Legislative Changes Relating to Minimum Employment Standards

Federal: Regulations Amending the CanadaLabour Standards Regulations; SOR/2006-231; CanadaGazette, Part II, of October 18, 2006

This Regulation, which came into force on September 28, 2006, made some housekeeping changes to the Canada Labour Standards Regulations to reflect recent legislative changes, such as the inclusion of new compassionate care leave provisions in the Canada Labour Code.

This Regulation has also amended Schedule I of the Canada Labour Standards Regulations to provide a revised list of industrial establishments with respect to Canadian Pacific Limited and Bell Canada, for the purposes of the Code’s group termination provisions. (Under section 212 of the Code, an employer must provide notice of group termination where it terminates, within a four-week period, the employment of 50 employees or more within an industrial establishment.)

British Columbia : Compassionate Care Leave Regulation under the Employment Standards Act (B.C. Reg. 281/2006); deposited October 20, 2006

This Regulation expands the list of persons in respect of whom an employee can take compassionate care leave pursuant to the Employment Standards Act of British Columbia.

Under the Act, an employee may take up to eight weeks of unpaid leave to provide care or support to a family member whom a medical practitioner certifies is suffering from a serious medical condition with a significant risk of death within 26 weeks. Before Regulation 281/2006 came into effect, an employee could only take such leave in respect of his/her spouse, child, parent, guardian, sibling, grandparent or grandchild, or a person who lives with the employee as a family member. Regulation 281/2006 prescribes other family members in respect of whom an employee may take leave, including:

• A step-sibling of the employee;
• An aunt, uncle, niece or nephew of the employee;
• A current or former foster parent of the employee
• A current or former foster child of the employee;
• A current or former guardian or ward of the employee;
• The spouse of a sibling, step-sibling, child, step-child, grandparent, grandchild, aunt, uncle, niece or nephew of the employee;
• The spouse of a current or former foster child of the employee;
• The spouse of a current or former guardian of the employee;
• A parent or step-parent of the employee’s spouse;
• A sibling or step-sibling of the employee’s spouse;
• A child of the employee’s spouse;
• A grandparent or grandchild of the employee’s spouse;
• An aunt, uncle, niece or nephew of the employee’s spouse;
• A current or former foster parent of the employee’s spouse;
• A current or former ward of the employee’s spouse.

An employee may also take compassionate leave to provide care and support to any person who considers the employee to be, or whom the employee considers to be, “like a family member.”

There are no length-of-service or other eligibility conditions under the Act in order to qualify for compassionate care leave. However, the employee is required to provide a copy of the medical certificate to the employer as soon as practicable. 

Although the eight weeks of leave can be broken up, each period of leave must have a minimum duration of one week. Furthermore, the employee’s right to leave expires on the last day of the week in which the patient dies or the last day of the week in which a 26-week period elapses from the date leave was commenced (whichever occurs first). 

Where two or more employees provide care or support to the same person, they are not required to share the leave. It should be noted that if the family member survives beyond the end of the 26-week period referred to in the medical certificate, the employee has the right to take further compassionate care leave, provided that he/she provide the employer with a new medical certificate.

Regulation 281/2006 came into force on October 20, 2006.  

Manitoba: The Public Interest Disclosure (Whistleblower Protection) Act; Bill 34; third reading December 4, 2006

The purpose of the Public Interest Disclosure (Whistleblower Protection) Act is to create a mechanism for the disclosure of wrongdoings in the public service. It also includes provisions to protect “whistleblowers”.  

Scope of the Act

The Act will cover the public service of Manitoba, including departments, government bodies[1] and specified offices.[2]  It will apply to the disclosure of the following wrongdoings in or relating to the public service:

• An act or omission constituting an offence under a Manitoba or federal Act or regulation;
• An act or omission that creates a substantial and specific danger to the life, health or safety of persons, or to the environment, other than a danger that is inherent in the performance of the duties or functions of an employee;
• Gross mismanagement, including of public funds or a public asset; and
• Knowingly directing or counselling a person to commit any of the above-mentioned wrongdoings.

Although the Act will establish procedures allowing an individual outside of the public service to communicate information relating to one of the wrongdoings described above, it will apply primarily to disclosures made by employees and officers of the public service. 

Obligation to establish procedures to manage disclosures

All chief executives[3] will be required to establish procedures to manage disclosures by employees of the portion of the public service for which they are responsible, including procedures concerning the following matters:

• Receiving and reviewing disclosures, including setting time periods for action;

• Investigating disclosures in accordance with the principles of procedural fairness and natural justice;
• Ensuring the confidentiality of information collected in relation to disclosures and investigations;
• Protecting the identity of persons involved in the disclosure process, subject to any other Act and to the principles of procedural fairness and natural justice;
• Reporting the outcomes of investigations; and
• Any other matter specified in the regulations. 

Moreover, each chief executive will be required to designate a senior official to be the designated officer for the purposes of the Act.  The designated officer will be responsible for receiving and dealing with disclosures by employees in the portion of the public service for which the chief executive is responsible. 

The Act provides that chief executives may be exempted from these requirements if they determine, in consultation with the Ombudsman appointed under the Ombudsman Act, that it is not practicable to apply them due to the size of the portion of the public service for which they are responsible. 

Finally, chief executives will be required to ensure that information about the proposed law and disclosure procedures is widely communicated to employees of the portion of the public service for which they are responsible. 

Disclosure of Wrongdoings

Employees who reasonably believe that they have information that could show that a wrongdoing has been committed or is about to be committed will be allowed to make a disclosure to their supervisor or designated officer or to the Ombudsman.[4] A disclosure will have to be in writing and contain certain information required by the Act.

Moreover, an employee will be allowed to make a public disclosure without following the above procedures if he/she reasonably believes that a matter constitutes an imminent risk of a substantial and specific danger to the life, health or safety of persons, or to the environment and that there is insufficient time to make a disclosure in accordance with the requirements of the Act.  However, the employee will be required to first make the disclosure to an appropriate law enforcement agency or, in the case of a health-related matter, to the chief medical officer of health.  Immediately thereafter, the employee will be required to make the disclosure to his/her supervisor or designated officer.  Finally, the provisions allowing an employee to make a public disclosure will be subject to any direction that the appropriate law enforcement agency or chief medical officer (as applicable) considers necessary in the public interest, if any.  

Restrictions on Disclosure

In making a disclosure under the Act, employees will be prohibited from relating any Cabinet confidences protected under the Freedom of Information and Protection of Privacy Act or any information protected by solicitor-client privilege Moreover, if a disclosure involves personal or confidential information, employees will be required to take reasonable precautions to ensure that no more information is communicated than is necessary to make the disclosure.

In addition to these restrictions on the communication of information, the Act stipulates that a public disclosure concerning an urgent matter may not take place when prevented by or under a Manitoba or federal Act or regulation. 

Request for Advice

The Act provides that an employee who is considering making a disclosure may request advice from the designated officer or the Ombudsman. The request must be in writing if they so require.  

Procedure for the investigation of disclosures by the Ombudsman

The Ombudsman will be responsible for investigating disclosures that he/she receives under the Act.[5]  However, he/she will not be required to investigate a disclosure – and will be allowed to cease an investigation – in the circumstances specified by the Act (e.g. if the Ombudsman is of the opinion that the disclosure is frivolous or vexatious, has not been made in good faith or does not deal with a sufficiently serious subject matter).

Upon completing an investigation, the Ombudsman will be required to prepare a report containing his/her findings and any recommendations about the disclosure and the wrongdoing, and provide a copy of the report to the employee and the appropriate chief executive.[6] The Ombudsman will also be authorized to request that the department, government body or office notify him/her, within a specified period of time, of the steps it has taken or proposes to take to give effect to any recommendations. Furthermore, if the Ombudsman believes that the part of the public service in question has not appropriately followed up on any recommendations or did not cooperate in the investigation, he/she will be allowed to report on the matter to the responsible minister (in the case of a department), to the board of directors and the responsible minister (in the case of a government body), or to the Speaker of the Legislative Assembly (in the case of an office).

Disciplinary action against an employee

The Act stipulates that an employee who commits a wrongdoing is subject to appropriate disciplinary action, including termination of employment, in addition to and apart from any penalty provided for by law.

Protection from Reprisal

A person will be prohibited from taking a reprisal against an employee, or directing that one be taken, because the employee has, in good faith, sought advice about making a disclosure in accordance with the proposed law, made a protected disclosure or cooperated in an investigation under the proposed law.  “Reprisal” will be defined as any of the following measures taken against an employee: a disciplinary measure; a demotion; termination of employment; or any measure that adversely affects the employment or working conditions of the employee.  A threat to take any of these measures will also constitute a reprisal. 

An employee or former employee who alleges that a reprisal has been taken against him/her could file a complaint with the Manitoba Labour Board appointed under the Labour Relations Act.  If the Board determines that a reprisal has been taken against the complainant, it could make an order requiring a person to take all necessary measures to:

·        Permit the complainant to return to his/her duties;

·        Reinstate the complainant or, if in the Board’s opinion the relationship of trust between the parties cannot be restored, pay damages to him/her;

·        Pay compensation to the complainant equivalent to what he/she will have received if, in the Board’s opinion, the reprisal had not occurred;

·        Pay an amount to the complainant equal to any expenses and any other financial losses that he/she has incurred as direct result of the reprisal;

·        Cease an activity that constitutes the reprisal;

·        Rectify a situation resulting from the reprisal; and/or

·        Do or refrain from doing anything in order to remedy any consequence of the reprisal.  

 

Protection for private-sector employees who provide information

Individuals other than employees of the public service will be allowed to make a disclosure to the Ombudsman if they reasonably believe that they have information that could show that a wrongdoing has been or is about to be committed in the public service – provided that the information is in writing and contains certain details required by the Act (e.g. a description of the wrongdoing).  If, as a result of the information, the Ombudsman has reason to believe that a wrongdoing has been or is about to be committed, he/she will be authorized to investigate the wrongdoing. 

A private-sector employer will be prohibited from taking one of the “prohibited measures” specified in the Act against an employee for the sole reason that the latter has, in good faith, provided information to the Ombudsman about an alleged wrongdoing. Employers will also be prohibited from taking such measures for the sole reason that they believe that an employee will provide information.  Under the Act, “prohibited measures” will be defined as follows: any disciplinary measure; a demotion; termination of employment; any measure that adversely affects the employment or working conditions of an employee; or a threat to take any of these measures.

Legal Advice

If a designated officer or the Ombudsman is of the opinion that it is necessary to further the purposes of the Act, they could, subject to any conditions prescribed by regulation, arrange for legal advice to be provided to an employee or any other person involved in any process or proceeding under the proposed law.  

Prohibitions

The Act will specifically prohibit a person from doing any of the following:

• Knowingly making a false or misleading statement while seeking advice about making a disclosure or making a disclosure or during an investigation;
• Wilfully obstructing a supervisor, designated officer or chief executive, or any person acting on their behalf or under their direction, in the performance of a duty under the Act; or
• Destroying, mutilating, altering, falsifying or concealing a document or thing knowing that it is likely to be relevant to an investigation under the Act, or directing, counselling or causing another person to do so.

A person who contravenes one of the prohibitions mentioned above or the provisions that prohibit the taking of reprisals (or prohibited measures) against a public service employee (or private-sector employee) will be guilty of an offence and will be liable, on summary conviction, to a maximum fine of $10,000.

Coming into force

If Bill 34 is passed, the Public Interest Disclosure (Whistleblower Protection) Act will come into force on a date to be announced by proclamation.

Ontario: Family Medical Leave – Prescribed Individuals Regulation under the Employment Standards Act, 2000 (O. Reg. 476/06); Gazetted October 21, 2006

This Regulation expands the list of persons in respect of whom an employee can take family medical leave pursuant to the Employment Standards Act, 2000 (ESA). 

Under the ESA, an employee may take up to eight weeks of unpaid family medical leave to provide care or support to a family member whom a qualified medical practitioner certifies is suffering from a serious medical condition with a significant risk of death within 26 weeks. Before Regulation 476/06 came into effect, an employee could only take such leave in respect of his or her spouse,[7] parent,[8] step-parent or foster parent, or a child, step-child or foster child of the employee or of his/her spouse. Regulation 476/06 prescribes other family members in respect of whom an employee may take leave, including:

• A sibling or step-sibling of the employee;
• A grandparent or step-grandparent of the employee or of the employee’s spouse;
• A grandchild or step-grandchild of the employee or of the employee’s spouse;
• A parent-in-law or step-parent-in-law of the employee;
• A sibling-in-law or step-sibling-in-law of the employee;
• A son-in-law or daughter-in-law of the employee or of the employee’s spouse; 
• An uncle or aunt of the employee or of the employee’s spouse;
• A nephew or niece of the employee or of the employee’s spouse;
• The spouse of the employee’s grandchild, uncle, aunt, nephew or niece; and
• A foster parent of the employee’s spouse.

An employee may also take family medical leave to provide care and support to any person who considers the employee to be “like a family member,” on condition that the employee provide the employer upon its request with a copy of the document provided to the government of Canada for the purpose of claiming compassionate care benefits under the Employment Insurance Act, in which it is stated that the employee is considered to be like a family member.[9] 

As was previously the case, the employee is required to notify the employer in writing that he/she will be taking leave. If the employee must begin leave before advising the employer, written notice must be provided as soon as possible after the leave commences. The employer must also be provided with a copy of the medical certificate as soon as possible upon its request.

The employee may only take leave in the period beginning on the day on which the medical certificate is issued and ending on the last day of the week in which 26-week period referred to in the medical certificate expires. However, if the family member dies before the end of this period, the right to leave ends on the last day of the week in which the death occurs. Family medical leave may only be taken in periods of at least one week. If two or more employees take family medical leave in respect of the same patient, they are required to share the maximum eight-week period of leave.  

If the family member does not die at the end of the 26-week period referred to in the medical certificate, the employee may take another leave, provided the legislative requirements are met. 

This Regulation came into force on October 6, 2006.  

Ontario: Regulation amending Regulation 289/01 (Enforcement) under the Employment Standards Act, 2000 (O. Reg. 475/06); Gazetted October 21, 2006

Under the Employment Standards Act, 2000, the designated authority of a “reciprocating state” listed in Regulation 289/01 (Enforcement) may apply to the Director of Employment Standards for enforcement of an order for the payment of money issued under the employment standards legislation of that state.  If the Director files a copy of the order in an appropriate Ontario court, it may be enforced by the Director or the designated authority of the reciprocating state as an order of that court. 

Effective October 6, 2006, the Province of Newfoundland and Labrador was declared a reciprocating jurisdiction and the Director of Labour Standards was designated as its enforcement authority.  To date, all Canadian provinces and territories – with the exception of Quebec – are listed as reciprocating states in Regulation 289/01 (Enforcement). 

Ontario: Long-Term Care Homes Act, 2006; Bill 140; First reading October 3, 2006

This Bill would repeal and replace the Nursing Homes Act, the Charitable Institutions Act and the Homes for the Aged and Rest Homes Act.  The purpose of this Bill is to establish a system of governance for long-term care homes, based on the principles that a long-term care home is the home of its residents and must be operated so that it is a place where residents may live with dignity and in security, safety and comfort.  Among other things, this Bill would provide for a bill of rights for residents of long-term care homes, establish rules of operation for such homes and provide for inspections and other mechanisms to enforce the legislation. Notably, it would require licensees, staff members[10] and other specified persons to make certain reports to the Director appointed under the Act (hereafter the Director). It would also include provisions to protect “whistleblowers” who disclose information to an inspector or the Director.

Reporting requirements

The licensee of a long-term care home would be required to ensure that there are written procedures for initiating complaints to the licensee and for how it deals with complaints.  A licensee who receives a written complaint concerning the care of a resident or the operation of the home would be required to immediately forward it to the Director.  Furthermore, where a licensee is aware of an alleged, suspected or witnessed incident of abuse or neglect of a resident (or any other matter provided for by the regulations), the licensee would be required to ensure that the incident is investigated immediately and to report the results of the investigation to the Director.

In addition, a person who has reasonable grounds to suspect that certain incidents, such as abuse of a resident or misappropriation of funding, has occurred or may occur would be required to immediately report the suspicion and the information upon which it is based to the Director. It would be an offence for staff members (among others) to fail to make a report as required.[11]  

Where the Director receives information from any source that certain incidents, such as abuse of a resident or misappropriation of funding, may have occurred, the Director would be required to have an inspector conduct an inspection or make inquiries for the purpose of ensuring compliance with the legislation. 

Whistleblower protection

This Bill would prohibit a person from taking, or threatening to take, retaliation against another person, because anything has been disclosed to an inspector or to the Director, including:

• Where a report has been made or where the Director has otherwise been advised of certain activity, such as neglect or incompetent treatment of a resident;
• The Director has been advised of a breach of a requirement under the legislation; or
• The Director has been advised of any other matter concerning the care of a resident or the operation of a long-term care home that the person advising believes ought to be reported to the Director. 

The whistleblower protection would also apply where evidence has been or may be given in a proceeding, including a proceeding for the enforcement of the Act or regulations, or an inquest under the Coroner’s Act. 

Prohibited acts of retaliation would include:

• Dismissing, suspending or disciplining a staff member;
• Imposing a penalty on a person;
• Intimidating, coercing or harassing a person.

Complaints to the OntarioLabour Relations Board

Where a staff member alleges that an employer or person acting on its behalf has contravened the whistleblower protection provisions, the staff member would be able to have the matter settled by final and binding settlement by arbitration under a collective agreement (if any).  Alternatively, the staff member could file a complaint with the Ontario Labour Relations Board (OLRB), to be dealt with pursuant to the Labour Relations Act, 1995.  The OLRB would be authorized to inquire into the complaint and on such an inquiry, the burden of proof would lie on the employer or person acting on its behalf to prove that it did not contravene the whistleblower protection legislation. 

Under the Labour Relations Act, 1995, where a complaint is made, the OLRB may authorize a labour relations officer to inquire into the complaint and endeavour to effect a settlement. If a settlement is not possible, or the OLRB considers it advisable to dispense with an inquiry by a labour relations officer, the OLRB may itself inquire into the complaint. If the OLRB is satisfied that a contravention occurred, it may make remedial orders (e.g. that the complainant be reinstated with compensation). Bill 140 would further stipulate that if the OLRB determines that a staff member has been discharged or otherwise disciplined by the employer for cause, and the collective agreement or contract does not contain a specific penalty for the infraction, the OLRB may substitute another penalty for the discharge or discipline as it considers just and reasonable in all the circumstances.

Offences

It would be an offence for any person to violate the whistleblower protection provisions or to attempt, by any means, to prevent another person from giving information to an inspector or the Director. 

Furthermore, it would be an offence for staff members, licensees and other specified persons[12] to do anything that discourages, or that is aimed at or has the effect of, discouraging a person from doing anything specified by the whistleblower protection provisions (e.g. making a report to the Director or giving evidence in a proceeding).  Such individuals would also be prohibited from doing anything to reward a person for failing to do any of these things.

On conviction, an offender would be liable to a fine of up to $25,000 and/or imprisonment of up to 12 months.  For a subsequent offence, the person would be liable to a fine of up to $50,000 and/or up to 12 months’ imprisonment.  In addition, the court would be empowered to order the offender to pay compensation or make restitution to any person who suffered a loss as a result of the offence.

Other enforcement provisions

Where a licensee violated any of the prohibitions mentioned above, it would also be subject to administrative enforcement provisions.  For instance, the Director could make an order directing that a licensee’s funding be returned or withheld, up to a maximum of $50 per bed per day, for each day that a contravention continues.

Coming into force

If it is passed, Bill 140 will come into force on a date to be announced by proclamation.

Ontario: Regulation amending the Termination and Severance of Employment Regulation under the Employment Standards Act, 2000 (O. Reg. 492/06); Gazetted November 4, 2006

This Regulation will amend the Termination and Severance of Employment Regulation (TSER) under the Employment Standards Act, 2000, to reflect changes to the law of mandatory retirement in Ontario. 

The Human Rights Code of Ontario prohibits discrimination in employment on the basis of age, including forcing a person to retire because of age, in the case of a person who is at least 18 but less than 65 years. As of December 12, 2006, the upper age limit of 65 years will be removed.[13] 

The TSER prescribes a list of employees that are excluded from the notice of termination and termination pay provisions of the Employment Standards Act, 2000. Included in this list are workers whose employment is terminated upon reaching the age of retirement, where this is done in accordance with an established practice of the employer. Effective December 12, 2006, Regulation 492/06 will amend the TSER to further stipulate that the termination cannot contravene the Human Rights Code. 

Therefore, workers will not be entitled to notice of termination or termination pay under the Act where their employment is terminated upon reaching the age of retirement in accordance with an established practice of the employer, provided that the termination does not contravene the Human Rights Code.

Ontario: Terms and Conditions of Employment in Defined Industries – Ambulance Services Regulation under the Employment Standards Act, 2000 (O. Reg. 491/06); Gazetted November 4, 2006

Regulation 491/06 applies to employees who work as emergency medical attendants or paramedics in the industry of providing land or air ambulance services[14] and who are represented by a bargaining agent pursuant to the Labour Relations Act, 1995. It provides special rules with respect to eating and rest periods. 

Under the Employment Standards Act, 2000, employers are generally required to provide employees with a period of at least 11 consecutive hours free from work in each day. However, Regulation 491/06 allows the employer to provide 8 consecutive hours free from work per day, provided that the bargaining agent agrees.

The Act also requires employers to provide employees with an eating period of at least 30 minutes, scheduled so that employees are not required to work more than five consecutive hours without an eating period.[15] However, Regulation 491/06 allows the employer and the bargaining agent to exclude the application of these provisions, provided that they agree on one or more of the following terms that address the right to an eating period:

• Employees are entitled to one or more eating periods that are or may be shorter than what is required under the Act;
• Employees are entitled to one or more eating periods provided at intervals that are or may be longer than required under the Act (including a term that does not specify the intervals);
• Employees are entitled to fewer eating periods than those required under the Act;
• Employees are entitled to eating periods, and/or to compensation or time free from work if eating periods are not provided;
• Employees are not entitled to eating periods, but the employer must make efforts to enable them to take eating periods; 
• Employees are not entitled to eating periods; and/or
• Employees are entitled to or may be given eating periods, but these may be interrupted or missed. 

This Regulation came into force on October 20, 2006. 

Saskatchewan: Bill 1, The Labour Standards Amendment Act, 2006; third reading December 5, 2006

Under the Labour Standards Act of Saskatchewan, employees are entitled to a day off with pay[16] on every public holiday specified by the Act. If they work on the public holiday, they must be paid at 1 ½ times their regular rate of wages for hours worked, in addition to their pay for the public holiday.

Currently, there are nine public holidays in Saskatchewan (i.e., New Year’s Day, Good Friday, Victoria Day, Canada Day, Saskatchewan Day, Labour Day, Thanksgiving Day, Remembrance Day and Christmas Day). Bill 1 will add a tenth public holiday to the Act, the third Monday in February (or “Family Day”). It will also make amendments of a “housekeeping” nature to other Acts in order to reflect the proposed change. 

The Labour Standards Act will continue to allow an employer and a trade union to agree to substitute another working day for any public holiday mentioned in the Act. If employees are not unionized, the Director of Labour Standards may order that any public holiday be observed on a specified working day, if satisfied that the employer and a majority of the employees wish to do so.

If it is passed, Bill 1 will come into force on Royal Assent. 

Saskatchewan : The Saskatchewan Human Rights Code Amendment Act; 2006; Bill 9; first reading November 6, 2006

This Bill would amend the definition of “age” in the Saskatchewan Human Rights Code with a view to ending mandatory retirement at the age of 65 years. 

Currently, the Code prohibits discrimination with respect to employment on the basis of age, including forcing an employee to retire because of age, in the case of a person who is at least 18 but less than 65 years. Bill 9 would remove the upper age limit of 65 years. 

However, the other exceptions in the Code to the prohibition against age-based discrimination will continue to apply (e.g. where age is a reasonable occupational qualification and requirement for the position or employment). Bill 9 also provides that the Code does not prohibit a distinction on the basis of age if that distinction is permitted or required under any Act or regulation in force in Saskatchewan.

Accompanying these changes, the Superannuation (Supplementary Provisions) Act would be amended to provide that an employee cannot be forced to retire at a specific age, regardless of anything stated in that Act or any other superannuation Act. Similar amendments would also be made to the Municipal Employees’ Pension Act, the Public Employees Pension Plan Act and the Public Service Regulations, 1999. 

If it is passed, Bill 9 will come into force one year from the date it receives Royal Assent.

 

  ⁽*⁾This report is based on bills, official gazettes and other pertinent documents received between September 1, 2006and December 5, 2006.

 

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