CTV Kitchener Cuts Sports Division: Will Kitchener Employment Lawyers Soon Have Their Hands Full?

Earlier this year, CTV announced cuts to local news stations around the country. Among the cuts were the long-standing sports division of CTV’s Kitchener branch.

The end of local sports programming is a sad loss to a community and its fantastic varsity teams, but the loss is surely greater to the three full-time and five part-time employees who now find themselves without work. The union representing the employees says it will soon meet with the station to try and get the best deal for these workers.

So, will those former CTV employees soon be knocking on the doors of Kitchener employment lawyers?

As with all things legal, it depends on the circumstances.

Terminating Employment in Ontario

At common law, both employers and employees have the right to end the employment contract at any time without cause by giving notice of termination or pay in lieu of notice. Since the CTV Kitchener employees were laid off as part of company re-structuring, it’s safe to assume the employer did not have cause to dismiss.

When it comes to terminating employment without cause, the employer has two options:

  1. Give the employee working notice; or
  2. Compensate the employee in lieu of notice, in an amount equivalent to the pay and benefits the employee would have earned during the required notice period.

There are two standards for how much notice (or pay in lieu) an employer must give someone: the minimum standards under the Employment Standards Act (ESA), and the common law factors that impact reasonable notice.

Notice Under the Employment Standards Act

In general, the longer an employee has been with the company, the more notice he or she gets under the ESA. Under s.57 of the act:

  • Under three months’ employment = no notice (this is known as the “probationary period”)
  • Three months to one year’s employment = one weeks’ notice
  • Between one and three years’ employment = two weeks’ notice
  • For each year over three, add one week’s notice to a maximum of eight weeks

The standard changes in situations where an employer terminates 50 or more employees in a four-week period. Under those circumstances, notice required depends on the number of employees terminated in the period:

  • 50-199 employees = 8 weeks’ notice
  • 200-499 employees = 12 weeks’ notice
  • 500 or more employees = 16 weeks’ notice

Certain employers must also pay severance in addition to any termination pay. As summarized by the staff at a law firm in Kitchener:

“The Act also provides an employee with five or more years of service to severance if the employer has an annual payroll of 2.5 million or more. Severance is one week’s salary for each year and partial year of service up to a maximum of twenty–six weeks.”

Reasonable Notice

Employees may be entitled to more than the minimum notice required under the ESA depending on other factors. Today, courts also consider the following factors in determining reasonable notice:

  • Character of employment
  • Length of service
  • Employee’s age
  • Availability of similar employment, looking at the employee’s training, experience, and qualifications
  • Employer’s policy or practice on reasonable notice
  • Industry customs

Though there is no hard limit to reasonable notice, courts have generally applied an upper limit of 24 months.

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Judge Orders Child Support for Disabled Adults in Ontario

A recent ruling opened the door for parents to obtain child support for disabled adults over the age of 18 in Ontario.

Constitutional Challenge to Ontario’s Child Support Law

The case of Coates v. Watson involves a single mother Robyn Coates and her adult son. Coates’s 22 year old son is developmentally disabled, requiring her continued financial support to get by. She challenged the law that allowed her son’s estranged father, Watson, to stop paying child support when their son turned 18.

Under s.31 of Ontario’s Family Law Act, child support obligations end when the child is 18 or no longer in school full-time. That was the case in Coates v. Watson. 

However, the federal Divorce Act allows parents of disabled children over 18 to continue to collect child support – so long as the parents were at one point married. The fact that Coates and Watson never married meant their son was not eligible for child support past 18.

This discrepancy was the point Coates and her lawyer challenged in court. As it stood, the law afforded more rights to children of divorced than those whose parents never married.

Coates and her lawyer argued that children in the latter group should enjoy the same rights as the former. The lawyer representing Watson, on the other hand, argued that it it’s up to society as a whole, not parents, to care for disabled adults.

The Decision in Coates v. Watson

On July 7, Justice Sullivan ruled that s.31 of the Family Law Act was unconstitutional because it “widens the gap between historically disadvantaged groups and the rest of society.”

“Even if the perfect public supports were in place for people with disabilities, the legislative regime here denies access to child support to ‘illegitimate’ children in contrast to ‘legitimate’ children, sending the message that the claimant families are less worthy of respect, concern and consideration.”

The decision is the latest to expand the definition of what it means to be a “child” for the purpose of child support.

Family law provides a fascinating insight into changing social mores. Marriage and child-rearing are most intimate and important areas of our lives, and the state of family law is often a reflection of society as a whole. This decision, for example, reflects heightened awareness of the challenges facing families with disabled adults.

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Khadr Settlement Follows in the Footsteps of British and Australian Governments

Canada will pay Omar Khadr over $10 million to settle his lawsuit against the government for breaching his Charter rights. Though the decision is controversial, it isn’t unprecedented in the Commonwealth world.

Omar Khadr is a Canadian citizen. At 15 years old, he participated in a firefight with American soldiers in Afghanistan. During the battle, American solider Christopher Speer died from a grenade blast. Captured and brought before a military commission in 2010, Khadr plead guilty to throwing the grenade.

While imprisoned in Guantanamo Bay, Khadr suffered torture at the hands of his American captors. He was not allowed to speak to a lawyer. He claims he took the plea deal as a way out.

As a citizen of Canada, Khadr is protected by the Canadian Charter of Rights and Freedom. That includes the right to life, liberty, and security of the person. The Supreme Court of Canada ruled that Canada violated his rights by being complicit in Khadr’s torture and imprisonment at Guantanamo Bay.

In response, Khadr sued the Canadian government for $20 million. Rather than fight him in court, the Trudeau government chose to settle the case for half that amount.

This was a difficult calculation for the government to make. On one hand, Khadr’s legal affairs have already cost us over $5 million. The lawsuit would have cost taxpayers millions more, and that’s not including the $20 million in damages Khadr claimed.

But Canadians are far from welcoming of this decision. An Angus-Reid poll showed 71% of respondents thought the government should have fought the case to the end. Interestingly, 74% also believe Khadr should have been treated as a child soldier rather than a terrorist, seeming to acknowledge Canada’s wrongdoing while denying its responsibility to pay damages.

While the decision is highly controversial, Canada isn’t the first government to pay out settlements to citizens who were imprisoned at Guantanamo. In 2010, Australia settled with Mamdouh Habib, an Australian who was captured and transferred to Gitmo following the September 11 terrorist attacks. Britain gave the equivalent of $30 million to 16 citizens in similar cases that same year.

What is different about Canada’s decision is the government’s willingness to acknowledge wrongdoing. Britain and Australia both settled begrudgingly. Britain claimed it was necessary to avoid disclosing sensitive information. Australia continues to deny involvement. But the Canadian government has not only owned up to its complicity in Khadr’s imprisonment, but has apologized to him.

In a statement last week, Justice Minister Jody Wilson-Raybould said, “I hope Canadians take away two things today: First, our rights are not subject to the whims of the government of the day. Second, there are serious costs when the government violates the rights of its citizens.”

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Should Canada Suspend the Safe Third Country Agreement?

safe third country agreement

Refugee and human rights activist groups in Canada have denounced the Safe Third Country Agreement.

It has been six months since President Donald Trump signed the executive order known as the “travel ban.” President Trump also suspended the United States refugee program. These changes sparked a sharp increase in the number of refugee claimants and illegal immigrants crossing the border into Canada illegally, many citing fears over their future in the United States.

These claimants chose to enter Canada illegally to dodge the provisions of the Safe Third Country Agreement, a law requiring refugees who arrive in the United States to make a claim there instead of in Canada.

Now that the United States Supreme Court has temporarily reinstated large portions of Trump’s executive order, there are renewed calls for Canada to suspend the Safe Third Country Agreement.

What is the Safe Third Country Agreement?

Following the 9/11 terror attacks, Canada developed a Smart Border Action Plan that included new laws regulating refugee claimants. As part of this plan, the United States and Canada agreed to the Safe Third Country Agreement. It became Canadian law under the Immigration and Refugee Protection Act in 2004.

Section 101(1)(e) of the Agreement provides that a person is ineligible to be assessed for refugee status if they came to Canada from a country designated as “safe” under the regulations. Canada and the United States both deem one another “safe” countries under their respective immigration laws.

Essentially, it means that a refugee has to make a claim in whichever of the two countries they arrive in first. If you disembark in the United States, you have make a claim there, not in Canada. Show up at a Canadian border crossing and you’ll be denied (unless you fall under a narrow exception.)

This was meant to better manage the flow of refugees into both countries.

Impact of the Trump Presidency

Since January 2017, Canadian police have arrested over 3,000 people crossing the border illegally. Since the would-be refugees arrived in the United States first, they cannot make a claim at a legal crossing, and this leads them to take the clandestine route instead.

Refugee and human rights activist groups in Canada began to denounce the Safe Third Country Agreement when this phenomenon began back in January. The Canadian Parliament debated the issue, but chose not to act. But the heat is back on now that the travel ban is up and running again.

Challenging the Agreement in Court

Some activists argue the United States should no longer be designated a “safe” country for refugees, which would essentially nullify the Agreement. Under s.102(1), the Governor in Council may determine whether a country is safe based on the four requirements:

  1. Whether the country is party to the United Nations 1951 Refugee Convention, and the 1984 Convention Against Torture;
  2. Whether the country has policies and follows its obligations under the above conventions;
  3. The country’s human rights record; and
  4. Whether the country shares responsibility with Canada with respect to claims for refugee protection

The United States is party to both UN agreements. It has an agreement with Canada to deal with refugee claims. That leaves one avenue of appeal: human rights.

According to the Canadian government, “The United States meets a high standard with respect to the protection of human rights. It is an open democracy with independent courts, separation of powers and constitutional guarantees of essential human rights and fundamental freedoms.”

In light of recent events, I’d bet some people would beg to differ.

The Supreme Court of Canada has already dismissed one case where someone challenged the United States’ designation as a safe country back in 2009. But new circumstances could mean a new challenge to the law in the future.

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Government Suspends Law That Would Let Canadians Sue for Spam

private right of action

CASL would have allowed Canadians a private right of action against spammers.

On June 7, 2017, the Canadian government suspended the portion of Canada’s Anti-Spam Legislation that would have allowed Canadians to sue companies who send electronic spam messages without permission. The provision was set to take effect on July 1, 2017.

What is CASL?

Most of the provisions in Canada’s Anti-Spam Legislation (CASL) came into force back on July 1, 2014. The law’s official title is, An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act.

CASL regulates a range of malicious electronic activity, including malware and phishing. The ‘spam’ section sets rules for how and when people and businesses can send commercial electronic messages, like marketing emails, to recipients in Canada or Canadians abroad.

Rules for Electronic Messages Under CASL

In short, you can only send a commercial electronic message to someone if:

  1. You have the recipient’s consent to send them commercial electronic messages;
  2. The message identifies you and contains up-to-date contact information; and
  3. You give the recipient an easy way to ‘unsubscribe’ from the commercial electronic messages.

There are plenty of rules and requirements within those three points, such as what constitutes consent and what exactly the message must contain. But that’s the basic idea of the law. If you want to send someone a newsletter, a coupon, an advertisement, or another commercial message via the Internet or SMS, you need their permission.

Any message that falls short of those requirements is spam.

Penalties for Violating CASL

People and companies who break the law can face substantial fines form the Canadian Radio-Television and Telecommunications Commission (CRTC). The max fine for individuals is $1 million per violation, while corporations can pay up to $10 million. Officers, directors, and agents who authorize or participate in a violation may be held personally responsible.

If that’s not scary enough, CASL was also set to allow individual Canadians to sue spammers in civil court. That’s the part of the law the government suspended at the last minute on June 7th.

But what would have been so bad about that? No one likes a spammer. Wouldn’t it be sweet to enact some civil revenge on those who pollute our inboxes with nonsense?

The problem is statutory damages.

Problems with the Private Right of Action Under CASL

When you sue someone in court, you normally have to prove that the amount you’re suing for (the ‘damages’, in legal terms) accurately reflects the loss you suffered as a result of the person’s actions. If your neighbor backs over your $500 BBQ, you won’t be successful suing them for $1,000. You might not even succeed in getting $500, unless you can prove it’s worth that much.

That all changes when it comes to statutory damages. Statutory damages are minimum damages set out in the law that count on top of your actual damages. So you could potentially get the value of your claim plus the statutory amount.

CASL set statutory damages for spam messages at $200 per violation (meaning per message) to a maximum of $1 million per day. This meant that Canadians with unwanted spam messages in their inbox could potentially have been sitting on spam worth hundreds or thousands or even millions of dollars. Many commentators predicted there would be massive class action lawsuits on behalf of spam recipients once the private right to action came into effect.

This is excessive, to say the least.

Spam is annoying, unwelcome, and poor practice for marketers. But is it worth suing over? In most cases, no. It is a far better use of our tax dollars to pursue violators with fines than it is to litigate in our already backlogged court system.

The government made the right move in this case. If the private right of action is to return, it should be without the statutory penalty.

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Bill C-16 Infringes on Freedom of Expression, As It Should

Ontario Government to test guaranteed basic income

Human rights are a balancing act.

Rights can intersect, overlap, and conflict in unexpected ways. It has always been this way, and it will continue to be a challenge as our values change and evolve over time. Protecting one person’s rights often means infringing on the rights of another.

This doesn’t mean the law is broken. It just takes work. The court has established a framework for determining when it’s acceptable for the law to infringe on the Canadian Charter of Rights and Freedoms, and a vast body of precedent on how to apply it in different cases.

Section 2(b) of the Charter protects the right to “freedom of thought, belief, opinion and expression, including freedom of the press and freedom of communication.” In other words, free speech. The law recognizes that freedom of expression is essential in a free and democratic society. But no Charter right is absolute, and s.2(b) is no exception.

We limit freedom of expression in various ways. For example, we recognize that maintaining public safety and order is more important than protecting one’s right to yell “fire” in a crowded theatre. In the landmark case of R. v. Keegstra, the court determined it was reasonable to limit one’s right to promote hatred against an identifiable group (the case involved a high teacher who was criminally charged for teaching his students racially prejudiced material.)

We have also come to agree, as a society, that it is important to protect vulnerable groups of people from discrimination and harassment. To that end, each province has human rights legislation that ensures people are not unfairly barred from opportunities in employment, housing, education, or business because of who they are.

There is also federal human rights legislation, which covers federally-regulated and inter-provincial industries like airports and the military.

On June 16th, the Senate passed Bill C-16, which adds gender identity and gender expression as protected grounds under the federal Canadian Human Rights Act. This addition is meant to protect individuals who are transgender, transsexual, or intersex, or whose gender identity or expression is different from their birth sex, from discrimination and harassment.

Bill C-16 has drawn controversy for limiting freedom of expression. In a particularly inflammatory editorial, Bruce Pardy of the National Post warns that under the new law, “failure to use a person’s pronoun of choice — “ze,” “zir,” “they” or any one of a multitude of other potential non-words — will land you in hot water with the commission. That, in turn, can lead to orders for correction, apology, Soviet-like “re-education,” fines and, in cases of continued non-compliance, incarceration for contempt of court.”

The commission to which he refers is the Ontario Human Rights Commission. To his credit, the Commission has in fact stated that refusing to refer to a transgender or gender non-conforming person’s chosen name and pronoun could constitute discrimination under the Code.

But his predictions are absurd. Ontario quietly added gender identity and gender expression to its human rights legislation four years ago. This has not caused a flood of human rights applications related to pronouns, nor has it resulted in the Commission brainwashing people.

Words incite action. It’s why we saw fit to ban hate propaganda, even when it does explicitly refer to physical violence. The choice to forego using a person’s chosen name or pronouns sends a deliberate message, attacking a person’s dignity in much the same way as a racial or homophobic slur.

Like provincial bills addressing this issue, Bill C-16 will likely receive royal assent and become law without consequence. It will not usher in a new era of censure.

This is just how human rights work.

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Liberals Have Big Plans for Child Care in Ontario

The provincial government plans to create 45,000 new licensed spaces for child care in Ontario.

Another week, another major policy announcement from the Liberal government. This time, it relates to child care in Ontario. The minister of Early Years and Child Care announced a $1.6 billion plan to create 45,000 new licensed day cares in the province last week.

Though the plan is scant on details, the minister claims it will set Ontario, “on a path towards a universally accessible child care system.” The plan would be rolled out over the next five years.

The Cost of Child Care in Ontario

Like hydro and housing costs, early child care has become an increasingly painful thorn in the side of Ontario families. Fees have gone up an average of 8% since 2014, with median monthly fees reaching up to $1,649 for child care in Ontario. For some families, it costs more each year to send their kids to daycare than to university.

The billion-dollar plan aims to increase access to high-quality, licensed child care by funding new daycare spaces and providing subsidies to families in need. The government has also said it will consider changing the threshold for subsidies, which are currently unavailable to most middle-income families.

The cost of child care has been an issue for years now, but it has been difficult to ignore in light of recent events. In April, an unlicensed childcare provider was convicted in the death of a 2-year-old girl. The home daycare had operated for years without the required licence. The girl’s parents, along with those of the other 35 children who crowded the home, could not afford to place their children in a licensed facility.

Will the Plan Work?

Few would argue that the current state of licensed child care in Ontario is feasible, with families shelling out as much or more for daycare than they are for their monthly mortgages. But to some, the timing of this announcement is suspect.

This marks the third big-ticket policy move from the Liberal government in just a few months. The government made changes to residential tenancy law to protect renters in the province back in April. It also announced plans to bring in universal pharma-care for people under 25 years of age. Now, Kathleen Wynne has promised $1.6 billion to help families afford child care.

Regardless of whether you support these initiatives, it’s hard not to see it as a cynical appeal to voters in the upcoming provincial election. The campaign doesn’t start when the writ drops —in fact, it seems that it never stops in the first place.

A five-year child care plan can only come to fruition if the Liberals form the next government. It’s unlikely the Progressive Conservatives would keep the ambitious and expensive program if they came to power in Ontario. With the Wynne government trailing in the polls, parents and parents-to-be would be warned against banking on this promise.

We saw the same thing back in 2006, when the federal Liberals lost out to Stephen Harper’s Conservatives. A year prior, then-PM Paul Martin made plans to invest $5 billion in a universal child care system across Canada. That plan was snuffed just as soon as Harper ascended to power. There has been little talk of a Canada-wide childcare plan since then.

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How the Changing Workplaces Review Could Impact Ontario Employment Law

Ontario employment law

The Changing Workplaces Review recommends 173 changes to Ontario Employment Law.

On May 23rd, 2017, the Ontario government released the recommendations of the Changing Workplaces Review. The Review was launched two years ago to research and identify areas of change in Ontario employment law, particularly the Employment Standards Act (ESA) and Labour Relations Act (LRA). Now, labour leaders and business leaders are debating the merits of these potential changes to Ontario workplaces.

The focus of the Changing Workplaces Review was how work has changed in the province since the last major reforms in 2000. In particular, the Review zeroed in on the rise of ‘precarious’ employment arrangements, which were non-standard twenty years ago but are now the norm for millions of Ontarians. While the number of full-time positions are decreasing, part-time and temporary contract work is on the rise. As Finance Minister Bill Morneau said last year, we have come to accept that people are moving from job-to-job and re-training throughout their careers.

In the end, the Changing Workplaces Review sets out a whopping 173 recommendations for changes to Ontario employment law, many of which aim to address the reality of precarious work conditions. The government does not need to implement these changes, but the Review will nonetheless set the stage for the debate around employment law in the 2018 provincial election.

Let’s look at some changes that could impact the most people in Ontario.

Equal Pay for Full and Part-Time Employees

There is nothing in the law that prevents employers from paying part-time, contract, and temporary employees less than full-time employees for performing the same job. With the rise in precarious work, this has created a serious disparity in some workplaces. . The Review recommends the ESA be amended to provide that employers cannot pay part-time employees at a lower rate than comparable full-time employees. The exception would be if there is another reason to pay part-time employees less, such as a seniority system, a merit system, a system that measures earnings by quality or quantity of production.

Increase Vacation Pay

Today, the ESA entitles most employees to receive two weeks of vacation for each 12 months of employment and vacation pay equal to at least 4% of wages earned during that year. The Review recommends increasing that to three weeks and at least 6% vacation pay for employees who have been with the same employer for five years.

More Sick Days

Employers who have over 50 workers must give their employees at least 10 days of unpaid, job-protected leave to deal with sickness, injury, or certain other personal emergencies. The ESA calls this ‘Personal Emergency Leave.’ The Review suggests all workers should receive seven days of sick leave, plus three days of bereavement leave (to deal with the death of a family member). Additionally, if the employer demands a doctor’s note from the employee to prove that he or she is sick, the employer should be obligated to pay for it.

Repeal Two-Tiered Minimum Wage for Students and Liquor Servers

Currently, the minimum wage for students under 18 and people who serve alcohol is currently lower than the overall minimum wage ($10.70 per hour for students and $9.90 for servers, instead of the overall minimum of $11.40). This disparity mainly impacts women.

The Review recommends eliminating this two-tired minimum wage system and entitling students and severs to collect the full minimum wage. However, it suggests these changes would be phased in over three years rather than taking effect immediately.

More Rights for Interns

Currently, employees classified as interns or trainees are exempt from many of the protections under the ESA. The Review recommends repealing that section of the act and treating interns the same as other employees.

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