Why is it Time to Fix the Discriminatory EI Regime? Because It’s 2016.

New Year’s Eve is a time of resolution making. Most people take this time to reflect on the year past and look ahead to what they wish to achieve in the year ahead. I am no different.

In 2015, I started work on a project in an attempt to have the Employment Insurance regime amended. Specifically, I believe that the provisions governing maternity/parental leave should be removed from the EI regime and made a stand-alone system. (Standard disclaimer that this is a personal opinion, which may not necessarily be shared by the firm that employs me.) In starting this process I wrote the following executive summary:

By placing the provisions of income replacement benefits for new and expectant parents within Canada’s Employment Insurance regime, the current law creates unexpected and discriminatory consequences for parents who lose their employment either during or shortly following the taking of maternity and/or parental leave. Such a regime would likely not withstand judicial scrutiny in the face of the Federal Court of Appeal’s decision in Canada (Attorney General) v. Johnstone. While the societal benefits of providing publicly funded income replacement benefits to new and expectant parents cannot be challenged, by associating the provision of such benefits with the provision of benefits for the unexpected loss of employment, the present law defeats the intended purposes of both regimes. The recommended solution to this problem is to disassociate the provision of income replacement benefits for new and expectant parents from the Employment Insurance regime, by creating a new regime exclusively for the provision of such benefits.

From there I set about drafting a paper that would address the problems with the current system. It is still a work in progress. The EI system is complicated and has evolved over time, through a series of governments of different political stripes.

Canada now has a new government. New governments, like new years, bring change with them. Whether this government will be interested in such a proposal I cannot say.

What I can say is that the current EI system is broken. Too many people lose their employment as a result of taking time off for maternity and/or parental leave. Changes to the EI regime will not change that unfortunate fact. However, by changing the EI regime insult will not be added to injury.

Thus my resolution for 2016 is this: First and foremost finish what I started, i.e. the paper. Second, find a way to have this idea placed onto the national agenda.

If you’re interested in this project and want to help, please email me at sbawden@kellysantini.com. Assistance can come in any manner of ways, from legal research, to writing, to editing, to public relations. We have all skills and talents.

Happy New Year, dear reader. Why is it time to fix this problems with the EI system? Because it’s 2016.

Law & Order: Special Victims Unit - How the Human Rights Code is Changing Ontario Employment Law

What can the American television programme Law and Order teach us about employment law in Ontario? Not a lot, really. But the opening line from the Special Victims Unit franchise does illustrate one point, which will be of increasing focus in the coming years:

In the criminal justice system, sexually-based offenses are considered especially heinous. In New York City, the dedicated detectives who investigate these vicious felonies are members of an elite squad known as the Special Victims Unit. These are their stories.

Why do I reference Law and Order SVU on an Ontario employment law blog? Because if the opening words of that show teach us anything, it is that different crimes are treated differently by the justice system. Nowhere in the Ontario employment law context is this disparate treatment more acute than with respect to the issues of workplace harassment and discrimination.

Let us compare and contrast two decisions, both from the Court of Appeal for Ontario: Piresferreira v. Ayotte, 2010 ONCA 384 (Cronk, Lang and Juriansz JJ.A.) and Partridge v. Botony Dental Corporation, 2015 ONCA 836, (Laskin, Pardu and Roberts JJ.A.)

Decision to Breastfeed a “Personal Choice”, which Need Not be Accommodated: Federal Court of Appeal

Earlier this year I wrote about a decision of the Public Service Labour Relations and Employment Board (“PSLREB”), in which Member Augustus Richardson held that an employee’s work requirements that impacted on that employee’s breastfeeding schedule did not constitute discrimination on the basis of either sex or family status. See: Employers Need Not Accommodate Employees “Choice” to Breastfeed - PSLREB.

Now the Federal Court of Appeal has judicially reviewed that decision and a panel of three judges (two women and one man) upheld it.

In its decision rendered November 10, 2015, (Flatt v. Canada (Attorney General), 2015 FCA 250 (CanLII)), the Federal Court of Appeal upheld the decision that the employee’s decision to breastfeed her child was a “personal choice”, holding specifically at paragraph 35 of its reasons for decision that, “Breastfeeding during working hours is not a legal obligation towards the child under her care. It is a personal choice.”

Some people are going to disagree.

Top Five Cases of Importance to Ontario Employment Law - 2015

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I have listed my “Top Five Cases of Importance to Ontario Employment Law” every year since 2012 (see: 2012, 2013, 2014.) So, with another year coming to a close it is once again time for this Ontario employment lawyer to provide his picks for the Top Five Cases of Importance to Ontario Employment Law.

“Benefits”: The Most Important Word in Ontario Employment Law

What is the most important and expensive word in Ontario employment law? “Benefits.” That one single word has cost more employers more money, and created more headaches and confusion for Ontario employment lawyers over the past four-to-five years, than any other.

Why is the word “benefits” so important, expensive, and frustrating? Because there is a debate in Ontario jurisprudence as to whether the failure to specifically say “benefits” in a contractual termination provision renders the contract “void ab initio”, that is void from the start.

A decision of the Ontario Superior Court of Justice, released October 29, 2015, Oudin v Le Centre Francophone de Toronto, 2015 ONSC 6494 (CanLII), only serves to add to the confusion.

Employer’s Financial Circumstances Not a Relevant Consideration in Determining Reasonable Notice: ONCA

Are an employer’s financial circumstances a relevant consideration in determining the period of reasonable notice to which a wrongfully dismissed employee is entitled?

That was the issue that the Court of Appeal for Ontario had to answer in the case of Michela v. St. Thomas of Villanova Catholic School, 2015 ONCA 801.

In answering the question “no”, the court could not have been any more succinct or clear: “An employer’s financial circumstances may well be the reason for terminating a contract of employment – the event that gives rise to the employee’s right to reasonable notice. But an employer’s financial circumstances are not relevant to the determination of reasonable notice in a particular case: they justify neither a reduction in the notice period in bad times nor an increase when times are good.”

Too Little, Too Late. Employer Could Not Impose New Terms via Contract after Employee Accepted Letter of Offer

What happens when a potential employee signs a letter of offer, which letter makes reference to an employment agreement “to follow”, the terms of which agreement differ substantially from what is contained in the offer letter? Will the court uphold the terms of the full contract?

Put another way, can an employer make a basic offer of employment to a candidate, advise the candidate that he will be required to sign a full employment agreement at some later time, and then impose new terms via that full contract?

I have repeatedly answered that question in the negative, see e.g. No Changes Without Consideration, published June 2, 2012. More recently, on November 10, 2015, (and with much more authority) the Court of Appeal for Ontario, in its reasons for decision in Holland v. Hostopia.com Inc., 2015 ONCA 762 (CanLII) said exactly the same thing and for essentially the same reason.