. Though it had been previously ordered to comply with the Code and grant valid paid holidays, the employer chose to credit employees with holiday pay on non-working “reserve” days - when flight attendants did not work but were nonetheless on call. The issue for determination was whether the employer was in compliance with subsections 49(1) and (2) [now subsections 193(1) and (2)] of the Code, by granting holidays on reserve days. That section of the Code states:

Except as otherwise provided by this Division, when New Year’s Day, Dominion Day [now Canada Day], or Christmas Day [now including Boxing Day] falls on a Sunday or Saturday that is a non-working day, the employee is entitled to and shall be granted a holiday with pay on the working day immediately preceding or following the general holiday.

Justice Gould of the British Columbia Supreme Court concluded that the employer was not in compliance with the Code; general holidays must be granted in lieu of an employee’s regularly scheduled work day. In doing so, the learned justice commented on Part III of the Code and the interpretational difficulties it begets:

I have used above the phrase “the intention of the statute.” In my view, neither the draftsmen of the statute nor the legislators who enacted it ever contemplated the extraordinary scheduling of employee’s working time which has arisen by custom and collective bargaining in the instance of flying personnel of scheduled airlines. However, as the legislators have not seen fit to exempt flying personnel from the operation of the statute, and deal with them in a suitable way, there is nothing I can do other than apply the apparent meaning of the words of the statute to the situation as it exists. The results sometimes are, to say the least, bizarre.⁴⁸

More than 20 years later, the interpretational difficulties discussed in James were revisited in Shantz and First Air (division of Bradley Air services Ltd.).⁴⁹ In Shantz, a federal labour inspector was asked to ensure that employees were being properly compensated for general holidays. The airline in Shantz claimed that remuneration for general holidays was contained in an all-inclusive rate of pay, rather than the standard additional payment. After examining the Code and reviewing the decisions in James, Referee Young concluded that both the employer and the labour inspector had misinterpreted the Code as it related to First Air’s compensation plan. Referee Young commented on the issue as follows:

That different outcome occurs between the former pay and holiday compensation plan and the present one, as regards compliance with the Code, is the result of the application of different sections thereof. If all of this seems to produce a ‘bizarre’ result, then I can only suggest that Mr. Justice Gould’s comments are as appropriate today as 20 years ago.⁵⁰

As previously discussed, the airline industry is but one of many federally regulated industries that employs workers in non-traditional modes of scheduling. Trucking, shipping, telecommunications, railways and airlines all provide employment in continuous operations. The General Holiday provisions of Part III of the Canada Labour Code should be re-drafted to reflect the new reality of shift-work in Canadian industry.

Complexity in the drafting of the General Holiday provisions makes them expensive for employers to administer and frequently leads to disagreement between parties. Disputes arise over both the entitlement to holiday pay and its calculation. Enormous administrative costs result from the complicated system of entitlements and exceptions set out in section 201 of the Code, and are exacerbated by the various methods provided for calculating the pay, depending on how an employee gains his or her entitlement.

(a) Ascertaining Entitlement

The starting premise of the Code is that all employees are entitled to a holiday with pay for each general holiday except as may otherwise be provided (section 192). The Code goes on to provide a number of exceptions, including prescribing qualifications to entitlement when the holiday falls on a non-working day (section 201(1)(a)), and for people in the first 30 days of employment (section 202(1)).

The confusion in applying the exceptions is immediately apparent on the face of section 201, which provides “an exception to the exception” for entitlement to holiday pay. First, section 201(1) contains the exception that holiday pay is not due to an employee who has not worked for at least 15 days in the previous 30. The exception to this exception, set out in 201(3), stipulates that holiday pay is due to an employee whose terms and conditions of employment are such that the employee is unable to establish entitlement to wages on at least 15 days in the previous 30. For ease of reference, section 201 provides as follows:

201.(1) An employee who does not work on a general holiday is not entitled to be paid for the general holiday if, during the thirty days immediately preceding the general holiday, the employee is not entitled to wages

(a)	for at least fifteen days; or
(b)	where the employee is working under a schedule established or modified pursuant to section 170, for at least the number of days calculated or determined pursuant to any regulations made under section 201.1.

(2) No employee who is employed in a continuous operation is entitled to be paid for a general holiday

(a)	on which the employee did not report for work after having been called to work on that day; or
(b)	in respect of which the employee makes himself unavailable to work in accordance with the conditions of employment in the industrial establishment in which the employee is employed.

(3) Subsection (1) does not apply with respect to an employee, other than an employee who is working under a schedule established or modified pursuant to section 170, whose terms and conditions of employment with respect to hours of work are such that the employee is unable to establish entitlement to wages on at least fifteen days during the thirty calendar days immediately preceding a general holiday.

(4) An employee described in subsection (3) is not entitled to a holiday with pay referred to in section 193 in respect of any general holiday on which the employee does not work, but, notwithstanding section 196, the employee is entitled to be paid 1/20th of the wages he has earned during the thirty calendar days immediately preceding that general holiday.

The exceptions are problematic for several reasons. Because of the non-standard scheduling that is so prevalent in many federally regulated industries, some employees are unable to meet the threshold requirement of working for at least 15 days in the 30 days preceding the holiday. This requires employers to determine whether the employee failed to meet the requisite 15-day threshold because of his or her terms and conditions of employment. The legislative scheme for General Holidays requires an individualized analysis of each employee’s situation to determine if the employee had a real opportunity to work the required 15 days. This, in itself, is a substantial administrative undertaking and constitutes an enormous burden, particularly for large or poorly funded operations.

Section 201(3) has been interpreted to mean that the exception applies to any schedule which results in an employee working less than the 15 qualifying days, even if the employee has been offered and refused opportunities to work additional hours or overtime, or failed to report for work while on call. This interpretation largely vitiates the 15-day qualification for entitlement to holiday pay set out in section 201(1). Moreover, the exception in section 201(3) requires that the employee’s terms and conditions of work be such that the employee be unable to work the required 15 days. Where an employee has an opportunity to work the 15 days and declines to do so, the employee fails to meet the 15 day threshold through his or her voluntary choice and not as a result of his or her terms and conditions of employment.

CACE submits that, where an employee had the opportunity to meet the 15-day threshold but declined such opportunities, the exception in section 201(3) should not apply and holiday pay should not be owed. If the 15-day qualification is preserved in the amended Code, the provisions should be amended to clarify that holiday pay is not due to employees who refuse work that would enable them to meet the 15-day threshold.

(b) Calculation of Holiday Pay

The basis for calculating holiday pay varies depending on the basis for the employee’s entitlement to a paid holiday. This creates an added level of complexity and expense for employers because, in addition to ascertaining the basis for each employee’s entitlement, they are tasked with applying individual calculations to each employee, and cannot resort to a single calculation for all entitled employees.

If the employee has worked the required 15 days in the 30 days preceding the holiday, section 196(2) of the Code requires that the employee be paid the “...wages the employee would have earned at his regular rate of wages for his normal hours of work”. Where the employee has standard hours or the employee’s regular hours can be ascertained, this is the amount of the holiday pay.

Where the employee’s hours are irregular or inconsistent, the method for calculating holiday pay is set out in section 17 of the Labour Standards Regulations. That section calls for an averaging of the employee’s daily earnings, exclusive of overtime, in the 20 days the employee has worked immediately preceding the paid holiday.

A different calculation applies to employees whose entitlement arises under section 201(3) of the Code. For these employees, section 201(4) of the Code provides that holiday pay shall be 1/20th of the wages the employee earned in the 30 calendar days immediately preceding the general holiday.

In a continuous operation, if the paid holiday falls on a working day, in accordance with section 198 of the Code, the employee will be entitled to his or her regular wages for the day plus one and ½ times the regular hourly rate for all hours worked.

CACE submits that these provisions for calculating holiday pay are excessively complicated and costly for employers to apply because the calculation used to determine an employee’s holiday pay entitlement varies depending on how the entitlement is derived. This problem should be corrected by legislating a single calculation for holiday pay.

Recommendations

As a result of the foregoing discussion, CACE submits the following recommendations to the Commission:

• Part III of the Code should provide clear guidelines regarding general holidays, particularly in the context of continuous operations.
• The General Holiday provisions should be amended to clarify that holiday pay is not due to employees who refuse work that would enable them to meet the 15-day threshold.
• A uniform calculation should be applied to calculate holiday pay, regardless of how the entitlement was gained.

V. Leave

The leave provisions in Part III of the Code ought to be amended to address the fact that they currently provide employees returning from maternity and parental leave with greater job security than that of other employees. In addition, CACE submits that the Code should not be amended to provide for personal and family responsibility leave.

(a) Reinstatement

Pursuant to section 209.1(1) of the Code, every employee who takes maternity, parental or compassionate care leave is entitled, upon returning to work, to be reinstated to the position he or she occupied immediately prior to the leave.⁵¹ If the employee cannot be reinstated into his or her original position, the employee must be reinstated to a comparable position with the same wages, benefits and work location.⁵² All benefits, including seniority, accumulate during the leave period.⁵³ The purpose of this regime is to:

[P]rotect employees from being undermined for fear of job assignment loss upon taking maternity and parental leaves which would impede their ability to exercise their legal rights and their sense of workplace security.⁵⁴

While it is recognized that protection of employee rights and job security are fundamental to employment standards, the incongruous results that flow from the application of section 209.1(1) are often not supported by these policy objectives. In particular, section 209.1(1) has been interpreted to provide employees returning from leave with a form of “super-seniority”. In other words, employees who take leave attain superior rights and job security to employees who maintain their regular work schedules.

Superior rights accrue to an employee on maternity or parental leave when the employee’s position has been eliminated in a legitimate business reorganization during the employee’s absence. Even where a similar, newly-created position is made available upon the employee’s return, jurisprudence under the leave provisions of the Code indicates that the employee continues to be entitled to reinstatement in her former position.

In CFRN-TV v. Communications, Energy and Paperworkers Union of Canada CEP-CLC the Alberta Court of Queen’s Bench confirmed that section 209.1 of the Code provides enhanced entitlements for employees returning from leave. The complainant in that case was a noon-hour news anchor who worked part-time prior to taking maternity leave. The employer, a television station, reorganised the newsroom during the complainant’s leave. The noon-hour anchor position became a full-time position and, upon her return, the complainant was offered three alternative part-time anchor positions at different times of day. Outside of section 209.1, the employer would have been entitled to lawfully reassign the complainant to one of the newly created part-time positions. Under the parties’ collective agreement, it was within management’s rights to reassign duties in this way. The arbitrator held, and the Court agreed, that notwithstanding the fact that the employer was otherwise entitled to reassign an employee into new duties within her classification, the Code required that the complainant be returned to her former position. The Court held that an employer is required to reinstate a returning employee to a job assignment “equivalent to the one earlier held in status, prestige, functions, working conditions, salary and benefits”. Following this decision, section 209.1 operates to grant employees returning from leave job security far superior to that enjoyed by employees who are not on leave at the time of a reorganization.⁵⁵

While employees ought to be protected from unfair treatment for taking maternity and parental leave, employees who take such leave should not be granted superior rights to those employees who do not. Such an interpretation could not have been Parliament’s intention in enacting the leave provisions. The super-seniority problem must be corrected as it impinges on the ability of employers to manage their workplaces and creates a perception of unfair treatment amongst employees. A requirement to reinstate an employee into his or her former position upon return from leave, even if the position has ceased to exist, undermines employers’ ability to engage in corporate reorganisations and fulfill legitimate business requirements.

Ontario has resolved the super-seniority problem by drafting a reinstatement provision that is consistent with the principles of clarity and flexibility. The Ontario Employment Standards Act provides as follows:

53. (1) Upon the conclusion of an employee’s leave under this Part, the employer shall reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not.

(2) Subsection (1) does not apply if the employment of the employee is ended solely for reasons unrelated to the leave.⁵⁶

CACE submits that the federal jurisdiction should follow suit, putting an end to the confusing and unfair issue of employee super-seniority.

(b) Personal and Family Responsibility Leave

The Code does not currently provide for personal or family responsibility leave. However, it does provide for maternity leave, parental leave, bereavement leave, compassionate care leave, sick leave, general holidays and employee vacation time. Taken together, the current leave provisions in the Code are adequate and should not be amended to include personal and family responsibility leave. In both large and small companies, leave entitlements increase costs for employers and decrease productivity. Imposing additional types of leave entitlements would impose a substantial burden on employers.

Only half of current provincial employment standards regimes provide for family responsibility leave. Family responsibility leave covers such eventualities as medical appointments, unexpected care of a child or family member and personal emergencies. Provincial entitlement for such leave ranges from zero to 10 days.⁵⁷ Some collective agreements also address this issue and, CACE submits, collective bargaining is a more appropriate forum for employees to gain this benefit.

If family responsibility leave is included in the Code, CACE takes the position that the annual maximum should not exceed five days, which is the average of the provincial entitlements. Five days of family responsibility leave would also be consistent with the entitlement negotatiated in Federal Public Service collective agreements.⁵⁸ Any additional time taken to attend to family responsibilities should constitute vacation time.

Recommendations

As a result of the foregoing discussion, CACE submits the following recommendations to the Commission:

• Section 209.1(1) should be redrafted to ensure that employees returning from maternity and parental leave do not acquire enhanced job security.
• Part III should not be amended to include personal or family responsibility leave.
• If Part III is amended to include family responsibility leave, the maximum leave period should be no more than five unpaid days.

VI. Group Termination

The Code's notice provisions with respect to group termination are excessively long and overly complex. In particular, the Code’s employee adjustment procedures are unnecessarily complex in light of the economic context to which they apply. Both sets of provisions should be amended to reflect modern business realities.

At present, if 50 or more workers are to be terminated in the span of 4 weeks, a federally regulated business must provide 16 weeks of notice to its employees, the Minister and any affected union.⁵⁹ Lengthy notice provisions, such as those found in the Code, inhibit the ability of federally regulated industries to adapt to changing economic climates. Lengthy notice provisions impede the ability of Canadian companies to compete in the global economy. A shorter notice period is required to reflect this reality.

As is apparent from a review of the notice provisions in various Canadian jurisdictions, the current uniform notice provisions in the Code are inflexible and outmoded. Each of the following provinces provide for staggered notice periods, depending on the number of affected employees of an operation:

As seen above, jurisdictions across Canada afford employers the flexibility to adapt to changing economic conditions with shorter notice periods for smaller group terminations. The Code is unique in its rigid approach. In Ontario and Newfoundland and Labrador, a 16-week notice period is reserved for the termination of groups ten timesthe size of those provided for in the Code. The Code must be made more flexible if federally regulated employers are to compete on a global scale. CACE submits that the notice periods under the Code should be staggered, while the threshold for application of the Code should remain at 50 affected employees.

In addition to lengthy notice periods, the current Code provisions call for adjustment programs that are overly detailed and procedurally complex.⁶⁸ While such programs are an important component of any group termination, care should be taken not to constrain employers with rigid procedural mechanisms.

Under the current provisions of the Code, a union may force an employer into arbitration over the content of an adjustment program. The result for employers is increased legal and human resource expenditures at the very time when employers must reduce their costs.⁶⁹ Much like the inflexible notice provisions discussed above, the use of arbitration as a procedural mechanism for determining the content of adjustment programs is an economic burden on employers that is unjustified and unprecedented in Canadian employment legislation.

Recommendations

As a result of the foregoing discussion, CACE submits the following recommendations to the Commission:

• The uniform 16-week notice period in Part III of the Code for all group terminations of more than 50 employees should be abandoned in favour of the more flexible model adopted in provincial legislation.
• Part III of the Code should adopt the group termination notice standards that escalate from 8 to 16 weeks depending on the number of employees affected.
• The Code’s arbitration provisions relating to group termination should be eliminated.

VII. Individual Termination

Protection against unjust dismissal on an individual basis is currently provided under Division XIV of the Code. Subsection 240(1) states:

Subject to subsections (2) and 242(3.1), any person

(a)	who has completed twelve consecutive months of continuous employment by an employer, and
(b)	who is not a member of a group of employees subject to a collective agreement,

may make a complaint in writing to an inspector if the employee has been dismissed and considers the dismissal to be unjust.

This section of the Code is quite unique among the common law jurisdictions, where (outside Nova Scotia) specific performance is not available as a remedy for breach of an employment contract. Moreover, section 240 is inconsistent with the model of minimum standards. CACE questions the need for any provision like section 240 in the Code.

Such policy considerations aside, four principal concerns arise with respect to the interpretation and application of section 240. First, jurisprudence decided under section 240 discourages settlement and undermines settlement agreements. Second, the Code should require employees elect to either pursue a remedy under Division XIV or at common law. Third, section 240 should be amended to clarify that it does not apply to terminations in the course of a legitimate business reorganisation. Finally, CACE submits that section 240 should be amended to protect only longer service employees.

(a) Enforcement of Settlement Agreements

Settlement agreements have a tenuous status under the unjust dismissal provisions of the Code because of the operation of section 168(1) of the Code, which provides that parties cannot contract out of the Code’s entitlements in Part III. Section 168(1) provides as follows:

This Part and all regulations made under this Part apply notwithstanding any other law or any custom, contract or arrangement, but nothing in this Part shall be construed as affecting any rights or benefits of an employee under any law, custom, contract or arrangement that are more favourable to the employee than his rights or benefits under this Part.

Pursuant to section 242(4)(b) of the Code, a complaint may be referred to an adjudicator for determination. The availability of adjudication is considered to be a statutory right which the parties cannot contract out of in a settlement agreement. As a result, a complaint of unjust dismissal can never be finally settled because the complainant continues to have recourse to adjudication under the Code, regardless of the terms of settlement.

In National Bank of Canada v. Canada (Minister of Labour)⁷⁰, the Federal Court considered the effect of a termination agreement on the Minister of Labour's discretion to appoint an adjudicator to resolve a complaint of unjust dismissal. The complainant was terminated from her position at the National Bank of Canada in the course of a reorganisation. Upon her dismissal, the parties entered into a settlement agreement whereby the complainant agreed to release her right to bring any action against the Bank, including any recourse under the Code, in exchange for a sum of money and relocation counselling. Subsequently, the complainant filed a complaint for unjust dismissal under section 240 of the Code. Following an inspector's investigation, the Minister appointed an adjudicator to resolve the complaint.

In an application for judicial review of the Minister's decision to appoint an adjudicator, the employer Bank argued that the complainant was not entitled to relief under the Code. More specifically, the employer argued that the settlement between the complainant and the employer precluded the Minister from asserting its jurisdiction to appoint an adjudicator. In dismissing the application, the Federal Court held that section 168(1) of the Code was of critical importance. The Court held that Part III of the Code applied despite the settlement agreement and further stated that a contractual waiver of the right to file a complaint under section 240 is not binding. ⁷¹

The Court noted its concern about appointing an adjudicator in the face of a voluntary settlement agreement and suggested that the rules of contract law should apply to allow the complainant to only pursue the matter in civil court if necessary.⁷² Nonetheless, the Court felt bound by Parliament's interventionist legislative scheme “for better or worse”. As a result, the Minister had jurisdiction to appoint an adjudicator notwithstanding the settlement between the parties.⁷³

The Federal Court similarly addressed this issue in Con-Way Central Express Inc. v. Amor, where it confirmed that, under the current statutory scheme, a settlement cannot waive a former employee's right to adjudication pursuant to section 240 because a settlement is “ipso facto less favourable than the provisions of Part III”.⁷⁴

This problem has been addressed in the Ontario Employment Standards Act⁷⁵ by including provisions for settlement stipulating that a settlement agreement is binding on the parties. Where the parties comply with the terms of settlement, a complaint is deemed to be withdrawn, any orders in respect of it are void, and proceedings in respect of it are terminated:

112(1) Subject to subsection (8), if an employee and an employer who have agreed to a settlement respecting a contravention or alleged contravention of this Act inform an employment standards officer in writing of the terms of the settlement and do what they agreed to do under it,

(a)	the settlement is binding on the parties;
(b)	any complaint filed by the employee respecting the contravention or alleged contravention is deemed to have been withdrawn;
(c)	any order made in respect of the contravention or alleged contravention is void; and
(d)	any proceeding, other than a prosecution, respecting the contravention or alleged contravention is terminated.

Pursuant to section 112(8) of the Ontario Employment Standards Act, the settlement agreement may only be set aside by the Board if the employee successfully demonstrates that he or she entered into settlement as a result of fraud or coercion.

The interplay between the Code’s unjust dismissal provisions and section 168(1) must be clarified to allow for enforcement of settlement agreements. The current regime, which discourages settlement, is contrary to good labour relations and offends the principles of flexibility and certainty. This result could not have been intended by Parliament. These concerns may be remedied by adopting similar provisions to those found in the Ontario statute.

(b) Election of Options

As matters currently stand, dismissed employees who come within the purview of Division XIV of the Code may pursue both civil wrongful dismissal actions and a complaint of unjust dismissal. This possibility encourages litigation in multiple fora. Ontario has addressed this possibility by requiring that employees elect to either pursue a civil action or engage the statutory enforcement mechanism. Sections 97 and 98 of the Employment Standards Act provide:

97(1) When civil proceeding not permitted
An employee who files a complaint under this Act with respect to an alleged failure to pay wages or comply with Part XIII (Benefit Plans) may not commence a civil proceeding with respect to the same matter.

(2) Same, wrongful dismissal
An employee who files a complaint under this Act alleging an entitlement to termination pay or severance pay may not commence a civil proceeding for wrongful dismissal if the complaint and the proceeding would relate to the same termination or severance of employment.

(3) Amount in excess of order
Subsections (1) and (2) apply even if,

(a)	the amount alleged to be owing to the employee is greater than the amount for which an order can be issued under this Act; or
(b)	in the civil proceeding, the employee is claiming only that part of the amount alleged to be owing that is in excess of the amount for which an order can be issued under this Act.

(4) Withdrawal of complaint
Despite subsections (1) and (2), en employee who has filed a complaint may commence a civil proceeding with respect to a matter descried in those subsections if he or she withdraws the complaint within two weeks after it is filed.

98(1) When complaint not permitted
An employee who commences a civil proceeding with respect to an alleged failure to pay wages or to comply with Part XIII (Benefit Plans) may not file a complaint with respect to the same matter or have such a complaint investigated.

(2)Same, wrongful dismissal
An employee who commences a civil proceeding for wrongful dismissal may not file a complaint alleging an entitlement to termination pay or severance pay or have such a complaint investigated if the proceeding and the complaint relate to the same termination or severance of employment. ⁷⁶

CACE suggests similar provisions should be included in the Code.

(c) Legitimate Business Reorganisation

CACE further submits that the unjust dismissal provisions should be amended to clarify that the provisions are not available to employees whose work is lost in a legitimate business reorganisation. Under section 240 of the Code, “unjust dismissal” has been given a broad interpretation which includes constructive dismissal.⁷⁷ If the unjust dismissal protection in section 240 of the Code is to extend to employees who have been constructively dismissed, the Code’s exception for lay-offs and discontinuance of a function should appear clearly on the face of the provision. Currently, section 242 of the Code, which establishes the powers of an adjudicator in respect of a complaint of unjust dismissal, provides that the protection does not extend to a lay-off or discontinuance of a function:

242(3.1) No complaint shall be considered by an adjudicator under subsection (3) in respect of a person where

(a)	that person has been laid off because of lack of work or because of the discontinuance of a function;

Amendments to the Code are required to clarify that bona fide workplace reorganisations do not trigger the Code’s unjust dismissal protections.

(d) Procedural Concerns

The adjudication of unjust dismissal complaints is an extremely costly and time consuming process. The unjust dismissal provisions of the Code provide no procedural guidance except to say in section 242(2)(b) that an adjudicator to whom a complaint has been referred shall determine the procedure to be followed. It has been the experience of CACE members that hearings are poorly managed and carry on far longer than one might find in the context of private arbitration, where skilled and knowledgeable arbitrators more aggressively manage the process. Procedural protections are frequently poor to non-existent and decisions often take years to be issued. Parliament’s original intention to promote efficient and inexpensive dispute resolution is not being realized under current processes. This concern applies equally to other adjudications under Part III of the Code, and is addressed in Part XII of these submissions.

(e) Restricted Application

Finally, access to section 240 is currently gained after 12 consecutive months of employment with the same employer. Given the broad manner in which this remedial provision is interpreted, CACE submits that access to section 240 should be restricted to longer-term employees. In this regard, guidance is found in the Code's provincial counterparts. In Québec, for example, similar protection against unjust dismissal applies only to those employees who have been employed for two years of uninterrupted service.⁷⁸ In Nova Scotia, the qualifying time period is ten years.⁷⁹

Recommendations

As a result of the foregoing discussion, CACE submits the following recommendations to the Commission:

• Division XIV should be redrafted to provide for finality in the settlement of unjust dismissal grievances.
• Division XIV should be redrafted to foreclose the possibility of concurrent wrongful dismissal actions and unjust dismissal complaints.
• The unjust dismissal provisions of the Code should be amended to clarify that they do not apply in the case of legitimate business reorganisations.
• Procedural rules should be developed to streamline processes and enhance natural justice.
• Division XIV should only apply to employees who have been employed with the employer for a period of 24 consecutive months.

VII. Work-related Illness & Injury

The Work-related Illness and Injury provisions of the Code are confusing, possibly unconstitutional and potentially discriminatory. CACE submits that they should be either removed from the Code, or substantially revised.

CACE submits that the Code’s provisions for work-related illness and injury may intrude into provincial jurisdiction over workers’ compensation, a jurisdiction that has long been held to include federal undertakings. As a result, the provisions have the potential to be, in pith and substance, compensatory in nature and ultra vires the federal legislative power. Sections 239.1(2), 239.1(6) and 239.1(7) are of particular concern in this regard:

239.1(2) Every employer shall subscribe to a plan that provides an employee who is absent from work due to work-related illness or injury with wage replacement, payable at an equivalent rate to that provided for under the applicable workers' compensation legislation in the employee's province of permanent residence.

239.1(6) Where contributions are required from an employee in order for the employee to be entitled to a benefit referred to in subsection (5), the employee is responsible for and must, within a reasonable time, pay those contributions for the period of any absence due to work-related illness or injury unless, at the beginning of the absence or within a reasonable time thereafter, the employee notifies the employer of the employee's intention to discontinue contributions during that period.

239.1(7) An employer who pays contributions in respect of a benefit referred to in subsection (5) shall continue to pay those contributions during an employee's absence due to work-related illness or injury in at least the same proportion as if the employee were not absent, unless the employee does not pay the employee's contributions, if any, within a reasonable time.

Courts have long held that workers’ compensation is within the jurisdiction of the provinces.⁸⁰ This principle was unanimously reaffirmed by the Supreme Court of Canada in Bell Canada v. Québec (Commission de Santé et de la sécurité du travail du Québec), wherein Beetz J. noted “[Workmen’s compensation schemes] are adopted by provinces pursuant to their jurisdiction over property and civil rights.” ⁸¹ In Bell Canada, Justice Beetz explained the provinces’ jurisdiction over workers’ compensation extends to workers of federal undertakings because such legislation is compensatory in nature and, unlike the occupational health and safety legislation that was at issue in Bell Canada, workers’ compensation legislation does not have an impact on working conditions within federal undertakings. In the words of Justice Beetz:

[Workers’ Compensation Schemes] are adopted by provinces pursuant to their jurisdiction over property and civil rights, but not pursuant their jurisdiction over contracts. It is in any case difficult to conceive in practice of such complex and elaborate schemes having a merely contractual basis. Although their purpose is to compensate workers they are not part of the contract of employment, they are not labour relations schemes and they do not constitute working conditions: they do not intervene to compensate workers until after their health or safety has been affected. They also do not impinge on the management or operation of undertakings.

As shown earlier, it is precisely because they do not impinge on the labour relations, working conditions, management or operation of undertakings that such compensatory schemes can be applied to federal undertakings.⁸²

Despite the provinces’ jurisdiction over workers’ compensation, including compensation for employees of federal undertakings, sections 239.1(6) and (7) of the Canada Labour Code set out the obligations of employers and employees with regard to the payment of benefit contributions into a compensatory scheme for workers suffering from illness or injury. Because these benefit provisions are analogous to those provided in provincial legislation,⁸³ they may constitute an intrusion into provincial jurisdiction. Additionally, section 239.1(2) of the Code may impinge on provincial jurisdiction by mandating that all federal undertakings subscribe to a workers’ compensation plan.

The hire-back provisions under section 239.1(3) and its associated regulations also suffer from constitutional confusion. As the law currently stands, the Canada Labour Standards Regulations enacted under section 239.1(3) provide that an employer’s obligation to re-hire an ill/injured worker ends 18 months after an employee is given medical clearance to resume his or her work.⁸⁴ Ontario jurisprudence suggests that similar provincial laws which, in some cases, dictate a 2-year hire-back period, also apply to federal undertakings. In Canadian Pacific Railway Co. v. Ontario (Workplace Safety and Insurance Appeals Tribunal),⁸⁵ the Ontario Superior Court of Justice concluded that section 54(8) of the Ontario Workers’ Compensation Act, R.S.O. 1990, c. W-11, [now section 41(7) of the Workplace Safety and Insurance Act], is applicable to federal undertakings.⁸⁶ The obligation to re-employ a worker who has been injured in the workplace was held to be an integral part of the workers’ compensation scheme that does not interfere with the essential parts of the operation of a federal undertaking.⁸⁷ The result is that both the federal and provincial laws on hire-back periods may apply to federal undertakings.⁸⁸ It is often unclear to employers and employees which statute they should follow in any given circumstance.

The Quebec Court of Appeal, considering section 32 of Quebec’s Act Respecting Industrial Accidents and Occupational Diseases,⁸⁹ which provides a non-reprisal protection similar to that found in section 239.1(1) of the Code, has held that that provision is integrally related to the federal field of labour relations and is not applicable to federal undertakings.⁹⁰ The Quebec jurisprudence regarding provincial non-reprisal legislation would likely not apply to exclude the jurisdiction of provinces that have enacted reinstatement provisions that are integrally related to compensation.

CACE submits that, if the above provisions are not excluded from the Code as superfluous, they should be re-drafted to offer improved clarity. In particular, sections 239.1(2), 239.1(6) and 239.1(7) must be seen as facilitating provincial jurisdiction rather than usurping it. Additionally, section 239.1(3) could be extended to 2 years to mirror similar provisions in provincial legislation and put an end to jurisdictional confusion.

Portions of the work-related illness and injury provisions of the Code have the potential to be seen as discriminatory. In particular, the hire-back regulations discussed above and enacted under section 239.1(3) may be in violation of human rights legislation. Under human rights legislation, an employer is obliged to accommodate a disabled employee to the point of “undue hardship”. By imposing an 18-month limit on hire-back, section 34.(1) of the Labour Standards Regulations creates an arbitrary cut-off point that could be challenged as prima facie discriminatory since the duty to accommodate may not be yet be fulfilled at the expiration of the 18-month period.

Confusion about the duration of the obligation to re-hire could be reduced if the Code were to provide clear guidance to employers in this area. This may be done by eliminating section 239.1(3) entirely and leaving accommodation at the discretion of employers within the bounds of human rights legislation. Alternatively, following the example of the Ontario Workplace Safety and Insurance Act, 1997⁹¹ the Work-related Illness and Injury provisions of the Code could be amended to expressly incorporate the human rights duty to accommodate to the point of undue hardship. Yet another solution is to amend the Canadian Human Rights Act itself to include a statutorily mandated point of undue hardship to be adopted by all employers, leaving human rights issues within human right statutes and adding clarity to the rights and obligations of employees and employers.

Recommendations

As a result of the foregoing discussion, CACE submits the following recommendations to the Commission:

• Sections 239.1(2), 239.1(6) and 239.1(7) should be removed from the Code.
• Section 239.1(3) and its associated regulations should be amended by:
  1. removing it from the Code altogether;
  2. replacing it with a similar provision under the Canadian Human Rights Act; or
  3. extending its hire-back period to 2 years and incorporate the duty to accommodate into the Code.

IX. Personal/Psychological Harassment

In the submissions of the Canada Labour Congress it is suggested that the Canada Labour Code should include provisions prohibiting personal/psychological harassment.⁹² CACE agrees that all employees should benefit from a safe and productive workplace. However, CACE submits that the common law and civil law notions of constructive dismissal offer sufficient protection from harassment. Parliament should show restraint in codifying a developing area of law where judicial flexibility should be paramount.

The law of wrongful dismissal recognizes that an employee may be constructively dismissed through an employer’s fundamental breach of an employment term.⁹³ Courts have further concluded that it is a fundamental term of the employment contract that an employee shall be treated with “civility, decency, respect and dignity.”⁹⁴ To similar effect, the Civil Code of Québec provides that “[t]he employer is bound not only to allow the performance of the work agreed upon and to pay the remuneration fixed, but also to take any measures consistent with the nature of the work to protect the health, safety and dignity of the employee.”⁹⁵ As such, an employee who faces harassment in the workplace that is outside the scope of human rights legislation may seek legal recourse in the courts.

There are important conceptual differences between personal harassment and discrimination based on human rights. While a finding of discrimination requires differential treatment based on enumerated or analogous grounds, personal harassment is centered on the protection of employees from general abuse and threats. The lack of enumerated or analogous grounds in the harassment context means that the analytical methodology employed for human rights issues is not applicable to personal harassment. It also suggests that the two inquiries should remain distinct – a conclusion reinforced by the fact that no Canadian jurisdictions include general harassment (not based on an enumerated ground) within their human rights legislation.

Keeping recourse to harassment within the bounds of the common law and Quebec’s Civil Code is key to preventing federal workplaces from being overshadowed by continual harassment complaints. Conversely, the ongoing common law and civil Code interpretations of personal harassment allow adjudicators to adapt to novel fact situations without being bound by rigid codified definitions.

Sheppard v. Sobeys Inc.⁹⁶ provides an example of the contextual analysis that is required to assess allegations of workplace harassment. There, the Newfoundland Court of Appeal concluded that alleged harassment was insufficient to ground a finding of constructive dismissal. The Court of Appeal noted that the complainant employee had been involved in an argumentative meeting with management over scheduling issues, and had been suspended for “total insubordination.” In addition, the employee “was having considerable problems with the accuracy of her cash transactions” and was forced to undergo re-training that did not correct the problem. Though the employee felt that she had been singled out and harassed to the point of constructive dismissal, the Court concluded that there had been no such abusive treatment and her action was dismissed.

The above example is not intended to demonstrate that all harassment actions are doomed to fail; on the contrary, legitimate actions should succeed and grant relief to those in need. However, Sheppard highlights the reality that harassment is an intensely personal and subjective claim,⁹⁷ and one that is open to abuse if complaints are allowed to proliferate under overly-broad legislative provisions.

Québec recently enacted An Act Respecting Labour Standards,⁹⁸ which includes provisions for psychological harassment. While the goals of the Québec Act are well-intentioned, the Act employs an overly-broad definition of harassment that has forced adjudicators to resort to their dictionaries for interpretational guidance.⁹⁹

The experience of the Canada Public Service Staff Relations Board (CPSSRB) is also instructive. Pursuant to a Treasury Board Secretariat policy statement on harassment in the workplace,¹⁰⁰ the Governor in Council granted the CPSSRB the jurisdiction to consider harassment claims for all public service employees.¹⁰¹ Unfortunately, the implementation of the harassment policy has been a difficult process. The case of Joss v. Treasury Board (Agriculture & Agri-Food Canada)¹⁰² highlights the difficulty of administering a statutorily-defined harassment policy.

Joss concerned a grievance under the Treasury Board Policy alleging multiple counts of harassment. In concluding that the impugned conduct did not amount to harassment, Board Member F.C. Smith, Q.C. addressed the use and abuse of harassment policies in the workplace:

Addressing harassment in the workplace is problematic. Most policies include a definition of harassment, which in my experience is often poorly articulated and/or far too liberal, thus resulting in problems upholding discipline based on inconsequential acts which nevertheless fall within a liberal policy definition. The fact that harassment policies usually contain a statement to the effect that harassing conduct is or may be subject to discipline, is often erroneously regarded as an absolute requirement to discipline. Workplaces often have inexperienced or unqualified harassment review or investigative panels charged with making recommendations to management. Management may feel obliged to accept the findings and recommendations of such panels to demonstrate its acceptance of such programs, to demonstrate good faith and zero tolerance of harassment, or to protect itself from liability. Then of course there is some procedural uncertainty in addressing harassment because human rights legislation, workplace legislation, including the Canada Labour Code, also address issues of harassment on specific prohibited grounds and provide avenues of recourse. Given all this, it is understandable that questions arise as to how harassment will in fact be governed in the workplace.¹⁰³

CACE agrees fully with the conclusions of Board Member Smith. The imprecise nature of workplace harassment underlines the conclusion that the current recourse to harassment, through the common law and Civil Code, is a fair and pragmatic approach to this complex issue. Mere allegations of harassment have the potential to stigmatize employees, polarize workplaces and impede productivity. On the other hand, employees who genuinely suffer from harassment should not be left without recourse. The current common law and Civil Code remedies of constructive dismissal provide protection to employees while maintaining productive workplaces and limiting abusive allegations of harassment.

Recommendations

As a result of the foregoing discussion, CACE submits the following recommendations to the Commission:

• Part III should not include provisions regarding personal harassment.

X. Relationship to Human Rights Legislation

The Code and the Canadian Human Rights Act (the "CHRA") provide parallel and potentially conflicting protection to employees with respect to pay equity,¹⁰⁴ sick leave and workplace illness and injury,¹⁰⁵ and sexual harassment.¹⁰⁶ The importance of protecting human rights cannot be denied. Human rights legislation is quasi-constitutional and the Code must be drafted in accordance with human rights values. However, CACE submits that a duplicative system is neither fiscally nor socially responsible. The Code provisions do not substantively add to human rights protection offered by the CHRA. The Code's duplication of investigation and complaint procedures already available under the CHRA contributes to the already substantial delay associated with resolving human rights complaints. Moreover, duplicative enforcement procedures inevitably create the possibility of conflicting results.

CACE submits that pay equity, sick leave and sexual harassment should be excluded from the Code and should be dealt with exclusively within the forum of the CHRA. This recommended approach would direct all human rights inquiries to one administrative body, equipped with expertise and procedural safeguards commensurate with the importance of human rights.

The existence of two regimes allows for two administrative bodies to simultaneously invest time and resources into consideration of the same matter. For instance, though an inspector acting under the Code is authorized to notify the CHRC following an investigation, inspectors are not empowered to "deal with" a complaint, nor can they be an "appropriate authority" to which a complaint could be referred for possible determination pursuant to the CHRA. Furthermore, a human rights complaint regarding pay equity need not be filed through an inspector. Thus, the inspector is an unnecessary step in the complaint process, adding to the bureaucracy, delay and expense of human rights claims.

In addition, the presence of two regimes renders it difficult for employers to know what is expected of them and for employees to determine the best recourse in the event of a violation. For example, in a result that seems to defy logic, it was held that the Code's sick leave provisions are interpreted independently from the duty to accommodate. In Kingsbury v. J.E. Fortin Inc., the adjudicator, in determining the legitimacy of the complainant's dismissal, was held not to have the jurisdiction to “consider whether the employer was under a duty to accommodate the employee's disability”.¹⁰⁷ The complainant in that case had failed, at arbitration, to raise the question of his entitlements under the Code’s provisions for work-related injury and had not provided evidence that his injuries were caused by his work. Thus, in the face of two independent but related schemes, it is unclear what steps an employer must take with respect to sick or disabled employees in order to comply with both the Code and human rights legislation.

In addition, the Code provisions regarding sexual harassment are interpreted according to case law from the human rights arena. While it is undeniably important to ensure that all employers and employees are aware that sexual harassment is not tolerated in the workplace and that sexual harassment is a human rights issue, the Code provisions are an unnecessary duplication of a more specific and expert regime administered by the Human Rights Commission.

Finally, the Code does not address diversity or demographics in the workplace. The CHRA addresses these issues by prohibiting discrimination on the basis of race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted in the workplace and in hiring procedures.¹⁰⁸ No gap exists in the CHRA regime concerning diversity and demographics in the workplace. Accordingly, including these issues in the Code is unnecessary.

Recommendations

The foregoing discussion reveals that the Code and the CHRA contain unnecessary and problematic duplication. CACE therefore submits the following recommendations to the Commission:

• Part III should be amended to exclude provisions regarding pay equity, sick leave, and sexual harassment.
• Part III should not be amended to include provisions regarding diversity and/or demographics.

XI. Training

Currently, the Code does not provide for mandatory training or continuous learning in the workplace. Despite the absence of a statutory mandate, many federal employers have implemented extensive continuing education regimes for employees.

Based on the experience of its practitioners and clients, CACE submits that labour standards legislation should not play a role in promoting continuous learning in the workplace. CACE is concerned that a legislated minimum will discourage employers who voluntarily provide education programs from going beyond the minimum. Training needs vary considerably within and between enterprises and would be extremely difficult, if not impossible, to legislate. Furthermore, government micro-management of training programs across the federal sector would be fiscally irresponsible in light of the time, effort and expense required to develop the necessary expertise.

Non-legislative alternatives should be explored to encourage training in federally regulated workplaces that lack such programs. Monetary incentives or tax rebates would likely be a successful alternative. Such incentives would promote training, skill upgrades and workplace learning in federally regulated industries. Financial incentives would also provide employers with the flexibility to devise industry-appropriate training programs.

Recommendations

As a result of the foregoing discussion, CACE submits the following recommendations to the Commission:

• Part III should not be amended to establish mandatory training minimums.
• Non-legislative alternatives in the form of financial incentives be adopted to promote employer-funded training and continuing education programs.

XII. Enforcement and Administration

The current complaint-driven enforcement regime of Part III of the Code is a solid foundation from which to enforce federal labour standards. While the existing scheme could benefit from increased dissemination of information, the Code’s compliance measures are more than adequate if properly applied. There is no need to overhaul the Code's administrative/enforcement system. Focused improvement in key areas will allow the existing procedural framework to meet present enforcement needs and adapt to future business challenges.

From a program-implementation point of view, it would be unwise to significantly alter the Code's current administrative system. Labour Canada underwent a significant merger with Human Resources and Skills Development Canada in the mid-1990s and a major departmental evaluation in 1997-98.¹⁰⁹ To significantly re-organize the existing scheme would cause enormous disruption in a government department only recently emerging from major organizational review. Additionally, there is sufficient compliance with federal labour standards to indicate that the current complaint-driven approach is effective. Thus, a major re-organization of labour standards enforcement is unjustified.

If the present enforcement system is to be altered, it should be changed to fill in existing gaps in the legislation. At present, there is no provision in the Code that mandates reading Part III provisions into collective agreements. While arbitrators should consider the Code following the decision in Parry Sound,¹¹⁰ it would be preferable if all labour standards disputes occurring in unionized workplaces were to proceed to arbitration under the parties’ collective agreements. Part III of the Code is not technical in nature, and would be within the expertise of arbitrators to apply. Importantly, experienced labour arbitrators are able to identify abuse when provisions of the Code are used to gain leverage in labour relations. While moving labour standards determinations into private arbitration under collective agreements would shift the expense of arbitration to the parties, this is a cost that employers would willingly bear to obtain good decisions from experienced and knowledgeable arbitrators. The resulting reduction in the case-load for federal Labour Affairs Officers would allow the Labour Program to better focus its energies on non-unionized workplaces within the federal jurisdiction - areas in which labour standards may be at greatest risk. Ontario has already taken this step.¹¹¹ The federal jurisdiction should follow Ontario’s lead.

Reduced workloads for Labour Affairs Officers would also free up time and resources within the Labour Program which could be redirected to focus on the implementation and delivery of much-needed educational/informational programs on labour standards.¹¹² Increased education for employers, employees and unions will allow the current system to best achieve its goal of voluntary compliance with labour standards. Indeed, it will be necessary for employers to adjust to the re-drafted portion of the statute once the current review procedure is completed. The enactment of a revised statute is the ideal time to give Labour Affairs Officers a new mandate on education, allowing employers, employees and unions to rapidly adapt to the revised legislation.

Finally, while the unionized workforce should have access to the protections in Part III through arbitration, the Code’s current adjudication procedures should be preserved for non-unionized employers. However, better qualified adjudicators are needed to enforce the Code. The collective experience of CACE members has been that many referees appointed to determine matters under Part III of the Code are not knowledgeable about labour law and are not individuals whom parties regularly select when an arbitrator is appointed by consent. The credibility of the Ministerial appointment list could be improved by increasing the remuneration of these referees and ensuring appointees are acceptable to stakeholders. The current stipend is well below the daily rates that arbitrators earn in the private market and this has likely had an impact on the quality of decision-makers on the list.

Additionally, CACE urges the Commission to adopt the recommendations in respect of Ministerial appointments to the CIRB made in Seeking a Balance, the Report of the Task Force for the Review of Part I (the “Sims Report”), which was submitted to the Minister of Labour on January 31, 1996. Those recommendations would equally address concerns about the quality of Part III adjudicators. In particular, the Sims Report recommended that all candidates must have extensive and recognized experience in labour relations, and that equity, language, and regional and sectoral balance should also be considered in making appointments from among experienced candidates. CACE further suggests that labour and management representatives ought to have a formal role in identifying candidates for nomination by the Governor in Council. Participation by the federal jurisdiction communities who are most affected by decisions rendered by Part III adjudicators would improve the credibility of the list of adjudicators.

Recommendations

As a result of the foregoing discussion, CACE submits the following recommendations to the Commission:

• Revised legislation should explicitly grant arbitrators jurisdiction to treat Part III of the Code as part of all collective agreements and require that unionized employees must enforce Part III of the Code through the arbitration process contained in their collective agreements.
• Current Labour Affairs Officers should be given a revised mandate and sufficient resources to educate employers, employees and unions about existing and revised standards under the Code.
• Part III adjudicators should be retained in the context of complaints by non-unionized employees but must have extensive and recognized experience in labour relations and should be appointed with input from the federal jurisdiction labour-management community.

CONCLUSION

CACE submits the foregoing recommendations to the Commission based on the collective experience and expertise of more than 200 labour and employment lawyers, representing the majority of employers in Canada. The recommendations and accompanying discussion is intended to be practical and useful guidance for the Commission. In particular, CACE submits that reform of Part III of the Canada Labour Code should be guided by the principles of flexibility, cohesiveness, clarity and certainty. CACE submits that the combination of these principles and CACE's practical recommendations will lead to a federal labour Code that strikes a fair balance between the needs, rights and obligations of employers and employees.

Endnotes

¹ Canada Labour Code, R.S.C. 1985, c. L-2, as amended.

² Baily Seshagiri, Occupational Health and Safety - A Century of Progress, Workplace Gazette: Volume 3 #4, Winter 2000 - Centennial Edition at 46.

³ Ibid.

⁴ Canada, Human Resources Development Canada, Evaluation of Federal Labour Standards (Phase I) (Final Report) (Ottawa: 1997), online: <http://www11.hrdc-drhc.gc.ca/pls/edd/FEDLABSTAN.lhtml>.

⁵ Ibid.

⁶ Code, supra note 1, s. 168(1).

⁷ R.S.C. 1985, c. C-8.

⁸ S.C. 1996, c. 23.

⁹ R.S.C. 1985, c. 1 (5th Supp.).

¹⁰ Code, supra note 1, s. 167(1)(a).

¹¹ Montreal v. Montreal Locomotive Works Ltd. et al, [1947] 1 D.L.R. 161, [1946] 3 W.W.R. 748 (P.C.); Wiebe Door Services Ltd. v. Canada (Minister of National Revenue - M.N.R.), [1986] 3 F.C. 553.

¹² 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983 [Sagaz].

¹³ Ibid. at para. 47.

¹⁴ Sagaz, supra note 12 at para. 46, citing John G. Fleming, The Law of Torts, 9th ed. (Sydney, Australia: LBC Information Services, 1998) at 416.

¹⁵ R.S.Q. c. C-1991.

¹⁶ Sagaz, supra note 12 at para. 36, citing Robert Flannigan, "Enterprise control: The servant-independent contractor distinction" (1987), 37 U.T.L.J. 25. at p. 25.

¹⁷ Supra note 7.

¹⁸ Supra note 8.

¹⁹ Supra note 9.

²⁰ See Precision Gutters Ltd. v. Canada (Minister of National Revenue - M.N.R.), 2002 FCA 207; Dewdney Transport Group Ltd. v. Canada (Minister of National Revenue - M.N.R.), 2004 FCA 183; and BCH Inc. v. Canada (Minister of National Revenue-M.N.R.), 2003 FCA 354.

²¹ See Dynamic Industries Ltd. v. Canada, 2005 FCA 211; and Bergeron c. Québec (Sous-ministre du Revenu), [1998] A.Q. no 1426 (C.Q. civ.).

²² See Plastiques Simport Ltée c. Québec (sous-ministre du Revenu), [1996] A.Q. No. 2397 (C.Q. civ.).

²³ See Wolf v. Canada, 2002 FCA 96.

²⁴ [1997] 1 S.C.R. 1015 [Pointe-Claire].

²⁵ Ibid. at para. 49.

²⁶ Ibid. at paras. 47, 49.

²⁷ Canadian Air Line Flight Attendants' Association and Nationair (Nolisair International Inc.) (1987), 70 di 44; 19 C.L.R.B.R. (NS) 81 [Nationair].

²⁸ Pointe-Claire, supra note 24 at para. 48.

²⁹ See e.g. Royal Canadian Mint (Re), [2003] C.I.R.B.D. No. 19, [2003] C.I.R.B. No. 229 [Mint]; Saskatchewan Wheat Pool (Re), [2002] C.I.R.B.D. No. 20 [Wheat Pool]; and Mackie Moving Systems Corp. (Re), [2002] C.I.R.B. No. 156, [2002] C.I.R.B.D., No. 3.

³⁰ Mint, ibid. at para. 13.

³¹ Ibid. at para. 15.

³² Mackie Moving Systems Corp., supra note 29 at para. 125.

³³ Lantic Sugar Ltd., [2004] O.L.R.B. Rep. January/February 69, [2004] O.L.R.D. No. 431 at para. 62.

³⁴ Peter Hogg, Constitutional Law in Canada, Looseleaf Edition (Toronto: Carswell, 2005) at 21.8(a).

³⁵ Ibid. at 21.8(b).

³⁶ Following Bell Canada v. Québec (Commission de Santé et de la sécurité du travail du Québec) [1999] 1 F.C. 113 (Fed C.A.), leave to appeal to S.C.C. refused, [1999] S.C.C.A. No. 1, the Canada Labour Code is valid federal legislation with regard to the regulation of working conditions in federal undertakings. This jurisdiction would likely not extend to employees who are not sufficiently integrated into the federal undertaking. For a discussion of division of powers, the double aspect doctrine and conflict between federal and provincial jurisdiction, see generally Multiple Access v. McCutcheon, [1982] 2 S.C.R. 161 and Law Society of British Columbia v. Mangat, [2001] 3 S.C.R. 113.

³⁷ Backgrounder: The Changing Face of Canadian Workplaces (December 2004), online: Federal Labour Standards Review, <http://fls-ntf.gc.ca/en/bg_01.asp>.

³⁸ [2003] C.L.A.D. No. 19 (Herman); upheld on judicial review [2004] O.J. No.4897 (Div. Ct.).

³⁹ Labour Standards Regulations, infra note 42, ss. 6-7 and Schedule IV; Code, supra note 1, s. 201(1)(b).

⁴⁰ Code, supra note 1, s. 169(2.1).

⁴¹ Ibid., s. 170; Labour Standards Regulations, infra note 42, ss. 4-5 and Schedule III.

⁴² Labour Standards Regulations, C.R.C. 1978, c.986.

⁴³ Employment Standards Act, 2000, S.O. 2000, c.41 as amended.

⁴⁴ R.S.Q. N-1.1, s.52.

⁴⁵ R.S.P.E.I. 1988, c. E-6.2, s. 15(1).

⁴⁶ S.N.B. c. E-7.2, s.14.

⁴⁷ [1975] B.C.J. No. 845 (B.C.S.C.) [James].

⁴⁸ Ibid. at para.7. On appeal, Justice MacFarland upheld Justice Gould's decision, but avoided the confusing statute altogether. Justice MacFarland settled the issue on the basis of a prior decision which held reserve duty not to be "work" with respect to the Code; thus, no holiday could be granted on a day that was already a day off. See [1976] B.C.J. No. 5 (C.A.).

⁴⁹ [1997] C.L.A.D. No. 33.

⁵⁰ Ibid. at para. 78.

⁵¹ Code, supra note 1, s. 209.1(1).

⁵² Ibid., s. 209.1(2).

⁵³ Ibid., s. 209.2(1).

⁵⁴ CFRN-TV v. Communications, Energy and Paperworkers Union of Canada CEP-CLC (1998), 236 A.R. 336 (Alta. Q.B.) at para. 62 [CFRN-TV].

⁵⁵ Ibid.

⁵⁶ Supra note 43, s. 53(1).

⁵⁷ Ibid., s.50(5) (10 days); An Act Respecting Labour Standards, R.S.Q. c. N-1.1 (10 days); Employment Standards Act, R.S.B.C. 1996, c. 113, s. 52 (5 days); Labour Standards Act, R.S.N.L. 1990, c. L-2 (7 days combined sick leave and family responsibility leave); Employment Standards Act, R.S.N.B. 1973, c. E-7.2 (3 days); Employment Standards Act, S.P.E.I. 1998, c. E-6.2 (3 days); Labour Standards Code, R.S.N.S. 1989, c. 246 (none); Employment Standards Code, R.S.A. 1998, c. E-9 (none); Employment Standards Code, C.C.S.M. c. E110, (none); Labour Standards Act, R.S.S. 1978, c. L-1 (none).

⁵⁸ Most of the major federal public service agreements, including the Agreement between the Treasury Board and The Public Service Alliance of Canada (expiry 20 June 2007), provide for five days of family responsibility leave.

⁵⁹ Code, supra note 1, s. 212.

⁶⁰ O. Reg. 288/01, s. 3(1).

⁶¹ Employment Standards Code, C.C.S.M. c. E110, s. 67(1).

⁶² Employment Standards Act, R.S.B.C. 1996, c. 113.

⁶³ An Act respecting Labour Standards, R.S.Q. c. N-1.1, s. 84.0.4.

⁶⁴ Labour Standards Code, R.S.N.S. 1989, c. 246, s. 72(2).

⁶⁵ Labour Standards Act, R.S.N.L. 1990, c. L-2, s. 57(3).

⁶⁶ Labour Standards Regulations, R.R.S. 1995, c. L-1 Reg. 5, s. 22(1).

⁶⁷ Code, supra note 1, s. 212(1).

⁶⁸ Ibid., ss. 211-229.

⁶⁹ Ibid., s. 223(1).

⁷⁰ National Bank of Canada v. Canada (Minister of Labour), [1997] 3 F.C. 727 (T.D.), aff'd [1998] F.C.J. No. 872 (C.A.), leave to appeal to S.C.C. refused, [1998] S.C.C.A. No. 435 [National Bank].

⁷¹ Ibid. at paras. 13-14.

⁷² Ibid. at para. 20.

⁷³ Ibid. at para. 20. See also Con-Way Central Express Inc. v. Amor, [1997] F.C.J. No. 1831, 153 F.T.R. 161.

⁷⁴ Con-Way, Ibid. at para. 18.

⁷⁵ Supra note 43, s.112.

⁷⁶ Ibid., ss. 97-98.

⁷⁷ See Palmer v. Canadian National Railway Company (2001), 9 C.C.E.L. (3d) 111.

⁷⁸ Supra note 44, s. 124.

⁷⁹ Labour Standards Code, R.S.N.S. 1989, c. 246, s. 71(1).

⁸⁰ Workmen's Compensation Board v. Canadian Pacific Railway Co. (1919), 48 D.L.R. 218 at para. 290.

⁸¹ [1988] 1 S.C.R. 749 at para. 290 [Bell Canada].

⁸² Ibid., at paras. 290-291.

⁸³ See e.g. Ontario Workplace Safety and Insurance Act, 1997, S.O. 1997 c. 16, Sch. A, s. 25(1).

⁸⁴ Supra note 42, s. 34(1).

⁸⁵ [2000] O.J. No. 500 [CPR].

⁸⁶ See also Re Canada Post Corp. v. Smith (1998), 40 O.R. (3d) 97.

⁸⁷ Ibid. at para. 20.

⁸⁸ The court in CPR concluded that there is no conflict between the two pieces of legislation. This conclusion was reached despite the fact that an employer who has refused to hire an employee who has been off work for 19 months would be in compliance with the federal legislation and in breach of the provincial statute. According to paragraph 28 of Justice Swinton's decision, "there is no problem with this approach...where compliance with the provincial law will vindicate the federal law's objective to provide re-employment to a worker in the workplace."

⁸⁹ L.R.Q. c. A-3.001.

⁹⁰ Purolator Courrier Ltée. c. Francois Hamelin (31 Janvier 2002), 500-09-0071114-986 and Commission de la Santé et de la Sécurité du travail c. Compagnie de Chemin de Fer Canadien Pacifique (31 Janvier 2002), 500-09-007594-997.

⁹¹ Supra note 83, s.41.

⁹² Labour Standards for the 21st Century: Canadian Labour Congress Issues Paper on Part III of the Canada Labour Code, April 6, 2005, at 24-26.

⁹³ Lloyd v. Imperial Parking Ltd., [1996] A.J. No. 1087 at para. 40 (Q.B.). See also Shipley c. Heritage College, [2003] Q.J. No. 2061 (Sup. Ct.) [Shipley], Shah v. Xerox Canada Ltd., [2002] O.J. No. 849 (C.A.), Farber v. Royal Trust Co., [1997] 1 S.C.R. 846.

⁹⁴ Lloyd, Ibid. at para. 41. See also Stamos v. Annuity Research & Marketing Service Ltd., [2002] O.J. No. 1865, at para. 60, and Francine Ranger c. Clinique chiropratique St-Eustache, 2003 QCCRT 0533.

⁹⁵ Supra note 15, Article 2087.

⁹⁶ [1997] N.J. No. 78 (C.A.).

⁹⁷ See also Sobeys Inc. v. Mills, [2000] N.S.J. No. 244. In Mills the Nova Scotia Court of Appeal dismissed an appeal from the Labour Standards Tribunal alleging that the complainant employee had been constructively dismissed. At issue was management's failure to adequately respond to derogatory workplace graffiti. The Court concluded that even if management's response was insufficient, (the employer failed to obtain a handwriting specialist to identify the culprit, as was sought by the employee), such a failure did not amount to a repudiation of the employment contract.

⁹⁸ Supra note 44.

⁹⁹ See Syndicat de la function publique du Québec Et Ministère du Revenue du Québec, Tribunal D'arbitrage 2003-1755, 22 juillet 2004.

¹⁰⁰ Treasury Board of Canada Secretariat, "Harassment in the Workplace," online: Library and Archives Canada <http://epe.lac-bac.gc.ca/100/201/301/tbs-sct/ tb_manual-ef/Pubs_pol/hrpubs/TB_851/HARAE1.html>.

¹⁰¹ Order Assigning to the Public Service Commission the Duty to Investigate Public Service Employee Complaints Respecting Personal Harassment, SI/86-194, C. Gaz. 1986.II.4383.

¹⁰² [2001] C.P.S.S.R.B. No. 17.

¹⁰³ Ibid. at para. 41.

¹⁰⁴ See Canadian Human Rights Act, R.S.C. 1985, c. H-6, s. 11, Part III [CHRA] and Code, supra note 1, s. 182. Pursuant to the CHRA, it is discriminatory to pay unequal wages to male and female employees for work of equal value. The CHRA provides for complaints, investigations and adjudication of alleged pay equity violations. The Code provides for investigation of discriminatory pay practices and authorizes inspectors to notify the Canadian Human Rights Commission or file a human rights complaint regarding the discrimination.

¹⁰⁵ See Code, supra note 1, ss. 239(1), (1.1), (2.1)-(5).

¹⁰⁶ See Code, supra note 1, ss. 247.2, 247.3 and CHRA, supra note 104, s. 14 .The Code states that every employee is entitled to employment free of sexual harassment and obligates the employer to make every reasonable effort to ensure that no employee is subjected to sexual harassment. Sexual harassment in the workplace is also prohibited by the CHRA. Complainants have access to the Human Rights Commission complaint, investigation and tribunal procedures.

¹⁰⁷ Kingsbury v. J.E. Fortin Inc. [1997] F.C.J. No.392 at para. 33.

¹⁰⁸ Supra note 104, ss. 3, 7-9.

¹⁰⁹ Evaluation of Labour Standards (Phase I), supra note 4.

¹¹⁰ Parry Sound (District) Social Services Administration Board v. Ontario Public Service Employees Union, Local 324 (O.P.S.E.U.), 2003 SCC 42 [Parry Sound]. See also Weber v. Ontario Hydro, [1995] 2 S.C.R. 929.

¹¹¹ Ontario Employment Standards Act, supra note 43, ss. 99-101.

¹¹² Evaluation of Labour Standards (Phase I), supra note 4.