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Connection between Human Rights Law and Pregnancy

The Canadian Human Rights Act proscribes any kind of discrimination with regards to pregnancy. Pregnancy-related inequity is considered a type of gender discrimination because only the female gender can conceive and carry a child. Unfair practices towards pregnancy like ill-treatment, denial to empl...

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Can a Negative Employment Reference be Considered Defamation?

A letter of reference from a previous employer usually plays the key role of a determinant of whether the candidate in consideration will bag the job he or she really wants. This is the most prevalent method for recruiters to get an elaborate understanding of a candidate’s potential and to authentic...

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Your Rights on Medical Leave

Everyone gets sick at some time or another, and you shouldn’t have to be worrying about your job when you’re trying to get over a serious illness. That’s why Canadian law provides employment protection for workers on medical leave, and it’s important that you know your rights in what can be a stressful and difficult time.

Job Security

As a general rule, your employer can’t fire you for being off work because you’re sick or injured. That’s not the same as saying they have to pay you. Most employers provide a certain number of sick days per year, but this leave is often unpaid. Even if you have paid medical leave, it may run out before you’re well enough to return to work. If you’re suffering from a serious illness or disability, however, you may be entitled to Long Term Disability (LTD) benefits and sick pay through the federal Employment Insurance program.

Due to recent changes implemented by Bill 148 in Ontario, all employees are entitled to take up to 10 days of medical leave per year (Personal Emergency Leave). The first two of these days must be provided with pay if you have been employed for at least one week. Even if you require additional days, your employer can only refuse your request for sick leave in very limited circumstances. That’s because disability is a protected ground under both provincial and federal human rights legislation and cannot be used as a reason for termination.

Long-term Absence

If you’re off work for several weeks or months due to illness or injury, your employer has a duty to accommodate you. That usually includes holding your job for you until you’re ready to return, although they may hire someone to take your place while you’re away.

There are certain limited exceptions to this rule. First, your employer could claim undue hardship. This is very difficult to argue as it means the company would suffer irreparable harm if they had to accommodate your medical leave. Some employers also try to claim that terminating your employment had nothing to do with your illness or disability. If that’s the case, they will have to prove that they had adequate reason to fire you before you got sick or injured.

If your employment is terminated because you’re on medical leave, you should consider pursuing a claim for wrongful dismissal.  It will be up to your employer to prove that your termination wasn’t based on your disability or that they have the necessary grounds to bypass their duty to accommodate.

Return to Work

The employer’s duty to accommodate extends to the terms and conditions under which you can return to work once you’re able. If your doctor recommends “light duties” or a graduated return of two or three days a week, your employer must comply with the absolute best of their abilities. Again, they can only refuse if the accommodation would cause the company undue hardship, either regarding financial loss or work disruption.

Documentation and Proofs

If you take days off based on Personal Emergency Leave in Ontario, your employer isn’t allowed to ask for a doctor’s note except in the limited circumstances defined by the Employment Standards Act. If you’re away for a more extended period of medical leave, your employer is entitled to verify that your absence is legitimate. This means they can ask your doctor to confirm that you are unable to work, but they don’t have a right to know the specifics of your illness or diagnosis. Similarly, they can ask for an estimate of when you would be able to return to work and any conditions that might attach (like reduced hours), but not the specific reasons for those limitations.

If you’re having difficulty applying for LTD or have been terminated while on medical leave, we strongly advise you to seek the assistance of a knowledgeable legal professional. An employer’s duty to accommodate is powerful protection for employees who are off work due to a debilitating injury or serious illness.

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Calculating Overtime Payments in Ontario

Overtime is a premium pay that compensates employees for working more than 44 hours a week. In Ontario, the rules regarding the payment of overtime can be found in the Employment Standards Act (2000). These rules do not apply to federally regulated industries, like, banks or airlines, and there are exemptions for certain other kinds of work. For the most part, however, employees must receive 1.5 times their regular rate of pay for all hours worked that exceed the threshold of 44 hours of work on a weekly basis.

If an employee has an employment contract that sets out the number of hours to be worked every week, overtime pay is due for every hour worked in excess beyond the threshold. For example, an employee with a contract for a 40-hour work week will receive 1.5 times their usual rate of pay for every extra hour he or she works over 40 hours.

Managers and Supervisors

Managers and supervisors are not covered by the overtime rules, but there are very strict definitions concerning who qualifies as a “manager.” In order to be exempted, the worker must perform exclusively managerial or supervisory duties and only do other work on an exceptional basis. Even if the employee is only required to do non-supervisory work for one hour a day, the position cannot be excluded from overtime as that work is performed regularly. For instance, the store manager who also works at the counter over the lunch hour every day would be entitled to overtime if they worked for more than 44 hours in a week.

overtime payment

Salaried Employees

Calculating the “usual rate of pay” depends on whether the employee works a fixed number of hours a week. If an employee is paid a fixed amount every year but has fluctuating work hours, overtime would be payable after 44 hours. Divide the annual salary by the number of pay periods to ascertain their weekly salary, then divide that number by 44 to arrive at their hourly rate of pay. The employee is entitled to 1.5 times this amount for every hour worked in excess of 44 hours in a week.

If an employee has a usual work week of under 44 hours, they receive their normal hourly rate for all hours worked up to 44 (on top of their regular pay), then a 1.5 rate of pay for anything in excess of 44 hours.

Commissions and Multiple Rates of Pay

If an employee earns a combination of wages and commission, the commission portion must be included in calculating the overtime rate. Add together the total amount of wages and commissions that the employee earned for the first 44 hours in the week. Divide that amount by 44 to ascertain their hourly salary for the purpose of calculating overtime.

Some employees earn different rates of pay for doing different jobs. Their overtime payment must be based on the job they were doing while performing the overtime. For example, if an employee makes $14 an hour as a cashier and $12 an hour stocking shelves, they must be paid $14 x 1.5 for every hour of overtime if they were working as a cashier for at least 50% of the overtime hours.

Finally, overtime may be banked as time off in lieu of payment if both the employer and employee agree to this arrangement in writing. In such cases, the employee would receive one and a half hours of paid time off for every hour of overtime worked. The time must be taken within three months of the week in which it was earned, or within 12 months if the employee agrees in writing to this extension.

Contact us today, for any question, clarification about your work rights.

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How Would Ontario’s Proposed “Pay Transparency” Bill Effect Employers and Employees?

Drawing from examples of laws implemented in Iceland, Germany, the United Kingdom, and Australia, proposed legislation in Ontario—referred to as the “pay transparency” bill—aims to end wage inequality between men and women in the province. Laws prohibiting wage discrimination have been in place since the 1950s, yet a significant pay gap between men and women, with estimates as a high as 29 percent in some sectors, persists in Ontario.

The new bill would require large companies to track information regarding compensation gaps between genders, as well as other characteristics of diversity. The companies would then be required to disclose this information to the province.

Under the “pay transparency” bill, salary rate or range must be included on all publicly advertised job announcements. In addition, employers may not ask job applicants about their past compensation and employers are prohibited from taking any adverse action against employees for disclosing or discussing compensation.

If passed, the new law will first apply to public employers before extending to private employers with 500 or more employees, and eventually private employers with 250 or more employees.

Employment Lawyer Toronto

Key Takeaways for Employers

With the introduction of any new employment law, it is important to take proactive steps to ensure full compliance across company policies, procedures, systems, and trainings. If the new “pay transparency” bill is passed, employers with 250 or more employees should:

  • Revise policies and procedures within human resources department to ensure compliance with job announcement requirements.
  • Implement a system for tracking employee compensation packages to reflect characteristics of gender and other diversity characteristics to ensure compliance with tracking and reporting requirements under the new law.
  • Track forms of compensation other than wages, such as stock options and other perks, to ensure equality of compensation packages as a whole.
  • Develop or revise internal ethics policies to prohibit any retaliatory or adverse employment action in response to employee disclosure or discussion of compensation.
  • Develop and implement company-wide training on the requirements of the new “pay transparency” bill, as well as the new policies and procedures implemented within the company to ensure compliance.
  • Include training sessions for managers and human resources regarding their responsibilities under the new law, as well as employee-wide training to educate employees about their rights.

 

Key Takeaways for Employees 

As an employee in the Province of Ontario, this new legislation—if passed—will expand your rights in the workplace and, hopefully, accomplish its goal of narrowing and eliminating the wage gap between men and women in the workplace. Under the “pay transparency” bill:

  • You are entitled to information on salary rate or range as a job applicant.
  • When interviewing for a new job, your prospective employer is not allowed to ask you about your salary history with former employers.
  • Although, through the tracking and reporting requirement, the new law creates an enforcement mechanism for existing anti-discrimination laws, you are still able to report wage discrimination in your workplace.
  • Your employer may not prohibit you from discussing compensation with your co-workers or disclosing your salary and compensation package to anyone.

Contact an experienced employment lawyer: Rahul Soni for the right representation.

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A New Minimum Wage in Ontario

Determining the minimum wage in Canada is a provincial responsibility and the minimum amount an employer must pay for an hour’s work varies from province to province. Currently, Alberta is the only province in the country to award a $15 an hour minimum to all workers, but recent changes to the Ontario legislation are designed to reach the same threshold in January 2019. Saskatchewan occupies the bottom rung on the ladder with a $10.96 minimum but is only 4 cents behind the $11 minimum in Nova Scotia, New Brunswick and Newfoundland. Employees who fall under federal jurisdiction receive the minimum wage of the province or territory where they work.

The Road to $15 in Ontario

A minimum wage was first introduced in Ontario in 1920 to protect earnings from inflation and encourage entry into the labour force. Minimum wage provisions are now included in the Ontario Employment Standards Act and the rate itself forms part of this legislation’s regulations.  There is no mechanism, however, for reviewing or increasing the minimum wage on a regular basis. Historically, it has been both frozen and increased in accordance with the wishes of the government, the state of the economy, and intense lobbying from labour groups and other stakeholders.

Just over half of minimum wage earners in Canada are between 15 and 19 years of age. Women are disproportionately affected by changes in the rate as 8% receive the legislated minimum compared to just 5.5% of the male workforce. One in five minimum wage earners holds less than a high school diploma, and the same number work part-time. Additionally, over 40% of those receiving a minimum wage work in the retail, food and accommodation industries.

Between 1995 and 2003, the minimum wage in Ontario was frozen at $6.85 an hour. Between 2004 and 2010, it rose in graduated steps to $10.25 where it remained from March 2010 until January 2018. The rate currently stands at $14 but will rise to $15 an hour on January 1, 2019. The only workers in the province who continue to receive less than the stipulated minimum are liquor servers ($12.20), students under 18 ($13.15) and fishing and hunting guides ($70 per day). Those who do paid work in their own home for an employer receive slightly more than the general minimum wage with a floor of $15.40 an hour.

minimum wages

Enforcement Measures

The Ontario government has indicated that it will remain vigilant in enforcing the new minimum wage provisions. It plans to hire up to 175 additional employment standards officers and has streamlined the process of registering a wage complaint. The government has also launched an education program to ensure that both employers and employees understand and abide by their new rights and obligations.

Impact of the New Minimum Wage

Perhaps unsurprisingly, additional wage costs are being swiftly passed along by business owners to their customers. In Ontario, the cost of eating in a restaurant rose by 1.9% within the month of January, almost twice the increase seen in other provinces. Child care and housekeeping services also rose by 5.9% in a sector dominated by minimum wage earners. A drop in overall jobs in the province in the same month, however, was unrelated to the rise in the minimum wage as these losses were in higher-paid sectors of the workforce.

The new rates have also had an impact on workers who were earning slightly above the minimum wage threshold before the changes came into effect. Many of these workers also saw an increase in pay to maintain the pay differential they enjoyed based on experience or added credentials.

The extent to which employees benefit from an increase in the minimum wage will very much depend on whether they are able to keep the same terms and conditions of employment they enjoyed before the wage increase. The Tim Hortons Franchise decision to reduce other employee benefits rather than pass the cost of the increase along to its consumers caused an immediate furor. The Ontario Premier accused the chain of bullying its workers and the Canadian icon is now coping with an unprecedented blow it its image, popularity and overall sales.

The minimum wage is set to increase again on January 1, 2019 to reach $15 an hour province-wide. The government is confident that twelve months will provide sufficient lead-time for the economy to adjust to the increased cost of doing business in Ontario.

The ruling has ruffled many feathers and confused a lot of employees and employers alike since many were left confused by the ruling. It is important for all those who are in a state of dilemma to be fully aware of the terms and its implication. Time will tell if the move to introduce the new minimums is a successful one or not but for now the residents of Ontario are embracing it and continue to move ahead with their lives.

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Municipalities Should Focus on Why over How Much

The Ontario legislature is considering ways to reduce municipal insurance premiums; unfortunately, it may be at the expense of your legal rights. Recently, Julia Munro, PC MPP for York Simcoe, stated that “medium-sized municipalities, similar to the town of East Gwillimbury . . . have seen an average increase of 35% in liability insurance premiums.” Provincial politicians are looking at using legislation to limit compensation for victims of municipal negligence.

Currently, the legal rule of joint and several liability allows completely innocent victims of municipal negligence to collect their entire damages award from any defendant found liable. For example, a completely innocent victim is involved in a winter car accident due to an unknown hit-and-run driver’s negligence and the municipality’s negligent road maintenance. Here, the court grants the victim a damages award and attributes liability to the unknown hit-and-run driver and the municipality. The victim can choose to collect the entire damages awarded from the negligent municipality. The legal principle behind joint and several liability is that an innocent victim should be wholly compensated and not suffer due to a defendant’s inability to pay. If the victim’s injuries are severe enough, it may be that the only way the victim can be made whole is by being compensated by the municipality.

It is important that municipalities use their limited funds efficiently. But the solution to reducing municipal insurance premiums is not using legislation to strip victims of their rights; the solution is to reduce negligent municipal activity. Governments should not insulate themselves from responsibility when their actions hurt someone. It is important to remember that joint and several liability impacts a municipality only if was negligent. Our municipalities do not need convoluted protective legislation to control how much they pay in insurance premiums. Instead, our municipalities need to work towards their legal obligation of providing us with safe communities – in turn responding to the real reason for why they are paying higher insurance premiums.

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Ontario Court Looks at Private Facebook Photograph Rules

Personal Injury lawyers may want to change their Examination for Discovery strategy based on the following new cases: Stewart v. Kempster, 2012 ONSC 7236 and Garacci v. Ross, 2013 ONSC 562. Both cases suggest that plaintiffs may not have to disclose their private Facebook photographs even if there is a claim for pain and suffering or loss of enjoyment.

The Stewart case noted that the disclosure standard has increased from the “semblance of relevance” test to the stricter “relevance” test. Here, the defendant brought a motion for the plaintiff to produce private Facebook photographs on the grounds that “all vacation photographs are relevant because the plaintiff . . . put her enjoyment of life and participation in social and recreational activities in issue.” The Court held that “(a)n injured person and a perfectly healthy person are equally capable of sitting by a pool in Mexico with a pina colada in hand. A (private Facebook) photograph of such an activity has no probative value.” The Court dismissed the defendant’s motion.

In the Garacci case, the plaintiff alleged that she suffered a left leg injury including a left leg fracture. At discovery, she stated she could not do many former activities but did not claim “total disability” or “that the accident has completely prevented her from participating in certain athletic and social activities.” The defendant brought a motion for the plaintiff to produce 1,100 private Facebook photographs. The Defendant argued that that the private Facebook photographs should be disclosed because there were 12 publicly viewable photographs showing the plaintiff “socializing with friends, having dinner and drinks, kneeling on the ground, climbing a tree and wrestling a friend to the ground.” Master R.A. Muir ruled that no public Facebook photograph “actually show(ed) (the Plaintiff) engaged in any kind of significant physical activity.” So, Master R.A. Muir dismissed the defendant’s motion.

Plaintiff lawyers may use these new victim-friendly cases to “refuse” or “take under advisement” any defendants’ requests for victims’ private Facebook photographs.

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Humpty Dumpty’s Philosophy on Compensatory Damages

Victims get compensatory damages in order to return them back to the same position they were in before the injury. This basic Tort law concept is taught to law students – and it is wrong. Often, victims cannot “return” to their pre-injury condition.

The nursery rhyme of Humpty Dumpty shows my point. Humpty Dumpty was an egg who fell off a wall. He broke his shell so badly that none of the king’s horses or the king’s men could fix him. Humpty Dumpty would never be put back together again.

At best, compensatory damages are a substitutional remedy for a victim’s injuries. They cannot restore a person’s amputated arm, damaged brain, or lost life. They are not the judicial system’s Lotto 6/49. Compensatory damages are given, in paper money form, as a substitute for a victim’s real-life suffering.

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Ontario Court of Appeals Gives Clarity to “Catastrophic Impairment”

The Ontario Court of Appeals recently clarified the meaning of “catastrophic impairment” under Ontario’s Insurance Act.

In Pastore v. Aviva Canada Inc., Mrs. Anna Pastore was a pedestrian who suffered a lot of pain because a car hit her.  Mrs. Pastore applied for enhanced accident benefits due to her catastrophic impairment.  Her insurance company, Aviva Canada Inc., argued they did not have to pay her enhanced benefits because her injuries did not meet the definition of “catastrophic impairment.”

The Ontario Court of Appeals said that  accident victims can have an injury qualified as a  “catastrophic impairment” if it was due to by a mental disorder that caused a “marked or extreme functional impairment” in one of the following:

(1) Activities of daily living;

(2) Social functioning;

(3) Concentration  consistence, and pace; or

(4) Deterioration or decomposition in work or work-like settings.

Here is a link to the decision: Pastore v. Aviva Canada Inc.

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