Canadian Employment Law Today

Canadian Employment Law Today | 9 Canadian HR Reporter, a Thomson Reuters business 2018 Cases and Trends Common ground between injury compensation, accommodation « from SUITABLE on page 3 able employment with the original employer and ordered Caron's case reconsidered. e Quebec Court of Appeal agreed and dis- missed the CSST's appeal, determining that the Quebec workplace injury compensation legislation should be considered in accor- dance with Caron's human rights under the charter, including the duty to accommodate. e case made its way to the Supreme Court of Canada, where the top court noted that Quebec's injury compensation system conferred any matters under it exclusively to the CSST and workers injured at work could not launch a civil liability action re- lated to the injury against their employer. is meant, said the Supreme Court, that "there is no other recourse for an injured worker, and no other forum in which to vin- dicate his or her rights." e Supreme Court also noted that Que- bec's injured worker legislation was intend- ed to prevent unfair treatment of workers based on disabilities resulting from work- place injuries. e act specifically states that "no employer may dismiss, suspend or transfer a worker or practice discrimi- nation or take reprisals against him, or im- pose any other sanction upon him because he has suffered from an employment injury or exercised his rights under this act." On the other hand, the Supreme Court acknowledged that "the duty to accommo- date disabled employees is a fundamental tenet of Canadian and, more particularly, Quebec labour law," including the charter. e court also noted that the charter is treated as "a source of fundamental law" and courts take the approach that all Que- bec law should be interpreted in confor- mity with the province's charter. Since the charter includes the duty to accommodate, legislation shouldn't deprive someone who is disabled from a work injury of the right to be accommodated like someone who is disabled from non-work-related reasons, said the court. Quebec's injured worker legislation al- lows workers to return to their pre-injury employment within a specified time if they're able to recover sufficiently enough to do the job. If not, they have access to job- search, retraining, or other assistance. e Supreme Court found that injury compensation legislation allowed for three different possibilities for injured workers — reinstatement, equivalent work, or suit- able employment — all which ensure "that an employee who is able to work can do so," which is consistent with accommodation. e Supreme Court also found that the CSST's services providing assistance for injured workers getting back into a state of readiness for work are a form of accom- modation. ere was common ground be- tween the injury compensation legislation's right to suitable employment and the char- ter's duty to accommodate, said the court. e Supreme Court determined the CLP should have taken into account the employ- er's duty to accommodate when determin- ing Caron's right to suitable employment. e top court set aside the CLP's decision, remitting it to the CLP's successor, the ad- ministrative labour tribunal, to decide by taking into account the duty to accommo- date under the charter. See Quebec (Com- mission des norms, de l'equite, de la sante et de la securite du travail) v. Caron, 2018 Car- swellQue 141 (S.C.C.). Every month Canadian HR Reporter hits the desks of HR management decision-makers across Canada. Human resources professionals, more than ever, are under pressure to drive performance, increase productivity and streamline processes. By providing real-world solutions to perplexing HR situations, Canadian HR Reporter gives you the tools and information to make more calculated decisions. You'll get well-researched advice on the latest trends and insights, including key metrics, to help make the business case for investing in HR. To order your subscription call 1.800.387.5164 | 416.609.3800 www.hrreporter.com/subscribe PM40065782 RO9496 September 5, 2016 INSIDE FIGHTING FRAUD Insurance fraud prevention requires a joint approach between plan sponsors and insurers CCHRA partners up Agreements with SHRM, CERC formalize relationships page 2 Pink hair Starbucks' relaxed dress code part of growing trend page 3 Mental health More integrated approach needed to help people page 13 page 15 ENFORCEMENT > pg. 8 Pokemon GO presents challenges for employers But risks can be managed eff ectively: Experts BY LIZ BERNIER POKEMON GO, the mobile game that's sweeping smartphones of the nation, has seen a meteoric rise in popularity. And just as the game has blurred boundaries be- tween public and private space, it has also blurred boundaries be- tween work and play. Many employees are taking the mobile game — among oth- ers — to work with them, and that has the potential to create issues for employers, according to Erin Kuzz, founding member of law fi rm Sherrard Kuzz in Toronto. Chief among the risks are safety and security concerns, and pro- ductivity challenges, he said. "When I turn my mind to the workplace issues that are raised by Pokemon Go and some of these related apps and games, two things are particularly glaring," said Kuzz. "Number one is the security is- sues where people are download- ing any kind of app or external game onto their phone, and that could be a phone that is used for work purposes — whether it's an employer-owned device or a BYOD (bring-your-own device) that's been approved for use in the workplace — it creates security issues." With Pokemon Go, there are counterfeit or non-genuine ver- sions that have been found to con- tain malware, she said. "When you have employees po- tentially exposing the employer's system to malware… it's an issue," she said. "Employers have to think about how they want to tackle this very quickly. "My advice would be to prohibit use of anything like that on a work device — because you just can't control what happens if someone downloads malware." Many of the risks are around cyber security, said Leah Fochuk, consulting services manager at HR consulting fi rm Salopek & Associ- ates in Calgary. "Because you sign up through Google, the app is really capturing a lot of sensitive data," she said. Companies that use BYOD of- ten deal in sensitive or confi dential information and defi nitely need to be aware of those risks. "Even when you're downloading it, if people are downloading the app not from offi cial vendors, the risk of introducing malware could potentially aff ect your entire net- work," said Fochuk. "On the IT side, there are some pretty big risks that would need to be managed." Also, there are potential safety hazards when it comes to distrac- tion or trespassing. "Players are practising distract- ed walking: eir heads are down, they're not necessarily seeing where they're going," said Fochuk. "As a company, you would hate to have something happen on your Ontario looking to make changes to labour laws Card-based certifi cation, precarious work, better enforcement among concerns BY JOHN DUJAY IN a massive undertaking, the On- tario government is looking to up- date not one but two labour laws with its Changing Workplaces Review. First proposed in 2015, the re- view would see the province's 1995 Labour Relations Act and 2000 Em- ployment Standards Act updated. "It's important our laws refl ect the realities of the modern econ- omy, and that's why we're consult- ing with people in communities across the province and reviewing our legislation," said Minister of Labour Kevin Flynn. Led by lawyer Michael Mitchell and former justice of the Ontario Superior Court John Murray, the review received more than 300 written submissions and met with various labour and employer groups. e co-chairs released an interim report in July. e 312-page report touches on a variety of issues relevant to em- ployers and labour groups. e Ontario Federation of La- bour (OFL) has been waiting quite some time for the changes, said OFL president Chris Buckley. "It's a springboard for a once-in- a-generation opportunity to bring sweeping changes to Ontario's employment laws and to make it fair for every worker across the province." If the exercise was to poke at as many of the issues as possible, it's achieved that goal, said labour and employment lawyer Craig Rix at Hicks Morley in Toronto. "What I see mostly in the re- port is a longstanding list of like- to-have proposals that have largely come from organized labour." Slap on the wrist for TTC's social media account Greater care needed: Arbitrator BY SARAH DOBSON THE Toronto Transit Commis- sion (TTC) found itself in hot water recently when an arbitrator ruled one of its Twitter accounts contributed to the harassment of employees and needed to be changed — but not shut down. In his decision, arbitrator Rob- ert Howe said social media sites operated by the TTC could be considered to constitute part of the workplace. And a number of the tweets on @TTChelps consti- tute harassment. "It is clear from the totality of the evidence that the TTC has failed to take all reasonable and practical measures to protect bar- gaining unit employees from that type of harassment by members of FIXED > pg. 6 INAPPROPRIATE > pg. 10 Pavlo Farmakidis (left), recruitment co-ordinator at Woodbine Entertainment Group in Toronto, and Mark Diker, senior manager of recruitment and talent planning, ran a job fair using Pokemon Go that attracted about 500 candidates. See page 18. 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