In a recent decision, the Federal Court overturned a decision by a delegate of the Minister of Labour, which had refused to investigate the health and safety complaint of a Canada Border Service Agency employee.

The employee had filed a complaint with the Minister under the Canada Labour Code when CBSA had refused to appoint an impartial investigator to investigate his harassment concerns. CBSA had taken the position that it did not have to investigate the concerns because the employee was off-duty at the time of the alleged harassment, even though the incident took place within the workplace and the alleged harasser was the employee’s supervisor. When considering the employee’s Code complaint, the Minister of Labour’s Delegate refused to investigate the complaint, finding instead that the employee should file a human rights complaint because he was off-duty at the time of the incident.

In its decision, the Court found that the Minister’s Delegate did not have the option to refuse to investigate the employee’s complaint. Instead, the Court found that investigation was a mandatory obligation on the Delegate for this type of complaint, and the Delegate therefore committed an error by refusing to investigate.

In addition, the Court strongly questioned whether it was appropriate to deny the employee harassment protections under the Code because he was off-duty at the time of the incident. As the Court stated:

“While the Applicant was in fact off-duty when the incident occurred… it remains that the Applicant was still in his place of work and the agent of the alleged harassment and violence was the Applicant’s supervisor. Therefore, it becomes difficult to disregard the employee-employer connection in this incident, and the fact that the effects of the incident are evidently different for the Applicant than for a regular traveller who is not employed by the CBSA. Since the place, the tone, and the circumstances of the incident are indicative of the existence of a nexus between the incident of violence and the work place, the issue becomes whether or not the incident itself constitutes harassment and violence. The Respondent’s submissions seem to suggest that if an employee acts within the requirements of their job, as provided for by their work policy or statute, their actions against an off-duty employee while in the place of work cannot constitute harassment or work place violence. I agree with the Applicant that this could set a concerning precedent…”

Based on its analysis, the Court set aside the Minister’s Delegate’s decision and referred the matter back for a new decision.

The Applicant was represented by Morgan Rowe of RavenLaw.

During the week of June 20, 2022, RavenLaw presented as part of multiple panels during the Canadian Association of Labour Lawyers’ annual conference.

On June 24, 2022, Sean McGee presented as part of a panel exploring the opportunities and challenges of remote work post-COVID. In the afternoon, Wassim Garzouzi moderated a panel with two guest speakers from the United States, which discussed unionizing workplaces like Amazon and the need to reform labour laws.

On June 25, 2022, Amarkai Laryea presented on a panel addressing the impacts that current grievance arbitration models have on racialized workers and ways to practice labour law in an actively anti-racist manner.

Did Shopify terminate your employment? We have a dedicated team of Employment Lawyers ready to help. Severance packages can be confusing, which is why we’re committed to answering all of your questions and helping you through this uncertain time. Schedule an appointment today with one of our experienced Employment Lawyers to review your termination package and make sure you get a fair deal. You can come meet with us in person, by videoconference or by phone.

RavenLaw is pleased to welcome Michael Fisher, Raphaëlle Laframboise-Carignan, Amanda Montague-Reinholdt, and Morgan Rowe into the partnership, effective January 1, 2022.

Michael, Raphaëlle, Amanda and Morgan have worked with RavenLaw for many years and have made significant contributions to the firm. We thank them for their important work in advancing union and worker rights, and congratulate them on becoming partners.

In a significant victory, the Ontario Divisional Court recently set aside a Workplace Safety Insurance Appeals Tribunal (“WSIAT”) decision and directed the WSIAT to grant benefits to the injured worker.

The Worker was injured on the job and, as a result, was no longer able to work. However, he was denied benefits by the Workplace Safety Insurance Board (“WSIB”) and the WSIAT because he waited several weeks after the accident before seeking medical care. The WSIAT found that the Worker had not proven that the workplace accident significantly contributed to his injury.

At the Divisional Court, the Worker argued that it was unreasonable for the WSIAT to discount uncontradicted medical evidence and to rely so heavily on his delay in seeking treatment. The Court agreed, finding that the WSIAT’s decision suffered “from serious logical flaws” which resulted in an “outcome [that was] unreasonable, based on the record.” It therefore set the WSIAT’s decision aside.

The Court then went one step further and held that the delay in resolving the Worker’s claim was a serious concern. The accident occurred in 2005, which meant that the Worker had been waiting over 15 years for benefits. Given the amount of time that had elapsed since the injury and the clear evidentiary record, the Court did not send the file back to the WSIAT for reconsideration. Instead, it found that the Worker was entitled to benefits for the injury. It referred the matter back to the WSIAT to assess his claim.

This is an important win for workers who are faced with unreasonable decisions from statutory tribunals such as the WSIAT. It affirms that the Divisional Court has the option, in certain cases, to direct the outcome instead of sending the issue back to the tribunal for reconsideration.

The Worker was represented by Julia Williams, Wassim Garzouzi, and Anna Rotman.

An increasing number of employers resort to providing employees with time off for the hours they work overtime, instead of paying them overtime pay. Employees may have questions about when they may receive this benefit and the rules associated with it. Here are three things you need to know regarding time off in lieu of overtime. 

1. What is time off in lieu of overtime?

The Employment Standards Act provides that an employee may be compensated for the hours they work overtime by receiving one and one-half hours of paid time off work for each hour they work overtime, instead of being paid overtime pay. For most employees, this means that they can receive one and one-half hours of paid time off for each hour they work in excess of 44 hours in the work week. Some jobs have an overtime threshold that exceeds 44 hours in a work week, or do not provide for the right to overtime pay, as reported in the Guide to employment standards special rules and exemptions. This applies to every employee working in Ontario, except for employees under federal jurisdiction such as employees working for banks, telecommunication companies, transportation companies, postal services, and most federal Crown corporations. 

2. Can an employer force you to take time off instead of paying you overtime?

No. Subsection 22(7)(a) of the Employment Standards Act expressly provides that time off in lieu of overtime is only allowed if both the employee and the employer agree to it. This means that an employer cannot refuse to pay overtime pay and impose time off in lieu of overtime if the employee does not agree to it. 

However, this is also means that an employee cannot decide on their own to work hours in excess of the overtime threshold in hopes of receiving additional time off work. For an employee to be compensated with time off for the hours they work in excess of the overtime threshold, both the employer and the employee must agree to it.

3. When does time off in lieu of overtime expire?

By default, when an employee and an employer agree that an employee will be compensated with time off work for the hours they work in excess of the overtime threshold, the paid time off work must be taken within three months of the work week in which the overtime was earned. There is one exception. The paid time off work can be taken within 12 months of the work week in which the overtime was earned if the employer agrees to it. 

If the employee’s job ends before they were able to take the paid time off in lieu of overtime, the employer is required to pay overtime pay to the employee for their unused banked time off. The employer must do so no later than seven days of the date on which the employee’s job ended, or on the day that would have been the employee’s next pay day. 

We are here to help. If you have questions about your right to overtime pay or time off in lieu of overtime, or any other term in your employment contract, consult our experienced employment lawyers at RavenLaw LLP. Please call 613–567–2901 or email info@ravenlaw.com to consult one of our experienced employment lawyers.

[This article is for informational purposes only and is not legal advice, which cannot get given without consideration of your individual circumstances.]